Jharkhand High Court
Sambat Singh Munda And Ors. vs State Of Bihar on 1 October, 2004
Equivalent citations: 2005CRILJ1776, [2004(4)JCR346(JHR)], 2005 CRI. L. J. 1776, 2005 AIR - JHAR. H. C. R. 593, (2004) 2 JCJR 243 (JHA), (2004) 4 JLJR 526
Author: Vishnudeo Narayan
Bench: M.Y. Eqbal, Vishnudeo Narayan
JUDGMENT Vishnudeo Narayan, J.
1. This appeal at the instance of the appellants stands directed against the impugned judgment and order dated 12.4.1996 and 17.4.1996 respectively passed in S.T. No. 346 of 1994, Trial No. 119 of 1994 by Smt. Shakuntala Sinha, Additional Judicial Commissioner. Khunti (Ranchi) whereby and they found guilty for the offence punishable under Section 302/34 of the Indian Penal Code and they were convicted and sentenced to undergo rigorous imprisonment for life.
2. The prosecution ease has arisen on the basis of the written report (Ext. 2) of PW 3 Budhram Singh Munda. the informant, lodged before the Officer Incharge, Tamar police station on 17.11.1993 at 20.00 .hours regarding the occurrence which is said to have taken place on that very day at 13.00 hours at Lawaikir, police station Tamar Sub-Division Khunti, District Ranchi. Bansidhar Munda is the deceased in this case and he was engaged by the informant for cutting wood on the alleged day of the occurrence. A case was instituted by drawing of a formal FIR (Ext. 4) against the appellants on that very day at 20.00 hours. The written report and the formal FIR have been received on 22.11.1993 in the Court empowered to take cognizance.
3. The prosecution ease. in brief, is that the informant went to the house of PW 5 Budhanlal Singh Munda at about 10.00 hours on 17.11.1993 with his bullock cart along with his labourers namely, Mahar Singh Munda resident of village Murgidih and Bansidhar Singh Munda (deceased in this case) resident of village Burukandey and the informant asked PW 5 Bhudanlal Singh Munda to show the tree. It is alleged that PW 5 Budhanlal Singh Munda came to Lawaikir with the informant and his two labourers aforesaid to show the tree which was to be cut. It is alleged that the informant along with his two labourers cut the branches of the said Asan tree and loaded the wood on the bullock cart aforesaid. The prosecution case further is that all appellant aforesaid along with co-accused Dolgovind Singh, Arjun Singh and Dubal Singh. all residents of village Barukandey came there variously armed with lathi and farsa and they asked the informant to stop the bullock cart and on query they told that they have some work with Bansidhar Singh Munda and they further asked the informant to proceed ahead with the bullock cart and at this the informant again asked as to what sort of work they have with Bansidhar Singh Munda and at this co-accused Dolgovind Singh Munda uttered that Bansidhar Munda it to be done to death. It is alleged that the informant request them Lo allow Bansidhar Singh Munda to go with him as he has employed him for the day for wood cutting but his request went in vain. The prosecution case further is that co-accused Dolgovind Singh Munda directed appellant Sambat Singh Munda to commit the murder of Bansidhar Singh Munda and at this appellant Sambat Singh Munda gave a blow on the neck of Bansidhar Singh Munda by farsa as a result of which an injury was caused on his neck and thereafter the remaining appellants and other co-accused persons started assaulting him by lathi and farsa. It is alleged that the informant along with PW 5 Budhanlal Singh Munda and his labourers Mahar Singh Munda proceeded to their respective villages with the bullock cart and the informant narrated the incident to the residents of his village Barudih besides PW 6 Haldhar Hazam, the chowkidar. going to his village Kurkutta and thereafter the informant long with the chowkidar and some co-villagers came to the place of occurrence at Lawaikir and from there he went to the police station directing his co-villagers and the chowkidar aforesaid to keep vigil on the dead body.
