The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No. 328 of 2017 ----- (Against the judgment of conviction dated 04.02.2017 and order of sentence dated 06.02.2017 passed in Sessions Trial No. 164 of 2013 arising out of Mango P.S. Case No. 428 of 2011 corresponding to G.R. Case No. 2242 of 2011 by Sri Prabhakar Singh, Additional Sessions Judge-XIII, Jamshedpur) Jairam Murmu --- --- Appellant The State of Jharkhand --- --- Respondent Versus ….... For the Appellant For the State : Mr. Ashutosh Mishra, Advocate : Mrs. Priya Shrestha, Spl.P.P. PRESENT HON’BLE MR. JUSTICE NAVNEET KUMAR J U D G M E N T 19.02.2024 This Criminal Appeal is directed against the judgment of conviction dated 04.02.2017 and order of sentence dated 06.02.2017 passed in Sessions Trial No. 164 of 2013 arising out of Mango P.S. Case No. 428 of 2011 corresponding to G.R. Case No. 2242 of 2011 by the court of learned Additional Sessions Judge-XIII, Jamshedpur whereby and where under the appellant has been convicted for the offence punishable under section 307 of the IPC and has been sentenced to undergo Imprisonment for 5 years with a fine of Rs.5000/- and in default of payment of fine further directed to imprisonment for additional one month. 2. The prosecution case is based on the fardbeyan of the victim- informant Somay Murmu (P.W.1) dated 10.10.2011 which was recorded by ASI Jai Jai Ram Singh in Emergency Ward of M.G.M. Hospital, which is as under: On 10.10.2011 at about 12.30 elder brother of informant Pogra Murmu alongwith his sons Haricharan Murmu, Lakhi Ram Murmu, Biren Murmu, Nimai Murmu and his grandson Durga Charan Kisku and Ravindra Kisku were digging land for laying foundation of their house at Daiguttu. Informant further stated that they were three brother, elder brother is Pogra Murmu, younger brother is Mehgra Murmu who died in the year 2008 and the informant himself is the second son of his father. 2 Informant was insisting that house should be constructed after partition of the land. Then Pogra Murmu stated that he is elder and he will do whatever he likes to do. Then Pogra Murmu, Haricharan Murmu, Lakhi Ram Murmu, Biren Murmu, Nimai Murmu, Durgacharan Kisku and Ravindra Kisku surrounded the informant and started beating him with hands and fists. Pogra Murmu threatened to kill the informant. On his instigation, Jai Ram Murmu assaulted the informant on his head by Kulhari due to which the informant fell on the ground and started bleeding from his head. In the injured condition he was taken to the MGM Hospital, Jamshedpur for treatment, where the informant gave his statement before the Police. He alleged that the accused persons, in order to grab his land, tried to kill him. 3. Above fardbeyan of the informant was registered as Mango P.S. Case No. 428 of 2011 under sections 143,323, 108, 307, 34 of IPC and its investigation was handed over to A.S.I. Jai Jai Ram Singh. 4. On completion of investigation, the I.O. submitted charge-sheet in this case Vide Chargesheet No. 52 of 2012 under Section 143, 323, 108 and 307/34 of the IPC against accused persons namely Pogra Murmu, Haricharan Murmu, Namai Murmu, Lakhi Ram Murmu, Jai Ram Murmu, Biren Murmu, Durga Charan Kisku and Ravindra Kisku. Cognizance of the offence was taken by the court against all eight accused persons under same sections and the record was committed to the court of Sessions. 5. In the trial court, trial against all eight accused persons commenced on framing of charges on 12.11.2013 under Section 307/34,323/34,143 and 115 of IPC. Accused persons denied charges and claimed to be tried. 6. The learned trial court after conducting full-fledged trial passed the impugned judgment of conviction and order of sentence as above, which is under challenge in this appeal. 7.
