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2003 DIGILAW 121 (JHR)

Dubraj Munda v. State Of Jharkhand

2003-01-24

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2003
JUDGMENT Vishnudeo Narayan, J. 1. This appeal has been directed by the appellant named above against the impugned judgment dated 6-4-2000 passed in Sessions Trial No. 222 of 1993 by Shri S.K. Mishra, Additional Sessions Judge, Seraikella, Singhbhum West whereby and whereunder the appellant was found guilty for the offence under Section 302 of the Indian Penal Code for committing the murder of Bondro Munda, father of the informant, and he was convicted and sentenced to undergo R.I. for life. 2. The prosecution case has arisen on the basis of the fardbeyan (Ext.-3) of informant, Goma Munda, son of the deceased recorded on 15-4-1993 at 15.15 hours at village Tola Turidih by S.I. Md. Yusuf of Kuchai P.S. regarding the occurrence which is said to have taken place on 14-4-1993 at 17.00 hours in village Mutugoda Tota Turidih, P.S. - Kuchai, Seraikella, West Singhbhum. The case was instituted on 15-4-1993 at 20.00 hours. Exhibit-2, the formal FIR was received in the Court of Additional Chief Judicial Magistrate, Seraikella on 16-4-1993. 3. The prosecution case, in brief, in brief, is that the appellant, Dubraj Munda was abusing his mother and co-accused, Dugga Muda was instigating him. It is alleged that Bondro Munda, the deceased of this case, asked them not to abuse her and they became annoyed and they chased the deceased to commit his murder in furtherance of their common intention. It is alleged that Bondro Munda aforesaid ran from there and he was chased by the appellant along with Dugga Munda and this appellant was armed with bow and arrow and the appellant shot an arrow on Bondro Munda which did hit at the chest of the deceased who fell down in the field, south of the house of Man Mohan Singh Munda and he died there. It is also alleged that the said occurrence has been witnessed by Mangal Singh Munda, Mohan Singh Munda, Kalapati Singh Munda and others. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case due to enmity. 5. The prosecution has examined in all four witnesses to substantiate the charge levelled against the appellant. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case due to enmity. 5. The prosecution has examined in all four witnesses to substantiate the charge levelled against the appellant. PW-2, Mangal Singh Munda and PW-3, Mohan Singh Munda are the witnesses named in the fardbeyan (Ext.-3) of the informant as the ocular witnesses of the occurrence. PW-1 Dr. Mridula Tiru has conducted the postmortem examination on the dead-body of the deceased and the post-mortem as per her pen is Ext.-1 in the case. PW-4 is a formal witness, who has proved the fardbeyan and the formal FIR, Ext.-3 and 2 respectively. The informant has not taken oath in this case as he died during the pendency of this case. Ruibai Mundian, the mother of the appellant, Dubraj Munda and the I.O. have not taken oath in this case for the prosecution. No oral and documentary evidence has been adduced on behalf of the defence. 6. Assailing the impugned judgment as unsustainable and against the weight of the evidence on the record it has been submitted by the learned Counsel for the appellant that the appellant, Dubraj Ivlunda is the son of Ruibai Mundian, the daughter of Bondro Munda, the deceased of this case and co-accused, Dugga Munda who is not on trial in this case as he has absconded, is that father of the appellant and the husband of Ruibai Mundian aforesaid whereas informant, Gama Munda since dead and not examined in this case by the prosecution, is the son of the deceased, Bondro Munda and there is evidence on the record to establish the fact that there were very cordial relationship between the appellant and the deceased and the appellant was also living in the house of the deceased and there is no reasons for the appellant to commit the murder of the deceased as alleged. It has also been submitted that there is total absence of any legal evidence on the record to substantiate the genesis of the occurrence as averred in the fardbeyan of informant, Goma Munda and it is a fatal lacunae of the prosecution case due to the non-examination of Ruibai Mundian, the mother of the appellant in this case for the prosecution. The learned Court below did not consider this aspect of the matter at all. It has also been submitted that according to the prosecution case, the deceased was chased by the appellant and co-accused, Dugga Munda and the appellant was armed with bow and arrow in course of chase and the appellant is said to have shot an arrow at the chest which caused injury on his chest. P.W. 1, the medical witness has also found penetrating wound on the right side of chest at the level of 5th