Jharkhand High Court
Jhukar @ Jhukaar Marandi vs The State Of Bihar (Now Jharkhand) on 10 June, 2024
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Deepak Roshan
Criminal Appeal (DB) No. 72 of 1997
Against the judgment and order of conviction and sentence dated
23.11.1996 passed by Shri Mahesh Prasad Tiwari, learned Additional
Sessions Judge-V, Dumka in Sessions Case No. 72 of 1994
Jhukar @ Jhukaar Marandi ... Appellant
Versus
The State of Bihar (now Jharkhand) ... Respondent
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PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE DEEPAK ROSHAN
For the Appellant : Mr. Rajeeva Sharma, Sr. Advocate
Ms. Rita Kumari, Advocate
For the Respondent : Mr. Pankaj Kumar Mishra, A.P.P.
Dated 10thJune, 2024
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Rongon Mukhopadhyay, J. : 1. Heard Mr. Rajeeva Sharma, learned senior counsel
for the appellant and Mr. Pankaj Kumar Mishra, learned A.P.P.
2. This appeal is directed against the judgment and order of conviction
and sentence dated 23.11.1996 passed by Shri Mahesh Prasad Tiwari, learned
Additional Sessions Judge-V, Dumka in Sessions Case No. 72 of 1994,
whereby and whereunder, the appellant has been convicted for the offence
punishable u/s 302 of the Indian Penal Code and has been sentenced to
imprisonment for life.
3. The prosecution case arises out of the fardbeyan of Mona Besra (P.W.
13) recorded on 05.10.1993 in which it has been stated that on 04.10.1993 he
and his family members after having meal at 8 p.m. went to sleep. The
informant along with his wife and children were sleeping in the verandah in
the western side of the house while his parents were sleeping in the room
situated in the northern side of the house. His sister Sumi Besra, Dhanmuni
Besra, Binju Besra and his aunt Lukhi Hansda and cousin sister Surajmuni
Marandi were sleeping in a room situated in the southern side of the house.
It has been alleged that around 11 p.m. on the alarm raised by his aunt and
sister, he woke up from his sleep and in a nervous state came in the courtyard
and saw Jhukar Marandi (appellant) with a knife leaving the house. The
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informant could not apprehend Jhukar Marandi, due to fear as Jhukar
Marandi had a knife with him. His sister Surajmuni Marandi, Dhanmuni
Besra and aunt Lukhi Hansda came crying and disclosed that Sumi Besra has
been assaulted by Jhukar Marandi with a knife. At this, he went inside the
house and found blood coming out from the left side of the neck of Sumi
Besra and she was wriggling. When his family members started screaming,
several villagers including Bariyar Besra, Somlal Besra had arrived and had
seen the happenings. The informant started making arrangements to take his
sister to Rampur Hospital, but in the meantime, she died. The reason for the
occurrence is that Sumi Besra and Jhukar Marandi were in a relationship for
the last 1 ½ -2 years and though Jhukar Marandi wanted to solemnize
marriage with Sumi Besra, but the parents of Jhukar Marandi were against
such marriage and because of such objection his did not want to go to the
house of Jhukar Marandi. About 10-15 days back Jhukar Marandi had
expressed his desire to take Sumi Besra to his house, but she did not agree
and for this reason Jhukar Marandi had assaulted her for which a meeting
was also held in the village. In the meeting Jhukar Marandi had extended a
threat to Sumi Besra that if she did not marry him, she will be done to death.
Based on the aforesaid allegations, Shikaripara P.S. Case No. 17/1993
was instituted against Jhukar Marandi for the offence punishable u/s 302 of
the I.P.C. On conclusion of investigation charge-sheet was submitted and
after cognizance was taken, the case was committed to the Court of Sessions
where it was registered as Sessions Case No. 72 of 1994. Charge was framed
u/s 302 of the I.P.C. which was read over and explained to the accused to
which he pleaded not guilty and claimed to be tried.
4. The prosecution has examined as many as fourteen (14) witnesses in
support of its case.
