Bhima Hembram vs State Of Jharkhand

Pradeep Kumar Srivastava, J

Learned counsel for the State submits that an affidavit has been filed indicating that appellant Nos.1 (Bhima Hembram) and 2 (Jitrai Hembram) have died.

Considering the statement on oath and the fact that no substitution petition has been filed on behalf of appellant Nos.1 (Bhima Hembram) and 2 (Jitrai Hembram), this Criminal Appeal in respect of appellant Nos.1 (Bhima Hembram) and 2 (Jitrai Hembram) stand abated.

This appeal is only confined now in respect of appellant No.3 (Sudda Hembram @ Sugda Hembram) (hereinafter called as appellant).

We have heard, Ms. Aditee Dongrawat, learned Amicus Curiae appearing for the appellant and Ms. Vandana Bharti, learned A.P.P. appearing for the State at length.

We have gone through the entire Trial Court Records, including the evidence, F.I.R., charge, statement under Section 313 of Cr.P.C. and exhibits.

This criminal appeal is preferred against the judgment of conviction dated 16.09.2002 and order of sentence dated 07.10.2002, passed by learned Additional District and Session’s Judge, Fast Track, Court No.II, Jamshedpur, East Singhbhum, in Sessions Trial No.306 of 1998, whereby the appellant was convicted under Sections 302/34, 324/34 and 341 of IPC and sentenced to undergo imprisonment for life and a fine of Rs.1,000/- in default of payment of fine, two months simple imprisonment for the offence under Sections 302/34 of IPC and further sentenced for three years for the offence under Sections 324/34 of IPC and further sentence for one month for the offence under Section 341 of IPC.

The F.I.R. was registered on 05.09.1997, on the basis of the fardbeyan of informant- Ram Hembram [P.W.-6], who is son of the deceased. He stated that while he was in the field, his brother-in-law (P.W.-5) rushed and informed him that his mother and maternal uncle (mama) have been assaulted by Bhima Hembram, Jitrai Hembram and Sudda Hembram. On receiving the said information, he reached the place of occurrence and his other family members also reached there. He stated that he had seen in front of the house of Shambhu Mardi, in a ditch full of water, his mother was lying in pool of blood. There was heavy injury on her head and back. He further stated that his maternal uncle, Sorai Soren was also assaulted by the accused person with Katari (sharp cutting instrument), as a result of which, he sustained injury. He stated that the accused was carrying bow and arrow along with Katari and threatened the informant also, as a result of which, they fled from the place of occurrence and informed the police. He stated that since there was family dispute between the informant and the appellant’s family, the entire incidence has taken place.

On the basis of the fardbeyan, Musabani P.S. Case No.31 of 1997 was registered under Sections, 302/324/34 of the Indian Penal Code. 9. After investigation police submitted chargesheet against the appellant and cognizance was taken. Thereafter the case was committed to the Court of Sessions where charges were read over and explained to the appellant to which, he pleaded not guilty and claimed to be tried. Charges were framed against the appellant under Sections 302/34, 307/34, 324 and 341 IPC and the trial proceeded.

Altogether seven witnesses have been examined in this case, who are as follows:-

(i) P.W.-1 Shambhu Mardi

(ii) P.W.-2 Duggu Hembram

(iii) P.W.-3 Dr. Bhartendu Bhushan

(iv) P.W.-4 Kishun Hembram

(v) P.W.-5 Narsingh Murmu

(vi) P.W.-6 Ram Hembram, informant

(vii)P.W.-7 Ram Prikshan Gupta, Investigating Officer

The following documentary evidences were exhibited by the prosecution:-

Exhibit-1 & 2- Signature of P.W.-1 on the seizure list.

Exhibit 2/1- Signature of P.W.-6 on the F.I.R.

Exhibit- 3 Injury report

Exhibit-4 Formal F.I.R.

Exhibit-5 Seizure list of Katari

Exhibit-5/1- seizure list of saree

Exhibit-6 Postmortem report

Exhibit-7 & 7/1 FSL report

Material Exhibit-I- One Katari

Material Exhibit-II-One saree.

The Trial Court after completion of the prosecution evidence examined this appellant under Section 313 of Cr.P.C. and after hearing the parties, convicted this appellant under Sections 302/34, 324/34 and 341 of IPC.

