Jharkhand High Court
Bukai Murmu vs The State Of Jharkhand on 19 February, 2025
Author: Navneet Kumar
Bench: Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.1294 of 2007
(Against the Judgment of Conviction dated 11.07.2007 and order of sentence dated
13.07.2007 passed by learned Additional Sessions Judge cum Fast Track Court-I,
Ghatsila, in S.T. No.356 of 2004 in connection with Dumeria P.S. Case No.28 of
2003, corresponding to G.R. Case No.538 of 2003 East Singhbhum, Jharkhand.)
Bukai Murmu, son of late Labo Murmu, resident of village: Kundaluka, Jahirdih,
Police station: Dumuria, District: Singhbhum East, Jharkhand
... Appellant
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Soumitra Baroi, Advocate
For the State : Mr. Viswanath Roy, A.P.P.
Judgment dated 19.02.2025
This appeal is directed against the Judgment of conviction dated 11.7.2007 and order of Sentence dated 13.07.2007 passed by learned Additional Sessions Judge cum Fast Track Court No.I, Ghatsila in Sessions Trial No.356 of 2004, in connection with Dumeria P.S. Case No.28 of 2003, corresponding to G.R. Case No.538 of 2003, whereby and whereunder the sole appellant has been convicted under sections 324 and 307 of the Indian Penal Code and under section 27 of the Arms Act and also under sections 3/4 of the Prevention of Daain (Witchcraft) Practicing Act, 1999 and has been sentenced to undergo R.I. for seven years and a fine of Rs. 2000/- for the offences punishable under section 307 of the Indian Penal Code and in default to payment of the fine amount, simple imprisonment for six months was awarded. The appellant was further sentenced to undergo R.I. for two years for the offence under sections 324 of the Indian Penal Code and further R.I. for one year under section 27 of the Arms Act and further R.I. for two months each for the offences under sections 3/4 of the Prevention of Daain (Witchcraft) Practicing Act and the sentences were ordered to run concurrently.
2. The prosecution story is based on the fardbeyan of the informant Shalo Murmu (PW6), who is the victim of this case and her statement was recorded by the then ASI of police on 23.12.2003 at 4.30 hours at Dumeria Hospital within 1 Cr. Appeal (SJ) No.1294 of 2007 Dumeria police station in the district of East Singhbhum, in which it is stated by the victim that on the preceding night i.e. on 22.12.2003, while she (informant) along with her children was sleeping on the Verandah of her house, then at about 12.30 A.M. i.e. in the midnight, her nephew (the son of Bhaisur) carrying a pistol, came there and got her woke up and alleged that she killed his father by practicing witchcraft and thereafter opened fire by his pistol causing severe injuries in her left hand and fled away. It was further stated that on hearing sound of firing, nearby villagers assembled there and took her to Dumeria Hospital, where she was treated. The occurrence was said to have been witnessed by her two daughters namely Debla Murmu (PW8) and Bouskey Murmu (PW7).
3. On the basis of the fardbeyan, FIR was registered vide Dumeria P.S. Case No. 28 of 2003 under sections 452,324,307 of IPC & 27 of Arms Act and under sections 3/4 of the Prevention of Daain (Witchcraft) Practicing Act, against the accused/appellant and the police investigated the case and the charge-sheet was submitted almost under the same count except adding of offence punishable under Sections 26 and 27 of the Arms Act and thereafter cognizance was taken and the case was committed to the Court of Sessions for trial. Learned P.O. Fast Track, at Ghatshila has framed charge on 18.03.2005 under sections 452, 324, 307 of IPC & under section 25(1-B)a, 26 & 27 of Arms Act and under sctions 3/4 of the Prevention of Daain (Witchcraft) Practicing Act where the accused pleaded not guilty and claimed to be tried and the learned trial court after conducting the full-fledged trial, passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal.
4. Heard learned defence counsel Mr. Soumitra Baroi appearing on behalf of the appellant and learned APP Mr. Viswanath Roy appearing on behalf of the State.
Arguments advanced on behalf of the appellants:
5. At the outset, learned counsel appearing on behalf of the appellant submitted that there is a variation in the statement of the injured victim PW-6 2 Cr. Appeal (SJ) No.1294 of 2007 with respect to the factum of the incident as disclosed in the FIR vis-a-vis the facts which have been narrated in her deposition during the course of the trial.
