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2016 DIGILAW 250 (JHR)

Shibu Munda v. State of Jharkhand

2016-02-04

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : 1. This criminal appeal from jail has been preferred against the judgment of conviction and order of sentence dated 19.08.2006, passed by the Learned Additional Sessions Judge, Fast Track Court No.IV, Hazaribagh, in connection with Sessions Trial No. 305 of 1993, corresponding to G.R. Case No. 1207 of 1985, arising out of Katkamsandi P.S. Case No. 42 of 1985, whereby the appellant has been held guilty for the offence punishable under Section 302 of the I.P.C and sentenced to undergo rigorous imprisonment for life. 2. The prosecution case, as it appears from the fardbeyan of Kedar Rana recorded on 27.06.1985 at about 16:45 hours at Dardahia within P.S. Katkasandi, district Hazaribagh, is that on 25.06.1985 father of the informant had gone to the house of appellant to handover an Axe which was given for sharpening, but did not return alive. On 27.06.1985 dead body of Bishun Rana concealed within Shrubs at Dato was recovered. Thereafter, informant with the help of other witnesses apprehended the appellant. The appellant confessed his guilt before the police and villagers. On the basis of confession made by the appellant, bloodstained Baniyan and Sleepers belonging to the deceased were recovered, whereas bloodstained Axe, which was allegedly used for commission of murder, was recovered from possession of the appellant. On the basis of fardbeyan of Kedar Rana, Katkamsandi P.S. Case No. 42 of 1985, under Sections 302/201 of the I.P.C. against unknown was registered. Since the appellant was apprehended and confessed his guilt, charge-sheet was submitted after collecting cogent evidence and, accordingly cognizance of the offence was taken. Since the offence under Section 302 of the I.P.C. is exclusively triable by the Court of Sessions, the case of the appellant was committed and it was registered as S.T. No. 305 of 1993. Charge under Section 302 of the I.P.C. against the appellant Sibu Munda was framed to which he pleaded not guilty and claimed to be tried. 3. The prosecution in order to substantiate the charge examined altogether 9 witnesses. Learned Additional Sessions Judge, placing reliance on the evidences and documents available on record held the appellant guilty under Section 302 of the Indian Penal Code and sentenced him, as indicated above. 4. Learned counsel Dr. Hasnain Waris has been appointed as an Amicus curie to assist this Court. Learned Additional Sessions Judge, placing reliance on the evidences and documents available on record held the appellant guilty under Section 302 of the Indian Penal Code and sentenced him, as indicated above. 4. Learned counsel Dr. Hasnain Waris has been appointed as an Amicus curie to assist this Court. The appellant has assailed the impugned judgment on the ground that the learned Additional Sessions Judge erred in recording the judgment of conviction only on the ground of recovery of certain incriminating articles and held that the confession leading to the discovery of incriminating articles and weapon of the crime are sufficient ground for holding the appellant guilty. The learned Trial Judge has forgotten that confession, if any made by the appellant either before the police or before the villagers has not at all been proved and marked exhibit. The Investigating Officer has not come forward to support the investigation done by him. The seizure list, on the basis of which the learned Trial Judge has recorded the conviction, has not been proved. One of the witness Ahmad Ansari-P.W.8 has simply proved his signature on the seizure list, but he did not support that any incriminating article was recovered in his presence either from possession of the appellant or at his instance. The learned Additional Sessions Judge has further committed gross error by holding that chain of circumstantial evidence is complete unerringly pointing towards the guilt of the accused. The evidence on record did not speak that the deceased was seen in company of the appellant at any point of time after he left home. Even story of last seen is not available in the case at hand. 5. Learned counsel has further argued that the circumstances in which dead body was recovered is also not free from doubt. According to P.Ws. 2 to 7, part of the head was brought by the appellant from pond, if it was so, beheaded dead body might have been recovered from the bush. The evidence of Doctor-P.W.9, who had conducted the postmortem examination on the dead body, did not disclose that beheaded dead body of Bishnu Rana was brought for postmortem examination. According to evidence of doctor, major portion of neck was cut and head was attached with the body. The evidence of Doctor-P.W.9, who had conducted the postmortem examination on the dead body, did not disclose that beheaded dead body of Bishnu Rana was brought for postmortem examination. According to evidence of doctor, major portion of neck was cut and head was attached with the body. Considering all these contradictions, latches on the part of the prosecution and lack of cogent and reliable evidence, the impugned judgment of conviction and sentence could not be upheld. 6. The learned A.P.P. has opposed the arguments and submitted that confession leading to discovery is always admissible in law and the trial Judge has rightly discussed the provision contained under Section 27 of the Evidence Act. The circumstantial evidence available on record indicates that the deceased left home in order to go to the house of the appellant, but he did not return. This fact has been supported by informant and his family members. On the basis of confession, weapon used for commission of crime has been recovered from the house of appellant whereas bloodstained Baniyan and Sleepers of the deceased were recovered on the pointing out of appellant. The cumulative effect of the evidence brought on record roaringly suggests that appellant has committed crime and he has rightly been held guilty. 7. We have examined the evidences and documents available on record and also perused the impugned judgment. From perusal of the impugned judgment, we find that the learned Trial Judge has placed much reliance on the oral testimony of P.Ws. 1 and 7., but forgotten to consider that related documents have not been proved by the prosecution. The learned Additional Sessions Judge has described the principles on which circumstantial evidence could be relied upon for deciding a case based on circumstantial evidence, but facts and evidences available on record have not fairly been discussed. 8. There is no evidence on record that deceased after he left home was ever seen in company of the appellant and therefore, theory of last seen which is commonly available in a case based on the circumstantial evidence, was not available. The learned Trial Judge has relied upon the recovery of incriminating articles but forgotten that neither confessional statement nor the seizure list has been proved. Evidence is lacking that articles were recovered on the basis of confession made by the appellant. The learned Trial Judge has relied upon the recovery of incriminating articles but forgotten that neither confessional statement nor the seizure list has been proved. Evidence is lacking that articles were recovered on the basis of confession made by the appellant. Moreover, the articles so seized have not been produced before the Court nor the same were sent for its Serological test to FSL. 9. There appears substance in this submission that circumstance in which dead body of Bishnu Rana was recovered, was not very clear, the material witnesses have stated that the appellant took out the head of the deceased from the pond and produced it before them, whereas part of the body of Bishnu Rana was recovered from within shrubs. The doctor, who conducted the postmortem examination, did not say that beheaded body of Bishnu Rana was brought for postmortem examination rather he says that head was attached with the body but major part of the neck was slit. We do not find that circumstantial evidence brought on record by the prosecution unerringly leads to a conclusion to the guilt of appellant, excluding all hypothesis of his innocence. We feel no hesitation to observe that many important links of chain of circumstantial evidence are missing and therefore, we are not inclined to uphold the judgment of conviction and sentence passed by the learned Sessions Judge. 10. In the result, the impugned judgment of conviction and order of sentence dated 19.08.2006, passed by the Learned Additional Sessions Judge, Fast Track Court No. IV, Hazaribagh, in Sessions Trial No. 305 of 1993, corresponding to G.R. Case No. 1207 of 1985 arising out of Katkamsandi, P.S. Case No. 42 of 1985 stands set aside and the appeal stands allowed. The appellant Shibu Munda, who is in jail custody, is directed to be released forthwith from jail custody, if not wanted in any other cases and for that appropriate direction may be issued, if necessary, by the convicting/successor Court.