Jharkhand High Court
Chota Dugo Hembram vs The State Of Jharkhand on 11 February, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (DB) No. 481 of 2011
with
Cr. Appeal (DB) No. 446 of 2011
with
Cr. Appeal (DB) No. 482 of 2011
(Against the judgment of conviction and the order of sentence, both dated
11.03.2011 passed by the learned Additional District & Sessions Judge,
FTC-V, Godda in SC No. 172 of 2008)
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Chota Dugo Hembram, son of Bulay Hembrom, resident of Babupur, PO
and PS Lalmatia, District- Godda. ... ... Appellant
[In Cr. A.(DB) No. 481 of 2011]
Bara Dugo Hembram, son of Dhano Hembram, resident of Babupur, PO and
PS Lalmatia, District- Godda ... ... Appellant
[In Cr. A.(DB) No. 446 of 2011]
Sufal Hembram, son of Bolai Hembram, resident of Babupur, PO and PS
Lalmatia, District- Godda (Jharkhand) ... ... Appellant
[In Cr. A.(DB) No. 482 of 2011]
Versus
The State of Jharkhand ... .... Respondent
[In both cases]
(Heard through V.C. on 10.02.2021 and 11.02.2021)
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant(s) : Mr. Aman Shekhar, Advocate;
[In all cases]
Ms. Swati Shalini, Advocate
[In Cr. A.(DB) No. 481 of 2011]
For the State : Mrs. Vandana Bharti, APP
[In Cr. A.(DB) No. 481 of 2011]
Mr. Ravi Prakash,Spl.PP
[In Cr. A.(DB) No. 446 of 2011]
Mr. Saket Kumar, APP
[In Cr. A.(DB) No. 482 of 2011]
-------
Oral Judgment
11.02.2021
Per, Shree Chandrashekhar,J.
In Boarijore (Lalmatiya) PS Case No. 26 of 2008, Sufal
Hembram, Chota Dugo Hembram, Bara Dugo Hembram, Dubbo Hembrom,
Kadbo Soren @ Chajja Soren and Som Soren were made accused on an
2 Cr. A.(DB) No. 481 of 2011 with analogous cases
allegation that in furtherance of common intention they have committed
murder of Bajal Murmu. The wife of Bajal Murmu gave her fardbeyan at
19:00 hrs. on 29.02.2008 at village Babupur before N.K. Sah, SI of
Lalmatiya police station. In his fardbeyan, Talamai Marandi stated that she
had accompanied her husband to Hatia and while returning when they
reached west of Dorma Chowk at about 05:00 PM, she saw that the accused
were standing near the bicycle shop of Pradeep Pandit. When they reached
near the bicycle shop, Chota Dugo Hembram caught hold of her husband
and they started assaulting him. According to the informant, Chota Dugo
Hembram attacked her husband with knife and when he fell on the ground
Sufal Hembram threw a big stone on the head of her husband - her husband
breathed his last on the spot. She has further alleged that when Hanju
Murmu tried to intervene to save her husband, Chota Dugo Hembram
chased him threatening with knife. About the reason for the murder of her
husband, she has stated that two months back the accused with an intention
to kill her husband had come to her house but when found that her husband
was not there, they took away her goat. A First Information Report was
lodged against the above named six accused under section 302/34 of the
Indian Penal Code and on completion of the investigation a charge-sheet
was filed against five of them, except Som Soren. The learned Chief Judicial
Magistrate, Godda took cognizance of the offence vide order dated
28.06.2008 and a charge was framed against five persons, namely, Sufal
Hembram, Chota Dugo Hembram, Bara Dugo Hembram, Dubbo Hembrom
and Kadbo Soren @ Chajja Soren under section 302/34 of the Indian Penal
Code vide order dated 20.11.2008.
