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2011 DIGILAW 905 (JHR)

Shailendra Singh Munda v. State of Jharkhand

2011-09-20

D.N.UPADHYAY, POONAM SRIVASTAV

body2011
JUDGMENT By Court : The instant appeal is preferred against the judgment and order of conviction and sentence dated 24 July, 2007 and 27th July, 2007 respectively, passed by the Additional Judicial Commissioner , 1st Khunti, in Sessions Trial No. 629/2005, whereby the appellant has been convicted under section 302/34 I.P.C. and sentenced to undergo imprisonment for life. 2. Two accused including the appellant were sent up for trial, but the instant appeal is preferred by one of the convicts, namely Shailendra Singh Munda. 3. The prosecution story, as disclosed in the FIR is that on 13.11.2004 which is the date of the occurrence, Sri Pada Singh Munda @ Laghu Munda (deceased), the husband of the the informant, had gone with Sobha Munda and Gahanan Munda to see them off to their house, since they were old persons. He had left his house at 6.00 p.m along with these two persons, He was sitting along with Gahan Munda and Sobha Munda, at about 9.00 p.m. accused Sunder Singh Munda accompanied by the present appellant Shailendra Singh Munda alias Solen Munda arrived at the scene of incident. Sundar Singh Munda was armed with a knife; he inflicted injuries on the deceased from the front side of his neck which resulted in instantaneous death of the deceased. Information was given to the first informant, the wife of the deceased, by the two persons who had accompanied the deceased from his house. The wife of the deceased arrived at the place of the occurrence, in village Putida, P.S. Arki. The FIR was lodged with the Police Arki PS case No. 34/2004 under section 302/34 IPC, was registered on the next day at 16.30 hrs at Hetalalong Toli, Putida, naming the two accused persons, Sunder Singh Munda and the present appellant as the assailants of the deceased. The entire story detailed in the FIR has been substantiated by the eye-witnesses during trial namely PW1, Gahan Munda. This witness was declared hostile. PW2 Sobha Munda and PW3 Jungal Singh Munda are witnesses on fact. PW4, Sukru Devi, the wife of the deceased, is the first informant. PW5 Ghanshyam Munda was examined as a witness to substantiate the enmity between the deceased and the appellant. This witness was declared hostile. PW2 Sobha Munda and PW3 Jungal Singh Munda are witnesses on fact. PW4, Sukru Devi, the wife of the deceased, is the first informant. PW5 Ghanshyam Munda was examined as a witness to substantiate the enmity between the deceased and the appellant. PW6 Saroj Singh is the investigating officer and PW7 is Dr.Tulsi Mahto who had proved the post mortem report as a secondary evidence since the post mortem was conducted by another doctor who died in an accident and therefore the post mortem was proved by his senior (PW7). 4. Arguments on behalf of the appellant is that the incident took place on a dark night since there was no source of light therefore the accused could not have been identified and also that the depositions made by the prosecution witness is not trustworthy since none had seen the occurrence. Second argument is regarding place of occurrence which has not been fixed and identified by the investigating officer. No blood stained earth was taken and sent to the serologist for forensic examination. The place of occurrence has also been challenged on the ground that the inquest was prepared while the deceased was found lying on a cot inside the house of Gahan Munda, whereas the consistent prosecution story is that he was killed while sitting near the door of Gahan Munda near a pole. The dead body was lying on the ground according to the assertion by the witnesses; they further deposed that blood had fallen on the earth. It was also argued that PW 1 Gahan Munda who is also an eye witness has been declared hostile and thus he (PW2) is the solitary witness, who according to the FIR, had accompanied the deceased from his house to the house of PW1 in the village. So far as Jangal ss Singh Munda PW3 is concerned, he is said to have seen the occurrence while sitting in the house and the vision was not clear due to darkness and therefore his testimony is liable to be discarded. The other argument advanced on behalf of the appellant is that the FIR has been lodged with inordinate delay, as the incident took place at 9.00 p.m on 13.11.2004, whereas the FIR was lodged on the next day at 4.30 p.m. Enmity is also admitted. Therefore, FIR was registered after consultation and deliberation. The other argument advanced on behalf of the appellant is that the FIR has been lodged with inordinate delay, as the incident took place at 9.00 p.m on 13.11.2004, whereas the FIR was lodged on the next day at 4.30 p.m. Enmity is also admitted. Therefore, FIR was registered after consultation and deliberation. The evidence of the solitary witness PW2 has been castigated at length to establish the prosecution story was developed during the course of trial and emphatic submission is that witness had not seen the incident and therefore conviction of the appellant cannot be upheld on the basis of the solitary evidence of PW2. 