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2019 DIGILAW 236 (JHR)

Geja Munda v. State Of Jharkhand

2019-01-23

APARESH KUMAR SINGH, KAILASH PRASAD DEO

body2019
JUDGMENT 1. Heard learned Amicus Curiae Mr. Manish Kumar and learned counsel for the State, Mr. Ram Prakash Singh, Additional Public Prosecutor. 2. The instant criminal appeal is directed against the judgment of conviction, dated 16.04.2012 and order of sentence dated 17.04.2012, passed by learned 1st Additional Sessions Judge, Seraikella-Kharsawan, in Sessions Trial No. 164 of 2006, whereby the sole appellant has been convicted for the offence committed and punishable under Sections 302/34 and 201/34 of the Indian Penal Code and awarded sentence of rigorous imprisonment for life with a fine of Rs.2000/- and in case of default in payment of fine, to further undergo rigorous imprisonment for six months and appellant has also been awarded rigorous imprisonment for three years for the offence committed and punishable under Section 201/34 of the Indian Penal Code in addition to a fine of Rs.1000/- and in case of default in payment of fine further undergo rigorous imprisonment for three months. Both sentences are directed to run concurrently. 3. The prosecution case is based upon the fardbeyan of informant Mangal Singh Munda (P.W.-2) recorded by Sub-Inspector Raphael Murmu, In-charge of Dalbhanga O.P. on 06.09.2006 at 11:30 hours at Gutuhatu, wherein the informant has alleged that on 05.09.2006 at around 6:00 P.M., his son Turi Munda (deceased) went to perform puja ceremony at the house of co-villager Gurudyal Munda and after having puja and dinner, while he was returning, he met Geja Munda (appellant) on the way, who took the son of the informant to his house for having toddy. During taking toddy, some altercation took place between son of informant and Geja Munda, because of which Geja Munda and his wife Kalabati Mundain assaulted son of the informant by means of tangi. On brawl, daughter-in-law of the informant Chando Devi (P.W.-1) looked towards the courtyard of the house of Geja Munda and saw that Geja Munda and his wife Kalabati Mundain, after killing son of the informant, Turi Munda, were trying to remove the dead body. On information given by the daughter-in-law, the informant and other persons went there and thereafter both the accused persons were caught and tied by the villagers and information was given to the choukidar. On information given by the daughter-in-law, the informant and other persons went there and thereafter both the accused persons were caught and tied by the villagers and information was given to the choukidar. The informant has claimed that because of old enmity his son Turi Munda has been taken by Geja Munda on the pretext of taking toddy and has been killed with the help of his wife Kalabati Mundain. 4. On the basis of fardbeyan of the informant, Mangal Singh Munda, the police has registered Kuchai P.S. Case No. 24 of 2006, dated 06.09.2006, under Section 302/34 of the Indian Penal Code against both the named accused persons namely, Geja Munda and Kalabati Mundain. 5. After completion of investigation, the police submitted has charge sheet vide charge sheet no.32 of 2006, dated 30.09.2006, under Sections 302/ 201/34 of the Indian Penal Code. 6. The cognizance of the offence has been taken vide order dated 17.11.2006 and the case has been committed to the court of sessions vide order dated 23.11.2006. 7. The charge has been framed against both the accused persons under Sections 302/34 and 201/34 of the Indian Penal Code, on 19.04.2007 and the charge has been explained to the accused persons in Hindi, to which they have denied about the charge and thus they were put under trial. During pendency of this trial, accused Kalabati Mundain died on 12.11.2007 and thus, the case against Kalabati Mundain has been dropped and accused Geja Munda has faced the complete trial. 8. The prosecution, to prove its case, has examined altogether six witnesses and also adduced a number of documentary evidence as exhibits. 9. Chando Devi, eye witness to the occurrence, has been examined as P.W.-1, Mangal Singh Munda, informant and father of the deceased, has been examined as P.W.-2, Dr. Vinay Sidhesh, member of the board, who has conducted autopsy of the deceased Turi Singh Munda has been examined as P.W.-3, Ramchandra Singh Munda, inquest witness, has been examined as P.W.-4, Pandu Munda, hearsay witness, has been examined as P.W.-5 and Bhishma Singh Munda, another hearsay witness, has been examined as P.W.-6. Fardbeyan of the informant has been proved and marked as exhibit-1 by P.W.-2, postmortem report has been proved and marked as exhibit-2 by P.W.3 Dr. Fardbeyan of the informant has been proved and marked as exhibit-1 by P.W.-2, postmortem report has been proved and marked as exhibit-2 by P.W.3 Dr. Bijay Shankar, inquest report of the deceased, Turi Singh Munda has been proved and marked as exhibit-3 by P.W.-4 Ramchandra Singh Munda, seizure list of blood stained axe recovered from the house of the accused prepared by sub-inspector has been proved and marked as exhibit-4, seizure list of blood stained soil bearing signature of the witnesses has been proved and marked as exhibit-5. 