Calcutta High Court (Appellete Side)
Baharai Murmu vs The State Of West Bengal on 4 December, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi, Rajarshi Bharadwaj
1
534
SB/S.DAS
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
BEFORE:
The Hon'ble Mr. Justice Joymalya Bagchi
And
The Hon'ble Mr. Justice Rajarshi Bharadwaj
C.R.A. 556 of 2004
Baharai Murmu
VS
The State of West Bengal
For the Appellant : Mr. Swapan Kumar Mullick,
Ms. Sudeshna Dey
For the State : Mr. Partha Pratim Das
Heard on : December, 04, 2017
Judgement on : December, 04, 2017
Joymalya Bagchi, J. :
The Appeal is directed against the judgement and order dated 07.06.2004 & 08.06.2004 passed by Additional Sessions Judge, F.T.C.
- 2, Purulia in S.T. No. 24/2003 arising out of S.C. No. 13/1994 convicting the appellant for commission of offence punishable under Sections 302 / 324 /447 of Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.1,000/- in default 2 suffer rigorous imprisonment for further period of three months for the offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer simple imprisonment for three months for the offence punishable under Section 447 of the Indian Penal Code and to suffer rigorous imprisonment for two years for the offence punishable under Section 324 of the Indian Penal Code, all the sentences to run concurrently.
The prosecution case, as alleged, against the appellant and other accused persons, is to the effect that on 28.07.1991 at about 7.00 AM accused Sanatan Murmu and his three sons Jivan, Baharai and Jeehur were ploughing the land of Surajmoni Mandi forcibly and when Surajmoni protested, Sanatan alongwith his three sons including the appellant and his wife Soramoni (since deceased) attacked and assaulted Mohan (son-in-law of Surajmoni) with lathi, Tangi, Axe etc and the weapons were supplied by Sanatan's daughters-in-law, Chandmoni and Fulmoni. At the time of assault, Mohan's wife Prathami and Surajmoni (P.W. 2) and informant Suku (P.W. 8) tried to rescue Mohan. They were also assaulted and suffered injuries. Mohan was murdered by the accused persons at the spot and thereafter the accused persons left the place of occurrence. Injured persons, Surajmoni, and Prathami were treated at the hospital. On the complaint of Suku Murmu F.I.R. being Santuri P.S. Case No. 39/91 dated 28.07.1991 under sections 148/149/447/324/325/302 of Indian Penal Code was registered against Sanatan Murmu, Jiban Murmu, Bahai Murmu and Jeeur Murmu. In the course of investigation, Santan died 3 and charge sheet was filed against the accused persons including the appellant under sections 148/149/447/324/325/302 of Indian Penal Code as Jeehur Murmu alias Manasaram was a minor and his case was split up and the case was committed to the court of sessions. Charges were framed under section 148/149/447/324/325/302 against the appellant and the other accused persons. Prosecution examined twelve witnesses and exhibited a number of documents. In conclusion of trial, the trial Court by judgement and order 07.06.2004 & 08.06.2004 convicted and sentenced the appellant, as aforesaid. By the self-same judgement and order, the other accused persons were acquitted by the charges leveled against them.
Mr. Mallick, learned Counsel appearing for the appellant argued that the trial judge could not have convict the appellant under Section 302 simpliciter when charges have been framed against him and other accused persons under Section 302 read with Section 149 of the Indian Penal Code. Other accused persons have been acquitted of the charges levelled against them and there is no evidence on record that the appellant had assaulted the victim alone. Hence, the conviction is liable to be set aside on that score alone. He also drew my attention to the divergence in the version of P.W. 2 and that in the First Information Report (lodged by another eye-witness P.W. 8) with regard to the nature of weapon carried by the appellant. He also submitted that it is doubtful that Surajmoni is an eye-witness as she admitted in cross- examination that she was assaulted on the village path whereas the 4 incident occurred in the paddy field which was far away from the village and could not have been seen from the said village.
