Jharkhand High Court
Jamesh Murmu vs The State Of Jharkhand on 18 October, 2022
Cr. Appeal (DB) No. 447 of 2018
----
Against the judgment of conviction dated 25.1.2018 and order of sentence dated
2.2.2018, passed by Shri Surendra Nath Mishra, learned District & Additional
Sessions Judge-IV, Dumka in S.T. No. 26 of 2012.
-------
Jamesh Murmu, S/o Lala Murmu, Resident of village-Barmasia, P.O.-
Pinargariha, P.S.-Shikaripara, District-Dumka.
.....Appellant
Versus
The State of Jharkhand. ....Respondent
-----
For the Appellant : Mr. Binod Kumar Jha, Advocate
For the State : Mrs. Kumari Rashmi, A.P.P.
-----
PRESENT
HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
C.A.V. On 08.09.2022 Pronounced on 18/10/2022
Heard Mr. Binod Kumar Jha, learned counsel for the appellant and Mrs.
Kumari Rashmi, learned A.P.P.
2. This appeal is directed against the judgment of conviction dated 25.1.2018
and order of sentence dated 2.2.2018, passed by Shri Surendra Nath Mishra,
learned District & Additional Sessions Judge-IV, Dumka in S.T. No. 26 of 2012,
whereby and whereunder the appellant has been convicted for the offences
punishable under sections 302/149, 452, 435 and 148 of the Indian Penal Code,
Section 27 of the Arms Act and Section 17 of the C.L.A. Act and has been
sentenced to undergo rigorous imprisonment for life and a fine of Rs.20,000/-for
the offence under section 302 of IPC, rigorous imprisonment for five years and
a fine of Rs.10,000/- for the offence under section 435 of IPC, rigorous
imprisonment for five years and a fine of Rs.10,000/-for the offence under section
452 of IPC, rigorous imprisonment for one year for the offence under section 148
of IPC, rigorous imprisonment for three years and a fine of Rs.5,000/-for the
offence under section 27 of the Arms Act and rigorous imprisonment for six
months for the offence under section 17 of the CLA Act. All the sentences are to
run concurrently.
3. The fardbeyan of Chunda Kisku was recorded on 31.1.2011 at 9 A.M. to
the effect that on 30.01.2011 at 10 P.M. he was sleeping along with his family
members while his elder brother Babulal Kisku was sleeping along with his wife-
Chintamuni Marandi in a room in front of where the informant was sleeping. His
younger brother Munshi Kisku was in the middle room along with his wife. In
another room, his other family members and children were sleeping. It has been
alleged that in between 10.30-1045 P.M, he heard the sound of a vehicle, which
2 Cr. Appeal (D.B.). No. 447 of 2018
stopped near his house. After sometime, he heard the footsteps of some persons
in the courtyard out of whom one person loudly called out his name and wanted
him to come out as the officer in charge had come to talk to him. He recognized
the voice as that of James Murmu (appellant). The informant became silent and
thereafter he was called out in Santhali and was asked to come out. There were
about 7-8 persons and they had rifles, axes, knives and torches with them. It has
further been alleged that the miscreants had entered into the precincts and went
to the room of Munshi Kisku and Munshi Kisku on their orders hid himself under
the cot. When the other family members woke up and started raising a
commotion, the miscreants in order to create terror in them fired 3-4 rounds.
When the elder brother of the informant as well as his sister in law came out from
their room, his sister in law was caught hold of and threatened with a revolver. It
has also been alleged that his elder brother Babulal Kisku was being taken
outside when the wife of the informant namely Puti Murmu came out to confront
them. The informant also followed his wife. He saw James Murmu firing at his
wife and the bullet had stuck on her right thigh. Another of the accused stabbed
her with a knife on the abdomen, at which, the informant dragged his wife inside
a room and locked it from inside. The miscreants had thereafter fired at his
brother-Babulal Kisku and slit his throat with a knife. It has been alleged that the
miscreants had set ablaze a Gypsy vehicle and a JCB Machine and after raising
slogans "Maobadi Jindabad" and after leaving some pamphlets they had fled
away. At about 3 A.M., the informant took his wife for treatment to Mohulpahari
hospital but on the way he found a vehicle having red light stationed and when
some persons started approaching he went back to his house along with his
wife. At the time of the incident, he had identified James Murmu in the light of a
torch. He has further alleged that a day prior to the incident, he had seen James
Murmu along with some unknown persons moving around suspiciously.
The reason for the occurrence is that a few months back, James Murmu
had threatened him as to why he was made a suspect in a case of double murder
and burning of an office. James Murmu was caught by the informant who was
going to tie his legs but had subsequently left him. On 4.12.2010, James Murmu
had given a letter demanding levy and had also threatened to do away with the
life of the informant and others.
