Jharkhand High Court
Makhu Dom vs The State Of Bihar(Now Jharkhand) on 28 April, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
2025:JHHC:13410-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No.205 of 1998(R)
------
1. Makhu Dom
2. Bilash Dom
3. Nathuni Dom
4. Jhabu Dom
All sons of late Marachu Dom, residents of village Piparpati
(Namudag), Police Station Chhatarpur, District Palamau
.... .... .... Appellant(s)
Versus
The State of Bihar(now Jharkhand) .... .... ....Respondent(s)
------
CORAM:HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
------
For the Appellants : Mr. A.K. Kashyap, Advocate
For the State : Mr. Vishwanath Roy, Spl.P.P
------
JUDGMENT
C.A.V.On 24.03.2025 Pronounced On: 28.04.2025 Per, Arun Kumar Rai, J.
1. This appeal survives only against appellant no. 2, Bilash Dom and appellant no.4, Jhabu Dom as appellant nos. 1 & 3 died during pendency of this appeal.
2. Heard learned counsel for the parties for surviving appellant nos. 2 & 4.
3. This appeal arises of the Judgment of conviction and order of sentence dated 19.06.1998 and 20.06.1998 respectively passed by learned 7th Additional Sessions Judge, Palamau at Daltonganj in S.T. No. 302 of 1997, whereby and whereunder the appellants have been convicted under Sections 302/34 and 452 of the Indian Penal Code and sentenced to undergo imprisonment for life u/s 302 IPC and R.I. for 7 years under Section 452 I.P.C.
4. In the present case FIR came into existence on the fardbeyan of Malti Devi, D/o late Vali Dom R/o Pathkari P.S. Chatarpur District Palamu who stated in the police station itself that on 09.04.1996, that in the last night she was sleeping in courtyard whereas her mother Deobarati Devi was sleeping in Osara (verandah) and her brother Subedar Dom and Jamadar Dom were sleeping in the room and at about midnight Makhu Dom, Bilash Dom, Nathuni Dom, Jhabu Dom, all sons of late Marachu Dom resident of village Piparpati, P.S. Chatarpur District Palamau entered into the house by taking tangi in their hand and had cut her mother who was sleeping in Osara (Verandah) and on her cry she woke up and started making commotion and in between those persons entered into room and killed her brother Subedar Dom and also caused number of injury on the person of her brother Jamadar Dom, then after hearing commotion nearby person assembled by taking torch light then all the four accused persons fled toward eastern sides who have been identified by those persons and she has also identified those persons as Dhibri was lighting. Informant further allegedly stated that cause of incident is that accused person used to tell her mother as Dian and Makhu Dom claimed himself as ojha and when any person got ill in the village then Makhu Dom used to tell them that her mother got him ill by doing black magic (jadu tona) and on last Friday in the noon Makhu Dom came to her house and told that his brother is having headache and asked her mother to make his brother well then her mother told that she know nothing. With common intention all the accused person committed the offence. It is further allegedly stated by informant that her injured brother namely Jamadar Dom was alive and with the help of villager he was being removed to hospital on cot and when they reached Chhatarpur then he died and his dead body was brought to police station.
5. After investigation charge sheet under Section 302/34, 452 of IPC was filed and accordingly cognizance was taken and case was committed to the Court of Sessions.
6. The charges under Section 302/34, 452 of I.P.C. were framed against all the accused persons and was read over and explained to them in hindi to which they pleaded not guilty and claimed to face the trial.
7. In the present case prosecution have got examined as many as 11 witnesses, P.W-1, Dukhraj Dom is the husband of the informant. His house is situated about 200 yards from the house of the deceased persons. P.W-2 2 Cr. Appeal (D.B.) No.205 of 1998 Malti Devi is the informant. She has stated that at the time of alleged occurrence she was in her house and her mother was being called as witch by the villagers. P.W-3, Laguni Devi is mausi of deceased Jamadar Dom, P.W-4 Sanjay Dom, P.W-5 Ghurbigan Dom, P.W-6, Rakshya Dom, P.W-7 Bhageran Dom are the villagers. P.W-8, Vijay Kumar Singh is the doctor who conducted postmortem, examination of deceased Jamadar Dom. He has found one of the injuries on the head of the deceased caused by sharp and hard substance. P.W-9 Doctor Ranjan Kumar Singh is the doctor who conducted postmortem examination of Deobarati Devi. The doctor has found all the injuries caused by hard and blunt substance and not by sharp weapon and also stated that the injury may be caused by sharp portion of tangi. P.W-10 Doctor R.P Sinha is the doctor who conducted post mortem examination of deceased Subedar Dom and he found the incised wound. P.W-11-Sohan Ram is the I.O. of the present case.
