Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 429 (JHR)

Durga Charan Munda v. State of Jharkhand

2019-02-13

APARESH KUMAR SINGH, KAILASH PRASAD DEO

body2019
JUDGMENT : By Court: Heard learned Amicus Curiae and the learned Additional Public Prosecutor on behalf of the State. 2. The sole appellant is before us in this appeal being aggrieved by the judgment of conviction dated 11.06.2014 rendered in Sessions Trial Case No. 103/2011 by the court of learned Additional Judicial Commissioner-V, Ranchi, whereunder he has been convicted under section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life with a fine of Rs. 2,000/-, in default whereof, to further undergo simple imprisonment for three months, by the impugned order of sentence dated 16.06.2014. 3. The prosecution case has unfolded on the basis of the fardbeyan of Jehru Lal Munda, son of late Devan Munda, village Haram Lohar Tola, Jaridih, P.S. Tamar, District Ranchi recorded at 11.50 hrs. on 15.11.2010 by the A.S.I. Thakur Shyam Deo Singh, Bariyatu P.S. near the bed no. 3117 at RIMS in the Unit of Dr. C.B. Sahay bearing P.I.R. No. 12340. The informant inter-alia alleged as follows: That on 14.11.2010 in the morning, his nephew Krishna Munda, son of late Kali Charan Munda returned from the field at 10.00 am and was going to the market at 5.00 pm on foot. At a distance of 50 yards from the house, the accused Durga Charan Munda, son of Bull Munda who is a co-villager, was waiting in bait and assaulted his nephew with a ‘tangi’ and injured him. He thereafter fled away. This incidence was seen by other persons who raised hulla (brawl) and inmates of the house also rushed and saw the injured lying there. He was taken for treatment to RIMS on 14.11.2010 at around 9.00 pm. His nephew died during course of treatment on 14.11.2010. On the basis of this assertion, the informant alleged that this incidence was seen by Shankar Munda (PW-3) and others by their own eyes. His fardbeyan was read over to him and explained and thereafter, he put his signature thereupon in the presence of Shankar Munda (PW-3), his brother. This led to the institution of Tamar P.S. Case No. 112/2010 on 16.11.2010 for the offence under section 302 of the Indian Penal Code as against the sole accused Durga Charan Munda. Investigation started thereafter. 4. On conclusion of investigation, charge sheet bearing no. This led to the institution of Tamar P.S. Case No. 112/2010 on 16.11.2010 for the offence under section 302 of the Indian Penal Code as against the sole accused Durga Charan Munda. Investigation started thereafter. 4. On conclusion of investigation, charge sheet bearing no. 141/2010 dated 30.11.2010 under section 302 of the Indian Penal Code was filed in the court by the police against the sole accused/appellant herein. Cognizance was taken on 7.12.2010 and thereafter the case was committed to the court of Sessions on 04.02.2011. Charges were framed on 02.06.2011 against the sole accused under section 302 of the Indian Penal Code and were explained to him in Hindi, to which he pleaded not guilty and claimed to be tried. Thus, case was put up for trial. 5. During course of trial, prosecution examined seven witnesses: PW-1: Jehru Lal Munda PW-2: Amar Munda PW-3: Shankar Singh Munda PW-4: Pushpa Devi PW-5: Somchand Singh Munda PW-6: Yugal Kishore Ram PW-7: Dr. Samarina Kamal Prosecution also adduced certain documentary evidence in support of their case, as under: Ext.-1: Signature of the informant Jehru Lal Munda on the fardbeyan. Ext.-2: Postmortem report Both were proved without objection. 6. After closure of the prosecution evidence, statement of the accused was recorded under section 313 of the Cr. P.C on 05.08.2013 in which material evidence was put to him, but he pleaded his innocence and stated that he has been falsely implicated. On behalf of the defence, two witnesses were examined, as under: DW-1: Rohin Singh Munda DW-2: Gora Munda 7. Learned Trial Court upon consideration of the entire material evidence on record and submission of learned counsel for the parties, held the accused guilty of the charge under section 302 of the Indian Penal Code, as according to it, prosecution have been able to prove its case beyond shadow of all reasonable doubt. He was sentenced to undergo rigorous imprisonment for life with a fine. The appellant being aggrieved therefrom, has preferred the instant appeal. 8. Learned Amicus Curiae has assisted the court in the matter and placed the entire material evidence on record. It is his submission that the prosecution’ case is not proved to the hilt to convict the appellant. Informant is not an eyewitness to the occurrence, as per his own statement. The presence of PWs-2, 3, 4 & 5 at the time of occurrence, is also doubtful. It is his submission that the prosecution’ case is not proved to the hilt to convict the appellant. Informant is not an eyewitness to the occurrence, as per his own statement. The presence of PWs-2, 3, 4 & 5 at the time of occurrence, is also doubtful. PW-4 Pushpa Devi, wife of the deceased, has stated that she was inside the house at the time of occurrence and rushed there on hearing hulla (brawl). Therefore, she was not an eyewitness. PW-5 Somchand Singh Munda also does not appear to be an eyewitness as he claimed that he was returning from Joradih market at that point of time. Prosecution witnesses are related in some manner