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2000 DIGILAW 30 (JHR)

Gandura Munda v. State of Bihar

2000-12-04

A.K.PRASAD, S.N.MISHRA

body2000
Judgment : By Court.-This appeal at the behest of both the appellants is directed against the judgment and orders dated 13.5.1994 passed by Sri S.K. Mishra, the then Addl. Judicial Commissioner, Lohardaga, in S.T. No. 647 of 1992, whereby and whereunder they have been convicted under sections 302/34 of the Indian Penal Code, on the charge of committing the murder of Naresh Munda in furtherance of common intention, and sentenced to• undergo rigorous imprisonment for life. 2. Briefly put, the prosecution case, as made out in the fard-beyan (exhibit 7) of Dhadhura Munda (the informant) recorded by the then Officer-in-charge of Kisko Police Station, namely, Y.N. Singh, on 15.5.1992 at 4 AM at village Salaiya Kasi Tam, within Police Station Kisko, district Lohardaga and as elucidated in evidence is as under : Appellant Gandura Munda is the father of co-appellant Tetra Munda. The informant with his family, the appellants and deceased Naresh Munda lived in separate rooms in their joint family house, situate at village Salaiya Kasi Tanr with common court-yard. The portions of the house in their occupation had separate exit to the court-yard. The deceased Naresh Munda was the youngest brother of the informant Dhadhura Munda, while appellant Gandura Munda is his elder brother. The informant was in his room on 14.5.1992 when at about 8.30 PM he over-heard the altercation and quarrel between the appellants, on the one hand, and Naresh Munda, on the other, over some past events, whereupon the informant came into the common court-yard and he found that the appellant Gandura Munda was catching hold of Naresh Munda, while Tetra Munda, the other appellant, dealt 3-4 are blows to Naresh Munda, who fell down, after sustaining the wounds. The informant further alleged in the fard-beyan that on the instigation of Gandura Munda, his son Tetra Munda cut more than half portion of the back of the neck with axe .and, ultimately, Naresh Munda died instantaneously on the spot. Meanwhile, Chintamani Devi (PW.1), wife of the informant, had witnessed the murderous attack on the deceased and she ran out of the home and rushed to the nearby house of Bandhan Lohar (P.W.2), the Chowkidar, and narrated the incident to him. Meanwhile, both the appellants chased the informant to assault him, who raised hue and cry and reached the house of the Chowkidar and narrated the whole incident to him. Meanwhile, both the appellants chased the informant to assault him, who raised hue and cry and reached the house of the Chowkidar and narrated the whole incident to him. Thereafter the Chowkidar (P.W. 2), Fagun Munda (P.W. 12), Etwa Munda (P.W. 6) and other villagers arrived and with their assistance the Chowkidar (Bandhan Lohar) snatched the blood stained Tangi, the weapon of offence, from the possession of appellant Tetra Munda, and both the appellants/accused were nabbed and information about the occurrence was given by the informant to the police station through some villagers, namely, Fagun Munda (P.W. 12) and Pitambar Nayak (P.W. 3). On the information, so received, at the police station, the Police Officer (P.W.13) after recording the Station Diary entry No. 304 dt. 15.5.1992, with police force, went to the spot and recorded the fard-beyan (exhibit 7). On its basis, the present case came to be instituted, the formal first information report (exhibit 8) was drawn up, the police officer (P.W. 13) assumed and commenced the investigation, inspected the place of occurrence, held inquest over the dead body and sent the dead body for post-mortem examination, took charge of the small axe, the alleged weapon of offence, under production-cum-seizure list (exhibit 9). On completion of investigation, charge-sheet was laid in court against the accused/appellants. The case was, ultimately, committed to the court of Sessions by Sri Ramjee Prasad, the then Sub-divisional Judicial Magistrate, Lohardaga, on 12.8.1992. 3. The main defence is of innocence, bare denial of the involvement/participation of the accused/appellants in the occurrence and of false implication. 4. At the trial, the prosecution examined 13 witnesses in support of its case. Out of them, P.W. 5 (Ram Nath-Naik) P.W. 8 (Birendra Lohra), and P.W. 9 (Vinod Munda) are tendered witnesses. P.W. 1 (Chintamani Devi), wife of the informant, is the sale eye-witness to the alleged assault made on the deceased. The other P.Ws. are : P.W. 2 (Bandhan Lohar), the Chowkidar, P.W. 3 (Pitambar Naik), P.W. 4 (Timbu Naik), PW. 6 (Etwa Munda), P.W. 7 (Baldeo Lohra), P.W. 10 (Shri Viswanath), the then Judicial Magistrate, who recorded the statement of the informant, Dhadhura Munda and P. W. 1 (Chintamani Devi) under section 164 of the Cr. PC., P.W. 11 (Dr. Sunil Minz), who held autopsy on the dead body of Naresh Munda, P.W. 12 (Fagun Munda) and P.W. 13 (Yadu Nandan Singh), the Investigating Officer. PC., P.W. 11 (Dr. Sunil Minz), who held autopsy on the dead body of Naresh Munda, P.W. 12 (Fagun Munda) and P.W. 13 (Yadu Nandan Singh), the Investigating Officer. The defence, on the other hand, examined no witness. 