Jharkhand High Court
Shibdhan Murmu Son Of Ramjit Murmu vs The State Of Jharkhand on 2 April, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (D.B.) No. 790 of 2014
[arising out of Judgment of conviction dated 10th
September, 2014 and order of sentence dated
12th September, 2014 passed by the Principal
Sessions Judge, Pakur in Sessions Case No.9 of
2010 corresponding to Littipara Police Station
Case No. 40 of 2009 (G.R. No.573 of 2009)]
----
Shibdhan Murmu son of Ramjit Murmu, resident of Vill. Jobadih,
PS PO Littipara, District Pakur.
... Appellant
-versus-
The State of Jharkhand ... Respondent
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For the Appellant : Mr. Rajeeva Sharma, Sr. Advocate
Ms. Rita Kumari, Advocate
Ms. Neetu Singh, Advocate
For the Respondent : Ms. Nehala Sharmin, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI SUBHASH CHAND, J.
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JUDGMENT
Per Ananda Sen, J. Appellant has preferred this appeal against the Judgment of
Conviction and Order of Sentence dated 10th September, 2014 and 12th
September, 2014 respectively passed by the learned Principal Sessions
Judge, Pakur in Sessions Case No.09 of 2010 arising out of Littipara Police
Station Case No.40 of 2009 (G.R. No.573 of 2009), whereby and whereunder
the appellant has been convicted under Section 302 of the Indian Penal Code
and has been sentenced to undergo rigorous imprisonment for life and also
fine of Rs.25,000/- and in default of payment of fine to undergo rigorous
imprisonment for two years for the offence under Section 302 of the Indian
Penal Code.
2. The case of the prosecution, as per the fardbeyan of the informant
Marsila Marandi, recorded by the Officer-in-Charge, Littipara Police Station on
01.10.2009, is that, Sonamuni, aged 14 years (deceased), daughter of Savitri
Marandi (elder sister of the informant) was residing with the informant for last
about one year and was studying in Class VII at Littipara Kanya Madhya
Vidyalaya. Since about three months, she fell in love with the appellant
Shivdhan Murmu and during this the deceased and the appellant used to go
out of their house during night. On 30.09.2009 also in the evening the
deceased and the appellant left their home and on 01.10.2009 in the morning
at about 05.00 a.m. the deceased returned to her home and informed the
informant that the appellant has immensely assaulted her due to which she is
suffering severely. Thereafter she had gone to the western side of Bagwan
Pond and fell there and immediately died. The informant claimed that the
appellant has beaten the deceased severely due to which she died.
3. On the basis of the fardbeyan of the informant, Littipara Police
Station Case No.40 of 2009 was registered for offence under Section 302 of
the Indian Penal Code as against the appellant, being the sole accused.
4. After investigation, chargesheet being Charge Sheet No.42 of
2009 dated 30.11.2009 was submitted against the appellant for offences under
Section 302 of the Indian Penal Code. Cognizance of the offence was taken by
order dated 14.12.2009 and case was committed to the Court of Sessions.
Charges were framed under Section 302 of the Indian Penal Code, which was
read over and explained to the appellant. The appellant pleaded not guilty and
claimed to be tried.
5. Prosecution, in order to bring home the charges, had examined
altogether 12 (twelve) prosecution witnesses, namely, P.W.1 Manjhi Kisku,
P.W.2 Munnu Tudu, P.W.3 Bale Biti Murmu, P.W.4 Nakul Hansda, P.W.5
Ranjeet Murmu, P.W.6 Ramshil Marandi, P.W.7 Shishu Murmu, P.W.8 Sonalal
Hansda, P.W.9 Girish Soren, P.W.10 Marshila Marandi, P.W.11 Teslal Ram
and P.W.12 Dr. Shyam Prasad Bhagat.
In addition to examining the above witnesses, the prosecution
also got the following documents exhibited: -
Ext. 1 Signature of Girish Soren on Inquest Report
Ext. 1/A Signature of Bali Beti Mai Murmu Pradhan on
Inquest Report
Ext. 2 Fard beyan
Ext.3 Carbon copy of Inquest Report
Ext.4 Postmortem Report
6. P.W.1 Manjhi Kisku has stated that the occurrence is of 8-9
months ago. It was morning 5-6 a.m., he was in his fields, when he saw that
the deceased was being beaten by the appellant with slaps and kicks. On hue
and cry Bale Biti Murmu, Nakul Hansda, Ranjit Murmu came there and Shishu
Murmu also came there. Deceased was being administered with something in
a bottle by Nakul Hansda, Balebiti Murmu, Ranjit Murmu and Shishi Murmu.
