Partly allowed

Wakil Murmu Akal Murmu And Anr. v. State of Jharkhand

Jharkhand HC6 Sept 2018Cr.A(SJ)/393/2003

Case brief

AI extract

What is this about?

High Court disposed of criminal appeal against conviction for offences under IPC 448 and 323. Appellant No.1's appeal abated due to death. Appellant No.2's conviction upheld, sentence modified to retain modest fine, include compensation, and remove other RI.

What did the court decide?

Conviction of Appellant No.2 upheld; sentence modified to retain fine of Rs.500, direct payment of Rs.2000 compensation, and replace custodial sentence with default only.

Wakil Murmu Akal Murmu And Anr. Vs State of Jharkhand — Medical Negligence | Jharkhand HC (2018)

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Cr. Appeal No. 393 of 2003

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[Against the judgment of conviction dated 22.02.2003 and order of sentence dated 25.02.2003 respectively passed by learned Addl. Sessions Judge-IV, Jamtara in Sessions Case No. 303/96| 149/01]

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Wakil Murmu @ Akal Murmu, S/o Rasik Murmu

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Shibu Murmu @ Sibu Murmu, S/o Late Parik Murmu, both resident of Vill.Jomhani, PS Kundahit, Sub Div.- Jamtara, District- Jamtara. .. Appellants

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-Versus-

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The State of Jharkhand

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… … Respondent

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CORAM :- HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant : Mr. Rajiv Lochan, Advocate. For the State : Mr. Pankaj Kumar, A.P.P.

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By Court: Heard learned counsel for the appellants.

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Appellants have prayed for setting aside the judgment of conviction dated 22.02.2003 and order of sentence dated 25.02.2003 respectively by virtue of which learned Addl. Sessions Judge-IV, Jamtara in Sessions Case No. 303/96| 149/01 has been pleased to hold the appellants guilty of offences under Sections 448/ 324/ 323 of Indian Penal Code. Appellant No.1 has been sentenced to undergo six months RI and fine of Rs.1000/under Section 324 of the Indian Penal Code and one month SI under Section 448 of the Indian Penal Code and both the sentences were directed to run concurrently and in case of default of payment of fine one month RI more is awarded and appellant No.2 has been sentenced to undergo SI for one month under Section 448 of the Indian Penal Code and also one month SI with fine of Rs.500/- under Section 323 of the Indian Penal Code and

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in case of default in payment of fine 15 days SI has been awarded.

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Fardbeyan of Malti Murmu was recorded by ASI of Kundahit PS on 15.04.1996 at Primary Health Centre, Kundahit. She stated in her fardbeyan that the accused persons came to her, abused and also threatened that they would not leave her alive as they have got decree of the land and when she forbade them Wakil Murmu made a stroke from tangi on informant’s head and Sibu Murmu caused hurt by lathi on her back. Witnesses Dhan Tudu and others came then accused persons took to their heels. The cause of occurrence as per informant is the litigation regarding land between the parties. The witness Wakalu Hembram has signed the fardbeyan as witness and marked Ext1.

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After recording fardbeyan, police registered Kundahit P.S. Case No. 42/96 dated 15.04.1996 under Sections 448, 323, 324 IPC against both the accused persons. In course of investigation, police made prayer to add Section 307 IPC and it was allowed vide order dated 30.04.1996. After completion of investigation, the police submitted charge sheet under Sections 448, 323, 324, 307/34 IPC against both the accused persons.

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Trial was held and after conclusion of trial, appellants have been convicted and sentenced as aforesaid; hence, this appeal.

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Prosecution has examined altogether seven witnesses in support of its case.

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PW-1, Motilal Soren, is a hostile witness. He has not supported the occurrence but on cross-examination, he had admitted that litigation is going on between the parties regarding land.

