Ishwar Murmu And Ors vs State Of Jharkhand

Chandrashekhar, J

Report dated 08.07.2019 of Divisional Jail, Sahebgang and other reports have been placed on record.

Mr. Shekhar Sinha, the learned Public Prosecutor, states that during pendency of this criminal appeal the appellant Pandu Murmu in Cr. Appeal

(D.B.) No. 837 of 2012 has passed away on 26.09.2017.

There is no application filed on behalf of the legal heirs and successors of the appellant, namely, Pandu Murmu in Cr. Appeal (D.B.) No. 837 of

2012 for their substitution in his place and, accordingly, this criminal appeal qua appellant, namely, Pandu Murmu in Cr. Appeal (D.B.) No. 837 of

2012 has abated.

Four persons, namely, Kishun Murmu, Matu Marandi, Ishwar Murmu and Pandu Murmu have faced the trial in S.C. No. 259 of 2006 on the charge

of committing murder of Jasai Murmu in furtherance of common intention of all; charge under sections 302/34 IPC was framed against the

abovenamed accused persons vide order dated 04.01.2007.

The accused-convicts, namely, Kishun Murmu and Matu Marandi are appellants in Cr. Appeal (D.B.) No. 92 of 2010 and the accused-convicts,

namely, Ishwar Murmu and Pandu Murmu are appellants in Cr. Appeal (D.B.) No. 837 of 2012. They have challenged the judgment of conviction

under sections 302/34 IPC dated 07.02.2008 and the order of sentence of imprisonment for life and fine of Rs.25000/- imposed upon each of them

vide order dated 14.02.2008, passed by the learned Additional Sessions Judge-I, Sahibganj in S.C. No. 259 of 2006.

Informant of Barhait P.S. Case No. 27 of 2006 which was registered against the accused-appellants on 07.05.2006 under sections 302/34 IPC is

the son of the deceased, namely, Jasai Murmu. In his fardbeyan, the informant has stated that on 06.05.2006 he had worked on a portion of the land

over which the accused, namely, Ishwar Murmu and Pandu Murmu had some dispute with his father; Ishwar Murmu and Pandu Murmu are uncle of

the informant. The informant states that it was in the morning on 07.05.2006, at about 7:00 a.m., when he was returning home after ploughing the field

when he saw the accused persons, namely, Pandu Murmu, Ishwar Murmu, Kishun Murmu and Matu Marandi, all armed with bow, arrow and Tangi

coming from the village. The accused, namely, Kishun Murmu was carrying Tangi (axe) and other accused persons were carrying bow and arrow.

He says that on seeing the accused persons coming towards him, he ran away, however, his father who was following him was caught by the accused

persons. While fleeing away he turned back and saw that the accused persons threw his father on the ground and Pandu pierced arrow in his

abdomen and Ishwar struck his cheek with the arrow. The accused persons threw the dead body of his father in the field and thereafter fled away.

He has claimed that assault by the accused persons on his father has been seen by his uncle and other villagers.

After the investigation, charge-sheet under section 302/34 IPC was submitted against the above-named accused persons and they have faced trial.

During the trial, the prosecution has examined altogether 13 witnesses; the informant, namely, Jagan Murmu is PW-2 and his brother Salahai Murmu

is PW-7. The Investigating Officer has been examined as PW- 12.

Dr. Shiv Chandrika Hansda- PW-13 who has conducted autopsy over the dead body has found the following injuries on Jasai Murmu:-

“Two ante-mortem injuries on his person which were injury No.1 sharp wound over left side of Jaw near mandibular line, size of wound ½â€x

½†bone deep and injury No.2 which he found to be sharp wound over abdomen in the mid line 1†above the umbilicus and size of the wound

which he found was 1 ½â€​ x 1â€​.â€​

The doctor has opined that death has been caused due to shock and haemorrhage and the injury in the abdomen was sufficient to cause death in the

ordinary course.

On the basis of the evidences laid by the prosecution during the trial in S.C. No. 259 of 2006, the learned Additional Sessions Judge-I, Sahibganj

has held that the prosecution has proved charge under section 302/34 IPC against the accused persons.

Sri Ranjan Kumar Singh, learned counsel appearing for the appellants in Cr. Appeal (DB) No. 92 of 2010 submits that on the basis of scanty

evidence laid on participation of the appellants, namely, Kishun Murmu and Matu Marandi it cannot be inferred that these appellants have shared

common intention to cause death of Jasai Murmu.