or the other with the deceased. Their evidence has to be treated with care and caution. Defence has suggested existence of dispute due to grabbing of land of the accused as a motive to implicate him, which the prosecution has not been able to deny completely through the mouth of the prosecution witnesses. Defence has also suggested that the injury sustained by the deceased was as a result of fall from a tree. This stands corroborated by the testimony of the Medical Officer (PW-7) who conducted autopsy on the dead body, as per his statement at para-4 of his cross-examination. PW-7 has stated that the injury could be caused by fall from the height of 20-25 ft. Defence has also suggested from the mouth of DWs-1 & 2 that the accused was suffering from mental insanity. No other motive has been attached or proved by the prosecution for the appellant to have inflicted fatal injuries on the victim. If the evidence on record is read in totality, it is replete with a number of loopholes which creates serious doubt about the case of the prosecution. Conviction of the appellant on such shaky evidence is not proper. The appellant has served incarceration since the date of his arrest i.e. 18.11.2010 just after the occurrence. 9. Learned Additional Public Prosecutor has defended the findings recorded by the learned Trial Court. He has referred to the statement of the informant Jehru Lal Munda (PW-1) made during the trial and submitted that the original story projected through his fardbeyan stands duly supported. He has also placed the evidence of Amar Munda (PW.-2), Shankar Singh Munda (PW-3), Pushpa Devi (PW-4) and Somchand Singh Munda PW-5, all of whom are eye witness. He has referred to the statement of the informant Jehru Lal Munda (PW-1) made during the trial and submitted that the original story projected through his fardbeyan stands duly supported. He has also placed the evidence of Amar Munda (PW.-2), Shankar Singh Munda (PW-3), Pushpa Devi (PW-4) and Somchand Singh Munda PW-5, all of whom are eye witness. The time of occurrence is 5.00 pm; manner of occurrence of assault with a tangi on the victim by the accused; immediate effect thereof i.e. deceased/victim rendered unconscious and taken for treatment at RIMS, Ranchi where he subsequently died on the same night on 14.11.2010, all have been proved in sequence by these prosecution witnesses. Defence has not been able to elicit any contradiction or inconsistency in their statements. Defence has also not been able to prove any other hypothesis for the incidence, though suggestion relating to the case of land grabbing of the accused and a possible fall from the tree from the height of 20-25 ft. has been suggested. The medical evidence on record corroborates the testimony of the eye witnesses (PW-2 to 5). The statements of these prosecution witnesses have also been recorded after the incidence by the Investigating Officer (PW-6), as per his statement made at para-4. There is complete consistency in the statement of all these prosecution witnesses which the learned Trial Court did not have any occasion to disbelieve. As such, the impugned judgment of conviction and order of sentence does not suffer from error of law or mis-appreciation of evidence, which requires interference in appeal. As such, Appeal being devoid of merits, is fit to be dismissed. 10. We have considered the submission of learned Amicus Curiae and learned Additional Public Prosecutor; gone through the entire materials on record and the evidence adduced by the prosecution as well as defence and also perused the impugned judgment. As per the prosecution story unfolded through the mouth of Jehru Lal Munda (PW-1), the incidence occurred at 5 pm while the victim, his nephew, was going towards the market. The incidence occurred at a distance of 50 yards from his house. This informant does not claim to be an eye witness, however he had reached the place of occurrence upon hearing the shout. The incidence occurred at a distance of 50 yards from his house. This informant does not claim to be an eye witness, however he had reached the place of occurrence upon hearing the shout. This witness had also stated that Shankar Singh Munda (PW-3), in particular, had already reached the place of occurrence and seen the incidence, while the other villagers also reached there. He has denied any knowledge about the suggestion that this accused was suffering from mental insanity. He has also stated that the victim was taken to the hospital for treatment at RIMS, Ranchi where the doctor declared him dead. He has proved his signature on the fardbeyan, which is marked as Ext.