Legal Reasoning
Heard learned counsel for the appellant and the learned Spl.P.P. on behalf of the State. Arguments advanced on behalf of the Appellant: 8. It is submitted on behalf of the appellant that the learned trial court has failed to appreciate the fact that it is an admitted case of the prosecution that there was only one blow alleged to have been inflicted upon the injured P.W.1 Somay Murmu and therefore, the intention and 3 knowledge in order to constitute the offence for attempt to murder as enshrined under Section 307 of the IPC is not corroborated. Further, it has been submitted that the Investigating Officer in this case has not been examined and therefore, the appellant has been debarred from the valuable right to draw the attention of the Investigating Officer towards the contradiction and inconsistencies in the depositions of the witnesses examined during the trial. Further, it is evident from the injury report (Ext-1) that there is only one injury, although it was grievous in nature but the opinion of the doctor has not been substantiated by bringing on record the X-ray report or the CT scan report. Therefore, the appellant has been debarred from drawing the attention towards the X-ray report and the CT scan report as to whether the injuries which are alleged to have been inflicted upon the person of the informant are grievous in nature and sufficient to cause death in order to constitute offence under Section 307 IPC. Therefore, the judgment of conviction passed by the learned Trial Court under Section 307 of the IPC is bad in law for want of bringing on record the vital documents including the X-ray report and CT scan report upon which the opinion of the doctor was based in order to come to a conclusion as to whether the intention and knowledge of the appellant was there to cause murder of the victim –P.W.1 because it is an admitted case of the prosecution that there was only one blow of Kulhari and that too from the back side of the kulhari as evident from the deposition of the informant P.W.1 Somay Murmu himself and therefore, it is urged on behalf of the appellant that at most it is a case for the offence punishable under Section 324 of the IPC and no offence under Section 307 IPC is substantiated. Therefore, the impugned judgment of conviction and order of sentence is fit to be set aside. Argument advanced on behalf of the State. 9. On the other hand learned A.P.P. appearing on behalf of the State has opposed the contentions raised on behalf of the appellant and submitted that there is no illegality in the impugned judgment of conviction and order of sentence because of the fact that the learned trial court has rightly relied upon Ext.2, which is medical examination report of the victim –injured P.W.1, which is based upon the X-ray report and CT Scan report but did not controvert the fact that neither the CT scan report nor the X-ray report has been brought on record as exhibits. Further, it has also been submitted on behalf of the prosecution by the 4 learned Spl.P.P. that two witnesses P.W.2 –Ganesh Murmu and P.W.3 Mangal Murmu have supported the version of P.W.1 Somay Murmu, who is the injured and further it is corroborated by P.W.6 – Doctor Lalit Minz during medical examination of the injured and the learned trial court has rightly appreciated the deposition of these witnesses and passed the impugned judgment of conviction and order of sentence and there is no illegality in the same and the instant Criminal Appeal is fit to be dismissed being devoid of merit. Appraisal & Findings 10. Having heard learned counsel for the parties, perused the record of the case including the Lower Court Record. 11. In order to prove its case, the prosecution has examined altogether six witnesses including the doctor who are as under: - P.W. 1- Somay Murmu (informant) P.W. 2- Ganesh Murmu (son of the informant), P.W. 3- Mangal Murmu (son of the informant), P.W. 4- Folar Murmu P.W. 5- Mahendra Sah P.W. 6- Dr. Lalit Minz, Medical Officer, Apart from the oral evidence some documentary evidences have also been adduced on behalf of the prosecution which are as under: - i. Ext.1- signature of informant Somay Murmu on fardbeyan ii. Ext.1/1- signature of Ganesh Murmu on fardbeyan iii. Ext.1/2- signature of Mangal Murmu on fardbeyan; iv. Ext. 2- injury report; Apart from the prosecution evidences one documentary evidence has also been adduced on behalf of the defence which is as under: - Ext.A- Khatiyan of Khata No. 447 ward No. 8, MNAC P.S. Mango 12. It is an admitted case of the prosecution that the dispute arose between the parties because of the landed property, which