BAIJAN HEMBRUM Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction dated 21.1.2003 and order of sentence dated 22.1.2003 passed by the learned Sessions Judge, Sahibganj in Sessions Case No. 174 of 2001, whereby the appellant Baijan Hembrum was convicted for the offence under Section 302 of the I.P.C. and Section 27 of the Arms Act and he was sentenced to undergo rigorous imprisonment for life for the offence under Section 302 of the I.P.C. and 2 years rigorous imprisonment for the offence under Section 27 of the Arms Act. The case of the prosecution in nutshell is that the informant Gora Hembrum was informed that his daughter Talamayi Hembrom died on account of being shot at by firearm by one Baijan Hembrum in front of the house of co villager Chundo Marandi; that the informant returned to his village Bhalsundhia and saw the dead body of his daughter in front of the house of Chundo Marandi. It has been stated that Chundo Marandi and Bariayar Marandi had seen the occurrence. The incident occurred because the appellant Baijan Hembrum was under the belief that Talamayi Hembrom had killed his son by practicing witchcraft and in retaliation the appellant had shot dead the informant's daughter. On the basis of the fardbeyan recorded on 8.3.2001 at village Bhalsundhia, Borio P.S. Case No. 40 of 2001 under Section 302 of the I.P.C. and Section 27 of the Arms Act was registered against the appellant.

(2.) AFTER investigation, charge -sheet was submitted against the appellant and cognizance was taken whereafter, the case was committed to the Court of Sessions, where it was registered as Sessions Case No. 174 of 2001. Charges were framed under Section 302 of I.P.C. and 27 of the Arms Act and witnesses examined whereafter the statement of the appellant/accused was recorded under Section 313, Cr.P.C. The defence is of complete denial whereafter the learned Sessions Judge on the basis of the evidence convicted the appellant vide the impugned judgment.

(3.) DR . H. Waris, learned amicus curie appearing on behalf of the appellant has assailed the impugned judgment mainly on the ground that there is discrepancy between the ocular and medical evidence on record. Learned amicus curie has drawn attention to the evidence of P.W -3, Chundo Marandi and submitted that he is not an eye -witness because in para -13, he has stated that the bullet travelled through and through the body but, the doctor i.e. P.W. -1, in para -14, has stated that he did not find any exit wound on the dead body of the deceased which creates a doubt that the witness had not seen the occurrence and he supported the case as he is related to the informant. It has further been submitted that the doctor has also stated that hectic search was made by him but the bullet could not be found in the dead body. Learned counsel also submitted that the inquest report does not support the manner of the occurrence as no blood stain was found on the earth by the Investigating Officer whereas, the Investigating Officer in his inquest report i.e. as Ext -5 stated that there was blood coming out from the wound and non finding of the blood stain on the earth shows that the deceased was killed elsewhere and the body was brought to the site where the inquest report was prepared. In support of his arguments, he has submitted that P.W. -2 i.e. the informant, in his deposition, has stated that he had seen the dead body of his daughter lying in the field whereas, P.W. -3 has stated that the occurrence has taken place on the verandah of P.W. -3, which is also supported by P.W. 4. Thus, there are material of contradiction, which creates a doubt regarding the occurrence and the appellant has been falsely implicated on account of land enmity. It is argued that even if the occurrence is believed to be true in its entirety, though denied by the appellant, then the incident took place as the appellant was not in a fit state of mind due to the death of his child and it is specifically stated in the F.I.R. that when he tried to hand over the dead child to the deceased, she refused to take him. That the appellant lost his mental balance and committed the crime, at best the accused can be held guilty for the charge under Section 304(ii) of the I.P.C.