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2012 DIGILAW 124 (JHR)

Etwa Munda v. State of Jharkhand

2012-01-23

D.N.UPADHYAY, R.K.MERATHIA

body2012
JUDGMENT D.N. Upadhyay, J.-This appeal has been filed against the judgment, convicting the appellant under Section 302, I.P.C. and sentencing him to undergo R.I. for life. 2. The prosecution case, in short, is that in the intervening night of 19/20.10.2000 the informant Shalgi Mundain (PW 10) had gone to sleep. In the morning her youngest son started weeping on which she went and did not find her husband Rautu Munda (deceased). She thought that he might have gone to ease himself but when he did not return till 6.30 a.m. she begun to search him during which she learnt that dead body of her husband was lying on rock at the distance of about 300 metres from the village. The informant went there and saw that her husband was killed with sharp cutting injuries on his body. It was also stated in the F.I.R. that the deceased or the informant had no enmity with anybody but it appears that some unknown person has killed him after calling him from the house. 3. Mr. Akhouri Anjani Kumar, learned counsel appearing for the appellant assailed the judgment on various grounds. He submitted that there are vital contradictions between the statement of the witnesses given by them under Section 164, Cr.P.C. and the evidence given before the Court. Moreover, even in the statement before the Court there are vital contradictions. Therefore, he submitted that the appellant be given benefit of doubt and that he has remained in jail for more than 11 years. 4. Nobody appears for the State. 5. PW 1 is the doctor who conducted post-mortem. He found several incised injuries on the vital parts of the body of the deceased which were caused by sharp cutting heavy weapon, which were the cause of death. PWs 2 and 3 are the inquest witnesses. PWs 4, 8 and 9 are said to be the eye-witnesses, PWs 5, 6, and 7 are hearsay witnesses including PW 10 who is the informant. PW 11 is the I.O. PW 12 is the Magistrate who recorded the statement of PWs 8 and 9 under Section 164, Cr.P.C. 6. After carefully going through the records it appears that there was love affairs between the appellant and PW 8 Budhani-Kumari-daughter of the deceased and between PW 4 Sanika Munda and PW 9 Chirlu Kumari. PW 11 is the I.O. PW 12 is the Magistrate who recorded the statement of PWs 8 and 9 under Section 164, Cr.P.C. 6. After carefully going through the records it appears that there was love affairs between the appellant and PW 8 Budhani-Kumari-daughter of the deceased and between PW 4 Sanika Munda and PW 9 Chirlu Kumari. These two couples were seen in the night together by the deceased, who tried to assault the appellant by tangi but the appellant snatched it and assaulted the deceased. There are vital contradictions in the statements made by PWs 8 and 9 under Section 164, Cr.P.C. and their evidence in the Court. PW 8 Budhani Kumari said in her statement under Section 164, Cr.P.C. that the appellant assaulted the deceased whereas PW 9 did not say about such assault in her statement under Section 164, Cr.P.C. In Court PWs 8 and 9 though simply said that the appellant had killed the deceased but in the cross-examination they also said that they had not seen the• occurrence. Similarly there is vital contradictions in the evidence of PW 4 Sanika Munda who is also said to be the eye-witness. He has also contradicted himself in his chief and in his cross-examination. 7. In view of such vital contradictions in the evidence of prosecution witnesses, it will not be safe to uphold the conviction. In our opinion, the appellant should be given benefit of doubt. 8. Accordingly, the impugned judgment dated 28.11.2001 is set aside. The appellant is directed to be released forthwith, if not wanted in any other case. Appeal allowed.