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2003 DIGILAW 198 (JHR)

Geja Munda v. State Of Jharkhand

2003-02-11

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2003
ORDER 1. This criminal Appeal has been directed by the sole appellant named above against the impugned judgment dated 23.03.1996 passed in S.T. No. 537 of 1990 by Shri Amod Prasad Ram, Additional Sessions Judge, Saraikella whereby and whereunder the appellant was found guilty for the offence punishable under Section 302 of the Indian Penal Code for committing the murder of Moira Dom and he was convicted and sentenced to undergo R.I. for life. 2. The prosecution case has arisen on the basis of the fardbeyan of P.W. 1, Raukan Munda, the informant recorded by S.I. Ram Padarath Singh of Kuchai P.S. on 22.01.1990 at 11.15 hours at village Gutuhatu regarding the occurrence which is said to have taken place on 21.01.1990 between the sunset and 20.30 hours in the Khalihan of the informant situate in village Gutuhatu, P.S. Kuchai, District Singhbhum. The case was instituted against the appellant on 22.01.1990 at 17.30 hours against unknown accused person and the FIR has been received in the Court empowered to take cognizance on 23.01.1990. 3. The prosecution case in brief is that P.W.I, the informant returned to his house at about 8.30 P.M. on 22.01.1990 from Dalbhanga Bazar and his wife Shyam Kumari (P.W.3) reported that Moira Dom has been done to death. It is alleged that on getting the said information he along with others went to his Khalihan and found Moira Dom dead having injuries on his head and he also found a blood stained axe there. It is also alleged that on enquiry he learnt from P.W.4, Ghasiya Munda and P.W.5, Pandu Munda aged about 12 and 13 years respectively that they have seen the appellant Geja Munda going in the said Khalihan with Moira Dom, the deceased of this case, talking together taking fire in his hand for lightening the "Bhura". It has also been alleged that one "Bhura" was also found in the said Khalihan and the said blood stained axe belongs to the appellant. Accordingly, the suspicion has been cast on the appellant to have committed the murder of the deceased. It has also been alleged that one "Bhura" was also found in the said Khalihan and the said blood stained axe belongs to the appellant. Accordingly, the suspicion has been cast on the appellant to have committed the murder of the deceased. It has also been alleged that the mother of the deceased was also done to death three years ago being branded as on exorcist in which the appellant along with others figured as an accused and Moira Dorn the deceased of this case was the ocular witness in that case and due to this fact he has been done to death. 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. It has been submitted by Mr. Sardhu Mahto, learned amicus curiae, assisting the Court for the appellant that there is total absence of any legal evidence on the record to connect or implicate this appellant as an assailant of this deceased as there is total absence of any legal evidence and also the ocular testimony of eye witness of the occurrence and the circumstances emanating on the record also do not unerringly and unmistakably lead to the hypotheses of the guilt of the appellant in committing the murder of the deceased. The evidence of P.W.4, a child witness, that he had seen the appellant going with the deceased before sunset towards the Khalihan is not itself sufficient to connect the appellant as an assailant of the deceased. The learned Amicus Curiae for the appellant has also submitted that the evidence of P.W.4 having last seen the deceased in the company of the appellant is a very weak evidence and it requires corroboration by any other evidence of natural, competent and independent witness but there is no such corroborative evidence at all on the record to probablize the last seen fact of the appellant with the deceased. It has also been submitted that P.W.4 is a child witness and can easily be tutored. Lastly it has been submitted that the blood stained axe recovered from the place of occurrence is an article of common variety and there is no legal evidence at all to establish the fact that the said axe belongs to the appellant. It has also been submitted that P.W.4 is a child witness and can easily be tutored. Lastly it has been submitted that the blood stained axe recovered from the place of occurrence is an article of common variety and there is no legal evidence at all to establish the fact that the said axe belongs to the appellant. The learned Court below has not meticulously considered the evidence on the record and has erred in coming to the finding of the guilt of the appellant and, therefore, the impugned judgment is unsustainable. 6. The learned A.P.P. has submitted that in this case the evidence of P.W.4 is relevant in which he has deposed to have last seen the appellant going in the company of the deceased talking together and the learned Court below has rightly relied upon the testimony of P.W.4 in convicting the appellant. 7. In this case the prosecution has taken futile pains to examine 14 witnesses to substantiate the prosecution case. The murder of the deceased in the Khalihan and the injuries appearing on his dead body as opined by P.W.7, the medical witness in not in dispute. There is no iota of material on the record to show that the deceased was the only ocular witness of the murder of his mother in which this appellant along with others has figured as an accused. P.W.4 has deposed that he was cutting the wood in his Khalihan round about sunset and P.W.5, a tender witness was also sitting with him and he saw the deceased and the appellant going together towards the Khalihan of the informant. He has further deposed most specifically and in unequivocal terms that there was nothing either with the deceased or with the appellant when they were going towards the Khalihan of the informant. He has also deposed that he does not know as to what happened, thereafter, but about 8 Oclock in the night he heard that the deceased has been found dead in the Khalihan of the appellant. P.W.5 has been tendered by the prosecution for the reasons best known to it. The solitary testimony of P.W.4 regarding seeing the deceased and the appellant going together does not ipso facto establish the fact that the appellant is the assailant of the deceased. P.W.5 has been tendered by the prosecution for the reasons best known to it. The solitary testimony of P.W.4 regarding seeing the deceased and the appellant going together does not ipso facto establish the fact that the appellant is the assailant of the deceased. It has been held in the catena of the decisions of the Apex Court that the last seen evidence uncorroborated in material particulars by any independent, competent and natural witness is a very weak evidence to fasten the guilt of the appellant. The evidence of P.W.8, the village chowkidar that he had seen some stains like blood on the lungi of P.W.8 at a liquor (Haria) shop has no legal effect to connect the appellant with the commission of the murder of the deceased in the absence of the report of the serologist in respect thereof. The blood stained axe is a thing of common variety and there is also no legal evidence at all to establish the fact that the said axe belongs to the appellant. And last but not the least, there is no ocular witness of the occurrence in question. Therefore, it appears that the learned Court below did not meticulously consider the evidence on the record in proper perspective and has committed an error in coming to the finding of the guilt of the appellant. There is total absence of any legal evidence on the record even to connect or implicate the appellant in the commission of the murder of the deceased. Therefore, the impugned judgment suffers with inherent illegality and is unsustainable. 8. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is hereby set aside. The appellant is found not guilty of the charge levelled against him and he is acquitted. He is ordered to be set free forthwith, if not wanted in any other case.