4. Charge-sheet has been submitted in this case only against the appellants aforesaid. The appellants have pleaded not guilty to the charge levelled against them and they claim themselves to be innocent and to have committed no offence and they have been falsely implicated in this case due to enmity. It has also been contended by appellants Sambat Singh Munda and Panda Singh Munda that on the day of the occurrence they had gone to attend the funeral of the son of PW 8 Kanto Singh Munda and it has been contended by appellant Bolai Singh Munda that he has been falsely implicated in this case as he is sister's son of co-accused Dolgovind Singh Munda and he has never gone to Lawaikir on the day of the occurrence.
5. The prosecution has examined, in all. 9 witnesses to substantiate its case. PW 3 Budhram Singh Munda is the informant of this case and he is a native of village Barudih. He has proved his written report (Ext. 2) scribed at his instance by DW 1 Ajamber Singh Munda which contains his signature thereon, PW 5 Budhanlal Singh Munda is the owner of the Asan tree situate at Lawaikir. the branches of which were cut by the informant with the help of his two labourers i.e. Mahar Singh Munda and Bansidhar Singh Munda (the deceased of this case) PW 6 Haldhar Hazam is the chowkidar of village Barudih and Barukandey and he is a resident of village Karukutta and he is hearsay witness of the alleged occurrence. PW 8 Kanto Singh Munda and PW 9 Kisku Mohan Singh Munda are the resident of Barukandey Tola Jeko Dakal and PW 8 has turned hostile whereas PW 9 is hearsay witness. PW 1 Bidur Singh Munda and PW 2 Ranjit Singh Munda are residents of village Sumandari and they are the witnesses of the inquest report and the seizure list and their signatures thereon are Ext. 1 series and they are also the hearsay witnesses of the occurrence in question to have learnt about the same from PW 3, PW 4. Dr. Tuisi Mahto has conducted the post-mortem examination on the dead body of the deceased and the post-mortem report per his pen is Ext. 3 in this case. PW 7, S.I. Suraj Prasad is the investigating officer of this case and he has proved the formal FIR (Ext. 4) seizure list (Ext. 5) and the inquest report (Ext. 6) DW 1 Ajamber Singh is a formal witness. DW 2 Narayan Singh Munda has proved the voter list (Ext. A) to evidence the fact that deceased of this case originally the resident of village Barukandey. It is relevant to mention here that Mahar Singh Munda who was present at the place of occurrence at the relevant time, has not been examined in this case for the prosecution for the reasons best known to it.
6. In view of the oral and documentary evidence on record and relying upon the testimony of PW 3, the informant, the learned Court below came to the finding of the guilt of the appellants and accordingly convicted and sentenced them as stated above.
7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that the learned Court below did not scan and scrutinise the evidence on record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants. It has been contended that the solitary ocular testimony of PW 3, the informant is replete with inherent, improbabilities and material inconsistencies regarding the alleged place, time and manner of occurrence and in view of the admitted enmity he has falsely roped the appellants in this got-up case to feed fad his grudge and vendetta and Mahar Singh Munda who was employed for cutting of the wood and was present at the alleged place of occurrence has been deliberately withheld and no explanation is forthcoming on the record in respect thereof and as such the uncorroborated testimony of the informant in the facts and circumstances of tills case is fit to be brushed aside and also an adverse inference has to be drawn against the authenticity of the prosecution ease due to the non-examination of Mahar Singh Munda in this case for the prosecution. It has also been submitted that even PW 5, the owner of the Asan tree who is said to be present at the place of occurrence does not at all support the prosecution case. it has also been submitted that the inquest report reveals the existence of the solitary injury on the neck of the deceased whereas PW 4 the medical witness has found three incised wounds i.e. on the neck, face near the nose and lateral side of the right wrist and the inherent, inconsistenncy and material contradiction appearing in the inquest report and the postmortem report of the deceased cast a cloud of suspicion to the very credibility of the texture of the prosecution case and at the same time it belies the manner of occurrence as averred in the written report and also as deposed by PW 3, the informant. It has also been contended that testimony of PW 6, the chowkidar also creates reasonable suspicion regarding the authenticity of the prosecution case. It has further been contended that PW 7 has properly conduced the investigation and he did not verily the tree, the branches of which were cut at Lawaikir and besides that the bloodstained earth and clothes of the deceased were not examined by the forensic expert for the reasons best know to the prosecution. It has further been submitted that the FIR and the written report have been received on 22.11.1993 in the Court empowered to take cognizance and no explanation is forthcoming on the record regarding the inordinate delay in respect thereof and as such the written report of the informant is ante-timed as a result of afterthought, deliberation and consultation at the instance of the informant and furthermore there is no explanation on the record as to why the written report has been lodged before the concerned police station after the delay of 9.00 hours and this aspect of the matter creates genuine doubts regarding the authenticity of the prosecution case. Lastly it has been submitted that the defence version that the appellants were present in the funeral of the son of PW 8 at the relevant times stands admitted by the prosecution witness and in this view of the matter the defence version appears to be natural and probable in the facts and circumstances of this case and the appellants have been falsely implicated in this case due to enmity existing and alive between the informantion the one hand and the appellants on the other hand and viewed thus, the impugned judgment is unsustainable.