Mr. Das, learned Counsel appearing for the State submitted that the evidence of P.W. 2 who claimed that she had rushed to the paddy field after hearing that the accused persons were cultivating her land was most natural and trustworthy. She stated that she was assaulted by the appellant and other accused persons and that the appellant had a tangi. As the injuries on the victim were incised wounds there is no escape from the conclusion that the appellant was the assailant. Hence, he prayed for dismissal of the appeal.
P.W. 2 is the mother-in-law of the victim. She deposed that she had two sisters viz. Soramoni and Putul. On the death of her parents all the sisters inherited the property left behind by her parents and a suit had been filed by her and a decree was passed in her favour and her sister Putul against Soramoni. The property was amicably divided by the village headmen amongst them. The property was within village Chhayrabari but as she was an illiterate woman she could not give detailed description of the property. She was in possession of the property according to the amicable partition. On the date of incident, four male accused persons were ploughing the land allotted their favour. The female accused persons were also present near that place. Accused Sanatan was the husband of his sister Soramoni who is presently died. She went to the place of occurrence on the first occasion alone. She saw that the accused persons had weapons viz. axe, sword, kapi bansla, crowbar etc. with them. Thereafter, Suku 5 (P.W. 8), husband of her sister Putul, her son-in-law Mohan, her daughter Prathami (since deceased) accompanied her to the place of occurrence. They protested against the ploughing of their land. Thereupon, the accused persons attacked them. Sanatan assaulted her with lathi and Baharai assaulted her with tangi causing bleeding injuries on her back side and on her head. Accused persons assaulted her daughter Prathami with tangi causing bleeding injuries on her person. They also assaulted her sister's husband and they killed her son-in-law Mohan on the spot. On being assaulted they lay on the ground. Thereafter, they were removed to the hospital at Murardi and subsequently to Raghunathpur State General Hospital. In cross- examination she stated that Sanatan was her sister's husband and the other male accused persons were his sons. The female accused persons were daughters-in-law of Sanatan. The informant, Suku was the husband of her sister Putul. Witness Surji Hansda was her grand daughter. She stated that she had documents to show that they had obtained a decree in the suit. She, however, admitted that the accused persons did not agree with the allotment in partition of their ancestral property and they were not satisfied with that partition. She admitted that she received injuries on the village path. She received lathi blow on the head but she did not lose sense. She was taken to her house and thereafter she was removed to the hospital. Her husband went to the police station for lodging information. She stated that she sustained injuries on her scapula region of both sides due to assault with tangi 6 and her wearing clothes were blood stained and those were shown and handed over to the investigating officer.
P.W. 8 claimed to have accompanied P.W. 1 to the place of occurrence. He is the husband of Prathami. He stated that about 12 years back on 11th Srabon at about 7 a.m. he found that the accused persons were working in the field of Surajmoni. At that time Soraj Moni came there and asked why they were cultivating her land. The accused persons assaulted Mohan, Surajmoni and Prathami. They also assaulted him and he fled away and thereafter lodged the first information report. Surajmoni and Prathami received injuries on their persons and they were removed to the hospital for their treatment. After lodging First Information Report, police came to the place of occurrence. In cross-examination, he stated that the land where the accused persons had been doing cultivation work is popularly known as 'Surihir' . There are few pieces of lands and one piece of barren land between Surihir and their village end. There were some trees on the intervening lands. He stated that upon arrival at the place of occurrence he found that Mohan had already fallen down.
P.W. 1 is the scribe of the F.I.R. He, however, was declared hostile. He stated that he had written first information report under the instruction of the officer-in-charge.
P.W. 3 is the daughter of the victim. She was a child of four to five years at the time of occurrence. She stated that she was grazing the goats in a nearby field. The accused persons were ploughing their land. Her maternal grandmother protested and thereafter she returned home 7 and came back to the field with her parents and with Suku Murmu. They were severely assaulted by the accused persons who were armed with tangi, lathi, sword etc. As a result of such assault by these accused persons her father was killed at the spot. In cross- examination, she admitted that she was a girl of five to six years. It is the fact that there was a piece of "koya kanali" land beside the raised land and thereafter their land was situated which was popularly known as "suri ahar".
