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2007 DIGILAW 676 (JHR)

Durga Munda v. State of Bihar

2007-08-24

D.G.R.PATNAIK, D.K.SINHA

body2007
JUDGMENT D.K. Sinha, J.-The present Jail Appeal has been directed against the judgment of conviction under Section 302/201 I.P.C. passed by the Additional Judicial Commissioner, Khunti in Sessions Trial No. 577/1991 whereby and whereunder the sole appellant Durga Munda has been sentenced to undergo R.L for his life under Section 302 I.P.C. and R.L for 5 years under Section 201 LP.C. with the direction that the sentences would run concurrently. 2. The prosecution story as it stands narrated in the statement of the informant P.W. 10 Madan Singh Munda, delivered at Muruhu Police Station on 23.5.1991 at 2.00 P.M. was that he alongwith his cousin Laxman Singh Munda (since deceased) visited Tapingsara in the morning on the same day to see 'Manda' festival and from there both went to their maternal uncle Budhua Munda (P.W. 4) in the same village where both were served Handia (a kind of alcoholic rice beer) by him. At about 9 a.m. when the informant went inside the room of Budhua Munda for quenching after having consumed Handia, in the meantime he heard alarms raised outside. As soon as he came out, he saw altercation between Laxman Singh Munda (since deceased) and the appellant Durga Munda of the same village and in the same transaction, the informant saw, that the appellant Durga Munda broke a glass bottle and with the sharp edged portion of the broken bottle he attacked on the head and abdomen of Laxman Singh Munda as a result of which the latter fell down sustaining injuries. Even thereafter, as alleged, the appellant Durga Munda inflicted blows on the chest of Laxman Singh Munda with the stones. The informant narrated further that the father of the appellant, who was present there, forbade the appellant from indulging in assault but of no avail. After the said occurrence, the appellant attempted to apprehend the informant but he escaped and arrived at the village road where one Etwa Munda came on cycle and apprised that the appellal1t had committed murder of Laxman Singh Munda and that the appellant was removing the dead body to dispose it of. The informant then came to the house of the deceased at 12 O'clock and conveyed the occurrence to the father of the deceased and the other members of family. The informant then came to the house of the deceased at 12 O'clock and conveyed the occurrence to the father of the deceased and the other members of family. Pursuant to that they went to Tapingsara village while the informant came to the police station for instituting case against Durga Munda for committing murder causing death of Laxman Singh Munda and also for disposing of his dead body. The police on such statement instituted Murhu P.S. Case No. 28/1991 against the sole appellant Durga Munda for the offence under Section 302/ 201 I.P.C. and after investigation submitted charge-sheet against him. 3. Accordingly charge against Durga Munda was framed under Section 302/201 I.P.C. and he was put on trial as he denied his guilt and claimed to be tried. 4. Mrs. Sadhana Kumar, learned Amlcus Curiae submitted that after framing of charge, though as many as 15 witnesses were produced and examined on behalf of the prosecution. Yet only one witness namely the informant Madan Singh Munda (P.W. 10) has claimed to be the eye-witness and even his evidence suffers from inconsistency as compared to his earlier version. In the instant case the Investigating Officer has not been examined. It would be relevant to mention that material witnesses such as Etwa Munda who communicated the informant about the murder of the deceased as well as that the appellant was removing the dead body for its disposal was not examined on behalf of the prosecution who could have been an independent witness to reveal the truth and the manner of occurrence resulting into the alleged death of Laxman Singh Munda. Similarly, the father of the deceased Banmali Singh Munda who could have been an important witness has not been examined. 5. Advancing her argument Mrs. Sadhana Kumar submitted that a number of witnesses such as P.W. 1 Binod Kumar Singh, P.W. 8 N.R. Munda and P.W. 12 premgan Nag testified that the appellant confessed his guilt in their presence and in presence of the Investigating Officer, therefore, the evidence of such witnesses has got no evidenciary value and is hit by Section 25 of the Evidence Act. 6. The admitted case of informant as well as the prosecution was that altercation between the appellant and the deceased ensued on the spur of moment without motive and criminal intention and no conventional weapon was used in the commission of alleged murder. 