2. The records of Cr. Appeal (DB) No. 447 of 2011 which were
tagged along with these appeals would reveal that a separate charge under
section 302/34 of the Indian Penal Code was framed against Som Soren on
17.11.2008 and he has faced the trial in Sessions Case No. 238 of 2008 - he
has been convicted and sentenced to RI for life and a fine of Rs. 2000/-
under section 302 of the Indian Penal Code. The judgments in both the
sessions cases are written by the same learned Sessions Judge and we do not
find any reason why the trial with respect to Som Soren was conducted
simultaneously but separately in the same Court. In course of hearing, we
were also apprised that Dubbo Hembrom and Kadbo Soren @ Chajja Soren
3 Cr. A.(DB) No. 481 of 2011 with analogous cases
who were facing trial along with these appellants in SC No. 172 of 2008
had jumped the bail at the stage when their statement under section 313 of
the Code of Criminal Procedure was to be recorded by the Court and,
accordingly, their case records were separated awaiting for their appearance.
In Sessions Trial No. 172A of 2008, they have been convicted and
sentenced to RI for life with a fine of Rs.2000/- under section 302/34 of the
Indian Penal Code. We have seen the order dated 31.07.2018 passed in
Cr. Appeal (DB) No. 537 of 2018 with Cr. Appeal (DB) No. 547 of 2018
by which Dubbo Hembrom and Kadbo Soren @ Chajja Soren were granted
bail by a co-ordinate Bench of this Court. We find that in the order dated
31.07.2018 there is no reference of these criminal appeals and reason for
that appears to be a mistake on the part of the Registry. The learned counsel
appearing in Cr. Appeal (DB) No. 537 of 2018 with Cr. Appeal (DB)
No. 547 of 2018 is not ready with the matter and we have already heard
these three criminal appeals in substantial parts. Therefore, we are not
inclined to adjourn these matters and would proceed to dispose of
Cr. Appeal (DB) No. 481 of 2011, Cr. Appeal (DB) No. 446 of 2011 and
Cr. Appeal (DB) No. 482 of 2011- the appellants in other appeals were
convicted by separate judgments.
3. In the trial, the prosecution has examined thirteen witnesses out
of whom, the prosecution has projected PW1- Hanju Murmu who is nephew
of Bajal Murmu, PW3-Barnvas Marandi, PW4-Talamai Marandi who is
wife of the deceased, PW7-Maradhan Marandi, PW8-Naika Murmu, and;
PW10- Baran Murmu, as the eye-witnesses. PW9, Dr. Pradeep Kumar Sinha
who conducted the postmortem examination on 01.03.2008 has found one
bruise and four sharp cut injuries around the neck and occipital region of
Bajal Murmu.
4. The learned Additional District & Sessions Judge, FTC-V,
Godda has held that the prosecution has proved the date, time and place of
occurrence where the accused assaulted Bajal Murmu and caused his death.
The learned trial Judge has further held that the informant has fully
supported the prosecution case and it was established that murder of Bajal
Murmu was caused in furtherance of common intention of all.
5. The learned trial Court has discussed the evidence of the
informant together with medical evidence in the following manner:
4 Cr. A.(DB) No. 481 of 2011 with analogous cases
"10. From perusal of the evidence of PW-9 Dr. Pradeep
Kr. Sinha it is quite clear that the deceased Bajal Murmu died on
account of homicidal violence. The medical officer has stated that
the injury no.1 was caused by hard and blunt substance and other
injuries were caused by sharp cutting weapons. According to the
prosecution case the accused Chota Dugo, inflicted injury by knife
and the accused Sufal Hembrum dropped a big piece of stone on
the head of the deceased and the deceased died on the spot. The
medical evidence fully corroborated the cause of death and injury
as stated by the prosecution. PW-4 Talamai Marandi is none else
rather she is the wife of the deceased and she was accompanying
her husband at the time of occurrence. She was also coming back
from Hatia along with her husband on his bicycle. Thus, I do not
find any reason to disbelieve her testimony. Other witnesses have
also supported the prosecution case and there is sufficient
evidence on record to show that while the deceased Bajal Murmu
was coming from his bicycle from Hatia along with his wife
Talamai Marandi (informant) these accused persons along with
others assaulted him and then accused Chota Dugo Hembrum
inflicted injury by knife and Sufal Hembrum threw a big piece of
stone on his head by which he succumbed to injury on the spot.