8. In contra, it has been submitted by the learned APP that PW 3, the informant was present at the place of occurrence and he has the opportunity to witness the occurrence and his testimony is trustworthy and the learned Court below has rightly relied upon the testimony of the informant for coming to the finding of the guilty of the appellants and as such there is no illegality in the impugned judgment requiring any interference therein.
9. There is no denying fact that Bansidhar Munda, the deceased of this case was originally the inhabitant of village Barukandey. Ext. A. the voter list read with the testimony of DW 2. PW 1 and PW 2 is . referred to in respect thereof. The said deceased had left the village Barukandey and shifted his residence to village Barudhi along with his wife and he was residing in the house of Dalpati Madhav Singh. PW 1 in paragraph 7 of his evidence has deposed that the deceased was ousted from village Barukandey at the instance of the villagers. However. DW 2 has deposed that the deceased with his parents was residing in the house of DW 1 Ajamber Singh for the last 8 or 10 years in village Barudih. There is evidence on the record to show that village Barudih is one and half kilometers north of village Barudih and Lowaikir which is said to be the place of occurrence of this case is situated in the east of village Lsarukandcy at a distance of about two kilometers and it is a forest and it is known as Lawaikir jungle without any habitation and house. Appellants Sambat Singh Munda. Panda Singh Munda besides non scnl up co-accused Dolgovind Singh Munda. Arjun Singh and Deba Singh Munda are the residents of village bai-ukandey whereas appellant Bolai Singh Munda is a resident of village Pundidiri and he is the son of the sister of Dolgovtnd Singh aforesaid. According to PW 3. he was residing in village Barukandey. The deceased was by profession a labourer. Admittedly, PW 3 Budhram Singh Munda. the informant is the resident of village Barudih and PW 5 Budhan Lal Singh Munda is said to be the owner of the Asan tree in question and he is the resident of village Barukandey. It is relevant to mention at this stage that there was enmity existing and alive between the informant on the one hand and the appellant besides, nan sent up co-accused persons on the other hand prior to the occurrence in question. PW 6 in paragraph 4 of his examination-in-chief has categorically deposed that there was animosity between the informant and the appellant prior to the occurrence and the said animosity was in respect of Lal Jhanda Party (CPM). Pie has further deposed in his cross-examination that the appellants are the members of Congress Party, His evidence is further to the effect that PWs 8 and 9 are also the members of the MCC. PW 8 in paragraph 3 of his evidence has also deposed that there was dispute between the informant on the one hand and the appellants on the oilier hand in respect of land and the said disputed land was owned by non- sent-up co-accused Dolgovind Singh. Even PW 7, the 10 in paragraph 6 of his evidence has testified in fact of existence of ease and counter case between the informant and the appellants prior to the occurrence.
