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2003 DIGILAW 862 (JHR)

Birsa Munda v. State of Bihar (now Jharkhand)

2003-07-21

D.N.PRASAD, H.S.PRASAD

body2003
Judgment D. N. Prasad & H. S. Prasad, JJ. The sole appellant preferred this appeal from jail against the judgment of conviction and sentence dated 14.9.1992 passed by Shri Anant Prasad Shrivastava, ,Judicial Commissioner, Ranchi in Sessions Trial No. 115 of 1991, whereby and whereunder, the learned Judicial Commissioner convicted the appellant for the offence under sections 302/34/201 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life under section 302 of the Indian Penal Code, whereas to undergo rigorous imprisonment for five years under section 201 of the Indian Penal Code. Both the sentences were ordered to run concurrently. 2. The prosecution case in brief is that one Uruwa Devi, widow of the deceased Dhepa Munda, recorded her fard beyan alleging therein that there was a quarrel between her husband Dhepa Munda and his two Sautela brothers, namely, Bhokre Munda and Chipa Munda over partition of the property. Goinda Munda, father-in-law of the informant was siding his sons from his second wife. The appellant Birsa Munda, son-in-law of Goinda Munda, was coming to the village on 17.12.1990 when the accused Birwa Munda threatened him. It is further alleged that on 18.12.1990 at about 3 P.M., accused Goinda Munda, Birsa Munda, Bhokre Munda and Chipa Munda induced away the deceased Dhepa Munda and they took him to Porhatoli market. The husband of the informant did not return in the night. On the following morning, the informant went to Sunari Jaltanda to enquire from Bandhni Mundain, sister of the deceased Dhepa Munda and there she could not come to know about her husband and it was detected that accused Birsa Munda roaming in suspicious condition when he was caught and produced before the Mukhiya where Birsa Munda disclosed that when he was returning from Porhatoli market, he, Bhokre Munda and Chipa Munda committed the murder of the deceased with Baluwa. He further disclosed that after killing Dhepa Munda, they have concealed the dead body to the side of Silaphari River, which was wrapped in Sand. The dead body was identified by the Informant. 3. On the basis of the fard beyan, the first information report was registered under Sections 364, 302, 201/34 of the Indian Penal Code against the accused persons. The dead body was identified by the Informant. 3. On the basis of the fard beyan, the first information report was registered under Sections 364, 302, 201/34 of the Indian Penal Code against the accused persons. The police investigated into the case and submitted charge sheet against the accused persons who appeared before the Trial Court and after hearing both sides passed the impugned judgment convicting the appellant in the manner as stated above. Being aggrieved by the said judgment of conviction and sentence, the appellant preferred this appeal. 4. There is an allegation in the first information report that the husband of the informant was taken away to the market and thereafter he did not return. The allegation is made against Goinda Munda, Birsa Munda (appellant), Bhokre Munda and Chipa Munda that they had induced away the deceased Dhepa Munda and thereafter the deceased did not return to his house. Thus it is obvious that there is no eyewitness to the occurrence. Except circumstantial evidence, there is nothing direct or specific evidence against the appellant either for causing assault or using the weapon for causing assault to the deceased. There is only allegation made that this appellant made an extra judicial confession before the villagers as well as on the indication of this appellant, the dead body was recovered and seized from the bank of the river. But it is settled law that extra judicial confession is a very weak type of evidence that must be corroborated and substantiated by cogent and reliable evidence before taking into account the said extra judicial confession to be a basis for the conviction. 5. P.W.1, the Doctor, who conducted post mortem on the dead body of Dhepa Munda, found the following ante mortem injuries: (i) Amputated after incised wound 8" x 2" on the left forearm. (ii) Incised wound 8" x 2" from angle of mouth to left side of neck. (iii) Incised wound 6" x 2" X 2" on the left mandible in front of left ear. (iv) Incised wound 4" x 2" X 2" on the right knee. According to the Doctor, the death might have been occurred primarily due to Injury Nos. (ii) and (iii). He proved the post mortem report as Ext. 1. 6. (iii) Incised wound 6" x 2" X 2" on the left mandible in front of left ear. (iv) Incised wound 4" x 2" X 2" on the right knee. According to the Doctor, the death might have been occurred primarily due to Injury Nos. (ii) and (iii). He proved the post mortem report as Ext. 1. 