Jharkhand High Court
Deewan Hembram vs The State Of Jharkhand on 4 September, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (D.B.) No. 636 of 2015
1. Deewan Hembram, S/o Late Fela Hembram, R/o Elakend, PO-Nirsa, PS-
Nirsa (Kalubathan), District-Dhanbad.
2. Nirmal Marandi, S/o Late Thakur Marandi, R/o Chhatbandh, PO & PS-
Baliapur, District-Dhanbad
... ... Appellant
-Versus-
The State of Jharkhand ... ... Respondent
(Arising out of judgment of conviction dated 08.07.2015 and order
of sentence dated 13.07.2015 passed by learned Addl. Sessions
Judge-VII, Dhanbad in S.T. No. 346 of 2007/S.T. No. 56 of 2008)
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For the Appellant : Mr. Arwind Kumar, Advocate
For the State : Mrs. Vandana Bharti, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
By Court:
At the outset, it is submitted that vide order dated 01.11.2022, this criminal
appeal against appellant-Haldi Murmu, W/o Late Narayan Murmu, has already
been abated. Thus, this appeal is confined to only appellants- Deewan Hembram
and Nirmal Marandi.
Heard the parties.
1. The appellants have preferred this appeal against the judgment of conviction dated
08.07.2015 and order of sentence dated 13.07.2015 passed by learned Addl.
Sessions Judge-VII, Dhanbad in S.T. No. 346 of 2007/S.T. No. 56 of 2008,
whereby the appellants have been held guilty and convicted for the offence
punishable under Sections 302/34 of Indian Penal Code and they have been
sentenced to undergo rigorous imprisonment for life and a fine of Rs.10,000/-
each under Section 302/34 of IPC failing which the appellants have been directed
to undergo imprisonment for one year.
2. The prosecution case is based on the statement of P.W.7 who stated that he came
to know from Bazir Mian of Muslim Tola that Narayan Murmu was murdered and
dead body is lying in his house. On this information, he along with the other
villagers went to the house of Narayan Murmu and found Narayan Murmu dead
there. They saw cut injury in the neck and the injury on the stomach and foul
smell was coming from the dead body. There was no adult member in the house
except three children of the deceased. On enquiry, Munni Murmu, aged about 7
years, disclosed before the informant and others that her maternal uncle Nirmal
Marandi, S/o Late Thakur Marandi and Diwan Hembram, S/o Fela Hembram
came at her house at about 7 pm, there was altercation between the deceased and
Narayan Hembram and her mother Haldi Hembram and Nirmal Marandi and all of
them conjointly assaulted the deceased by sticks and cut his neck due to which he
died. In the F.I.R it was further disclosed that the children were threatened by
Nirmal Marandi and Diwan Hembram not to disclose about the said occurrence.
Thereafter both of them left and the mother also went missing. It is further
narrated that this child Munni Murmu showed the informant and others the
weapon i.e. stick by which the deceased was assaulted. The reason for the assault
is that the deceased was not giving any money to the family members.
3. On the basis of aforesaid fardbeyan, Nirsa Kalubathan P.S. Case No. 72 of 2007
under Sections 302 and 120B/34 of IPC was instituted. Police investigated the
case and filed charge sheet under Section 302/34 of IPC showing the present
appellants as absconder.
4. After framing of charge, the appellants were put on trial. 12 witnesses were
examined in this case i.e. P.W.1-Munni Murmu, P.W.2- Hemlal Hansda, P.W.3-
Anand Hembram, P.W.4- Mangal Murmu, P.W.5- Kismat Hembram, P.W.6-
Pandit Hembram, P.W.7- Chhote Lal Kisku (informant), P.W.8- Gaffur, P.W.9-
Azir Mian, P.W.10- Hamin Manjhi, P.W.11- Dr. Sapan Kumar Sarak and P.W.12-
Rajeev Kumar (Investigating Officer). Relevant documents were also exhibited.
5. After closure of the prosecution evidence, the statements of accused were recorded
under Section 313 of Cr.P.C. They denied all the circumstances, which were put to
them. One defence witness is also examined who is none other than the daughter
of the deceased and original appellant No.1 (died).
6. Trial Court found the appellants to be guilty for the offence Section 302/34 of IPC
and sentenced them to undergo rigorous imprisonment for life under Section
302/34 of IPC and a fine of Rs.10,000/- each.
