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Jharkhand High Court · body

2010 DIGILAW 313 (JHR)

Jhirga Munda v. State of Bihar

2010-03-11

J.C.S.RAWAT, JAYA ROY

body2010
Order This appeal has been preferred by the sale appellant against the judgment of conviction and order of sentence dated 28.4.92 passed by 7th Addl. Judicial Commissioner/Additional Sessions Judge, Ranchi in Sessions Trial No. 258/86 whereby the appellant has been convicted under Section 302 IPC and sentenced to life imprisonment. 2. Briefly stated, the facts of the case are that on 24.9.1984 the informant's son, namely Birsa Lohra, aged about 12 years (the deceased) alongwith one Somra Munda had gone to graze the cows in the forest. It is said that while he was returning with Somra Munda alongwith the cows, they reached near Maragarha where they saw that five persons were cutting lac from the palas tree grown by his father. Birsa Lohra, the son of the informant, objected to such cutting or collection of lac on the ground that the same belonged to his father. Birsa Lohra further told those persons that he would inform this fact to his father after reaching home. Upon this, Jhingra Munda, the appellant, out of annoyance and vengeance, chased the deceased, Birsa Lohra and also Somra Munda. After chasing them up to a distance of 10-20 steps the appellant-accused is alleged to have given a tangi blow on the neck of the deceased, Birsa Lohra as a result of which the deceased sustained injuries to which he succumbed at the spot. The appellant could not catch hold of Somra Munda and so Somra Munda could be able to come back to the village and informed the informant and the villagers that Birsa Lohra, the deceased, had been killed,by the appellant. He narrated the entire incidence to the villagers. Thereupon, the informant alongwith PW 2, Jainath Lohra, PW 3, Budhu Munda, PW 7, Baida Munda and others proceeded towards the forest where the deceased was said to have been killed by the appellant. When they reached at the spot, they saw that co-accused were dragging the dead body of the deceased. Birsa Lohra. When those co-accused saw these persons, they all fled away from the place of occurrence leaving the dead body at the spot. On their visual observation it was found that the neck of the deceased was cut and he was found dead. Thereupon, they left some of the persons at the spot and some of the villagers alongwith the informant returned back to the village. On their visual observation it was found that the neck of the deceased was cut and he was found dead. Thereupon, they left some of the persons at the spot and some of the villagers alongwith the informant returned back to the village. They informed the whole matter to all the villagers, the village Pradhan, Harish Chandra Singh Munda who asked them to inform this matter to the police. The matter was then reported to the police on 25.9.84 at about 6.30 a.m. in the morning. FIR was lodged and a case was registered against the appellant and other co-accused. The matter was investigated and on completion of investigation charge-sheet was submitted before the court. The case was committed to the court of sessions. Charge was framed. The accused-appellant pleaded not guilty and claimed his trial. 3. The prosecution, in support of its case, examined eight witnesses. P.W.1 is Ban Singh Lohra, the informant of the case and the father of the deceased. P.W.2 is Jai Nath Lohra, a co-villager who accompanied the informant after getting information about the occurrence from Somra Munda. P.W. 3 is Budhu Munda, a co-villager. PW 4 is Paitu Oraon, a covillager. PW-5 is Narain Oraon, a co-villager, PW-6, Sukra Lohra is the chaukidar of the village. PWs-7 and 8, namely, Baida Munda and Jakari Oraon are the co-villagers. PW-3, Budhu Munda and PW-8, Jakari Oraon are the witnesses to the fact that tangi was discovered at the instance of the accused-appellant from a bush. They are also the witnesses before whom the accused-appellant is alleged to have confessed his guilt. It is alleged that when the accused was apprehended by the villagers, they sent PW-6, the chaukidar to call the police. Apart from the above, Dr. Renu Bala, Jagannath Ram (constable) and Dr. Yogendra Nath, Asstt. Professor, were examined as court witnesses as C.Ws. 1, 2 and 3 respectively. Dr. Renu Bala has proved the post mortem report as secondary evidence. Dr. Yogendra Nath conducted autopsy over the dead body of the deceased. C.W. 2, Jagannath Ram has proved certain documents produced by the police such as, FIR, sick report and seizure memo etc. 4. After closure of prosecution evidence the accused-appellant was examined under-Section 313 Cr.P.C. who denied all the averments made in the evidence and pleaded his innocence. Dr. Yogendra Nath conducted autopsy over the dead body of the deceased. C.W. 2, Jagannath Ram has proved certain documents produced by the police such as, FIR, sick report and seizure memo etc. 4. After closure of prosecution evidence the accused-appellant was examined under-Section 313 Cr.P.C. who denied all the averments made in the evidence and pleaded his innocence. It appears that the court at a later stage u/s 313 Cr.P.C. also put certain incriminating circumstances to the appellant which had not been put to him earlier. The accused appellant denied all the incriminating circumstances put to him by the court which had come in evidence. 