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2004 DIGILAW 165 (JHR)

Sepahi Munda v. State of Bihar

2004-02-13

VISHNUDEO NARAYAN

body2004
Judgment Vishnudeo Narayan, J.-This appeal at the instance of the appellant stands directed against the impugned judgment and order dated 14.7.1998 and 16.7.1998 respectively passed in Sessions Trial No. 379 of 1990 by Shri Birendra Singh, 1st Additional Judicial Commissioner, Khunti, Ranchi whereby and whereunder the appellant was found guilty for the offence punishable under Section 364 of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment for five years. 2. The prosecution case has arisen on the basis of the written report (Ext. 1) of informant, P.w. 1 Bishram Munda, father of the Narayan Singh Munda, the alleged victim in this case lodged before O/C Arki Police Station on 26.7.1988 at 18.00 hours regarding the occurrence which is said to have taken place between 12.00 hours of 17.7.1988 and 18.00 hours of 26.7.1988 at Village-Huduwa, Police Station-Arki, Khunti, District-Ranchi. 3. The prosecution case, in brief, is that appellant Sepahi Munda, resident of Village-Ramchum Tola Burumudi came to the house of the informant on 17.7.1988 and asked him to send his son Narayan Singh Munda to his house for doing some work and at this the informant told him that there is no other person at his house to work and it is difficult for him to allow his son Narayan Singh Munda to go with him and at this the appellant assured him that Narayan Singh Munda shall be sent back after three or four days. It is alleged that the appellant took Narayan Singh Munda with him to his house. It is also alleged that the informant sent his wife P.w. 2 Champa Devi and his son Shukhlal Munda to the house of the appellant on 20.7.1988 to bring back Narayan Singh Munda aforesaid and on return from there his wife told him that Narayan Singh Munda was not found there and here is also no work in the house of the appellant for him and on query the appellant has told her that Narayan Singh Munda is not here but she has found his cycle and umbrella in the house of the appellant. She has also stated that on query the appellant stated that he does not know as to where Narayan Singh Munda has gone. She has also stated that on query the appellant stated that he does not know as to where Narayan Singh Munda has gone. It is alleged that he has reasonable suspicion that the appellant has taken away Narayan Singh Munda on the pretext of doing some work and he has killed him and has concealed his dead body. 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 he has been falsely implicated in this case on mere suspicion. It has also been contended that the informant is his relative and he rushed to demand money from him invariably and due to his refusal he has been falsely implicated in this case. 5. The prosecution has, in all, examined four witnesses to substantiate its case. pw. 1 Bishram Munda is the informant and father of Narayan Singh Munda, the alleged victim of abduction of this case. pw.2 Champa Devi and pw. 3 Faud Singh Munda are his wife and nephew respectively. pw. 4 Ghashi Ray Munda, resident of Village-Rai Khutti has been tendered. The Investigating Officer has not taken oath in this case for the prosecution. 6. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that there is no iota of legal evidence on the record to substantiate the prosecution case that the appellant has brought Narayan Singh Munda with him to his house for doing some work there and he has been falsely implicated in this case due to grudge and vendetta of the informant on his refusal to provide him money on demand. It has also been submitted that there are inherent improbabilities, material contradictions and inconsistencies in the evidence of the prosecution witnesses which belie the prosecution case and furthermore all the prosecution witnesses are inter-se closely related and no independent witness has taken oath in support of the prosecution case and they are partisan witnesses and their testimony lacks credence. It has also been contended that serious prejudice has been caused to the appellant due to the non-examination of the Investigating Officer in this case. It has also been contended that serious prejudice has been caused to the appellant due to the non-examination of the Investigating Officer in this case. Lastly, it has been contended that the learned court below did not at all meticulously consider the evidence on the record in proper perspective and has gravely erred in coming to the finding of the guilt of the appellant. Viewed thus, the impugned judgment is unsustainable. 7. The learned Additional Public Prosecutor has submitted that pw. 1, pw. 2 and pw. 3 in their evidence have supported the case of the prosecution and from their evidence it is established that the appellant has taken Narayan Singh Munda in his company to his house from the house of the informant and since then said Narayan Singh Munda is traceless and he has not been found either dead or alive and the learned court below has properly scanned and scrutinized the evidence on the record for coming to the finding of the guilt of the appellant and as such there is no illegality in the impugned judgment. 