On the basis of the material on record, I find that these
accused persons along with others assaulted the deceased and
accused Chota Dugo Hembrum caused injury by means of knife
and accused Sufal Hembrum gave a stone piece blow on the head
of deceased and due to this the deceased died on the spot. The
informant has fully supported the prosecution case who was all
along with her husband at the time of occurrence. Thus, I am of the
view that the murder of the deceased was committed in furtherance
of common intention of all by these accused persons."
6. In SC No. 172 of 2008, the appellants were convicted and
sentenced to RI for life and a fine of Rs. 2,000/- each for the offence under
section 302 of the Indian Penal Code, with a default stipulation to undergo
further RI for three months.
7. Mr. Aman Shekhar, the learned counsel for the appellants has
contended that the requisite intention as envisaged under clause Firstly to
section 300 of the Indian Penal Code or knowledge on the part of the
accused so as to bring their acts under clause Fourthly are not found in the
prosecution evidence and, therefore, conviction of the appellants under
section 302/34 of the Indian Penal Code is not proper and liable to be
interfered with.
8. The informant has deposed in the Court that on 29.02.2008 she
was returning home from Hatia and at about 05:00 PM when she
approached Dorma Chowk she found the accused at the shop of Pradeep
Pandit. Her evidence in the Court is in tune with her fardbeyan and she has
made specific allegations of assault upon her husband by Chota Dugo
Hembram and Sufal Hembram. PW1 has also claimed that at about
05:00 PM when he was returning from Hatia near the shop of Pradeep
5 Cr. A.(DB) No. 481 of 2011 with analogous cases
Pandit he has seen Bajal Murmu and his wife returning home on a bicycle.
The accused persons caught hold of Bajal Murmu and started assaulting
him. PW2 who was going to Dorma Chowk in the evening of 29.02.2008
received an information on the way that Bajal Murmu has been killed. He
has gone to Dorma Chowk where he has seen the dead body of Bajal
Murmu and the people present there told him that Sufal Hembram, Chota
Dugo Hembram, Bara Dugo Hembram, Dubbo Hembrom, Kadbo Soren @
Chajja Soren and Som Soren had assaulted him. PW3 was present at Dorma
Chowk and he has seen the accused apprehending and assaulting Bajal
Murmu near the bicycle shop of Pradeep Pandit. PW4 is the informant and,
PW5 and PW6 were declared hostile. PW7 has claimed himself an
eyewitness and he has stated in the Court that his statement was recorded by
the police. However, his evidence does not inspire confidence for the reason
that he has stated that when he started from Hatia he was drunk and after
about one hour he reached there (Dorma Chowk). PW8 who is uncle of
Bajal Murmu has deposed in the Court that he has seen the incident in which
Bajal Murmu was killed. His statement was recorded by the police and he
has stated that he had gone to the police station with the dead body. PW10
was also present at Dorma Chowk at the time of the occurrence, has seen the
accused near the bicycle shop of Pradeep Pandit and assault upon Bajal
Murmu. PW11 who was the Chaukidar brought the dead body to hospital
for postmortem examination; PW12- Dhena Hembrom has stated in the
Court that on hearing hulla he had gone to the place of occurrence where he
has seen the dead body of Bajal Murmu, and; PW13 is the the second
Investigating Officer in the case - the first Investigating Officer was not
examined during the trial. While examining the evidence of the prosecution
witnesses we have taken due care in respect of PW1, PW2, PW4 and PW8
who are intimately related to Bajal Murmu. The conduct of PW2 who has
said that after seeing the dead body of Bajal Murmu he had gone to his
in-laws' place at Dorma Chowk may not appear natural and evidence of
PW10 who has admitted in his cross-examination that his house is at a
distance of about one and half kilometre away from the shop of Pradeep
Pandit was challenged by the defence on the ground that he is a chance
witness, but, on an overall assessment of the prosecution evidence we find
that the witnesses have fully supported the prosecution as regards presence
6 Cr. A.(DB) No. 481 of 2011 with analogous cases
of the appellants at the place of occurrence along with the other accused.