P.W. 1 Dhanmuni Besra has stated that it was 11 p.m. and she was
sleeping in the house along with her child and Binju Besra and Surajmuni
Marandi were also sleeping. In total 7 persons were sleeping including her
aunt Nageshwari Hansda. Surajmuni was sleeping on the cot along with
Sumi Besra. She heard the cry of alarm of Sumi Besra at which she got up and
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found Sumi Besra wriggling while Jhukar Marandi was trying to flee away
with a knife in his possession. She has stated that her brother Mona Besra ran
after Jhukar Marandi, but he could not catch hold of him. Jhukar Marandi
wanted to solemnize marriage with Sumi Besra, but she had refused and
about a week back there was a fight between them for which a Panchayati
was also held and in the Panchayat Jhukar Marandi had extended threats to
Sumi Besra. She had identified the accused in the light of a lantern and it was
a moon lit night as well.
In cross examination she has deposed that her house has five rooms
where 13 persons stay. Sumi Besra was sleeping in a room on a cot. She had
woken up when the feet of the accused while fleeing away touched her feet.
She has deposed that lanterns are not kept in every room. The incident
according to her had occurred at 11 p.m.
P.W. 2 Shyam Sunder Hembram has stated that he was sleeping in his
room, when he woke up at 12 a.m. on hearing some commotion from the
house of Budai Besra. When he came out and asked Budai Besra about the
reason for such commotion, he had disclosed that Jhukar Marandi has
committed the murder of his daughter Sumi Besra. He went to the house of
Budai Besra and found the dead body of Sumi Besra lying on a cot. A
Panchayati was held wherein a decision was taken that Jhukar Marandi and
Sumi Besra will not talk with each other and shall end their friendship. He
has identified his signature in the inquest report which has been marked as
Ext. 1.
In cross examination he has deposed that he is not an eye witness to the
murder. When he had reached the house of Budai, several villagers were
found already present.
P.W. 3 Dato Besra is a hearsay witness who has stated almost similar to
what has been stated by P.W. 2. He has proved his signature in the inquest
report which has been marked as Ext. 1/1. He had also identified his
signature in the seizure list which has been marked as Ext. 2.
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In cross examination he has deposed that several persons had
assembled at the house of Sumi Besra. He had not seen any knife at the place
of occurrence.
P.W. 4 Bariyar Besra has been tendered by the prosecution.
P.W. 5 Sunder Hembram is also a hearsay witness who has basically
reiterated the examination-in-chief of P.W. 2 and P.W. 3.
In cross examination he has deposed that the police had never stated
that Mona and his family members had disclosed about Jhukar Marandi
committing the murder of Sumi Besra. The police has not recorded his
statement.
P.W. 6 Somlal Besra has been tendered by the prosecution.
P.W. 7 Chunka Tudu has stated that at 11 p.m. he was in his room when
on hearing some commotion, he had come to the house of Mona Besra and
had seen the dead body of Sumi Besra lying on the cot. Jhukar Marandi had
earlier given a threat to commit the murder of Sumi Besra. He had gone to
the Police Station with Mona Besra where the case was lodged by him. He
has identified his signature in the seizure list which has been marked as Ext.
In cross examination he has deposed that when he had gone to the
house of Mona, other persons had already assembled. The police had
recorded his statement.
P.W. 8 Surajmuni Marandi has stated that she and Sumi Besra were
sleeping on the same cot. Sumi had raised an alarm that Jhukar had killed
her. She had seen Jhukar Marandi with a blood stained knife in his hand.
There was a lantern burning. When Jhukar Marandi tried to flee away, he
clashed against the leg of Dhanmuni. Jhukar managed to flee away. After
sometime Sumi Besra died. On hearing the cry of alarm, several villagers
assembled. Jhukar Marandi wanted to marry Sumi Besra, but she had refused
for which Jhukar Marandi had issued a threat to Sumi Besra.
In cross examination she has deposed that she, Sumi Besra, Lukhi,
Dhanmuni and Binju were sleeping in the same room. She had not seen
Jhukar Marandi entering into the house with a knife.
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P.W. 9 Dr. C.P. Sinha was posted as a Civil Assistant Surgeon in Sadar
Hosptial, Dumka and on 06.10.1993 he had conducted autopsy on the dead
body of Sumi Besra and had found the following injuries:
"Incised wound 2" x 2 ½ " deep over left side of neck cutting all the
muscles, small vessels and great vessels and nerves."
The cause of death has been opined to be due to shock and
haemorrhage as a result of the above injuries. He has proved the postmortem
report which has been marked as Ext.-3.