5. At the very outset we would like to mention that there is no dispute that the deceased, Birsa Lohra died at the spot on 24.9.84 at about 3 p.m. The doctor was examined by the court as CWs-1 and 3, namely, Renu Bala and Yogendra Nath who found the following ante mortem injuries on the person of the deceased: "Abrasions (1) 8 x 1/2 cm over left lateral side of neck and adjoining scalp. (2) 2 x 1/2 cm. below left clerical. (3) 1 x 1/2cm., 1/2 x 1/2 cm., 2 x 1/2 cm., 1/4 x 1/4 cm. over front of neck lower part. (4) 1/2 x 1/4 cm., 1/4 x 1/4 cm., 1/2 x 1/2 cm. over front of abdomen below umbilicus. (5) 1 x 1/2 cm., 1/2 x ½ cm., 1/2 x 1/4 cm. over right inguinal region. (6) 1 x1/2 cm. right leg middle front. (7) 1/2 x 1/2 cm. over left inguinal region. (8) Several abrasions of different sizes and shapes over scrotal skin. Incised wounds (1) 4 ½ cm. x 2 ½ cm. x soft tissue over right cheek cutting the underline mandible bone and soft tissue. (2) 5 cm. x 1 ½ cm. x 1 cm. over right side of neck lateral situated slightly posterior. (3) 6 cm x 1 ½ cm. x 2 ½ cm. over right neck below mandible cutting the soft tissue and main blood vessels of the neck of right side." The doctor opined that the aforesaid abrasions had been caused by hard and blunt substance and such abrasions were also possible due to dragging of the dead body. The doctor further opined that the incised wounds had been caused by heavy sharp cutting weapon like tangi. The doctor further opined that the incised wounds had been caused by heavy sharp cutting weapon like tangi. The incised wounds were found on the neck of the deceased which was sufficient, in the ordinary C0urse of nature, to cause the death. The duration of death was found to be 18-72 hours which has amply established that the deceased died a homicidal death on the date, time and place as indicated by the prosecution. 6. It needs to be mentioned here that the prosecution has not produced the eye witness, Somra Munda, before the court. He was sole eye witness of the incident. The trial court has observed that in spite of best possible efforts his attendance could not be procured by the prosecution. The court has also mentioned that this witness is alive but had gone out of the village in connection with his employment and so he could not be traced. Apart from the above, the Investigation Officer has also not been produced before the court for the reasons best known to the prosecution who could have proved the FIR, seizure memo and the discovery of the tangi. The court summoned a constable of the prosecution branch to prove the above documents and he, as CW. 3 has stated that he had seen the I.O. reading and writing and the documents are in the handwriting of the I.O. It has not been established from the record that the I.O. could not be traced out or he was not in service. 7. The trial court, after appraisal of the entire evidence has come to a conciusion that the accused-appellant has given an extra judicial confession before the witnesses, PWs-3 and 4, Budhu Munda and Paitu Oraon and that confession, being uninfluenced by anything, is admissible and reliable. The second circumstance on which the conviction has been based, is that the discovery of the tangi was at the behest of the appellant which was used in the commission of the crime. The third circumstance which has been found by the court against the appellant is that the dead body was found at the spot. The trial court has categorically observed that when Somra Munda informed the father of the deceased about the incidence the informant, PW-1, rushed to Maragarha, the place of occurrence. The third circumstance which has been found by the court against the appellant is that the dead body was found at the spot. The trial court has categorically observed that when Somra Munda informed the father of the deceased about the incidence the informant, PW-1, rushed to Maragarha, the place of occurrence. He saw there other co-accused dragging the body of the deceased but the appellant was neither seen there nor he was found dragging the dead body of the deceased. 8. Now we have to examine as to whether these two circumstances which have been relied upon by the trial court to convict the appellant, can be acted upon or not. Learned counsel appearing for the appellant contended that the prosecution has examined PW-3, Budhu Oraon and PW-8, Jakari Oraon to prove the discovery of tangi. No other witness has been produced to prove the said discovery of tangi. PW-8 has not supported the prosecution version. The only evidence of PW-3 which remains to be considered is as to whether the said discovery is credible and cogent or not. The learned counsel for the appellant contended that during the course of trial the prosecution has tried to develop a story that the discovery of tangi was made in presence of PW-6, Sukra Lohra also who is the chaukidar of the village. He has pointed out that a perusal of the seizure memo clearly reveals that he has not signed the seizure memo. If he would have been present there, definitely the I.O. would have preferred to get his signature on the seizure memo. It was further pointed out that the I.O. was not produced before the court for the reasons best to the prosecution and so discovery stands unproved. If the I.O. would have been produced, he could have said as to who are the witnesses before whom discovery was made and how it was made. Learned counsel appearing for the State has refuted this contention and contended that discovery has been proved in this case and this circumstance is sufficient to convict the appellant. 9. From perusal of the seizure memo it is apparent that the said tangi has been recovered from near the house of one Gondia Munda which was kept over the bush whereas the evidence of PWs-3 and 4 indicates that it was kept inside the jhari. 9. From perusal of the seizure memo it is apparent that the said tangi has been recovered from near the house of one Gondia Munda which was kept over the bush whereas the evidence of PWs-3 and 4 indicates that it was kept inside the jhari. Now it is true from perusal of seizure memo, Ext.