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2012 DIGILAW 1440 (JHR)

Mahendra Munda @ Pandu Munda v. State of Bihar

2012-09-20

D.N.PATEL, PRASHANT KUMAR

body2012
JUDGMENT Per D.N. Patel, J. The present appeal is arising out of judgment of conviction and order of sentence passed by 5th Additional Judicial Commissioner Ranchi in Sessions Trial No. 519 of 1990. whereby the learned trial Court vide judgment of conviction and order of sentence dated 27.08.1993/02.09.1993 has convicted and punished the appellant/accused mainly for the offence punishable under Section 302 of the IPC for life imprisonment and he has also been punished for the offence under Section 201 of the IPC but no separate sentence has been awarded for the offence under Section 201 of the IPC Against this judgment of conviction and order of sentence the present appeal has been preferred by the appellant. 2. It is the case of prosecution that one Smt. Budheshwari Devi lodged an FIR on 17.01.1990 at about 7 p.m. that her husband namely Narayan Bhokta had, gone to Gudidih on 17.01.1990 at about 13 hours on last Sunday and from there he had gone to Village Jonha Toli and then he left her in village Jonha Toli and went to visit a fare at Gautam Dhara. When her husband not returned from the fare, her younger brother Chandramohan Munda went in search for her husband at Gudidih but he could not find him out and on 17.01.1990 in the morning the informant came to know about the recovery of a dead body from a well then informant Budheshwari Devi went there and found that the body of her husband was recovered and his head was severed and had sustained multiple injuries. This F.I.R. was lodged by the wife of the deceased Budheshwari Devi. It has also mentioned in the FIR that she suspected that her husband had illicit relations with one Balo Devi daughter of Chandra Bhokta and has also asserted that the some unknown persons killed her husband and concealed the dead body in a well. On the basis of FIR the police recorded the statement of one Sri Budheshwar Munda @ Koria Munda (PW 1) on 6th of February, 1990, who stated that he had seen the incident and his statement under Section 164 of the Cr PC was also recorded. 3. On the basis of FIR the police recorded the statement of one Sri Budheshwar Munda @ Koria Munda (PW 1) on 6th of February, 1990, who stated that he had seen the incident and his statement under Section 164 of the Cr PC was also recorded. 3. Upon completion of investigation charge-sheet was filed and the sessions case was committed bearing S.T. No. 519 of 1990 and on the basis of prosecution witnesses, total 7 in number and also looking to the depositions of defence witness Nos. 1 and 2 the learned trial Court has convicted and awarded the sentence of life imprisonment to the present appellant for committing murder of deceased Narayan Bhokta under Section 302 of the IPC. 4. We have heard counsel appearing for the appellant who has mainly submitted that there are major omissions contradictions and improvement in the case of the prosecution by the depositions of the prosecution witnesses. The so called sole eye-witness PW 1, Budheshwar Munda @ Koria Munda is not at all an eye-witness. Neither his name is referred in the FIR nor his statement under Section 164 of the Cr PC is proved by the prosecution and his statement was recorded after 20 days from the date of lodging of the FIR. FIR was registered on 17.01.1990 and the statement of so called eye-witness was recorded on 6th February, 1990, under Section 161 of the Cr PC and thereafter under Section 164 of the Cr PC. He has not seen the dead body when it was recovered because he was not present at all and he stated in his deposition that he has seen the dead body recovered from the well and he had identified also that he was the same person who was with the appellant/accused on the date of murder. But his presence at the time of recovery of the dead body or at the time of drawing the inquest-panchnama is not proved by the prosecution. The inquest panchnama which is at Ext.-1 is drawn on 17.1.1990. The statement of the witness PW 1 was recorded on 6.2.1990 and this PW 1, so called eye-witness stated that he has seen the dead body. Nowhere his presence was recorded while recording inquest-panchnama. Thus, he is not a reliable witness at all. It is also submitted by the counsel for the appellant that there is no other eye-witness of the incident. Nowhere his presence was recorded while recording inquest-panchnama. Thus, he is not a reliable witness at all. It is also submitted by the counsel for the appellant that there is no other eye-witness of the incident. It is further submitted by counsel for the appellant that looking to the cross-examination of this PW 1, upon whom the prosecution is relying upon, has stated in the cross-examination that he has not seen the place of incident and whatever he has stated has stated only upon the insistence of the police. Thus, looking to the cross-examination of PW 1, he is a tutored witness not an eyewitness at all and he is untrustworthy and unreliable. 5. It is further submitted by the counsel for the appellant that PW 2 has turned hostile and looking to the other prosecution witnesses they have not seen the incident at all they are the witnesses on inquest-panchnama, seizure list and the doctor PW 7 is also a formal witness. It is further submitted by the counsel for the appellant that looking to the case of prosecution PW 1 snatched away the deadly weapon from the hands of the appellant/ accused after the murder had taken place and while running away the deadly weapon was given to one blind man namely Paitu Munda and this witness never examined as prosecution witness. This Paitu Munda has been examined as Defence Witness No. 1 and he has stated before the Court that he was never handed over the weapon from PW 1. Thus, the so called eye-witness PW 1 is never getting any support from any other witness. Thus, the sole eye-witness is untrustworthy and unreliable and this aspect of the matter has not been properly appreciated by the learned trial Court also and hence the judgment of conviction and order of sentence deserves to be quashed and set aside. 