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2008 DIGILAW 1103 (JHR)

Jatu Munda v. State of Jharkhand

2008-09-10

AMARESHWAR SAHAY, R.K.MERATHIA

body2008
By Court.- The present appeal arises against the impugned judgment of conviction and sentence dated 5th February, 2002, passed by the 3rd Additional Judicial Commissioner, Khunti in Sessions Trial No. 447 of 1999, whereby ali the three appellant have been found guilty for committing the offence under Section 302/34 IPC for murdering the deceased persons namely Sukua and Salua and, thereby, they have been sentenced to undergo R.I. for life. 2. The appellants were charged for the offence under Sections 302/34, 324 and 307 IPC but they have been acquitted from the charges under Sections 307 and 324 IPC by the trial court. 3. The prosecution case, in brief, is that on 22.9.1998 at about 7.00 p.m. the informant Mogro Munda (PW-1) heard some hulla while he was in his house, then he came out and found that hulla was coming from the side of the house of Gobal Munda (appellant no. 2). He went there and he found that Gobai Munda having Balua, Jatu Munda (appellant no. 1) having Tangi and Pandu Munda (appellant no. 3) having Ballam were assaulting Sukia Munda and Salua Munda from the weapons held by them. When the informant tried to save he was asked to go away otherwise he would also be killed and when the informant did not go from there then he was also assaulted by Jatu Munda and Gobai Munda due to which he received injuries on his forehead and on his ribs. The appellants thereafter again started assaulting the two above named persons, i.e. Sukia and Salua due to which they died in front of the house of the appellants. Further case of the prosecution is that when Sukia fell down on the ground then the appellant Gobai Munda picked up a stone and hit with it on the head on Sukia due to which his head got crushed. The motive for the occurrence was said to be that there was dispute, between the accused persons and the deceased on account of cutting of a rubber belt of a Gulel (used for the purpose of hunting birds) by Gobai Munda, the appellant due to which the appellants killed the deceased persons. 4. In order to establish the charges, altogether six prosecution witnesses were examined on behalf of the prosecution. 4. In order to establish the charges, altogether six prosecution witnesses were examined on behalf of the prosecution. PW-1 Mogro Munda is the informant but during trial he did not support the prosecution case and, as such, was declared hostile. Similar is the position with PW-2 Somra Munda, he also was declared hostile. PW-3 is the Doctor, who examined the injuries said to have received by the informant. PW-4 is Solua Munda the sole eye witness to the occurrence. PW-5 is the Doctor, who held the Post Mortem examination on the dead body of the deceased persons and PW-6 is a formal witness, who proved the documents including the F.I.R. etc. The Investigating Officer has not been examined in this case. 5. The learned trial court relying on the evidence of PW-4, the sole eye witness has held the appellants guilty for the offence under Section 302/34 IPC and, thereby, convicted and sentenced them as already stated hereinabove. 6. Mr. D.K. Prasad, learned counsel appearing for the appellants challenging the conviction and sentence passed by the trial court submitted that there is no material and reliable evidence against the appellants so as to connect them with the offence of murder of the deceased persons except the evidence of PW-4 but the presence of PW-4 at the time of occurrence at the place of occurrence, is itself very much - doubtful and, therefore, his evidence is wholly untrustworthy and unreliable and, therefore, on such unreliable evidence of PW-4 conviction of the appellant is unsustainable. He further submitted that PW-4 has not even named in the F.I.R. as an eye witness to the occurrence in spite of the fact that he being the father of one of the deceased Sukia Munda was present at the place of occurrence and, therefore, non-mentioning of his name as witness in the F.I.R. creates grave doubt about his presence at the place of occurrence. He further submitted that due to non-examination of the Investigating Officer, the defence has been greatly prejudiced, because the appellants could not get an opportunity to cross-examine the Investigating Officer on the point of the presence of PW-4, the so-called eye witness. Even the FSL report and the material exhibits were not produced or exhibited in the court and, therefore, in view of the above serious infirmities in the prosecution case, the appellants are entitled to be acquitted. 7. Even the FSL report and the material exhibits were not produced or exhibited in the court and, therefore, in view of the above serious infirmities in the prosecution case, the appellants are entitled to be acquitted. 