The minor inconsistencies in the evidence of these witnesses; PW5 and PW6
who were the independent witnesses turning hostile, and; PW7 stating that
his statement was not recorded by the police - would not affect the
prosecution case that the appellants along with Som Soren, Dubbo
Hembrom and Kadbo Soren @ Chajja Soren were standing near the bicycle
shop of Pradeep Pandit, and; Bajal Murmu was apprehended, dragged near
the bicycle shop and assaulted.
9. Now we shall examine whether the appellants shared common
intention to cause death of Bajal Murmu or some of them were bystanders
and onlookers.
10. In "Bharwad Mepa Dana and Anr. v. The State of Bombay"
AIR 1960 SC 289 the Hon'ble Supreme Court has observed that the principle
which section 34 IPC embodies is participation in action with the common
intention of committing a crime and once such participation is established
section 34 is at once attracted. A common intention necessarily implies a
pre-arranged concert, however, merely because it is shown that all the
accused persons carried the same intention but independently of each other
it is not enough to attract application of section 34 IPC (refer, "Pandurang
v. State of Hyderabad" AIR 1955 SC 216).
11. In "Girija Shankar v. State of U.P." (2004) 3 SCC 793 the
Hon'ble Supreme Court has observed, thus:
"9.......... In order to bring home the charge of common
intention, the prosecution has to establish by evidence, whether
direct or circumstantial, that there was plan or meeting of minds
of all the accused persons to commit the offence for which they
are charged with the aid of Section 34, be it pre-arranged or on
the spur of the moment; but it must necessarily be before the
commission of the crime........"
12. The prosecution has laid evidence that Chota Dugo Hembram
caught hold of Bajal Murmu and dragged him from the bicycle. He is the
one who has started assaulting him with knife and after Bajal Murmu fell on
the ground Sufal Hembram threw a stone on his head. The witnesses have
made general and omnibus statement about other accused assaulting Bajal
Murmu. None of the witnesses has stated that except Chota Dugo Hembram
other accused were also carrying any weapon. Besides him and except as
regards Sufal Hembram, the witnesses are completely silent whether any
other accused has played a specific role in the occurrence. There is specific
7 Cr. A.(DB) No. 481 of 2011 with analogous cases
allegation against Sufal Hembram and Chota Dugo Hembram that they
have assaulted Bajal Murmu with stone and knife, but the prosecution
evidence is not sufficient to hold that they also shared common intention to
murder Bajal Murmu. We are of the definite opinion that death of Bajal
Murmu was not caused in prosecution of the common intention of all. On
the evidence laid by the prosecution during trial, the accused are liable for
their individual act(s). Section 38 of the Indian Penal Code provides that
several persons engaged or concerned in the commission of a criminal act
may be guilty of different offences by means of that act. The statutory
illustration to Section 38 makes it more than clear that several persons may
share same or similar intention, still, they may not have common intention
in furtherance of which the final act was accomplished. This is not the
prosecution evidence that after Bajal Murmu was caught hold of by Chota
Dugo Hembram he tried to flee away and then others have also chased him.
The prosecution has brought evidence on motive through the informant that
about two months back the accused took away her goat and her husband had
made a complaint in this regard, but there is no other evidence to support
the prosecution on his point. The motive as spoken by the informant is too
weak and slender to motivate the other accused to commit murder of Bajal
Murmu. In our opinion, the prosecution evidence does not implicate Bara
Dugo Hembram in commission of the crime. There is no evidence that he
shared common intention to murder Bajal Murmu. His presence near the
bicycle shop of Pradeep Pandit and notwithstanding the witnesses making a
statement that all the accused started assaulting Bajal Murmu, we find that
the prosecution evidence is not sufficient to infer his complicity in the
crime in any manner whatsoever.
