1.Sunil Murmu, son of Katu Lal Murmu 2.Jurga Murmu, son of Katu Lal Murmu v. CORAM: HON'BLE
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No. 239 of 2005 ------ 1.Sunil Murmu, son of Katu Lal Murmu 2.Jurga Murmu, son of Katu Lal Murmu 3. Turka Murmu, son of Katu Lal Murmu 4. Katu Lal Murmu, son of Late Surjan Murmu 5. Nutan Muni Soren, wife of Katu Lal Murmu ……Appellants The State of Jharkhand ....…Respondent Versus ----- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD ----- For the Appellants : Mr. Kaushal Kishore Mishra, Advocate For the State : Mr. S. K. Srivastava, A.P.P ------ ORAL JUDGEMENT IN COURT Order No: 05/ Dated: 28.10.2024 This Criminal Appeal has been filed on behalf of the appellants challenging the judgment of conviction and sentence dated 10.02.2005 passed in Sessions Case No. 53 of 2002/46 of 1995 by Shri. Indra Deo Mishra, learned 2nd Additional Sessions Judge, Fast Track Court, Jamtara by which the appellants Sunil Murmu, Jurga Murmu, Turka Murmu and Katu Lal Murmu, have been convicted under Sections 147, 148, 341, 323 and 324 of the I.P.C and sentenced to undergo R.I for one year each under Section 147 I.P.C, R.I for two years under Section 148 I.P.C, R.I. for one month under Section 341, R.I for one year under Section 323 I.P.C, R.I. for two years under Section 324 whereas, Nutan Muni Soren has been convicted for the offence under Section 147, 1 148, 341, 323 and 337 of the I.P.C and sentenced to undergo R.I for one year under Section 147 I.P.C, R.I for two years under Section 148 I.P.C, R.I for one month under Section 341 I.P.C, R.I for one year under Section 323 I.P.C and R.I for six months under Section 337 of the I.P.C. However, all the sentences have been directed to run concurrently. 2. The prosecution case, in brief, is that the informant Munila Hansda gave his fardbeyan before A.S.I Ramadhar Ram of Nala Police Station in the Nala estate dispensary on 21.07.1991 at about 11.30 AM stating that the informant had taken the land on “Battai” from Birju Murmu and agricultural work is being coming from two to three years back. He further stated that on 21.07.1991 at about 5 PM, the informant Munilal Hansda, Kalidas Hansda and Jaidhan Hansda had gone to cutting the soil of the land situated at Talabahiyar. In the meantime, accused Sunil Murmu, Jurga Murmu, Turka Murmu, Katulal Murmu, Nutanmuni Murmu and Kolomuni Murmu came and they surrounded the informant and his two brothers. Sunil Murmu, Katulal Murmu and Nutan Murmu were armed with tangi. Jurga Murmu was armed with Kudal, Turka Murmu armed with bows and arrows and Kolomuni Murmu was armed with lathi. Thereafter, the accused persons used filthy language and protested from cutting the soil and they told them that they will cut the soil and prepare the land for seedling the paddy. Thereafter, the accused Jurga Murmu had assaulted the informant Munilal Hansda with kudal on his left hand due to which he sustained injury and fell down. The accused Turka Murmu had assaulted Kalidas Hansda with bows and 2 arrows on the left arm, Ketulal Murmu had assaulted Kalidas Hansda with tangi on the thigh and mouth. He received injury and also fell down. Accused Nutanmuni Murmu assaulted to Jaidhan Hansda by throwing stones. Thereafter, the villagers namely Katulal Marandi Dhudhu Marandi, Danatan Hansda, Birju Murmu and others came who had seen the occurrence. Then, the injureds came at their home and they went to Nala Hospital on bullock cart where they were medically examined. 3.