Be it noted that Doctor, who conducted the postmortem of the deceased has not been examined. Postmortem report was exhibited by the prosecution.

Main witness is P.W.-5. He is none but by the brother-in-law of the deceased, who had informed about the incident to the informant. He stated that he was sitting beneath a tree when the accused person came with the Katari near tamarind tree and indiscriminately assaulted the deceased, as a result of which she died. The maternal uncle (mama) of the informant came to rescue his sister, but he was also assaulted with the Katari. In cross-examination, this witness stated that he watched the occurrence from a short distance, but he did not raise any alarm nor he tried to save the deceased.

The uncle of the informant, namely, Sorai Soren has not been examined in this case. It is stated that he died before his examination, but the Surai Soren was examined by a Doctor as it is the case of the prosecution that he was also assaulted.

The Doctor is P.W.-3 stated that he has examined Surai Soren and had found injury on his hand. This injury report was marked as exhibit-3. As per the injury report and statement of this witness, the injury was simple, incised wound over the left forearm. As per the Doctor, the injury was caused by sharp weapon.

The informant (P.W.-6) stated that he received the information from P.W.-5 that his mother and uncle have been assaulted, he reached the place of occurrence and found his mother lying in injured condition then, he went to the police station.

During course of investigation, the murder weapon Katari was recovered from the house of Bhima Hembram (now deceased). The blood stain and the said Katari was sent to the Forensic Science Laboratory along with cloth of the deceased in which there was blood stain. The Forensic Science Laboratory report has been marked as exhibits-7 and 7/1 on admission. As per the said report, the blood stain found from the said Katari and the cloth which was worn by the deceased matched as both was of human origin and blood Group-A. Be it noted that no weapon whatsoever was recovered from the house of the appellant- Sudda Hembram @ Sugda Hembram.

It is made clear that only one weapon was recovered, which was sent to the Forensic Science Laboratory. When there is an allegation that all of the accused were armed with Katari and used the same to commit the assault, why the Investigating Officer has not seized any other weapons from the house of Sudda Hembram @ Sugda Hembram and Jitrai Hembram has not been explained.

So far as the motive is concerned, the witnesses have stated that there was some dispute between both the family, but what was the dispute and what is the fact which gave rise to the dispute has not been mentioned by any of the witness. The plea of dispute has remained general without any specific material.

The conduct of the eye witness, P.W.-5 is also not above the board. As per him, he stated that he had seen this appellant assaulting the deceased and brother of the deceased came to save her but surprisingly, this appellant who is none, but the son-in-law of the deceased, took no pain either to save the deceased or to raise alarm to gather the villagers. He only after the incident gave information to the informant. This conduct of the witness creates a doubt about his presence in the place of occurrence.

So far as the injury of the deceased is concerned, as per the postmortem report there is one sharp cut wound on the right temporal region and another on left temporal region and there is one sharp cut wound on the right side of the back. Though this postmortem report corroborates the ocular evidence that the deceased was struck on the head and the back, but it cannot be said from the evidence that Sudda Hembram @ Sugda Hembram alone had assaulted the deceased. Though Section 34 of IPC has been applied in this case, but there is nothing in the evidence to suggest that there was element of common intention to commit murder of the deceased.

Be it noted that the murder weapon was recovered from the house of Bhima Hembram. The police did not seize any bow and arrow, though as per prosecution evidence, it has come that all the appellants were also armed with bow and arrow and with the same they tried to threaten the informant, when he came to the place of occurrence on being informed by P.W.-5.

All these factor calls for giving benefit of doubt to the appellant. The judgment of conviction dated 16.09.2002 and order of sentence dated 07.10.2002, passed by learned Additional District and Session’s Judge, Fast Track, Court No.II, Jamshedpur, East Singhbhum, in Sessions Trial No.306 of 1998 is thus set aside. The appellant is acquitted by giving benefit of doubt.

As this appellant is already on bail, he and his bailors are discharged from the liabilities of the bail bonds.

Interlocutory application(s), if any, also stands disposed of.

Considering the proper assistance of Amicus Curiae, we direct the Jharkhand High Court Legal Services Committee to pay remuneration of Rs.7,500/- to Ms. Aditee Dongrawat, the learned Amicus Curiae.

Let the Trial Court Record be transmitted to the Court concerned along with a copy of this judgment.