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2016 DIGILAW 834 (JHR)

Kinwa Munda v. State of Jharkhand

2016-05-12

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : D.N. UPADHYAY, J. 1. This criminal appeal has been directed against the judgment of conviction and order of sentence dated 3rd February, 2007 and 5th February, 2007, respectively, passed by learned District and Sessions Judge, Latehar in connection with Sessions Trial Case No. 80 of 2005, corresponding to G.R. No. 13 of 2005, arising out of Mahuadar P.S. Case No. 02 of 2005, whereby the appellant has been held guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.500/- and in default of making payment of fine, further to undergo rigorous imprisonment of for three months. 2. The fact appearing from the written report lodged by the informant-Anup Munda (P.W.10), in brief, is that on 4th January, 2005, at about 10:00 p.m. when the informant with his parent was sleeping in the house, the appellant-Kinwa Munda having Tangi in his possession entered in the house after removing the outer door made of bamboos. It is disclosed that the appellant inflicted Tangi blows on the person of Surati Devi and Sukka Munda. When the informant tried to protest, he was threatened, as a result he left the place and went to his brother's house to inform him. When the informant with his brother was returning, the appellant caused assault to Arvind Munda (P.W.9-brother of the informant) and fled away. Thereafter, the informant with his brother came to their house and found their parent-Surati and Sukka lying dead in a pool of blood. The reason behind alleged murder has been assigned that father of the informant had done exorcism to cure brother of the appellant, but the brother could not survive. As a matter of fact, the brother of the appellant died due to snakebite, but he was under impression that mother of the informant has killed him by practicing black magic. On the basis of written report lodged by Anup Munda, Mahuadar P.S. Case No. 2 of 2005 dated 5th January, 2005 under Section 302 of the Indian Penal Code and Section 4/5 of Prevention of Witch (Dian) Practice Act was registered. 3. The investigation was carried out and charge-sheet was submitted. Accordingly, cognizance was taken and the case was committed to the Court of Sessions and registered as Sessions Trial No. 80 of 2005. 3. The investigation was carried out and charge-sheet was submitted. Accordingly, cognizance was taken and the case was committed to the Court of Sessions and registered as Sessions Trial No. 80 of 2005. Charges under Section 302 of the Indian Penal Code and Section 3/4 of Prevention of Witch (Dian) Practicing Act were framed against the appellant to which he pleaded not guilty and claimed to be tried. The prosecution in order to substantiate the charge examined altogether twelve witnesses, including the informant, doctor, who conducted postmortem, and Investigating Officer and proved Fardbeyan, injury report, inquest report, postmortem report etc. Learned Trial Judge, placing reliance on the documents and evidences available on record, held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code and inflicted sentence as indicated above. The appellant was not held guilty for the offence punishable under Section 3/4 of Prevention of Witch (Dian) Practice Act and stood acquitted from the said charge. 4. Learned counsel for the appellant has submitted that there are vital contradictions in the statements of P.Ws.9 and 10, who are own brothers. No villagers had reached to the place of occurrence even after Halla raised by the informant. Except P.W.10 (informant), there is no eyewitness to the occurrence. The story brought on record by P.W.10 is neither believable nor worthy of credence. In his deposition in Court, he says that his parents were assaulted by the appellant. He left home and rushed to the house of his brother, situated at a distance of about 500 yards. When both the brothers were returning to the house where offence was committed, the appellant appeared and caused assault to Arvind Munda (P.W.9), but Anup Munda (P.W.10) did not say that his brother-Arvind was assaulted in his presence. No neighbour residing in the vicinity had come to the place of occurrence just after the incident. P.W.9 has tried to project himself as an injured witness, but the doctor-P.W.5 (Dr. Raju Kashyap), who has proved the injury report as Ext.2, says that age of injury was more than six hours. On being questioned, he says that age of injury may be more than six days also. The doctor has further admitted that injury appearing on the person of P.W.9 may be self inflicted or may be caused due to fall on a sharp stone or any sharp instrument. On being questioned, he says that age of injury may be more than six days also. The doctor has further admitted that injury appearing on the person of P.W.9 may be self inflicted or may be caused due to fall on a sharp stone or any sharp instrument. There is delay in lodging the first information report. The occurrence took place on 4th January, 2005 at about 10:00 p.m., but matter was reported to the police after delay of 24 hours on 5th January, 2005 at about 10:30 p.m. The sons of the deceased did not say that they took the dead body to the police station and then lodged the written report. The investigation done by the Investigating Officer appears to be perfunctory. He did not examine the place of occurrence properly nor explained the same. Learned counsel has given much stress on the point that according to the evidence of Dr. Ravindra Narayan (P.W.6), time of death since postmortem examination regarding Surati Devi was between 24 to 72 hours and so far as death of Sukka is concerned, he says that time of death was between 72 to 96 hours. Time of death opined by the doctor does not match with the time of occurrence given by the informant in the written report. According to P.W.6, postmortem on dead bodies was conducted on 6th January, 2005 at 4:05 p.m. and 4:30 p.m. According to the informant, his father and mother were killed by the appellant on 4th January, 2005 at about 10:00 p.m. If Surati Devi and Suka Munda, mother and-father of the informant, respectively, were killed on the same day, at a same time and at the same place, then how these discrepancies have been noted by the doctor in the postmortem report regarding time of death. If the evidences brought on record by the prosecution are read in totality, it would not conclusively prove the guilt of the appellant and it cannot be said that the prosecution has proved its case beyond shadow of all reasonable doubts. Learned Trial Judge has committed gross error in convicting the appellant for the offence of murder and the impugned judgment of conviction is not tenable. 