inter costal space and in view of the averments aforesaid the manner of occurrence causing a penetrating wound shot by arrow on the chest of the deceased by the appellant in course of chase, is highly improbable which equally casts a cloud of suspicion to the very creditability of the warp and woof of the prosecution case and in this view of the matter the defence version that the deceased had sustained injury due to fall on the rockey ground somewhere else appears to be natural and probable in this case. It has also been submitted in this connection that the arrow has not been found in course of investigation embedded in the chest of the deceased and the prosecution case is conspicuously silent as to what happened to the said arrow specifically when there is no averment in the fardbeyan that the appellant had taken away the said arrow. It has also been submitted that in view of the evidence of PW-2, PW-3. cannot be termed as an ocular witness of the occurrence and the testimony of PW-3 is fit to be brushed aside and the solitary testimony of PW-2 uncorroborated in material particulars is equally not worthy of credit to fasten the guilt of the appellant in the facts and circumstances of the case. Lastly, it has been submitted that serious prejudice has been caused to the appellant due to the non-examination of the I.O. in this case as he stands debarred of the opportunities of eliciting the facts showing his innocence in the cross-examination of the I.O. 7. Lastly, it has been submitted that serious prejudice has been caused to the appellant due to the non-examination of the I.O. in this case as he stands debarred of the opportunities of eliciting the facts showing his innocence in the cross-examination of the I.O. 7. The learned A.P.P. has submitted that the informant could not take oath in this case in view of the fact that he has died during the pendency of the trial but there is the testimony of P.W. 2 and 3 on the record, who are the ocular witnesses of the occurrence and their evidence stands corroborated by the medical witness and in view of their testimony the learned Court below has rightly come to the conclusion of the guilt of the appellant. 8. Before adverting to the evidence on the record it is pertinent first to refer the medical evidence. P.W. 1, Dr. Mridula Tiru has deposed to have conducted the postmortem examination on the dead-body of the deceased and has found the following ante-mortem injuries:-- (i) A penetrating wound on the right side of the chest at the level of 5th I.C. space about 1" in diameter. Direction of the wound towards left terminating at the juncture of superior cava cava and right atrium. Profuse clots found in the chest cavity. (ii) Bruise on the left shoulder region 2" x 1". The medical witness has further deposed that injury No. (i) aforesaid may be caused by an arrow which was sufficient to cause death in the ordinary course of nature, whereas injury No. (ii) can be caused by fall on the rocky land and the death of the deceased has been caused as a result of shock and haemorrhage and time elapsed since death is 36.00 hours and the post-mortem report (Ext-1) per her pen corroborates her testimony. In para-5 of her cross-examination, the medical witness has categorically deposed on dissection that she did not find any arrow inside injury No. (i) and the said injury can be caused from front side and not from back side. She has also deposed that two separate blows are necessary for causing the aforesaid two injuries. In para-5 of her cross-examination, the medical witness has categorically deposed on dissection that she did not find any arrow inside injury No. (i) and the said injury can be caused from front side and not from back side. She has also deposed that two separate blows are necessary for causing the aforesaid two injuries. Let us now pause for a moment and once again look the manner of occurrence as averred in the fardbeyan (Ext.-3) According to he prosecution case, the deceased was chased by appellant, Dubraj and co-accused, Dugga when the deceased had protested to the appellant while abusing his mother, Ruibai Mundian, P.W.