6. We have heard counsel appearing for the State who has vehemently submitted that the case of the prosecution is based upon eye-witness PW 1 Budheshwar Munda @ Karia Munda who has clearly narrated the whole incident in detail and stated that he had seen the incident, he has seen the appellant/accused causing murder of the deceased by a sharp cutting instrument. He had accompanied the deceased along with the appellant, he also taken liquor with him and after the appellant beheaded the deceased, he snatched away the weapon and ran away and he given the weapon to one blind man. The depositions of PW 1 is getting enough corroboration by the medical evidence given by PW 6 who is Dr. Niranjan Minz. Moreover the dead body which has been recovered from the well has also been identified by the PW 1 that it is the body of the same person who was with the appellant and with whom the PW 1 had gone. It is further submitted by learned A.P.P. that PW 1 is reliable and trustworthy witness and there is no need of quantity of witness looking to the quality of single eye-witness. This aspect of the matter has been properly appreciated by the learned trial Court and rightly the learned trial Court has observed that the case of the prosecution is proved beyond reasonable doubt that appellant has committed murder of Narayan Bhokta. Therefore, the appeal preferred may not be entertained by this Court. 7. Having heard counsels for both the sides and looking to the evidences on record. it appears that the FIR was lodged by one Smt. Budheshwari Devi on 17.01.1990 at about 13 hours with Angara Police Station that her husband who had gone to fare at Gautam Dhara has not returned. He had gone on last Sunday and on 17.1.1990 she came to know that one dead body recovered from a well nearby village Jonha. She rushed to the said place and found that the dead body was of her husband and his neck was separated from the body of the deceased. She had also stated in the FIR that she has suspicion that her husband had illicit relation with one Balo Devi daughter of Chandra Bhokta and therefore, he must has been murdered. This FIR has not given Exhibit number because Budheshwari Devi has expired as per deposition given of PW 7. neither the I.O. has been examined. 8. We have also perused the depositions of the sole eye-witness PW 1 namely Budheshwar Munda @ Koria Munda. Looking to the depositions of this witness it appears that he claims to be an eye-witness. Nowhere his name referred in the FIR nor any motive has been pointed out by this witness. neither the I.O. has been examined. 8. We have also perused the depositions of the sole eye-witness PW 1 namely Budheshwar Munda @ Koria Munda. Looking to the depositions of this witness it appears that he claims to be an eye-witness. Nowhere his name referred in the FIR nor any motive has been pointed out by this witness. Moreover, it further appears that the offence was registered on 17.01.1990 and the statement of so called eye-witness was recorded under Section 161 of the Cr PC on 6.2.1990. His statement under Section 164 of the Cr PC has also been recorded on 6.2.1990. His so called statement before the concerned Magistrate has not been proved because no Magistrate has been examined to prove the statement recorded under Section 164 of the Cr PC Moreover looking closely to the depositions of PW 1. it appears that though he has not seen the dead-body recovered from well he has stated that he has seen the dead-body and it was of the same person who was found with the appellant/accused and he also accompanied both of them and had consumed some liquor. The dead body was recovered on 17.01.1990. Looking to the inquest report at Ext-1, which has been proved by deposition of PW 3 on the same day PW 1 was not present before the police otherwise his statement would have been recorded on the very same day. Thus, he is not trustworthy and he is not reliable witness Moreover, looking to the cross-examination of this witness he has categorically stated that he has not seen the place of offence and he has given the deposition because of insistence of the police. Thus, he is a tutored witness. Thus, looking to the over all depositions of this sole so called eyewitness, PW 1, it inspire no confidence and there is no corroboration at all to the deposition of PW 1. It is further stated by PW 1 that he has snatched away the sharp cutting instrument from the hands of the accused immediately after the murder was committed by him of Narayan Bhokta and he had ran away with the weapon and while running, he has given this weapon to one blind man. This blind man was never examined by prosecution. This blind man was never examined by prosecution. The blind man to whom weapon was given by PW 1 is examined as Defence Witness No.1, Paitu Munda and he has not supported the case of prosecution. Thus, looking to the deposition of PW 1, there is no corroboration by any other depositions of the prosecution witnesses. Thus, the sole eye-witness, upon whom, the prosecution is relying, is not trustworthy and he is unreliable. This aspect of the matter has not been properly appreciated by the learned trial Court. 9. We therefore, quash and set aside the judgment of conviction and order of sentence passed on 27.08.1993 and 02.09.1993 respectively by 5th Additional Judicial Commissioner, Ranchi in Sessions Trial No. 519 of 1990. The appellant/accused is already on bail by suspension of sentence by this Court vide order dated 16th December, 1993. The prosecution has failed to prove the offence committed by the appellant beyond reasonable doubt. The appeal is allowed and disposed of. The appellant is discharged from the liability of his bail bond. Appeal allowed.