13. Accordingly, the judgment of conviction and the order of
sentence of RI for life and a fine of Rs. 2,000/- for the offence under section
302 of the Indian Penal Code, both dated 11.03.2011, passed by the learned
Additional District & Sessions Judge, FTC-V, Godda against the appellant,
namely, Bara Dugo Hembram [in Cr. Appeal (DB) No. 446 of 2011] in SC
No. 172 of 2008 are set-aside.
14. Mrs. Vandana Bharti, the learned APP states that the appellant,
namely, Bara Dugo Hembram who has served the sentence for more than
two years and three months, with remission, is on bail.
8 Cr. A.(DB) No. 481 of 2011 with analogous cases
15. Accordingly, Bara Dugo Hembram who is the appellant in
Cr. Appeal (DB) No. 446 of 2011 is discharged of liability of the bail bonds.
16. PW9, Dr. Pradeep Kumar Sinha who conducted the postmortem
examination has found the following injuries on the dead body of Bajal
Murmu:
1) Ante-mortem injuries:-
(I) Bruise 3" x 2" over frontal scalp with fracture of
frontal bone.
(II) Sharp cut 1" x 1/2" x 1/2" over right side of upper
part of neck.
(III) Sharp cut over occipital region of scalp 2" x 1/4"
x 1/4".
(IV) Sharp cut 1" x 1/2" x 1/2" over left side of upper
part face.
(V) Sharp Cut 3" x 2" x 3" over left side of lower part
of neck including muscles and blood vessels.
17. According to PW9, the injury No.(I) was caused by hard and
blunt substance whereas the injury Nos.(II) to (V) were inflicted by sharp
cutting weapon - all the injuries were antemortem and grievous in nature.
He has further opined that death of Bajal Murmu occurred due to shock and
haemorrhage caused by injury No.(I).
18. The evidence tendered by the prosecution reveals that Chota
Dugo Hembram had specific intention to kill Bajal Murmu. He has dragged
Bajal Murmu from the bicycle, chased PW4 who tried to intervene and
caused four sharp cut injuries around neck and occipital region of Bajal
Murmu. A sharp cut injury over neck would be highly dangerous and
life-threatening. There may not be any doubt that the injuries around the
occipital region would also be very serious. Chota Dugo Hembram has
given repeated knife blows on the vital part of the body, he has taken undue
advantage and acted with cruelty. The assault by him on Bajal Murmu
clearly indicates that he intended to commit his murder. The medical
evidence that the injury No.(I) has caused death is not sufficient to take his
case out of the purview of section 302 of the Indian Penal Code. There is
one proposition which is now quite settled in law, that on the basis of the
materials produced on record and after giving due regard to the medical
evidence the Court may form its own judgment. Under section 45 of the
Indian Evidence Act which speaks of opinion of the experts evidence of the
doctor is only a relevant fact.
19. In "State of H.P. v. Jai Lal and Others" (1999) 7 SCC 280 the
9 Cr. A.(DB) No. 481 of 2011 with analogous cases
Hon'ble Supreme Court has held as under:
"18. An expert is not a witness of fact. His evidence is really of
an advisory character. The duty of an expert witness is to furnish
the Judge with the necessary scientific criteria for testing the
accuracy of the conclusions so as to enable the Judge to form his
independent judgment by the application of this criteria to the
facts proved by the evidence of the case. The scientific opinion
evidence, if intelligible, convincing and tested becomes a factor
and often an important factor for consideration along with the
other evidence of the case. The credibility of such a witness
depends on the reasons stated in support of his conclusions and
the data and material furnished which form the basis of his
conclusions."
20. Bajal Murmu suffered five grievous injuries and considering
the nature and extent of those injuries it cannot be said that one particular
injury has caused death. PW9 has found large amount of blood in the frontal
region of the brain and in the cross-examination he has said that the area
over which sharp cutting injury was found on the occipital region of Bajal
Murmu is part of the head. We are not medical experts but with our
experience in the subject jurisdiction, we think that all that the medical man
could have opined is that the injury No.(I) was sufficient in normal course to
cause death.