-2 has deposed that the appellant was armed with bow and arrow and he was chasing the deceased and co-accused Dugga Munda was also chasing the deceased but here is no arms in his hand. In Para-5 of his evidence he has deposed that the deceased was running ahead of the appellant and Dugga Munda was behind the appellant in the course of chase and the said co-accused Dugga Munda was asking the appellant not to assault the deceased. P.W. 2 has further deposed that the appellant shot an arrow which has penetrated in the chest of the deceased and Bondro Munda fell down and died. He has also deposed that the I.O. has not found the said arrow from the chest of the deceased, Similar is the evidence of P.W. 3. PW 3 has deposed that in course of chase the appellant had shot an arrow on the deceased. It appears highly improbable that in injury shall be caused on the chest of the deceased by arrow in course of chase when the deceased was being followed by the appellant. In the normal course no injury can be caused on the chest of the deceased in course of chase when he is fleeing ahead of the appellant and being chased by the appellant. Therefore, the very manner of the occurrence of assault causing injury on the chest of the deceased by an arrow shot from behind can never cause in injury on the chest which appears to be highly improbable. Furthermore, as per prosecution case only one arrow has been shot at the deceased from behind and there is no averment of any further assault on the deceased by the appellant or co-accused, Dugga Munda. Furthermore, as per prosecution case only one arrow has been shot at the deceased from behind and there is no averment of any further assault on the deceased by the appellant or co-accused, Dugga Munda. The existence of injury No. (ii) on the person of the deceased as found by he medical witness remains unexplained in the evidence of the prosecution witnesses. Furthermore, it casts a cloud of suspicion to the very creditability of the prosecution case. There is no whisper in the prosecution case as to what happened to the said arrow as it was not seized by the I.O. in course of investigation from the dead-body of the deceased nor it was found on dissection embedded in the chest of the deceased and besides that there is no averment in the fardbeyan of the informant that the appellant has himself removed the said arrow. This is an impeachable circumstance to belie the spectrum of the prosecution case in totality. There is also evidence on the record to show that there was very cordial relationship between the deceased and the appellant as the appellant is the daughters son of the deceased and the appellant was residing witn the deceased. For this the evidence of P.W. 2 appearing in para-2 of his testimony is referred to. There is no iota of evidence on the record to substantiate the fact that the appellant along with co-accused, Dugga Munda was abusing his mother and the deceased had intervened and protested in respect thereof which has caused annoyance to the appellant for committing the murder of the deceased. In the absence of any legal evidence of the record regarding the genesis of the occurrence when specifically averred in the fardbeyan is equally a lacunae of the prosecution case. Furthermore, P.W. 2 has deposed that Mohan Singh Munda had come to the place of occurrence along with other villagers after the occurrence and his evidence, therefore, excludes the presence of P.W. 3, Mohan Singh Munda as an ocular witness of the occurrence. And last but not the least, the place of occurrence of this case has not been proved in the absence of testimony of I.O. and in the facts and circumstances of the case, the non-examination of the I.O. has definitely caused prejudice to the appellant as he stands debarred from eliciting the facts in his cross-examination showing his innocence. And last but not the least, the place of occurrence of this case has not been proved in the absence of testimony of I.O. and in the facts and circumstances of the case, the non-examination of the I.O. has definitely caused prejudice to the appellant as he stands debarred from eliciting the facts in his cross-examination showing his innocence. It, therefore, appears that the entire prosecution case is highly improbable regarding the manner of the occurrence as averred in the fardbeyan of the informant and the finding of the learned Court below that the occurrence has taken place near the house of P.W. 3, Mohan Singh Munda is against the record in view of testimony of P.W. 3 himself in which he has stated that the occurrence has taken place near the house of another Mohan Singh Munda and not near to his house. The learned Court below has failed to consider the evidence on the record in proper perspective as well as the fact that injury on the chest of the deceased cannot be caused by arrow with regard to the manner of the occurrence as averred in the fardbeyan. The entire prosecution case appears to be highly improbable. The learned Court below did not meticulously consider the facts and circumstances of this case in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant. Therefore, the impugned judgment suffers with illegality which requires an interference therein. 9. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment is hereby set aside. The appellant is not found guilty of the charges levelled against him and he is, accordingly, acquitted. Let the appellant be set free forthwith if not wanted in any other case. Lakshman Uraon, J. I agree.