DHENA MURMU Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellants in the appeal have been convicted of the offence under section 302/34 I PC and sentenced to Undergo rigorous imprisonment for life by judgment and order dated 8th September, 1988 of the 2nd Addl. Sessions Judge, Dumka in Sessions Case No. 204/1986/ 91/1986. Appellant No.1 Dhena Murmu is the father of appellants no.2 and 3, namely Bhalu Murmu and Kati Murmu.

(2.) THE case of the prosecution is that Simal Tuddu, deceased, was married to Fulin Hansda, P.W.4. The mother of Fulin Hansda after the death of her first husband had married Matal Tuddu, P.W.6 and they lived together in village Shaharpur. Since the brother of Fulin Hansada did not keep good health and was unable to assist them, Simal Tuddu, deceased, was requested to live with them as a Gharjamai. It is also not in dispute that appellant no.1 Dhena Murmu is the husband of the cousin of Fulin Hansda, P.W.4. The deceased was, therefore the co -brother of appellant No.1 Dhena Murmu. It is also not in dispute that the two families lived in a house with a common Angan which was divided and demarcated by a Tati which was about 2 1/2 -3 feet in height. The case of the prosecution is that at about 6 p.m. on 17th of April, 1985, the three appellants came to the house of Simal Tuddu and questioned him as to to why he was living there and why he should not go away. Simal Tuddu retorted by saying that he was living because the head of the family permitted him to live there. Upon this, the appellants forcibly carried away Simal Tuddu to their Angan. This was witnessed by the wife of the deceased, namely, Fulin Hansda, P.W.4. who was helpless because she was carrying a child hardly 5 -6 days old in her lap. However, the appellants assaulted the deceased and while appellant Nos. 1 and 3 caught hold of the deceased, appellant No.2 Bhalu Murmu gave a Bhala blow on the deceased on his abdomen causing a deep wound. Seeing this, Fulin Hansda, P.W.4, wife of the deceased ran to the Angan of the appellants and somehow or other managed to bring her husband to her house. Some villagers assembled on being called including P.W.1 Jewel @ Jai Hembram and Kabiraj Murmu (wrongly described as Kuwraj Murmu in the judgment of the Sessions Judge). The prosecution case is that Simal Tuddu made a dying declaration before P.W.1 and stated the manner in which he had been assaulted by the appellants. Simal Tuddu was removed to the Pakuria hospital with the help of villagers and was given medical aid. The Investigating Officer, P.W.7 reached the Pakuria hospital -at 11 p.m. and recorded the fardbeyan of Simal Tuddu (deceased) which was scribed by a literate Constable A.K. Verma and witnessed by Kabiraj Murmu, P.W.3 and Jewel @ Jai Hembram, P.W.1. On the requisition of the Investigating Officer, the Block Development Officer P.W.9 came to the Pakuria hospital and recorded the dying declaration of Simal Tudu which was witnessed by the 2nd Medical Officer posted at the said hospital, P.W.8. On the following day, Simal Tuddu was removed to Dumka hospital for treatment, but it appears that he died two -three days later. The post mortem on the dead body of the deceased Simal Tuddu was conducted by Dr. Bimal Kumar, P.W.10, at 1 p.m. on 22.4.1985. After investigation, the appellants were put up for trial charged of the offence under section 302 read with section 34 IPC.

(3.) THE dying declaration of Simal Tuddu was recorded at 11.40 p.m. i.e. about 40 minutes after the recording of the fardbeyan. It appears that the Block Development Officer was requisitioned by the Investigating Officer to record the dying declaration and accordingly he came to the Primary Health Centre, Pakuria and recorded the dying declaration. In his dying declaration, Simal Tudu stated that at 6 p.m. on 17.4.1985 he was sitting in the house of his Angan in village Shaharpur. At that time, appellants Deena Murmu and his two sons Bhalu Murmu and Kati came and dragged him to their Angan whereafter Bhalu Murmu pierced his Bhala in his abdomen. Bhalu Murmu made two or three attempts to pierce the Bhala, but he managed to save himself. Thereafter all of them caught hold of him and Bhalu pierced the Bhala in his abdomen. He was also assaulted on his head with lathis. Thereafter he became unconscious. There is an endorsement on the dying declaration that Jewel Hembram, P.W.1 translated the statement of Simal Tuddu made in Santhali into Hindi.