10. It will admit of no doubt that the deceased was done to death on 17.11.1993 in Lawaikir and his dead body was found there. PW 7, the 10 has deposed to have prepared the inquest report (Ext. 6) of the dead body of the deceased on 18.11.1993 at 7.00 hours at Lawaikir in presence of PWs 1 and 2 besides PW 6. The 10 has also deposed to have seized bloodstained earth from that place and has prepared a seizure list (Ext. 4) in respect thereof and has sent the dead body of the deceased for post-mortem examination, PW 4 Dr. Tuisi Malito has deposed to have conducted the post-mortem examination on the dead body of the deceased on 19.11.1993 at 12,30 hours and had found the following ante-mortem injuries on the dead body of the deceased :
(i) incised wounds 12 cm. x 4 cm. x bone deep on the back of the neck situated transversaly cutting the soft tissue, blood vessels, fourth cervical vertebrae, including spinal cord and esophagus completely and trachea partially,
(ii) Incised wounds 15 cm. x 3 cm. x bone deep and 14 cm. x 3 cm. x bone on the right side of face starting from right, mastoid region to the bridge of the nose cutting the underlying bone and both the injuries are situated 1 cm. apart and parallel to each other: and
(iii) incised wounds 3 cm. x 1 cm. x soft issue deep on the right wrist lateral side.
The medical witness has further deposed that the aforesaid injuries were caused by heavy sharp cutting weapon, may be by farsa and the death of the deceased is clue lo the aforesaid injuries which were sufficient to cause the immediate death of the deceased. He has also deposed that the lime elapsed since death is within 18 to 48 hours from the time of the post- mortem examination. It is relevant to mention here that the inquest report (Ext. 6) reveals the existence of solitary injury on the back of the neck of the deceased. PW 7. the 10 has deposed in paragraph 2 of his evidence that he has seen the dead body of the deceased having injury on his neck. He has further deposed that the neck of the deceased was not completly severed from his trunk, PWs 1 and 2 have testified that fact in their testimony that. the 10 has prepared the inquest report (Ext. 6) in their presence after seeing the dead body of the deceased. It appears queer enough as to how PW 7 failed to notice injury Nos. 2 and 3 aforesaid on the dead body of the deceased as found by the medical witness. Injury Nos. 2 and 3 aforesaid were on prominent part of the dead body of the deceased and in the normal course one cannot miss to notice the existence of injury Nos. 2 and 3 aforesaid appearing on the person of the dead body of the deceased. Therefore, there is inherent material contradiction and inconsistency in the post-mortem report and the inquest report as well as in the testimony of the medical witness and PW 7. the 10 in respect thereof. The said inherent inconsistency creates reasonable suspicion to the authenticity of the warp and woof of the prosecution case in respect thereof and the truth of the matter stand shrouded in mystery in respect thereof. The said reasonable doubt and suspicion further becomes strengthened as per the testimony of PW 6, the village chowkidar. PW 6 has deposed that PW 3, the informant came to his village Kurkutta and informed him at about 10 O'clock on 17.11.1993 regarding the commission of the murder of the deceased by only the three appellants and the dead body of the deceased has been brought to village Barudih from Lawaikir. His evidence is further to the effect that he went to village Barudih where he saw dead body of the deceased at 11.00 hours on that day. He has further deposed that he remained with the dead body in village Barudih and PW 3 went to the police station. He has further deposed that he had kept watch on the dead body of the deceased for the whole day on 17,11.1993 and also in the said night and on the following day i.e. 18.11.1993 the 10 came to village Barudih at about 7.00 or 8.00 hours and at the instance of PW 3. the informant, the dead body was taken to Lawaikir jungle where the occurrence is said to have taken place. He has further deposed that the dead body of the deceased was carried from village Barudih to Lawaikir by PW 3, the informant assisted by PWs 1 and 2. PW 6 has further deposed that the 10 has prepared in the inquest report in his presence at Lawaikir forest. However, the testimony of PW 7, the 10 neither corroborates nor controvert. the testimony of PW 6. the village chowkidar in respect there of. The 10 in paragraph 3 of his evidence has simply deposed that neither the chowkidar nor any witness has reported to him that the deceased was brought to village. Therefore. in the facts and circumstances of this case, it stands shrouded in mystery as to how two incised wounds 15 cm. x 3 cm. x bone deep and 14 cm. x 3 cm. x bone deep on the right side of the face paralled to each other and one incised wound 3 cm, x 1 cm, x soft tissue deep on the wrist lateral side on the dead body of the deceased have come to exist and this aspect of the matter goes at the very root of the prosecution case casting a cloud of suspicion to its credibility.
