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2017 DIGILAW 1748 (JHR)

Baga Munda v. State of Jharkhand

2017-10-07

AMITAV K.GUPTA, D.N.PATEL

body2017
JUDGMENT : D.N. PATEL, J. 1. This criminal appeal has been preferred by the appellant-accused challenging the judgment of conviction and order of sentence passed by the Additional Judicial Commissioner, Ranchi in Sessions Trial No. 603 of 2005 dated 28th August, 2006 and 30th August, 2006 respectively, whereby, this appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life for causing murder of Fagan Mundain. 2. The case of the Prosecution : The case of the prosecution is that on 13th June, 2005 at 12:15 hours (i.e. 12.15 p.m.) the informant Johan Munda (PW 7) along with other witnesses namely Shyam Prasad Singh and Sukh Lal Munda gave fardbeyan to police that his daughter Fagan Mundain (deceased) was married with Gondra Munda of village Armalatgara Dumardiha in the - year 1995-96 and out of that wedlock she had three children. The informant further alleged that his son-in-law Gondra Munda died 5 to 6 years after his marriage and his daughter was living in her in-law house after his son-in-law's death. Thereafter for about 2 years his daughter was residing with her cousin brother-in-law (Dewar) Baga Munda (accused) in capacity of his wife with her three children. After some time Baga Munda started assaulting his daughter for which informant pacified the matter between them. The informant further alleged that on 12th June, 2005 at about 05:00 p.m. when he was in his house, one Charku Munda of village Dumerdiha came to his house and informed him that Baga Munda had assaulted his daughter Fagan Mundain and when she become unconscious then he poured kerosene oil on her and lit the fire, as such, she succumbed to burn injury. The informant further alleged that due to evening he was not able to go in the said village, but, in the morning he along with his daughter Dulari Mandain and Son-in-law Sukh Lal Munda had gone to the house of his son-in-law situated at village Dumerdiha, where, he saw the dead-body of his daughter lying inside the room having severe burn injury on her body and accused Baga Munda was absconding. The informant further alleged that accused Baga Munda brutally assaulted his daughter and when she became unconscious, he poured kerosene oil upon her body and lit the fire due to which she succumbed to burn injury and after committing murder he fled away from the village. Nine witnesses were examined by the prosecution : PW 1 Budhu Munda He deposed that Fagan Mundain (deceased) had told him that Baga Munda poured kerosene oil upon her and lit the fire but in para-10 of his deposition he had stated that he had not seen the occurrence. He has proved his LT.I mark in the seizure list i.e. marked as Ext. 1 PW2 Dulari Mundain She is a sister of Fagan Mundain (deceased) and is Hearsay witness. PW3 Somali Mundain She deposed that Fagan Mundain (deceased) told her in her house that accused Baga Munda lit fire upon her body. She further deposed that she had seen Baga Munda opening the cap of the plastic jerking of kerosene oil but had not seen Baga Munda pouring kerosene oil on the body of Fagan Mundain (deceased). PW4 Sangram Munda (age about 8 years) He is a son of Fagan Mundain (deceased) and is Hearsay witness. PW5 Sukh Lal Munda He is a Hearsay witness. He has proved his signature in the FIR i.e. marked as Ext 2 and has also proved his signature in the seizure list i.e. marked as Ext. 1/1. PW6 Bijli Orain She is a mother of Fagan Mundain (deceased) and is Hearsay witness. PW7 Johan Munda He is a father of Fagan Mundain (deceased) and is informant of this case. He is a Hearsay witness. PW8 Mohan Prasad Singh (I.O.) He is a Investigating Officer of this case. He has proved the fardbeyan in writing and signature of literate constable Arun Kumar and in signature of Alok Kumar officer-incharge of Lapung P.S. i.e. marked as Ext 3 and has proved the endorsement of Alok Kumar, officer-in-charge in fardbersan i.e. marked as Ext 3/1 and has a so proved the FIR in writing of Arun Kumar literate constable and bears the signature of Alok Kumar officer-in-charge i.e. marked as Ext. 4. He has proved the seizure list i.e. marked as Ext 5 and has also proved the carbon copy of Inquest report i.e. marked as Ext. X. PW9 Dr. 4. He has proved the seizure list i.e. marked as Ext 5 and has also proved the carbon copy of Inquest report i.e. marked as Ext. X. PW9 Dr. Ajeet Kumar Choudhary He is the Doctor who has conducted the Post-mortem of the dead body of Fagan Mundain and has proved the Post-mortem report i.e. marked as Ext 6 Exhibits- Ext. 1 - L.T.I. mark of Budhu Munda in seizure list. Ext. 1/1 - Signature of Sukh Lal Munda in the seizure list. Ext. 2 - Signature of Sukh Lal Munda in the FIR. Ext. 3 - Fardbeyan in writing and signature of literate constable Arun Kumar and in signature of Alok Kumar officer-in-charge of Lapung Police Station Ext. 3/1-Endorsement of Alok Kumar, officer-in-charge in fardbeyan. Ext. 4 - Formal FIR Ext. 5 - Seizure list Ext. 6 - Post-mortem report 3. Arguments canvassed by the learned counsel for the appellant : * It is submitted by the learned counsel for the appellant that the prosecution