10. After closure of the prosecution evidence, the statement of the accused person has been recorded under section 313 Cr.P.C., on 07.02.2012, where he has denied about his involvement in the occurrence and has claimed himself to be innocent but no defence witness and exhibit have been examined on behalf of the accused. 11. After hearing the learned counsel for the parties and on perusal of materials available on record, the learned trial court has convicted Geja Munda (accused) under Sections 302/34 and 201/34 of the Indian Penal Code. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant has preferred the present criminal appeal before this Hon''ble Court, assailing the same. 12. Heard, learned Amicus Curiae, Mr. Manish Kumar and learned counsel for the State Mr. Ram Prakash Singh, Additional Public Prosecutor. Learned Amicus Curiae has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned Amicus Curiae has submitted, that the case of the prosecution, revolves around the testimony of the sole eye witness Chando Devi (P.W.-1), wife of deceased though this witness has not seen the actual occurrence rather as per the evidence of P.W.-1, she went to the house of Geja Munda, appellant/accused, after hearing the brawl and saw the dead body of her husband, which was being tried to take out by the accused, Geja Munda and his wife Kalabati Mundain. Learned Amicus Curiae has further submitted, that as per the First Information Report and the prosecution evidence brought on record, it appears that death has been caused in the night at around 11:30 P.M. on 05.09.2006 but the postmortem report of the deceased, which has been proved and marked as exhibit-2, shows that postmortem was conducted on 06.09.2006 and the doctor has found as many as five injuries:- (i) 4" x 1" x 3" through hyoid bone and trachea to the vertebra in front of the neck. Bleeding clotted. (ii) 2" x 1" x 2" lacerated wound on the right side of the neck. (iii) A vertical cut wound of 6" x 2 " x bone deep in the right zygomatic area (fracture of the maxilla and mandible). (iv) 2" x 1 " x 3" sharp wound on the right temporal region with bleeding and clot and (v) 4" x 2" x 1 " on frontal bone brain material come out (from fracture of skull bone). All these injuries were ante-mortem in nature and death was caused due to injury nos. 1, 2 and 5 due to cessation of the brain. The doctor has stated that time of death is 36 Hours before the time of postmortem. Learned Amicus Curiae has further submitted, that as per the postmortem report, autopsy of the dead body has been conducted within 24 Hours, as such this casts doubt about the actual time of occurrence as alleged by the prosecution on the basis of testimony of P.W. 1 Chando Devi. Learned Amicus Curiae has also drawn attention of this Court towards evidence of Mangal Singh Munda (P.W.-2) informant of the case, who has stated in his examination-in-chief that in the morning near the house of Geja Munda at a distance from five steps he found in the way. Learned Amicus Curiae has further submitted, that as per the prosecution case wife of the deceased is the only eye witness to the occurrence but she has not seen the actual occurrence. None of the witnesses examined in this case are eye-witnesses to the actual occurrence of assault. Learned Amicus Curiae has further submitted, that as per the prosecution case wife of the deceased is the only eye witness to the occurrence but she has not seen the actual occurrence. None of the witnesses examined in this case are eye-witnesses to the actual occurrence of assault. None of the prosecution witnesses, who have been examined in this case such as Ramchandra Singh Munda (P.W.-4), Pandu Munda (P.W.-5) and Bhishma Singh Munda (P.W.-6) have claimed that they have caught both the accused, tied them and have handed over to the police as alleged in the fardbeyan. Learned Amicus Curiae has thus submitted, that prosecution has not been able to prove its case beyond all shadow of reasonable doubt, so far the appellant is concerned. Learned Amicus Curiae has thus submitted, that appellant may be acquitted from the charge and conviction under Sections 302/34 and 201/34 of the Indian Penal Code by extending benefit of doubt as there is lack of evidence to hold him guilty. 13. Heard, learned counsel for the State, Mr. Ram Prakash Singh, learned Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence has rightly been passed by the learned trial court, based on materials available on record. Learned counsel for the State has further submitted, that consistent case of the prosecution is that son of the informant was returning to his house, when accused/appellant, Geja Munda took him to his house for having toddy. After having toddy, some altercation took place, which was heard by daughter-in-law of the informant Chando Devi (P.W.-1), who went to the house of Geja Munda and she saw the dead body of her husband, who was killed by means of an axe. The dead body of her husband was lifted by accused/appellant Geja Munda and his wife Kalabati Mundain (whose case has been dropped because of her death during trial of the case on 12.11.2007). Thereafter the information was given to (P.W.