11. Let us now scan and scrutinise the solitary ocular testimony of PW 3, the informant with due care and caution in view of the admitted enmity between the informant on the one hand and the appellants and non-sent-up-co-accused persons on the other hand, PW 3 has deposed that lie had gone to village Barudih with this bullock cart along with Mahar Singh Munda and Bansidhar, Singh Munda to bring wood at the house of PW 5 Budhanlal Munda from whom he has purchased the wood. His evidence is further to the effect lliat PW 5 went with him along with Mahar Singh Munda and Bansidhar Singh Munda to Lawaikir forest where he has shown the tree, which was to be cut. He has also deposited that thereafter the branches of the said three was cut and wood was loaded on the said bullock cart. in paragraph 6 of ills cross- examination, he has deposed that he had purchased the said three from PW 5 prior to the occurrence which he had gone to cut on the day of the occurrence and only the branches of the said tree was cut. He has also deposed that he has reached to the said tree at about 11 or 12 O'clock in the day it took one hour in cut-Ling the branches of the said tree. PW 5 Budhanlal Singh Munda has deposed that lie has sold the branches of his tree to the informant a day or to Diwali festival and the informant along with his labourers had come to his house with a bullock cart and lie went with them to village Lowaikir and sliowed him the said Asan tree and thereafter he returned to his village. He has also deposed that he heard about the murder of Bansidhar Singh Munda but he does not know as to how he has been murdered, PW 2 in paragraph 4 of his evidence has deposed that he had seen the said tree completely cut and fallen on the ground when he had gone to the place of occurrence at village Lowaikir, The evidence of his witness thus contradicts the testimony of PW 3, the informant in respect thereof. PW 4. the village chowkidcu' in this evidence has also not whispered regarding the fact that he had seen the severed Asan tree at the place of occurrence or the wood of the said tree carried by the informant on the bullock cart to his village Barudih. PW 7, the 10 is also conspicuously silent in his objective finding regarding the existence of the served tree at the place of occurrence as well as the wood of the said tree having been carried by the informant on his bullock cart to his village Barudih. The 10 in paragraph 4 of his evidence has deposed that the has not mentioned in the case ' diary regarding the severed tree or the wood of the said tree taken by the informant to his village in his case diary. There is evidence of PW 3. the informant that he had gone to village Lawaikir for cutting wood of the said tree with his two labourers including the deceased on the day of occurrence lacks credence and there appears no ring of truth in respect thereof. PW 3 has further deposed that when he was to proceed to his village with the wood on the bullock cart along with his two labourers aforesaid all the appellants along with co-accused Dubar and others whose name he does not remember came there armed with lethal weapons and appellant Sambat Singh Munda was armed with farsa and the rest were armed with lathi and farsa and they asked him to stop the bullock cart and on his protest they told that they have no work with him rather their work is with Bansidhar Singh Munda as they have to commit his murder. He has further deposed that they assaulted Bansidhar Singh Munda by farsa at Lawaikir and appellant Sambat Singh Munda gave at blow by farsa on the neck of the informant in his presence and the rest of them assaulted Bansidhar Singh Munda with farsa and lathi. He has further deposed that the blow given by farsa by appellant Sambat Singh Munda caused injury on the neck of the deceased and he fell and died. In paragraph 7 of his cross-examination, he has deposed that appellants Sambat Singh Munda and Panda Singh Munda were armed with farsa and the rest were armed with lathi. It is equally pertinent to mention here that no injury on the person of the deceased was found cither in the inquest report or in the post-mortem report caused by any hard and blunt substance such as lathi. PW 3 has not categorically stated that appellant Panda Singh Munda has assaulted the deceased causing injury on his face and hand. Mahar Singh Munda was present at the place of occurrence as per the testimony of PW 3 read with PW 5 and he was also employed for cutting the wood by the informant. This Mahar Singh Munda has not been examined in this case for the prosecution. He is the only independent witness of the alleged occurrence as he has no motivated axe to grind against the appellants. No explanation if forthcoming on the record as to why this Mahar Singh Munda has been withheld by the prosecution