Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 436 (JHR)

Kanchan Munda v. State of Jharkhand

2009-03-24

N.N.TIWARI, PRASHANT KUMAR

body2009
ORDER By Court.-This Criminal Appeal has been preferred by the appellant against the judgment of conviction and order of sentence passed by the learned 3rd Additional Judicial Commissioner, Ranchi in S.T. No. 808 of 1991. 2. Seven accused persons including this appellant were charged for committing offence under Sections 148 and 302 of the Indian Penal Code. Six accused persons on conclusion of trial were acquitted while the appellant has been held to be guilty for committing offence under Section 302 of the Indian Penal Code on the charge of murder of Mahadeo Munda and has been convicted and sentenced to undergo life imprisonment. 3. The prosecution was launched on the basis of fardbeyan of Bhoja Pahan P.W. 3 recorded on 21.8.1991 at 10:30 AM. 4. The prosecution, in brief, is that on 20.8.1991 at about 7:00 P.M. while Mahadeo Munda (deceased), Sahdeo Munda, Bhola Munda, Sukesh Munda, Arjun Munda and others were taking drink and food, seven accused persons including the appellant Kanchan Munda armed with deadly weapons attacked and assaulted the deceased Mahadeo Munda, Sahdeo Munda and others, It has been alleged that Jagdish Munda was armed with sword, Mona Munda with Ballam, Vijay Munda with Baluwa, Dilip Munda with lathi and appellant-Kanchan Munda with sword. When they reached there the appellant Kanchan Munda enquired about. Mahadeo and as soon as he saw Mahadeo he rushed upon him and gave a sword blow on his head, Vijay Munda assaulted Sahdeo with Baluwa in his belly, Laxman assaulted Sukesh with spear; Saroj Munda, Bina @ Binu and Jagdish Munda also hit upon them with their respective weapons. Mahadeo Munda sustained several injuries and fell down. He was sent to Rajendra Medical College and Hospital, Bariatu, Ranchi for his treatment in a serious condition. Subsequently, he succumbed to his injuries on the way to hospital. The genesis of the occurrence is that the accused-appellant's daughter married with Dasrath brother of the deceased against the wishes of Kanchan Munda-appellant, which led to the institution of a case and was decided in favour of Mahadeo Munda deceased. 5, Charge under Sections 148, 302/ 149 I.P.C. was framed against the appellant. The appellant denied the charge and claimed to be tried. He was put on trial. In his examination under Section 313 Cr.P.C. he denied to have committed any offence. 6. 5, Charge under Sections 148, 302/ 149 I.P.C. was framed against the appellant. The appellant denied the charge and claimed to be tried. He was put on trial. In his examination under Section 313 Cr.P.C. he denied to have committed any offence. 6. The prosecution, in order to establish the charges against the accused persons, altogether examined four witnesses. P.W.1 -Sukesh Munda is said to be the eye witness, P.W. 2-Ranthu Mundais also said to be the eye-witness of the occurrence. Both of them are own brothers being sons of Karia Munda. P.W. 3-Bhoja Pahan is the informant, elder brother of the deceased and P.W. 4-Dr. Chandra Shekhar Prasad, who conducted autopsy on the dead body of the deceased. 7. Learned trial court, on conclusion of the trial, acquitted six accused persons namely Jagdish Munda, Binu Munda, Vijay Munda, Laxman Munda, Dilip Munda and Saroj Munda of the charges. However, he held the appellant guilty of the charges under Section 302 of the Indian Penal Code and convicted and sentenced, as aforesaid. 8. Learned counsel for the appellant has assailed the impugned judgment of the court below and submitted that the impugned conviction and sentence of the appellant is wholly illegal and erroneous. There is no definite positive evidence against the appellant to prove the said charge. The oral testimony of P.Ws.1, 2 and 3 are full of fatal contradictions. There was inordinate delay of 15 hours in lodging the F.I.R. without any explanation. The Investigating Officer has not been examined and the place of occurrence has not been proved by the prosecution. Several Witnesses namely Arjun, Karmu, Bhosa Baijnath and Sahdeo were said to be present at the time of occurrence, who witnessed the occurrence, but they have not been examined by the prosecution. The sword, which is said to be used in commission of the offence by the appellant, has not been produced before the Court. Blood stained cloths, earth also were not seized and not produced before the Court. Learned trial court disbelieved the credibility of the PWs to the extent of their evidences regarding assault by other six persons, but the same witnesses have been relied upon and believed for convicting the appellant. Judgment of the case, which is said to be the reason of the occurrence, has not been produced before the Court. Learned trial court disbelieved the credibility of the PWs to the extent of their evidences regarding assault by other six persons, but the same witnesses have been relied upon and believed for convicting the appellant. Judgment of the case, which is said to be the reason of the occurrence, has not been produced before the Court. The prosecution also failed to prove the premeditation and implementation of the appellant to kill the deceased Mahadeo Munda. Even according to the fardbeyan there is allegation of giving single blow by him. The identification of the accused is also highly doubtful. The witnesses have claimed to have identified the accused persons in the light of lantern from a distance of several yards. Learned counsel submitted that there is no legal basis for the impugned judgment and conviction of the appellant. He is liable to be acquitted and the impugned judgment is fit to be set aside. 9. Learned A.P.P., on the other hand, supported the impugned judgment. He urged that on perusal of evidences on record, it is evident that P.W. 1 and P.W.2 are the eye-witnesses in the case and they have fully supported the prosecution case. The informant-P.W. 3 is himself an eye-witness. The said witnesses have given consistent account of the incident and there is no vital discrepancy and contradiction. P.W. 4-the doctor, who conducted post mortem found injury on the dead body, which corroborates the oral testimony of the witnesses. There are some contradictions in the deposition of the prosecution witnesses, but the same are minor and not fatal. 