Jharkhand High Court
Mangat Murmu vs The State Of Jharkhand on 2 May, 2018
Equivalent citations: 2018 (3) AJR 426
Author: H.C. Mishra
Bench: B.B. Mangalmurti, H.C. Mishra
Criminal Appeal (D.B.) No. 397 of 2008
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 397 of 2008
(Against the Judgment of conviction dated 6th March, 2008, and Order of sentence dated
7th March, 2008, passed by the 1st Additional Sessions Judge, Pakur, in S.C. No. 101
of 2007).
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Mangat Murmu ..... ... Appellant
Versus
The State of Jharkhand ..... ... Respondent
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For the Appellant : Mr. Ashish Verma, Advocate.
For the Respondent-State : Mr. Krishna Shankar, A.P.P.
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PRESENT : HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE B.B. MANGALMURTI
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By Court.:- Heard learned counsel for the appellant and learned counsel for the
State.
2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 6th March, 2008, and Order of sentence dated 7th March, 2008, passed by the learned 1st Additional Sessions Judge, Pakur, in S.C. No. 101 of 2007, whereby, the appellant has been found guilty and convicted for the offences under Sections 148, 452, 380 and 302 / 34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the offence under Section 302 / 34 of the Indian Penal Code, simple imprisonment for two years for the offence under Section 148 of the Indian Penal Code, simple imprisonment for five years for the offence under Section 452 of the Indian Penal Code and simple imprisonment for two years for the offence under Section 380 of the Indian Penal Code. He was further directed to pay Rs.10, 000/- as compensation to the wife of the deceased.
3. The case relates to double murder, and the prosecution case was instituted on the basis of fardbeyan of the informant Sanjhali Murmu, the wife of one of the deceased Barka Hembrom, recorded on 23.12.2006, at about 12.00 P.M., at her village Karmatand, P.S. Littipara, District Pakur. She has stated that in the previous night all the family members had gone to sleep and she was also sleeping with her husband on the Southern verandah of her house. At about 11:00 P.M. to 12:00 A.M. in the night, five to six persons entered into the house, they lifted the veil by which the informant Criminal Appeal (D.B.) No. 397 of 2008 -2- and her husband were covered, and in the light of the torch, one of them gave the order to kill, whereupon, her husband woke up and tried to flee away. She identified in the light of the torch and in the light of the earthen lamp which was burning there, that one of them was Mangat Murmu, the appellant, who had given the orders to kill upon identifying her husband. The other unknown persons who were along with Mangat Murmu, started chasing her husband with knives in their hands and in the Northern verandah, they apprehended her husband and assaulted him by knife on his chest, stomach and back, due to which he died at the spot. In the meantime, her father-in-law Karan Hembrom @ Guchu Hembrom raised the alarm, but he was also assaulted by the accused persons by knife on his neck and stomach causing serious injuries to him. The accused persons also started searching her elder brother-in-law Lukhiram Hembrom, but upon hearing the noise, her brother-in-law fled away from the house to save himself. While going away, the accused persons also took away a box from the house containing the silver ornaments about 1 k.g. and Rs.12,000/- cash, apart from the clothes and other articles. She has stated that the occurrence had taken place due to the land dispute between the parties and the accused wanted that the informant's family should leave the land as her grand father-in-law was a Gharjamai in the house and since then they were living in that house. On the basis of the fardbeyan of the informant, Littipara P.S. Case No. 58 of 2006, corresponding to G.R. No. 774 of 2006, was instituted for the offences under Sections 302, 307, 326, 323, 450 and 380 / 34 of the Indian Penal Code, and investigation was taken up. It may be stated that the father-in-law of the informant also died on the next day, while undergoing treatment in the hospital. After completing the investigation, the police submitted the charge-sheet in the case against the sole appellant.
4. After commitment of the case to the Court of Session, charge was framed against the accused for the offences under Sections 148, 302 / 149, 452 and 380 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, ten witnesses have been examined by the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examinations on the dead bodies of both the deceased. Out of the material witnesses examined, Criminal Appeal (D.B.) No. 397 of 2008 -3- P.W.-8 Hopanmai Tudu has turned hostile and has not supported the prosecution case. It may also be stated that as the witnesses were not conversant with the Hindi language and they were knowing Santhali language only, their evidences were recorded with the help of a translator.
