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2016 DIGILAW 1584 (JHR)

Jetha Munda, S/o Etwa Munda v. State of Jharkhand

2016-11-23

ANANDA SEN, PRADIP KUMAR MOHANTY

body2016
JUDGMENT : This criminal appeal is directed against the judgment of conviction and order of sentence dated 05.01.2006 and 07.01.2006 respectively, passed by the 1st Additional Judicial Commissioner, Khunti, in connection with Session Trial Case No. 329 of 2003, corresponding to Karra P.S. Case No. 52 of 2002 G.R. Case No. 608 of 2002, whereby and whereunder the sole appellant namely, Jetha Munda having been found guilty of charges under Section 302 of Indian Penal Code, has been sentenced to undergo imprisonment for life. 2. The case of the prosecution, in brief, is that on 26.10.2002 at about 6.00 A.M. informant's son Kashi Nath Munda was ploughing the field of Pritam Kerketta on Batai and at the same time, the informant was working in his field adjacent south to that field. At about 7.00 A.M. Jetha Munda @ Bahra Munda, who was armed with Tangi, came there on the northern portion of the said field for grazing his malecalf (Kara) and asked the informant's son as to what was to be grown. The informant's son replied that he would grow Tomato crops. After that, when the informant's son proceeded ahead in course of ploughing work, the accused Jetha Munda inflicted two cut injuries by Tangi, from behind, on the backside of the neck of the deceased due to which the informant's son (deceased) fell down and succumbed to the injuries and, thereafter, the accused fled away towards the north. After having heard the noise, several villagers rushed to the place of occurrence, but by that time the accused Jetha Munda fled away with Tangi towards the forest, situated in the northeast side of the village and disappeared. The informant further stated that the accused Jetha Munda suspected that informant's son (deceased) was having illicit relationship with his wife and, as such, this occurrence took place. On the basis of the aforesaid Fardbeyan of the informant Balram Munda (P.W.5), Karra P.S. Case No. 52 of 2002, was registered for the offence under Section 302 of Indian Penal Code, against the accused Jetha Munda @ Bahra Munda. Subsequently, the matter was taken up for investigation and the police examined the witnesses and sent the dead body for Post Mortem Examination. After completion of investigation, charge sheet was submitted against the accused and, accordingly, cognizance of the offence was taken and the case was committed to Court of Sessions for trial. 3. Subsequently, the matter was taken up for investigation and the police examined the witnesses and sent the dead body for Post Mortem Examination. After completion of investigation, charge sheet was submitted against the accused and, accordingly, cognizance of the offence was taken and the case was committed to Court of Sessions for trial. 3. In order to prove the charges against the accused, the prosecution has examined altogether six witnesses including the Doctor (PW6) and the defence has examined one witness. The Trial Court after going through the materials on record and also considering the evidence of the prosecution witnesses has found the charges levelled against the accused to be proved and, thereafter, sentenced him as aforesaid. 4. Mrs. Alpana Verma, learned counsel appearing for the appellant has assailed the judgment of the learned court below on the following grounds: (I) PW3 Bhaiya Ram is not an eyewitness to the occurrence as he had not seen the occurrence, rather he developed the story in Court and, therefore, he is not a reliable witness and conviction cannot be sustained basing upon the evidence of this witness. (II) The informant of the case, i.e. the father of the deceased (PW5) had also not seen the occurrence and had developed the story in court and is an interested witness. (III) PWs1, 2 and 3 are the villagers, who claimed to be the eyewitnesses, but in fact, they had not seen the occurrence and they are merely the hearsay witnesses. (IV) Investigating Officer has not been examined by the prosecution, which is fatal for the defence. (V) The impugned judgment has illegally been passed without appreciating the evidence, inasmuch as, this case may be converted into a case under Section 304 Part-II of the Indian Penal Code. 5. Mr. Awanish Shankar, learned Additional Public Prosecutor, has vehemently opposed the contentions raised by the learned counsel for the appellant and submits that there is overwhelming evidence against the appellant to hold him guilty for the aforesaid offence and there is no illegality or infirmity in the impugned judgment of conviction and order of sentence and, hence, the finding arrived at, by the learned trial court, do not require any interference by this Court. The evidence of the eyewitness (PW3) is very clear and cogent and PW5, i.e. the informant has also specifically stated that appellant murdered his son Kashi Nath Munda and PW6 the Doctor, who has conducted the autopsy of the dead body also corroborated the evidence of the ocular witness and, therefore, this appeal may be dismissed. 6. Perused the lower court records and gone through the evidence on record minutely. 7. PW1 is the villager who heard that Jetha Munda has murdered Kashi Nath by causing injury with Tangi (Axe). This witness has further stated that police came near the dead body and seized blood stained earth and prepared a seizure list on which he put his signature (Ext.1). PW2 is another co-villager, who is a hearsay witness. This witness has also stated about seizure of blood stained earth on which he also put his signature (Ext1/1). 