Jharkhand High Court
Thele Murmu vs The State Of Jharkhand on 31 March, 2022
Author: Navneet Kumar
Bench: Navneet Kumar
1
Cr. Appeal (SJ) No. 358 of 2005
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Appeal (SJ) No. 358 of 2005
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(Against the judgment of conviction and order of sentence dated 04.03.2005 passed by the learned 4th Additional Sessions Judge, (F.TC. No.1) Godda in Sessions Case No. 27 of 2004/03 of 2001, in connection with Boarijora P.S. Case No. 78 of 1994, G.R. No. 841 of 1994, Godda, Jharkhand.)
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1. Thele Murmu
2. Thepi Murmu ... Appellants Versus The State of Jharkhand ... Respondent
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CORAM: HON'B LE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Mr. Peeyush Krishna Choudhary, Advocate
For Respondent : Mr. Ashok Kumar, A.P.P.
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HON'BLE MR. JUSTICE NAVNEET KUMAR
Order No. 07 : Dated: 31st March, 2022
1. The appeal has been preferred by the appellants against the judgment of conviction and order of sentence dated 04.03.2005 passed by the 4th Addl. Sessions Judge (F.T.C. No. 1), Godda in Sessions Case No. 27 of 2004/03 of 2001 arising out of Boarijora P.S. case No. 78 of 1994, G.R. No. 841 of 1994 whereby and where under all the aforesaid appellants have been acquitted for the offence under sections- 144, 323, 429, 379, 380/34, 427 of IPC, but, all of them were convicted for the offence punishable under section 448 of IPC and sentenced to undergo Rigorous Imprisonment for one year and further the convicted appellant no. 1 Chakta Murmu (since dead pending this appeal) u/s 436 of IPC and sentenced him to undergo Rigorous Imprisonment for five years and further directed all these sentences shall run concurrently.
2. The prosecution story was arising out of Fardbeyan of Informant (PW-1) Darogi Besara which is recorded by A.S.I., P.P. Singh on 09.09.1994 at the house of Darogi Besara in Gorodih village. The prosecution story is as under:-
2 Cr. Appeal (SJ) No. 358 of 2005On dated 08.09.1994 accused Gajo Murmu, Chakta Murmu, Thepi Murmu, Hauji Murmu, Thele Murmu, Musuch Hembrum, Sanjhali Murmu, Tursi Hembrum, Garbhu Hembrum, Dabag Hembrum, Shankhay Tudu lashed with arrow, bow, Barcha, Bhala (spear) came at the house of the informant playing Dholak and the accused appellant Thepi Murmu told the informant to go out from his house otherwise they would kill him. The informant further stated that he went out from his house with his family then all the accused persons entered in his house and took away one maund rice/ 20 Bhar silver chain, one silver chain of 10 Bhar, one silver bangle of 16 Bhar, Gold Karnphul of 4 anna Bhar, one golden putki of 2 Anna bhar, one H.M.T. Kohinoor Watch, one tin Box and also ornaments and they also broke the thatch of Bedan Besra and also took away all the households articles from his house and accused appellant Chakta Murmu set the house of informant on fire by using kerosene oil on clothes binding on bamboo stick. The informant further stated that the accused persons also broke the Banana tree and Sahjan plant and they took away a pig after killing. This occurrence was seen by the villagers namely, Ramai Tudu, Rajendra Besra, Marangmai Murmu, Sitaram Tudu etc. When the accused persons fled away then all the villagers extinguished the fire. The informant further stated that the cause of occurrence was that his son was irrigating his field taking water from a pond then accused Gajel Murmu did not allow him and also beat with one Lathi. The litigation between both the parties was also going on much prior to this occurrence.