Thereafter they fled away. Thereafter the deceased died near the pond. In
cross examination he stated that Chuttar Kisku is his younger brother. He
further stated that a case is pending in the Court of Commissioner between
Chuttar Kisku and Balebiti Murmu for the post of Pradhan. Balebiti Murmu was
not appointed by the SDO. The order passed by the SDO was upheld by the
DC. It is not correct that Bale Biti Murmu was appointed on the post of
Pradhan. It is not correct that against the said order Chuttar had moved before
the Commissioner Court. He again stated that Chuttar Kisku had moved
before the Commissioner Court against the appointment of Bale Biti Murmu on
the post of Pradhan. This witness was further cross examined on the next date
wherein he stated that the appellant, Ranjit Murmu and Shishu Murmu are in
the coterie of Bale Biti Murmu. Ranjit Murmu is father of the appellant. He
further stated that he went to the field at about 7/8 a.m. and remained there for
about half an hour and during that he had not seen anyone except Munu Tudu.
He further stated that the police had recorded his statement wherein he had
stated that the deceased was being administered something from a bottle by
Nakul Hansda, Balebiti Murmu, Ranjit Murmu, Shishu Murmu. He stated that
he was not forced to depose in the manner he did. He denied the suggestion
that he had not seen any occurrence and that his fields are not there. He also
denied the suggestion that he has falsely implicated the appellant.
P.W.2 Munnu Tudu has stated that the occurrence took place
about one year ago. It was 5/6 a.m. in the morning when this witness was at
his fields. On hearing hulla, he saw that the appellant was beating the
deceased with fists. He stated that the appellant caught hold of neck of the
deceased and thrashed her on the ground. Thereafter, Nakul Hansda, Ranjit
Murmu, Shish Murmu took the deceased to the western side of the pond
where the deceased died. He stated that the deceased was unconscious when
they were taking her near the pond. He has identified the appellant in the dock.
In his cross examination, this witness has stated that Chuttar Kisku is his
maternal uncle. A matter regarding appointment of Pradhan was pending
between Chuttar and Bale Biti Murmu. Appellant's father had casted vote in
favour of Bale Biti Murmu and Bale Biti Murmu was appointed Pradhan. He
stated that as he has heard, in appeal also Chuttar had lost. He has stated that
he does not remember the details about his land and he is unable to produce
any paper. He stated that except him Manjhi Kisku was there. Manjhi Kisku is
elder brother of Chuttar Kisku. He stated that after hearing hulla he went to the
place of occurrence and remained there for two minutes. He has stated that
after seeing they had fled and had not forbade them. He has stated that his
statement was recorded by the police. He has stated that the deceased
belongs to Kudlo Village. He is unaware of the parentage of the deceased. He
further stated that he is unable to say whether there was any dispute between
the deceased and the appellant. It is wrong to say that he is giving false
evidence. It is wrong to say that due to relation he has falsely implicated the
appellant.
P.W.3 Balebiti Murmu has stated that she is Pradhan of Jogodih
Village. The occurrence took place 1 year 5 months ago. It was 2 - 2 ½ p.m. in
the afternoon. She was at home. She started for her fields and at the same
time the deceased also was carrying cow dung. She was also going towards
the fields. The deceased fell near the fields. Nakul Hansda, Shishu Murmu and
Ranjit Murmu were present there. The deceased was wriggling. They were
taking her to the hospital and on the way she died. After she died, Manjhi
Murmu, Manua Tudu, Marshila Marandi came and the police also came. She
identified the appellant. She has stated that the police prepared the inquest
report on which she had put her signature. In cross examination, this witness
has stated that a case is pending between Ranjit Murmu and Rugdo Murmu,
wife of Chuttar Kisku from before. Chuttar has also filed a case with respect to
Pradhanship, which is pending.
P.W.4 Nakul Hansada has stated that the occurrence took place
one and half year ago. It was about 2 - 2 ½ p.m. in the afternoon. He was
going towards his field from his home. When he reached near the pond, he
saw near the field the deceased was lying. Balebiti, Shishu and Ranjit also
followed him. This witness has further stated that they were taking the
deceased to the hospital and on the way she died. He identified the appellant.
In cross examination, he has stated that Marshila Marandi is the maternal aunt
of the deceased.
