Jharkhand High Court
Kumar vs The State Of Jharkhand on 5 October, 2023
Author: Navneet Kumar
Bench: Sujit Narayan Prasad, Navneet Kumar
1 Cr. Appeal (D.B.) No. 631 of 2017
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 631 of 2017
-----
(Against the judgment of conviction dated 04.02.2017 and order of sentence
dated 06.02.2017 passed in Sessions Trial No. 74 of 2012 arising out of Jarmundi
P.S. Case No. 217 of 2011, G.R. No 1560 of 2011 by the court of Sri Pawan
Kumar, District & Additional Sessions Judge-III, Dumka, Jharkhand)
Lukhin Hembrom @ Bhara Hembrom, son of Budhan Hembrom, R/o Vill.-
Kanhaiyapur, Tola- Lakra, P.O. & P.S.- Jarmundi, District- Dumka
--- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
For the Appellant : Ms. Sunita, Advocate
For the State : Mr. Saket Kumar, A.P.P.
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
JUDGMENT
CAV on: 15.09.2023 Pronounced on: 05.10.2023 Per Navneet Kumar, J.
This appeal is directed against the judgment of conviction dated 04.02.2017 and order of sentence dated 06.02.2017 passed in Sessions Trial No. 74 of 2012 arising out of Jarmundi P.S. Case No. 217 of 2011, G.R. No 1560 of 2011 by the court of Learned District & Additional Sessions Judge- III, Dumka whereby and whereunder the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life with a fine of Rs. 25,000/- (Rs. Twenty-Five Thousand) and in default of payment of fine, further directed to undergo S.I. for additional period of 3 months.
2. The brief story as unfolded in the fardbeyan (Ext.3) of the informant Mahalal Hembrom (P.W.5) which is recorded by S.I. Ram Pravesh Kumar o/c Jarmundi P.S. on dated 15.12.2011 at 19:15 Hrs. at the house of Late Putilal Hembrom Vill.- Kanhaiyapur is as under:
It is alleged that on 15.12.2011 at about 6.00 P.M. the informant's father Putilal Hembrom was sitting on the cot in the courtyard of his house and his mother Lukhi Kisku (P.W.3) and sister Pano Hembrom (P.W.2) were cooking rice on chulha. It is further alleged that at that time his cousin brother 2 Cr. Appeal (D.B.) No. 631 of 2017 Lukhin Hembrom @ Bhara Hembrom came armed with knife and stabbed knife in the chest of his father, who was sitting on the cot and thereafter accused fled away and at that time he was heating himself outside the house by fire and when informant rushed into the house then he saw the dead body of his father was lying on the cot in courtyard and his mother and sister told him that Lukhin Hembrom has stabbed the knife in the chest of his father and thereafter accused fled away. It is further alleged that his mother and sister have seen the occurrence of stabbing the knife by the accused because at the time of occurrence they were cooking rice there. He further stated that the reason behind this occurrence is that the wife of accused had died due to illness before 20-25 days from this occurrence in her paternal house (Mayaka) and accused was accusing my father of being an exorcist. In this regard a Panchayati was convened in the village. Due to this enmity he (accused Lukhin Hembrom) stabbed my father.
3. On the basis of the fardbeyan of the informant (P.W.5), Jarmundi P.S. Case No. 217 of 2011 dated 15.12.2011 was registered for the offence under Section 302 of the Indian Penal Code and 3/4 of the Prevention of Witch Craft Act against the appellant and after completion of investigation, the Investigating Officer submitted charge-sheet No. 09 of 2012 dated 31.01.2012 in this case against the accused Lukhin Hembrom @ Bhara under Section 302 of the IPC and under Section 3/4 of the Prevention of Witch Craft Act. Accordingly, the cognizance for the offence under the aforesaid sections was taken against the appellant and the case was committed to the court of sessions as per order dated 30.04.2012.
4. Charges were framed under Section 302 of the Indian Penal Code and Section 6 of the Witch Craft (Practices & Prevention) Act against the above-named accused/appellant on 18.06.2012 to which he pleaded not guilty and claimed to be tried.
