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2009 DIGILAW 768 (JHR)

Man Mohan Singh Munda v. State of Jharkhand

2009-05-14

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT By Court.-This criminal appeal has been preferred by the appellants against the judgment of conviction and order of sentence dated 30.6.2001 passed by 1st Additional Judicial Commissioner, Khunti (Ranchi) in S.T. No. 449 of 1989. 2. The appellants were charged for killing Mukund Singh Munda and causing injuries to Shashi Shushan Singh Munda and informant Sanmali Singh Munda in attempt to kill them for the offence under Sections 302/34 and 307/34 I.P.C. They have been convicted by the impugned judgment and sentenced to undergo life imprisonment for the offence under Section 302/34 and seven years imprisonment for the offence under Section 307/34. 3. The prosecution was launched on the F.I.R. of Sanmali Singh Munda, father of the deceased Mukund Singh Munda dated 29.6.1987. 4. Prosecution case, in brief, is that on 29.6.1987 at about 7-8 a.m. while the informant's son Mukund Singh Munda was at his Sakast land of Khata No. 57, the co-villagers Man Mohan Singh Munda, Ganesh Singh Munda, Kartik Singh Munda and Tipu Singh Munda (the accused appellants)) arrived there with cow and bullocks having lathi in their hands and were passing through the informant's field. Mukund Singh Munda protested and told them not to take their cattle through the land. The reason alleged is that appellants also have not allowed the informant to take their cattle through their lands. This laid to a sudden quarrel and thereupon the accused appellants assaulted Mukund Singh Munda, the informant's son with lathi causing him multiple and bleeding injuries. Then the informant and his younger brother Shashi Shushan Singh Munda rushed to rescue Mukund Singh Munda. The accused appellants hit them on their head and back with lathi causing him bleeding injuries. The informant's son became unconscious. Informant then raised alarm and several persons assembled and with their help they took the said injured persons to police station and gave the said information. It is relevant to mention that on 3.7.1987, Mukund Singh Munda succumbed to injuries in course of treatment in Rajendra Medical College, Ranchi. 5. On the said fardbeyan the police registered a case under Sections 307, 302, 447/34 of the I.P.C. and took up investigation. On conclusion of investigation, police submitted charge-sheet against the appellants. 6. Charge under Sections 307/34 and 302/34 I.P.C. were framed against the appellants. The appellants denied the charges. They were put on trial. 5. On the said fardbeyan the police registered a case under Sections 307, 302, 447/34 of the I.P.C. and took up investigation. On conclusion of investigation, police submitted charge-sheet against the appellants. 6. Charge under Sections 307/34 and 302/34 I.P.C. were framed against the appellants. The appellants denied the charges. They were put on trial. In their examination under Section 313 Cr.P.C. they denied to have committed any offence. 7. The prosecution in order to establish the said charges against the appellants, altogether examined ten witnesses:- P.W.1, Rajendra Singh Munda, the brother of the deceased, P.W.3, Salbhadra Singh Munda and P.W. 5, Shashi Shushan Munda, brother of the informant and uncle of the deceased, were examined as the eye-witnesses of the occurrence; P.W. 2, Dr. D.K. Dhiraj, who had conducted the autopsy on the dead body of Mukund Singh Munda, was examined to prove the post mortem report; P.W.4 & P.W.6 are the hearsay witnesses; P.W.7 was tendered; P.W.9 is the brother-in-law of the informant and P.W. 10 is a formal witness of fardbeyan, seizure list and case diary as Ext.-5, Ext.-6 and Ext.-7 respectively. The prosecution did not examined the Investigating Officer. The informant was also not examined as he died during the pendency of the trial. 8. Learned trial court on the conclusion of the trial held the appellants guilty of charge under Sections 302/34 and 307/34 I.P.C. Learned court below, on the basis of evidences of P.W. 1, PW. 3, PW. 5, P.W. 8, P.W. 9 and also evidence of the Doctor (P.W. 2), held the accused appellants guilty for committing murder of Mukund Singh Munda and causing injuries on the vital parts of Shashi Shushan Singh Munda and Sanmali Singh Munda with an intention to kill them when both tried to rescue Mukund Singh Munda. Learned trial court, thus, convicted and sentenced them as aforesaid. 