P.W.5 Ranjit Murmu has stated that the occurrence took place 1
½ year ago. It was 2 - 2 ½ p.m. in the afternoon. He was at his field. Nakul
had called him, when he saw that the deceased was lying. Thereafter this
witness along with Nakul and Balebiti were taking the deceased to the hospital
and on the way she died. He has identified the appellant.
P.W.6 Ramshil Marandi, P.W.7 Sishu Murmu and P.W.8 Sonalal
Hansda have been declared hostile.
P.W.9 Girish Soren has stated that he signed the inquest report
which is marked as Ext.1. He also identified the signature of Balebiti Murmu
which is marked Ext. 1/A. In his cross examination he stated that on hearing
hulla he went to the place of occurrence. He stated that Balebitti Murmu is wife
of Pradhan and there is some dispute between Chuttar Kisku and them.
P.W.10, the informant, Marsila Marandi has stated that the
occurrence took place 2 years 3 month 6 days ago. It was 8 Ó'clock in the
morning when the deceased was killed. Deceased studied in Middle School
Littipara in Class 7th. On Wednesday appellant kept the deceased for the
whole night. On the next day deceased told this witness that appellant had
beaten her and had threatened not to disclose the same to anybody. She
further states that in the morning deceased went to throw cow dung. She went
in search of her and after some distance, she saw appellant was beating the
deceased and trying to strangulate her neck. When she reached at the
western corner of the pond, she saw Balebiti Murmu, Ranjeet Murmu, Sishu,
Nakul Hansda standing there. They told her that appellant has killed the
deceased. She saw the dead body of the deceased. She further submits that
police had recorded her statement and she had put her thumb impression on
it. Babulal also had put his thumb impression on the fardbeyan. In her cross
examination, she further submits that when the victim came home, husband of
this witness had gone for work and both her sons were sleeping. She stated
that she told the police that she saw appellant beating the deceased and
strangulating her neck. She also stated before police that she also saw Balebiti
Murmu, Ranjeet Murmu, Nakul Hansda and Sishu standing there who told her
that appellant has killed the deceased.
P.W.11 Teshlal Ram has stated in his evidence that on
30.09.2009 he was posted as Station Incharge Littipara Police Station. He had
recorded the fardbeyan of Marsila Marandi. The same was written by ASI P.
Prasad and signed by him which he identified and the same was marked as
Ext.2. He identified his signature in the inquest report which was marked as
Ext.3. He had also recorded the re-statement of the informant and inspected
the place of occurrence. He recovered the dead body and gave a detailed
description of the place of occurrence in his deposition. He has stated that he
had recorded the statements of witnesses and after collecting sufficient
evidence had submitted charge sheet. He has stated that he had collected the
postmortem report and had sent the semen samples to FSL Ranchi.
In his cross examination, he stated that the semen sample report
was not received till he submitted charge sheet. He admits that he had not
prepared map of the place of occurrence and no photography was done.
P.W.12 Dr. Shyam Prasad Bhagat is the doctor, who had
conducted the Postmortem examination and found following:-
Both side in front of neck multiple dicentric nail marks found.
Abrasion ¼"X1.5"over the chain on left side
Bruise right side of neck ½"X1"
Abrasion in the back of chest at mid position spinal gross 2"X 3"
Abrasion near lateral "maeouls ½"X1/2
Bruise over front o f upper chest at the root or neck 2"X1"
Bruise at epigastric region of abdomen 3"X2.
Examination of genetaria:- obvious quite discharges. Found a
vaginal orfic and over undergarments. Found soaked with the
white discharge. Hymen found torn, blood mixed, vaginal
discharged vaginal swab and the soaked part of the under
garments preserved for theological examination, for the presence
of spermatozoa.
On dissection:- (1) Neck- Subcutaneous, tissue and muscle found
congested, trachea- hyoid and hyoid bone at the larynx trachea
mucus are found congested, cavity filled with blood mixed froath,
skull- brain is found soft and pulpy, lungs found congested,
emphysematous heart- left chamber empty, right filled with dark
altered blood. Abdomen- stomach empty, anterior wall of
abdomen found ecchymosed, larger and small interior wall of
abdomen found ecchymosed, large and small intestine filled with
gas and fecal matters. Liver- congested, spleen- dark and pulpy.
Kidney found congested, bladder- empty, uterus- non gravity.
He has opined that the cause of death is due to asphyxia as a
result of throttling.
7. Upon conclusion of the evidence of the prosecution, statement of
the appellant was recorded under Section 313 of the Code of Criminal
Procedure. He did not adduce any evidence in defence.
