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2000 DIGILAW 996 (PAT)

Joseph Munda Alias Jasua Munda v. State Of Bihar

2000-08-14

A.K.PRASAD, N.PANDEY

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Judgment N.Pandey, J. 1. This appeal has been preferred against the judgment dated 30.8.1991 in Sessions trial No. 412 of 1989 whereby appellant Joseph Munda alias Jasua Munda was convicted under Sec. 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. The case of the prosecution, in brief, is that on 7.9.1987 at about 10 a.m. deceased Sulo alias Suleman Munda, cousin of the informant, had gone to Survey Camp along with the appellant. When Suleman Munda did not return to his house, the informant became apprehensive and started searching with one Poulas Munda. When both of them moved to a distance of 2 kms., they noticed the dead-body of Suleman Mian lying by the side of the Pagdandi. The informant noticed that Suleman had injury on his stomach. The informant, thereafter, went to the house of the appellant but he was not there. Thereafter, a detailed report was submitted to the Police on the basis of which a regular First Information Report was registered. The Police took-up investigation and ultimately having found a. prima facie case, submitted charge-sheet against the appellant whereupon the learned Chief Judicial Magistrate took cognizance of the offence and ultimately committed the case to the Court of Sessions calling upon the appellant to face trial. 3. The defence of the appellant, as would appear from his statement under Sec. 313 of the Code of Criminal Procedure and the trend of cross-examination of the witnesses, was total denial of the occurrence. 4. The prosecution, in support of its case, had examined altogether five witnesses. Out of them, P.W. 1 Prabhu Sahay Munda is the informant of the case and has supported the case before the Court. He is, however, not the eye-witness of the occurrence. P.W. 2 Tima Munda is the father of the deceased. On the day of the occurrence, he was residing in a village Toabakocha. He has stated that Mikhail Munda (P.W. 3) and Lukas Munda (P.W. 4) had come to his house in the night of the occurrence and stayed there. Both these witnesses had gone to Marang Piri Tariri the Company of Lucas Munda. Both of them had stated that on the way while coming back, this appellant and the deceased were quarreling. In the meantime, this appellant caused vital injury on the person of the deceased with a dagger. 5. Both these witnesses had gone to Marang Piri Tariri the Company of Lucas Munda. Both of them had stated that on the way while coming back, this appellant and the deceased were quarreling. In the meantime, this appellant caused vital injury on the person of the deceased with a dagger. 5. P.W. 3, as stated above, is Mikhail Munda who had also gone to the market to purchase rice and when he was returning, he met with the appellant and the deceased. He has also stated that the appellant and the deceased were quarrelling in the way. But, since he proceeded ahead of both the persons, he could not see the actual part of the occurrence. P.W. 4 Lucas Munda is the only eye-witness to the occurrence. He had also gone to the market to purchase flour from the shop of Khalifa Munda. He has stated that while returning from the market, he met the appellant and the deceased near Mangara Pirhi. He further said that on the way a quarrel took place between the appellant and the deceased whereupon this appellant took out his dagger and assaulted the deceased. He, however, fled away from the place of occurrence and informed the father of the deceased. 6. P.W. 5 Govind Pathak is the Investigating Officer of the case. He had recovered a dagger from the house of the appellant during investigation but the said dagger was not produced before the Court. In this case, the doctor was not examined and, therefore, the post-mortem report of the deceased was tendered in evidence under Sec. 294 of the Code of Criminal Procedure and marked Exhibit-7. From the post-mortem report also the case of the prosecution is being supported that the deceased died on account of the injuries caused by the dagger blow on his abdomen. 7. Learned Counsel for the appellant, contended that as would appear from the case of the prosecution, the First Information Report was lodged on the basis of the report which was written by the Mukhiya of the village. But the prosecution has deliberately did to examine the said Mukhiya before the Court nor there was any explanation under what circumstances the Mukhiya was not examined. He further contended although as would appear from the evidence of P.Ws. But the prosecution has deliberately did to examine the said Mukhiya before the Court nor there was any explanation under what circumstances the Mukhiya was not examined. He further contended although as would appear from the evidence of P.Ws. 3 and 4, they had noticed a quarrel between