3. On the basis of the aforesaid fardbeyan, a formal FIR was lodged, against altogether eleven accused persons and the case was registered under sections 379, 427, 429, 436, 323, 144, 448, 380 of IPC against the accused persons and investigation was taken up. After investigation, the police submitted charge sheet against all the accused persons namely, Chakta Murmu, Thele Murmu, Thepi Murmu, Tursi Hembram, Garbhu Hembram, Shankhay Tudu along with others who have been declared absconder in this case, on the basis of which, learned C.J.M, Godda, had taken cognizance of the offence and the case was committed to the Court of Sessions. The case 3 Cr. Appeal (SJ) No. 358 of 2005 of the accused Chakta Murmu, Thepi Murmu and Thele Murmu has been separated from the other accused persons as other accused persons have been declared absconder. Therefore, charges have been framed on 26.03.2003 by learned Additional Sessions Judge III, Godda against the accused Chakta Murmu, Thepi Murmu and Thele Murmu u/s 144, 323, 436/34, 448, 429, 379, 380/34, 427 of I.P.C. and explained in Hindi to the accused persons to which they pleaded not guilty and claimed to be tried. After the conclusion of trial, learned trial court passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal.
4. It appears form the record that during the pending this appeal the appellant no. 1 Chakta Murmu had expired as evident from the counter affidavit filed on behalf of the State. Form the perusal of the said affidavit, it appears that the appellant no. 1 Chakta Murmu had died about 1 years ago.
5. The learned counsel appearing for the appellants submitted that no close or near relative of the deceased appellant no. 1 Chakta Murmu wanted to continue with this appeal and, therefore, it is urged on his behalf to abate this appeal with respect to the deceased appellant Chakta Murmu. Accordingly, this appeal gets abated with respect to the deceased appellant no. 1 Chakta Murmu and his name is directed to be deleted from the cause tittle of memo of appeal. Now the surviving appellant no. 2 Thele Murmu and 3 Thepi Murmu has been renumbered as appellant no. 1 and 2.
6. Heard Mr. Peeyush Krishna Choudhary, the learned counsel for the appellants and Mr. Ashok Kumar, learned A.P.P. appearing for the State.
Arguments on behalf of the appellants:-
7. Assailing the impugned judgment of conviction and order of sentence, the learned counsel appearing on behalf of the appellants contended that the learned trial court has failed to take into consideration the entire materials available on record ignoring the fact that there are several contradictions in the material witnesses which falsified the story of the prosecution. It has also been pointed out that 4 Cr. Appeal (SJ) No. 358 of 2005 the learned trial court has not considered the fact that the alleged occurrence has been witnessed by the neighbors of the informant, but, none of them has been made prosecution witness and as such the learned court below has not taken into consideration that all the witnesses are highly interested, related and partisan witnesses and the prosecution has failed to produce a single independent witness. It has also not been taken into consideration by the Court below that the prosecution has not examined the I.O. of this case due to which the place of occurrence, the date, time mode and manner of the occurrence could not be proved. It has also not been taken into consideration by the court below that the previous enmity between the parties due to a long standing land dispute between them. There is no seizure of the materials of household articles. Therefore, the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside.
Arguments on behalf of the State:-
8. On the other hand, the learned A.P.P. has vehemently opposed the contentions raised on behalf of the appellants and argued that the learned trial court has rightly appreciated the legal evidences available on record. There is no cogent ground to interfere in the impugned judgment of conviction and order of sentence and this appeal is fit to be dismissed being devoid of merit.
APPRAISALS & FINDINGS
9. Having heard the learned counsel for the parties and perused the record of the case including the Lower court records.
10. In view of the aforesaid discussions, it is found that it is admitted case of the prosecution that there has been a dispute between both the parties for the landed properties. In order to substantiate the charges leveled against these two appellants the prosecution has been able to examine these six witnesses P.W.1 Darogi Besra, P.W. 2 Surendra Besra, P.W. 3- Rajendra Beshra, P.W. 4 Pakku Hembrum, P.W. 5 is Marangamai Murmu, and P.W. 6 Talamai Murmu.
11. P.W. 1 Darogi Besra, who is the informant of this case and he stated in his deposition at para 1 that it was the co-appellant Chakta 5 Cr. Appeal (SJ) No. 358 of 2005 Murmu (since deceased) has burnt the house along with the appellants. This witness has also named the appellant Thepi Murmu, who had accompanied the deceased appellant Chakta Murmu.