Legal Reasoning
Heard Mr. Kaushal Kishore Mishra, learned counsel for the appellants and Mr. S. K. Srivastava, learned A.P.P for the State. 4. Learned counsel for the appellants has submitted that the impugned judgment of conviction and sentence passed by the learned Court below is illegal, arbitrary and not sustainable in the eye of law. However, learned counsel for the appellants has alternatively submitted that the occurrence took place more than 30 years ago and the appellants have been awarded maximum punishment R.I for two (2) years and they have remained in custody for some period also and as such, lenient view may be taken favour of the appellants. 5. On the other hand, learned counsel for the State has submitted that the impugned judgment of conviction and sentence passed by the learned Court below is fit and proper and no interference is required from the Court. It is submitted that all the appellants have assaulted the informant, his wife and other family members and as such, no illegality has been committed by the learned Court below. It is submitted that all the prosecution witnesses have fully supported the prosecution case and PW-1, 3 PW-2, PW-3, PW-4 and PW-5 who are the informant and his family members have supported and corroborated the case of each other. However, learned Counsel for the State has also fairly submitted that the occurrence took place more than 30 years ago. 6. Perused the Lower Court Records of this case and considered the submissions made on behalf of learned counsel for both the sides. 7. It appears that the informant Munilal Hansda i.e. PW-1 had lodged the F.I.R. against the appellants on 21.07.1991 for assaulting his brothers and his wife on account of land dispute between the parties. 8. It transpires that the police, after investigation, had submitted charge sheet against the appellants namely Sunil Murmu, Jurga Murmu, Turka Murmu, Katu Lal Murmu, Nutan Muni Soren on 29.08.1991 under Section 147, 148, 341, 323, 308 and 327 of I.P.C. Thereafter, cognizance was taken against the appellants on 18.03.1993 under Section 147, 148, 341, 323, 324, 337, 308 and 326 of the I.P.C. 9. After supplying the police papers to the accused persons, the case was committed to the Court of Sessions. 10. Thereafter, the charges were framed under Section 147, 148, 341, 323, 324, 308 and 337 of I.P.C on 07.02.2001 by the learned First Additional Sessions Judge, Jamtara against the appellants and to which they pleaded not guilty and claimed to be tried. 11. During trial, the prosecution in support of its case got examined seven (7) witnesses who are as follows:- (i) PW-1 is Munilal Hansda (i.e. the informant), 4 (ii) PW-2 is Jaidhan Hansda (i.e. the injured), (iii) PW-3 is Kalidas Hansda, (iv)PW-4 is Sanatan Hansda, (v) PW-5 is Katu Marandi, (vi) PW-6 is Dr. Shiv Shankar Harizan and (vii) PW-7 is Chandradev Mondal. 12. The prosecution in support of its case had proved the following document as Exhibits which are as follows:- (i) Exhibit-1 is the letter dated 06.01.2004 issued by In-charge, Medical Officer, P.H.C, Nala, (ii) Exhibit-A is the medical report of Nutanmuni Murmu, (iii) Exhibit-A/1 is the medical report of Katulal Murmu, (iv) Exhibit-A/2 is the injury report of Kulomuni Murmu, (v) Exhibit-A/3 is the medical report of Sunil Murmu, (vi) Exhibit-2 is the signature of Shri Banarasi Choudhary, the then O/c Nala P.S on F.I.R, (vii) Exhibit-3 is the writing and signature on fardbeyan by A.S.I and (viii) Exhibit-3/1 is the forwarding of fardbeyan by Sri Banarasi choudhari, then O/c Nala, P.S. 13. The Defence in support of their case got examined one witness as follows:- (i) DW-1 is Paresh Bauri (i.e. an Advocate Clerk). 14. The Defence in support of their case had proved the following document as Exhibits which are as follows:- (i) Exhibit- B is the fardbeyan dated 12.07.1991 given by Nutanmuni Soren. (ii) Exhibit-B/1 is the formal F.I.R of Jamtara (Nala) P.S 5 case No. 66/91. (iii) Exhibit-B/2 is the forwarding of said fardbeyan 15. Thereafter, the learned Court below, after considering the case of both the sides has convicted the appellants as mentioned above and sentenced them on different counts as mentioned above. 16. Now, this Court has to consider as to whether the judgment and sentence passed by the learned Court below is proper or not? 17. From the documents filed on behalf of the parties, it appears that there is a case and counter case between both the sides. 