has failed to prove the offence of murder, committed by this appellant, beyond reasonable doubt. There are major omissions and contradictions in the depositions of the prosecution witnesses. Charku Munda, who has informed the informant, has not been examined at all by the prosecution. * It is also submitted by the learned counsel for the appellant that there is no eye-witness to the incident. Even prosecution witnesses- PW 1 and PW 3 have stated that they have not seen the incident at all, whereas, other witnesses are hearsay witnesses. PW 8 is an Investigating Officer and PW 9 is a Doctor. * It is further submitted by the learned counsel for the appellant that PW 1, PW 2, PW 4, PW 5, PW 6 and PW 7 are close relatives of the deceased and they are interested witnesses. These aspects of the matter have not been properly appreciated by the learned trial Court and, hence, the judgment of conviction and order of sentence passed by the learned trial Court in Sessions Trial No. 603 of 2005 deserves to be quashed and set aside. 4. Arguments canvassed by the learned counsel for the State : * Learned A.P.P. appearing on behalf of the State submitted that the prosecution has proved the offence beyond reasonable doubt. 4. Arguments canvassed by the learned counsel for the State : * Learned A.P.P. appearing on behalf of the State submitted that the prosecution has proved the offence beyond reasonable doubt. The deceased Fagan Mundain was residing with her cousin brother-in-law (present appellant) in the capacity of his wife with her children because her husband expired earlier. * It is also submitted by the learned A.P.P. that PW 1 and PW 3 have clearly stated the role played by this appellant-accused in causing murder of the deceased. Their examination-in-chief remained intact even during cross-examination and nothing is coming out from cross-examination in favour of this appellant. PW 1 and PW 3 have clearly stated that they were sitting nearby the house of deceased and they were talking with each other. Meanwhile, this appellant came to deceased and asked for meal, thereafter, she had gone at her house, from where, both these witnesses heard the alarm raised by her and they immediately reached at her house, which is just nearby from where they were sitting and they saw that the deceased was ablazed by this appellant. It was also conveyed by the deceased to these witnesses to inform her father. No one was present in the house except the deceased and this appellant. The narration of these witnesses remained intact even during cross-examination. Medical evidence given by Dr. Ajeet Kumar Choudhary-PW 9 is corroborative to the depositions given by these witnesses. * It is further submitted by learned A.P.P. that as per the deposition of Investigating Officer-PW 8, the place of occurrence is very significant as there were marks of violence. It is also submitted by the learned A.P.P. that the Investigating Officer has proved the date of occurrence and place of occurrence and several articles were seized which were partly burnt. This is corroborative to the depositions given by PW 1 and PW 3. Moreover, this appellant-accused was not available immediately and he was arrested on 17th June, 2005, whereas, occurrence had taken place on 12th June, 2005. Thus, it is submitted by the learned A.P.P. that loving husband-this appellant, if at all, has not committed any offence, he would not have run away. Moreover, this appellant-accused was not available immediately and he was arrested on 17th June, 2005, whereas, occurrence had taken place on 12th June, 2005. Thus, it is submitted by the learned A.P.P. that loving husband-this appellant, if at all, has not committed any offence, he would not have run away. These aspects of the matter have been properly appreciated by the learned trial Court and the prosecution has proved the offence of murder of Fagan Mundain by this appellant beyond reasonable doubt and, hence, this appeal may not be entertained by this Court. REASONS: 5. Having heard learned counsels for both the sides and looking to the evidences on record both oral as well as documentary evidences, we see no reason to entertain this criminal jail appeal mainly for the following evidences on record : (i) It is the case of the prosecution that PW 7, who is father of the deceased, informed the police on 13th June, 2005 at about 12:15 hours that on 12th June, 2005 his daughter Fagan Mundain was married with Gondra Munda in the year 1995-96 and out of the said wedlock she had three children and later on Gondra Munda died after 5 or 6 years of his marriage, his daughter-Fagan Mundain (deceased) was living with her cousin brother-in-law (dewar)-Baga Munda, who is an accused, in the capacity of his wife along with her three children. After some time, this appellant started assaulting his daughter and the informant was pacifying the matter with them. It is alleged by the informant-father of the deceased that on 12th June, 2005 at about 05:00 p.m. when he was in his house he was informed by Charku Munda of Village Dumerdiha that his daughter had been assaulted by Baga Munda (accused). He rushed at the house of his daughter where he saw the dead body of his daughter lying inside the room having