8. Apart from above stated oral evidence prosecution has brought on record post mortem report of dead body of deceased Jamadar Dom as exhibit 1, post mortem report of deceased Deobarati Devi, as Exhibit 1/1, Post mortem report of deceased Subedar Dom as Exhibit 1/2. FIR is Exhibit 2 whereas Exhibit 3 is inquest report of deceased Deobarati Devi, inquest report of deceased Jamadar Dom as Exhibit 3/1, inquest report of Subedar Dom as Exhibit 3/2 and charge sheet as Exhibit 4.
9. Before proceeding further, it is required to be noted that there are three sets of prosecution witnesses, First set of witnesses (P.W-1, P.W-2 & P.W-3) are relatives of deceased persons, second set of witnesses (P.W-4, P.W-5, P.W-6 & P.W-7) are villager of informant/deceased persons and third set of witnesses (P.W-8, P.W-9, P.W-10 & P.W-11) are official witnesses i.e. Doctors and I.O. P.W-1 and P.W-2 are husband and wife and P.W-2 is the informant of the present case, who happens to be daughter of deceased Deobarati Devi. P.W-3 is also mausi of deceased Jamadar Dom. P.W. 4 to P.W. 7 are the villagers and P.W-8 to P.W-10 are the doctors whereas P.W-11 is the I.O.
3 Cr. Appeal (D.B.) No.205 of 1998
10. P.W-3 to P.W-7 got hostile in the present case and nothing has been extracted from the mouth of these witness which could support the case of prosecution. As far as, official witnesses are concerned, P.W-8 Dr. Vijay Kumar Singh has conducted post mortem examination of deceased Jamadar Dom on 09.04.1996 and found following antimortem injuries:-
(i) lacerated wound over the scalp 4cm x 3cm with fracture of bone.
(ii) Incised looking wound over left shoulder 3cm x 3cm cutting the left clavicle.
(iii) Incised looking wound over the neck region right side 4cm x 3cm tearing the cartodid artery.
(iv) Incised looking wound over right arm damaging muscles and vessels with bone fracture.
(v) Incised looking wound over left arm cutting muscles with fracture of bone.
(vi) Fingers of both hand were defroued with fracture of bone and on dissection scalp laceration of brain was found.
Doctor has opined cause of death was due to head injury, hemorrhage and shock and has also stated that injury may be caused by sharp and hard weapon such as Tangi. He has also got proved post mortem report of Jamadar Dom as Exhibit-1.
11. P.W-9, Doctor Ranjan Kumar Singh has conducted post mortem examination of deceased Deobarati Devi and found following antimortem injuries.
(i)Lacerated wound over left cheek extending from front of left ear to lower margin of left mandible. On dissection left ramus of mandible found broken.
(ii) Lacerated wound 4"x1/2"x muscle deep over left side of occipital region.
(iii)Lacerated wound over left side of neck extending from posterior margin of left trapezius muscle. On dissection, blood and blood clots present in the wound. Cervical vertibra broken with injury to spinal cord.
Doctor has opined cause of death was due to shock and hemorrhage due to injury caused above and has also said that injury caused 4 Cr. Appeal (D.B.) No.205 of 1998 by hard and blunt substance and injuries may be caused by sharp portion of Tangi. He has also proved post mortem report of Deobarati Devi as Exhibit- 1/1.
12. P.W. 10 is Dr. R.P. Sinha, who has done post mortem on the dead body of Subedar Dom and has proved post mortem report as Exhibit 1/2. He has found the following injuries.
(i) Incised wound over right shoulder about 3 ½" x2"x1/2".
(ii) Incised wound over left shoulder about 3"x2"x1/2".
(iii) Incised wound over back and side of neck about four in numbers ranging from 2"x3"x1"x1/2". From dissection of the wound, entire vessels of the neck were cut and muscles were also found cut and lacerated.
(iv) Incised wound over back of right chest about 3"x2"x1".
Doctor has opined that the cause of death was due to shock and hemorrhage and injuries may be caused by sharp cutting substance such as Tangi.
13. Other official witness is P.W. 11, who is the I.O. of the present case and he has identified the writing and signature of the then Officer-In- charge Raman Kumar Rai in the FIR and same has been marked as Exhibit-
2. He has also stated that he visited the place of occurrence and he has given description of the place of occurrence. Death inquest report of all the three deceased has been prepared by him and the same has been marked as Exhibit 3, 3/1 and 3/2. In cross examination, he has categorically stated that P.W-2 Malti Devi has not stated either in her fardbeyan or in her restatement that Jamadar Dom has told her that Makhu Dom, Bilash Dom, Nathuni Dom, Jhabu Dom have caused injury to him. Further, it has been also stated that house of the husband of Malti Devi, informant herein is 50 yards towards western side from place of occurrence and blood was also found in the house of Malti Devi.
