Jharkhand High Court
Diwakar Munda vs The State Of Jharkhand on 1 September, 2022
Author: Navneet Kumar
Bench: Navneet Kumar
1 Cr. Appeal (SJ).292 of 2005
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.292 of 2005
(Against the Judgment of Conviction and order of sentence dated
22.02.2005, passed by learned Additional Judicial Commissioner, Ranchi,
in S.T. No. 385 (A) /1985, arising out of Bundu P.S. Case No. 07 of 1985,
corresponding to G.R Case No. 46 of 1985)
1.
Diwakar Munda
2.
Mohan Munda
3.
Jogar Munda
4.
Nageshwar Munda
5.
Sanika Munda
6.
Ban Singh Munda
7.
Balchand Munda @ Malchand Munda
8.
Shiv Charan Munda ... Appellants
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Mr. Amit Kr. Choubey, Advocate
Mr. A.K. Chaturvedy, Advocate
For the State : Mr. JitendraPandey, A.P.P.
7/01.09.2022 This appeal is directed against the Judgment of Conviction and
order of sentence dated 22.02.2005, passed by the learned Additional Judicial Commissioner, Ranchi, in S.T. No.385 (A) /1985, arising out of Bundu P.S. Case No.07 of 1985, corresponding to G.R Case No.46 of 1985, whereby and where under it appeared that the learned court below ordered that all the appellants were convicted for the offence punishable under Sections 343, 147, 148 & 149 of the Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and they were sentenced to undergo rigorous imprisonment (hereinafter referred to R.I.) for 2 (two) years under Sections 343, 147, 148 & 149 of I.P.C under all the counts collectively and were also ordered to pay a fine of Rs.2,000/- (Rupees Two Thousands only) each and in default of payment of fine, the learned Court further directed them to undergo simple imprisonment (hereinafter referred to as the S.I.) for a period 2 Cr. Appeal (SJ).292 of 2005 of 3 (three) months and it was further directed that all the sentences would to run concurrently.
2. It is found from the record that the report was called for from the concerned Court with respect to the whereabouts of the appellants, which has been received from the officer In-charge, Dasamfall Police Station, Ranchi, which is kept on record at flag-X, by which, it appeared that two of the accused appellants namely Budulal Munda and Shivnath Singh Munda have expired and their death certificates have also been issued by the competent authority, by which it appears that the appellant Budulal Munda had expired on 20.07.2021, whereas the appellant Shivnath Singh Munda had expired on 28.01.2010 and the learned defence counsel appearing on behalf of the appellants submitted that since no close relative has come forward to continue with this appeal, it is urged on their behalf that let this appeal be abated with respect to the diseased appellants.
3. Leaned APP appearing on behalf of State submitted that on the basis of the report received; let this appeal be abated with respect to the deceased appellants as aforesaid.
4. Accordingly this appeal is abated with respect to the deceased appellants Budulal Munda and Shivnath Singh Munda by the operation of law, as no close relative has come forward to continue this appeal and therefore the name of the deceased appellants are dropped in the cause title of memo of appeal and the appellants in the present appeal are renumbered accordingly.
