http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: KAMAL MURMU & ANOTHER

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT:       08/09/1997

BENCH: M. M. PUNCHHI, S. P. KURDUKAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT: Present:               Hon’ble Mr. Justice M.M. Punchhi               Hon’ble Mr. Justice S.P. Kurdukar               Hon’ble Mr. Justice M. Jagannadha Rao Uma Datta, Adv. for the appellants J.K.  Das,  Adv.  for  M/s.  Sinha  &  Das,  Advs.  for  the Respondent                       J U D G M E N T The following Judgment of the Court was delivered: M. JAGANNADHA RAO, J.      This is an appeal by two of the accused Kamal Murum and Lakhiram Murmu,  against the  judgment of  the High Court of Calcutta in  Criminal appeal No.372 of 1986 dated 16.9.1987. In the  Sessions Court  there  were  in  all  four  accused, namely, Rabi  Murmu, the two appellants and Padmarani Murmu, the mother of Rabi Murmu.  The Sessions Court convicted Rabi Murumu, and  the two  appellants under section 302/34 I.P.C. and awarded life imprisonment.  The above-said three accused and Shrimati  Padmarani Murmu, the mother of Rabi Murmu were also convicted  under section 201/34 I.P.C. and each of them was sentenced to one year simple imprisonment.  On appeal by the appellants  as well as Rabi Murmu and Shrimati Padmarani Murmu, the  judgment of  the Sessions  Court was affirmed by the High  Court.   Thee is  no  appeal  by  Rabi  Murmu  and Shrimati Padmarani  Murmu to this Court from the judgment of the High  Court.   Appeal is  preferred only by kamal Murumu and Lakhiram Murmu.      The deceased  Chunaram Murmu  was the  brother  of  one Makur Murmu, husband of PW1.  Rabi Murmu is accused No.1 and his mother  Shrimati Padmarani  Murmu is  accused  No.4  Rab Murmu’s house  is said  to  be  adjacent  to  the  house  of deceased Chunaram and the house of Chunaram and the house of informant Makur  Murmu is  one bigha  away from the house of deceased Chunaram.   The  house of  Kamal Murmu and Lakhiram Murmu (who are sons of one Nandlal) is stated to be near the house of  the informant  Makur Murmu  separated by  a  drain (Nala).      The prosecution  case was that on 23/24-2-1983 at about 1 A.M.  the informant  Makur Murmu (who has since died) i.e. husband of  PW1 heard  the  alarm  of  Chunaram  Murmu,  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

brother of  Makur Murmu  coming from  the direction  of  the house of the accused Rabi Murmu.  The informant and his wife (P.W.1) rushed  to the  house of  the accused Rabi Murmu and found Chunaram  being assaulted  severely by  Rabi Murmu and the two  appellants Kamal  Murmu and  Lakhiram  Murmu.    It appeared to  them that  Chunaram was  lying dead.   All  the three accused  persons threatened  P.W.1 and Makur Murmu not to shout.   The informant and P.W.1 found Rabi Murmu and the appellants trying  Chunaram’s body  with a  rope to a wooden log.  Thereafter the accused persons told the informant that they were going to throw away the body of Chunaram.  In late hours during  the night  the informant and his wife informed the villagers  and some  of their relatives including,  Rabi Murmu(PW5), Rajuram, Sirupati (PW2), Manik Ghosh (PW3) about the incident.  Thereafter these witnesses went in a group to the house  of the  accused Rabi  Murmu but they did not find the dead  body.   They saw accused mother Shrimati Padmarani wiping out  some blood  stains from  the courtyard.    These witnesses then went to the police station and lodged an FIR. Police  took   cognizance  of   the  offence   and   started investigation.  Initially Rabi and his mother Padmarani were arrested.   It is  the prosecution  case  the  Rabi  made  a confessional  statement  before  the  investigating  officer leading to  the recovery  of the deadbody from the jungle of Chamtubundh.   The investigating  officer (PW6) held inquest on the  dead body  and sent  it for post mortem to PW7.  The further case  of the  prosecution was  that the accused Rabi Murmu made  a further  confessional statement to PW6 leading to the  recovery of  a spade  and rope from the water of the Dumuria canal.   After  completion of the investigation, the police filed  chargesheet against  the four  accused.    The charges against Rabi Murmu, Kamal Murmu, Lakhiram Murmu were framed under  section 302/34  I.P.C. and  also under section 201/34 I.P.C.  while charge  against accused Padmarani Murmu was only  under section  201/34 I.P.C.  The accused  persons pleaded not  guilty.   In their  statements  recorded  under Section 313  Cr.P.C. they  did not  come  forward  with  any specific defence.      The learned  Sessions Judge  on a  consideration of the evidence came  to the  conclusion that the evidence of PWs 1 to 3  was sufficient  to hold  Rabi Murmu,  Kamal Murmu  and Lakhiram Murmu  guilty of the offence of murder of Chunaram. The learned  Sessions Judge also came to the conclusion that the above  three accused  and Rabi’s  mother Padmarani Murmu were guilty  under section 201/34 I.P.C.  The sentences were directed to run concurrently.      All the four accused filed appeal before the High Court of Calcutta.  The High Court examined he evidence in greater detail.   Inasmuch as  the informant  Makur Murmu  died, his wife gave  evidence as  PW1.  The High Court referred to her evidence in  details.   She sated that the deceased Chunaram was the brother of her husband Makur Murmu and he was living at a  distance of  one bigha  from her  house.   That on the night of the incident at about 1 a.m. she heard the cries of Chunaram and  the sound  of assaults.   She  and her husband Makur Murmu  rushed to the house of the appellant Rabi Murmu and found  Chunaram lying dead in the courtyard in a pool of blood.   Though she  did  not  see  the  actual  assault  of Chunaram, she  stated that  she  saw  the  three  appellants namely Rabi  Murmu, Kamal  Murmu and Lakhiram Murmu tying up the body of Chunaram to a log with some ropes.  When she and her  husband   enquired  about  the  incident,  the  accused threatened her  and her  husband and  directed them  not  to shout.   The accused  also refused  to hand over the body of the deceased  Chunaram.   She and her husband then came back