the appellant and the deceased and had also noticed that the appellant had given a dagger blow which ultimately proved fatal, but surprisingly, the informant failed to disclose all these facts in the F.I.R. If these two witnesses had actually seen the occurrence, it was quite natural on the part of the prosecution to disclose such facts in the F.I.R. 8. Learned Counsel then contended that in any view of the matter, having regard to the nature of allegation and since there was no pre-planning for such an occurrence, the conviction of the appellant under Sec. 302, I.P.C. appears quite excessive. Because unless and until it is proved by the prosecution that the appellant had given the dagger blow to the deceased with full intention and pre-plan to commit his murder, conviction under Sec. 302, I.P.C. should not sustain. 9. In our view, true it is that the informant has to disclosed in the First Information Report the manner in which the appellant had assaulted the deceased with dagger but as would appear from the evidence of P.Ws. 3 and 4, in the night of the occurrence, they had not gone to their village rather they had stayed at the house of the father of the deceased in village Toabakocha. Both these witnesses had also informed him about the occurrence. The informant in fact on the day of the occurrence was residing in village Chutiyabara. Therefore, he could not meet P.Ws. 3 and 4 before going to the Police for recording the First Information Report. Therefore, taking into consideration the facts noticed above, simply because the informant had failed to disclose the case of the incident in the F.I.R., the credibility of the prosecution version cannot be doubted. P.W. 2, the father of the de-ceased has stated before the Court that in the night of the occurrence, both P.Ws. 3 and 4 had come to his house and narrated the incident. P.W. 2, the father of the de-ceased has stated before the Court that in the night of the occurrence, both P.Ws. 3 and 4 had come to his house and narrated the incident. Although P.W. 3 has not stated before the Court that he had also seen the appellant giving dagger blow but he has supported the case of the prosecution that an altercation took place between the deceased and the appellant. That apart, we have already noticed that P.W. 4 has fully supported the case of the prosecution because at the time of the occurrence, he was also returning back to the village along with the deceased and the appellant. This witness was cross examined at length by the defense but nothing could be pointed out on the basis of which his testimony can be doubted. 10. Therefore, in the background of the facts noticed above, there cannot be any manner of doubt that death of Suleman Munda was caused due to the dagger injury given by this appellant. But we have already noticed that there was no enmity between the appellant and the deceased. Plain and simply case of the prosecution is that both of them had gone to the Survey camp and were returning back together. From the evidence of P.Ws. 3 and 4, it would appear while they were returning back to the village, there was some altercation and the appellant took out dagger and assaulted. 11. Therefore, from the facts as noticed above, a doubt certainly arises whether the blow given by this appellant to the deceased was with an intention to commit murder. There is no allegation that the appellant was on inimical term. This is also not the case of the prosecution that the appellant had gone with the deceased with intention to commit his murder. True it is, on the way when both of them were returning in altercation took place and the appellant gave a dagger blow which ultimately proved fatal. There is no allegation that the blow was ever repeated. Therefore, a doubt certainly arises whether the injury caused to the deceased but the appellant was with an intention to commit his murder. At best such an act of the appellant would make out a case under Sec. 304, Part II, I.P.C. 12. There is no allegation that the blow was ever repeated. Therefore, a doubt certainly arises whether the injury caused to the deceased but the appellant was with an intention to commit his murder. At best such an act of the appellant would make out a case under Sec. 304, Part II, I.P.C. 12. We, therefore, taking into consideration the facts stated above, are of the view that the ends of justice would be served by converting the conviction of the appellant from Sec. 302, I.P.C. to one under Sec. 304, Part II, I.P.C, with a sentence of 10 years rigorous imprisonment. It would also be proper to notice that from a bare reference to the judgment of the trial Court, it would appear that this appellant is in custody since 12.9.1987 i.e. virtually of about 13 years. Accordingly, with the above modification of the conviction and sentence, this appeal is dismissed. The appellant, if not required in any other case, shall be released from the jail custody forthwith.