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PW-2, Bhulu Tudu, is Pradhan of the village. He has stated that he went to the house of Malti Murmu hearing halla. He saw

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that Wakil Murmu assaulted on her head by tangi and Sibu by Lathi on her body. The informant-injured told him the cause of occurrence was a decree awarded in her favour. The accused persons are Gotia of Rosani Tudu and this informant-injured is the daughter of Rosani Tudu. This witness has seen Malti lying in her courtyard and there was bleeding from her head.

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PW-3, Bablu Hembram, is the husband of the injured informant. Although he is not an eye-witness, he deposed in the examination-in-chief that he came to his house on Monday on getting the news of assault on his wife. There he saw a tangi mark on the head of his wife and the blood was oozed out from her head. He further stated that he took his wife to the police station on Tuesday and from there to the hospital. He proved his signature marked as Ext.1 in the fardbeyan. This witness has deposed in his cross-examination his son had gone to call for him.

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PW-4, Malti Murmu, who is informant-injured, has deposed at the time of incident she was in her house. Wakil Murmu and Sibu Murmu came there with Tangi and Lathi respectively and asked that they would not allow her to be alive so they would killed her. Thereafter, Wakil assaulted on her head with tangi resulting in bleeding from the head and Sibu assaulted on her back with lathi. Dhanu Tudu came and saved her and this Dhanu Tudu is dead now. As per this witness her husband had gone outside to cut soil and when her husband came she told this fact and then they went to police station and she made her fardbeyan. She admitted that a case under Section 144 CrPC was lodged against the accused persons and thereafter accused persons started threatening to kill and that is why they had assaulted her.

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On her cross-examination, she has admitted that she was cooking food on the day of occurrence. Her mother Rosani Tudu was also present. Accused persons came and made an altercation but they did not talk to her mother. This witness has

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deposed that Wakil Murmu assaulted her with tangi only one time and Sibu gave one blow of lathi on her back and then they escaped. She became senseless and regained sense on next day. She informed her husband through his son.

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PW-5, Devi Tudu, has deposed that he after reaching the house of Malti PW-4 and after hearing hulla Wakil was seen with an axe and Sibu with Lathi and there was bleeding from the head of Malti. Although, accused persons fled away when they saw him. Malti lost her sense and this witness has also started the cause of occurrence is land dispute between the parties. The house of this witness stands near the house of Malti Tudu.

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PW-6 is Dr. Srinath Mishra, who has proved the injury report (Ext.2) prepared by Dr. Shishir Kumar. It is on the evidence of this witness that Dr. Shishir Kumar is dead now and he cannot appear for evidence. As per injury report, Dr. Shishir Kumar has mentioned following injuries after examining Malti Murmu (PW-4):

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“(a) An incised wound of 2”x ½”x ½” on left side of scalp. 3” above left ear.

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(b) The Doctor has also found injury on her back 4” x 4”.

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He has opined the injuries were caused by hard and blunt substance and were simple in nature.”

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Arguments of the learned counsel for the appellants:

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Right at the instance, counsel for the appellants has cited that one of the appellants, Wakil Murmu @ Akal Murmu has passed away and the Court may make note of that. Apart from the submission made by the counsel for the appellants in this regard, report has also come from the concerned police station whereby it has been informed to this Court by a letter, written on the letterhead of Mukhia, Paweta Tudu, dated 10.01.2017 that Wakil Murmu @ Akal Murmu has passed away some time ago and there is also a letter from the Officer-in-charge of Fatehpur Police Station dated 10.01.2017, addressed to the Officer-in-

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charge of Kundahit Police Station that Wakil Murmu @ Akal Murmu, appellant No.1, has passed away some time ago. Therefore, his appeal stands abated.

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However, this appeal is heard in the case of appellant No.2, Shibu Murmu @ Sibu Murmu.

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Mr. Rajiv Lochan, learned counsel for the appellants, has argued that there are certain inconsistencies or may be contradictions in the evidence that have been brought against the appellant and has pointed out that amongst the witnesses PW-1, who is Motilal Soren, has been declared hostile and therefore, he has not supported the prosecution case.