During the trial, the informant has reiterated the story as recorded in his fardbeyan. In his examination-in-chief, he has clearly deposed that it was

about 6:00 a.m. in the morning he was returning home when he saw the accused persons variously armed coming towards him. He has narrated the

incident of assault upon his father by the accused persons. PW-4, PW-6 and PW-8 are also eye- witnesses. PW-4 has stated that the appellant

Ishwar and Pandu have assaulted Jasai Murmu. The learned Judge has found her a natural witness to the occurrence. PW-6 has said that her house

is 100 yards from the field where the incident has taken place. She has also stated that the appellants, namely, Pandu Murmu and Ishwar Murmu have

inflicted injuries by arrow to Jasai Murmu. PW-8 has also spoken about the assault by the appellants Pandu Murmu and Ishwar Murmu on the similar

lines. He has asserted that he has seen the incident from a distance of 50-60 yards.

The prosecution witnesses- PW-1, PW-3 and PW-5 have turned hostile. But then, there are other witnesses, such as, Salahai Murmu PW-7,

brother of the informant , Marang Mayee Soren PW-9 who is the dauther-inlaw of the deceased, Salhay Murmu-PW-10 and Mahaveer Turi PW-11,

who have supported the prosecution’s case on material aspects. The medical evidence laid through Dr. Shiv Chandrika Hansda- PW-13 also

supports the manner of occurrence as disclosed by the prosecution through the eyewitnesses.

However, we find that there is no specific allegation against the appellants, namely, Kishun Murmu and Matu Marandi, except that they were also

with the other two appellants who threw Jasai Murmu on the ground. There is no allegation of specific assault upon Jasai Murmu by the appellants

Kishun Murmu and Matu Marandi.

The initial story of the prosecution is that the appellant Kishun Murmu was carrying a Tangi, however, no injury on Jasai Murmu caused by Tangi

blow has been detected by PW-13. A Tangi if at all carried by the appellant Kishun Murmu, however, has not been recovered by the Investigating

Officer. The manner of occurrence as disclosed by the prosecution during the trial in S.C. No. 259 of 2006 does not disclose that the appellants,

namely, Kishun Murmu and Matu Marandi shared common object to cause death of Jasai Murmu. All that what appears from the prosecution’s

evidence is that these two appellants, namely, Kishun Murmu and Matu Marandi have accompanied the appellants Ishwar Murmu and Pandu Murmu

and threw Jasai Murmu on ground. From such evidence, it cannot be inferred that it was the common intention of all to cause death of Jasai Murmu.

The medical evidence would also reveal that the other appellants did not share any common intention with the appellant Pandu Murmu who has

inflicted the fatal blow to Jasai Murmu.

Accordingly, we hold that the prosecution has failed to prove that in furtherance of common intention of all the accused persons have caused

death of Jasai Murmu. Therefore, the charge under sections 302/34 IPC framed against the appellants, namely, Kishun Murmu and Mattu Marandi @

Matu Marandi in Cr. Appeal (D.B.) No. 92 of 2010 must fail. These appellants are acquitted of the charge under sections 302/34 IPC, however, in

view of the evidence that they were also present there when the other two appellants have assaulted Jasai Murmu, they are convicted under section

323 IPC and sentenced to undergo RI for 9 months.

Appellants, namely, Kishun Murmu and Mattu Marandi @ Matu Marandi in Cr. Appeal (D.B.) No. 92 of 2010, who have served imprisonment of

more than 9 months, are discharged from liability of bailbonds furnished by them.

Cr. Appeal (D.B.) No. 92 of 2010 is partly allowed.

The complicity of the appellants, namely, Ishwar Murmu and Pandu Murmu in Cr. Appeal (D.B.) No. 837 of 2012 in inflicting arrow blows on

Jasai Murmu has been clearly established by the prosecution. Appellant, namely, Pandu Murmu has inflicted arrow blow in the abdomen of Jasai

Murmu and this injury has been found sufficient to cause death in the ordinary course by the Doctor PW-13. Assault by a sharp-piercing weapon in

the abdomen of Jasai Murmu would no doubt impute requisite intention to the appellant- Pandu Murmu to cause such injury which has resulted in

death of Jasai Murmu. However, the appellant- Ishwar Murmu has been attributed with assault upon Jasai Murmu on his cheek. It is stated that these

two appellants have assaulted Jasai Murmu when he fell down on the ground. It is, thus, apparent that the appellant, namely, Ishwar Murmu also could

have dealt blow on the vital part of the body of Jasai Murmu, however, that is not so. There is no allegation that he has assaulted Jasai Murmu

repeatedly. In these facts, in our opinion, appellant- Ishwar Murmu cannot be convicted with the aid of section 34 IPC for causing death of Jasai

Murmu. He has caused grievous hurt to Jasai Murmu and, therefore, he is liable to be convicted under section 326 IPC and he is sentenced to undergo

RI for 10 years.

The appellant, namely, Ishwar Murmu has remained in jail for more than 13 years and, therefore, he shall be set free forthwith, if not required in

connection to any other case.

Cr. Appeal (D.B.) No. 837 of 2012 is partly allowed.