5. Learned APP has opposed the argument and submitted that the informant is an eye-witness to the occurrence. Learned Trial Judge has committed gross error in convicting the appellant for the offence of murder and the impugned judgment of conviction is not tenable. 5. Learned APP has opposed the argument and submitted that the informant is an eye-witness to the occurrence. There was no occasion for anybody else except the informant to witness the occurrence because the incident took place inside the house of the informant in the night at 10:00 p.m. and the house was then occupied only by the deceased and the informant. In the circumstances, as stated above, the informant is the only eye-witness and his presence in the house at the relevant point of time could not be doubted. He has clearly stated that his brother was residing in another house, situated at a distance of about 500 yards. He went to inform him and in course of returning, the appellant restrained them to cause assault and both the brothers fled away to the direction suited to them. The appellant succeeded to cause assault to one of the brothers and the injury caused to P.W.9 finds support from the evidence of Dr. Raju Kashyap (P.W.5), which has been marked as Ext.2. Barnawas Ekka (P.W.1) had reached to the place of occurrence just after the incident and he had seen the dead body of Surati and Sukka lying in a pool of blood in their house. He was informed by P.W.10 that they were murdered by the appellant. Other hearsay witnesses have also supported the prosecution case. The Investigating Officer has been examined and he has proved the endorsement made on the Fardbeyan, formal first information report and inquest report. There is no merit in this appeal and the same is liable to be dismissed. 6. We have gone through the lower court record and impugned judgment. Anup Munda (P.W.10) is the informant and he is son of deceased Surati and Sukka. The occurrence took place at 10:00 p.m. When his parents were sleeping in the house, the appellant appeared with a Tangi in his hand and inflicted blows indiscriminately on the person of the mother and father of the informant and caused injury to them on their head and other parts of body. The informant tried to rescue but he was threatened as a result he left the place and went to the house of his brother-Arvind Munda (P.W.9) and informed the incident. The informant tried to rescue but he was threatened as a result he left the place and went to the house of his brother-Arvind Munda (P.W.9) and informed the incident. In course of returning, the appellant caused injury to Arvind Munda (P.W.9) and injury so caused finds support from the evidence of Dr. Raju Kashyap (P.W.5) and Ext.2. When both the brothers (P.Ws.9 & 10) returned back to home, they found their parent-Surati and Sukka lying dead in a pool of blood. Some of the villagers i.e. P.Ws.1 and 2 assembled to whom they narrated the occurrence. On the next day, written report was lodged by P.W.10, on the basis of which this case was instituted against the appellant and he was charge-sheeted. 7. In view of the evidence available on record and the circumstances, as stated above, the place of occurrence is the house of the informant, which was occupied by three persons and out of them two persons were killed and only the informant left alive. In the circumstances, he would be the best witness to the occurrence. It has not come on record that anybody else had reached to the place at the time of assault caused to the deceased by the appellant. Therefore, the entire prosecution case is based on the solitary testimony of Anup Munda (P.W.10). 8. We have carefully examined the evidence of P.W.10 and we do not find that any material contradiction has been taken from him during his cross-examination. Even in his cross-examination, he has stated that he had tried to save his parent, but he was chased by the appellant and, therefore, he left the place and went to the house of his brother to inform him. He has again stated that the appellant-Kinwa Munda had killed his parent in his presence. The evidence of P.W.10 finds support from the evidence of P.W.9. Barna was Ekka (P.W.1), who happens to be hearsay witness but he says that at about 10:30 p.m. i.e. after half an hour of the occurrence he went to the house of the informant and saw the dead body of Surati and Sukka lying in a pool of blood. The occurrence was narrated to him by the informant. In his cross-examination, he says that he went to the house of the informant but till then the appellant had fled away. The occurrence was narrated to him by the informant. In his cross-examination, he says that he went to the house of the informant but till then the appellant had fled away. Lalan Munda (P.W.2) has also repeated the same fact and he is attesting witness to the written report and he has attested his signature appearing on it. Vinay Munda (P.W.3) is also hearsay witness and he has repeated the same fact that after Halla he went to the house of the informant and had seen the dead body of Surati and Sukka. We have further examined the evidence of Sujit Kumar (P.W.11), who is Investigating Officer of the case. He has stated that on 5th January, 2005 the informant came to police station with dead bodies of his parent-Surati and Sukka. He had lodged a written report, disclosing the occurrence. At the police station, inquest reports were prepared and those inquest reports were marked as Exts.8 and 8/1. The Investigating Officer has supported the prosecution case. Therefore, we find that prosecution witnesses have proved the fact that the appellant inflicted Tangi blows and caused injuries to the deceased. 