4. Based on the aforesaid allegations, Shikaripara P.S. Case No. 10 of 2011
was instituted against James Murmu and 6-7 unknown persons under sections
147, 148, 149, 324, 307, 452, 302, 435 IPC and Section 27 Arms Act. On
conclusion of investigation, chargesheet was submitted against James Murmu.
After cognizance was taken, the case was committed to the Court of Sessions
where it was registered as S.T. No. 26/2012. Charge was framed against the
3 Cr. Appeal (D.B.). No. 447 of 2018
accused for the offences punishable under sections 302/149, 452, 435, 148 IPC,
Section 27 of Arms Act and Section 17 of the Criminal Law Amendment Act,
which was read over and explained to the accused in Hindi, to which he pleaded
not guilty and claimed to be tried.
5. The prosecution has examined as many as 14 witnesses in support of its
case.
P.W-1-Jagan Kisku, P.W-2-Munshi Kisku, P.W-3-Chhitamuni Marandi
and P.W-4-Sunil Kisku have not supported the case of the prosecution and
have been declared hostile by the prosecution.
P.W-5-Olina Hembrom has been tendered by the prosecution.
P.W-6-Somlal Hembrom has deposed that he had heard about the
incident.
P.W-7-Mangal Soren has stated that he does not know as to how Babulal
died and who was responsible for his death.
P.W-8-Rameshwar Kisku also did not support the case of the prosecution
and was declared hostile.
P.W-9-Dr. Debashish Rakshit was posted as a Medical Officer at Sadar
Hospital, Dumka and on 31.1.2011, a Medical Board was constituted, which
conducted autopsy on the dead body of Babulal Kisku and had found the
following:-
(i) Circular wound with black margin of ½" diameter and inverted
margin over right side of outer can thus, which is wound of entry,
surrounding is black in colour and charred.
(ii) 2" diameter round shaped wound with irregular margin and everted
3" deep connecting to wound of entry i.e. wound of exit.
(iii) Fracture of right maxillary bone below right nostril.
(iv) Sharp cut incised wound 7"x1/2" x deep upto cervical vertebrae over
upper part of neck. Horizontally above thyroid cartilage extending from left
angle of jaw to right side of neck 2" below the right mastoid process cutting
front of neck, underneath soft tissue, trachea, esophagus, great vessels,
nerves, neck mussels of both side.
(v) Sharp cut incised wound 1" below the injury no.(iv) over front of neck
size 1 1/2" x ¼" x skin deep.
The cause of death was opined to be due to injury no. (iv). The weapon
used for causing injury nos. (i) to (iii) was firearm and injury nos. (iv) and (v) were
caused by sharp cutting weapons. The postmortem report has been proved and
marked as Ext-3.
P.W-10-Dr. Anand Mohan Soren was posted as a Medical Officer, Sadar
Hospital, Dumka and he was a member of the Medical Board, which had
4 Cr. Appeal (D.B.). No. 447 of 2018
conducted autopsy on the dead body of Puti Murmu on 1.2.2011 and had found
the following:-
(i) One wound of entry oval in shape 4 Cm above the left poplitel region
medially place with inverted margin. Measuring 1.25 Cm x 1 Cm passing
subcutaneously 2 Cm above left poplitel region with wound of exit
measuring 1.8 Cm x 1.25 Cm inverted margin.
(ii) Another wound of injury found over the region of entroletral aspect
of iliac crest of right hip oval in shape with inverted margin measuring 1.25
Cm x 1 Cm.
After x-ray of hip joint AP view done at Sadar Hospital, Dumka on 1.2.2011
vide X-ray No. R8 shows one bullet over the pubic region of left side of
hip. The X-ray plate handed over to medical assistant after due signature
of all three members of board".
The cause of death was opined to be due to shock and hemorrhage as a
result of injury no. (ii). For both the injuries, the weapon used was fire arm. The
postmortem report has been proved by him and marked as Ext-3/1.
P.W-11-Bijay Soren, P.W-13-Miru Kisku and P.W-14-Jitendra Nath
Kisku did not support the case of the prosecution and were declared hostile by
the prosecution.
P.W-12-Chunda Kisku is the informant who was on 30.1.2011 at about
11-1130 P.M. in his house. He has stated that James Murmu by taking his name
had entered into the courtyard. James Murmu was identified by him by seeing
him from the window. Babulal Kisku was dragged and taken outside the house
where he was murdered. He has deposed that when his wife namely Puti Murmu
went to save Babulal Kisku, she was also shot at. When the informant was taking
his wife for treatment to the hospital, he found on the way a vehicle with red lights
and out of fear he came back home and in the morning, he had taken his wife to
Mohulpahari hospital from where she was referred to Burdwan. While on the
way to Burdwan, she died. He has proved his signature on the fardbeyan, which
has been marked as Ext-4.