-6, that it was kept on the southern side of the house of Gondia Munda and it was not inside the bush rather it was over the bush as would be evident from para 2 of his evidence. 10. There is nothing under Section 27 of the Indian Evidence Act which renders the statement of the accused inadmissible if the recovery of the article is made from any place which is open or accessible to all. If the recovery of the article is made from a place which is open or accessible to all, it would not vitiate the discovery under Section 27 of the Act because a open and accessible place cannot make discovery inadmissible if' it is hidden inside a place because no person would notice that something is hidden inside the surface though it is open and accessible. If it is kept over the surface at a open public place, the discovery cannot be relied upon. It can be kept by any person or it may remain in the knowledge of other person also. For example, if an article is buried inside a place in the main road and it is concealed beneath the road it would remain out of the visibility of others in normal circumstance unless the article is disinherited at the hidden place. The person who hides it, he only knows this unless he discloses that fact to any other person. Hence the crucial question is not whether the place was open or accessible to Others or not but the crucial question is whether it was ordinarily visible to others or not. If it was visible to others either it can be planted or it can be done by other person. It cannot be inferred that the accused had the knowledge of this fact. As such, the discovery in this case does not inspire any confidence. 11. If it was visible to others either it can be planted or it can be done by other person. It cannot be inferred that the accused had the knowledge of this fact. As such, the discovery in this case does not inspire any confidence. 11. Section 27 of the Indian Evidence Act provides that when any fact is deposed to as discovered in consequence or information received from a person accused of any offence, and the discovery made thereof, would be admissible. Thus, the prosecution has to prove that this information was given by the accused appellant to the police officer. There is no memorandum of the statement before this court as to from where it can be gathered that the information for discovery was disclosed by the accused to the police officer. We do not feel that separate memo is always required but if the discovery is to be made, the seizure memo must contain this fact, if a separate memo has not been prepared. The entire seizure memo does not contain any such information. There is nothing contained in the seizure memo to infer that it was in consequence of the information received from the accused that the tangi has been recovered. Apart from that it is also important to note that the entire process of discovery can only be proved by the I.O. and the accused could have been put to cross-examination. By not producing the I.O. such opportunity has been denied to the appellant which• has certainly prejudiced his case. He would have been best person to meticulously deal with the discovery proceeding. The prosecution produced only PWs-3 and 8 but the evidence of PW-8, Jakari Oraon is of no avail to the prosecution as he has been declared hostile because he has not supported the prosecution case. He has not proved the discovery as indicated by the prosecution, whereas, PW-3, Budhu Munda remains on record on the factum of discovery. He has stated that he went to the place from where discovery was made at the instance of the appellant and in the discovery memo he has put his signature. It is also apparent from the evidence of the prosecution that the tangi which is said to have been recovered, has not been produced before the court. He has stated that he went to the place from where discovery was made at the instance of the appellant and in the discovery memo he has put his signature. It is also apparent from the evidence of the prosecution that the tangi which is said to have been recovered, has not been produced before the court. The tangi has not been shown to this witness to say as to whether the tangi which is alleged to have been discovered from the bush, was actually the same tangi or not. Here, non production of tangi is fatal to the prosecution. This witness has admitted in his evidence that he had• come to give his evidence on the basis of the version given by Somra Munda. 12. After perusal of the entire evidence and the provisions of Section 27 of the Indian Evidence Act, the discovery made in this case does not inspire confidence and, as such, the trial court, in our view, has erred in relying upon the said discovery circumstance to convict the accused-appellant on the basis of this circumstance also. 13. The next circumstance projected against the accused-appellant by the learned counsel for the appellant is that PWs-3 and 4, namely, Budhu Munda and Paitu Oraon have stated in their evidence that the appellant was caught by the villagers after two days of the occurrence i.e. on 27.9.81 and the appellant made extra judicial confession before the witnesses to the effect that he had killed the deceased by tangi. P.W.3 has said that on the date of the incidence Somra Munda and Birsa Lohra, the deceased had gone to jungle to graze cows and while they were returning back, the deceased, Birsa Lohra was assaulted by the appellant on his neck by tangi at the spot. The said . information was given to the father of the deceased, PW-1, Ban Singh Lohra and other co-villagers. The villagers reached .at the spot alongwith PW-1 and they saw some other co-accused dragging the dead body of the deceased but they had not seen the appellant at the spot. After 2-3 days the co-villagers caught hold of the appellant who confessed his guilt that he had killed the deceased with tangi and had concealed the said tangi in a bush near the house of one Gondia Munda. After 2-3 days the co-villagers caught hold of the appellant who confessed his guilt that he had killed the deceased with tangi and had concealed the said tangi in a bush near the house of one Gondia Munda. Thereafter, the chaukidar of the village, PW-6, was sent to police station and the accused-appellant was handed over to the police. Discovery of tangi was made and, thereafter the accused-appellant was sent to the Magistrate for judicial custody. 