Judgment:
1 Criminal (Jail) Appeal (D.B) No.396 of 2005 ---- Against the judgment of conviction dated 3.9.2002 and order of sentence dated 4.9.2002 passed by 3rd Additional Judicial Commissioner, Khunti, Ranchi in S.T.No.33 of 1992. Nitai Munda..............................................................................Appellant VERSUS State of Jharkhand............................................................... Respondent For the Appellant: Mr.Bhola Nath Rajak, A.C. For the State : Mr.Ravi Prakash, APP P R E S E N T THE HON'BLE MR. JUSTICE R.R.PRASAD THE HON'BLE MR. JUSTICE PRAMATH PATNAIK By Court: This appeal is directed against the judgment of conviction dated 3.9.2002 and the order of sentence dated 4.9.2002 passed by the then 3rd Additional Judicial Commissioner, Khunti, Ranchi in S.T. No.33 of 1992 whereby and whereunder the court having found the appellant guilty for committing murder of Doma Munda convicted him for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. The case of the prosecution is that on 30.8.1991 at about 4 p.m. when the informant Budhram Munda (P.W.1) and his father Doma Munda (deceased) were in the shop, this appellant and the accused Manohar Munda (since died during the pendency of this appeal) came to his shop situated in his house and asked to give oil of Rs.2/- on credit. Two days' before also they had taken oil of Rs.3/- on credit but the payment had not been made and therefore, Doma Munda told them that unless and until they will make payment, he will not give oil to them. Upon which there ensued a verbal altercation, during which the appellant and other accused held out threat and then they left the shop. After they left, the shop was closed. Thereupon both the persons along with others to whom the informant Budhram Munda (P.W.1) could not identify came over there at 8.30 p.m. The appellant was having tangi with him whereas Manohar Munda was holding Lathi. They hurled bomb in front of the house and thereafter the appellant and other 2 accused Manohar Munda started assaulting his father. Meanwhile, the informant, Budhram Munda by raising alarm fled towards village. By the time villagers came, the accused persons had already left the place. The informant and the villagers found Doma Munda dead. There the accused persons had left a towel and a bomb like thing. On the next day, i.e, 31.8.1991 at about 9.30 a.m. when A.S.I, R.G. Sharma of Arki police station came to the place of occurrence, he recorded the fardbeyan (Ext.3) of the Budhram Munda (P.W.1). Thereupon he took up the investigation, during which he held inquest on the dead body of the deceased and then prepared an inquest report (Ext.1). Thereafter the dead body was sent for post mortem examination which was conducted by Dr. Chandra Shekhar Jaiswal, who has not been examined by the prosecution. However, post mortem report has been proved as Ext.4. From its perusal, it does appear that Doctor during autopsy did find following injuries: (i) sharp cutting injury 4” x 1/4” bone deep over right shoulder. (II) puncture wound 1/2” X12” X2?? (III) sharp cutting injury with fracture of skull bone 2” x 1/2” x 1” at the top of head. (iv) sharp cutting injury with fracture of skull bone 3” x 1/2” x 1” over top of the head. As per post mortem report, death was caused due to shock and haomorrhage on account of the aforesaid injuries. Meanwhile, the Investigating Officer recorded the statement of the witnesses. After completion of investigation when the charge sheet was submitted, cognizance of the offence was taken against the appellant as well as the accused Manohar Munda, who were put on trial and when the case was committed to the court of sessions, the accused Manohar Munda died. During trial, the prosecution examined altogether 8 witnesses. Of them, P.W.1, Budhram Munda, the informant, P.W.2, Sukay Devi, the widow of the deceased, P.W.3, Etwari Devi, daughter-in-law of the deceased, P.W.7, Baraik Munda, neighbour of the deceased are the eye witnesses. According to 3 P.W.1, when he along with his father were in the shop, the appellant and Manohar Munda came and asked for oil and bidi of Rs.2/- on credit but the father Doma Munda (deceased) refused to give it to them by saying that unless and until R.3/- which was due to be paid is paid, they will not give oil. Upon it, they extended threat and left the shop. In the evening at about 8 p.m. when they were at home, both the appellant and Manohar Munda came over there. The appellant was having tangi with them whereas Manohar Munda was having lathi. They hurled bomb and then by cutting the door they entered into the house and started assaulting his father. Another eye witnesses, P.W.2 and P.W.3 have testified that while they were sleeping in the house, they heard sound of explosion of the bomb and then saw the appellant and other accused entering into the house after cutting the door and assaulting the deceased. P.W.7, the next door neighbour has also testified that the accused persons after hurling bomb entered into the house of the deceased. Thereupon he fled to the village by raising alarm and when the villagers came, they found the deceased dead. According to P.W.4, when he heard sound of explosion of bomb, he came to the place of occurrence and found the deceased dead. P.W.5 is a witness to the inquest. P.W.8 is a formal witness who has proved the post mortem report. After the prosecution case was closed, the appellants were questioned over the incriminating evidences appearing against them under Section 313 of the Code of Criminal Procedure to which the appellant denied. Thereafter the court having found the witnesses to be trustworthy whose testimonies were getting corroboration from the post mortem examination report did record the order of conviction and sentence which is under challenge. Mr.Bhola Nath Rajak, learned counsel appointed as Amicus Curiae submits that neither the Investigating Officer nor the Doctor have been examined in this case and thereby the prosecution cannot be said to have proved the place of occurrence and the case being of homicide. 