Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 1940 (JHR)

Das Kalundia v. State Of Jharkhand

2019-12-02

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

body2019
JUDGMENT Shree Chandrashekhar, J. - The sole appellant has faced the trial on the charge under section 302 of the Indian Penal Code for committing murder of his sister-in-law, namely, Smt. Nandi Kalundia. 2. In Sessions Trial No. 275 of 2009, he has suffered the sentence of R.I for life and fine of Rs. 10,000/- under section 302 of the Indian Penal Code. 3. The informant of this case, namely, Siva Kalundia is younger brother of the appellant. On the basis of his fardbeyan which was recorded on 16.06.2009 at 6:30 a.m, Chaibasa Muffasil P.S. Case No. 33 of 2009 was instituted against the appellant under section 302 of the Indian Penal Code. After the investigation, a charge-sheet was submitted against the appellant and he was sent up to face the trial on the aforesaid charge. 4. During the trial, the prosecution has examined 10 witnesses; the informant is P.W.6 and his daughter, namely, Tirasi @ Mogoli Kalundia is P.W.3. She has been projected by the prosecution as an eye-witness. 5. The fardbeyan of Siva Kalundia is based on the information given to him by his daughter Tirasi @ Mogoli Kalundia. In his fardbeyan, the informant has stated that on 15.06.2009 he had gone for work. In the night at about 10:00 p.m when he came back home he found his wife on a cot writhing in pain and drenched in blood. When he asked his wife she told him that his elder brother, namely, Das Kalundia has given a trishul blow on her neck. His wife was oozing blood, she was speaking slowly and after sometime she became unconscious. When he asked his daughter Tirasi @ Mogoli Kalundia, aged about 14 years, she also told him that at about 8:30 p.m when her mother was sleeping her uncle (bade papa), namely, Das Kalundia came running inside the house and gave a trishul blow on the neck of her mother. There was scuffle thereafter between her mother and uncle and when her mother fell on the earth she put her on the cot and covered the injury with cow-dung. His wife has died at 10:15 p.m in the same night. In the court also the informant has given a similar narration of the incident what he has stated in his fardbeyan. His wife has died at 10:15 p.m in the same night. In the court also the informant has given a similar narration of the incident what he has stated in his fardbeyan. However, in his examination-in-chief, he has not spoken about his wife narrating the incident to him rather he has stated that his daughter has revealed to him that her uncle has assaulted her mother with trishul and she has put cow-dung on her injury. 6. The daughter of the informant has stated that in the evening of 15.06.2009 she was with her mother. Her uncle came inside the house and assaulted her mother with trishul. Her mother was oozing blood and, therefore, she put cow-dung on her injury. She has further stated that when her father came home at about 10:00 p.m she informed him about the incident. 7. We find that P.W.3 and P.W.6 both have contradicted each other. Their conduct is also unnatural. The daughter of the informant has stated in her cross-examination that after she suffered injury her mother did not scream and after about half and hour she started crying. She has also admitted that she has not seen assault with trishul on her mother. On her own account, she is not an eye-witness. She has further stated that when her father came back home at that time her mother was alive. The informant did not go outside and remained at home the whole night. He did not go to the police station and did not inform Munda. The informant has, however, stated in his cross-examination that when he reached home his wife was unconscious and in that condition she has died. He has also admitted that he did not inform the police in the night and remained at home. In his fardbeyan he has stated that he has six children, however, except P.W.3 none has been examined during the trial; the prosecution has not taken a stand that at the time of the incident except P.W.3 other children of the informant were not home. 8. On such facts, particularly the conduct of P.W.3 and P.W.6; not informing anyone in the neighborhood, not informing the police, not administering first aid to Smt. Nandi Kalundia, raise serious doubt on their evidence. 9. Bishu Mundia-P.W.4 has claimed himself as an eye-witness. 