severe bum injuries on her body and he found that Baga Munda was absconding. Thereafter, F.I.R was lodged on 13th June, 2005 being Lapung P.S. Case No.35 of 2005, investigation was carried out and the statements of several witnesses were recorded. Charge-sheet was filed and the case was committed to the Sessions Court as Sessions Trial No. 603 of 2005. Thereafter, F.I.R was lodged on 13th June, 2005 being Lapung P.S. Case No.35 of 2005, investigation was carried out and the statements of several witnesses were recorded. Charge-sheet was filed and the case was committed to the Sessions Court as Sessions Trial No. 603 of 2005. On the basis of the evidences of PW 1 to PW 9 and on the basis of documentary evidence of F.I.R., seizure list, postmortem report etc., this appellant has been convicted for the offence of murder of Fagan Mundain for life imprisonment. (ii) Looking to the deposition given by PW 1-Budhu Munda, it appears that he has clearly stated that he had put his Left Thumb Impression on the seizure list which is marked as Ext. 1. He has also stated that he rushed to the place of occurrence immediately upon hearing the alarm and he saw Fagan Mundain in her house having burn injuries and she conveyed to PW 1-Budhu Munda that Baga Munda (accused) poured Kerosene upon her and was ablazed by him. We have perused the cross-examination of this witness. Nothing is coming out in favour of this appellant in cross-examination, on the contrary this witness, though is a rustic villager, has given clear evidence without any exaggeration. This witness has also stated that he has not seen the occurrence at all, but, he has clearly stated that Fagan Mundain (deceased) told him that Baga Munda poured Kerosene upon her and she was ablazed by Baga Munda. (iii) Looking to the deposition given by PW 3, she has stated that she was sitting nearby the house of deceased and she was talking with her. When the accused came and asked for meal, Fagan Mundain went to her house and immediately this witness heard the alarm raised by the deceased. She rushed at her house and saw that she was in burning condition. This witness has also given deposition that Fagan Mundain told her that accused-Baga Munda had poured Kerosene and ablazed her. This witness has also stated that she has not seen the occurrence, but the fact remains that there was nobody in the house except Fagan Mundain and this appellant. The walls of the house are not transparent and there is no need at all, but, suffice it will be to come to a conclusion that this accused had poured Kerosene and ablazed the deceased. The walls of the house are not transparent and there is no need at all, but, suffice it will be to come to a conclusion that this accused had poured Kerosene and ablazed the deceased. Looking to the deposition given by PW 3, it appears that prior to the incident she was talking with the deceased. The accused came and asked for meal. Fagan Mundain went to her house and immediately PW 3 heard the alarm raised by the deceased. PW 3 immediately rushed at her house where she saw Fagan Mundain in burning condition and she has conveyed to this witness-PW 3 that Baga Munda had poured Kerosene upon her body and has set her on fire. Looking to the cross-examination of this witness, it appears that she has also stated same narration in paragraphs 6 and 7. Nothing in her cross-examination is coming out in favour of this appellant-accused. Thus, we see no reason to disbelieve PW 3, who is a reliable and trustworthy witness. There is no exaggeration in her deposition. (iv) Looking to the deposition given by PW 5, it appears that this witness has proved his signature upon F.I.R which is marked as Ext. 2. This witness has also proved his signature upon seizure list which is marked as Ext. 1/1. Several incriminating articles were seized by the Investigating Officer (PW 8) from the place of occurrence which are half or partly burr-it. (v) Looking to the deposition given by PW 8-Mohan Prasad Singh-Investigating Officer, it appears that this witness has proved the date of occurrence and place of occurrence. Several incriminating articles were seized from the place of occurrence. Seizure list is marked as Ext.5. The deposition of PW 8 is corroborative to the depositions given by PW 1 and PW 3. This witness has also stated that the dead body of Fagan Mundain was in her house or in the house of this appellant-accused. Partly burnt articles were also seized. (vi) PW 9-Dr. Ajeet Kumar Choudhary has carried postmortem of the body of the deceased. Looking to the postmortem report, following were the injuries upon body of the deceased : "Injuries: (1) (i) Dermo epidermal burn involving face, neck, front part of chest and abdomen IVth upper limb, both eyes. The margin of the burn areas were cherry red with evidence of inflammation. (ii) Seienging of scalp hair at places. Looking to the postmortem report, following were the injuries upon body of the deceased : "Injuries: (1) (i) Dermo epidermal burn involving face, neck, front part of chest and abdomen IVth upper limb, both eyes. The margin of the burn areas were cherry red with evidence of inflammation. (ii) Seienging of scalp hair at places. (2) Opinion: (i) Burn injuries were ante-mortem. (ii) Death