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2017 DIGILAW 1798 (JHR)

Budhu Munda v. State of Jharkhand

2017-10-13

APARESH KUMAR SINGH, B.B.MANGALMURTI

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JUDGMENT : B.B. Mangalmurti, J. This appeal is directed against the judgment of conviction and order of sentence dated 31st January, 2013 passed by Shri K.K. Srivastava, District and Sessions Judge, Seraikella Kharsawan in Sessions Trial No. 21 of 2007 holding the accused guilty under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life as also fine of Rs. 2,000/-. In default of payment of fine, he will further undergo simple imprisonment for three months with set off clause for the period already undergone during trial. 2. The case of prosecution, in nutshell, is that the S.I., Arvind Kumar Majhi, Officer-in-Charge, Kuchai P.S. recorded the fardbeyan of the informant Singi Mundain, wife of deceased Soma Munda on 30.10.2006 at about 8.30 hours at the door of the informant Singi Mundain stating therein that in the night of 29/30.10.2006 at about 9 p.m. after taking dinner while she along with her husband Soma Munda, daughter Dasma Kumari were sitting at the courtyard (verandah) of her house and one "dhibri" was burning and she was doing oil massage to her younger son, who was ill. All of a sudden, accused Budhu Munda lashed with bow and arrow came and assaulted one arrow upon her husband which hit on the chest of the deceased and thereafter the accused started to flee away. In the meantime, her husband taking a stick in the hand chased the accused but after 200 yard near Pagdandi, he fell down and died and the accused fled away. On alarm, co-villager came and searched the accused but he could not be traced out. Lastly, she claimed that her husband Soma Munda died due to assault of arrow and this offence has been seen by her younger daughter Jasima Kumari also. 3. After submission of charge-sheet, the cognizance of offence was taken and the case was committed to the Court of Sessions on 03.02.2007. The charge was framed under Section 302 of the Indian Penal Code against sole appellant and prosecution altogether examined 11 witnesses and have exhibited some documents as well as material exhibits on their behalf whereas defence has not examined any witness nor any documents were brought on record. 4. On behalf of the prosecution, 11 witnesses have been examined in this case. 4. On behalf of the prosecution, 11 witnesses have been examined in this case. PW 1-Singi Kumari, wife of deceased and eye-witness of the occurrence, PW 2-Jasima Kumari, daughter of the deceased and eye-witness, PW 3-Lakhiram Munda, co-villager, PW 4-Rai Singh Munda, son of deceased, PW 5-Dilka Munda, co-villager, PW 6-Somwari Munda, sister of the deceased, PW 7-Arvind Kumar Majhi, Investigating Officer, PW 8-Dr. Barilal Mardi, conducted post-mortem examination, PW 9-Santosh Singh Munda and PW 11-Budhan Lal Munda @ Budhan Singh Munda both are witnesses of Inquest report, PW 10-Shiya Ram Singh, formal witness who brought Material Exhibit. 5. On behalf of the prosecution, following documents were exhibited. Exhibit I-signature on the fardbeyan, Exhibit 2-entirefardbeyan, Exhibit 3-Photo copy of the Inquest report, Exhibit 4-Para 4 of the case diary describing the second place of occurrence, Exhibit 5-Seizure list, Exhibit 6-Post-mortem report, Exhibit ½-signature of PW 1 on the Inquest report, Material Exhibit I-Bow, Material Exhibit II-Arrow and Material Exhibit III-stick. 6. After appreciation of evidences adduced on behalf of the prosecution, the trial Court found consistency in the manner of occurrence as the credibility of the witness have not been shaken in their cross-examination. They were found reliable, credible and trustworthy. The doctor has proved injury which was found on the dead body and also found the injury caused by arrow. The post-mortem report also established the fact that ante-mortem injuries are sufficient to cause death. 7. Counsel for the appellant challenged the conviction as erroneous on the ground that the Court below has not considered the contradictions relating to the depositions of the wife and daughter of the deceased. The Police has not seized the "dhibri' from which light the accused person was being identified by the witnesses. The other contradictions was relating to the material exhibits produced before the Court as PW 10 has produced only one arrow and bow whereas the Police during investigation has seized six arrow and one bow also. PW 7-Arvind Kumar Majhi. Investigating Officer of this case has also admitted in his evidence at Para 7 that he had found one bamboo bow and six arrow and seizure list was