5. Now this appeal is heard on behalf of the rest of the appellants, who are alive.
6. The prosecution story arose in the wake of written report dated 06.02.1985 by the informant Sitaram Munda, S/o Late Rooplal Singh Munda addressed to the Officer in-Charge of Bundu Police Station. It was alleged that he had filed several cases of paddy theft 3 Cr. Appeal (SJ).292 of 2005 against his villagers Diwakar Munda and others which were pending in court. And in some cases the accused persons were absconding and proceeding u/s 107 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.) was going against them. About a week back he got information that Bundu Police was taking steps to arrest the accused Malchandra and Shivcharan but they fled away. It was further stated that on 03.02.1985, on Sunday, while he (the informant) and one Mahabir Munda, were going to Bundu and when they reached near the house of Malchandra Munda, then Malchandra Munda and Ban Singh Munda told him that they wanted to talk with him, for which they stopped. In the meantime, his co-villager Sanika Munda with a Lathi in hand, accused Shivnath Singh Munda, S/o Late Ghansirai Munda having Dauli in his hand and accused Shivcharan Singh Munda, s/o Karam Singh Munda having a Tabla in his hand appeared and after this the accused Balchand Munda and Shivcharan Munda told them (the informant and Mahabir Munda) to assault them and to kill because they were trying to get them arrested by the police. It was further alleged that accused Shivcharan Munda holding table hit on his head but he tilted back so it hit upon his face which caused some cut on it. It was also alleged that had he would not have turned back then his head and neck would have been cut out. Thereafter accused Malchand, Ban Singh and Sanika started assaulting him with lathi. Then the accused Shivnath Munda attempted to assault him with Dauli but he escaped and ran away towards his house. Thereafter the accused persons reached towards the northern side of his house and accused Budulal Munda, s/o Sri. Harshketu Munda and Diwakar Munda hurled arrow upon him with an intention to kill him. But he took shelter of the wall and escaped after this, he and Mahabir entered into his house and shut the door from inside. It was also alleged that accused Mohan Singh Muda s/o Sohrai 4 Cr. Appeal (SJ).292 of 2005 Munda tried to assault him by throwing lathi, upon him, but lathi could not hit his leg otherwise he would have died. After this he, his wife Sori Babi and Mahabir Singh Munda bolted all the doors with wood and remained inside the house. Thereafter he saw and heard the voice from the hole of the door that all the accused persons namely Malchand Munda, Ban Singh Munda, Sanika Munda, Shivnath Munda, Shivcharan Munda, Mohan Munda, Budulal Munda, Diwakar Munda, Nageshwar Munda, Jogar Munda, s/o Late Sinu Munda, Banmali Munda, s/o Khoda @ Sohrai Munda, all armed with weapons assembled outside his house and started knocking upon his door from western side and tried to cut the door by tangi. When they failed in breaking the door, they said that keep them inside the house and as soon they came out they should have been be killed or let them die inside the house without food and water. It was also alleged that he along with his wife and Mahabir remained confined inside the house and even attended the natural call inside the house, because had they come out of the house, the accused persons would have killed them. So they could not come out of his house on 03.02.85 and 04.02.85 because the accused persons were watching them from outside in shifts. It was also alleged that on 05.02.85, at about 10:00 pm, while they were on the brink of death the said Mahabir Munda managed to break open one small window of western side, and came out on which accused persons started assaulting him with fists and hand. In the meantime, he (the informant) and his wife managed to come out of his house and hide themselves in a bush and thereafter took shelter in the house of one Ghansi Munda in the night. It was also stated that in the night at about 9 pm, on being some peace at the instance of Ghansi Munda, Ajamber Munda and other 5 to 6 persons carried him and his wife to village Ulida where they spent the night in the house of one Bhupendra Oraon and explained all the incident to 5 Cr. Appeal (SJ).292 of 2005 him. Bhupendra Oraon informed him that the father of Mahabir Munda of village Sirkadih had also come in search of him and gone to his house. But on 03.02.1985 his aunt Most. Tilotma w/o Late Shyam Rai Munda had also gone to his house as guest but when he saw the incident, she stayed in the night in the house of his neighbour Navo Krishna Munda and in the morning she returned. It was also alleged that accused persons were belonging to C.P.M. Party and in order to finish him and his family they committed the above incident.
The above written report was received by Officer in-Charge Bundu at village Ulida on 06.02.1985 and thereafter a case was registered under Sections 147, 148, 149, 324, 307, 323 and 343 of the I.P.C. on the same day bearing Bundu P.S. Case No.07/1985. After investigation into the matter, the police submitted the charge- sheet on 20.04.1985 against all the accused persons under the same sections and accordingly, cognizance was taken and thereafter the record was committed to the court of sessions for trial and the charge was framed under Sections 343 and 307 of the I.P.C. against all the accused persons, while accused Shivcharan was also charged under Sections 148 and 324 of the I.P.C. Similarly accused Balchand, Sanika and Bansingh were also charged under Sections 147 and 323 of the I.P.C. on 13.11.1986, to which, they pleaded not guilty, which culminated into trial and learned trial court after full-fledged trial, passed the impugned judgement of conviction and order of sentence, which is under challenge.