6. Further it has also been pointed out that admittedly there is a land dispute between the parties and therefore the false implication of the appellant is also possible.
7. It has further been stated that appellant is admittedly close relative of the injured victim PW-6 as the appellant is the son of her Bhaisur (husband's elder brother's son).
8. It has further been contended by learned counsel appearing on behalf of the appellant that the I.O. in this case has not been examined and this has caused serious prejudice to the appellant and further the seized pistol was not produced before the court though as per the seizure list witnesses PW2, PW4 and PW11 the same has been seized in their presence.
9. Further, it is submitted that as per the prosecution story as disclosed by the victim that only one injury was inflicted upon her left hand, but the doctor had found four injuries, which are contradictory in nature, since it has been categorically admitted by the victim that only one injury was inflicted upon her and therefore intention to kill the victim cannot be inferred in order to fasten the guilty of the appellant for the offence punishable under Section 307 of IPC and therefore it is submitted that utmost it is a case of causing grievous injury for the offence punishable under Section 324 of the IPC and not under Section 307 of IPC and in view of the aforesaid submissions, it has further been argued that the trail court did not apply its judicial mind in the appreciation of the evidences and therefore it is submitted that the impugned judgment of conviction and order of sentence is bad in law and fit to be set-aside.
Arguments advanced on behalf of the State:
10. On the other hand, the learned APP appearing on behalf of the State opposed the contentions raised on behalf of the appellant and submitted that although the I.O. in this case has not been examined, but no prejudice has been 3 Cr. Appeal (SJ) No.1294 of 2007 caused in view of the consistent version of the eyewitness-injured victim PW6 and further also the two daughters of the injured PW-7 Bouskey Murmu and PW8 Debla Murmu have also supported the case of the prosecution.
11. Further, it has also been submitted that the learned trial court has rightly appreciated the evidences of the eyewitness, particularly PW6, PW7 and PW8 and found that there is no major discrepancy in order to discard the case of the prosecution that the appellant after branding the injured victim as a witch, sought at her, and fired by which she got injured and the doctor has found four injuries caused by firearm and therefore the case of the prosecution has been fully corroborated and substantiated in view of the versions of the victim PW6, daughter of the victim PW7, PW8 and nephew of victim PW-12 and therefore there is no legal point to interfere in the impugned judgment of conviction and order of sentence and this appeal is fit to be dismissed.
Appraisal & Findings
12. Heard learned counsels appearing on behalf of the parties and perused the record of this case including the impugned judgment and the depositions of the witnesses and other materials available on record.
13. It is found from the prosecution case that the injured victim-PW-6 was branded as a witch by this appellant, who went into the house of the injured and accusing her that his father died because of the black magic (witch crafting) practiced by her and therefore, he opened fire upon PW-6, by which she got injured.
14. In view of the aforesaid charge leveled against the appellant, at the outset the deposition of PW-6 (injured eyewitness) is taken into account.
15. From the deposition of PW-6, it is found that before the actual occurrence of causing injury by firearm, there are some discrepancies in the story as narrated by PW6 in FIR vis-à-vis in the testimony before the court. In fardbeyan she stated that बुकई अपने हाथ मे पपस्तौल लेकर आए और मुझे उठाए और बोलने लगे कक तुम 4 Cr. Appeal (SJ) No.1294 of 2007 डायन हो तुमहहीं मेरे पपता को मार डाला है । इसी पर बुकई अपने हाथ मे ललए पपस्तौल से गोलह चला दिया जिससे मेरा बायाीं हाथ गींभीर रूप से ज़ख्मी हो गया । In para 2 and 3 of her deposition in examination-in-chief she stated that बक ु ई बकरह खोल दिया था तथा बकरह इधर-उधर घम ू रहह थी। तब मैं उस लड़के को बोला कक कैसे िरवािा बींि ककया था, सब बकरह ननकल गया। किर बकरह बींि कर दिया और सो गए। इसके बाि िहााँ बैल रहते है वहााँ िो बकरह बचा था। इसके बाि बुकई डेकची को लात मारा था। आवाि सुनकर िे खने आयी लालटे न लेकर। बुकई पपस्तौल पकड़ कर खड़ा था। बुकई बोला कक मेरे भाई और बाप को खाया है। िब मैं बोलह कक मैं नहहीं खाई तब पपस्तौल से गोलह मारा। Thus she remained consistent in the very genesis of the prosecution case that she was branded as a witch for causing death of the father of the appellant and thereafter the appellant had fired upon her, by which she got injured.
