Dadu @ Lusha Munda v. State Of Bihar — 1998 DIGILAW 167 (PAT)

Judgment A.K.Prasad, J. 1. This Criminal Appeal on the. behest of the appellants (Dadu @ Lusha Munda and Dubai Munda) is directed against the judgment and order of conviction and sentence dated 24.2.1996 in S.T. No. 332 of 1992 passed by Sri A.P. Ram, Additional Sessions Judge, Seraikella, whereby and whereunder he convicted the appellants under Sec. 302/34 of the IPC for causing murder of Ram Singh Munda and under Sec. 201/34 of the Indian Penal Code for causing disappearance of the evidence of murder with the common intention of screening themselves from legal punishment. The appellants have been sentenced to undergo imprisonment for life under Sec. 302/34 of the IPC. They have been further sentenced to undergo rigorous imprisonment for two years each under Sec. 201/34 of the IPC and to pay a fine of Rs. 400.00 each and in default to undergo further rigorous imprisonment for two months. Both the substantive sentences under Sections 302/34 and 201/34 of the IPC have been directed to run concurrently. 2. Briefly stated, the prosecution case, as made out in the First Information Report (Exhibit 1), is as under: The informant, Gurubari, Mundayeen (PW 6) and her husband, Ram Singh Munda (the deceased) had gone to the house of Budhan Munda in their village-Gumpu, P.S. Kuchai within the district of Singhbhum (West) to attend a marriage ceremony and while they were returning on 3.3.1992, around 7 p.m. both the appellants way laid them near Soreng Gutu Shrubs and Palas forest and they caught hold of the deceased (Ram Singh Munda) and assaulted him with Dandas as a result of which he fell down. Thereafter the appellants struck the deceased with stones causing his instantaneous death. It is further alleged that the appellants poured Kerosene oil and set fire to the dead-body of the deceased with intention to cause disappearance of the evidence of murder. The informant escaped raising hue and cry and narrated the incident to Manjhi Munda (PW 7), her Devar, and other co-villagers (who are not named in the First Information Report), who rushed to the spot and witnessed the appellants burning the dead-body of the deceased, as well as fleeing away towards the forest. The informant escaped raising hue and cry and narrated the incident to Manjhi Munda (PW 7), her Devar, and other co-villagers (who are not named in the First Information Report), who rushed to the spot and witnessed the appellants burning the dead-body of the deceased, as well as fleeing away towards the forest. The motive assigned for the murder of the deceased by the appellants is that 15 days prior to the alleged occurrence, appellant-Dadu @ Lusha Munda and carnal intercourse with the Shecalf of the informant for which a Panchayati had been arranged and out of the annoyance and vengeance, the appellants committed murder of the deceased, a day before the Panchayati was to be held. The informant accompanied by Majhi Munda (PW 7) and co-villagers-Gurucharan Munda (PW 5), Joti Munda (PW 4), Jagbandhu Munda and Binod Bihari Soy (not examined) brought the dead-body of the deceased on a cot to Kuchai P.S. on the next day around 12.30 p.m. It is said that on 4.3.1992, at 12.30 p.m., the informant lodged her first information report with the police station about the occurrence which gave rise to the case. 3. On the basis of the first information report, the present case was instituted and a formal first information report was drawn up. The then Officer-in-Charge of Kuchai Police Station assumed investigation of the case, held inquest over the dead-body of the deceased, visited the alleged place of occurrence and on completion of investigation, charge-sheet was laid against the accused persons in Court. The case was ultimately committed to the Court of Sessions. 4. The defence plea is of innocence, false implication and total denial of the occurrence as alleged by the prosecution. 