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

to their house.  At that time one Sukhlal who is relative of the accused  came to  their house  and prevented  them  from going out.   At  dawn after Sukhlal left, PW1’s husband went to report  the incident  to the  neighbours.  Thereafter, he came back  alongwith some  of the neighbours and went to the police station  to lodge  the First  Information Report.  He added that  when she and her husband had gone earlier to the house of Rabi Murmu, she found Rabi’s mother Padmarani Murmu wiping out  blood stains  from the ground with a piece of wt cloth.     The  High  Court  then  referred  to  the  cross- examination of  PW1 and observed that she admitted that fact in her  statement before PW6, the investigating officer, she had not  disclosed that  she found  Kamal Murmu and Lakhiram Murmu tying  up the  body of Chunaram with a rope.  The High Court, therefore,  held that her substantive evidence at the trial that  she found these two appellants also tying up the body of Chunaram had to be excluded form consideration.      The High  Court also considered the evidence of PW2 the co-villager and  that of  PW3 a  cousin of  Makur Murmu  and stated that  part of  their evidence  as to what Makur Murmu told them  in the  morning namely  that  Rabi  and  the  two appellants murdered the deceased, was also to be excluded as inadmissible.     Finally,  the   High  Court  came  to  the conclusion that  Chunaram was  murdered, that  there was  no direct evidence  in respect  of the  murder of  Chunaram and that the case rested slowly upon the circumstantial evidence inasmuch as  none of  the prosecution witnesses had seen the actual assault on the deceased.  The High Court then set our thirteen circumstances  as having  been established  by  the prosecution.  They are as follows:      "i) On  the night  between February      23 and 24, 1983 at or about 1 A.M.,      the cries of Chunaram and the sound      of assaults  were  heard  from  the      direction of the house of appellant      Rabi Murmu;      ii)  Immediately  thereafter  Dhani      Murmu   (PW1)    sister-in-law   of      Chunaram, went to Rabi’s house with      her  husband   and  found  Chunaram      lying dead  in a  pool of  blood in      the courtyard of the house;      iii) appellant Rabi Murmu was found      tying up  the body of Chunaram to a      wooden   pole    with   ropes   and      appellants kamal Murmu and Lakhiram      Murmu were standing by his side;      iv) When  she  enquired  about  the      matter she  was threatened  by  all      the three  appellants and asked not      to shout;      v)  when   she  and   her   husband      demanded   the    dead   body   the      appellants  refused  to  accede  to      their demand;      vi) when  came back  home with  her      husband sukhlal,  a relative of the      appellants,  came   with  them  and      prevented  them   for  leaving  the      house:      vii)    in  the  morning  when  the      neighbours went  to  the  house  of      appellant Rabi,  they did  not find      the body of Chunaram (deceased);      viii)  on  their  asking,  all  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