5. P.W.-4 Sanjhali Murmu is the informant in the case and the wife of one of the deceased. She has supported the prosecution case stating that the murder of her husband was committed about six and half months ago. The occurrence had taken place at about 12:00 A.M. in the night of a Friday, while all of them were sleeping in the house. She was also sleeping with her husband. At about 12:00 A.M. in the night, Mangat entered the house along with eight to nine persons and they were having torch and knives in their hands. He entered the house pulling down the door, and he lifted the veil by which she and her husband had covered themselves, and pointing towards her husband, Mangat gave the orders to kill him. She had identified Mangat in the light of the earthen lamp burning in the room. Her husband woke up and tried to flee away, but he was chased and on the verandah he was apprehended and assaulted by the accused persons by knife causing his death at the spot. Thereafter, the accused persons came and took her nose pin and bangles and they also took away a box from the house containing clothes and cash Rs.12,000/- and silver ornaments weighing about 1 k.g. At the time of occurrence, her father-in-law had raised the alarm and he was also assaulted by the accused persons by knife causing injuries to him, who died on the next day in course of treatment at Sadar Hospital, Pakur. After committing the offence, the accused persons fled away. She has stated that the occurrence had taken place due to the land dispute between them. She has also stated that her fardbeyan was recorded by the police on which she had put her thumb impression. She has identified the accused in the Court. In her cross-examination, this witness has stated that the accused had forcibly dispossessed her from the land and the dispute was going on from prior to the occurrence, and she has denied the suggestion that after Mangat was jailed, she has possessed the land of the accused. She has also stated that she was sleeping in the southern room of her house and the accused persons had broken the door of the house. She has also stated that all the accused persons were having torch and they had lighted the torch. She has also stated about the earthen lamp burning in the Criminal Appeal (D.B.) No. 397 of 2008 -4- house. She has stated that her husband was not assaulted in the same room, rather he had fled towards the Northern room, and the accused persons had also chased him to that room. She has denied the suggestion to have falsely implicated the accused due to previous enmity and she has also denied the suggestion that they had dispossessed the accused of his land and have falsely implicated him.
6. P.W.-1 Marangmayi Soren is the sister-in-law (Gotni) of the informant. She has also supported the prosecution case, stating that the occurrence had taken place on a Friday night about six months ago, and she was sleeping in the house along with her husband. There was a noise and when she came out, she saw that Mangat and other eight persons were searching her husband. They were armed with knife and they had also torch in their hands. Her husband fled away from the house. The accused persons had assaulted her brother-in-law by knife causing his death at the spot, and they had also assaulted her father-in-law by knife causing injuries upon him, who died in course of treatment in Pakur hospital. This witness has also stated that the accused persons took away a box containing ornaments and cash and has also deposed that there was land dispute with the accused Mangat. She has identified the accused in the Court. In her cross-examination, this witness has stated that the accused is her agnate. She has also stated that informant Sanjhali is her Gotni, and they live in the same house, but in different rooms. She has denied the suggestion to have falsely implicated the accused.
7. P.W.-2 Lukhiram Hembram is the elder brother-in-law of the informant. He has also supported the prosecution case, stating that he was sleeping in the house in the night along with his wife. Upon hearing the noise, he fled away from the house. His brother was shouting and he saw Mangat and eight to nine persons along with him, who were armed with knife and were having torch with them. He remained outside the house for the whole night, and when he returned back in the morning, he saw his brother Barka Hembrom dead. His father was also injured by the accused persons, who was taken to the hospital, and he died in the hospital in course of treatment. He has stated that the police had visited the village and had prepared the inquest-report of the dead body of his brother on which he had put his thump impression. He has identified the accused in the Court. In his Criminal Appeal (D.B.) No. 397 of 2008 -5- cross-examination, this witness has stated that the grandfather of Mangat and the grandmother of this witness were brother and sister, but they were not the own brother and sister. The grandfather of Mangat was married at Mohanpur village and Mangat used to live in that village, where he has a house. This witness was living on the land of his grandmother at village Karmatand, in which Mangat used to demand share, and as such, there was land dispute between them. He has also denied the suggestion of giving false evidence.
8. P.W.-5 Talamai Marandi is the mother-in-law of the informant, and she is not the eyewitness to the occurrence, as she was not present in the village. She had gone to her relative's place and when she returned back, she was informed about the occurrence by her daughter, that her husband was injured by the accused persons and her son was killed. She has stated that when she had returned back, her husband was still alive, and he died in hospital. She has identified the accused in the Court. There is nothing of much importance in her cross-examination.
9. P.W.-6 Hopanmai Hembrom is the daughter of the deceased Karan Hemborm. Though she has supported the case as an eyewitness to the occurrence, but from the attention drawn towards her statements in her cross-examination and from the evidence of the I.O., it appears that she was not the eyewitness to the occurrence, as she was not present in the village and as such, her evidence is not being discussed in detail.