7. In order to test the submissions of the learned counsel for the appellants, we have carefully gone through the evidence of prosecution witnesses, particularly the evidence of PW-4 the sole eyewitness to the occurrence. We find that the informant Mogro Munda (PW-1) and eye witness PW-4 Solua Munda are cousins whereas the' deceased Sukia Munda was the son of the eye witness PW-4. Both the deceased, i.e. Sukia Munda and Salua Munda were the nephews of PW-1 Mogro Munda but curiously enough Mogro Munda has turned hostile and has not supported the prosecution case. Rather he has stated that he had no knowledge about the alleged occurrence. However, he stated that Daroga came in the village and he got L Tis from several villagers but he did not know as to why the L Tis were taken by him. He completely denied his lodging of the F.I.R. 8. PW-2 Somra Munda is the father of PW-1. He has also stated that he did not know anything about the alleged occurrence of murder and, as such, he was declared hostile. PW-3 is the Doctor, who examined the injuries on the person of the informant Mogro Munda, but since the informant himself has totally denied his knowledge about the alleged occurrence and, as such, the injuries found on his persons as stated by the Doctor is of no consequence. However, it may be noted here that the appellants have acquitted from the charges under Sections 307 and 324 IPC. 9. Now coming to the most important evidence of PW-4, we find that this witness, who none else than the father of one of the deceased Sukia Munda, has stated in his evidence that the deceased Sukia was his son whereas the deceased Salua was the son of his elder brother. At the time of occurrence he was in his house and then on hearing some hulla, he came out and then saw that Gobai Munda having Balua in his hand, was assaulting Salua, Jatu Munda was having Tang; and Pandu Munda was having Ballam. Pandu assaulted Salua by means of Ballam and Jatu assaulted by means of stone. At the time of occurrence he was in his house and then on hearing some hulla, he came out and then saw that Gobai Munda having Balua in his hand, was assaulting Salua, Jatu Munda was having Tang; and Pandu Munda was having Ballam. Pandu assaulted Salua by means of Ballam and Jatu assaulted by means of stone. He further stated that his son as well as his nephew both died at the spot due to the injuries received by them. 10. We fail to understand that when this witness PW-4 was present at the spot and saw the occurrence with his own eyes in which his own son and own nephew were killed then the natural conduct of PW-4 would have been to lodge the F.I.R. himself and why he did not lodge the F.I.R. himself has remained unanswered. Further that even if we ignore the said fact then the question arises as to why his name does not find place as an eye witness in the Fardbeyan lodged by Mogro Munda, moreover when the informant did not forget to mention in the Fardbeyan that the villagers assembled at the spot after alarm was raised. In our view, the natural conduct would be that PW-4 if at all was present at the place of occurrence then he must have lodged the F.I.R./Fardbeyan and even if he did not lodge the F.I.R. then in any case his name must would have been meJ1tioned there in the F.I.R. at least as a witness to the occurrence when he was at the place of occurrence and saw the occurrence with his own eyes. But we find that his name is conspicuously absent in the Fardbeyan of the informant Mogro Munda. This creates grave doubt in our mind as to whether he was in fact present at the place of occurrence and at the time of the occurrence? And whether in fact, he was an eye witness? This fact could have been clarified and answered if the Investigating Officer would have been examined by the prosecution during the trial but as we have already noticed above that the Investigation Officer has not been examined by the prosecution for the reasons best known to it and, therefore, this, in our view, has clearly prejudiced the case of the defence. We further find that none production of FSL report and material exhibits in the Court during trial further weakens the case of the prosecution. 11. In view of the discussions and findings above, we are unable to uphold the conviction and sentence against the appellants on the evidence of PW-4, the alleged eye witness whose presence at the place of occurrence was doubtful and on the basis of his sole testimony it would not be just, proper and legal to convict the appellants for commission of the offence of murder of the deceased persons. If the evidence of PW-4 is discarded then nothing remains on the record to connect the appellants with the alleged crime of murder. 12. Accordingly, this appeal is allowed and the impugned judgment of conviction and sentence, passed by the trial court against the appellants, is hereby set aside and they acquitted. The appellants, who are in custody, are directed to be set at liberty forthwith if not wanted in any other case.