14. Informant has claimed herself to be eye witness of the incident and in fardbeyan as well as in her Examination in Chief. Similarly, P.W-1 has also claimed himself as eyewitness to the incident. As per prosecution 5 Cr. Appeal (D.B.) No.205 of 1998 case, medical and ocular evidence corroborates each other, whereas it is the case of defence that two witnesses (P.W-1 & P.W-2) are not the eye witnesses and at the time of alleged incident they were at their house so inflicting of injuries allegedly by Tangi cann't be seen by them.
15. Learned counsel for the appellants vehemently argued that prosecution has tried to pose P.W-1 & P.W-2 as an eye witnesses but perusal of conjoint reading of cross examination of P.W-2 and P.W-1 clearly shows that at the time of incident these two witnesses are in their home and therefore no question of seeing the alleged incident by them arise at all. He further pointed out that there is improvement on the part of P.W-1 and P.W- 2 as they have stated that injured Jamadar Dom has told them that accused persons namely, Makhu Dom, Bilash Dom, Nathuni Dom, Jhabu Dom have given Tangi blow to them. To buttress his submission, learned counsel drew attention of this Court towards the cross examination of I.O. where I.O. has categorically stated that P.W-2 has neither in her fardbeyan nor in her restatement has ever stated that Jamador Dom had stated to her regarding inflicting of injuries by accused persons. On this premise, learned counsel tried to convince this Court that the alleged manufactured oral dying declaration cannot and should not be considered by this Court. Learned counsel further read entire evidence of P.W-2 and pointed out the contradictions with the fardbeyan of the informant. Upon aforesaid premise, he prays that the motive assigned in the present case cannot and should not be the basis to convict a person that too for the serious offence under Section 302 of I.P.C.
16. Per contra, learned Spl.PP for the state submitted that it is a case where two male and one female of the same family who are mother and her two sons got brutally killed by sharp weapon (Tangi) and they succumbed to injury, two on the spot and one while was being taken to hospital. He further pointed out that P.W.1 and P.W.2 are rustic persons and minor contradiction ought to be avoided by this Court on account of considering their social background. It is not expected that they will depose before court of law with great precision. It has also been pointed out that ocular evidence is well 6 Cr. Appeal (D.B.) No.205 of 1998 corroborated from post mortem report where doctor has opined that injuries caused by sharp and hard substance and death has been caused on account of fatal injury. Upon aforesaid premise, prayer has been made that no interference is required in the finding arrived at by the learned trial court.
17. Heard and perused the lower court records.
18. As per prosecution case, it transpires that P.W-2 has been shown as eye witness whereas P.W-1 has been shown as a person who saw all the four accused persons fleeing away after commission of crime from the place of occurrence. During trial, it has come from the mouth of P.W-2 that incident was also narrated by his brother Jamdar Dom, who came to her house. Now, we would like to examine the testimony of P.W-1, P.W-2 and the fardebeyan (vide exhibit 2). P.W-2 in her examination in chief has stated that she was at her house and her mother Deobarati Devi brother Subedar and Jamadar were also sleeping in the house and in between Makhu Dom, Bilash Dom, Nathuni Dom and Jhabu Dom entered into house by taking tangi in their hands and they had given tangi blow on all the three and she has identified those persons and they are residents of Piparpati village in the light of dhibri. She further stated that Deopati and Subedar died in the house whereas Jamadar was alive who told that Makhu Dom, Bilash Dom, Nathuni Dom and Jhabu Dom had inflicted tangi blow. She further stated that injured Jamadar Dom was being taken to Chhatarpur on the cot by villagers but he died, then they visited to police station and her statement was got recorded in police station. The reason for above said incident is said to be that, Makhu Dom on Friday came to the house and told that Deopati has cause headache to his brother and she is Dain and Deopati was asked to treat his brother, then she told that she did nothing. In fardbeyan P.W-2 who happens to be informant of the present case has stated that at the time of occurrence she was sleeping in the courtyard and her mother was sleeping in osara(verandah) and two brothers namely Subedar and Jamadar was sleeping in room then the accused persons entered into the house and given tangi blow to her mother then she cried and on account of this, P.W-2 woke up and in between these accused persons entered into the room and given 7 Cr. Appeal (D.B.) No.205 of 1998 fatal blows to both brothers. She has also stated that in dhibri she has identified the accused persons.