5. On consideration of the evidence and materials on record and mainly relying on the testimony of P.Ws. 1 and 2 as well as the medical evidence, the trial court held the appellants guilty of the charge under sections 302/34 of the IPC and convicted and sentenced them in the manner, stated above. 6. Mr. G.C. Sahu, learned counsel for the appellants, has fairly submitted that the defence does not dispute the identity of the place of occurrence or the fact that the deceased had met with homicidal death on the fateful night. But he has assailed the impugned conviction and sentence mainly on the grounds that the evidence of P.W. 1, the so called solitary eye-witness to the occurrence, is not reliable and there is discrepant evidence of P.W. 2 that he had produced the blood stained axe before the police officer at the police station itself, while the production-cum-seizure list (exhibit 9) shows that it had been produced by the informant and taken charge of by the police officer at the P.O. village itself. He further submitted that the evidence of P.Ws. 2 and 7 that appellant Tetra Munda had made extra-judicial-confession is not worthy of credence because there is no mention in the fard-beyan that any extra-judicial-confession had been made by the appellant (Tetra Munda). In the alternative, Mr. Sahu has urged that the case does not come within the ambit of sections 302/34 of the Indian Penal Code because there is no evidence to suggest that there was pre-arranged plan to murder the deceased and in the fard-beyan itself it is alleged that there was altercation and quarrel between the parties and in such circumstances, the appellants are, at best, may be liable for the offence under section 304, Part-II of the Indian Penal Code. Mr. K.K. Jhunjhunwala, learned APP appearing on behalf of the State, on the other hand, has supported the impugned orders of conviction and sentence. 7. Now the point which arises for consideration is : whether the impugned orders of conviction and sentence can be sustained. Mr. K.K. Jhunjhunwala, learned APP appearing on behalf of the State, on the other hand, has supported the impugned orders of conviction and sentence. 7. Now the point which arises for consideration is : whether the impugned orders of conviction and sentence can be sustained. Before proceeding further, it may be pointed out here that according to the prosecution case itself, as stated in the fard-beyan, on the fateful night the deceased was alone in his house because his wife had been admitted to the Mission Hospital, Lohardaga, for treatment. 8. The time and place of occurrence has not been disputed before us by Mr. Sahu. The fact that Naresh Munda, the younger brother of the informant and appellant Gandhura Munda met with homicidal death is not in controversy. Here, in brief, one may advert to the medical evidence. P.W. 11 (Dr. Sunil Minz) has testified to the effect that on 15.5.1992 (at about 10.30 AM.) he held post-mortem examination on the dead-body of Naresh Munda and he found the following ante- mortem wounds on his person : "A. External injuries: (1) Lacerated wound 4" x 3" x bone deep on back of neck. (2) Lacerated wound 2" x 1" x bone deep on occipital bone area. (3) Lacerated wound about 2" x 1" x bone deep on right side of parietal bone area" According to him, on internal examination of cranial cavity, there was fissured fracture of occipital and right parietal bones and cranial cavity contained dark coloured blood. He has further stated that 3rd cervical vertebra and 4th cervical vertebra were fractured. He has opined that the injuries were caused by hard- sharp substance, may be by axe, and the time elapsed since death was within 12-20 hours of the post-mortem examination. He has further opined that the death was due to shock and haemorrhage, caused by the injuries of neck and head. Exhibit 6 is the post-mortem examination report in his pen. A faint argument was made by Mr. Sahu that lacerated wounds are not possible by axe. It is suffice to say that axe, which are generally used in villages for cutting twigs and branches are not so sharp, like a sword or knife and when such weapons are used on head or neck, they are likely to cause lacerated wounds/injuries also (ref. : 1994 SCC (Cr.) 275 : Madhusudan Choudhury and ors. It is suffice to say that axe, which are generally used in villages for cutting twigs and branches are not so sharp, like a sword or knife and when such weapons are used on head or neck, they are likely to cause lacerated wounds/injuries also (ref. : 1994 SCC (Cr.) 275 : Madhusudan Choudhury and ors. vs. State of Andhra Pradesh). The medical evidence fits in with the prosecution case about the probable time of the occurrence and the nature of weapon, used in the assault on the deceased. Besides, there is occular testimony of P.W. 1, the eye-witness, that the assault was made on the deceased with an axe, as a result of which he died. Apart from that, there is testimony of P.Ws. 2, 3, 4, 6, 7 and 12 that when soon after the occurrence they went to the place of occurrence, which is a common court-yard of the parties, they found that the deceased lay in pool of blood with wounds on his person. The medical and occular evidence establish beyond doubt that death of the deceased was homicidal. 