Jharkhand High Court
Babu Ram Kisku vs The State Of Jharkhand on 4 August, 2022
Cr. Appeal (DB) No. 766 of 2010
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Against the judgment of conviction and order of sentence dated 26.06.2010,
passed by Shri R. S. Shukla, learned Additional District & Sessions Judge,
F.T.C.-V, Godda in S.C. No. 28 of 1999/ T.R. No. 98 of 2010.
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Babu Ram Kisku. .....Appellant
Versus
The State of Jharkhand. ....Respondent
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For the Appellant : Mr. Manoj Kumar Sah, Advocate
For the State : Mrs. Vandana Bharti, Special P.P.
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PRESENT
HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
C.A.V. On 06.06.2022 Pronounced on 4/08/2022
Heard Mr. Manoj Kumar Sah, learned counsel for the appellant and Mrs.
Vandana Bharti, learned Special P.P.
2. This appeal is directed against the judgment of conviction and order of
sentence dated 26.06.2010, passed by Shri R. S. Shukla, learned Additional
District & Sessions Judge, F.T.C.-V, Godda in S.C. No. 28 of 1999/ T.R. No. 98
of 2010, whereby and whereunder the appellant has been convicted for the
offences punishable under sections 147, 323 and 302 of the Indian Penal Code
and has been sentenced to undergo rigorous imprisonment for life for the offence
under section 302 of the Indian Penal Code and a fine of Rs.1000/- and in default
of payment of fine to undergo simple imprisonment for three months. He has
further been sentenced to undergo rigorous imprisonment for one year for the
offence under section 147 of IPC and rigorous imprisonment for six months for
the offence under section 323 of IPC and all the sentences were directed to run
concurrently.
3. This appeal was initially preferred by Talo Keshri @ Keshri Hembrom and
Baburam Kisku but since the appellant no. 1 Talo Keshri @ Keshri Hembrom
had died during the pendency of this appeal on 20.05.2014, this appeal has
abated as against the appellant no. 1 as per order dated 6.6.2022. The appeal,
therefore, is now restricted to the appellant no.2- Baburam Kisku (herein after
referred to as the appellant).
4. The fardbeyan of Manjay Tuddu was recorded on 20.09.1998, in which it
has been stated that on 19.09.1998, his father Budhan Tudu, cousin brother-
Mangal Tudu and Hopan Tudu were tilling their land while the informant and his
elder brother were sitting in the side of the field. In the meantime, Keshri
Hembrom, Larga Hembrom, Mistry Hembrom, Soren Hembrom, Baburam Kisku
(appellant) and Lilu Hembrom had come with lathis in their hands and started
Cr. Appeal (D.B.) No. 766 of 2010
abusing them for tilling the land. The accused persons thereafter resorted to
assault with lathis. It has been alleged that Mangal Tudu and Hopna Tudu after
receiving some lathi blows fled away from the place of occurrence. The father of
the informant was indiscriminately assaulted by the accused persons and he fell
down unconscious. When the informant and his brother tried to save their father,
they were also assaulted, at which the brother of the informant suffered a fracture
on his left hand and blood started coming out from his head and he had also
become unconscious. When on alarm, the villagers arrived, the accused persons
had fled away. While his father was being taken to his house, he breathed his
last. The cause of the incident is that all the accused persons wanted to forcibly
occupy the land belonging to the informant and others.
5. Based on the aforesaid allegations, Boarijore P.S. Case No. 75 of 1998
was instituted for the offences punishable under sections 147, 148, 341, 323,
325, 307, 320/34 of the Indian Penal Code against six named accused persons.
On conclusion of investigation, chargesheet was submitted and after cognizance
was taken, the case was committed to the court of sessions where it was
registered as S.C. No. 28/1999. The proceeding against Soren Hembrom and
Mistry Hembrom were dropped vide order dated 15. 2.2002 on account of their
death. Charge was framed against the accused persons for the offence
punishable under sections 147, 323, 341 and 302 of the Indian Penal Code,
which was read over and explained to them in Hindi to which they pleaded not
guilty and claimed to be tried.
6. The prosecution has examined as many as ten witnesses in support of its
case.