in this case. Therefore, an adverse inference has to be drawn against the authenticity of the prosecution case due to his non-examination in this case for the prosecution. Therefore, the solitary testimony of PW 3, the informant, uncorroborated in material particulars due to non- examination of Mahar Singh Munda, said to be the most competent natural and independent witness of the occurrence, does not inspire confidence in the facts and circumstances of this case. The existence of solitary injury on the neck of the deceased as per the inquest report read with the evidence of the 10 further creates reasonable doubts regarding the manner of the occurrence in question. There is also no iota of evidence on the record to show that the appellant have any semblance of enmity with the deceased for committing his murder. Therefore, the false implication of the appellants in this case cannot be totally rule out in the facts and circumstances of its case coupled with the inherent improbabilities regarding the manner of the occurrence besides material contradiction and inconsistency appearing in the evidence of PW 7 read with inquest report regarding the existence of the solitary injury uisaruis the existence of three injuries as per the evidence of the medical witness coupled with post-mortem report. PW 8 has categorically deposed in paragraph 3 of his evidence that his son had died on the day of the occurrence and all the appellants had attended the funeral of his son. There appears no reason to discredit the testimony of PW, 8 in respect thereof and viewed thus the defence version appears to be natural and probable in the facts and circumstances of this case. And last but not the least, according to the prosecution, the occurrence is said to have taken place on 13.00 hours on 17.11.1993.
The distance of the police station at Tamar is only 12 Kms. from the place of occurrence. The written report was lodged before the Tamar police station at 22.00 hours on the day. It, therefore, appears that there is a delay of nine hours in lodging of the written report regarding the occurrence in question by the informant. No explanation is forthcoming on the record, in respect thereof. The case was instituted by drawing of a formal FIR (Ext. 4) at 22.00 hours on 17.11.1993 itself. But the formal FIR along with written was received on 22.11.1993 in the Court empowered to taken cognizance. Ex, 4 shows that the formal FIR and the written report were despatched to the Court empowered to take cognizance by special messenger on 17.11.1993. There is not iota of legal evidence on the record explaining, as to why they were received in the Court on 22.11.1993 i.e. on the 5th day of the institution of the case. FIR in a criminal case and particularly in a murder case is a vital and valuable of evidence for the purpose of appreciating the evidence led at the trial. The object of the insisting upon the prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed including the names of the actual culprits and the part played by them, the weapons, if any, used as also he names of the eye witnesses, if any and delay in lodging the FIR often result in embellishment which is a creature of an afterthought and on account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story.
The FIR if is received late in the Court, it can given rise to an inference that the FIR was not lodged at the time, it is alleged to have been recorded and the facts and circumstances are indicative of the fact that FIR came to the recorded later on after due deliberation and consultations and it was ante-timed, unless of course, the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the FIR by the local Magistrate. In this case the prosecution has failed to furnished by explanation whatsoever in respect thereof. Furthermore, Section 157 of the Cr -PC casts a duty upon the 10 to forthwith send the report of the cognizable offence to the concerned Magistrate empowered to take cognizance. I am fortified in my view in respect thereof as per the ratio of the cases of Maharaj Singh v. State of U.P. (1994) 5 SCC 188 and Jang Singh and Ors. v. State of Rajasthan, (2001) 9 SCC 704. I. therefore, see substance in the contention of the learned counsel for the appellants in respect thereof. There is no legal evidence on the record to establish the guilt of the appellants beyond all reasonable doubts. The learned Court below has failed to scan and scrutinise the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants and viewed thus, the impugned judgment is unsustainable.
12. There is merit in this appeal it succeeds. The appeal is hereby allowed and the impugned judgment is set aside. The appellants are found not guilty and they are accordingly acquitted and discharged from the liabilities of their bail bonds.
M.Y. Eqbal. J.
I agree.