12. P.W. 2 Surendra Besra examined on behalf of the prosecution has also named the accused -appellants along with the other accused persons. He has identified the accused appellant Thele Murmu along with the deceased accused-appellant Chakta Murmu who had set the house on fire with kerosene oil.
13. P.W. 3. Rajendra Besra has specifically and pointedly took the name of these two appellants namely Thepi Murmu and Thele Murmu, who have been accompanying with the accused appellant (deceased appellant) Chakta Murmu who had set the house on fire. Similarly, P.W. 4 Pakku Hembram had also named these two appellants Thele Murmu and Thepi Murmu along with the other accused persons who has come to the house and after making the musical sound of the Dholak took away all the household articles by setting the house on fire.
14. P.W.5 - Marangmai Murmu also stated that these two appellants have accompanied with the deceased appellant Chakta Murmu, who had set the house on fire and took away their belongings. P.W. 6 Talamai Murmu in her examination in chief has also named these two appellants who had been accompanied the deceased appellant Chaka Murmu.
15. In the backdrop on appraisal of evidences, it is well founded that the testimonies of the aforesaid witnesses examined on behalf of the prosecution including P.W.1 Darogi Besra, P.W. 2 Surendra Besra, P.W. 3 - Rajendra Beshra, P.W. 4 Pakku Hembrum, P.W. 5 Marangamai Murmu, P.W. 6 Talamai Murmu consistently and uniformly substantiated the facts that these two appellants Thele Murmu and Thepi Murmu were involved in the commission of the offence and, therefore, this Court does not find any illegality in the appreciation of the evidences by the learned court below and the learned court below has rightly appreciated the evidence and found 6 Cr. Appeal (SJ) No. 358 of 2005 these two appellants guilty for the offence punishable under section 448 of the Indian Penal Code. Further, it is found that in order to take the defence of enmity and the false implication of the appellants by the informant people, the accused appellants have also adduced some documentary evidences including Exhibit A: certified copy of the order dated 27.08.1997, Exhibit -B: order sheet of Sub Judge-I, Godda of Title Suit No. 107/2002, (Exhibit X/A)certified copy of the Complaint Petition in T.R. No. 57/1997, (Exhibit : X/B) plaint of the Title Suit No. 107/02. It is well established proposition of law that the defence of enmity is a double edged weapon and the possibility of false implication and also the possibility of committing the offence is imminent and in the present case when the witnesses examined on behalf of the prosecution particularly P.W. 3 Rajendra Beshra, P.W. 4 Pakku Hembram and P.W. 6 Talamai Murmu have consistently and uniformly deposed about the role of these two appellants in the offence of committing the house-trespass in the house of the informant and, therefore, this Court does not find any illegality in the impugned judgment of conviction passed by the learned court below against these two appellants. This Court upholds the guilt and conviction of both the appellants for the offence punishable under Section 448 of the I.P.C. So far as the sentence of the appellants is concerned it is observed that occurrence has taken place as far as back in the year 1994 and these two appellants have been suffering the trauma and misery of the criminal prosecution for a long period of time about more than 25 years and further it is also found that there is no criminal history against these two appellants available on record. It is also found from the record that these two appellants have already remained in jail for about more than three months and appellant no. 1 Thele Murmu is of the age of 50 yrs. and the appellant no.2 Thepi Murmu is of the age of 65 ys.
16. Having taken into consideration these mitigating factors of awarding the sentence, this Court reduces the sentence awarded by the learned court below to the appellants and accordingly, this Court 7 Cr. Appeal (SJ) No. 358 of 2005 sentenced both these appellants for a term of the period already undergone by them by setting aside the impugned order of sentence passed by the learned court below in the Sessions Case No. 27 of 2004/03 of 2001 against these two appellants for the offence punishable under Section 448 of the I.P.C.
17. As a consequence, this appeal is dismissed as above.
18. Since both the appellants are on bail they are discharged from the liabilities of their bail bonds in this case.
19. Let the LCR be sent back to the concerned court below with a copy of this judgment.
(Navneet Kumar, J.) Jharkhand High Court, Ranchi, Dated the 31.03.2022/NAFR MM/-