9. The crucial point which now falls for consideration is : whether the appellants were instrumental in causing the death of the deceased. 10. The prosecution case on the point hinges primarily on the testimony of P.W. 1 (Chintamani Devi), the widow of the deceased/informant Dhadhura Munda. At this juncture it may be mentioned that the informant, the other eye-witness, died during the pendency of the case and this evidence could not be recorded at the trial. He was not a victim in the incident. Hence, the fard-beyan (exhibit 7) or his statement recorded under section 164 Cr. P.C. (exhibit 5) cannot be used as substantive evidence in the case. Still the fard-beyan (exhibit 7) may be used for the limited purpose of stating the earliest version of the prosecution case. It is true that P. W. 1 is related both to the deceased as well as the appellants. It is well settled that the evidence on an eyewitness is not to be discarded simply on the ground of relationship. But such evidence has to be scrutinised with care and caution. Conviction can be based on the evidence of solitary eye-witness, if it is clear, cogent and wholly reliable, even without corroboration. It is well settled that the evidence on an eyewitness is not to be discarded simply on the ground of relationship. But such evidence has to be scrutinised with care and caution. Conviction can be based on the evidence of solitary eye-witness, if it is clear, cogent and wholly reliable, even without corroboration. But where the evidence of solitary eye- witness is wholly un-reliable, it has to be discarded in toto, but where the evidence of solitary eye witness is not wholly reliable in the sense that he/she could have interest in the prosecution, the court will require some independent corroboration of his/her testimony in material particulars before recording the conviction. For this proposition of law, on appreciation of evidence of solitary eye-witness, one may rely on the decision of the Apex Court reported in (i) AIR 1957 SC 614 (V. Thevar vs. State of Madras) (ii) (1997) 10 SCC 197 (Pandappa Hanumappa Hanamar vs. State of Karnataka) and (iii) (1994) 4 SCC 549 (Marwadi Kishore Parmanand vs. State of Gujrat). Hearing the aboe principles in mind, at the out set one may proceed to discuss and evaluate the testimony of P.W. 1. 11. P. W. 1 (Chintamani Devi) has stated in her chief-examination that on the fateful day at about 8 PM. she was in her house, while the appellants and the deceased resided in other pertions of the same house, which have common courtyard, when the appellants brought out Naresh Munda, the deceased from his home and appellant (Gandura Munda) had over-powered him, while appellant Tetra Munda was dealing Tangi blows to him (the deceased). She has further stated that Tetra Munda inflicted axe blow to the deceased Naresh Munda on his neck. She goes on to say that when she saw the murderous assault on Naresh Munda she ran to the house of Chowkidar P.W. 2 (Bandhan Lohar), which is at a short distance from her house and narrated the incident and disclosed to him that both the appellants had inflicted cut wounds to the deceased. She has further stated that the Chowkidar narrated the incident to the villagers, snatched the axe, the weapon of offence, apprehended both the appellants and took them to the police station. She has further stated that the Chowkidar narrated the incident to the villagers, snatched the axe, the weapon of offence, apprehended both the appellants and took them to the police station. She has further testified to the effect that Naresh Munda died on the spot, as a result of the assault made on him, and she had given her statement before the police and her statement under section 164 Cr. P.C. was recorded by Judicial Magistrate (PW. 10) during investigation of the case. It has come in her cross-examination that at the time of the occurrence, the wife of Naresh Munda (the deceased) was not in the house, as she had been admitted to the Mission Hospital for treatment. She has reiterated in the cross-examination that on the night of the occurrence, itself she had rushed to the Chowkidar and promptly reported the incident to him. She has fairly admitted in her cross-examination that some case was going on between her family and the family of the appellants. Her statement that appellant Gandura Munda was catching hold of the deceased at the time the assault was made on him by Tetra Munda has not been challenged in her cross-examination. Inspite of searching cross-examination she is consistent in her evidence that the appellants took active part in causing the death of the deceased. Nothing has been elicited in her cross-examination to show that there is vital contradiction