5. The learned court below after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal.
6. Heard learned counsel for the appellant and the learned A.P.P. for the State.
Arguments advanced on behalf of the Appellant:
7. It has been contended on behalf of the appellant that all the prosecution witnesses examined on behalf of the prosecution have deposited most of the statement in contradiction to each other and as such not reliable
3 Cr. Appeal (D.B.) No. 631 of 2017 and trustworthy in the eye of law. It has further been pointed out that it is case of the prosecution that the appellant is the close relative of the deceased and admittedly there was a family dispute between the deceased and the appellant.
8. It has further been pointed out on behalf of the appellant that the case of the prosecution itself creates a doubt since as per the prosecution version the appellant came to the house of the deceased at the time when people residing adjacent house of the deceased and family members were also present in the house where the occurrence is alleged to have taken place and the informant himself was also sitting outside the door and thereafter the appellant stabbed the deceased with a knife very easily and fled away without taking his weapon and no one took any initiative either to resist him or to apprehend him. It has also been submitted that the alleged occurrence took place in the courtyard of the deceased in the evening when other co-villagers must be staying in their house, however, not a single independent witness has been examined as eye witness except the wife and daughter of the deceased, who had admitted about the family dispute with the appellant and therefore, they are purely interested witness and their version cannot be relied upon.
9. Further, it has also been pointed out that neither the murder weapon, FSL report is available regarding blood stain found in the murder weapon nor the investigating officer has properly stated about those facts whether he found any blood stain at the place of occurrence or not and no blood-stained soil has been seized and as such the appellant has been implicated in this case merely on the basis of personal grudge and family dispute.
10. The learned defence counsel appearing on behalf of the appellant has also pointed out that the informant Mahalal Hembrom (P.W.5) himself, who is the first and only person to have reached the place of occurrence but did not support the case of the prosecution. Learned defence counsel has further submitted that the motive of the alleged offence has been categorically stated by the informant P.W.5 in his fardbeyan that the appellant was harboring grudge with the deceased due to the impression that it was the deceased who was involved in practicing witch craft (black magic) and due to which the pregnant wife of the appellant had died and due to this enmity, the appellant had killed the deceased. But after the trial, the learned Trial Court has acquitted the appellant of the charge under Section 6 of the Prevention of Witch (Daain) Practices Act, 1999 and convicted him under 4 Cr. Appeal (D.B.) No. 631 of 2017 Section 302 of the IPC, which is not tenable in the eyes of law because the very genesis of committing murder has not been proved by the prosecution.
11. In the aforesaid background, learned defence counsel has submitted that despite of aforesaid glaring infirmity, the learned Trial Court did not apply its judicial mind properly in appreciating the evidences adduced on behalf of the prosecution and passed the impugned judgment of conviction & order of sentence, which is bad in law and fit to be set aside. Arguments advanced on behalf of the State.
12. On the other hand learned A.P.P. appearing on behalf of the State has vehemently opposed the contentions raised on behalf of the appellant and submitted that P.W.2 Pano Hembrom; P.W.3 Lukhi Kisku and P.W.5 Mahalal Hembrom (Informant) are the eye witnesses and all of them have consistently and uniformly supported the case of the prosecution and as such the learned Trial Court has rightly relied upon depositions of the prosecution witnesses and passed the impugned judgment of conviction and order of sentence and there is no legal point to interfere in the same.
13. Learned A.P.P. has further submitted that even if Section 6 of the Prevention of Witch (Daain) Practices Act, 1999 has not been proved but the prosecution has been able to prove the offence under Section 302 of the IPC on the basis of the glaring evidences available on record. Further, it has also been pointed out that the learned Trial Court has rightly appreciated the deposition of the Doctor namely Dr. Nishit Kumar Jha (P.W.1); Investigating Officer Rampravesh Kumar (P.W7) and Binay Kumar Gupta (P.W.8) apart from eye witnesses Pano Hembrom (P.W.2); Lukhi Kisku (P.W.3) and Informant Mahalal Hembrom (P.W.5) and found the appellant guilty for the offence of committing murder of the deceased and therefore, this appeal is fit to be dismissed being devoid of merit.