7. Heard learned defence counsel Mr. Amit Kumar Choubey, appearing on behalf of the appellants and learned APP Mr. Jitendra Pandey appearing on behalf of the state.
Arguments advanced on behalf of learned counsel for the appellants
8. Assailing the impugned judgement of conviction and order of sentence, the learned defence counsel appearing on behalf of the 6 Cr. Appeal (SJ).292 of 2005 appellants submitted that the learned trial court has not properly scrutinized the statements of the witnesses and had given the findings contrary to the materials available on record. It has also been pointed out that the Investigating Officer (hereinafter referred to as the I.O.) in this case has not been examined and due to non- examination of the I.O., the place, date and time of occurrence have not been formally proved and the doctor in the case has also not been examined and the injury report brought on record by P.W.10, which is not admissible in evidence, because the same has been brought on record by a formal witness P.W.-10 and had not been legally proved, even the F.I.R. and the written report have also not been proved properly as Ext. 1 and 2 respectively as brought on record by the formal witness P.W.-10 which are also not admissible in evidence because of the non-examination of the I.O. The prosecution has only brought on record Ext.1, which is the fardbeyan, to prove its case, but has failed miserably to corroborate the charges alleged, and even though, in absence of cogent evidences on record, the accused appellants had to face the fate of conviction. The learned counsel has further stated that the learned trial court had also not taken into consideration that the witness who have been examined and supported the prosecution case have contradicted the statement of the witnesses inter-se on the material points and there are vital contradictions in their statements. Further, he has submitted that the learned trial court has convicted the appellants for the offence of wrongful confinement, which is punishable u/S.343 of the I.P.C. only when the period of confinement is of 3 (three) or more days, but nowhere in the records it appeared or is proved that the informant's people were in confinement for 3 (three) or more days and therefore, this is a vital point which has escaped from the insightful eyes of the learned trial court. Therefore, due to abovementioned reasons, the impugned judgement of conviction 7 Cr. Appeal (SJ).292 of 2005 and order of sentence is bad in law and fit to be dismissed. Arguments advanced on behalf of learned counsel for the State
9. On the other hand learned APP appearing on behalf of the State opposed the contentions raised on behalf of the learned counsel for the appellants and submitted that since the eyewitness informant Sitaram Munda (P.W.-1), Mahabir Singh Munda (another victim-eyewitness (P.W.2)), Akhil Singh Munda (P.W. 4), Tilo Mundain (P.W. 5), Lakhiya Munda (P.W. 7), Ghasia Munda (P.W. 8) and Navo Kisto Munda (P.W. 9) have consistently and uniformly supported the case of prosecution and therefore the depositions are falling in line with the allegations as made out in the F.I.R. and therefore the non-examination of the I.O. has not caused prejudice to this case as also the appellants were convicted in the minor offences punishable under section 147, 148, 343 and 149 of the I.P.C.
Appraisal & Findings
10. Having heard learned counsels for both the sides, perused the record including the lower court records.
11. It is found that it is an admitted case of the prosecution that both the parties were on inimical terms and informant (P.W. 1 - Sitaram Munda) had categorically accepted this fact in the F.I.R. itself that a number of cases were instituted against accused appellants for several criminal offences including theft etc. and hence in the light of the admitted enmity between both the parties, it is well settled principle of law that enmity is a double edged weapon and the possibility of committing the offence and also the possibility of false implications are imminent and therefore in this background this court proceeds to appraise the evidence available on record carefully and cautiously.