5. At the trial, the prosecution examined eight witnesses. Out of them, PW 1 (Suresh Das) is a formal witness; whereas PW 5 (Guru Charan Munda) and PW 8 (Budhu Munda) are tendered witnesses. PW 2 (Dr. Radhika Kumari Sinha) held autopsy on the dead-body of the deceased. The other PWs are PW 3 (Budhram Munda), PW 4 (Joti Munda) PW 6 (Gurbari Mundayeen), the informant, and PW 7 (Majhi Munda). The defence on the other hand, examined no witness in the case. 6. The learned Additional Sessions Judge on scrutiny of the entire materials on record, mostly relaying on the evidence of PWs. The other PWs are PW 3 (Budhram Munda), PW 4 (Joti Munda) PW 6 (Gurbari Mundayeen), the informant, and PW 7 (Majhi Munda). The defence on the other hand, examined no witness in the case. 6. The learned Additional Sessions Judge on scrutiny of the entire materials on record, mostly relaying on the evidence of PWs. 3, 4, 6 and 7, came to the conclusion that the charge under Secs. 302/34 and 201/34 of the IPC had been proved against the accused persons and convicted and sentenced them thereunder in the manner stated above. 7. Mr. Tripathy, learned Counsel appearing on behalf of the appellants, has assailed the impugned judgment and order of conviction mainly on the grounds that the evidence of PW 6 (Guruwari Mundain), the star witness of the prosecution, is not corroborated by the medical evidence; that PWs 3, 4, 6 and 7 Budh Ram Munda, Jote Munda, Guruwari Mundain and Manjhi Munda respectively) are related to the deceased and the interested witnesses and there is no independent corroboration of their testimony, and even the First Information Report has not been properly brought on record and in the facts and circumstances of the case, the appellants are at least entitled to benefit of doubt. 8. Mr. Triveni, Mishra, learned A.P.P. appearing on behalf of the State, on the other hand supported the impugned judgment and order of conviction. His stand is that the verdict of the trial Court is based on cogent evidence and sound reasonings. 9. At the out-set, it may be mentioned that the identity of the place of occurrence is not disputed by the defence before this Court. It has come in evidence of PWs 3 and 6 that the place of occurrence is near Soreng Guttu forest at village Gumpu. 10. PW 2 (Dr. (Smt.) Radhika Kumari Sinha) has stated that on 5.3.1993 (the year 1993 instead of 1992 has been stated by her by mistake), around 1 p.m. she had performed post-mortem examination on the dead-body of the deceaseed (Ram Singh Munda) and found as follows: (i) Mark of bleeding through nose. (ii) Face completely burnt and chest completely burnt. (iii) Both things, legs and both hand burnt. Back portion of the body burnt. Penis Scrotum burnt. 2. The percentage of the burn was 82 percent. Line of redness over burnt part absent. Bhister formation was absent.... (ii) Face completely burnt and chest completely burnt. (iii) Both things, legs and both hand burnt. Back portion of the body burnt. Penis Scrotum burnt. 2. The percentage of the burn was 82 percent. Line of redness over burnt part absent. Bhister formation was absent.... According to her, the burns were post-mortem and the time elapsed since death was within 24 hours of the post-mortem examination and death was caused due to shock and circulatory failure. The post-mortem report of the deceased is her pen is Exhibit 2. The medical evidence shows that the death of the deceased was homicidal. 11 PW 3 and PW 4 are agnatic relatives of the deceased; whereas PW 6 is the widow of the deceased and PW 7 (Manjhi Munda) is the younger brother of the deceased. Thus these PWs are related to the deceased and are interested witnesses and their evidence has to be scrutinised with care and caution. 12. This case primarily hinges on the testimony of PW 6, who claims to be the eye-witness to the alleged occurrence. She had stated in her chief examination that on the fateful day she had accompanied the deceased to the house of Budhan Munda, which is in the upper tola of the village, to attend the marriage ceremony and while in the evening they were returning together and had reached near Soreng Guttu forest, both the appellants assaulted the deceased with lathis and stones and felled him and thereafter accused Dadu (which is the alias name of the appellant Lusha Munda) poured kerosene oil on the deceased. She has further stated in her evidence that her deceased-husband was lying unconscious and the appellant-Dadu alias Lusha Munda set him on fire and in fear she ran to the house of Budhan Munda and narrated the incident to Gurucharan Munda, Budhram Munda, Budhu Munda, Binod and Ors., and when she returned with the villagers, she saw the appellants fleeing away from the scene of occurrence. It has come to her evidence that each appellant had dealt three lathi and three stone blows to the deceased. She has made categorical statement that the appellants had struck the deceased with lathi on his waist and with stones on his chest