P.W. 10 Budai Besra has stated that on hearing the cry of alarm, he had
gone to the room of Sumi Besra and found her neck cut. Dhanmuni had
disclosed that Jhukar Marandi had stabbed Sumi Besra and Jhukar had fled
away though Mona Besra had tried to catch him. About 8-10 days back a
Panchayati was held. Her daughter had refused to go with Jhukar Marandi
since his father did not like her and Jhukar had threatened Sumi Besra.
In cross examination he has deposed that neither he had seen the
occurrence, nor he had seen the accused fleeing away.
P.W. 11 Joba Hansda has been tendered by the prosecution.
P.W. 12 Raja Ram Prasad was posted as a Sub Inspector of Police in
Shikaripara Police Station and on 16.01.1993 he had been entrusted with the
investigation of Shikaripara P.S. Case No. 70/1993. Initially the investigation
was done by Vishnu Prasad Choudhary. After taking over investigation he
had obtained the postmortem report and he had sent the blood stained cloth
and earth to F.S.L., Patna for scientific examination. The report from the F.S.L.
was not received. He had submitted the charge sheet. He had proved the
fardbeyan which has been marked as Ext. 4 and the endorsement on the same
which has been marked as Ext. 5.
In cross examination he has deposed that he had not conducted
investigation on the other aspects involved.
P.W. 13 Mona Besra is the informant who has stated that the incident
is of two years back at about 11 p.m. when he was sleeping in his room in the
western side of the house. His parents were sleeping in a room in the northern
side while in the room situated in the southern side Dhanmuni Besra, Binju
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Besra, Lukhi Hansda, Sumi Besra and Surajmuni Marandi were sleeping. He
has stated that Sumi Besra and Surajmuni Marandi were sleeping together on
a cot while the others were sleeping on the ground. All had gone to sleep after
having dinner at 8 p.m. At about 11 p.m. Jhukar had committed the murder
of Sumi. When Sumi raised an alarm everyone woke up. He had seen Jhukar
fleeing away with a knife. He did not try and catch Jhukar because he had a
knife with him. He thereafter went inside the room and found an injury on
the left side of the neck. Sumi was not able to speak; she was only nodding
her head. The women present in the room disclosed about the incident. Before
Sumi could be taken to Rampurhat Hospital, she had died. He has stated that
Sumi was in a relationship for two years with Jhukar, but the parents of
Jhukar did not want Sumi to come to their house. Jhukar used to threaten
Sumi that if she does not come to live with him, he will commit her murder.
About 10 days prior to the incident, the accused had assaulted Sumi for which
a Panchayati was also held. He has identified his signature in the fardbeyan,
which has been marked as Ext. 6. He has also identified the signature of
Chunka which has been marked as Ext. 6/1. He has also proved the signature
of Chunka in the seizure list which has been marked as 6/2.
In cross examination he has deposed that a Panchayati was held and
no one had attended the Panchayat from his side. There was an earthen lamp
in the house which was the source of identification of Jhukar. He had seen the
accused fleeing away.
P.W. 14 Basant Kumar Mallick has identified the handwriting of
Jamuna Prasad Singh on the fardbeyan which has been marked as Ext. 7. He
has also proved the signature which has been marked as Ext. 8. He has
identified the handwriting and signature of Vishnu Prasad Choudhary in the
inquest report which has been marked as Ext. 9.
5. The statements of the appellant was recorded under Section 313 Cr.P.C.
in which he has denied his complicity in the offence.
6. It has been submitted that by Mr. Rajeeva Sharma, learned senior
counsel appearing for the appellant that there is an unexplainable delay in
lodging the First Information Report, which the learned trial court has not
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properly appreciated. It has been submitted that P.W. 1, P.W. 8 and P.W. 13
are the eye witnesses, but their evidence is not consistent and thus makes the
projection of the appellant as the assailant doubtful. Initially a case was
lodged at the Police Station as per P.W. 7 and this fact would be fatal to the
prosecution. As per P.W. 7 the informant was accompanied by him to the
Police Station, but the informant had never disclosed the name of the
appellant. Mr. Sharma has submitted that the identification of the appellant
was also doubtful as it was night and all the persons in the house were
sleeping and identifying within such a short span of time in the light of
lantern is highly unlikely. It has further been submitted that the appellant has
been implicated as he was having a love affair with the deceased and a few
days prior to the occurrence, she was assaulted by the appellant.