10. P.W.-7 Pargana Hansda is the son-in-law of the deceased Karan Hembrom and he has only supported the prosecution case to the extent that the occurrence had taken place in which Barka Hembrom was murdered, and Karan Hembrom was injured, who died in the hospital. He is a witness to the inquest-report of the dead body of Karan Hembrom and has stated that he had put his thumb impression on the inquest-report.
11. P.W.-3 Dr. Sanjay Kumar Jha had conducted the post-mortem examinations on both the dead bodies of both the deceased on 24.12.2006. On the dead body of Barka Hembrom he had found the following injuries:-
External injury:-
(i) Stab injury over left side chest length 1" x ½" x 8" depth.
(ii) Stab injury over left side of abdomen length 1" width ½" depth 4".
(iii) Stab injury over left side scapular region length 1" width ¼" depth 2".
(iv) Stab injury over left side of loin region 1" x ¼" x 2".
Criminal Appeal (D.B.) No. 397 of 2008 -6- Internal injuries on dissection:-
(i) Heart - ruptured and blood clot present in all four chambers.
(ii) Lungs - both lungs ruptured. Clot present on surface.
(iii) Spleen - ruptured, clotted.
(iv) Stomach - Liquid material present.
(v) Brain - congested.
(vi) Urinary bladder - found empty.
(vii) Intestine - fluid and gases.
He has stated that the injuries were sufficient to cause death and the cause of death was hemorrhage and shock due to the rupture of vital organs i.e., lungs, heart and spleen. He has also stated that the injuries were caused by heavy, hard and sharp penetrating weapon, such as chhura. He has identified the post-mortem report of Barka Hembrom to be in his pen and signature, which was marked Ext.1.
On the same day he had conducted the post-mortem examination on the dead body of Karan Hembrom also, and had found the following injuries:-
External Injury:-
(i) A cut injury over neck. Size-length about 4" width ½" depth ½".
(ii) Stab injury of lower part of abdomen length 1" x ¼" x 6".
On dissection
(i) Ribs- fractured two- two both sides.
(i) Heart - crushed and blood clot present in all four chambers.
(iii) Spleen - perforated and blood clot present in it.
(iv) Stomach -Liquid material present.
(v) Intestine - full with liquid and gases.
(vi) Brain - congested.
(vii) Bladder - empty He has stated that the injuries were sufficient to cause the death and the cause of death was hemorrhage and shock due to rupture of vital organs, like heart and spleen, caused by hard, heavy and sharp cutting penetrating weapon like dagger. He has identified the post-mortem report of Karan Hembrom to be in his pen and signature, which was marked Ext. 1/1.
12. P.W.-9 is Hari Kishore Mandal, the I.O. of the case. This witness has stated that he was posted at Littipara Police Station on 23.12.2006, on which date he got an information that one person was murdered in Karmatand village. He made the sanha entry and proceeded towards the place of occurrence with an A.S.I. and the police party. At the place of occurrence, he recorded the fardbeyan of the informant Sanjhali Murmu, the wife of the deceased Barka Hembrom, and he also prepared the inquest report of the dead body of Barka Hembrom. He has identified the inquest Criminal Appeal (D.B.) No. 397 of 2008 -7- report, which was marked Ext.2. He recorded the statement of the injured Karan Hembrom and also recorded the statements of the other witnesses. He inspected the place of occurrence and he has given the details of the place of occurrence, which is the house of the informant, where he had found the dead body in the pool of blood. He sent the injured Karan Hembrom to Sadar Hospital, Pakur, and the dead body of the deceased for post-mortem examination. He has stated that the injured Karan Hembrom died in Sadar Hospital, Pakur, and post-mortem examination of his dead body was also done. After completing the investigation, he submitted the charge-sheet in the case. In his cross-examination, this witness has stated that Sanjhali Murmu had stated before him that she had identified the accused Mangat Murmu in the light of the torch and also in the light of the earthen lamp, but the earthen lamp was not produced before him. He did not collect the blood stained soil from the place of occurrence. He has also stated that he searched the house of the accused, but he did not find any stolen article. He has further stated that he had not seen any broken door at the place of occurrence. He has denied the suggestion of making faulty investigation.
13. P.W.-10 is Ashok Kumar, the Police Officer, who had prepared the inquest-report of the dead body of Karan Hembrom, which he has proved and the same was marked Ext.3. He has also proved the fardbeyan of the informant, which was marked Ext.4.
14. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. No defence witness was examined in the case. On the basis of the evidence on record, the sole appellant has been found guilty, convicted and sentenced by the Trial Court below, as aforesaid.
15. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, in as much as, the prosecution case is not supported by any independent witness, rather, it is supported only by the inmates of the house and close relatives of both the deceased, who are highly interested witnesses, and the false implication of the accused by them, due to admitted enmity for the land dispute, cannot be ruled out. Learned counsel further submitted that there is no allegation Criminal Appeal (D.B.) No. 397 of 2008 -8- against this appellant to have assaulted the deceased, rather, it is alleged that he had only given the order for assaulting the deceased and it is also not clear from the evidence as to whom the appellant intended to be killed, as at that time, both the husband and wife were sleeping together. Learned counsel accordingly, submitted that no offence can be said to be made out with the help of Section 34 of the Indian Penal Code, as it cannot be said that the appellant was sharing the common intention to commit the murder of both the deceased. Learned counsel further submitted that the conviction of the appellant for the offence under Section 380 of the Indian Penal Code, is also bad in the eyes of law, as there is no recovery of any stolen article from the house of the appellant, though his house was surched by the police.
16. In support of his contention that the appellant could not be convicted for the offence under Section 302 of the Indian Penal Code with the help of Section 34 of the I.P.C., learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court of India in Mewa Ram and Another Vs. State of Rajasthan, reported in (2017) 11 SCC 272. In the said case, it was alleged that one of the accused uttered 'to kill the bastard' and the other accused fired the gun at one Deputy Singh. It was not clear whether the accused who had given the order to kill, intended to kill Deputy Singh or the other person present there. The said accused who had given the order to kill was also found injured in the occurrence and he had taken the defence that he was attacked by the deceased. In the backdrop of these facts, the law was laid down by the Apex Court as follows :-
"13. It is noticed that there is fundamental difference between common intention and joint intention. Section 34 IPC talks of common intention which is an intention to commit the crime actually committed and each accused person can be convicted of that crime, only if he has participated in that common intention and to fasten with the same liability as that of the main accused who was perpetrator of the crime.
14. The ingredients of common intention to be proved are : (i) there is a common intention on the part of more than one person to commit a particular crime; and (ii) the crime was actually committed by them in furtherance of that common intention. Essence of liability under Section 34 is simultaneous Criminal Appeal (D.B.) No. 397 of 2008 -9- conscious mind of person participating in the criminal action to bring about a particular result."
Learned counsel has further placed reliance upon the decision of the Hon'ble Supreme Court in Balu and Another Vs. State (UT of Pondicherry), reported in (2016) 15 SCC 471, wherein the Apex Court has placed reliance upon its earlier decision in Ramesh Singh Vs. State of A.P. reported in (2004) 11 SCC 305, in which law was laid down as follows :-
"13. ... ... ... Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from the nature of injury caused by one or some of them. ... ... ..."
In this connection, learned counsel has also placed reliance upon a decision of the Apex Court in Arjun Pawar Vs. State of Maharashtra and Another, reported in (2016) 16 SCC 727.
17. Placing reliance on these decisions, learned counsel has submitted that no offence can be said to be made out against the sole appellant with the help of Section 34 of the Indian Penal Code, and accordingly, it was a fit case in which the appellant ought to have been acquitted of the charges.
18. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution case is fully supported by P.W.-4 Sanjhali Murmu, the wife of one of the deceased, as eye witness to the occurrence as also P.W.-1 Marangmayi Soren, who is the sister-in-law of the deceased and she was also present in the house. The other witness P.W.-2 Lukhiram Hembrom has also supported the prosecution case stating that upon hearing the noise, and seeing the accused, he fled away from the house and when he returned back, he saw his brother dead and the father injured, and the accused persons had also committed the theft in the house. Learned counsel submitted that the ocular evidence of these witnesses is fully corroborated by medical evidence of P.W.-3 Dr. Sanjay Kumar Jha Criminal Appeal (D.B.) No. 397 of 2008
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and the post-mortem reports of both the deceased proved by him as Exts.1 and 1/1, which clearly show that sharp cutting injuries were found on the vital parts of the dead bodies of both the deceased, which were sufficient to cause death in the ordinary course of nature. Learned counsel submitted that there is direct and specific allegation against the accused Mangat Murmu that he had entered the house along with 7 to 8 unknown persons, who were armed with knife and on the order given by Mangat Murmu, the husband of the informant Sanjhali Murmu was assaulted to death at the spot, and when alarm was raised by his father, he was also assaulted by knife causing serious injuries on him, due to which, he died in the hospital in course of treatment. Learned counsel thus, submitted that it is apparent from the conduct of the appellant that he was sharing the common intention to commit the offence and it was on his orders that the offence was committed. His intention to commit the offence is apparent from the fact that it was this appellant, who was having the enmity with the family of the deceased. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below.