8. On such facts, particularly the conduct of P.W.3 and P.W.6; not informing anyone in the neighborhood, not informing the police, not administering first aid to Smt. Nandi Kalundia, raise serious doubt on their evidence. 9. Bishu Mundia-P.W.4 has claimed himself as an eye-witness. In his examination-in-chief, he has stated that on hearing some cries when he had gone to the house of Siva Kalundia he has seen assault by Das Kalundia on the neck of the wife of Siva Kalundia with trishul. In his cross-examination, he has admitted that by 7:30 p.m in the night he retires to the bed and his house is at a distance of about 200 meters from the house of Siva Kalundia. The testimony of P.W.4 is quite unbelievable. It is unlikely that someone would hear cries from a distance of 200 meters and till the time he reached house of the informant the appellant was still there. Moreover, in her cross-examination the daughter of the informant has stated that after her uncle assaulted her mother she did not raise hulla nor has her mother raised any cry. 10. The inconsistencies in the evidence of the prosecution witnesses and their admission during the cross-examination, make us to hold that they are not reliable witnesses. 11. The medical evidence is also not corroborating the prosecution story that in the night of 15.06.2009 Smt. Nandi Kalundia has died on account of trishul injury by the appellant. Dr. Binod Kumar Pandit-P.W.10, who has conducted the post-mortem examination at 11:30 a.m on 16.06.2009, has found laceration to the extent 1" x 1" x 1", with blood-stained cutting and the corresponding blood vessels. According to the doctor, the time elapsed since death was 6 to 48 hours. The opinion of the doctor rendered on the time since death, particularly, the gap in the time-period does not support the prosecution story that Smt. Nandi Kalundia has died in the night at about 11:00 p.m on 15.06.2009. 12. We further find that the prosecution has failed to prove motive for the crime. The informant has stated in the fardbeyan that one day before the incident there was a quarrel between him and his brother, however, none of the prosecution witnesses has supported him and, in fact, he himself has not stated in his deposition that a quarrel between them had taken place the previous day. 13. The informant has stated in the fardbeyan that one day before the incident there was a quarrel between him and his brother, however, none of the prosecution witnesses has supported him and, in fact, he himself has not stated in his deposition that a quarrel between them had taken place the previous day. 13. The prosecution witnesses; Lok Nath Kalundia-P.W.2, Joko Karwa-P.W.5, Sikur Kalundia-P.W.8 and, Jai Singh Karwa-P.W.9 are hearsay witnesses. They have not seen the appellant assaulting his younger sister-in-law. P.W.2 is a seizure-list witness. He says that distance between his house and the place of occurrence is 1 k.m. He has also stated that he does not know anything about the incident. During the investigation the investigating officer has not collected the necessary details and information about the incident. Though the investigating officer has stated that he has seized trishul at the place of occurrence, it was not produced in the court and the seizure witness, namely, Lok Nath Kalundia has not supported the prosecution''s case. 14. By now it is well-settled that if the prosecution comes up with a definite case, it must prove its case beyond all reasonable doubt. In " Mohinder Singh Vs. The State, (1953) AIR SC 415 ", the Supreme Court has observed that it is elementary that where the prosecution has a definite or positive case, it must prove the whole of its case. 15. But, in the aforesaid state of evidence, we find that the prosecution has failed to establish its case and, consequently, the charge under section 302 of the Indian Penal Code against the appellant must fail. Therefore, the judgment of conviction under section 302 of the Indian Penal Code dated 05.10.2013 and the order of sentence dated 07.10.2013 of R.I for life and fine of Rs.10,000/- under section 302 of the Indian Penal Code passed against the appellant in Sessions Trial No. 275 of 2009 are set-aside. 16. The appellant, namely, Das Kalundia who is in custody shall be released forthwith, if not wanted in connection with any other case. 17. In the result, Criminal Appeal (DB) No. 879 of 2013 is allowed. 18. Let a copy of the Judgment be transmitted to the court concerned through FAX. 19. Let the lower-court records be sent to the court concerned forthwith.