was not partitioned between them and both the parties are Gotias (brothers and cousin). In his cross-examination, PW-1 Somay Murmu admits that the land is not partitioned and accused persons were digging the land. They were digging the land 1 km away from his house. There are so many houses adjacent to that place. In para 4 he has stated that Jai Ram has assaulted only once over him from back side of Kulhari and he became faint at once. He has no knowledge what was done after that. He 5 returned to consciousness in hospital. On the same day, statement was given to police. It is an admitted case of the prosecution that the injured P.W.1 has been assaulted by the appellant from the back side of the kulhari and there was only one injury. Further it is found from the deposition of the doctor P.W.6, Dr. Lalit Minz who has examined the injured P.W.1 informant and found the following injury: “A Brain Deep cut injury present on the posterior aspect of the right parietal bone size 1½” x 1”. X-ray skull XPN No. 6618 dt. 10.10.2011 shows fracture of the posterior aspect of right parietal bone. C.T scan shows hemorrhage, contusion in the rightal region with depressed fracture of posterior parietal bone, mild soft tissue, scalp swelling over posterior parietal region and mild pain synitejur. Age of injury- within 12 hours Mode of injury-sharp long penetrating weapon Nature-grievous This witness P.W.6 has proved the injury report marked as Ext. 2 and from perusal thereof the deposition of P.W.6, it is found that there was only one injury and opinion given by the doctor P.W.6 was grievous in nature and caused by sharp long penetrating weapon and this opinion is based upon the X-ray and CT scan report but neither the CT scan report nor the X-ray report has been brought on record and proved by the concerned person/ radiologist. 13. Further P.W.2 Ganesh Murmu in para 3 of his deposition has stated that Jairam had assaulted by kulahari only one time and then his father became unconscious. In para 4 he has stated that he, Mangal, Folar had gone to pacify the quarrel but they had not been injured. 14. Further P.W.3 Mangal Murmu has stated in Para 5 that only single blow has been given by accused by kulahari to his father. In his cross examination he has stated that the occurrence of assault and beating took place in a field which is 40-100 feet away from the house. ‘Marpit’ (assault) took place in front of my house at about 12 noon and before that at about 11 morning some altercation of beating by hands and fists only took place at the agricultural field. 15. PW-4 Folar Murmu in his examination -in-chief has told that he has no knowledge regarding the occurrence of the case and he has not given any statement to police. This witness has been declared hostile. 16. PW-5 Mahendra Sah in his examination -in-chief has also told that he has no knowledge regarding the dispute between Somay Murmu and others. This witness has also been declared hostile. Further, it is found that although son of the informant namely 6 P.W.2 Ganesh Murmu and P.W.3 Mangal Murmu have supported the case of the prosecution but P.W.4 Folar Murmu and PW-5 Mahendra Sah has not supported the case of the prosecution and they have been declared hostile. Further, it is also found that the Investigating Officer in this case has not been examined and neither the weapon has been brought on record in order to afford an opportunity to the accused / appellant to draw the attention of the doctor about the concerned injury vis-à-vis the weapon used in the commission of the offence in order to come to a conclusion as to whether there was intention and knowledge on the part of the appellant to cause murder or not in order to constitute the offence of “attempt to murder”. Neither the weapon nor the blood stain cloth or earthen soil collected in order to appreciate the injury to draw the inference about the intention and knowledge to corroborate offence under Section 307 IPC. Offence of an attempt to murder is a serious offence. In proving the commission of such an offence, the prosecution is required to prove the basic ingredients of murder, thus it is found that the prosecution has miserably failed to substantiate the offence under Section 307 of the IPC for lacking any ingredient of intention and knowledge inasmuch as it is an admitted case of the prosecution that there was only one injury inflicted upon the injured causing from back side of the kulhari and thus this Court comes to the conclusion that the learned trial court has committed gross error in convicting the appellant for the offence of attempt to murder under Section 307 of IPC in absence of proof of any intention and knowledge for causing murder of the victim P.W.1. 17. From the aforesaid discussion, it is found that it is a case for the offence under Section 324 of the IPC where the injury has been caused by the appellant by using dangerous weapon i.e., Kulhari as evident from the depositions and testimonies of the P.W.1, 2 and 3 read with version of testimony of P.W.6 Doctor and the Ext.2, which is medical