19. It has come in the evidence of P.W-1 who is the husband of P.W-2 that he alongwith his wife Malti Devi (P.W-2) and children used to reside in her house and there is one house of Langer Dom in between the house of deceased Deopati and his house. P.W-11 who is I.O of the present case has also stated in cross examination that house of husband of Malti Devi is at 50 yards towards west from the place of occurrence. Even P.W. 2 has stated in her cross examination that at the time of incident she used to reside alongwith her husband. It is also stated by P.W. 2 that incident took place at 10 P.M. in the night and at that time she was eating meal and her husband was sleeping and it was dark night.
20. From above stated facts, we are having no hesitation in holding that at the time of alleged incident P.W-2 was in her house i.e. in the house of her husband. This fact further found corroboration from her cross examination at para no.11 where she has categorically stated that she saw the four persons fleeing away with Tangi and she did not see them while inflicting Tangi blow and she saw all the four persons from the distance of twenty steps. She has also stated that it was dark night. In fardbeyan, she has stated that the accused persons after commission of crime fled away towards eastern side from the place of occurrence but as stated earlier, I.O. has stated that her house was situated towards western side of the place of occurrence and it was dark night so it appears that fact qua fleeing away of four accused persons which is said to be seen by P.W-2 does not appear to be probable.
21. P.W-1 has stated in his examination-in-chief that his house is 200 yards away from the house of Subedar Dom and after hearing commotion, he went to the house of Subedar Dom he found that Deopati, Jamadar and Subedar were killed and they were in pool of bloods. However, Jamadar was alive and while Jamadar was taken to Chhattarpur he died in the way. P.W-1 further stated in his examination-in-chief that he saw the accused persons were fleeing away. He also stated in his cross-examination that he, 8 Cr. Appeal (D.B.) No.205 of 1998 his wife Malti Devi along with his children were in his house and at about 10 P.M. he heard commotion and he had also taken drink. It is further stated that Jamadar by running came to his house and told about the incident and he got unconscious and fell down. In cross examination at para no.-9, he has stated that he saw the dead body of Deopati and Subedar in police station and prior to that he did not see the dead body of those persons. Divulging of the facts of seeing the dead body of Deopati and Subedar in police station for the first time creates doubt about the version of this witness that he saw the accused person fleeing away after commission of crime and that too in the dark night.
22. As far as alleged narration of incident from the mouth of deceased Jamadar Dom is concerned both P.W-1 and P.W-2 have stated that Jamadar visited to their house and blood was also spread in their house. P.W-2 has stated that his brother, Jamadar Dom was having cut injury on his hand, neck, head and firstly Jamadar fell down at the mill of Chandra and blood was also spread at the mill and in the way. Her house is in front of house of Chandra and Jamadar fell down in the midway and she interacted with Jamadar Dom for two-three hours. The fact of divulging of incident by Jamadar Dom to P.W-2 does not find mention in the fardbeyan of informant (P.W-2) vide Exhibit 2. I.O. has categorically stated that P.W-2 has neither stated in her fardbeyan nor in her statement regarding conveying of fact of incident by Jamadar Dom to P.W-2. Definitely, there is improvement on the part of P.W-2. Further, it can be seen from other angle that Jamadar had received as many as six injuries on his person including four incised wound and on dissection of scalp laceration of brain was also found. Doctor has opined cause of death was due to head injury, hemorrhage and shock. It is difficult for this Court to accept the improved version of P.W-2 on account of fact that a person who received such a nature of injury could interact for 2-3 hours and divulge P.W-1 & P.W-2 regarding commission of crime by accused persons.
9 Cr. Appeal (D.B.) No.205 of 1998
23. We find that the evidence of P.W-2 & P.W-1 does not inspire confidence of this Court on account of above stated fact, but above stated aspect has not been considered by learned trial court.
24. In conclusion, on the basis of aforesaid discussions, we find that P.W-2 was not an eye witness to the incident and it was not possible for deceased Jamadar Dom to make oral dying declaration. There is also no circumstantial evidence brought on record, which could conclusively indicate the culpability of surviving appellant nos. 2 & 4.
25. We, as a consequence of the discussion made herein above, set aside the Judgment and Order of conviction dated 19.06.1998 and 20.06.1998 passed by learned 7th Additional Sessions Judge, Palamau at Daltonganj in S.T. No. 302 of 1997.
26. Accordingly, this appeal is allowed.
27. Since, the appellants are on bail, they are discharged from the liability of their respective bail bonds.
28. Let trial court record be sent back to the court concerned.
(Rongon Mukhopadhyay, J.) (Arun Kumar Rai, J.) Jharkhand High Court, at Ranchi Dated :- 28 / 04/2025 Rajnish/-N.A.F.R 10 Cr. Appeal (D.B.) No.205 of 1998