-2) Mangal Singh Munda, informant of the case. Both the accused persons were caught and tied by the villagers. The police was informed and police came on the next day and thereafter the inquest report was prepared, which has been marked as exhibit-3. Thereafter the information was given to (P.W.-2) Mangal Singh Munda, informant of the case. Both the accused persons were caught and tied by the villagers. The police was informed and police came on the next day and thereafter the inquest report was prepared, which has been marked as exhibit-3. Accordingly, the blood stained axe (kulhari) was seized, the seizure list of the same has been proved and marked as exhibit-4 and the blood stained soil from inside house of Geja Munda i.e. verandah has also been seized, seizure list has been proved and marked as exhibit-5. Learned counsel for the State has further submitted, that there is sufficient material against the accused, Geja Munda which has been brought on record by the prosecution, which are sufficient to prove the guilt of the accused beyond shadow of all reasonable doubt, as such learned trial court has rightly convicted the accused, Geja Munda under Section 302/34 of the Indian Penal Code for killing Turi Munda and under Section 201/34 of the Indian Penal Code as accused along with his wife were trying to dispose of the evidence of offence, which does not warrant any interference by this Court. 14. Heard learned Amicus Curiae Mr. Manish Kumar and learned counsel for the State, Mr. Ram Prakash Singh, Additional Public Prosecutor and perused the materials brought on record i.e. First Information Report, framing of charge, evidence of six prosecution witnesses, five prosecution exhibits, statement of the appellant recorded under section 313 Cr.P.C. as well as the impugned judgment of conviction and order of sentence. This court has scrutinized the evidence of prosecution witnesses. Chando Devi (P.W.-1) wife of the deceased and daughter-in-law of the informant is an eye witness to the occurrence, who went to the house of Geja Munda (place of occurrence) soon after the occurrence after hearing the brawl and saw that dead body of her husband Turi Munda was lifted for removal by Geja Munda and his wife Kalabati Mundain, the blood stained axe (kulhari) was also there and there was blood on the floor. She informed her father-in-law Mangal Singh Munda (P.W.-2) who came there and thereafter the accused Geja Munda and his wife Kalabati Mundain were caught and tied by the co-villagers and information was given to the police and police came on the next day. She informed her father-in-law Mangal Singh Munda (P.W.-2) who came there and thereafter the accused Geja Munda and his wife Kalabati Mundain were caught and tied by the co-villagers and information was given to the police and police came on the next day. The fardbeyan was recorded, inquest report was prepared, the blood stained kulhari and blood stained soil of the place of occurrence have been seized and seizure list have been accordingly prepared which have been proved and marked exhibits. The postmortem report shows that because of sharp cut weapon, Turi Munda has been killed and the prosecution has also brought the motive on record, as dispute with regard to the cultivation. This Court has no reason to disbelieve the prosecution case nor there is any reason to upset the impugned judgment of conviction and order of sentence passed by the learned trial court. 15. Under the aforesaid circumstances, as there is direct evidence against the appellant, Geja Munda and Chando Devi (P.W.-1) has seen Geja Munda alongwith his wife Kalabati Mundain immediately after the occurrence holding the dead body of Turi Munda in the house of their verandah, blood and blood stained kulhari was also there and on seeing them the villagers have caught and tied them, this Court is of the view that the learned trial court has rightly passed the impugned judgment of conviction against Geja Munda under Sections 302/34 and 201/34 of the Indian Penal Code as Kalabati Mundain has died during pendency of the trial. 16. In the result, the impugned judgment of conviction, dated 16.04.2012 and order of sentence dated 17.04.2012, passed by learned 1st Additional Sessions Judge, Seraikella-Kharsawan, in Sessions Trial No. 164 of 2006, does not warrant any interference by this Hon''ble Court and the same is upheld and affirmed. 17. In the result, the instant criminal appeal is hereby dismissed. 18. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action. 19. Before parting with this judgment, this Court appreciates the assistance rendered by learned Amicus Curiae Mr. Manish Kumar to this Court in disposal of the present criminal appeal. The Member Secretary, High Court Legal Services Committee shall bear the fee/legal admissible remuneration as per the rule to learned Amicus Curiae, Mr. 19. Before parting with this judgment, this Court appreciates the assistance rendered by learned Amicus Curiae Mr. Manish Kumar to this Court in disposal of the present criminal appeal. The Member Secretary, High Court Legal Services Committee shall bear the fee/legal admissible remuneration as per the rule to learned Amicus Curiae, Mr. Manish Kumar within a period of four weeks from production of certified copy of this order along with an application by the learned Amicus Curiae.