P.W. 4 deposed that on the date of occurrence he was ploughing his land towards the south of their village and the said land was at a walking distance of half an hour from the place of occurrence. On hearing noise and on seeing a police vehicle he went to the place of occurrence. The dead body of Mohan was lying on the field. He also found Surajmoni and Putul in injured condition. Villagers told him there that Sanatan, Baharai and Jeeban assaulted the aforesaid persons. He signed on the seizure list. In cross-examination, he stated that the dead body of the victim was on a land popularly known as "Suri Hir" and there was a piece of high land known as Bahal land beside the "Suri Hir". In cross, he admitted that he that he did not state before the investigating officer that Mohan, Surajmoni and Putul were assaulted by the accused persons.
P.W. 5 deposed that he heard that there was a dispute going on in the field of Sanatan, Mohan and others. Hearing the news he rushed to the Santuri police station and found Suku present there. He went to the place of occurrence and found the dead body.
8P.W. 6 deposed that he was ploughing his land on that date. He stated that the accused Baharai, Jeeban, Sanatan, Jihu and others killed Mohan assaulting him with tangi. They assaulted Surajmoni and Prathami. The said occurrence took place over the land of Surajmoni which was obtained in an amicable partition. In cross-examination, he stated that he was a cousin of Surajmoni.
P.W. 9 was the medical officer and now attached to Murardih P.H.C. He brought the injury register containing injury reports of Prathami Hansda and Surajmoni. He proved them. It was written of one and signed by one Dr. S. Sardar (exhibits 4 and 4(a)). In cross- examination, he stated that register did not bear any seal of Murardih P.H.C. P.W. 10 is the autopsy surgeon who held autopsy over the dead body of the victim and found the following injuries :
1) Incised wound at the anterior part of the neck 4" x 1" x deep cervical vertebra. On dissection there was fracture of cervical 2, cervical 3, cervical 4 vertebra. Trachea, larynx and oesophagus were injured.
2) Incised wound at the right mastoid region 3" x 1" x bone deep.
There was fracture of right temporal bone. On further dissection there was blood clots over the brain surface.
3) Incised wound at the right side of the chin about 2" x ½" x bone deep.
4) Incised wound at the right maxillary region 2" x ½" x bone deep. 9 In his opinion the death was due to severe shock and haemorrhage as a result of the injuries mentioned above and the said injuries were ante-mortem and homicidal in nature marked as exhibit 5. P.W. 11 is the investigating officer in the instant case. He stated that the formal first information report was drawn up by him marked as exhibit 6. The endorsement was written and signed on the written complaint by S.I. P.N. Chakraborty whose handwriting and signature were known to him. During investigating he visited the place of occurrence, prepared a rough sketch map with index. Rough sketch map with index written and signed by him was marked as exhibit 8. He held inquest over the dead body of Mohan Hansda. The carbon copy of inquest report written and signed by him was marked as exhibit 3. During investigation he seized some articles viz. one broken plough, one normal plough, one bow, seven arrows etc. from the place of occurrence under a seizure list. He sent the dead body to Purulia Sadar. He seized the wearing apparels of the deceased and some mud from the place of occurrence. He sent the injured persons to Murardih P.H.C. for their medical treatment. He also sent the requisition to Block Land and Land Reforms Officer of Santuri for ascertaining the actual title of the disputed land. He arrested three accused persons during investigation and submitted charge-sheet. In cross-examination, he stated that the place of occurrence was uneven and not a plain land. The de facto complainant identified the place of occurrence before him. The de facto complainant identified the dead body before him. Two third portion of the dead body was found submerged under water and 10 mud within the field. The corpse was stained with clay. He seized the wearing apparels of the deceased from the place of occurrence. From the evidence of record it appears that there was a land dispute between family of the appellant on one hand and that of P.W. 2 on the other hand. Mother of the appellant was a co-sharer of the land with his maternal aunts, P.W. 2 and Putul, since deceased. Although it is claimed that a decree was passed against the family of the appellant but no copy of the said decree was placed before the Court. It is also unclear as to whether the so-called amicable partition of the ancestral property had been effected as P.W. 2 herself admitted that the accused persons had not accepted the amicable partition and had protested. However, evidence of P.W. 2 and other prosecution witnesses show that the incident occurred in the paddy field which was being ploughed by the accused Sanatan and his sons. It appears