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Learned counsel has then pointed out to the evidence of PW-2, Bhulu Tudu, who is the village headman and pointed out that he did not see the assault and therefore, he is only hearsay witness and therefore, nothing much is in his evidence to convict the remaining appellant.

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Learned counsel has pointed out to the evidence of PW-3, Bablu Hembram. He has argued that Bablu Hembram is the husband of the informant and that he himself has admitted that the FIR was lodged after three days. Counsel at this juncture has said that this is frank admission that the FIR was delayed and therefore, delay caused should be benefited to the appellant, particularly, because there is no explanation for the delay. Counsel also points out that the husband had not informed anyone about the incident, counsel for the appellant, at this point says that this is only because there was nothing in the incident and the allegations are baseless because if there was any incident to go by then definitely the husband would be very agitated and he would have not only instigated the informant or complainant in the case but he would be telling and conveying the news to other persons, which he has not done. Therefore, his evidence is also of not much value.

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Counsel for the appellants has said that the next document is the fardbeyan of PW-4, Malti Murmu. Counsel has also argued that she has stated that various other persons had come around the place of occurrence, therefore, it means that other persons who had come on alarm or somehow but they are only hearsay witnesses. However, counsel says it is surprising that from this many other persons, who had reached the place of occurrence, they have not been examined. If so many persons had come then many more witnesses would have attested to the incident that had taken place but this is not so. This is only so because no incident had occurred and therefore, there is nothing to go by.

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Counsel for the appellants has then referred to the evidence of PW-5, Devi Tudu, who is from the same village or is a neighbour. Counsel for the appellants has argued that this witness has deposed or admitted that there was a land dispute between both the sides or the parties and therefore, the counsel says that the allegations have to be considered in the background of dispute and given with the fact that there was delay in the FIR, which would suggest that there were manufacturing of the case.

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Counsel has next referred to the evidence of PW-6, Dr. Srinath Mishra and pointed out that this witness is himself not the Doctor, who has examined the witness rather he has stood on behalf of another Doctor. However, counsel submits that this witness, PW-6, had not worked with the Doctor, who had actually examined her and therefore, how he knows about the hand writing or the signature of the Doctor concerned and therefore, this is not at all a good evidence and one should not rely on it.

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Learned counsel has submitted that the main accused, Wakil Murmu @ Akal Murmu has already passed away and he was the one who had assaulted on the head and since he is no longer, no case should be sustained against the current and remaining appellant.

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Learned counsel has also argued that the case is of the year 1996; we are in the year now 2018; almost twenty-two years have passed and that he has faced the rigors and vigors of trial and that he is now very old man of about eighty years and basically stays at home and , therefore, to punish him now at this stage would also be inflicting a lot of harm on the appellant, who has otherwise already suffered enough and therefore, any period undergone by him should be considered enough sentence already undergone.

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Arguments of learned counsel for the State:

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Learned counsel for the State argued that this case is fully supported by the evidence of PW-4, or Malti Murmu who is the injured informant. Her case is supported by the injury report or Ext.-2, hence medical evidence fully corroborates the ocular evidence. Counsel further argued that apart from the evidence of PW-4, two other witnesses that is PW-5, Devi Tudu who had seen both the appellants armed and fleeing away and PW-2 or Bhulu Tudu had deposed seeing one appellant fleeing away. Hence, case against remaining appellant survives.

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FINDINGS

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Having heard both the counsels and gone through the records of case and the evidences. As regards the appeal of appellant No.1, Wakil Murmu, report has been received from the Mukhia of Aasanbediya Gram Panchayat as well as the Officerin-Charge of Fatehpur Police Station that the aforesaid appellant has passed away, hence appeal with regard to him stands abated.

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It is seen that PW-4, Malti Murmu, is the injured informant and therefore, she is an injured eye witness. It is well established that the testimony of the evidence of an injured eye witness carries significant weight and it cannot be easily brushed aside.