P.W-1-Hopna Tudu has deposed that the incident is of four years back at
10.A.M., when he was tilling the field and Budhan Tudu and Mangal Tudu were
also tilling their fields. At that point of time, the accused Baburam Kisku, Keshri
Hembrom, Mistry Hembrom, Larga Hembrom, Soren Hembrom and Lilu
Hembrom had come to his field and asked as to why he is tilling the land. While
saying so, they had started assaulting Budhan and Mangal with 'kulhari' and
'lathi'. This witness had fled away from the place of occurrence. He has stated
that Budhan was assaulted with lathi on his entire body while Mangal was
assaulted on his forehead with lathi. Budhan had died on the way to the hospital.
In cross-examination, he has deposed that deceased Budhan was his own
brother. The field where the incident had taken place is recorded in the name of
his grandfather but he does not remember his name. The accused were claiming
that the land belongs to them. The rent is deposited by his brother-Shiva Tudu.
The total area of the land is 40 bighas. The accused Larga Hembrom had an axe
while the rest accused had lathis with them.
Cr. Appeal (D.B.) No. 766 of 2010
P.W-2-Sonalal Tudu has deposed that on the date of the incident, he was
going towards the hill to bring woods and he had seen Budhan Tudu, Mangal
Tudu and Hopna Tudu cultivating their land. At that point of time, Keshri
Hembrom, Baburam Kisku, Mistry Hembrom, Larga Hembrom, Soren Hembrom
and Lilu Hembrom started assaulting the persons tilling their lands with lathis.
Budhan Tudu, Tala Tudu and Hopna Tudu suffered injuries and while Budhan
was being taken to his house he died on the way.
In cross-examination, he has stated that in the place of occurrence, there
was no one except the accused and the informant party. When he had reached
the place of occurrence, Budhan was already lying on the ground. This witness
has stated that he had seen the assault being committed. He cannot say
however as to which accused had assaulted whom. He has further stated that
the police had not recorded his statement.
P.W-3-Tala Baski did not support the case of the prosecution and
accordingly was declared hostile by the prosecution.
P.W-4-Tala Tudu has deposed that the incident is of five years back in
between 8-9 A.M. when he had gone to the field to sow paddy and he had seen
Budhan Tudu, Mangal Tudu, Hopna Tudu and Shibu Tudu tilling their land and
the accused persons namely Baburam Kisku, Keshri Hembrom, Mistry
Hembrom, Larga Hembrom, Lilu Hembrom and Soren Hembrom had confronted
them and asked as to on whose orders they were tilling the lands. While saying
so, the accused persons had started assaulting Budhan Tudu with lathi and axe,
which resulted in his death. When this witness intervened, he was also
assaulted, for which he was treated at Sadar Hospital, Godda.
In cross-examination, he has deposed that the land for which the assault
had taken place is in the name of Shibu Tudu, who is now no more. Shibu Tudu
did not have any children. The police had not recorded his statement. When he
had reached the place of occurrence, his father Budhan Tudu was lying
unconscious and he subsequently died at the spot. The rent with respect to the
land in question is deposited by Baburam and others. The land is parti and
nobody tills it.
P.W-5-Amin Murmu has deposed that the incident is of five years back at
10 A.M. when he was grazing his cattle when he had seen a fight in the field of
Shibu Tudu. He did not go to the place of occurrence but had seen Budhan Tudu
lying dead. He was killed by those persons who were seen entering the field and
they were Keshri Hembrom, Baburam Kisku, Mistry Hembrom, Larga Hembrom,
Suren Hembrom and Lilu Hembrom. In course of fight, Tala Tudu and Mangal
had suffered injuries.
In cross-examination, he has stated that his statement was recorded by
Cr. Appeal (D.B.) No. 766 of 2010
the police. The deceased-Budhan Tudu was his brother in law by village
relationship.
P.W-6-Mangal Tudu has deposed that on the date of the incident, the field
of Budhan Tudu was being tilled by Budhan Tudu and Hopna Tudu along with
this witness and Manjay Tudu and Tala Tudu were also present when Keshri
Hembrom, Mistry Kumhar, Baburam Kisku, Soren Hembrom, Larga Hembrom
and Lulu Hembrom armed with lathi and 'gupti' came and started assaulting
Budhan and Tala and both became unconscious. This witness also sustained
some lathi blows and Manjay was also assaulted. He had fled the place of
occurrence and he returned after the accused persons had left and found that
Budhan had already died due to the injuries sustained by him. The reason for
the occurrence is land dispute.