16. Further the version of the prosecution with respect to causing gunshot injury has been corroborated by the depositions of PW-7 Bouskey Murmu and PW-8 Debla Murmu. As per the persecution story, the informant injured PW-6 was also sleeping along with PW-7, PW-8 and PW-12 and after hearing the sound of firing as well as the crying of PW-6, they rushed towards the place of the occurrence and found PW-6 in the injured condition, who had sustained pellet injury in her left hand and PW-8 had categorically stated that when she ran to her mother, she saw that the accused appellant was standing there and having seen them, he fled from the place of occurrence.
17. Further it has been found that PW-3 Tumba Besra, 5 Champa Hasda and 12 Maha Hasda all being the co-villager, married daughter and nephew of the informant respectively have stated disclosing that on the next day of occurrence, a pistol was found by PW-5 and the same was reported to PW-12, who in-turn 5 Cr. Appeal (SJ) No.1294 of 2007 placed the same before the villagers Miraza Sonin. PW-12 has also stated that there was an empty cartridge along with pistol, which was handed over to the police. PW-5 also made clear by stating that soon after the occurrence, she was called for by the villagers and taken to her mother's house in the very night, where she found her mother (PW-6), injured having sustained pellet injury, who on enquiry named Bukai Murmu as her assailant.
18. PW2 Hiren Tudu, PW-4 Mirza Soren and PW-11 Kutru Murmu being the witnesses on the seizure list have stated that on the next day of occurrence, the police came to their village to whom they handed over the pistol and cartridge, as a result of which, the police seized the same and prepared the seizure list over which, they put their signatures Exts. 1 and 1/2. These witnesses have also stated specifying that after the incident of the firing, they reached the house of the informant and found her in injured state, who on enquiry told that it was Bukai Murmu, who caused the said injury by means of pistol.
19. PW-1 Jagannath Tudu and PW-9 Chote Rai Hansda being the nearby co-villager of the informant have stated in the similar way as that of stated by the informant and her daughters that at the relevant night of the occurrence on hearing sound of firing they rushed to the house of victim and found her being in injured having sustained pellet injury on her left hand, but later on she went to Dumeria PHC for treatment. They have also stated that on enquiry they come to know that it was Bukai Murmu, who caused the said injury by means of pistol.
20. PW-10 Dhani Ram Hansda and PW-13 Ram Chandra Murmu being respectively the brother and husband of the informant have also deposed supporting her version that on the fateful night of the occurrence, they were not present at the P.O. house and on information came there and found the victim to be admitted in the hospital. PW-10 claims to have seen her admitted at Dumeria P.H.C. whereas PW-13 saw the victim injured PW-6 at the M.G.M. Medical College Hospital Jamshedpur as he reached the village after one week of the 6 Cr. Appeal (SJ) No.1294 of 2007 occurrence and during that space of time, the informant/injured was referred to said hospital. Both these witnesses have also come forward to state that on enquiry they were told by the informant that it was Bukai, who had opened fire on her and caused the severe injury on her hand.
21. PW-14 Dr. Gajendra Nath Murmu, who had deposed that on 23.12.2003 he posted at Dumeria P.H.C. as a Medical Officer and on the same day at night at 3.20 hours (A.M.) had examined the patient Shrimati Shalo Murmu, wife of Shri Ram Chandra Murmu aged about 40 years resident of Jahardih within Dumeria police Station in the district of East Singhbhum and found following injuries on her persons-
(1) Lacerated wound on left upper arm size 6 cm x 4.5 up to humerrous bone, Muscle flat detached from the bone. (2) Compound fracture of shaft of humerrous bone, (3) Lacerated of left forearm measuring 8cm x 5.5 x 1.5 cm. depth of forearm.
(4) Compound fracture of left lover radish and ulna, The doctor has further opined that the injury no, (1), (2) and (3) be grievous one, which was caused by firearm from a short distance and injuries within six hours of the examination.
Victim stated about one injury in the left hand but the doctor found four injury which itself contradictory and therefore the contention of the learned defence counsel that the story, which has been narrated by PW6 in her fardbeyan and examination-in-chief is not corroborated with the medical report of the Doctor and therefore her testimony is not trustworthy and fit to be discarded in view of the fact that it is admitted case of the prosecution that there was enmity between them.
