Chandu Hembram vs State of Jharkhand

The appellant was put on trial on the accusation of committing murder of his father Shankhai Hembram and also for causing disappearance of the evidence of murder. The Court having found the appellant guilty for both the charges convicted him vide judgment dated 07.03.2005 for the offence punishable under sections 302 and 201 of the Indian Penal Code and sentenced him vide order dated 09.03.2005 to undergo imprisonment for life for the offence under section 302 of the Indian Penal Code and further to undergo imprisonment for three years for the offence under section 201 of the Indian Penal Code. The case of the prosecution initially made out is that the informant-Pungi Hansda-P.W. 1 was living in her house along with her two daughters Phulmani Hansda-P.W. 2 and Sanju Hansda-P.W. 3 as well as her father Sankhai Hembram (deceased) and brother Chandu Hembram (the appellant). Her father Sankhai Hembram was in habit of making noises unnecessarily and on account of that the appellant used to assault his father. It is the further case of the prosecution that on 19.12.2001 the informant-Pungi Hansda-P.W. 1 came to village Bhawrabera situated at Orissa along with her two daughters leaving at home the deceased and this appellant. When they returned home on 23.12.2001 the informant did not find either her father or brother. She at that point of time suspected that the father might have gone to his village home. On 22.02.2002 when Sanju Hansda-P.W. 3, the daughter of the informant was sweeping she saw some part of the body of a person coming out of the earth. Thereupon, she informed to the informant who in turn informed about it to Sri Ram Hansda-P.W. 4, Pradeep Mardi-P.W. 5 and others who came over there and did notice the same thing. Thereupon, the matter was informed to the Musabani police station where Shiv Shankar Tiwary-P.W. 7 posted as Officer in charge recorded the fardbeyan (Ext. 1/2).

On such fardbeyan, a formal F.I.R. was drawn. The I.O. having registered the case submitted an application before the District Administration for deputation of a Magistrate. On his prayer a B.D.O. was deputed as Magistrate for taking out the dead body. Accordingly, I.O. came to the place of occurrence along with Block Development Officer, Musabani and they did dig out the dead body which was identified from the clothes as the dead body of the deceased-Sankhai Hembram. Thereupon, the I.O. held inquest on the dead body and sent the dead body for post-mortem examination which was conducted by Dr. Lalan Choudhary-P.W. 8 who on holding autopsy did find the body being highly decomposed. However, he did notice right arm contused and blood stained. Whole back of chest was found contused. Left side inner aspect of scapulae was found contused. Ventral aspect of cervical vertebra was contused. Right thigh and frontal scalp was also found to be contused.

The doctor issued post-mortem examination report (Ext. 4) with an opinion that death was caused on account of pressure being mounted over the neck. Other injuries was caused by hard and blunt substance.

Upon completion of the investigation, when the charge-sheet was submitted cognizance of the offence was taken against the appellant. When the case was committed to the Court of Sessions, the appellant was put on trial, during which prosecution in order to prove its case examined as many as 8 witnesses. Of them, P.W. 1-Pungi Hansda and P.W. 2-Phulmani Hansda, the daughter of Pungi Hansda, did testify that the deceased and also the appellant was living with them. On 19.12.2001 they had gone to village home leaving the appellant and the deceased at home. When they returned back on 23.12.2001 they did not find either the deceased or the appellant at home. However, they denied that any dead body had been recovered from the house. Those two witnesses and also P.W. 3 Sanju Hansda have been declared hostile. P.W. 4-Sri Ram Hansda has testified that on 19.12.2001 the informant-P.W. 1 along with her two daughters P.Ws. 2 and 3 had gone to ancestral home leaving the deceased and the appellant at home but when they returned they did not find the deceased and the appellant at home. He has further testified on 22.02.2002, Sanju Hansda-P.W. 3 came rushing to his house and disclosed to him that some part of the body of a person has come out of the earth and when he went there he also did find the same and thereafter the matter was informed to the police who came and digged out the dead body. According to him, the dead body was identified from the clothes which was there on the person of the deceased. P.W. 5-Pradeep Mardi and P.W. 6-Sri Ram Mardi have testified that the dead body was recovered from the house of the informant.

Upon closure of the prosecution case, when the appellant was questioned under section 313 of Cr.P.C. over the incriminating material/evidence including the confessional statement made by the appellant, the appellant denied. Subsequently, the appellant by adducing defence witness took a plea that after his father (deceased) was convicted he started living at his maternal father''s house at Baliyagora and had been living there. However, the trial court recorded the order of conviction and sentence which is under challenge.

Md. Shamim Akhtar, learned counsel appearing for the appellant submits that neither there has been any direct evidence nor circumstances are there to even suggest that it was the appellant who committed murder of the deceased and thereby, the trial Court committed illegality in recording the order of conviction and sentence which is fit to be set aside.

As against this, Mr. Hardeo Prasad Singh, learned counsel appearing for the State submits that the trial Court did find the appellant as guilty during the period when the deceased was done to death it was only the appellant who was living with the father, who was found killed and thereby, the trial Court did not commit any illegality in recording the order of conviction and sentence.

Having heard learned counsel appearing for the parties and on perusal of the record, we do find that the trial Court recorded the order of conviction and sentence on account of the fact that the appellant as per the evidence of the witnesses was there in the house along with the deceased from 19.12.2001 to 23.12.2001 during which period the informant-P.W. 1 was not there in the house who had gone to her ancestral house along with her two daughters P.W. 2 and P.W. 3. Even if the testimonies of the witnesses is accepted to be true that on 19.12.2001 when the informant-P.W. 1 left home, appellant was there in the house along with the deceased it never establishes that it could be only the appellant who committed murder of the deceased as the prosecution has not come forward with the case that all through five days the appellant was there along with the deceased in the house. In absence of such evidence, it would never be safe to put blame on the appellant. Particularly, in view of defence which has been taken on behalf of the defence that after the deceased, the father of the appellant was convicted, the appellant started living with his maternal grandfather in other village and was residing there. That apart, it be recorded that on one hand one of the witnesses say that the appellant was alone there with the deceased when the informant left home for going to her ancestral village but according to P.W. 5-Pradeep Mardi, the informant-P.W. 1 had alone gone to ancestral home leaving their two daughters in the house. In that event, in absence of any cogent evidence, direct or circumstantial, the blame can not be put upon the appellant of committing murder of his father. Furthermore, no cogent motive appears to be there on the part of the appellant for killing his father. Under the circumstances, we do find that the trial Court committed illegality in recording the order of conviction and sentence against the appellant and hence, the order of conviction and sentence passed by the trial Court is hereby set aside.

In the result, the appellant is acquitted of all the charges. Consequently, the appellant Chandu Hembram, who has been in custody is directed to be released forthwith, if not wanted in any other case. Thus, this appeal stands allowed.