Appraisal & Findings
14. Having heard the parties, perused the record of the case including the Lower Court Records.
15. It is admitted case of the prosecution that both parties were on inimical terms. It is also found from the testimonies of the witnesses examined on behalf of the prosecution that it is irrefutable fact that informant party were harboring anguish because a fine of Rs.25,000/- was imposed by Panchayti for practicing witch crafting upon Putilal Hembrom(deceased) who was alleged to have been involved in exorcism (practicing of witch crafting). It has also come in the evidence adduced on behalf of the 5 Cr. Appeal (D.B.) No. 631 of 2017 prosecution that this appellant had also been alleging that the deceased was practicing evil spirit due to which appellant was under the impression that because of his practicing evil spirit his pregnant wife had died.
16. It is further found admitted fact that in the present case the appellant was initially charged with offences of murder under section 302 of IPC and witch crafting (Black-Magic) under Witch Craft (Practices & Prevention) Act,1999 i.e., murder with motive, but motive could not be proved and he has been convicted for the offence punishable under section 302 of IPC only.
17. In view of the aforesaid facts when the parties are nurturing grudges against each other and motive for committing murder could not be proved when the offence of murder was coupled with motive, then prudently this court proceeds to take extraordinary care and precaution to appraise and analyze the evidences available on record inasmuch as enmity is admitted in the present case which is a double-edged weapon under which the possibility of planting evidence and also false implication are imminent and further the prosecution has failed to prove the charge of motive alleged for committing murder.
18. In the backdrop it is found that the prosecution has been able to examine altogether 08 witnesses who are as under:
1. P.W.1-Dr. Nishit Kumar Jha -He is the doctor who has conducted the postmortem of the dead body of Putilal Hembrom and has proved the postmortem report i.e., marked as Exhibit 1.
2. P.W.2-Pano Hembrom - Daughter of the deceased
3. P.W.3-Lukhi Kisku - Wife of the deceased
4. P.W.4-Pargana Hembrom - Witness of seizure list
5. P.W.5-Mahalal Hembrom - Informant and son of the deceased
6. P.W.6-Kamal Besra - Witness of Inquest Report. He has identified his signature on the same, which is marked as Exhibit-2
7. P.W.7-Rampravesh Kumar -He is the Investigating Officer of this Case.
8. P.W.8-Binay Kumar Gupta - Formal witness, who has produced the material exhibit-I i.e., knife of this case.
19. Apart from oral evidences some documentary evidences have also been exhibited on behalf of the prosecution which are as under:
1. Exhibit-1- Postmortem report of deceased Putilal Hembrom 6 Cr. Appeal (D.B.) No. 631 of 2017
2. Exhibit-2- Signature of Kamal Besara on Inquest Report.
3. Exhibit-3- Fardbeyan
4. Exhibit-3/1- R.O & A.C.
5. Exhibit-3/2- Endorsement
6. Exhibit-4-F.I.R.
7. Exhibit-5- Carbon copy of the Inquest Report
8. Exhibit-6- Memo of Arrest
9. Exhibit-7-Forwarding Letter
10. Exhibit-8- Charge-sheet
20. Prosecution has also produced material exhibit, which is marked as material Exhibit-I (with objection) I. Exhibit-I- Knife of this case
21. On the other hand, no evidence has been adduced on behalf of the accused/appellant in his defence.
22. At the outset it is found that the doctor namely Dr. Nishit Kumar Jha, who had conducted the post mortem on the body of the deceased has been examined as P.W.1, who has found the following injuries on the body of deceased Putilal Hembrom:
i. Over left nipple 2" x 1 ½ " x 1"
ii. Over left side of middle of sternum 4"x1"x3"
iii. Over right sterno clavicular joint 2" x ½"x 1"
iv. Over upper right side of sternum 3"x1"x5"
In his opinion cause of death is brain anoxia due to severe blood loss from small blood vessels after multiple penetrating wounds by impact of sharp point knife in both side of chest. The brain anoxia caused due to above mentioned four injuries on the person of the deceased. The said four injuries have been caused by said knife.
Time since death is lapsed then 24 hours because rigor mortise is present in all four limbs. In his cross examination he has stated that such type of injury may be caused due to fall on sharp pointed rock.
23. P.W.2 Pano Hembrom being the daughter of the deceased is said to be the eye witness. She has stated in her cross examination that at the time of occurrence she was cooking rice in the courtyard inside the house along with her mother. She has categorically stated in para 5 of her examination that there was nobody at that time except her mother P.W.3.