21. For the aforesaid reasons, we hold that the injuries caused by
Chota Dugo Hembram were cumulatively sufficient to cause death, he
intended to cause those injuries and he is liable to be convicted under
section 302 of the Indian Penal Code.
22. Accordingly, the judgment of conviction and the order of
sentence of RI for life and a fine of Rs. 2,000/- for the offence under section
302 of the Indian Penal Code, both dated 11.03.2011, passed against the
appellant, namely, Chota Dugo Hembram [in Cr. Appeal (DB) No. 481 of
2011] by the learned Additional District & Sessions Judge, FTC-V, Godda in
SC No. 172 of 2008 are upheld.
23. The allegation against Sufal Hembram is that he picked up a
stone and assaulted Bajal Murmu on his head. He was unarmed and from the
prosecution evidence it appears that he picked up a stone lying at the place
of occurrence. The possibility of his act being premeditated is thus ruled out.
The evidence of the doctor that the death has occurred due to head injury
which can be attributed to him is also not sufficient to hold him guilty for
murder. The learned APP has contended that the act of Sufal Hembram
would fall under clause Thirdly to section 300 of the Indian Penal Code.
10 Cr. A.(DB) No. 481 of 2011 with analogous cases
24. Clause Thirdly to section 300 of the Indian Penal Code is
extracted below:
"3rdly.--If it is done with the intention of causing bodily injury to
any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death".
25. Under clause Thirdly to section 300 of the Indian Penal Code
the prosecution is required to establish that the accused intended to cause the
particular injury and that injury was sufficient to cause death in the ordinary
course. There are two distinct parts of clause Thirdly to section 300 of the
Indian Penal Code, the first part refers to intention of the accused. In
"Jagrup Singh v. State of Haryana" (1981) 3 SCC 616 the Hon'ble Supreme
Court has held that in order to bring a case within clause Thirdly of section
300 of the Indian Penal Code it must be proved that there was an intention to
inflict that particular bodily injury which in the ordinary course of nature
was sufficient to cause death. The stone was not seized by the Investigating
Officer and therefore size and weight of the stone with which Sufal
Hembram has assaulted Bajal Murmu are not known. From the medical
evidence, it also does not appear what was the extent of fracture of the skull
and, as noticed above, the finding of the doctor about injury No.(I) was a
stray statement. The circumstances in the case do not establish that Sufal
Hembram intended that particular injury which could have been sufficient in
ordinary course to cause death. At spur of the moment he picked a stone
lying at the place of occurrence and hit Bajal Murmu. In our opinion, Sufal
Hembram cannot be convicted for murder - he has caused grievous injury
which was likely to cause death.
26. Accordingly, the judgment of conviction under section 302/34
of the Indian Penal Code dated 11.03.2011 passed against Sufal Hembram
who is the appellant in Cr. Appeal (DB) No. 482 of 2011 by the learned
Additional District & Sessions Judge, FTC-V, Godda in SC No. 172 of 2008
is set-aside.
27. The appellant, namely, Sufal Hembram is convicted and
sentenced to RI for fourteen years under section 326 of the Indian Penal
Code.
28. Mr. Saket Kumar, the learned APP states that the appellant,
namely, Sufal Hembram who is in custody has served the sentence for more
than sixteen years and five months, with remission.
11 Cr. A.(DB) No. 481 of 2011 with analogous cases
29. The appellant, namely, Sufal Hembram [in Cr. Appeal (DB)
No. 482 of 2011] shall be set free forthwith, if not wanted in connection to
any other case.
30. In the result, Cr. Appeal (DB) No. 481 of 2011 is dismissed;
Cr. Appeal (DB) No. 446 of 2011 is allowed, and; Cr. Appeal (DB) No. 482
of 2011 is partly allowed, in the aforesaid terms.
31. Let lower Court records be transmitted to the Court concerned,
forthwith.
32. Let a copy of the judgment be transmitted to the Court
concerned through 'FAX'.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 11th February, 2021
Sharda/Soumya/Nibha-AFR