-1. This witness has faithfully stated at para-8 that he had not seen the assault on the victim by the accused, but he had seen him running away. He further states that Shankar Munda had told him that accused had assaulted upon the deceased. He denied any enmity between the accused and the deceased. PW-2 Amar Munda is brother of the accused and eye witness of the occurrence. He has deposed that incidence occurred at 5.00 pm on 14.11.2010. He was going to Jorodih market and on hearing shout, he rushed to the house of Somchand Singh Munda (PW-3) and saw the accused assaulting the victim Krishna Munda with a ‘tangi’, as a result, he sustained injuries and fell down. Thereafter, the accused fled away. Then he was taken to the hospital. In course of treatment he died on 15.11.2010. In his cross examination, he has categorically stated that he is the brother of the accused and accused was in mentally sound condition. The deceased was his nephew. He had seen the occurrence by his naked eyes. There was no previous enmity between them. He denied the suggestion of the defence that there was a case of land grabbing of the accused which has been the reason for his implication. PW-3 Shankar Singh Munda is also an eye witness to the occurrence. He has stated that on 14.11.2010 he was going to the market at 5.00 pm when in front of the house of Somchand Singh Munda he saw the accused assaulting the victim Krishna Munda by ‘tangi’. Number of persons assembled there on hearing hulla and the accused fled away. Thereafter the victim was taken to RIMS where he died during course of treatment. Number of persons assembled there on hearing hulla and the accused fled away. Thereafter the victim was taken to RIMS where he died during course of treatment. In his cross examination, he states that Krishna Munda (victim) and he were moving in the same direction and he was following Krishna Munda. Deceased was his uncle and the accused is his cousin grandfather. He has denied knowledge about any case of land grabbing of the accused. He has denied any case of fall of the deceased from a tree. PW-4 Pushpa Devi is the wife of the deceased. She has stated that she was at her house. Time of occurrence is 5.00 pm in the evening. She had seen the occurrence from her own eyes and the place of occurrence is in front of the house of Somchand Singh Munda. The accused assaulted her husband with a ‘tangi’ and killed him. In her cross examination, she states that the accused Durga Charan Munda is her uncle. The house of the accused is next to her house. She denies any knowledge of allegation of land grabbing of the accused. She further states that her husband was going to the market for crushing of the paddy. In her statement during cross examination, she has categorically stated that she rushed on hearing hulla (brawl) of her husband and saw the incidence by her own eyes. She was standing at the door of her house at the time of occurrence. The informant (PW-1) is her uncle. She has denied suggestion of the defence that injury sustained by the deceased was due to fall from a tree. PW-5 Somchand Singh Munda in his statement, has also deposed as an eye witness. The time of occurrence, as per him, is 5.00 pm. He was returning to the village from Jorodih market when he saw the accused assaulting the victim Krishna Munda by a tangi. Thereafter, the victim became injured and was taken to the hospital for treatment where he died on the next date. In course of his cross examination, he has also denied the suggestion of land grabbing or fall from a tree which could have caused injuries. PW-6 Yugal Kishore Ram, Investigating Officer has described the place of occurrence i.e., on a road south to the house of Somchand Singh Munda. He has further stated that the house of the informant is on the south. PW-6 Yugal Kishore Ram, Investigating Officer has described the place of occurrence i.e., on a road south to the house of Somchand Singh Munda. He has further stated that the house of the informant is on the south. The kuccha road goes towards the west. He has further stated that the statements of PW-3 Shankar Singh Munda, Pushpa Devi (PW-4), Somchand Singh Munda (PW-5) and Amar Munda (PW-2) were recorded, apart from re-statement of the informant Jehru Lal Munda (PW-1). He has prepared the inquest report. The accused was arrested and produced before the Court on 18.11.2010. After conclusion of the evidence, the accused was charge sheeted under Section 302 of the Indian Penal Code on instruction of the Superintendent of Police, Rural. He has also stated in his cross examination that statement of the victim was not recorded. He had also learnt that the medical condition of the accused was good. Nobody had informed him about the allegation of land grabbing of the accused. Nobody had informed that the deceased had fallen from tree, which has caused death. PW-7 Medical Officer Dr. Samarina Kamal, who has conducted the autopsy on the dead body on 15.11.2010, has during her deposition proved the post mortem report in her pen and signature marked as Ext. 2. Following injuries were found on the body of the deceased which were ante mortem in nature: (i) Laceration 3 x ½ cm x bone deep right occipital region of head. (ii) Stitched wound: (a) 7 x ½ cm x soft tissue fronto lateral eyebrow and 5 stitches. (b) 4 x ½ cm x bone deep 4 stitches left cheek upper part and fracture of left maxillary bone. (c) 2 x ½ cm x bone deep with 2 stitches left lower lip lateral side with fracture of left side of mandible bone. (iii) Internal: Diffuse confusion of whole scalp with crack fracture 10 cm long of left parieto occipital bone, separation of coronal sutoresh and crack fracture extends to right parietal bone. Contusion of brain and presence of subdural blood and blood clots both side of brain. (iv) Opinion: (i) Above noted injuries are ante mortem. (ii) Caused by hand and blunt substance. (iii) Death due to head injury (iv) Time since death 3-11 hours. As per the opinion of the Doctor, the death was caused due to head injury by hard and blunt substance. (iv) Opinion: (i) Above noted injuries are ante mortem. (ii) Caused by hand and blunt substance. (iii) Death