    three appellants  pleaded ignorance      of any incident in their house;      ix) on  the night  of occurrence as      well as  on the  following  morning      Padma  Rani,  mother  of  appellant      Rabi, was  found wiping  off traces      of blood from the courtyard;      x) on  24.2.73 at  11.30  a.m.  the      Investigating Officer  (PW6) seized      some  blood   stained   earth   and      control earth  and the branch of an      encalyputs tree from the courtyard:      xi) Pursuant  to the  statement  of      appellant Rabi  and  being  led  by      him, the Investigating Officer went      to the Chamtubad forest on the same      day at  16.05 hours  where the dead      body was kept concealed, covered by      branches  of   a  tree   and  dried      leaves;      xii) the  dead body was pointed out      to   Investigating    Officer    by      appellant Rabi;      xiii) Rabi also brought out a spade      and a  number  of  ropes  from  the      water  of   a  canal   inside   the      forest.’      The High  Court then  held that the above circumstances together with  the evidence  of the  medical  officer  (PW7) would lead  to the  one and  only conclusion that Rabi Murmu and  the  two  appellants  conjointly  committed  murder  of Chunaram by  brutally assaulting him with a spade and lathis and that  they had  also removed and concealed the dead body in the forest in order to keep it away.      It was  urged for  the two  appellants, Kamal Murmu and Lakhiram Murmu  in the High Court that so far the appellants were  concerned,  all  that  could  be  said  to  have  been established was  that they  were standing by the side of the dead body  at 1  a.m. in  the house  of Rabi Murmu, and they were, at  the most, waiting there to help the appellant Rabi Murmu in  removing the  dead body to the forest.  That would mean that if at all they were present and helped in removing the dead  body;   they could  be found  guilty under section 201/34  IPC   and  to  under  section  302/34  I.P.C..  This contention was  rejected by  the High  Court by referring to the injuries  which according  to PW7  showed that different weapons like  a spade  and a  lathi must  have been used and that, therefore,  the offence  could not have been committed by one  person alone.  The High Court also observed that the fact that  the appellants had threatened PW1 and her husband when they  enquired about the incident and the fact that the accused told them not to shout and then refused to hand over the dead body and the further fact that these two appellants were arrested  only on  28.2.1983 would  show that they were absconding from the village before the arrival of the police and all these circumstances would lead to the inference that they had  also taken  part in  the murder  of Chunaram.  The High Court  also inferred  from the evidence of PW2 that the deceased must  have been  brought to the house of Rabi Murmu either by  force or  by deceitful  means at  that  unearthly house and  this must  have been  preplanned by all the three accused, Rabi  Murmu and the two appellants.  The High Court further inferred from the evidence of PW2 that the dead body was recovered  from a  place two miles away and it could not have been  carried to  such a  long distance  suspended to a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

wooden pole  unless Rubi  Murmu had  the  help  of  the  two appellants.      It was  on the  above basis that the High Curt affirmed the conviction and sentence of these two appellants.      In this  appeal it  is contended by the learned counsel for the appellants that the circumstantial evidence referred to by  the High  Court in  its judgment is not sufficient to convict the appellants for committing the murder of Chunaram and the sentence under section 302/34 I.P.C. is liable to be set aside.   Learned  counsel submits  that thee is no basis for the  inference drawn  by the  High Court  that  the  two appellants must have had a role to play in bringing Chunaram to the  house of Rabi Murmu and there is no material to show any common  intention on the part of the appellants and Rabi murmu to  commit the  murder of  Chunaram.   Learned counsel also submits  that there is equally no evidence to show that as  part  of  the  said  scheme  the  appellants  must  have participated in  the murder  of Chunaram at the residence of Rabi Murmu.   The  only evidence  in the case is that of PW1 and her  evidence only  shows that these two appellants were standing near  the dead  body of  Chunaram at  1 a.m. at the residence of Rabi Murmu.  That part of PW1’s evidence in the Sessions Court  wherein she  stated that the appellants were also found  tying the  body had  been discarded  by the High Court as being inadmissible. We are  of the  view that  the  contention  of  the  learned counsel for  the appellants  is liable  to be  accepted.  In this context it is necessary to refer to the principles laid down by  this Court  in Earabhadrappa  alias Krishnappa  vs. State of  Karnataka [1982  (2) SCC  330]  to  the  following effect:      "In a case in which the evidence is      purely of  a circumstantial nature,      the facts  and  circumstances  from      which the  conclusion of  guilt  of      the accused is to be drawn must not      only be  fully  established  beyond      reasonable doubt  and the facts and      circumstances should  not  only  be      consistent with  the guilt  of  the      accused but  they must  be in their      effect entirely  incompatible  with      the innocence  of the  accused  and      must   exclude   every   reasonable      hypothesis  consistent   with   his      innocence."      Examining  the   thirteen  pieces   of   circumstantial evidence listed  out in the judgment of the High Court-which we  have   already  set  out  -  it  will  be  noticed  that circumstance Nos.  (iii), (iv),  (v)  and  (viii)  only  are relevant  so   far  as   the   appellants   are   concerned. Circumstance No.  (iii) merely  states that  the  appellants were found standing by the side of Rabi Murmu.  Circumstance No.  (iv)   states  that   the  appellants  and  Rabi  Murmu threatened   PW1 and  asked her  not to shout.  Circumstance No. (v) states that the appellants and Rabi Murmu refused to acceded to the demand of PW1 and her husband to handover the dead body.   Circumstance  No. (viii)  states that  when the appellants and  Rabi Murmu were asked by the neighbours they pleaded ignorance of the incident.      In our  view, from  the aforesaid  circumstances, it is not possible  to infer  any common  intention on the part of the appellants  for committing  the murder of Chunaram or in the actual act of killing him.      The High Court no doubt referred to the evidence of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

medical officer,  PW7 to  show that  the nature  of injuries revealed that  more than  one weapon  must  have  been  used namely a  spade and  a lathi.   In  our view, from that fact alone,  it   is  not   possible  to  presume  or  infer  the participation of the appellants in the crime.      For the  aforesaid reasons,  this appeal is allowed and the judgment  of the  High Court  is set aside so far as the appellants conviction  and sentence under section 302 I.P.C. read with  34 is  concerned.  As the appellants have already undergone the  sentence of  one year  for  conviction  under Section 201 read with Section 34, they shall be released.