was due to burn and its complication. (3) Time elapsed since death between 12 to 36 hrs from the time of P.M. examination." Thus, burn injuries were antemortem and death was due to burn and its complication. The deposition of PW 9-Dr. Ajeet Kumar Choudhary is corroborative to the depositions given by PW 1 and PW 3. (vii) Thus looking to the overall evidences on record especially of PW 1 and PW 3 to be read with the depositions given by PW 5, PW 7, PW 8 and PW 9, there are enough corroborations to their depositions. The prosecution has proved the offence beyond reasonable doubt. In the house where, deceased was burnt, there was none, except deceased and this appellant-accused. PW 1 and PW 3 are witnesses of the occurrence. No error has been committed by the learned trial Court in appreciating these evidences on record. (viii) Much has been argued by the learned counsel for the appellant that Charku Munda, who has informed PW 7, has not been examined. This contention is not accepted by this Court nor non-examination of Charku Munda is fatal to the prosecution mainly for the reasons that: (a) PW 7 has clearly narrated that he was informed by Budhwa Munda (PW 1). There is no cross-examination of this witness about the information given by Charku Munda or by Budhwa Munda. (b) Neither there is any question in cross-examination to the Investigating Officer-PW 8 about the information given to PW 7 either by Charku Munda or by Budhwa Munda. (c) It is not necessary for the prosecution to examine several witnesses. The quantity of the witnesses cannot be appreciated but, what is to be appreciated is the quality of the evidence. (d) PW 7 has put criminal law in motion by lodging F.I.R. In fact PW 7 is not an eye-witness at all. He was informed by PW 1 as per his deposition before the learned trial Court. There is no cross-examination on this point by this appellant-accused. (d) PW 7 has put criminal law in motion by lodging F.I.R. In fact PW 7 is not an eye-witness at all. He was informed by PW 1 as per his deposition before the learned trial Court. There is no cross-examination on this point by this appellant-accused. For the aforesaid reasons there is no need for the prosecution to examine Charku Munda. Non-examination of Charku Munda is therefore not fatal to the prosecution. (ix) It is also submitted by the learned counsel for the appellant that Shyam Prasad Singh. who has signed the F.I.R has not been examined. This is also not fatal to the prosecution mainly for the reason that out of two witnesses. PW 5 (Sukh Lal Munda) who has put his signature on the F.I.R has already been examined and the F.I.R. has been marked as Ext. 2 and therefore repetition of the witness is not required. (x) It is also submitted that most of the prosecution witnesses are closely related to the deceased. This contention is not much helpful to this appellant mainly for the reason that whenever close relatives are witnesses by the prosecution the Court has to look at the evidence with more caution. The evidence given by the relatives cannot be brushed aside on this ground alone if otherwise the evidence is cogent and convincing. The only care to be taken by the Court; is to view the evidence with all circumspection. We have perused the evidences of prosecution witnesses and cross-examination especially of PW 1 and PW 3 to be read with the evidence given by PW 7, PW 8 and PW 9. PW 1 and PW 3 have clearly narrated the whole incident as stated hereinabove that they were talking with the deceased prior to incident and immediately they rushed at the house of deceased where she conveyed to these witnesses that Baga Munda had poured Kerosene upon her and set her ablazed. There was nobody else in the house except the deceased and this appellant-accused. There is no question of mis-identification of the accused whatsoever arises. They are residing nearby and are related to each other. The incident has taken place in broad day light. Moreover medical evidence is also corroboration to the depositions given by PW 1 and PW 3. There was nobody else in the house except the deceased and this appellant-accused. There is no question of mis-identification of the accused whatsoever arises. They are residing nearby and are related to each other. The incident has taken place in broad day light. Moreover medical evidence is also corroboration to the depositions given by PW 1 and PW 3. (xi) It has been held by the Hon'ble Supreme Court in the case of Chandra Mohan Tiwari v. State of M.P. reported in (1992) 2 SCC 105 in paragraph 31 which reads as under : "31. No doubt it is true that the evidence of PWs 5 and 6 is that of the interested party in that both of them are the parents of the victim and that they had animus towards the appellants. As dexterously emphasised by the Supreme Court on many occasions that interested witnesses are not necessarily false witnesses though the fact that those witnesses have personal interest or stake in the matter must put the Court on its guard, that the evidence of such witnesses must be subjected to close scrutiny and the Court must assess the testimony of each important witness and indicate the reasons for accepting or rejecting it and that no evidence should be at once disregarded