due to head injury (iv) Time since death 3-11 hours. As per the opinion of the Doctor, the death was caused due to head injury by hard and blunt substance. Defence has put suggestion to her in cross examination where she has further stated that the said injuries may be caused by falling from a height of 20-25 ft. 11. Defence has adduced two witnesses in their support. DW-1 is the younger brother of the accused. He in his chief, has stated that the accused had complained of dizziness since 5-6 years ago. However, he had not been taken to the doctor for treatment. He has further stated in cross-examination that he did not use to give money to the accused and that the accused used to cultivate the land and there was no partition of the land. This witness has further stated that he did not take the produce out of such cultivation. DW-2 has claimed to have known the accused from 8-9 years. He has stated that he was a mad kind of person. However, he has denied that he was ever treated in a hospital. In his cross-examination, he has stated that he used to meet the accused in a gap of six months. He had not met the accused since June 2012. 12. We have analyzed the evidence of the prosecution as also the defence at length in order to test, whether the case of the prosecution is sound and fully established and that it does not suffer from any reasonable doubt. Upon such forensic analysis of the entire material evidence on record, we find that the prosecution witnesses 2, 3, 4 and 5 are all consistent in their testimony and specific to their claim that they were the eyewitnesses. The incident occurred at 5.00 pm on 14.11.2010, which is not a odd hour of the day or night. PWs-2, 3 & 5 were going to the market/coming from the market when they witnessed the incidence in front of the house of Somchand Singh Munda. PW-2 Amar Munda reached the place of occurrence on hearing shout and saw assault by his own eyes. PWs-2, 3 & 5 were going to the market/coming from the market when they witnessed the incidence in front of the house of Somchand Singh Munda. PW-2 Amar Munda reached the place of occurrence on hearing shout and saw assault by his own eyes. PW-4, wife of the deceased who was standing at the door of her house which is the near the house of Durga Charan Munda, immediately rushed to the place of occurrence on hearing shout and saw the accused assaulting the deceased with a ‘tangi’. The time of occurrence, manner of occurrence, place of occurrence and presence of these prosecution witnesses are duly established through their consistent testimony. All these witnesses have consistently stated that the deceased fell down on being injured and the accused fled away. The injured was taken to the hospital where he died during course of treatment. The evidence of eyewitnesses are duly corroborated by the medical evidence. External injuries found by the doctor (PW-7) during postmortem examination were on the head i.e. vital parts of the body. On internal examination, doctor has found diffuse contusion of whole scalp with crack fracture 10cm long of left parieto occipital bone, separation of coronal sutoresh and crack fracture extending to right parietal bone and contusion of brain and presence of subdural blood and blood clots on both sides of brain. In the opinion of the doctor also, death was caused due to these ante mortem injuries on the head and time elapsed since death was 3-11 hours, which corresponds to the statement of the prosecution witnesses. The defence suggestion that the injuries could have been sustained due to fall from the tree relying upon the statement of the doctor (PW-7) at para-4 of his cross-examination, have however not been proved. The defence has also not been able to show that the accused was suffering from unsoundness of mind prior to the occurrence, at the time of occurrence or just after the occurrence which entitled him to derive the benefit of exception under section 84 of the Indian Penal Code. Defence has not been able to discharge the onus, as required to claim the benefit of legal insanity under section 84 of the Indian Penal Code. In this regard, reliance is placed upon the judgment of the Apex Court in the case of Elavarasan Versus State Represented by Inspector of Police (2011) 7 SCC 110 . Defence has not been able to discharge the onus, as required to claim the benefit of legal insanity under section 84 of the Indian Penal Code. In this regard, reliance is placed upon the judgment of the Apex Court in the case of Elavarasan Versus State Represented by Inspector of Police (2011) 7 SCC 110 . 13. On consideration of the entire materials on record, we are thoroughly satisfied that the prosecution had been able to prove its case beyond shadow of all reasonable doubt. Findings of the learned Trial Court therefore, do not suffer from any error of law or mis-appreciation of evidence, which could render it perverse. As such, the appeal being without any merit, deserves to be dismissed. Accordingly, it is dismissed. Let the Lower Court Record be sent to the Court concerned. 14. While parting, we appreciate the assistance rendered by the learned Amicus Curiae during hearing of this case. His admissible legal remuneration should be borne by the Secretary, High Court Legal Services Committee on production of a certified copy of the judgment along with an application within a period of four weeks therefrom.