18. It transpires that the appellant no. 5 Nutan Muni Soren had lodged the F.I.R against the informant and his family members for the same date of occurrence giving rise to Jamtara, Nala (Bindapathar) P.S. Case no. 66/91 under Section 147, 148, 323, 341, 308 of I.P.C and the F.I.R is marked as Exhibit-B/1, fardbeyan is marked as Exhibit-B respectively. 19. It transpires that the informant has concealed the injury sustained by the defence side and also transpires that the appellant no. 5 Nutan Muni Soren had sustained 13 injuries which reveals from Exhibit-A and one of the appellants namely Katu Lal Murmu had sustained 5 injuries which reveals from Exhibit-A/1 and the appellant namely Sunil Murmu had sustained 4 injuries which reveals from Exhibit-A/2 respectively. Thus, the informant side are also involved in assaulting the appellant no. 5 Nutan Muni Soren who had sustained as many as 13 injuries. 6 20. So far as the evidence of prosecution witnesses is concerned, PW-1 is Munilal Hansda who stated that the appellants had assaulted them and their family members by tangi, lathi and stones and thereafter, they went to Nala Hospital where they were treated and his fardbeyan was recorded by the police in the Hospital. During cross-examination, he admitted that the accused appellants have also instituted case against them. He also admitted when he was confronted on the point of doing “Battaidari”, then he had admitted that he has no paper of Battai and the occurrence started when the accused side protested them from cutting the soil. 21. Thus, from scrutinizing the evidence of PW-1, it is evident that there is a case and counter case between the parties. However, he denied the suggestion that the hand of the appellant no. 5 Nutan Muni Soren was fractured. 22. It is also evident that there was assault between both the sides and the hand of the appellant no. 5 was fractured and she had sustained 13 injuries. 23. PW-2 is Jaidhan Hansda i.e. brother of the informant, who also supported the prosecution case that the appellants have assaulted them. Accused appellant no. 1 Sunil Murmu had assaulted Kalidas by tangi. During cross-examination, he also admitted that he was also the accused in the counter case instituted by the informant. He also admitted that prior to this occurrence also Nutan Muni Soren i.e. appellant no. 5 had also instituted a case upon his father and mother which is also pending. 24. Thus, from scrutinizing the evidence of PW-2, it would 7 appear that when they were cutting the soil then they were prohibited by the accused persons and thereafter, the occurrence has taken place. 25. PW-3 is Kalidas Hansda i.e. the brother of the informant, who also stated that the appellants have assaulted them by Lathi, Tangi and Stones. During cross-examination, he admitted that the appellants side had also instituted a case against him also. He denied that the hand of appellant no. 5 Nutan Muni Soren was fractured. 26. Thus, from scrutinizing the evidence of PW-3, it is evident that he was assaulted by appellant no. 5 Nutan Muni Soren by stones and then he was assaulted by one Katu lal Murmu but the manner of assault is not stated. Thus, the evidence of PW-3 is also not reliable. 27. PW-4 is Sanatan Hansda who is a formal witness and has tried to support the allegations made in the F.I.R and he claimed to have seen the occurrence from the tree. He also stated that appellant no. 5 Nutan Muni Soren was throwing stones. During cross-examination, he stated that the police have not recorded his statement as he is giving his evidence for the first time in Court. 28. Thus, from scrutinizing the evidence of PW-4, it is evident that evidence of PW-4 is not reliable as he was giving his evidence for the first time in Court and he was also not examined by the police. 29. PW-5 is Khetu Marandi who also claimed to have seen the occurrence and stated that Katu Lal Murmu had assaulted Kalidas Hansda by tangi and the appellant no. 1 Sunil Murmu had 8 assaulted Munilal Hansda but he had not named any other appellants. During cross-examination, he also admitted that he has not given any statement before the police and giving evidence for the first time in Court. 