14. Now it has to be seen as to whether the evidence of PWs-3 and 4 is reliable or not. At the outset we would like to say that the incident occurred on 24.9.84. According to P.W.2, Jai Nath Lohra, after two days of the occurrence the appellant was apprehended by the villagers who confessed his guilt. From the record it transpires that the arrest of the accused-appellant was effected on 30.9.84 and he was sent to the Magistrate for recording his statement as well as for seeking judicial custody on 1.10.84. Seizure memo, Ext.-6 also reveals that the same was made on 30.9.84. Hence, it was obligatory on the part of the prosecution to produce the accused before the Magistrate within 24 hours. From the above, it is apparent that the accused appellant remained in the custody of the villagers for three days and the villagers had not informed the police that the appellant was apprehended by them. A report was sent to the laka Magistrate for recording• the confessional statement of the appellant which is also on record from which it appears that the 1.0. had written that the accused had sustained injuries during the period he was in the custody of the villagers. This report clearly reveals that the appellant-accused was subjected to torture due to which extra judicial confession could have been obtained by the villagers. Apart from that, the accused appellant remained in the custody of the witnesses or the villagers for a period of four days without any explanation. If the accused had been apprehended by the witnesses or the villagers then, in normal course of business, the accused should have been handed over to the police. If the accused was not handed over to the police or the Magistrate and he was subjected to torture and something had been extracted from him even if confession was made, that was not voluntary. If the accused was not handed over to the police or the Magistrate and he was subjected to torture and something had been extracted from him even if confession was made, that was not voluntary. Apart from that, the report of the I.O. did not contain the fact that the appellant had already confessed his guilt before the witnesses as indicated by the prosecution in its report and so his confession should be recorded. It is only indicated that the accused is confessing his guilt and hence his statement should be recorded by the competent authority. P.W.4, Paitu Oraon has stated that the accused-appellant had given extra judicial confession before him alongwith other co-villagers that he had killed the deceased by tangi. This statement has come before the court for the first time. When he was put a question in para 9 of his deposition as to whether he had given this statement to the police under Section 161 Cr.P.C. or not, he said that he had not given such statement to the police. The prosecution has not produced the I.O. who could have stated as to whether he gave such statement or not under Section 161 Cr.P.C. Thus, these facts lead to take an inference that PW-4, Paitu Oraon for the first time has stated this fact before the court and he did not state this fact at any earlier stage. So far PW-3 is concerned, he has also stated that confession was made by the appellant about the killing of the deceased by him but the I.O. while submitting the report, has not indicated that the accused has given any extra judicial confession before any person. Non-production of the I.O. has caused prejudice to the appellant. Had he been produced before the court he would have stated as to on which date and the statements of PWs-3 and 4 were recorded by the police If the statement of both these witnesses would have been recorded after inordinate delay or any explanation would have been given, the matter would have been otherwise. Non-production of the I.O. certainly leads to draw an inference that the statement of these two witnesses had been taken at a later stage and, as such, the evidence of both the witnesses with regard to confession made by the accused cannot be taken into account. 15. Non-production of the I.O. certainly leads to draw an inference that the statement of these two witnesses had been taken at a later stage and, as such, the evidence of both the witnesses with regard to confession made by the accused cannot be taken into account. 15. The cumulative effect of the entire narration of evidence and discussions made above is that the alleged extra judicial confession made in this case does not at all inspire any confidence to base the conviction of the accused-appellant solely on the basis of said extra judicial confession. 16. In the result, this appeal is allowed The judgment of conviction and order of sentence dated 28.4.92 recorded against the appellant is set aside and he is set at large. The appellant is on bail. He is discharged from the liability of his bail bond. He need not surrender.