22. Except these, the two defence witnesses DW1 namely Salkha Baskey and DW2 Pulin Bera have also been examined, whose testimonies on a close scrutiny do not appear at all to have supported the case of the defence, rather the case of the prosecution is supported specifically in view of the admission of DW1 admitting the occurrence of firing and sustaining pellet injuries by the informant.
7 Cr. Appeal (SJ) No.1294 of 2007
23. In view of the aforesaid statements of the witnesses as discussed in the foregoing paragraphs, it is well-founded that the appellant accused being the close relative of the informant had inflicted injury by branding the injured PW-6 as a witch, who was alleged by the appellant that due to her witch crafting (practicing black magic), her father had died.
24. Further, from the prosecution story, it is found that only one gunshot injury was inflicted upon the informant and thereafter no further injury has been inflicted upon the injured.
25. Further, it is also found that the appellant is a close relative that he is the nephew of the injured-PW-6 and out of four injuries, three injuries were found grievous, but the injury, which was inflicted upon the injured in the hand and not in the vital part of the body of the informant-PW-6 and at the time of the incident, nobody was present there, so this appellant have had opportunity to inflict more injuries, but he was just standing there after causing one firearm injury and in the meantime the family members of the informant reached at the place of occurrence and he fled away.
26. The Hon'ble Supreme Court in the case of Parsuram Pandey and others Vrs. State of Bihar reported in (2004) 13 SCC 189 where under the circumstances of the case the Hon'ble Supreme Court has observed as under: -
15. To constitute an offence under Section 307 two ingredients of the offence must be present:
(a) an intention of or knowledge relating to commission of murder; and
(b) the doing of an act towards it.
For the purpose of Section 307 what is material is the intention or the knowledge and not the consequence of the actual act done for the purpose of carrying out the intention. The section clearly contemplates an act which is done with intention of causing death but which fails to bring about the intended consequence on account of intervening circumstances. The intention or knowledge of the accused must be such as is necessary to constitute murder. In the absence of intention or knowledge which is the necessary ingredient of Section 307, there can be no offence "of attempt to murder". Intent which is a state of mind cannot be proved by precise direct evidence, as a fact it can only be detected or inferred from other factors. Some of the relevant considerations may be the nature of the weapon used, the place where injuries were inflicted, the nature of the injuries and the circumstances in which the incident took place. On the evidence on record, where the prosecution has been able to prove only that the villagers have sustained injuries by indiscriminate firing and it was an open area with none of the injured nearby there is a complete lack of evidence of intention to cause such injuries for 8 Cr. Appeal (SJ) No.1294 of 2007 which the accused persons Parshuram and Bishram could have been convicted under Section 302 IPC. Nature of the injuries sustained by the villagers is simple. None of the witnesses have stated that the firearm causing injuries was being used by any particular accused for causing injuries to them. In fact the injured have not seen any of the accused persons using firearms. There is no evidence about the distance from which the said two accused fired. The only evidence led by the prosecution is indiscriminate firing by Parshuram and Bishram which has caused simple injuries to the villagers. Amongst the injured villagers, only PW 1 and DW 1 were examined. Thus this evidence does not constitute the intention or knowledge of the accused persons for committing the murder or doing of an act towards it. The evidence only shows that the villagers have sustained simple injuries. In the circumstances, we acquit Parshuram and Bishram under Section 307 IPC.
27. Offence of attempt to murder is a serious offence. In proving commission of such an offence, the prosecution is required to prove the basic ingredients of murder short of death. From this, it is inferred that in the present case his intention was not to kill the informant, rather just he had caused the injury and he fled away and hence the learned trial court has misconstrued in appreciating the evidences of PW-6 vis-à-vis the report of the doctor and convicted the appellant for the offence punishable under section 307 of the IPC, which is attempt to murder, rather it is a case utmost under sections 324 and 452 of the IPC.
28. Further it is found that neither the I.O. in this case has been examined nor any weapon or pellet has been found and therefore the conviction under section 27 of the Arms Act is not substantiated and therefore it is bad in law and therefore the conviction under section 27 of the Arms Act is liable to be set aside.
29. Further it is found that the appellant had first branded her as a witch under sections 3 / 4 of the prevention of Diaan (Witchcraft) Practices Act, 1999, which is fully substantiated as emanating from the version of the aforesaid witnesses, particularly PW6, PW7, PW8 and PW12 and therefore the conviction as held by the learned trial court deserves to be upheld.