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She has deposed that she was assaulted with Lathi on her back by Shibu Murmu.

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This Court has next referred to the evidence of PW-6, Dr. Srinath Mishra and it is seen that Dr. Srinath Mishra had not himself examined the injured victim. It is seen that he had seen the injury report, which was prepared by Dr. Shishir Kumar. The injury report has been exhibited and marked as Ext.2. Since it has been marked as Ext.2, it is already on record and this is a case of one Doctor of the same locality proving the injury report of another Doctor and therefore, it is not farfetched to believe that he must be acquainted with the Doctor and even his handwriting or signature. Moreover, the injury report has been made an exhibit as Ext. 2 and it has been indicated in the injury report that there was an injury on the backside and this corroborates the ocular evidence of the informant or PW-4, who has in her fardbeyan as well as in the deposition said that she was assaulted on the backside with Lathi by this appellant. Therefore, there is good corroboration of the prosecution case by the injured victim herself in the deposition and also by PW-6.

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This Court has also seen that village headman, who is PW-2 or Bhulu Tudu, has deposed that he had seen appellant No.1 fleeing away with the Tangi. Of course, it is mentioned with respect to appellant No.1 but it has come in the fardbeyan and the other evidences that there were two accused persons, which has not been denied and therefore, he has at least given testimony to some extent to the fact of occurrence, though it was only in the manner of seeing one of the assailants fleeing away with the tangi. The injury by tangi has been well substantiated in the injury report.

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It is noted that PW-5, Devi Tudu, who is also from the same village or who is a neighbour, is also an eye-witness on the point of appellants fleeing away. This witness also deposed that when reaching the place of occurrence it was seen both the accused

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and appellant No.1 was armed with tangi and appellant No.2 was armed with Lathi and they were fleeing away and the injury on the head of Malti Devi. Therefore, this witness would also help in to some extent supporting the prosecution case in that the informant has said that she was assaulted by these two appellants with tangi and lathi and it is these two appellants, who were seen fleeing with tangi and lathi and it is the remaining appellant, who had the Lathi in his hand. Therefore, with the evidence of the informant, PW-4, Malti Murmu along with the evidence of PW-6, Dr. Srinath Mishra, who has supported the injury report, along with also the evidences of PW-2, Bhulu Tudu, village headman and PW-5, Devi Tudu, the last two witnesses having seen the appellants fleeing away, which corroborates the testimony of the injured.

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One more point to be noted is that this remaining appellant was not armed with a dangerous weapon like his associate, but only a lathi and his offence was the lesser assault made by lathi on the back.

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The case against the appellants, particularly, the remaining appellant seems fully proved. Accordingly, conviction of appellant No.2, Shibu Murmu @ Sibu Murmu under Sections 448 and 323 of the Indian Penal Code dated 22.02.2003, passed by Addl. Sessions Judge-IV, Jamtara in Sessions Case No. 303/96| 149/01 is fully upheld and sustained. However, bearing in mind the mitigating circumstances, which have been pleaded by the counsel, his sentence is modified to the extent that Rs.500/- fine remains and in default of fine, he will undergo SI of fifteen days; moreover, he is further directed to pay a compensation of Rs.2000/- within two months from the date of receipt of this order, failing which, he will further undergo SI of thirty days. The compensation to be made either to the injured informant or family member. If appellant No.2 does not make the payment of the compensation within two months, he shall be taken into custody

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to serve out the default sentence for the compensation directed to be paid. Apart from the aforesaid contingent periods, no other custodial sentence is imposed.

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Accordingly, this appeal is dismissed with modification in sentence.

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(Ratnaker Bhengra, J.)

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High Court of Jharkhand at Ranchi, Dated 6th September,2018, S.B.-NAFR

Wakil Murmu Akal Murmu And Anr. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Wakil Murmu Akal Murmu And Anr. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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