7. Learned counsel for the appellant submits that the entire case rests on the
testimony of the sole witness i.e. P.W.1 who is supposed to be the eye witness
aged about four years at the time of occurrence. Her statement creates doubts
about the prosecution case as she had stated that she was sleeping in another room
along with her sister and brother whereas the occurrence had taken place in other
room. It is her contention that solely on the basis of testimony of this child eye
witness, the conviction cannot be sustained. He further stated that the statement of
this girl, who is P.W.1, was recorded by the investigating officer during
investigation but before the investigating officer she has not disclosed the name of
any of the appellants. As per defence, the informant has also turned hostile so as
P.Ws. 3, 4, 5, 9 and 10. P.Ws. 2, 6 and 8 did not support the prosecution case.
There is no witness on facts to suggest that these appellants had committed murder
of the deceased.
8. Learned counsel for the State has defended the impugned judgment of conviction
and order of sentence and submitted that P.W.1, who though is the child witness
aged about four years at the time of occurrence, has narrated the entire occurrence.
She has stated that these two appellants were quarreling with her father and
thereafter along with her mother accused no. 1 had committed murder of the
deceased. She further stated that immediately after the occurrence, they all fled
away. It was only three children of the deceased and his wife (original deceased
appellant no. 1-Haldi Murmu) were present in the house but they were under
stress and fear. The medical evidence also supports the ocular evidence of the eye
witness. She lastly submits that no explanation was given by these appellants as to
how the dead-body was found in the house. Thus, the conviction of the appellants
needs no interference.
9. After hearing the parties and after going through the evidence, we find that P.Ws.
3, 4, 5, 7, 9 and 10 have turned hostile. P.W. 7, who is the informant of the case
and heard the entire story from eye witness-P.W.1, has also turned hostile. P.Ws.
2, 6 and 8 did not support the prosecution case. The only witness on behalf of the
prosecution, thus, remains is P.W.1, who is minor aged about four years at the
time of occurrence, as on the date of evidence, the Court assessed the age to be six
years and the occurrence had taken place two years prior to it. She stated that she
was in the room along with her other brothers and sisters when these two
appellants, who happened to be her maternal uncles, started abusing and
quarreling with her father and these two appellants along with her mother
assaulted the deceased and committed the murder. The Hon'ble Supreme Court in
Radhey Shyam Vs State of Rajasthan 2014 (5) SCC389 that evidence of a
child witness must be evaluated more carefully and with great circumspection
because a child is susceptible to be swayed by what others tell him and thus a
child witness is an easy prey to tutoring. It has, therefore, been held that the
conviction can be sustained on the basis of sole evidence of the child witness but
the testimony of the child witness should be scrutinize very cautiously. There
should be no ambiguity in the evidence. If there is any element of doubt,
conviction cannot be based on the sole testimony of the said child witness.
10. In this case, though P.W.1 has stated that she had seen the commission of murder
but one of the very important witnesses is her sister who is elder to her. She is the
defence witness i.e. D.W.1. She stated that she along with P.W.1 and her brother
were sleeping in a different room when the occurrence had taken place. She stated
that they were sleeping and they had not seen the actual occurrence. Only when
they woke up and saw her father dead, they started raising alarm. She stated that
P.W.1 was also sleeping with them. This statement of D.W. 1 creates doubts
whether actually P.W. 1 had been the witness to the incidence or not. Since
reasonable doubt has kept in the mind of this Court as to whether P.W. 1 can be
said to be an eye witness of the entire occurrence or not.
11. Thus, we come to the conclusion that the prosecution has not been able to prove
the guilt of these appellants beyond all reasonable doubts.
12. For the reasons discussed above, the Judgment of conviction and sentence passed
by the learned Trial Court in the appeal is, accordingly, set aside.
Criminal Appeal is allowed.
Appellant no. 1, namely, Deewan Hembram, who is in custody, is directed to be
released forthwith if not wanted in any other case. Appellant No. 2, namely,
Nirmal Marandi, who is already on bail, is discharged from the liabilities of the
bail bonds and so are the bailors.
Let the Trial Court Records be sent back to the Court concerned forthwith
along with a copy of this judgment.
I.A. No. 8970 of 2024 stands disposed of.
(Ananda Sen, J.)
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated, the 04th September, 2024
AKT/Satendra