and shoulder. She has further stated that the wounds did not bleed, but the deceased had bled through mouth. She has made categorical statement that the appellants had struck the deceased with lathi on his waist and with stones on his chest and shoulder. She has further stated that the wounds did not bleed, but the deceased had bled through mouth. The evidence of PW 6 is to the effect that the deceased had sustained as many as 12 blows by lathi and stones and that he became unconscious as a result of the assault. The medical evidence shows that the doctor did not find any ante-mortem wound on the person of the deceased. Further, the doctor found mark of bleeding through nose and not mouth. In case of murderous assault on the deceased, as testified to by the PW 6, the doctor would have found some ante-mortem wounds on the person of the deceased on post-mortem examination. 13. The prosecution case is that the alleged occurrence took place on 3.3.1992 around 7 p.m. PW 2 (Dr. (Smt.) Radhika Kumari Sinha) has stated that the time elapsed since the death of the deceased was within 24 hours of the post-mortem examination. The post-mortem examination commenced on 5.3.1992 at p.m. PW 2 has stated in her evidence that she looked into the Inquest report before the post-mortem examination and the persons accompanying the dead-body had disclosed to her about the time of the death of the deceased. Even then she has expressed the opinion that the death of the deceased was within 24 hours of the post-mortem examination. It is true that the medical evidence is not yet so perfect as to determine the exact time of the death. But the fact remains that her positive opinion is that the death of the deceased occurred within 24 hours of the post-mortem examination. There is no evidence that the doctor had deliberately given a wrong report about the approximate time of death of the deceased. Hence evidence of the doctor (PW 2) about approximate time of the death of the deceased cannot be discarded. Thus the medical evidence is that the deceased died between 1 p.m. on 4.3.1992 and 1 p.m. on 5.3.1992. It belies the prosecution case that the deceased was done to death in the evening of 3.3.1992. Thus the medical evidence does not corroborate the testimony of PW 6 on the manner of occurrence of assault and the time of occurrence. 14. It belies the prosecution case that the deceased was done to death in the evening of 3.3.1992. Thus the medical evidence does not corroborate the testimony of PW 6 on the manner of occurrence of assault and the time of occurrence. 14. An unnatural conduct of PW 6 which is noticed from records is that though she was present along with the deceased at the time of the alleged occurrence, on 3.3.1992 around 7 p.m., she made no attempt to save her husband from the assault, particularly when she does not allege that the appellants had attempted to assault her or even cashed her. 15. PWs 3 and 4 have deposed that on the fateful evening they were at the house of Budhan Munda, where the marriage ceremony was on, when PW 6 (Guruwari Mundain) came running and narrated the incident to them and they hurried to the place of occurrence to find the deceased lying dead and saw the accused persons fleeing away from the scene of occurrence. PW 7 (Manjhi Munda), the younger brother of the deceased, has stated in his evidence that when Guruwari Mundain narrated the incident to him at the place of Budhan Munda that evening, he too rushed to the place of occurrence and saw that his brother was lying dead and the appellants were not present there. But in the next breath, he stated that he had been the appellants on the spot and he had witnessed the appellant-Lusha Munda alias Dadu pouring Kerosene Oil and appellant-Dubai alias Daddu setting fire to the deceased. Thus he has made contrary statements on the point of the presence of the appellants and their participation in burning the deceased. But in the cross-examination, the cat is out of bag when he admits that the truth is that none was present when he along with others had reached the place of occurrence. This negatives the possibility that PWs 3 and 4 could have identified the appellants flying from the scene soon after the occurrence. It appears from the evidence on record that house of Budhan Munda is, at some distance from the place of occurrence. It is highly improbable that the appellants would stayed after committing the crime on the spot for such time so as to risk their identification by the witnesses or other villagers. It appears from the evidence on record that house of Budhan Munda is, at some distance from the place of occurrence. It is highly improbable that the appellants would stayed after committing the crime on the spot for such time so as to risk their identification by the witnesses or other villagers. The circumstantial evidence of PWs 3 and 4 that they had witnesses the appellants fleeing from scene of occurrence is not believable. 