30. In view of the aforesaid discussions, the conviction of the appellant passed by learned Additional Sessions Judge cum Fast Track Court No.I, Ghatsila in Sessions Trial No.356 of 2004, in connection with Dumeria P.S. Case No.28 of 2003, corresponding to G.R. Case No.538 of 2003, under section 27 of Arms Act is set aside and conviction under section 307 of IPC is modified for the offence 9 Cr. Appeal (SJ) No.1294 of 2007 punishable under sections 324 and 452 of IPC and conviction under sections 3/4 of the Daain (Witchcraft) Practices Act is also upheld. As a consequence, the appellant is found guilty for the offences punishable under Sections 324 & 452 of IPC and Sections 3/4 of Witch Craft Practicing Act, 1999 and accordingly appellant is convicted for the offences punishable under Sections 324 & 452 of IPC and Sections 3/4 of Witch Craft Practicing Act, 1999.
31. So far as the sentence is concerned, it is found that the incident has taken place in the year 2003 and this appellant is suffering with trauma and misery of the criminal proceeding for a long period of time, i.e. 22 years and there is nothing on record of any criminal history against this appellant. It is also admitted that this appellant is the nephew of the informant and there was a land dispute between the parties.
32. Therefore, these are the mitigating factors in order to take into consideration to alter the order of the sentence and accordingly having founded the conviction of the appellant under sections 324 and 452 of IPC and 3/4 of the Daain (Witchcraft) Practices Act, 1999, it is found that the purpose of justice would be meted out, if he is sentenced for the imprisonment of the period already undergone by him and further a sentence of fine is imposed by way of compensation.
33. Accordingly, the appellant is sentenced to the imprisonment for the period already undergone by him and further the sentence of fine of Rs. 20,000/- (Rupees Twenty Thousand only) is imposed upon appellant by way of compensation in order to give it to the victim PW-6 Shalo Murmu under all the three counts jointly.
34. Since, the appellant Bukai Murmu is on bail and, therefore, a period of six months' time is given from the receipt of the Judgment to make payment of fine of Rs. 20,000/- (Rs. Twenty Thousand Only) by way of compensation in order to give it to the victim-injured PW-6 Shalo Murmu under all the counts jointly.
10 Cr. Appeal (SJ) No.1294 of 2007
35. In case of the default of payment of fine as awarded by this Court, i.e. of Rs.20,000/- (Rupees Twenty Thousand) by way compensation in order to give it to victim-injured-PW-6 within the stipulated period of time, the appellant shall undergo imprisonment for two years.
36. The learned trial court is directed to ensure that the said fine amount be deposited within the stipulated period of time and if the same is not deposited by the appellant, he will serve the sentence as awarded in case in default of payment of fine so awarded, by taking all necessary measures as per the provisions of law to ensure that the appellant serves the sentence of imprisonment in case of default of payment of fine as awarded by this Court.
37. The appellant may be allowed to deposit the said fine amount through the Nazarat of the concerned Civil Court. At the moment, he deposits the fine amount, he (the appellant) shall be released forthwith on deposit of the said fine amount and / or he shall also be discharged from the liabilities of bail bonds accordingly as the case may be.
38. The learned court below is also directed that on deposit of the said fine amount by the appellant, the notice shall be sent to the victim injured-PW-6 Shalo Murmu and on her appearance, the said fine amount, if so, deposited by the appellant, shall be disbursed to her.
39. In case, if the said victim is not traceable or not available or not found at the given address, or does not appear before the Court after the notice, the same shall be disbursed to the close or near relatives or kith and kin of the said victim- injured as the concerned learned trial court may deem fit and proper, and in this regard the court concerned may also involve the Para Legal Volunteer (PLV) of District Legal services Authority(DLSA), East Singhbhum, Jharkhand, if required.
40. Accordingly, this appeal is dismissed with modification in order of conviction and sentence as above.
11 Cr. Appeal (SJ) No.1294 of 2007
41. Let a copy of the judgment be sent to the learned court below along with the Trial Court Records for its compliance in letters and spirit.
(Navneet Kumar, J.) Jharkhand High Court, Ranchi, Dated the 19.02.2025/NAFR R.Kumar/-
12 Cr. Appeal (SJ) No.1294 of 2007