From her version it is clearly inferred that the claim of the P.W.5 (son of the deceased) that he was partly eye witness to the occurrence gets falsified when P.W.2 explicitly and also in unequivocal terms stated that at the time of occurrence only she along with her mother was present in the 7 Cr. Appeal (D.B.) No. 631 of 2017 house.
The statement of this witness, that her deceased father was sitting on the cot when the appellant entered into the house and stabbed her father with a knife and when they raised alarm the appellant fled away leaving knife in his abdomen, appears to be highly improbable when three persons were inside the house including this witness P.W.2, P.W.3 and P.W.5. She has admitted in her cross examination that at the time of occurrence there was dark and on raising alarm several persons had come including Munilal Murmu, Pannalal Murmu but none of them has been examined on behalf of the prosecution to corroborate the involvement of the appellant in the commission of the offence and thus the benefit of doubt goes to the appellant.
24. Another witness examined on behalf of the prosecution is P.W.3 Lukhi Kisku (wife of the deceased) stated that when she was cooking food inside the house along with her daughter P.W.2 then the appellant entered into the house and stabbed the knife in the chest of her husband (the deceased) due to which he died. She stated that she raised alarm and tried to catch him but the appellant fled away leaving knife in his abdomen which appears unlikely to be true. She has stated that on raising hulla only Pargana Hembrom (P.W.4) had reached to the place of occurrence and none else and thus the version of P.W.2 that on raising hulla (alarm) several villagers came becomes untruthful and the veracity of the depositions of these two witnesses P.W.2 and P.W.3 is not reliable as evident from their testimonies that apart from them the villagers had reached to the place of occurrence on raising alarm but none has come forward to depose. Rather one named independent witness, namely, Paragna Hembrom (P.W.4), was the only independent witness who had reached to the place of occurrence on hulla as disclosed by P.W.3, has been examined but he did not support the case of the prosecution.
25. P.W.4 Pargana Hembrom truthfully stated that he did not see the occurrence as to who had killed the deceased.
26. P.W.5 Mahalal Hembrom is said to be son of the deceased and informant of this case. Although he claimed himself to be eye witness but his presence in the house has been categorically denied by the P.W.2 (Sister of this witness) who explicitly stated that at the time of the occurrence only she and her mother P.W.3 was present in the house and nobody was there and as such this witness is also not reliable witness.
He admitted the fact that there were the allegations that his deceased father was involved in practicing evil spirit by which the pregnant 8 Cr. Appeal (D.B.) No. 631 of 2017 wife of the appellant had died and due to this anguish, this appellant had killed his father. He has also admitted this fact that in the village a Panchayati was convened because of exorcism being practiced by the deceased and a fine of Rs.25,000/- was imposed in the Panchayati upon the deceased and therefore the appellant was harboring anguish with the deceased. Further the involvement of the appellant in the commission of the offence gets doubtful from the depositions of the following remaining witnesses.
27. P.W.6 Kamal Besra, whose 'phupha' (uncle) was the deceased Putilal Hembrom, stated that he came to know about the incident from the wife of the deceased i.e., P.W.3 Lukhi Kisku but he did not know the name of the person who had killed the deceased.
28. P.W.7 Rampravesh Kumar is the Investigating Officer of the case. He has proved the fardbeyan, which has been marked as Ext. 3 and he has also proved his signature on the fardbeyan marked as Ext.3/1. He has also proved the endorsement in the fardbeyan and the formal F.I.R., which has been marked as Ext. 3/2 and 4. He had also inspected the place of occurrence and described the boundaries in Para 3 of his deposition. He has also proved the memo of arrest, which has been marked as Ext. 6 and the charge-sheet has been marked as Ext. 8. He has further stated that the knife, which is said to have been used in the commission of offence has been seized and although the material exhibit i.e., the knife has been brought on record by P.W.8 Binay Kumar Gupta as material EXT.I but the Investigating Officer has categorically stated that it was never sent to the Forensic Science Laboratory neither any report from the FSL has been obtained by the prosecution nor any blood stained soil or cot or cloth have ever been seized in order to substantiate the charges leveled against the appellant as is evident from the deposition at Para 12 and 13 of the Investigating Officer (P.W.7).