8. After hearing the arguments of the parties, upon conclusion of the
trial, the appellant has been convicted and sentenced by the Judgment of
Conviction and Order of Sentence dated 10th September, 2014 and 12th
September, 2014, as stated in paragraph 1 of this judgment.
9. Challenging the aforesaid judgment of conviction and order of
sentence, the appellant has preferred this appeal.
10. Learned counsel appearing on behalf of the appellant submits the
prosecution has failed to bring home the charge against the appellant beyond
all reasonable doubts. He submits that that there are major contradictions in
the evidence of the alleged eye witnesses. He submits that P.W.10, who is
also the informant and claimed to be an eye witness, has deviated in
describing the manner of occurrence. In the fardbeyan, she has stated that the
deceased had gone to the western side of Bagwan Pond and fell there and
immediately died, whereas in her evidence before the Court, informant
(P.W.10) has stated that she went in search of the deceased and after some
distance she saw that the appellant was beating the deceased and was trying
to strangulate her neck and at the same time in her cross examination, she
has stated that she saw Balebiti Murmu, Ranjeet Murmu, Nakul Hansda and
Sishu standing at the place of occurrence, who told the informant (P.W.10)
that appellant has killed the deceased. He further submits that P.W.3 Balebiti
Murmu in her evidence has stated that the informant (P.W.10) had come after
the deceased had died. He further submits that P.W.4 Nakul Hansada has
stated in his evidence that when he was going towards his field and had
reached near the pond, he had seen the deceased lying and Balebiti (P.W.3),
Shishu (P.W.7) and Ranjit (P.W.5) had followed him. He further submits that
P.W.5 Ranjit Murmu has stated in his evidence that Nakul (P.W.4) had called
him when he was at his field and thereafter he saw the deceased was lying.
P.W.7 Sishu Murmu has turned hostile. He argues that though P.W.1 Manjhi
Kisku and P.W.2 Munnu Tudu have stated that they have seen the appellant
beating the deceased and they had called the other witnesses, i.e., Bale Biti
Murmu, Nakul Hansda, Ranjit Murmu, but none of these witnesses, i.e.,
Balebiti Murmu, Nakul Hansda and Ranjit Murmu have stated about the
presence of P.W.1 Manjhi Kisku and P.W. Munnu Tudu at the place of
occurrence nor have stated that these two witnesses had called them to the
place of occurrence. Thus, the learned counsel for the appellant submits that
the prosecution has failed to bring home the charge against the appellant.
11. Learned counsel appearing for the State submits that the
prosecution has been able to prove their case beyond shadow of all
reasonable doubt before the Trial Court. The informant has fully supported the
prosecution case as per her fardbeyan. The evidence of the informant P.W.10
is corroborated by the evidence of other witnesses, i.e. P.W.3 Balebiti Murmu,
P.W.4 Nakul Hansada, P.W.5 Ranjit Murmu and the evidence of the doctor,
who had conducted the postmortem. She submits that the doctor has opined
that the cause of death is due to asphyxia as a result of throttling. She submits
that P.W.1 Manjhi Kisku and P.W.2 Munnu Tudu have stated that they have
seen the appellant beating the deceased. She submits that prosecution has
proved the charges against the appellant and on that basis the Trial Court has
rightly convicted and sentenced the appellant.
12. After hearing the counsel for the parties, we have gone through
the records of the case and evidence.
13. In this case, P.W.10 is the informant. We find from her deposition
in Court that she stated that the appellant kept the deceased with him at night.
She returned in the morning and disclosed to the informant, that this appellant
had mercilessly assaulted her and threatened that this fact should not be
disclosed to anyone. In the morning when the deceased went to the field to
throw the cow dung and did not return after a considerable period, the
informant (P.W.10) went in search of her, when she saw this appellant was
assaulting the deceased and pressing her neck. When the informant reached
on the western side of the pond, she saw Balebiti, Ranjit Murmu, Sishu and
Nakul standing there. These four persons had told that it is this appellant, who
had committed murder of the deceased. The deceased was lying dead there.
When we go through the First Information Report, we find that
absolutely a different story has been mentioned there. In the First Information
Report, the informant (P.W.10) says that the deceased and this appellant were
in love and the deceased often used to leave her house at night. She stated
that on 30.09.2009 in the evening the deceased went, but returned on
01.10.2009 at 05.00 a.m. and told this witness that this appellant had
mercilessly assaulted her and she is not feeling comfortable. Thereafter, she
went out near the pond and the informant (P.W.10) followed her. Informant
stated that the deceased was saying that the appellant had assaulted her.