9. Now the question raised by learned defence counsel is needed to be answered before coming to the conclusion. According to the prosecution case, the occurrence took place on 4th January, 2005 at 10:00 p.m. and dead bodies of deceased were kept in the house till next day. On the next day i.e. on 5th January, 2005 dead bodies of Surati and Sukka were taken by the informant to the police station. It is not indicated as to when he reached to the police station, but it reveals from the inquest report that inquest reports were prepared at the police station at about 22:30 hours. It further reveals from the postmortem report that dead bodies were sent to hospital for conducting postmortem examination. For about 20 hours the dead bodies were kept in the hospital and no postmortem was done. On January, 2005 at about 4:00 p.m. postmortem commenced and it was completed within an hour. According to medical jurisprudence, there are various things on which time of death is to be assessed and mainly the doctor, who conducts postmortem examination, considered rigor mortis, stomach and its content etc. On January, 2005 at about 4:00 p.m. postmortem commenced and it was completed within an hour. According to medical jurisprudence, there are various things on which time of death is to be assessed and mainly the doctor, who conducts postmortem examination, considered rigor mortis, stomach and its content etc. The opinion of the doctor regarding time of death cannot be considered conclusive because appearance in the dead body may differ for various reasons, mainly the place where the dead body was kept, temperature under which it was kept and other surrounding circumstances as to what sorts of care was taken about the dead body before postmortem examination. The findings of the doctor cannot be considered conclusive for another reason that as per the prosecution report, both the deceased were killed on 4th January, 2005 at about 10:00 p.m. Postmortem on the dead bodies of Sukka and Surati was conducted on 6th January, 2005 at 4:05 p.m. and 4:30 p.m., respectively, but the same doctor, who conducted postmortem examination, has given two different opinions regarding time of death of aforesaid two deceased. Needless to mention, ocular evidence if admitted to be true, free from doubt, convincing and inspiring confidence that will prevail against medical opinion of the doctor. 10. Considering all these aspects, we do not agree to accept the argument that time of death opined by the doctor creates doubt regarding time of occurrence brought on record by the informant and other witnesses. Time and again it was argued that no person residing in the vicinity had reached to the place at the time of assault. Again we would like to bring on record that occurrence took place in the house of the deceased, which was occupied by three persons i.e. the two deceased and the informant. 11. When we examined the evidence of P.Ws.1 and 2, we find that within half an hour they reached to the place of occurrence and they saw the dead bodies lying in a pool of blood. We do not find any reason to disbelieve these two witnesses, who had reached to the place of occurrence just after the incident and they got information regarding occurrence from the informant. We do not find any reason to disbelieve these two witnesses, who had reached to the place of occurrence just after the incident and they got information regarding occurrence from the informant. Arvind Munda (P.W.9) is not an eye-witness to the occurrence, but the fact remains, he was informed by P.W.10 about the occurrence and he along with his brother Anup Munda (informant) was coming to the place of occurrence, again the appellant made an attack and both brothers tried to escape, but Arvind Munda (P.W.9) was caught and assaulted by the appellant and injury so caused finds support from the evidence of P.W.5 and Ext.2. 12. It was argued that proper investigation has not been done by the Investigating Officer and it is pointed out, neither blood stain soil was seized nor the place of occurrence was properly inspected to prove that the occurrence had actually taken place at that place. We have to keep in our mind that dead bodies were taken by the informant to the police station on the next day and inquest report was prepared at the police station. Only because blood stain soil was not seized, the place of occurrence cannot be disbelieved, if version of Anup Munda (P.W.10) is admitted to be true. We find no ground to reject the evidence of P.W.10 regarding place of occurrence because the witnesses, namely, Barnawas Ekka (P.W.1), Lalan Munda (P.W.2) and Vinay Munda (P.W.3) have clearly stated that after Halla they went to the house of informant and found both the deceased having injuries lying in a pool of blood. Therefore, the place of occurrence finds support from the evidence of these three witnesses too. Considering all these aspects of the matter, we do not feel inclined to interfere with the findings of the Trial Court. Accordingly, the judgment of conviction and order of sentence recorded against the appellant under Section 302 of the Indian Penal Code in connection with Sessions Trial No. 80 of 2005, corresponding to G.R. No. 13 of 2005, arising out of Mahuadar P.S. Case No. 02 of 2005, is hereby upheld. 13. Accordingly, this appeal stands dismissed. Appeal dismissed.