12. In order to substantiate its case, the prosecution has been able to examine all together 10 witnesses, which are as under:-
1. P.W.- 1 Sitaram Munda (the informant), 8 Cr. Appeal (SJ).292 of 2005
2. P.W.- 2 Mahabir Singh Munda,
3. P.W.- 3 Soro Babi (wife of the informant),
4. P.W.- 4 Akhil Singh Munda,
5. P.W.- 5 Tilo Mundian,
6. P.W.- 6 Abhiram Mahto,
7. P.W.- 7 Lakhiya Munda,
8. P.W.- 8 Ghasia Munda,
9. P.W.- 9 Navo Kisto Munda&
10. P.W. - 10 Banwari Lal Jaiswal (formal witness).
No evidence has been produced on behalf of the appellants.
13. The allegations as set out in the F.I.R. are that the informant's people were going to Bundu and when they reached near the house of Balchand Munda, he called them to his house where all the accused persons had also assembled and formed an unlawful assembly armed with lethal weapons and attempted to kill by lethal weapons, like tabla, bow & arrow, lathi, etc. and the informant escaped somehow and took shelter in the house, but the accused persons had surrounded his house, who were large in number and kept themselves confined in the house for two days and thereafter, he, his wife and one Mahabir Munda had managed to escape somehow and hide themselves and took the shelter in the house of Ghasia Munda. Pertaining to these allegations and charges, the appellants were convicted for the offence punishable under sections 343, 147, 148 & 149 of the I.P.C.
14. In this background, it is found that P.W. -1 SitaramMunda has proved the written report which has been marked as Ext. 1 and he, in his Examination-in-Chief fully supported the case of the prosecution and specifically named all of the appellants and stated that his house was surrounded by them and one Mahabir Munda, his (informant's) wife and he himself were confined for two days and thereafter after breaking the door of the house, escaped from the house and hide 9 Cr. Appeal (SJ).292 of 2005 himself and his nephew Mahabir Munda had escaped after breaking the small window.
15. The learned defence counsel pointed out that it was highly improbable of confining the victims continuously for two days and thereafter they stated that by their own efforts, they have escaped after breaking the door and window of the house. I find force in the submission advanced on behalf of the learned defence counsel to the extent that the confinement for two days is highly improbable, but the facts remain to take into consideration that the allegations as set-out in the FIR that accused appellants had assembled themselves and surrounded his house and kept him in their house confined for a long period of time have been consistently and uniformly deposed and this version of P.W.1 has been fully supported by P.W. 2- Mahbir Singh Munda, who was also the victim and he also remained confined in the same house, which was surrounded by these appellants and he escaped after breaking the window. The attention of both the witnesses P.W. 1 and P.W. 2 have been drawn of their earlier statements recorded under section 161 of the Cr.P.C., but since the I.O. in the case has not been examined and therefore the veracity of these witnesses and truthfulness of the version of the fact about the confinement for two days could not be ascertained, but both the witnesses viz. P.W. 1 and P.W. 2, who were the victims, consistently and uniformly deposed that they were confined in a room and therefore instead of the offence punishable under section 342 of the I.P.C. , the learned trial court has erred in convicting the appellants for the offence punishable under section 343 of the I.P.C., inasmuch as it is a case where the charges are getting proved for the offence punishable under section 342 of the I.P.C.
16. P.W. 3-Soro Babi (another victim) was tendered for the reason best known to the prosecution.
17. P.W. 4-Akhil Singh Munda, no doubt, he is also relative to the 10 Cr. Appeal (SJ).292 of 2005 victim P.W. 1, but he had supported the case of the prosecution that the victim P.W.-1 and P.W.-2 were confined in his (informant's) house by accused persons assembled collectively around the house and similarly P.W.5 - Tilo Mundain, P.W. 7- LakhiaMunda and P.W. 8 - Ghasia Munda have supported the act of the appellants to the effect that P.W.-1 and P.W.-2 were confined in the house by these appellants.
18. P.W.6- Abhiram Mahto had also been tendered.
19. P.W. 8- Ghasia Munda is the person, where the victim P.W.1 after escaping from the house had taken shelter and he has fully corroborated the version of the victim P.W.1 (Sitaram Munda).
