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2003 DIGILAW 1067 (JHR)

Gomia Munda v. State Of Jharkhand

2003-09-01

AMARESHWAR SAHAY, HARI SHANKAR PRASAD

body2003
JUDGMENT Hari Shankar Prasad, J. 1. The sole appellant, Gomia Munda has filed this criminal appeal against the judgment dated 17.1.1997 and the order of sentence dated 18.1.1997 whereby and where under the learned IInd Additional Judicial Commissioner, Khunti (Ranchi) has convicted and sentenced the appellant to under go R.I. for life under Section 302, IPC. 2. The case of the prosecution in brief is that the informant Manga Munda while taking his meal on 8.4.1995 at about 9 p.m. in front of his house then he heard cry of Sukri Devi and saw that this appellant, Gomia Munda was chasing Sukri Devi and Soma Munda along with a tono in his hand. He attacked and assaulted Sukri Devi with tono, as a result of which, Sukri Devi died instantaneously. Sanichari Devi wife of accused, Gomia Munda informed the informant that when Soma Munda and the appellant Gomia Munda were quarreling, Sukri Devi and Soma Munda threw Gomia Munda on the ground and thereafter this appellant, Gomia Munda, went to his house and brought a tono and with the help of that tono, gave several blow on Soma Munda, as a result of which, he sustained injuries and died. The informant Manga Munda gave his fardbeyan on 10.4.1995 at 2 p.m. before the S.I. Arki PS and on the basis of the fardbeyan, a formal first information report was drawn up on 10.4.1995 and a case was registered under Section 302, IPC. After investigation, the police submitted charge sheet against the appellant. The learned trial Court, after recording the evidence oral and documentary, found the appellant guilty and sentenced him to under go R.I. for life accordingly. 3. The prosecution has examined altogether 10 witnesses including two witnesses have also been examined by the court as court witness, PW 1, doctor, who conducted the post-mortem examination on the dead bodies of Soma Munda and Sukri Devi respectively, has given the description of anti-mortem injuries in his post-mortem report. 3. The prosecution has examined altogether 10 witnesses including two witnesses have also been examined by the court as court witness, PW 1, doctor, who conducted the post-mortem examination on the dead bodies of Soma Munda and Sukri Devi respectively, has given the description of anti-mortem injuries in his post-mortem report. According to PW 1, he found the following ante-mortem injuries on the dead body of Soma Munda : (i) sharp cut injury on the lateral aspect of left leg near knee joint 2 x 1 x 1/2" x 1/2"; (ii) sharp cut injury on left buttock 4" x 2" x 1"; (iii) sharp cut injury on the left forearm 2" x 1", and (iv) sharp cut injury on left temporal region 4" x 3" x 1" cutting soft. Tissues of bone and brain matters. Cranial cavity filled with blood clot. The following injuries were found on the dead body of Sukri Devi : (i) sharp cut injury on the left side of face extending from middle chin to left Mustoid region 6" x 2" x 1/2", (ii) sharp cut injury on the middle of neck, cutting soft tissues and trachea 4" x 2", and (iii) sharp cut injury on left shoulder 3" x 2". 4. The doctor has opined that injury No. (iv) on Soma Munda and injury No. (ii) on Sukri Devi were enough and sufficient to cause their death. He further came to the conclusion that the sharp cutting injuries may be caused by tono and the time of death is within 48 hours in each case. 5. PW 2, Manga Munda, who is informant of this case as well as eye-witness to the occurrence, has been declared hostile by the prosecution. He has not supported the case of the prosecution in any way. PW 3 is Budhu Munda. He, too has been declared hostile by the prosecution as he has not supported the prosecution case. PW 4, Rang Singh Munda has been tendered for cross- examination. PW 5, Marcus Munda is a witness on the inquest report and has identified his signature on both the inquest reports which has been marked as Ext. 2 and 2/A. He has not stated any thing about the occurrence nor he is an eye-witness. PW 6, Sania Devi, has been declared hostile as she has not supported the prosecution case. PW 5, Marcus Munda is a witness on the inquest report and has identified his signature on both the inquest reports which has been marked as Ext. 2 and 2/A. He has not stated any thing about the occurrence nor he is an eye-witness. PW 6, Sania Devi, has been declared hostile as she has not supported the prosecution case. Similarly PW 7, Pran Munda is also a witness on the inquest reports and he has identified his signatures on the inquest report which have been marked as Exts. 2/B and 2/C. PW 8 Sadbe Munda has also been declared hostile, as he has not supported the prosecution case. CW 1, Bishnu Chandra Mishra is Court witness who has proved Ext. 3. He has come to say that the statement under Section 164, Cr PC was recorded by Seema Sinha, Judicial Magistrate, Khunti and he has identified his signature and hand writing of Seema Sinha. Shaligram Choudhary has been examined as Court witness No. 2. He is also a formal witness and has proved fardbeyan Ext. 4. 6. All the non-official witnesses, examined in this case, do not know Hindi and as such, interpreter was provided by the court but the fardbeyan of Mango was recorded it Hindi although he does not know Hindi. Similarly, statement recorded under Section 164, Cr PC does not disclose that any interpreter was provided to Soma at the time of recording his statement under Section 164, Cr PC. He has stated that he does not know Hindi. 7. The judgment is based on the basis of confessional statement made by appellant under Section 164, Cr PC, in which this appellant has confessed his guilt that he committed the murders. The confessional statement of, this appellant has been recorded by the learned Judicial Magistrate but the same appellant when his statement was recorded under Section 313, Cr PC stated that he does not know Hindi and, therefore, an interpreter was provided to him, who explained the statement of the appellant to the court and appellant denied the allegations made against him. The confessional statement of appellant was recorded in Hindi but there is no certificate to the effect that through an interpreter he gave statement before the Court. The confessional statement of appellant was recorded in Hindi but there is no certificate to the effect that through an interpreter he gave statement before the Court. The learned Judicial Magistrate, who recorded the statement has not been examined to prove the confessional statement rather a witness, who was called as a court witness, came and prove the confessional statement but it could not be brought on record whether an interpreter was provided to him and this could have been explained by the learned Judicial Magistrate whether she has provided any interpreter to him to make his statement or simply of her own recorded the statement. Hence this confessional statement of the appellant cannot be used against him because of the discrepancy as pointed out. Besides there is no other piece of evidence against the appellant to connect him with the alleged murders because all the eyewitnesses have turned hostile and have not supported the prosecution case that this appellant committed the murders. 8. From the findings arrived at above, we are of the view that the prosecution has not been able to prove the occurrence beyond all reasonable doubts and in the result, this appeal is allowed and judgment of conviction and order of sentence is set aside and appellant is acquitted of the charges levelled against him. Since the appellant is in jail, he is directed to be released forthwith, if not wanted in any other case.