in her evidence vis-a-vis her testimony in court and her statement made before the police. She was residing in a portion of the same joint family house of the parties. Each portion in the occupation of the parties had a exit to the common court-yard. Her presence at the time of the occurrence on the spot cannot be doubted. She is a natural witness to the occurrence. Her evidence gets corroboration from the medical evidence as well as the evidence of the Chowkidar (P.W. 2). It does not stand to reason as to why P. W. 1, the common relation of the parties, would spare the real culprits and falsely implicate the appellants. Her testimony further gets support by the objective find by the Investigating Officer (P.W. 13) of plenty of blood in the common court-yard, which is the place of occurrence. P. W. 1 is a straight forward witness. Her testimony further gets support by the objective find by the Investigating Officer (P.W. 13) of plenty of blood in the common court-yard, which is the place of occurrence. P. W. 1 is a straight forward witness. Her evidence gives the ring of truth and there is no reason to discard her testimony which is clear, cogent and reliable on the active involvement of the appellants in the murder of the deceased. That apart, her statement under section 164 Cr. P.C. (exhibit 4), which was recorded by P.W. 10, in substance, corroborates the testimony on the involvement of the appellants in the occurrence. P.W. 2 (Bandhan Lohar), the Chowkidar, has testified to the effect that on the date of occurrence at about 9 PM. Chintamani Devi (P. W. 1) rushed to his house and reported that the appellants had done Naresh Munda to death. He corroborates the testimony of P.W. 1 that he had immediately disclosed the incident and the names of the assailants/appellants as the culprits involved in the murder of the deceased. P.W. 2 has further stated that on his call the other villagers assembled and with their assistance he had dis-armed Tetra Munda, who was holding the blood stained Tangi and had apprehended both the appellants whom he had taken to the police station and on the way he happened to meet the police officer, who directed to take them to the police stations. P.W. 3, 4, 6, 7 and 12 have testified to the effect that on the call of the Chowkidar they had assembled, Tetra Munda was dis-armed of the blood stained weapon of offence by the Chowkidar and the appellants were apprehended by the Chowkidar. P.W. 6 (Etwa Munda), who lives in front of the house of the Chowkidar has further stated that P.W. 1 had visited the house of the Chowkidar shouting that the appellants had killed Naresh Munda. P.Ws. 2 and 7 have stated that Tetra Munda had made extra-judicial confession before them that he had done the deceased to death. No cross-examination has been directed by the defence on the point that the appellant Tetra Munda had made extra-judicial confession before P.Ws. 2 and 6. The defence had not questioned them as to whether they had made such statement before the Investigating Officer, touching on the question of extra-judicial confession. No cross-examination has been directed by the defence on the point that the appellant Tetra Munda had made extra-judicial confession before P.Ws. 2 and 6. The defence had not questioned them as to whether they had made such statement before the Investigating Officer, touching on the question of extra-judicial confession. It is true that by nature extra- judicial confession is weak type of evidence. Statement of P.Ws. 2 and 7 that extra-judicial confession has been made by the appellant Tetra Munda cannot be discarded, in the circumstances, mainly because it does not find mention in the fard-beyan (exhibit 7). We find no reason to disbelieve the testimony of P.Ws. 2 and 7 that appellant Tetra Munda had made extra judicial confession before P.Ws. 2 and 7, admittinig his guilt. The evidence of P.W. 2 that P.W. 1 had immediately disclosed the names of the appellants as the assailants of the deceased and that appellant Tetra Munda had made extra-judicial confession lend assurance to the testimony of P.W. 1 (Chintamani Devi), the solitary eye-witness, on the point of active participation of the appellants in the murder of the deceased. P. W. 13 (Yadunandan Singh), the Investigating Officer, has stated that he had found plenty of blood on the spot where the deceased had been done to death and the joint house of the parties is situate at a solitary place in the western side of the the P.O. village and under production-cum-seizure memo (exhibit 9) he had taken charge of the blood stained axe, which had been produced before him in presence of the villagers and the villagers had apprehended both the appellants with the weapon of offence. It is true that in the production-cum-seizure memo (exhibit 9) it is mentioned that the blood stained axe had been produced by the informant at the house of the deceased, while P.W. 2 had stated in his cross-examination that he had handed it over to the police officer at the police station. It may be that after the seizure, the weapon