that a dispute cropped up in the course of such activity and the accused Sanatan and his sons had physically assaulted P.W. 2 and her sister Prathami with lathi, tangi etc. and they were treated at Murardih hospital. Mohan, son in law of P.W. 2, was also assaulted by the accused persons and died at the spot. Charges were framed against the appellant and other accused persons for commission of offence punishable under Section 302 read with Section 149 of the Indian Penal Code. Evidence on record also speaks of conjoint assault by all the accused persons upon the victim. It is nobody's case that the appellant alone had assaulted the victim resulting in his death. In the backdrop of the aforesaid facts, the trial judge while acquitting all other accused persons, has convicted the 11 appellant for commission of offence punishable under Section 302 simpliciter. When the evidence on record does not speak of exclusive assault by the appellant upon the victim, I am unable to understand how the trial judge convicted the appellant for the offence punishable and that too without re-framing the charge in the instant case. I am unable to accept the reasoning of the trial judge in attributing the assault on the victim exclusively to the appellant on the premise that P.W. 2 stated that the appellant had attacked her with a tangi and that the injuries found by the autopsy surgeon on the victim were incised wounds which could only be caused by a sharp cutting weapon like tangi. Such reasoning of the trial judge is not borne from the evidence on record. All the prosecution witnesses including P.W. 2 speak of conjoint assault on the victim. In this backdrop, the trial judge appears to have made out a new case of exclusive assault on the victim by the appellant alone. Such stance of the trial court is not apposite particularly when the court did not put the appellant on notice that he was to answer a charge under Section 302 simpliciter instead of one under Section 302 read with Section 149 of the Indian Penal Code. I am not unconscious of the fact that in appropriate cases when from the nature of evidence adduced and questions put to an accused under Section 313 of the Code of Criminal Procedure, the accused is put on notice as to his exclusive role in the crime, he may be convicted under Section 302 simpliciter without re-framing the charge under Section 302 read with Section 149 of the Indian Penal Code. However, in the facts of the case, neither the evidence on record nor the examination of 12 the appellant under Section 313 of the Code of Criminal Procedure indicate an exclusive role of the appellant in the murder of the victim. In this factual matrix, conviction of the appellant for the offence of murder simpliciter without reframing of charge had caused prejudice to him. That apart, the inference drawn by the trial court that the appellant had assaulted the victim as the incised wounds on the latter is not founded on prudent logic. Evidence of P.W. 2 that the appellant had tangi in his hand does not find support from the evidence of P.W. 8 nor in the contents of the first information report wherein it is alleged that Sanatan (acquitted accused) was armed with a tangi. Learned Counsel for the State strenuously argued that P.W. 8 came to the place of occurrence after the assault of Mohan and his version ought not to be believed.
If one examines the evidence of P.W. 8 as a whole it appears that he arrived at the place of occurrence along with P.W. 2. If that is so, then none of the witnesses were present at the place of occurrence when the victim was assaulted. Furthermore, the version of P.W. 2, also suffers a jolt when she states in cross-examination that she sustained injuries in the village path. Animosity between the family of the appellant and that of P.W. 2 is well established and the prosecution witnesses did not even feel shy to implicate another accused Jeeban who was found to be a physically handicapped individual in the assault of the victim. In view of the aforesaid facts, and when all the co-accused persons including Sanatan had been acquitted by the trial court, I am unwilling to attribute the assault on the victim exclusively to the 13 appellant which is not the prosecution case at all. It is trite law that an accused is to answer a charge which has been framed and not a third case which is made out by the trial court. Hence, I am of the opinion that the accused is entitled to benefit of doubt and I set aside the conviction and sentence recorded against him.
The appellant shall be released from custody upon executing a bond to the satisfaction of the learned Chief Judicial Magistrate, Purulia for a period of six months in terms of section 437A of the Code of Criminal Procedure if he was not wanted any other case.
The appeal is, accordingly, allowed.
Copy of this judgment along with the lower court records be sent down to the trial court at once for necessary compliance.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the parties expeditiously.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.)