19. Having heard learned counsels for both the sides and upon going through the record, we find that the case is fully supported by P.W.-4 Sanjhali Murmu, the informant and wife of one of the deceased, P.W.-1 Marangmayi Soren and P.W.-2 Lukhiram Soren, who are all inmates of the house. P.W.-5 Talamai Marandi was not present in the house as she had gone to her relative's place, and when she returned on the next day, she was informed about the murder of her son, and her husband was also injured, who subsequently died in course of treatment. The evidence of P.W.-4 Sanjhali Murmu, who is the eye witness to the entire occurrence, clearly shows that this appellant had entered the house along with several unknown persons and they were armed with knife. It was this appellant who lifted the veil by which the informant and her husband were covered while sleeping, and identifying the husband of the informant, he gave the orders to kill him, which was followed by the unknown persons accompanying him. The husband of the informant was chased in the house and he was apprehended in the verandah and was assaulted to death. When the father of the deceased raised the alarm, he was also assaulted by the Criminal Appeal (D.B.) No. 397 of 2008
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accused persons by knife causing sharp cutting injuries, who succumbed to death in course of treatment in the hospital. The evidence goes to show that the accused persons were searching the elder brother-in-law of the informant also, who, upon hearing the noise, fled away from the house to save himself. The manner of occurrence clearly shows that this appellant was having the animosity due to the land dispute and he was searching the male members of the house to kill them and he succeeded in getting two male members of the house eliminated, and one of them fortunately managed to escape. We are not very much impressed with the submission of learned counsel for the appellant that the prosecution case is supported only by the inmates of the house, who are the interested witnesses, and the false implication of the accused due to the admitted enmity, cannot be ruled out. The fact remains that the occurrence had taken place in the dead night in the house and there was no occasion of the presence of any independent witness. All the inmates have fully supported the prosecution case and they are the natural witnesses to the occurrence. The manner of occurrence clearly shows that the accused was having animosity due to the land dispute and he intended to eliminate the male members of the house. The submission of the learned counsel for the appellant that appellant could not be convicted with the help of Section 34 of the Indian Penal Code, is only fit to be rejected. The law as laid down in Ramesh Singh's case (Supra), relied upon by the Supreme Court in Balu's case (Supra), clearly shows that common intention essentially being a state of mind is very difficult to be proved by direct evidence, and the inference has to be gathered from the manner in which the accused arrived at the scene and mounted the attack. The manner in which the appellant had entered the house of the deceased and upon identifying the deceased, he had given the orders to kill him, which was followed by the persons accompanying him, clearly shows that he was intending to commit the murder of the deceased and actually the murder of two persons were committed in furtherance of the common intention of the accused persons, including that of this appellant. The fact that the I.O. has stated in his cross-examination that he did not find any broken door in the house, is not at all fatal to the prosecution case, as the I.O. had found dead body of one of the deceased, and had found the other deceased in the injured condition, in the same house. We are of the Criminal Appeal (D.B.) No. 397 of 2008
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considered view that on the basis of the evidence on record, the prosecution has been able to prove beyond all reasonable doubts that the appellant Mangat Murmu has committed the offences of rioting, armed with deadly weapons, and also of murder in furtherance of the common intention which he was also sharing, after committing house-trespass in the house of the informant, having made preparation to commit those offences, and there is no illegality in convicting and sentencing the appellant for the offences under Sections 148, 452 and 302 / 34 of the Indian Penal Code.
20. However, the fact remains that though the witnesses have stated that the accused persons had also committed theft in the house, but there is no recovery of any stolen article from the house of the appellant, as is apparent from the evidence of I.O., P.W.-9 Hari Kishore Mandal. As such, the conviction and sentence of the appellant for the offence under Section 380 of the Indian Penal code cannot be sustained in the eyes of law.
21. For the foregoing discussions, the impugned Judgment of conviction dated 6th March, 2008 and Order of sentence dated 7th March, 2008, passed by the learned 1st Additional Sessions Judge, Pakur, in S.C. No. 101 of 2007, so far as the conviction and sentence of the appellant Mangat Murmu for the offences under Sections 148, 452 and 302 / 34 of the Indian Penal Code, are concerned, are hereby, affirmed. As the Trial Court below is silent about whether the sentences shall run concurrently or consecutively, we direct that all the sentences shall run concurrently. The conviction and sentence of the appellant for the offence under Section 380 of the Indian Penal Code, are hereby, set aside. The appellant is already in custody undergoing the sentence.
22. This appeal is accordingly, dismissed with modification as above. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
(H.C. Mishra, J.) (B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi Dated, the 2nd May, 2018.
Birendra / R.P./NAFR