6. P.W.2 stated that the dead body was exhumed from the Sand, which was lying on the bank of the river, and the said dead body was seized by the police. This witness further stated that Birsa Munda was seen roaming in the market with Tangi when he was caught there and Birsa Munda narrated the incident before them. He further stated that on the indication of Birsa Munda, the dead body was recovered and seized from the bank of the river. 7. P.W.3 deposed in the same line claiming that Birsa Munda made an extra judicial confession before them for committing the murder of Dhepa Munda and the dead body was concealed beneath the sand on the bank of the river. P.Ws. 5, 6, 7 and 8 have not supported the prosecution case in any manner. 8. P.W.9 is the informant and she has given a complete go by to the prosecution case. She stated clearly that Birsa Munda though brought in the village but he did not say anything about her husband. She denied that she had ever said before the police that Birsa Munda (appellant), Goinda Munda, Bhokre Munda and Chipa Munda had ever caused murder of her husband and had thrown the dead body. She further deposed that Goinda Munda is her father-in-law whereas Bhokre Munda and Chipa Munda are Devars and the appellant Birsa Munda is son-in-law. She deposed in her cross examination that she was taken to the police station by Mukhiya and Sarpanch and, at the instance of the said Mukhiya and Sarpanch, the Officer-in-Charge had written the fard beyan and took her L.T.I. and the fard beyan could not be read over. She further deposed that the land of her father-in-law has been ploughing by Rajput people after partition. 9. P.W.10 is the Investigating Officer who claimed to have recorded the statement of the witnesses and submitted charge sheet. 10. Obviously extra judicial confession said to be made before the P.Ws. have been denied by the informant herself. She further deposed that the land of her father-in-law has been ploughing by Rajput people after partition. 9. P.W.10 is the Investigating Officer who claimed to have recorded the statement of the witnesses and submitted charge sheet. 10. Obviously extra judicial confession said to be made before the P.Ws. have been denied by the informant herself. The informant clearly deposed that her husband actually had returned in the evening from the market whereas, in the fard beyan, It is stated that her husband did not return. So there is much contradiction in her statement and does not support the version of the fard beyan but even then the informant (P.W.9) has not been declared hostile by the prosecution. The Investigating Officer (P.W.10) has also not been controverted by the said statement deposed by the informant during trial; meaning thereby the fard beyan recorded by the informant becomes belied in view of her deposition made during trial, which can be a substantive piece of evidence. The extra judicial confession said to be made before the P.Ws. is also contradictory as P.W.3 stated that Birsa Munda did not say before the villagers that he along with others committed murder of Dhepa Munda rather he stated that he had seen the dead body only. However, such evidence has already been negated by the informant herself and she emphatically stated that Birsa Munda never said anything before the villagers in respect of her husband. In this way, the extra judicial confession said to be made by Birsa Munda (the appellant) becomes very suspicious and doubtful in absence of corroboration by cogent and reliable evidence. There is no eyewitness of the occurrence. It is significant to note here that Birsa Munda said to be caught in the Bazar with Tangi but the said Tangi has neither been brought on the record nor it has been seized by the police as well as it has been stated that Birsa Munda was kept in the house of Mukhiya at night and he said nothing in the night as regards to the occurrence. Thus, the whole evidence of P.Ws. 2, 3 and 4 are within the ambit of suspicion and doubtful and on that basis, the conviction and sentence passed against the appellant cannot be sustained in the eye of law. 11. Thus, the whole evidence of P.Ws. 2, 3 and 4 are within the ambit of suspicion and doubtful and on that basis, the conviction and sentence passed against the appellant cannot be sustained in the eye of law. 11. Thus we find that the court below committed error in convicting and sentencing the appellant and thereby the impugned judgment is fit to be set aside. 12. In the result, we find merit in this appeal, which is allowed. The judgment of conviction and sentence passed by the learned Trial court is hereby set aside. The appellant appears to be in custody. Hence, he is directed to be released forthwith, if not wanted in any other case.