prepared before the witnesses. PW 10 has produced the material exhibits consisting of one bow and one arrow and one stick which has been marked as Material Exhibit Nos. (i), (ii) and (iii) respectively. PW 10 has produced the material exhibits consisting of one bow and one arrow and one stick which has been marked as Material Exhibit Nos. (i), (ii) and (iii) respectively. The Investigating Officer in his evidence at Para 9 has stated that after postmortem the doctor has handed over two arrow which was stucked in the body of deceased and the seizure list was prepared accordingly which has been marked here as Exhibit 5/1. This material contradiction have not been looked into by the trial Court. She further argued that PW 3-Lakhiram Munda has deposed that when he reached to the house of deceased and seen the body of deceased lying at verandah where the wife of deceased was also present whereas as per prosecution story the deceased after being hit by the arrow, took a stick (Mat. Ext. III) and chased the assailant for about 200 yards and thereafter he fell down and died. So the evidences of witnesses are not matching to each other. She also submitted that PW 2 stated the date of occurrence as it was day of Sohrai (Deepawali) and the occurrence was during night hour so it was difficult to recognize any person in the light of the dhibri. Lastly, she submitted that all the witness have stated that there was no previous enmity with the accused so the reason of committing such an act is not believable. She relied on a decision in the case of Indrasan v. State of Uttar Pradesh, (2009) 14 SCC 532 and Rampal Singh v. State of U.P., 2012 (4) EastCrC 35 (SC) which are mainly relating to Section 304, Part-I of the IPC. She further relied upon the case of Govindaraju @ Govinda v. State by Sriramapuram P.S. and another, reported in (2012) 4 SCC 722 at Para 8 : "8. If we analyze the above, principle somewhat concisely, it is obvious that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. There are no jurisdictional limitations on the power of the appellate Court but it is to be exercised with some circumspection. There are no jurisdictional limitations on the power of the appellate Court but it is to be exercised with some circumspection. The paramount consideration of the Court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than that from the conviction of an innocent. If there is miscarriage of justice from the acquittal, the higher Court would examine the matter as a Court of fact and appeal while correcting the errors of law and in appreciation of evidence as well. Then the appellate Court may even proceed to record the judgment of guilt to meet the ends of justice, if it is really called for." 8. Learned A.P.P. submitted in support of judgment that only one assault was made through arrow which hit on the chest of deceased which resulted in Neurogenic shock and injury was sufficient to cause death. The appellant came armed with bow and arrow and hit the chest of deceased and was recognized in the light of dhibri by the two eye-witnesses PW 1 and PW 2 being wife and daughter of deceased. The light of dhibri is normally the villagers are using and their eye sight are set to recognize even in the light produced by dhibri or to similar lighting instrument. The minor contradiction might have arisen which are not very important as one arrow and bow which were used during commission of crime as well as one Stick (Material Exhibit III) used by the deceased while he was chasing the appellant were produced before the Court which has ample proof to prove the prosecution version. The other arrows seized during the investigation were not used in this occurrence. Those were seized from his house/possession of appellant. 9. Considering the above submissions of the parties and on perusal of Lower Court Records as well as judgment of the trial Court, it appears that the evidences of PW 1-Singi Kumari, wife of deceased and PW 2-Jasima Kumari, daughter of deceased, both eye-witnesses of the occurrence have proved the prosecution story. Those were seized from his house/possession of appellant. 