8. It is pertinent to mention at the very outset that Narayan Singh Munda, who is the alleged victim in this case is 30 years old and he is the son of P.w. 1, the informant. There is no denying the fact that the informant is the son's son of the sister of paternal grandfather of the appellant and there was no enmity between the informant on the one hand and the appellant on the other hand and the informant in para-9 of his evidence has deposed to that effect. P.W. 1 Bishram Munda, the informant, has deposed that the appellant had come to his house and asked him to send his son with him for doing some work and said Narayan Singh Munda will return after two to four days and the appellant stayed in the night in the house of the informant. He has further deposed that in the following morning the appellant returned to his house with Narayan Singh Munda on their respective cycles. He has also deposed that the informant sent his wife and his son to the house of the appellant when Narayan Singh Munda did not return even after four days and on return from there they reported that Narayan Singh Munda is not in the house of the appellant. He has also deposed that the informant sent his wife and his son to the house of the appellant when Narayan Singh Munda did not return even after four days and on return from there they reported that Narayan Singh Munda is not in the house of the appellant. He has also d8posed that said Narayan Singh Munda has not so far returned to his house and he has apprehension that the appellant has committed his murder. In para-8 of his cross-examination he has deposed that he has not made any search of his son due to his inability to move and Mukhiya, Sarpanch and other persons of the village had made search of him. P.w. 2 Champa Devi has corroborated the testimony of the informant in her evidence. She has deposed that she has found the cycle of Narayan Singh Munda in the house of the appellant but she could not find Narayan Singh Munda there. She has further deposed that Narayan Singh Munda has not returned since then. In her cross-examination she has deposed that the brothers and other female members of the house of the appellant on query has stated to her that Narayan Singh Munda is not in their house. P.w. 3 Faud Singh Munda, the cousin brother of Narayan Singh Munda, has deposed that he has seen Narayan Singh Munda going on his cycle with the appellant at 8 o'clock in the morning when he was ploughing his land. He has also deposed that he has met the appellant in the house of the informant in the evening a day before on seeing Narayan Singh Munda going with the appellant. It is relevant to mention here that Narayan Singh Munda has not so far returned to his house and his dead body has also not been recovered in course of investigation. No independent witness of the village has come forward to support the fact that they have made hectic search to trace out Narayan Singh Munda. Even the alleged cycle and umbrella of Narayan Singh Munda, which is said to have been found by P.w. 2 in the house of the appellant, have not been recovered from the house of the appellant in course of investigation. Even the alleged cycle and umbrella of Narayan Singh Munda, which is said to have been found by P.w. 2 in the house of the appellant, have not been recovered from the house of the appellant in course of investigation. The Investigating Officer has also not taken oath in this case and as such serious prejudice appears to have been caused to the appellant, as he stands debarred of eliciting facts showing his innocence in his cross-examination and contradicting the testimony of P.W. 1, P.w. 2 and P.w. 3 as deposed by them. All the three witnesses aforesaid are closely related inter-se and no independent witness of the village of the informant is forthcoming to support their testimony that the appellant had taken away Narayan Singh Munda with him for doing some work at his house. The appellant in his statement under Section 313 of the Code of Criminal Procedure has categorically stated that when he refused to provide money on the demand of the appellant, he has been falsely implicated in this got up case. It is also relevant to mention here that there is no evidence on the record to give an inkling of the fact that the appellant had the intention at the time of taking with him Narayan Singh Munda for his house that he shall be murdered or would be so disposed of or be put in danger of being murdered. The prosecution has to prove that the appellant had particular intention at the time he went with Narayan Singh Munda from the house of the informant. I have already stated above that there was no enmity existing and alive between the parties prior to the occurrence. Therefore, there appears nothing on the record to indicate that the appellant had the intention at the time he had made the so-called deceitful misrepresentation that Narayan Singh Munda shall be murdered and in this view of the matter, the impugned judgment suffers with illegality. Therefore, there does not appear any ring of truth in the evidence of P.w. 1, P.w. 2 and P.w. 3 to substantiate the prosecution case. The learned court below did not at all meticulously consider the evidence on the record as well as the ingredients constituting the offence under Section 364 of the Indian Penal Code and has committed a manifest error in coming to the finding of the guilt of the appellant. The learned court below did not at all meticulously consider the evidence on the record as well as the ingredients constituting the offence under Section 364 of the Indian Penal Code and has committed a manifest error in coming to the finding of the guilt of the appellant. Viewed thus, the impugned judgment cannot be sustained. 9. There is merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment is set aside. The appellant is found not guilty and he is accordingly, acquitted and discharged from the liability of his bail bond.