20. P.W.9- Navo Kisto Munda, the neighbour of the P.W.-1, has deposed that on the date of occurrence, on hearing alarm (hulla), he came out of his house and saw that the accused persons had assembled there and had surrounded the informant's house from all the four corners and were threatening to kill him. He also deposed that P.W.5- the aunt of the informant came to visit P.W.1, but on seeing the situation, she decided to spend that night at his (P.W.9) house itself. Therefore, this witness has also supported the version of the prosecution to the extent of surrounding the P.W.1's house by the accused persons.
21. P.W. 10 - Banwari Lal Jaiswal is a formal witness, who has proved the formal F.I.R, which is Ext.-2 and the injury report, which is marked as Ext.3. Since the doctor in this case has not been examined, the injury report has not been duly proved nor any allegation has been made about the injury inflicted by any one of the appellants and learned trial court has rightly appreciated the evidences in this regard.
22. In view of the evaluation of the testimonies of the witnesses as above, it is well founded that all the witnesses examined on behalf of the prosecution, particularly the victim P.W.1 and P.W.2 had consistently and uniformly deposed that these appellants had surrounded the house and they were confined and later on after 11 Cr. Appeal (SJ).292 of 2005 breaking the window and door they escaped from the house. Although, due to the non-examination of the I.O., it could not be proved beyond doubt that these appellants were armed with lethal weapons, as disclosed and presented in the F.I.R. which included tabla, bow & arrow, lathi, etc. and the victims kept confined for two days, but their depositions clearly established the fact that they were confined in the house by an unlawful assembly consisting all the accused appellants and therefore the learned trial court has partly committed error in convicting the appellants for the offence punishable under sections 148 and 343 of the I.P.C. read with 149 of the I.P.C. and this Court after considering the evidences in holistic manner, alters the conviction of the appellants, and holds them guilty for the offence punishable under sections 147 and 342 read with 149 of the I.P.C.
23. So far as the sentence is concerned, it is found that all the appellants over a period of time have reached to their old age as in view of the fact that the alleged incident had taken place as far back as in the year 1985, about more than 35 years ago. It is also an admitted fact that both the parties were on inimical terms and these appellants had been suffering from the trauma and misery of the criminal prosecutions since more than 35 years and therefore no useful purpose is served by sending the appellants again in jail and therefore instead of awarding the sentence of imprisonment, the ends of justice would be meted out if they are awarded the sentences of imprisonment for a term of the period already undergone by them and also a sentence of fine to a sum of Rs.1000/- (Rupees One Thousand only) collectively by all the appellants in both the counts that is under sections 147 and 342 r/w S. 149 of the I.P.C.
24. Accordingly, this Court imposes sentence of imprisonment to all the accused appellants for a term of the period already undergone by them and further imposes a sentence of fine of Rs. 1,000/- (Rupees One Thousand Only) under sections 147 and 342 r/w S. 149 of the I.P.C 12 Cr. Appeal (SJ).292 of 2005 by setting aside the order of sentence imposed by the learned trial court for the offence punishable u/ss. 343, 147, 148 and 149 of the I.P.C.
25. Since, the appellants are on bail and, therefore, a time period of 3 (three) months is given to the appellants from today to make payment of fine of Rs. 1,000/-(Rupees One Thousand Only). The appellants may deposit the fine amount through the Nazarath of the concerned Civil Court.
26. It is further directed that in case of default of payment of fine amount of Rs. 1,000/-(Rupees One Thousand Only), each of the appellants will serve the sentence of Simple Imprisonment for a period of 6 (six) months. The learned trial court is directed to ensure that the said fine amount is deposited within the stipulated period of time, and if the same is not deposited by the appellants collectively as awarded by this court within the stipulated period of time, they will serve the sentence as awarded in case of default of payment of fine by taking all necessary measures as per the provisions of law.
27. At the moment they deposit the fine amount they (appellants) shall be released forthwith on deposit of said fine amount and they shall be discharged from the liabilities of bail bonds accordingly.
28. The appeal is partly allowed as above.
29. Let the Lower Court Record be sent back forthwith to the concerned court below along with the copy of judgement for its compliance and needful.
(Navneet Kumar, J.) Jharkhand High Court, Ranchi, Dated the 01.09.2022/NAFR R.Kumar/-