8. PW3 is the eyewitness to the occurrence. He stated that the occurrence took place in front of his house. This witness has further stated that Jetha Munda (appellant) was armed with Tangi, standing near the ridge of the field. He further deposed that Jetha asked the deceased Kashi Nath as to what he was going to grow on the field, upon which the deceased replied that he would grow Tomato crops. Thereafter, Jetha inflicted two tangi blows on the neck of the deceased due to which deceased fell down and died at the spot. He further stated that Budh Nath had also seen the occurrence of murder but the said Budh Nath is not available in the village. This witness, in his cross-examination, admits that he did not see as to whether Jetha assaulted the deceased with slap or Tangi. 9. PW4Dashrath Munda is also a co-villager. He deposed that Jetha had murdered Kashi Nath by inflicting Tangi blows, but he had not seen the occurrence of murder. This witness has stated that he had seen the dead body and the injuries behind the neck as well as the blood stained earth. 10. PW5 Balram Munda, the father of the deceased, is the informant and eyewitness to the occurrence. This witness, in his examination-in-chief, has categorically stated that on 26.10.2002 his son Kashi Nath was ploughing the field of Preetam Kerketta on Batai and he was also working in the field near to that field. 10. PW5 Balram Munda, the father of the deceased, is the informant and eyewitness to the occurrence. This witness, in his examination-in-chief, has categorically stated that on 26.10.2002 his son Kashi Nath was ploughing the field of Preetam Kerketta on Batai and he was also working in the field near to that field. He further stated that Jetha Munda was grazing his malecalf towards the north of the field being ploughed by the deceased Kashi Nath. Jetha Munda asked Kashi Nath as to what was to be grown in the field then the deceased replied that Tomato crops would be grown. After that Jetha Munda was moving behind Kashi Nath, having Tangi in his hand and after some time he inflicted Tangi blow and caused cut injury below the right ear of Kash Nath due to which Kashi Nath fell down and then Jetha Munda fled away towards the northeast corner of the field with Tangi. This witness has further stated that he saw the entire incident with his own eyes. He has proved the Fardbeyan. This witness has not been cross-examined by the defence. 11. P.W.6 Prem Mukut Topno is the doctor, who conducted autopsy of the dead body and found the following injuries on the persons of the deceased:- “(i) External appearance-Both eyes were half opened. Mouth was half opened. (ii) Cut injury over temporal region of 3” x 1”x 1” deep cutting the bone, full of blood clots, laceration of meninges and brain matter Cut injury on the back of neck of 3”x 1”x 1” deep cutting vertebra, blood vessels. The blood clots were adherent to cut surface.” In the opinion of the Doctor, all the injuries were antemortem in nature, caused by hard and sharp cutting weapon such as, Tangi. Time of death was within nine hours from the time of postmortem. He further opined that the cause of death was due to shock and haemorrhage of vital organs like brain and neck. He also proved the postmortem report (Ext3) and admits that it is under his seal and signature. In his cross-examination, this witness has admitted that above injuries cannot be possible by falling on a sharp cutting object as both the injuries were similar. 12. He also proved the postmortem report (Ext3) and admits that it is under his seal and signature. In his cross-examination, this witness has admitted that above injuries cannot be possible by falling on a sharp cutting object as both the injuries were similar. 12. From scrutinizing the above evidence, it is crystal clear that PW3 in his evidence has specifically stated that he had seen the assault being made by the present appellant but in his cross-examination he stated that he did not see that Jetha Munda assaulted the deceased with Tangi therefore, this witness is not an eyewitness. PW5, i.e. informant and father of the deceased, is only eyewitness to the occurrence. This witness has specifically stated the role played by this appellant and stated that the present appellant gave Tangi blows below the right ear of the deceased due to which the deceased fell down and died at the spot. This witness has not been cross-examined by the defence. 13. From scrutinizing the evidence of PW5, it is crystal clear that this appellant gave Tangi blows on the vital part of the body of the deceased, which has been corroborated by the Doctor (PW6) and there is no contradiction in the evidence of PW5 and basing upon the evidence of this witness, order of conviction and sentence has been passed. 14. It is well settled that non-examination of the Investigating Officer will not cause any prejudice to the prosecution. It is settled principle of law that basing upon the evidence of sole eyewitness, who is also a reliable witness, conviction can be sustained and, therefore, no infirmity has been committed by the trial court in passing the judgment of conviction and order of sentence. 15. So far as converting the sentence under Section 304 Part-II is concerned, this Court has examined the matter by applying the ingredients of section 304 and found that there was no sudden provocation and that the appellant gave two repeated blows by “Tangi” on the vital part of the bodies of the deceased and, therefore, this Court is not inclined to convert the case under Section 304 Part-II of the Indian Penal Code. 16. Under the circumstances, this Court finds that the trial court was absolutely justified in recording the order of conviction and sentence. 17. 16. Under the circumstances, this Court finds that the trial court was absolutely justified in recording the order of conviction and sentence. 17. Accordingly, the judgment of conviction and order of sentence never warrants any interference by this Court and, hence, it is hereby affirmed. 18. In the result, this appeal is dismissed.