30. Thus, from scrutinizing the evidence of PW-5, it is evident that evidence of PW-5 is not reliable as he was giving his evidence for the first time in Court. 31. PW-6 is Shiv Shanker Harizan who is a District T.B Officer, Godda and he proved the photocopy of the Injury Report of the injured Kalidas Hansda in the writing and signature of Dr. Jawahar Lal Jha which was objected by the defence side also. However, Injury Report was not marked by the learned P.O by recording the evidence of PW-5 Nutan Muni Soren. During cross-examination, he proved the Injury Report of Nutan Muni Soren, Katulal Murmu, Sunil Murmu and Kulamoni Murmu which has been marked as Exhibit-A to Exhibit-A/3 respectively. 32. Thus, from scrutinizing the evidence of PW-6, it is evident that the PW-6 has not proved the injury sustained by the informant and his family members and hence, evidence of PW-6 on the point of proving injury to the informant is not proper and PW-6 is not competent to prove an injury report of the informant. 33. PW-7 is Chandra Deo Mandal who is also an Advocate Clerk and has proved the formal F.I.R marked as Exhibit-2. He has further proved the fardbeyan marked as Exhibit-3 and endorsement of fardbeyan marked as Exhibit-3/1 in signature of Shri Banarasi Choudhari, Officer-in-Charge. 9 During cross-examination, he admitted that no paper was submitted before him and he is not aware of the contents of the above documents. 34. Thus, from scrutinizing the evidence of PW-7, it is evident that PW-7 is not competent to prove the F.I.R and thus, the prosecution has failed to prove the F.I.R. also. 35. So far as the evidence of defence witness is concerned, DW-1 is Paresh Bauri who is also an Advocate Clerk and has proved the F.I.R of counter case Jamtara, Nala (Bindapathar) P.S. Case no. 66/91 endorsement of Officer-in-Charge marked as Exhibit-B, B/1 and B/2 respectively. 36. From appreciating the evidence of both the sides, it is evident that prosecution has failed to explain the injury sustained by appellant no. 5 Nutan Muni Soren although, she had sustained several injuries on her person and had lodged the F.I.R which is marked as Exhibit-B, B/1 and B/2 respectively. 37. Therefore, this Court finds that allegations against the appellant no. 5 Nutan Muni Soren are false and concocted and as such, the appellant no. 5 Nutan Muni Soren is acquitted for the offence under Sections 147, 148, 341, 323 and 337 of the I.P.C 38. So far as the appellant no. 1 to 4 namely Sunil Murmu, Jurga Murmu, Turka Murmu and Katulal Murmu respectively are concerned, this Court finds that Injury Report has not been proved by competent person but it may be the case of assault and as such, the conviction under Section 324 of the I.P.C is illegal and as such, the conviction under Section 324 is also set aside. However, the conviction of the appellants no. 1 to 4 namely Sunil Murmu, Jurga Murmu, Turka Murmu and Katulal 10 Murmu under Section 147, 148, 323, 341 is affirmed 39. At this stage, it would be relevant to refer Section 4 of the Probation of Offenders Act, 1958 which reads as under:- “4. Power of Court to release certain offenders on probation of good conduct. - (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the Court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2)Before making any order under sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3)When an order under sub-section (1) is made, the Court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender. (4)The Court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the Court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. 11 (5)The Court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.” 40. Considering the facts and circumstances of this case, the appellants no. 1 to 4 namely Sunil Murmu, Jurga Murmu, Turka Murmu and Katulal Murmu are directed to be released on probation bond of Rs. 1000/- for a period of one year each and they are further directed to appear and receive sentence when called upon during such period for one year and they were further directed to maintain peace and be of good behavior during the said period. 41. Thus, this Criminal Appeal (S.J) No. 239 of 2005 is allowed in part. 42. Let the original Lower Court Records be sent to the learned Court below at once by the office. Avinash/ (Sanjay Prasad, J.) 12