Then suddenly, she fell down on the side of the pond and died.
Thus, in the First Information Report, she has not whispered that
she had seen this appellant assaulting the deceased and pressing her neck
nor she states that other persons namely, Balebiti, Ranjit, Sishi or Nakul were
present beside the pond where the dead body was found. This is a major
contradiction. This clearly suggests that the informant has exaggerated,
improved and developed the story and tried to become an eye witness to the
occurrence, which, actually, she was not. This conduct of the informant
(P.W.10) leads to the only conclusion that she is not at all a reliable witness.
Thus, her evidence cannot be relied upon.
14. P.W.1 and P.W.2 had stated that in the morning they had seen
this appellant, with fists and slaps, assaulting the deceased and pressing her
neck, thereafter the deceased died near the pond. This fact is also not
corroborated from the statement made in the First Information Report. From
the statement made in the First Information Report, it is clear that if at all there
had been any assault, it was in the night or in the early morning and after the
assault the deceased returned to her house and had narrated the same to the
informant (P.W.10) and thereafter went out and dropped dead beside the
pond. As per the statement of P.W.1 and P.W.2, soon after the assault the
deceased died. If that be so, then there is no question of the deceased going
to the house and narrating the entire fact to the informant (P.W.10). Further,
the informant in the First Information Report has stated that she followed the
deceased, when she went out of the house, but the deceased fell down near
the pond and died. Thus, statement of P.W.1 and P.W.2 is not matching with
the prosecution case as narrated in the First Information Report. This
discrepancy creates a doubt in the mind of this Court about the actual
prosecution story also. The prosecution story, thus, is not consistent, which
creates a genuine doubt in the mind of this Court. None of the other witnesses
have taken the name of P.W.1 and P.W.2 to be present at the place of
occurrence. Further, as per P.W.3, P.W.4 and P.W.5, the occurrence took
place in the afternoon at 2 - 2 ½ p.m. This also is not correct as per the First
Information Report. It is the case of the prosecution that the incident occurred
in the morning. These Prosecution Witnesses also gave a different version,
which is contradictory to the First Information Report, which also creates a
doubt about their status as an eye witness.
15. The prosecution has to prove the prosecution case beyond all
reasonable doubts. If any doubt in respect of the manner of occurrence creeps
in the mind of the Court, including that of involvement of the accused, the
benefit of doubt goes in favour of the accused. It is the duty of the defence to
create a doubt in the mind of the Court and once such doubt is created in the
mind of the Court about the occurrence, the prosecution case, manner of
occurrence, or the involvement of the accused, the accused is bound to get
benefit of such doubt.
16. In this case, as observed earlier, there is doubt about the
prosecution case and the manner in which the occurrence had taken place.
P.W.10 is not a reliable witness as she has narrated a different story than what
she had stated in the First Information Report. Even P.W.1 and P.W.2 give a
different story, which is not there in the First Information Report. Whether the
deceased died immediately after the assault and whether she has returned to
her house and narrated the incidence and then went out and fell down beside
the pond are not clear from the two different versions of the prosecution story.
These two versions cannot exist simultaneously. One of the statement has to
be incorrect. Which statement is correct has not been establishment by the
prosecution as both the versions of prosecution story exist side by side as per
oral evidence and the First Information Report. All these circumstances create
a doubt in the mind of the Court about the prosecution case and involvement
of this appellant.
17. Thus, we are inclined to hold that the prosecution has not been
able to prove the guilt of the appellant beyond all reasonable doubts. There is
an element of doubt about the prosecution case. Thus, giving benefit of doubt,
we are inclined to allow this appeal. Impugned Judgment of Conviction and
Order of Sentence dated 10th September, 2014 and 12th September, 2014
respectively, passed by the learned Principal Sessions Judge, Pakur in
Sessions Case No.9 of 2010 arising out of Littipara Police Station Case No.40
of 2009 (G.R. No.573 of 2009) are hereby set aside. The appellant is acquitted
of the charges against him. He is directed to be released from custody
forthwith if not wanted in any other case.
18. This appeal is, accordingly, allowed.
19. Let the Trial Court Records be transmitted to the Court concerned
along with a copy of this judgment.
(Ananda Sen, J.)
(Subhash Chand, J.)
High Court of Jharkhand, Ranchi
Dated, the 2nd April, 2024
Kumar/Cp-03