29. Recapitulating the testimonies of the witnesses examined on behalf of the prosecution, documentary evidences and also the material Ext.- I, it is well founded that the charge against the appellant was framed for the offence punishable under Section 302 of the IPC and under Section 6 of the Prevention of Witch (Daain) Practices Act, 1999 but the learned trial Court has acquitted the appellant for the offence punishable under Section 6 of the Prevention of Witch (Daain) Practices Act, 1999 and convicted under Section 302 of the IPC, although it has come in the evidence, particularly by P.W.2 Pano Hembrom and P.W.5 Mahalal Hembrom that the appellant had killed the deceased by branding him of practicing evil spirit but this charge has not 9 Cr. Appeal (D.B.) No. 631 of 2017 been proved and as such the genesis of the prosecution case that the appellant has killed the deceased out of anguish because the deceased by practicing evil spirit had killed the pregnant wife of the appellant has not been proved.
30. Further, it is also found from the deposition of P.W.5 Mahalal Hembrom (son of the deceased and informant of the case) that he was not the eye witness and he has admitted categorically in para 4 that he had not seen the occurrence and whatever he has stated in his deposition was only after getting the information from his family members including his mother and his sister. It has further come in the evidence that at the time of occurrence it was dark and P.W.2 Pano Hembrom and P.W.3 Lukhi Kisku are highly interested witnesses and their evidences and deposition become doubtful in view of the fact that they were harboring grudges and enmity against the appellant as discussed elaborately in the foregoing paragraphs. And hence taking into consideration the testimonies of P.W.2, P.W.3, P.W.4 and P.W.5 in a holistic manner it is well founded that benefit of doubt goes to the appellant because none of the witnesses including P.W.2, P.W.3 and P.W. 5 are reliable and trustworthy and their versions do not inspire confidence.
31. It has also come into the evidence that only one witness had come after raising alarm who was an independent witness i.e., P.W.4 Pargana Hembrom but he did not disclose the name of the appellant and further it is found that the learned Trial Court has acquitted the appellant for the charges leveled against him for the offence punishable under Section 6 of the Prevention of Witch (Daain) Practices Act, 1999 and thus the entire motive for killing the deceased does not exist when in the present case all the witnesses including P.W.2 ; P.W.3 and P.W.5 have uniformly and consistently stated that the appellant had killed the deceased with a clear cut motive because he was under impression that the deceased was practicing witchcraft by which the pregnant wife of the appellant was killed.
Murder is not a normal incident but it is very specific offence and generally when it is committed in such type of village locality then normally people tried to rush towards the incident after hearing hue and cry and in this order usually they see some part of the incident such as, seeing the accused running away from the scene of evidence but in this case only one important independent witness P.W.4 is said have arrived at the place of occurrence immediately on hearing alarm (hulla) and he stated categorically that he did know as to who had killed the deceased. Apart from this, the witnesses PW- 2, PW-3 and PW-5 who are the related witness and there is proved enmity 10 Cr. Appeal (D.B.) No. 631 of 2017 between appellant and deceased family and hence false implication cannot be ruled out.
32. Therefore, under the circumstances of this case the benefit of doubt goes to the appellant.
33. As a result, it is found that the learned Trial Court did not appreciate the evidences adduced on behalf of the prosecution in the right perspective in view of the admitted fact that both the parties were on inimical terms.
34. Under the facts and circumstances of the case, the impugned judgment of conviction and order of sentence warrant interference.
35. Accordingly, the impugned judgment of conviction dated 04.02.2017 and order of sentence dated 06.02.2017 passed in Sessions Trial No. 74 of 2012 arising out of Jarmundi P.S. Case No. 217 of 2011, G.R. No 1560 of 2011 by the court of Learned District & Additional Sessions Judge- III, Dumka is set aside.
36. The appellant is acquitted from the charge leveled against him. Since the appellant is in custody, he is directed to be released forthwith, if not wanted in any other case.
37. Consequently, this appeal is allowed.
38. Let the LCR be sent to the learned Court below along with the copy of this judgment.
I agree (Sujit Narayan Prasad, J.)
(Sujit Narayan Prasad, J.) (Navneet Kumar, J.)
Jharkhand High Court, Ranchi
Date 5th October, 2023
A.Mohanty/ A.F.R.