might have been entrusted by the police officer to the Chowkidar (P.W. 2) for carrying it to the police station. Be that as it may, it is a minor, not vital, contradiction which does not go to the root of the prosecution case. It may be that after the seizure, the weapon might have been entrusted by the police officer to the Chowkidar (P.W. 2) for carrying it to the police station. Be that as it may, it is a minor, not vital, contradiction which does not go to the root of the prosecution case. P. W. 13 has stated that he had sent the seized weapon of offence to the Forensic Science Laboratory for examination and report. But the expert's report has not been received. The Police Officer has not been cross-examined by the defence in the case. In the facts and circumstances of the case, the absence of the report of the chemical examiner with respect to the blood stains on the seized axe does not materially affect the prosecution case because there is otherwise reliable and weighty evidence that the weapon used by the appellant Tetra Munda in causing the death of the deceased had been seized by the Chowkidar (P.W. 2) and as noticed above there is clear,. cogent and reliable ocular testimony of P.W. 1 that both the appellants had caused the death of the deceased. 12. Now it has to be considered as to what offence has been committed by the appellants. Mr. Sahu vehemently contended that in the fard-beyan (exhibit 7) it is stated that there was altercation and quarrel on the past event between the appellants, on the one hand, and the deceased, on the other, and so, in the circumstances, it can be inferred that there was sudden and grave provocation which led to the unfortunate incident and there was no intention of the appellants to cause the death of the deceased and the appellants can be held liable for the offence under section 304, Part-II of the Indian Penal Code for causing the death of the deceased. It has not been brought on record by the defence about the nature of the altercation and whether any offending language had been used by the deceased. P.W. 1 has clearly stated in her evidence that both the appellants brought the deceased Naresh Munda from the portion of his house and appellant Gandura Munda was catching hold of Naresh Munda (the deceased) when Tetra Munda, the other appellant, dealt Tangi blows to the deceased (Naresh Munda). P.W. 1 has clearly stated in her evidence that both the appellants brought the deceased Naresh Munda from the portion of his house and appellant Gandura Munda was catching hold of Naresh Munda (the deceased) when Tetra Munda, the other appellant, dealt Tangi blows to the deceased (Naresh Munda). She is categorical in her statement that she had witnessed the axe blow dealt by Tetra Munda to the deceased on his neck, vital part of the body. No cross-examination of P.W. 1 has been done by the defence to bring on record whether any provocative word/act had been used by the deceased. It has not come on record nor it is stated in the fard-beyan that the deceased was armed. In their examination under section 313 Cr. P.C., the accused persons do not whisper that any provocation, much less grave and sudden provocation, had been given by the deceased, which led to the attack by them on him. The medical evidence, gist of which has been indicated above, shows that repeated blows were dealt to the deceased with axe, a deadly weapon, and the deceased collapsed dead on the spot. 13. An argument was made by Mr. Sahu that for sustaining the conviction under section 302 with aid of section 34 of the Indian Penal Code, there should be pre-arranged plan or meeting of mind. The pre-arranged plan and meeting of mind may develop on the spot. The conduct of the accused, preceding, attending and following the occurrence is relevant to find out as to whether he shared the common intention. Here, appellant Gandura Munda had over-powered the deceased and Tetra Munda, his son, had given repeated axe blows to the deceased. The evidence of PW. 1 is that before the assault was made on the deceased, he was forcibly brought out of his house into the common court-yard and then subjected to the murderous attack. So, in our considered view, in the facts and circumstances of the case, the murderous attack on the deceased was made in furtherance of common intention. The case does not come within the ambit of section 304, Part-II of the Indian Penal Code. On close scrutiny of the evidence and materials on record, we are of the considered view that the trial court rightly convicted and sentenced the appellants under sections 302/34 of the Indian Penal Code. 14. The case does not come within the ambit of section 304, Part-II of the Indian Penal Code. On close scrutiny of the evidence and materials on record, we are of the considered view that the trial court rightly convicted and sentenced the appellants under sections 302/34 of the Indian Penal Code. 14. In the result, this appeal is dismissed, having no merit. The orders of conviction and sentence passed against the appellants by the trial court are affirmed.