10. Having heard learned counsel for the appellant and learned A.P.P. we meticulously scrutinized the evidence on record. We also considered the facts and surrounding circumstances and the relevant provisions of law. P.W. 1-Sukesh Munda is claimed to be the eye-witness. He has tried to support the prosecution case in his examination-in-chief, He has, inter alia, stated that the appellant Kanchan Munda had given sword blow on the deceased Mahadeo Munda. He has also stated that Laxman Munda had given spear blow to Sahdeo Munda and Jagdish Munda had given spear blow on the right hand of P.W. 1. In paragraph-2 he had stated that at that time about 20-25 persons and several ladies were present and had taken drink and food. Learned trial court has disbelieved the testimony of these witnesses. In paragraph-2 he had stated that at that time about 20-25 persons and several ladies were present and had taken drink and food. Learned trial court has disbelieved the testimony of these witnesses. So far as the assault by other accused persons are concerned, P.W. 2 is also said to be an eye-witness. In paragraph-1 he stated that this appellant had inflicted - sword injury on the head of Mahadeo where upon Mahadeo fell down and became unconscious. He further stated that Jagdish Munda assaulted Sukesh Munda (P.W. 1) with sword on his right arm. Laxman had given spear blow on the stomach of Sahdeo Munda. In Paragraph-2 he has stated that on that date 5-7 male persons had assembled to take drink and food. He has specifically stated that Sukesh, Arjun, Karmu, Bhosa, Baijnath and Sahdeo were present at that time but except Sukesh the other persons have not been examined. In paragraph-3 he contradicted the manner of assault on Mahadeo and stated that Mahadeo was assaulted with sword, Baluwa and spear, which he had seen in the light of lantern which was kept at a distance. P.W.3 has also stated that the appellant had assaulted Mahadeo with sword, but at the same time he has also stated and given account of the assaults by Jagdish with Baluam in the stomach of Sahdeo. By the said statement he has contradicted the manner of assault as stated in fardbeyan. In the fardbeyan it was alleged that Vijay had given Baluwa blow in the stomach of Sahdeo. He has also contradicted his statement in fardbeyan, wherein it was alleged that Laxman Munda had assaulted Sukesh (P.W.1) with Baluwa. whereas in paragraph-1 of his deposition he has stated that Laxman has given Baluwa. blow on the arms of P.W. 1. It is relevant to mention here that P.W. 1 has contradicted by stating that he was assaulted by Jagdish Munda not by Laxman Munda. We find that the learned trial court had disbelieved the manner of occurrence regarding assault by other accused persons. We find no reason for adopting double standard in discarding the oral testimony of the said prosecution witness regarding one part of the prosecution version and relying upon and believing for the other part i.e. regarding the allegation of assault by the appellant on the deceased. 11. We find no reason for adopting double standard in discarding the oral testimony of the said prosecution witness regarding one part of the prosecution version and relying upon and believing for the other part i.e. regarding the allegation of assault by the appellant on the deceased. 11. The occurrence is said to have taken on 20.8.1991 at 7.00 P.M. Fardbeyan was recorded on the next day i.e. on 21.8.1991 at 10:30 A.M., although the distance of the police station is said to be only 8 K.M. There is no explanation of the said delay reporting the incident by the police. Though PWs-1, 2 and 3 have stated about blood shed, P.W. 2 in paragraph-3 has specifically stated that there was no trace of blood at the place of occurrence. P.W. 4-the doctor who conducted the post mortem, although has found single injury on the dead body, but from the record it could not be proved who caused the death. The doctor has also not given definite opinion about the nature of the injury, as he has stated that the injuries either may cause by Ballam or by sword. P.W. 2, as aforesaid, has stated that Mahadeo was assaulted with sword, ball am and spear. 12. In view of the said contradictions it cannot be concluded that the death of Mahadeo was caused by the sword blow given by the accused-appellant, We also find that the prosecution has not produced the evidences of vital importance. The persons, who were present at the time of occurrence, have not been examined. The Investigating Officer has also not been examined. By withholding the evidences of the Investigating Officer the prosecution has not been able to prove the place of occurrence and the other vital factors, which were relevant for corroborating the version of the prosecution witnesses. Several witnesses have been named in the F.I.R., but those witnesses have also not been examined. The cumulative effect of the said infirmities, contradictions and the circumstances go to create serious doubt about the manner of the occurrence assigned by the prosecution to the accused appellant. We find no cogent and credible evidence on record to support the conclusion of conviction recorded by learned court below in the impugned judgment. 13. The cumulative effect of the said infirmities, contradictions and the circumstances go to create serious doubt about the manner of the occurrence assigned by the prosecution to the accused appellant. We find no cogent and credible evidence on record to support the conclusion of conviction recorded by learned court below in the impugned judgment. 13. In the result, we allow this criminal appeal and set aside the judgment of conviction dated 17.7.2001 and the order of sentence dated 20.7.2001 passed against the said appellant by the learned IIIrd Additional Judicial Commissioner, Ranchi in Sessions Trial No. 808 of 1991. As the said appellant, is in custody, he is ordered to be set at liberty forthwith, if not wanted in any other case. .