9. Mr. P.C. Roy, learned counsel appearing on behalf of the appellants assailed the impugned judgment submitted that conviction and sentence of the appellants are based on non-application of mind by the learned trial court on the facts and circumstances on record. Learned trial court, thus, convicted and sentenced them as aforesaid. 9. Mr. P.C. Roy, learned counsel appearing on behalf of the appellants assailed the impugned judgment submitted that conviction and sentence of the appellants are based on non-application of mind by the learned trial court on the facts and circumstances on record. Learned counsel submitted that even if the entire allegation of the prosecution is taken as true, the facts emerge is that when the accused appellants were going to plough their' land with their bullocks and cattle and were passing through the land of the informant, the informant's son objected and asked them not to pass through his land. There was a dispute which suddenly led to altercation and in that sudden feet of moment, the accused appellants allegedly assaulted Mukund Singh Munda. While the informant and his brother Shashi Shushan Singh Munda tried to rescue Mukund Singh Munda, the accused persons also assaulted them with the lathi causing them injuries. The incident thus was a result of sudden fight without any premeditation and preplan and that too the appellants did not use any arm mercilessly and cruelly, as none of the persons died at the spot after receiving lathi blow. Mukund Singh Munda also survived for 4-5 days and in course of treatment in the hospital, he expired on 3.7.1987. Learned counsel submitted that though there are vital infirmities in the case of prosecution and there is no positive evidence to establish even the said allegations, the case, if accepted as true, does not amount to culpable homicide amounting to murder of Mukund Singh Munda or attempt to murder of Shashi Shushan Singh Munda and Sanmali Singh Munda. The case utmost falls within Exception (4) of Section 300 I.P.C. and squarely falls within the ambit of Section 304 Part-II I.P.C. Learned trial court without taking into consideration taken the said legal aspect, erroneously framed the charge under Sections 302/34 and 307/34 of the I.P.C. and without any legal or factual basis held the appellants guilty under the said Penal, Sections. The conviction and sentence of the appellants under Sections 302/34 and 307/34 is thus wholly illegal and unsustainable. Even the place of occurrence and incident had not been properly proved by the prosecution. The prosecution withheld the evidence of Investigating Officer which was vital for the facts and circumstances of the instant case. The conviction and sentence of the appellants under Sections 302/34 and 307/34 is thus wholly illegal and unsustainable. Even the place of occurrence and incident had not been properly proved by the prosecution. The prosecution withheld the evidence of Investigating Officer which was vital for the facts and circumstances of the instant case. The accused appellants had suffered serious prejudice due to non-examination of Investigating Officer. The material witnesses are all interested and are the members of the same family and are inimical to the accused appellants. It is not safe to rely on their testimony to convict the appellants. No independent witness has been examined in this case. The prosecution has also failed to produce the respective lathi used on the commission of the said offence. The evidences of P.W. 1 and P.W. 5, who are said to be eye witnesses, are contradictory. The other ocular evidences are also full of contradictions. Learned counsel submitted that there is no legal basis for the conviction of the appellants and the same is liable to be set aside. 10. Learned A.P.P., on the other hand, supported the impugned judgment and submitted that prosecution has examined as many as four eye-witnesses in this case and they fully supported the prosecution case. It has been proved from the testimonies of the said witnesses that Mukund Singh Munda was mercilessly beaten by the appellants while the informant and Shashi Shushan Singh Munda tried to rescue Mukund Singh Munda, they were also beaten up causing them serious injuries. Learned counsel submitted that in view of a sudden attack and assault by the said accused persons collectively assaulting the abovesaid persons mercilessly, has been suitably dealt with by the learned trial court and the appellants have been rightly convicted and sentenced. There is no infirmity or illegality in the impugned judgment. 