simply because it came from interested parties." (Emphasis supplied) (xii) It has been held by the Hon'ble Supreme Court in the case of Namdeo v. State of Maharashtra reported in 2007 (3) East Cr C 215 (SC) : (2007) 14 SCC 150 in paragraphs 29 and 38 which read as under : "29. It was then contended that the only eye-witness. PW 6 Sopan was none other than the son of the deceased. He was therefore "highly interested" witness and his deposition should therefore be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold the contention. In our judgment a witness who is a relative of the deceased or victim of a crime cannot be characterised as "interested". The term "interested" postulates that the witness has some direct or indirect "interest" in having; the accused somehow or the other convicted due to animus or for some other oblique motive. 38. From the above case law, it is clear that a close relative cannot be characterised as an "interested" witness. He is a "natural" witness. The term "interested" postulates that the witness has some direct or indirect "interest" in having; the accused somehow or the other convicted due to animus or for some other oblique motive. 38. From the above case law, it is clear that a close relative cannot be characterised as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the "sole" testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one." (Emphasis supplied) (xiii) It has been held by the Hon'ble Supreme Court in the case of Mano Dutt v. State of U.P., reported in 2012 (3) East Cr C 134 (SC) : (2012) 4 SCC 79 in paragraphs 24 and 33, which read as under : "24. Another contention raised on behalf of the appellant-accused is that only family members of the deceased were examined as witnesses and they being interested witnesses cannot be relied upon. Furthermore, the prosecution did not examine any independent witnesses and, therefore, the prosecution has failed to establish its case beyond reasonable doubt. This argument is again without much substance. Firstly, there is no bar in law in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping into such a quarrel and -trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party. 33. 33. The Court can convict an accused on the statement of a sole witness, even if he was a relative of the deceased and thus, an interested. The condition precedent to such an order is that the statement of such witness should satisfy the legal parameters stated by this Court in a catena of judgments. Once those parameters are satisfied and the statement of the witness is trustworthy, cogent and corroborated by other evidence produced by the prosecution, oral or documentary, then the Court would not fall in error of law in relying upon the statement of such witness. It is only when the Courts find that the single eye-witness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure its defect." (Emphasis supplied) (xiv) It has been held by the Hon'ble Supreme Court in the case of Dayal Singh v. State of Uttaranchal, reported in (2012) 8 SCC 263 in paragraph 14, which reads asunder: "14. This Court has repeatedly held that an eye-witness version cannot be discarded by the Court merely on the ground that such eye-witness happened to be a relation or friend of the deceased. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and the occurrence itself, it will not be permissible for the Court to discard the statements of such related or friendly witness." (Emphasis supplied) (xv) It has been held by the Hon'ble Supreme Court in the case of Shyam Babu v. State of U.P., reported in 2012 (4) East Cr C 201 (SC) : (2012) 8 SCC 651 in paragraphs 21 and 22, which read as under : "21. Mr. V.K. Shukla, learned counsel for the appellant submitted that since most of the prosecution witnesses are related to the deceased 13 persons, the same cannot be relied on. We are unable to accept the said contention. 22. Mr. V.K. Shukla, learned counsel for the appellant submitted that since most of the prosecution witnesses are related to the deceased 13 persons, the same cannot be relied on. We are unable to accept the said contention. 22. This Court has repeatedly held that the version of an eye-witness cannot be discarded by the Court merely on the ground that such eye-witness happened to be a relative or friend of the deceased. It is also stated that where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the Court to discard the statement of such related or friendly witnesses. To put it clear, there is no bar in law on examining family members or any other person as witnesses. In fact, in cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was a family member or an interested witness or a person known to the affected party or friend, etc." (Emphasis supplied) 6. As a cumulative effect of the aforesaid evidences on record, the prosecution has proved the offence of murder of Fagan Mundain committed by this appellant-accused beyond reasonable doubt. No error has been committed by the learned trial Court in appreciating the evidences on record. We also see no reason to take any other view than what is taken by the learned trial Court. There being no substance, this criminal appeal is, therefore, dismissed. Appeal dismissed.