Decision
examination of victim- P.W.1. In the result of the aforesaid evidence and the discussion made in the foregoing paragraphs, this Court comes to the conclusion that the learned Trial Court has committed gross error in passing the judgment of conviction and order of sentence dated 04.02.2017 and 06.02.2017 respectively for the offence punishable under Section 307 IPC. 18. Accordingly, the impugned judgment of conviction for the offence 7 punishable under Section 307 of the IPC dated 04.02.2017 passed in Sessions Trial No. 164 of 2013 arising out of Mango P.S. Case No. 428 of 2011 corresponding to G.R. Case No. 2242 of 2011 passed against the appellant by the court of learned Additional Sessions Judge-XIII, Jamshedpur is set aside and alters the finding of guilt of the appellant for the offence punishable under Section 324 of the IPC. Thus, this Court holds the appellant guilty and convicts him for the offence punishable under Section 324 of the IPC. 19. So far as the sentence is concerned, it is found that both the parties are related to each other and dispute has arisen due to landed property dispute for digging of land, which was not partitioned. Therefore, lenient view is taken in awarding the sentence. Further, it is found that the offence is said to be committed in the year 2011 about 13 years back and there is nothing on record to show criminal history of the appellant. In this view of the matter, this Court finds that no useful purpose would be served by sending the appellant again in jail, as he has served sentence for a period of 4 months and 19 days. Further, justice would be meted if the sentence of imprisonment is awarded for a term of the period already undergone by him and a suitable amount of fine may be imposed by way of compensation to be paid to the victim P.W.1 20. Accordingly, the appellant is sentenced to imprisonment for the period already undergone by him and he is further sentenced to pay a fine of Rs.10,000/- (Rupees Ten Thousand only) by way of compensation imposed for the offence punishable under Section 324 of IPC to be given to the victim P.W.1 and in default to pay the fine, he is directed to undergo R.I. for 1 year. 21. Since the appellant is on bail and therefore, a time of four months is given to the appellant to pay the aforesaid fine and in default of payment of fine he is directed to undergo R.I. for a period of 1 year. The appellant may deposit the fine amount through the Nazarat of the concerned Civil Court in order to give it to the victim P.W.-1 Informant (Somay Murmu), by way of compensation. 22. The learned Trial Court is directed to ensure that the said fine amount is deposited within the stipulated period of time and if the same is not deposited by the appellant, then he will serve the sentence as awarded in case of default of payment of fine by taking all necessary measures as per the provisions of law. 8 23. The appellant has been allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court and the moment appellant deposits the fine amount, he shall be released and discharged from the liabilities of bail bonds accordingly in this case. 24. The learned court below is also directed that on deposit of the said fine amount by the appellant, a notice be sent to the victim P.W.-1 (Somay Murmu) and on his appearance the said fine amount, if so, deposited by the appellant, shall be disbursed to him. In case, the said victim is not traceable or not available or not found at the given address, or does not appear before the Court, the same shall be disbursed to the close or near relatives or kith and kin of the said victim or else, as the concerned learned trial court may deem fit and proper, and in this regard the Court concerned may also involve the Para Legal Volunteer (PLV) of District Legal services Authority (DLSA), Jamshedpur, if required and the Secretary, D.L.S.A., Jamshedpur is directed to co-operate in this regard. 25. This Criminal Appeal is partly allowed. 26. Let the Lower Court Records and the copy of the judgment be also transmitted to the learned Court below for its compliance in letter and spirit. A.Mohanty Jharkhand High Court Dated 19th February, 2024 (Navneet Kumar, J.)