16. PW 1 (Suresh Das), a formal witness, has proved the First Information Report (Exhibit 1). He has stated that it is in the writing of Md. Yusuf, who was officer-in-charge of Kuchai Police Station at the relevant point of time. PW 6 in her chief-examination has simply stated that she had given the statement about the occurrence to the police officer who had obtained her thumb impression thereon. Here evidence does not show that the police officer had read over and explained the contents of the First Information Report to her. It appears that its contents were not read over and explained to her at the time of her evidence. PW 6 has stated in her cross-examination that she knows Ho and Mundari languages and no other language. The First Information Report is in Hindi language. In her cross-examination, PW 6 has made candid statement that she narrated the incident in Ho and Mundari languages and Binod Singh, a relative who had accompanied her and who knows Hindi language, had put his thumb impression on the First Information Report. Thus she contradicts her earlier statement that she had put her thumb impression on the Information Report. That apart, there is no mention in the First Information Report it had been interpreted and explained to its author. The police officer who had recorded the First Information Report or said Binod Singh, though present in Court on the date of recording of evidence of PW 6, has not been examined in the present case. Hence, the First Information Report (Exhibit 1), in the circumstances, cannot be used to corroborate the testimony of PW 6. 17. The evidence of PW 6, the sole eye-witness, lacks independent corroboration, direct and circumstantial. It has been noticed above that her evidence is inconsistent with medical evidence as to time of death of deceased and the manner of occurrence. She did not intervene to save her deceased husband from assault. 17. The evidence of PW 6, the sole eye-witness, lacks independent corroboration, direct and circumstantial. It has been noticed above that her evidence is inconsistent with medical evidence as to time of death of deceased and the manner of occurrence. She did not intervene to save her deceased husband from assault. So, it is not safe to rely on testimony of PW 6 on involvement of the appellants in murder of the deceased. 18. The distance between P.O. village (Gumpu) and Kuchai Police Station in 6 Kms. The date and time of occurrence is 3.3.1992 around 7 p.m. But the First Information Report was lodged on 4.3.1992 at 12.30 p.m. Mr. Mishra has tried to explain the delay in lodging the First Information Report on the ground that Guruwari Mundain, the informant, is an Adivasi woman. It is suffice to say that the own Devar of the informant (PW 7) and ocher agnates had knowledge about the alleged occurrence in the evening of 3.3.1992 and they were in the village. They could have promptly lodged the First Information Report with the police station. The explanation for the delay in lodging the First Information Report, in the circumstances of the case, is not convincing. The delay in lodging the First Information Report in the instant case casts about on the truthfulness on the prosecution case. 19. The Investigating Officer has not been examined in the present case But it has caused no prejudice to the defence. 20. In view of the discussions made above and in the facts and circumstances of the case, I am of the view that there may be strong suspicion against the appellants, but suspicion howsoever strong, cannot take the place of proof. Hence, the appellants are entitled to and given benefit of doubt. 21. In the result, this appeal is allowed, and the order of conviction and sentence passed by the Court below against the appellants are set aside and they are acquitted of the charge under Sec. 302/34 and 201/34, IPC. The appellants who are in jail, are directed to set at liberty forthwith, unless they are liable to be detained in any other case.