In cross-examination, he has stated that he does not know in whose name
the disputed land is recorded. The same was being tilled by his father and others
at the time of the incident. On hearing the commotion, the village chowkidar Ram
Murmu had come but no other villagers had come. This witness had fled away
after being assaulted and he had seen the occurrence from a distance. He
cannot say as to which of the accused had assaulted whom.
P.W-7-Manjay Tudu was grazing calf on the date of occurrence and his
father Budhan Tudu, Hopna Tudu and Mangal Tudu were tilling the land. The
accused persons armed with lathis had arrived and started indiscriminate assault
which resulted in Budhan Tudu, Tala Tudu suffering injuries. When he started
raising alarm, the villagers had arrived. The accused persons had also assaulted
this witness as well as Mangal Tudu. Her father was being taken to his house
and on the way, he died. The land for which the assault had taken place is
recorded in the name of his ancestors and the accused persons do not have any
title over it. He has proved his signature in the fardbeyan, which has been
marked as Ext-1.
In cross-examination, he has deposed that the parcha of the land is in the
name of Shiba Tudu, Bhima Hansda and Narayan Hansda and others but he
does not remember their names. He has stated that the accused persons belong
to the family of Narayan Hansda. Before the incident, the land was being
cultivated by the accused persons.
P.W-8-Dr. Ashok Kumar was posted as C.A.S. in Sadar Hospital, Godda
and on 21.09.1998, he had conducted autopsy on the dead body of Budhan
Tudu. The following ante mortem injuries were found on his persons:-
Cr. Appeal (D.B.) No. 766 of 2010
Antemortem injuries:-
(i) Small Lacerated wound a dorsum of right hand size ¼"x1/6"x1/6".
(ii) Lacerated wound(margins at many places almost sharp) on the
scalp in the right occipito temporo parietal region, Size 1 ¼" x ½"
x1/2" with bone cut through and through.
(iii) Lacerated wound right axilla, Size ¾"x 1/2"x 1/3".
(iv) Bruise 2 ½"x3/4" on right scapular area oblique direction.
On dissection:-
Blood clots in the brain and meninges in the right occipito temporo
parietal area. Fractured bone in the above mentioned area. Heart
empty, Lungs-congested. Liver- pale, Spleen-partly congested and
moderately enlarged. Stomach had about three ounces of partly
digested material".
The cause of death was opined to be due to shock and hemorrhage as a
result of injury no. (ii) on scalp. He has proved the postmortem report, which has
been marked as Ext-2.
In cross-examination, he has stated that injury no. (ii) was caused by a
weapon, which was partly sharp and partly blunt.
P.W-9-Dr. Ajay Kumar Jha was posted at Sadar Hospital, Godda and on
21.9.1998, he had examined Tala Tudu and had found the following injuries on
his persons.
(i) Bruise 2"x2" on lower third of left fore-arm.
(ii) Abrasion of scalp on top of vertex ½ x ½" in size.
(iii) Bruise 2" x 1" on left shoulder.
(iv) Abrasion on right hand on the back of 5th metacarpal bone
measuring 1"x1".
(v) Bruise on front of right knee measuring 2"x2"x2".
The nature of injuries were opined to be simple caused by hard and blunt
substance.
On the same day, he had examined Mangal Tudu and had found the
following injuries on his person.
(i) Bruise on left side of forehead measuring 1"x1" just above left eye-
brow.
(ii) Bruise measuring 4"x1" on back of chest on left side.
(iii) Bruise measuring 2"x2" on back of right arm.
The nature of injuries was opined to be simple caused by hard and blunt
substance.
He had also examined Manjay Tudu on the same day and had found the
following injuries on his person.
(i) Bruise measuring 2"x2" on left wrist.
(ii) Bruise measuring 2"x2" on outer aspect of left limb.
Cr. Appeal (D.B.) No. 766 of 2010
The injuries suffered by Manjay Tudu were also opined to be simple in
nature caused by hard and blunt substance. He has proved the injury reports,
which have been prepared by him and bears his signature and which have been
marked as Ext-3, 3/1 and 3/2 respectively.
In cross-examination, he has deposed that such type of injuries cannot be
caused by fall.
P.W-10-Ramesh Mirdha has proved his signature in the inquest report,
which has been marked as Ext-4.
The statement of the accused was recorded under section 313 Cr.P.C., in
which he has denied his involvement in the offence.
7. Mr. Manoj Kumar Sah, learned counsel for the appellant, has submitted
that the allegations against the appellant are general and omnibus in nature. It
has been submitted that the eye witnesses have deposed about the presence of
the appellant without alleging any specific overt act against the appellant.