5. We have also heard the learned counsel for the State, who has supported the judgment and order of conviction and sentence passed by the learned trial court and considered the statements of the witnesses. So far as PW1 is concerned, his evidence is not trust worthy and he has been declared hostile. The argument on behalf of the State is that his evidence is liable to be ignored. 6. We have heard and carefully considered the arguments advanced by the learned counsel for the appellant and the State and have gone through the evidence on record. 7. No doubt, it was a dark night, but there was a lamp burning at the place of the incident. Besides this, it was Deepawali night. So, we are convinced that there was no darkness, and paucity of light. It was in the heart of the village where Deewali was being celebrated; therefore, the argument regarding scanty light is not acceptable. Besides this, the argument that the assailant(s) could not be identified as it was a dark night cannot be accepted. Evidently, the assailants were known from before and they had come with a definite intention to kill the deceased. The present appellant caught hold of the deceased and the co-accused inflicted the blow with a sharp cutting weapon on the front of the neck of the deceased. No doubt, the injury shown in the post mortem is simple as reported in the post mortem, but it shows that the cut was from front part of the neck and a part of vertebra was also injured; the death of the deceased was caused due to shock and haemorrhage. No doubt, the injury shown in the post mortem is simple as reported in the post mortem, but it shows that the cut was from front part of the neck and a part of vertebra was also injured; the death of the deceased was caused due to shock and haemorrhage. The argument that there was no intention to kill the deceased is without substantiation and we are not inclined to accept this argument. The argument of false implication on the ground of enmity cannot be accepted for the reason that enmity was the reason for causing the fatal injury. It was only as a counter to the long standing enmity between the deceased and the appellant which is also admitted by both sides. Nothing has been deposed to deny the enmity, but it goes without saying that previous incident as narrated by PW3 at the time when the accused Sunder Singh Munda had gone to do 'marpit' with the deceased at his house and at that time also, the present appellant Shailendra Singh Munda had accompanied him. There is no denial to this specific assertion. So far the argument that conviction cannot be based on the solitary evidence of PW2, We are not in agreement as there were other witness who has said that he had seen the incident from the window of his house. The village constituted of only handful of houses situated in close proximity. Occurrence had taken place on a Diwali night. Thus, there was ample light for a person to sit in the house and witness the incident. Therefore, besides the fact that we are inclined to accept the entire evidence of PW2, we do not decline to accept the corroborative evidence of Jangal Singh, who witnessed the incident from his house. As regard the delay in lodging the FIR, we doubt there is some delay. The widow of the deceased who lodged the FIR came from the place of occurrence. The Police station was 35 kms. away from the place of incident. The police might have arrived slightly late the next morning, which was the day after Deewali, and evidently, some delay by an illiterate village female cannot be construed in a manner to throw the prosecution case over board. We are inclined to accept the reason explained by the prosecution for lodging the FIR late in the afternoon. The police might have arrived slightly late the next morning, which was the day after Deewali, and evidently, some delay by an illiterate village female cannot be construed in a manner to throw the prosecution case over board. We are inclined to accept the reason explained by the prosecution for lodging the FIR late in the afternoon. Thus, mere delay, as pointed out by the learned counsel appearing on behalf of the appellant is not sufficient to acquit the appellant, especially when there is eye witness and corroborative medical evidence as well as other facts that immediately after the incident, it was disclosed by Pws 1 and 2 to the other villagers and information was also sent to the wife of the deceased. 8. In view of what has been stated above, we are in complete agreement with the findings recorded by the learned Sessions Judge. There is no ground for interference with the judgement and order of conviction and sentence. The appeal is devoid of any merit. 9. For the reasons aforesaid, this appeal is dismissed and the order of conviction is confirmed. Appeal dismissed.