In cross-examination, he has deposed that James Murmu had demanded
levy from his elder brother. He has stated that he had woken up when he had
heard his name being called out. He knew James Murmu from before. He had
seen James at the place of occurrence. When he came out from his room, he
did not find anyone in the courtyard. There were about 20-25 persons, who had
come. After twenty minutes from the time, he heard the sound of firing he went
out of the courtyard. He has stated that his wife was shot at in the courtyard. He
had disclosed to the police that James Murmu by taking his name had entered
into the courtyard and he was identified by this witness from the window. He had
5 Cr. Appeal (D.B.). No. 447 of 2018
not stated to the police that Babulal Kisku was dragged outside by James Murmu
and others and thereafter he was murdered. He has deposed that since it was a
dark night, none of the villagers had come to his house.
6. The statement of the accused was recorded under section 313 Cr.P.C., in
which he has denied his participation in the murder.
7. Mr. B.K. Jha, learned counsel for the appellant, has submitted that
although there were several inmates in the house but none seem to have
supported the allegations save and except P.W-12 but his statement runs
contrary to the fardbeyan. Learned counsel submits that the conviction can be
based on the evidence of a solitary eye witness but the same has to be free from
improvements and exaggeration.
8. Mrs. Kumari Rashmi, learned A.P.P., has submitted that the appellant has
been identified by P.W-12 as the person who had spearheaded the assault and
the postmortem report being corroborative, this appeal deserves to be
dismissed.
9. We have considered the rival submissions and have also perused the
Lower Court Records.
10. The genesis of the occurrence is the entering of some extremists into the
premises of the appellant and his brothers and thereafter committing assault and
firing upon Babulal Kisku and Putti Murmu resulting in their death.
11. The prosecution has examined several witnesses including the inmates of
the house but none have supported the occurrence except P.W-12. Even the
wife of the deceased Babulal Kisku who has been examined as P.W-3 was
declared hostile by the prosecution.
12. The conviction of the appellant is based on the solitary eye witness
account of P.W-12. He has deposed that he had seen the appellant from the
window. When he came out in the courtyard, he could find no one as all had fled
away. His wife had tried to save Babulal Kisku but she was also shot at.
13. The evidence of P.W-12 has witnessed a considerable shift from his
version rendered in the fardbeyan. The fardbeyan reveals that the informant had
several occasions to recognize the appellant. The first was the recognition of the
voice of the appellant when he had ordered the appellant to come out. The
second occasion was when the wife of the informant Putti Murmu came out to
confront the miscreants and the appellant had followed her outside. The third
instance was when the appellant had shot at Putti Murmu on her thigh. The
informant had also claimed to have identified the appellant in the light of a torch.
14. However, as P.W-12, he has deposed that the appellant had taken his
name and had entered the courtyard but in his cross-examination, he has not
specified as to who had taken his name. He also does not say as to who had
6 Cr. Appeal (D.B.). No. 447 of 2018
shot at his wife. In his examination in chief, he has stated about identifying the
appellant from the window. The testimony of this witness indicates that it was a
dark night and the incident had occurred in between 11-11.30 P.M. From the
fardbeyan, it appears that the informant had several occasions to identify the
appellant but his testimony as P.W-12 apparently creates a doubt over such
identification. Moreover, as noted above, not a single inmate of the house, had
led credence to the testimony of P.W-12 and in absence of any corroboration
and the evidence of P.W-12 being fraught with inconsistencies and deficiencies,
we have no doubt in our mind that the prosecution has miserably failed to prove
its case. The learned trial court while convicting the appellant and sentencing
him has primarily relied upon the evidence of P.W-12 but the inconsistencies
appearing in his evidence and the absence of corroboration has not been
properly appreciated by the learned trial court.
15. Consequent to the aforesaid findings, we allow this appeal and hereby set
aside the judgment of conviction dated 25.1.2018 and order of sentence dated
2.2.2018, passed by Shri Surendra Nath Mishra, learned District & Additional
Sessions Judge-IV, Dumka in S.T. No. 26 of 2012, whereby and whereunder the
appellant has been convicted for the offences punishable under sections
302/149, 452, 435 and 148 of the Indian Penal Code, Section 27 of the Arms Act
and Section 17 of the C.L.A. Act and has been sentenced to undergo rigorous
imprisonment for life and a fine of Rs.20,000/-for the offence under section 302
of IPC, rigorous imprisonment for five years and a fine of Rs.10,000/- for the
offence under section 435 of IPC, rigorous imprisonment for five years and a fine
of Rs.10,000/-for the offence under section 452 of IPC, rigorous imprisonment
for one year for the offence under section 148 of IPC, rigorous imprisonment for
three years and a fine of Rs.5,000/-for the offence under section 27 of the Arms
Act and rigorous imprisonment for six months for the offence under section 17
of the CLA Act.
16. Since the appellant appears to be in custody, he is directed to be released
forthwith, if not wanted in any other case.
17. Pending I.As, if any, stand disposed of.
(Rongon Mukhopadhyay,J)
(Ambuj Nath, J)
Jharkhand High Court, Ranchi
Dated_18th October, 2022
Rakesh/NAFR