11. Having heard learned counsel for the appellants and learned A.P.P. we meticulously scrutinized the evidences on record. It is true that Mukund Singh Munda died due to the assault caused by the appellants and the informant Sanmali Singh Munda and his brother Shashi Shushan Singh Munda also sustained injuries caused by lathi blow given by the appellants. Yet, we find substance in the submission of learned counsel for the appellant that the incident was result of a sudden fight and heat of passion upon a sudden quarrel. Yet, we find substance in the submission of learned counsel for the appellant that the incident was result of a sudden fight and heat of passion upon a sudden quarrel. There was no premeditation or preplan to murder Mukund Singh Munda or to make any attempt to murder Shashi Shushan Singh Munda and Sanmali Singh Munda. The accused appellants also does not seem to have undue advantage or acted in a cruel manner though caused injury on the person of Mukund Singh Munda but it did not cause immediate death. He was alive for 4-5 days and died in course of treatment in the hospital. The gravity and nature of injuries on Shashi Shushan Singh Munda and Sanmali Singh Munda also do not go to suggest that the accused had attempted to commit their murder. Only a few injuries has been found on the person of Shashi Shushan Singh Munda and Sanmali Singh Munda. The said facts and circumstances clearly suggest that the accused had no intention or pre-meditation to take life of Mukund Singh Munda or to make an attempt on the lives of Shashi Shushan Singh Munda and Sanmali Singh Munda. We are, therefore, of the considered opinion that even the admitted allegations of prosecution do not attract application of Section 300 or 307 I.P.C. and the conviction of appellants under Sections 302/307/34 I.P.C. is wholly without any basis. 12. However, when we proceed to scrutinize the evidences of P.W.1, P.W. 3, P.W. 5, P.W. 8 and P.W. 9, we are of the view that though there was no intention or pre-meditation to kill Mukund Singh Munda, his homicidal death is admitted. The injuries on the parts of Shashi Shushan Singh Munda and Sanmali Singh Munda also found support from the testimonies of the said witnesses as well as from the injury reports and the post mortem report which have been brought on evidences as Ext.7 & Ext.-1 respectively. Considering the said ocular evidence coupled with the medical evidence of P.W. 2, we are of the view that though the accused appellants are not guilty of the charge under Sections 302/34 and 307/34, they are guilty of committing culpable homicide not amounting to murder of Mukund Singh Munda. Considering the said ocular evidence coupled with the medical evidence of P.W. 2, we are of the view that though the accused appellants are not guilty of the charge under Sections 302/34 and 307/34, they are guilty of committing culpable homicide not amounting to murder of Mukund Singh Munda. We, therefore, find the accused appellants guilty under Section 304 Part-II of the I.P.C. We do not find any element to constitute the offence under Section 307 I.P.C. but we find that the accused appellants had assaulted and caused injuries to Sanmali Singh Munda and Shashi Shushan Singh Munda. We, therefore, convert the charge under Sections 307 to Section 323 of the I.P.C. Accordingly, the appellants are held guilty under Section 304 Part-II I.P.C. and also under Section 323 of the I.P.C. 13. We are informed that the appellant No. 1 remained in custody for more than four years and thereafter granted bail by order dated 6.9.2005 and the remaining appellants are still in custody, since the date of their conviction in the year 2001. We are of the view that the interest of justice will be served by sentencing the appellants for the period already undergone by the appellants. 14. In the result, this appeal is dismissed but with the said modification in the order of conviction and sentence and holding the appellants guilty under Section 304 Part-II/34 and under Section 323/34 I.P.C. and sentencing them for the period already undergone. The appellant Nos. 2, 3 & 4 consequently are ordered to be set at liberty forthwith, if not wanted in any other case. The appellant No. 1 is discharged from the liability of his bail bond.