9. Considering the above submissions of the parties and on perusal of Lower Court Records as well as judgment of the trial Court, it appears that the evidences of PW 1-Singi Kumari, wife of deceased and PW 2-Jasima Kumari, daughter of deceased, both eye-witnesses of the occurrence have proved the prosecution story. Both witnesses recognized the appellant in the light of dhibri Since both witnesses were using Mundari (a tribal language), so the statement of informant i.e. Singi Kumari was given in Mundari language before the Police and that language was translated by Lakhiram Munda, who has been examined as PW 3 who also supported this version in his evidence at Paragraph 5. The counsel for the appellant indicated contradictions in the evidence of PW 1 and PW 2 with PW 3 "when he reached to the house of deceased and seen body of deceased at verandah" but from the plain reading of the evidences of PW 3 in his evidence at Paragraphs 2 and 3 herein says that the deceased after the arrow hit on his chest, he dare to chase the appellant with stick and the deceased when reached Maramuru (Sarna Sthal) fell down and died. In subsequent Paragraph, he has stated that when he reached Maramuru alongwith villagers, he found the deceased there and arrow was stucked on his chest. Therefore, argument of the appellant that the dead body was lying on the verandah may be a subsequent event. This witness has amply stated the second place of occurrence i.e. Maramuru where the deceased was found dead. 10. The judgment relied by the appellant in the case of Indrasan v. State of Uttar Pradesh and Rampal Singh v. State of U.P. (supra) are mainly related to Section 304 Part-I of the IPC which are not of much help in this case. The case of Govindaraju @ Govinda v. State by Sriramapuram P.S. and another (supra) the Hon'ble Court has held that if two views are possible on the evidence adduced in a case then a view favourable to the accused should be adopted. But in this case the prosecution have able to establish the case and have not left any scope for another view. Therefore, on appreciation of prosecution evidences, the views taken by the trial Court has remained intact. 11. But in this case the prosecution have able to establish the case and have not left any scope for another view. Therefore, on appreciation of prosecution evidences, the views taken by the trial Court has remained intact. 11. Learned counsel for the appellant has raised the point that there was no previous enmity with the accused so the motive of committing murder was not brought on record. It is true that no witness have stated about the motive of the murder even the Investigation Officer has not stated to have investigated on this point. No such question in' this connection was put by the defence before the Investigating Officer or any other witness during the cross-examination. So none of them have stated about the motive behind this killing. 12. The recognition of the appellant in the light of dhibri was considerably answered by the learned A.P.P. who has stated that normally the villagers are using and their eye sight are set to recognize even in the light produced by dhibri or through a similar lighting instrument. The witnesses of Inquest report have been examined as PWs 9 and 11. The post-mortem have been conducted by Dr. Barilal Mardi who has been examined as PW 8 have found three injuries :- (i) 1/1" x 1/2" injury on chest deep to heart chamber crossing the pericardium. Arrow was struct intact. (ii) Blood was collected on chest cavity. Abdominal cavity was free from blood. (iii) A lacerated injury 1/2" x 1/2" on right knee was present. He found all the Injuries ante-mortem in nature. Cause of death is haemorrhage, neurogenic shock by injury No. 1. So the death is admitted through the arrow which hit in the chest of the deceased. The evidences have been laid in such a manner that it is the appellant who has hit the chest of deceased through bow and arrow which led to the death of the deceased Soma Munda. The statement of eye-witnesses have been amply corroborated with the rest of the witnesses PW 3 and PW 7. The seized bow and arrow were also produced before the Court as Material Exhibit in support of prosecution version. The statement of eye-witnesses have been amply corroborated with the rest of the witnesses PW 3 and PW 7. The seized bow and arrow were also produced before the Court as Material Exhibit in support of prosecution version. PWs 1, 2, 3 and 7 have stated that the informant and her daughter have deposed initially in Mundari language which was translated by PW 3-Lakhiram Munda which also find place in the evidence of Investigating Officer who has recorded that on being translated in Hindi he recorded the proceedings. Since these witnesses are tribals using tribal language so some discrepancy might have cropped up during its translation by the translator but that has not changed the material character of the case. 13. On scrutiny of the evidences and the material brought on record, we are of the opinion that the prosecution has able to prove the case beyond reasonable doubt. Therefore, no occasion arises to interfere in the findings of the trial Court. 14. In the result this appeal is dismissed. Appeal dismissed.