6. The admitted case of informant as well as the prosecution was that altercation between the appellant and the deceased ensued on the spur of moment without motive and criminal intention and no conventional weapon was used in the commission of alleged murder. Rather, in the heat of passion, it is alleged, that the pointed portion of a bottle was used on the head as well as in the abdomen but no corresponding injuries by such instrument were found on the person of the deceased by P.W. 7 Dr. Vijay Kumar Prasad who had held post mortem examination on the dead body of Laxman Singh Munda on 24.5.1991 at the Sub-Divisional Hospital, Khunti at about 1.40 p.m. and found the following as recorded in his post mortem report:(i) Rigor Mortis absent. (ii) Sharp cut injury on the forehead up-to right eye 311 x 2" X W'. (iii) Sharp cut injury on the lower jaw 311 x 2" x 1 W'. (iv) Sharp cut injury and fracture of Mandible on middle portion with broken lower incisors (teeth). (v) Punctured injury 1 W' below the umbilicus of W' circumference with extrusion of intestine. The intestine also pierced. (vi) Crushed injury of both testis. (vii) Ligature mark of rope over both knee joint and neck. In the opinion of the Doctor all the injuries were ante mortem, caused by sharp cutting weapon, may be by Balua. Time elapsed since death was assessed within 48 hours and the death was due to internal haemorrhage and shock on account of the above injuries. He proved the post mortem report Ext. 3 and finally opined that the injuries found on the person of the deceased could not be caused by a broken glass. 7. Learned Amicus Curiae attracted the attention of the Court that even if the testimony of the informant P.W. 10 Madan Singh Munda is admitted for the argument . sake that the alleged place of occurrence was the house of P.w. 4 Budhua Munda, the dead body was found from near a jackfruit tree. The other witnesses have stated that the dead body was tying near opposite the house of the neighbour Kanta Munda (P.w. 3) who was unfavourable to the prosecution and therefore, the prosecution could not establish the alleged place of occurrence. The other witnesses have stated that the dead body was tying near opposite the house of the neighbour Kanta Munda (P.w. 3) who was unfavourable to the prosecution and therefore, the prosecution could not establish the alleged place of occurrence. Admittedly, the aPpellant as well as the deceased at the relevant time or occurrence were under the influence of intoxication and the occurrence took place on the provocation caused by the deceased Laxman Singh Munda who slapped the appellant in course of altercation when they picked up quarrel on trifling matter and in the passion of heat, according to the prosecution, the appellant assaulted Laxman Singh Munda to death. She elucidates that the medical evidence as testified by P.w. 7 Dr. Vijay Kumar Prasad who proved the post mortem report Ext. 2 does not support the manner of occurrence as presented by the prosecution in the instant case. The Doctor in clear words has stated that such injuries could not be caused by a broken glass but at the same time, the prosecution is silent as to how crushed injuries were found in both the testis of the deceased, as none of the prosecution witnesses has come forward alleging that the appellant had inflicted blow with the stone on the private part learned counsel argues that this discrepancy clearly suggests that the occurrence did not take place in the manner presented by the prosecution. 8. Learned A.P.P. opposed the contention and submitted that in a murder case, it is not necessary to prove the motive of the accused-appellant. Apart from the other eye-witnesses, P.W. 4 Budhua Munda and P.w. 10 Madan Singh Munda have consistently supported the prosecution case leading to the complicity of the appellant with no other hypothesis except the material evidence, which leads to guilt of the appellant for the charge under Section 302/201 I.P.C. The confessional statement of the appellant supported by the testimonies of the other witnesses such as P.W. 1, P.W. 4, P.W. 8 and P.W. 12 is consistent not only in respect of confession of guilt but also to the relevant fact that the appellant led the Police Officers and the other witnesses to a place where he had concealed the dead body of Laxman Singh Munda after committing his murder, admissible under Section 27 of the Evidence Act. The prosecution case was proved against the appellant and therefore, the judgment of conviction and order of sentence passed against him for the offence under Sections 302 and 201 I.P.C. do not call for interference in appeal. 9. Before considering the rival contentions of the learned Amicus Curiae as well as the learned A.RR it would be imperative to mention the defence that was raised by the appellant in his statement recorded under Section 313 Code of \ Criminal Procedure. The appellant has simply denied his guilt and declined to say anything before the trial court in his defence. The admitted fact is that the deceased Laxman Singh Munda suffered homicidal death on account of injuries sustained by him, inflicted with the broken bottle of glass on the face and abdomen and with stones on his chest. Though a number of injuries have been found on the face and the abdomen of the victim in his post mortem report but in the opinion of the Doctor P.W. 7, who held post mortem examination, such injuries could not be caused by a broken glass. The specific allegation against the appellant was that he attacked on Laxman Singh Munda after breaking a bottle so as to convert it into a sharp pointed weapon and therefore, in our view, the injuries found on the face including at the forehead, above eye-brow, lower jaw and the sharp cut injury and fracture of mandible on the middle part with the breaking of the lower incisors all within small area