Referring to the evidence of P.W-4 and P.W-7, it has been submitted that the
informant party was forcibly tilling the land, which belongs to the accused and
the rent with respect to the land is also deposited by the appellant and others.
8. Mrs. Vandana Bharti, learned Special P.P., on the other hand has
submitted that the appellant along with others in a concerted fashion and being
armed with various weapons had committed assault upon the father of the
informant as well as Tala Tudu, Mangal Tudu and Manjay Tudu leading to the
death of the father of the informant.
9. We have considered the submissions advanced by the learned counsel
for the respective sides and have also perused the Lower Court Records.
10. The allegations made in the FIR and the evidence of the witnesses reveal
an assault committed upon the informant party by the accused persons including
the appellant resulting in the death of Budhan Tudu and injuries being suffered
by Tala Tudu, Mangal Tudu and Manjay Tudu. The reason for the occurrence is
land dispute and it is depicted by the prosecution that the accused persons were
the aggressors and had committed the assault in order to oust the informant
party from the land which was being cultivated by them. P.W-1, P.W-2, P.W-4,
P.W-5, P.W-6 and P.W-7 are unanimous with respect to the assault committed.
There appears to be some discrepancy with respect to the weapon of assault as
the accused persons were said to have been armed with lathi and axe. P.W-1
has stated that it was Larga Hembrom who had assaulted with an axe and the
rest accused persons were armed with lathis. So far as the appellant is
concerned, some of the witnesses have deposed that he was armed with a lathi
though no specific allegation of assault has been attributed to him by the
Cr. Appeal (D.B.) No. 766 of 2010
witnesses. The postmortem report reveals the cause of death of Budhan Tudu
due to injury no. 2 on scalp, which was caused by a weapon, which was party
sharp and partly blunt. The postmortem report also therefore does not suggest
the cause of death on account of lathi blow. So far as the cause of assault is
concerned, the evidence of P.W-4 and P.W-7 is noteworthy. P.W-4 has stated
that the rent for the disputed land is deposited by the appellant and others. P.W-
7 has deposed that prior to the occurrence, the land was being cultivated by the
accused persons. It is to be noted that P.W-4 and P.W-7 are injured witnesses
and P.W-7 is the son of the deceased-Budhan Tudu. The dissenting evidence
has come in the form of P.W-1 and P.W-6. Though P.W-1 claims the land by
virtue of the same being recorded in the name of his grandfather but he does not
even remember the name of his grandfather. P.W-6 has merely stated that on
the date of occurrence, his father and others were tilling the land. He does not
know as to in whose name the land was recorded. The prosecution has thus not
been able to establish the fact that the appellant was the aggressor and if the
evidence of the witnesses are considered it would seem that it was the accused
persons who were cultivating the land and rent was being deposited by them
and the land in question was sought to be usurped by the informant party.
11. As, noted above, the presence of the appellant at the place of occurrence
is beyond dispute but there being no specific allegation of assault against the
l.appellant and the appellant being the aggressor has been disproved by the
evidence of the prosecution, which have not been properly appreciated by the
learned trial court, we have no hesitation in allowing this appeal.
12. Accordingly, this appeal is allowed and the judgement and order of
conviction and sentence dated 26.06.2010, passed by Shri R. S. Shukla, learned
Additional District & Sessions Judge, F.T.C.-V, Godda in S.C. No. 28 of 1999/
T.R. No. 98 of 2010 whereby and whereunder the appellant has been convicted
for the offences punishable under sections 147, 323 and 302 of the Indian Penal
Code and has been sentenced to undergo rigorous imprisonment for life for the
offence under section 302 of the Indian Penal Code and a fine of Rs.1000/- and
in deposit of payment of fine to undergo simple imprisonment for three months,
rigorous imprisonment for one year for the offence under section 147 of IPC and
rigorous imprisonment for six months for the offence under section 323 of IPC,
is hereby set aside.
Cr. Appeal (D.B.) No. 766 of 2010
13. Since the appellant is in custody, he is directed to be released forthwith if
not wanted in any other case.
14. Pending I.A., if any, stand disposed of.
(Rongon Mukhopadhyay,J)
(Ambuj Nath, J)
Jharkhand High Court, Ranchi
Dated_4th August, 2022
Rakesh/NAFR