7. Mr. Pankaj Kumar Mishra, learned APP has primarily relied upon the
evidence of P.W. 1, P.W. 8 and P.W. 13 who all are eye witnesses and who
have specifically named the appellant as the assailant. The motive for
committing the murder has been established by the prosecution beyond any
reasonable doubt.
8. We have heard the learned counsel for the respective sides and have
also perused the lower court records.
9. The case of the prosecution hinges upon the eye witness account of
P.W. 1 P.W. 8 and P.W. 13. P.W. 8 Surajmuni Marandi was sleeping with the
deceased Sumi Besra on the same cot while the others in the room were
sleeping on the floor. As per P.W. 1 there were 13 inmates in the house. The
assailant seems to have surreptitiously entered into the house and in a room
filled with several members of the family had committed a brutal assault
upon Sumi Besra. Not a single member of the family could get an inkling
about the incident till the scream from Sumi Besra which awakened P.W. 8
sleeping besides her who saw the appellant. P.W. 1 on whose legs the
appellant had accidentally touched woke up and saw the appellant fleeing
away with a knife. There was a lantern burning in the room. The evidence of
P.W. 1 and P.W. 8 reveals about the entire incident happening at the drop of
an eyelid. It would be highly unlikely in a scenario where at 11 p.m., the
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assailant giving a knife blow on the neck of Sumi Besra and fleeing away to
be identified when the only source of light is a lantern apart from the fact that
all concerned had virtually startled as they were sleeping and on hearing the
scream of Sumi Besra it would have taken them some time to gather their
senses. The evidence P.W. 1 and P.W. 8 so far as the identification of the
appellant as the assailant is concerned, is apparently doubtful.
10. Another feature of the eye witness account is the evidence of the
informant who has been examined as P.W. 13. In the fardbeyan, P.W. 13 had
stated that he was sleeping in the verandah along with his wife and children
which fact has also been supported by P.W. 8. However, there appears to be
some deviation in the evidence of P.W. 13 as he stated that he was sleeping
in the room situated in the western part of the house. This deviation assumes
significance as it was P.W. 13 who had tried to catch the appellant, but could
not because the appellant had a knife in his hand. P.W. 13 has stated about an
earthen lamp burning in the room. P.W. 13 must also have been in a dazed
state having woken up on the scream of Sumi Besra and being in the verandah
while the appellant was escaping and identifying him could have been
possible but as stated by P.W. 13 he was in his own room when he heard the
sound of scream. This also makes the identification of the appellant as the
assailant by P.W. 13 doubtful.
11. Mr. Rajeeva Sharma, learned senior counsel for the appellant has laid
much stress upon the suppression by the prosecution of the initial
information given to the police. This gains credence from the evidence of P.W.
7 who has stated about going to the Police Station where P.W. 13 had lodged
a case. P.W. 13 has also accepted the said fact that a document was prepared
in the Police Station itself. The fardbeyan of the P.W. 13 as per the prosecution
was recorded at Kulkuli Danga and this fardbeyan conveniently does not
mention about the earlier report. The earlier report has been suppressed by
the prosecution and this creates a doubt particularly in view of the delay in
lodging the First Information Report. The incident occurred on 4.10.1993 at
11 p.m. and the fardbeyan has been recorded on 05.10.1993 at 4.41 p.m. This
delay has not been explained by the prosecution.
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12. The prosecution has relied upon the motive of the appellant in
committing the murder as the deceased was not inclined to go with him to
his house. The witnesses have stated about an assault committed by the
appellant upon the deceased a few days prior to the occurrence for which a
Panchayati was held and a threatening was also given by the appellant. The
threatening can also be used as a guise to falsely implicate the appellant.
When the prosecution itself has suppressed material facts, when the identity
of the appellant in committing the murder is doubtful, merely on account of
existence of a motive, the appellant cannot be convicted.
13. On an overall conspectus of the case, we therefore come to a conclusion
that the prosecution has miserably failed to prove its case and consequently
we set aside the judgment and order of conviction and sentence dated
23.11.1996 passed by Shri Mahesh Prasad Tiwari, learned Additional Sessions
Judge-V, Dumka in Sessions Case No. 72 of 1994. This appeal is allowed.
14. Since the appellant is on bail, He is discharged from the liability of his
bail bond.
(RONGON MUKHOPADHYAY,J.)
(DEEPAK ROSHAN, J.)
Jharkhand High Court, Ranchi
Dated the 10th June, 2024
MK/N.A.F.R.
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