were caused by the pointed portion of the broken bottle of glass. Similarly, punctured wound in the abdomen with the given dimension indicates that it was also caused by the said broken bottle. The informant P.W. 10 Madan Singh Munda testified before the Court that in spite of intervention of the witnesses and persuasion of his father P.W. 9 Birsa Munda, the appellant started chasing the deceased and when the latter fell down he hurled stones on his chest. The informant, sensing danger tried to escape by running away from the place of occurrence to save his life but was chased and followed by the appellant. The possibility of the deceased sustaining injuries in his testis on account of the stones being pelted at him by the appellant cannot be ruled out. 10. The informant, sensing danger tried to escape by running away from the place of occurrence to save his life but was chased and followed by the appellant. The possibility of the deceased sustaining injuries in his testis on account of the stones being pelted at him by the appellant cannot be ruled out. 10. We find substance in the argument of the Counsel for State-Respondent that the dead body of Laxman Singh Munda was recovered pursuant to the confessional statement of the appellant before the police as well as the other witnesses which is relevant under Section 27 of the Evidence Act and there is no scope for argument to attract the provisions of Section 25 of the Evidence Act in the facts and circumstances of the case. 11. The post mortem report reflected ligature mark on the knee as well as on the neck of the deceased but it was explained by the witnesses that the appellant removed the dead body carrying it on the cycle and it was not possible to carry the corpse without tying it with rope. We further find that the death was caused due to shock and haemorrhage on account of injuries sustained by the victim. We find, therefore, that the prosecution has proved the homicidal death of Laxman Singh Munda. 12. Admittedly, both the appellant and the deceased Laxman Singh Munda had consumed Handiya and when both picked up quarrel, it was Laxman Singh Munda, according to the testimony of P.W. 9 Birsa Munda, who slapped the appellant which provoked and ignited and in the spur of moment without understanding the consequences, the appellant immediately converted a bottle into an unconventional weapon by breaking its base and attacked upon Laxman Singh Munda. We find that the intention as well as the motive of the appellant for committing murder could not be proved by the prosecution but the fact cannot be denied that he had knowledge on account of such dominant state of mind that the injuries caused by him with the help of sharp edged portion of a broken bottle of glass was likely to cause death of the deceased and we further find that when the deceased started running in self-defence the appellant chased him further inflicted injuries on his body with stone when he fell down near a jackfruit tree. We further observe that in view of consistent statements of the eye witnesses viz. P.W. 4 Budhua Munda, P.W. 10 Madan Singh Munda, P.W. 9 Birsa Munda, father of the appellant who depicted the occurrence lucidly, non-examination of the I.O. could not prejudice the defence of the appellant in any manner before the Trial Court. 13. But in the facts and circumstances, we find that the Trial Court without appreciating this aspect that the occurrence took place in the spur of moment and both were under the influence of Handiya, a mild intoxicant and in absence of motive behind the occurrence, except the provocation made to the appellant upon being slapped by Laxman Singh Munda, we are of the firm view that the prosecution has failed to prove the culpability of the appellant Durga Munda of committing homicide amounting to murder of Laxman Singh Munda and hence his conviction under Section 302 I.P.C. with sentence to the extent of rigorous imprisonment for life is unsustainable. 14. On the other hand, we find and hold that the culpability of the appellant comes within the mischief of homicide not amounting to murder, which is an offence punishable under Section 304 Part-I Indian Penal Code. We further find that the prosecution has proved the charge of the offence under Section 201 I.P.C. against him in view of the consistent evidence of P.W. 1, P.W: 4, P.W. 8 and P.W. 12 in whose presence the dead body of Laxman Singh Munda was recovered kept concealed by the appellant. 15. In the result, modifying the conviction of the appellant Durga Munda into Part-I of the 304 I.P.C. his sentence of life imprisonment is reduced to 10 years Rigorous Imprisonment. His conviction under Section 201 I.P.C. and the sentence passed therein by the trial court is confirmed as awarded by the trial court and both the sentences shall run concurrently. 16. With the aforesaid modification in the judgment of conviction and order of sentence awarded by the trial court against the appellant, this appeal is dismissed. However, if the appellant has served out the modified (as aforesaid) period of sentence and he is not required in any other case, the appellant Durga Munda is directed to be released forthwith. 17. We record appreciation for the leamed Amicus Curiae Mrs. Sadhana Kumar for her assistance to the Court in this case.