4 Further it was submitted that P.W.1 though had supported the case of the prosecution but has failed to identify the appellant and thereby the testimony of P.W.1 is nothing but a piece of waste paper and that so far as P.W.2 and P.W.3 are concerned, they being the widow and daughter-in-law of the deceased can be said to be interested witnesses and thereby their testimonies require strict scrutiny. In this regard, it was submitted that admittedly it was dark and therefore, it would not have been possible for them to identify the accused persons. Moreover, the prosecution is silent over the source of Illumination and that P.W.7, as per his evidence, never saw the appellant assaulting the deceased. Under the circumstances, the prosecution can be said to have failed to prove its case but the trial court did not consider the case in right perspective and thereby committed illegality in convicting the appellant. As against this, Mr. Ravi Prakash, learned counsel appearing for the State submits that P.W.1 the informant, who happens to be the witness to both the occurrence taken place at 4 p.m. at the shop and then at 8 p.m. at the house had lodged the case with specific allegation that it were Netai Munda and Manohar Munda, who killed his father and thereby there was no occasion for him not to identify the accused, still he did not identify the appellant in the court which must be an outcome of the threat and thereby non identification of the appellant hardly matters. That apart, other witnesses P.W.2 and P.W.3, the widow and daughter-in-law of the deceased are the natural witnesses and thereby their testimonies cannot be discarded. Similar is the situation with P.W.7, a next door neighbour and an independent witness had every occasion to see the appellant when they came to the house of the deceased and thereby the trial court on placing reliance on the testimonies of the witnesses has rightly convicted the appellant and hence, the impugned judgment never warrants to be interfered with. 5 Having heard learned counsel appearing for the parties and on perusal of the record, we do find that it is the case of the prosecution as has been testified by P.W.1 that on 30.8.1991 while the informant, Budhram Munda, P.W.1 was there in his shop-cum-house along with his father, Doma Munda, the appellant and Manohar Munda came and asked for oil on credit which the deceased refused to give as earlier also they had taken oil but had not made payment. On account of refusal, they extended threat of dire consequences. At 8 p.m. while the informant and others including the deceased were in the house, the appellant and other accused came over there and hurled bomb and after cutting the door, entered into the house and then assaulted his father. However, the witness did not identify the appellant Netai Munda in the court. In that event, submission has been advanced that the testimony of P.W.1 will have no bearing over the case which submission is not acceptable for the reason that the witness, as per his evidence, was knowing the appellant fully well and therefore, he named the accused persons in his fardbeyan and then also in his evidence. Nothing has come on the record that Netai Munda, the named appellant was different person then this appellant. In that event, non-identification of the appellant by P.W.1 must be on account of fear or threat. Had the case been that unknown person had come to the shop and then assaulted the father by entering into the shop and during investigation, some one was found to have committed offence, non- identification of the accused in that event would have carried much weight but not in this case on account of the reason stated above. Therefore, non- identification of the appellant hardly matters. Coming to the testimonies of P.W.2 and P.W.3, they have clearly testified that when they heard sound of explosion of the bomb, they woke up and then saw the appellant and other accused cutting door entering into the house and then assaulting the deceased. Both of them are quite categorical that they were knowing them from before. In such event, there would not have been any difficulty for them to identify the appellant even if it was the dark night. 6 Further going into the matter, we do find that P.W.4 has also testified that when he heard sound of explosion of the bomb, he saw the appellant over there. He claimed to have seen the appellant assaulting the deceased but keeping in view the testimony elicited in the cross-examination to the effect that after seeing the appellant, they had fled towards village by raising alarm that part of the evidence wherein he claimed to have seen the appellant assaulting the deceased can not be accepted. However that piece of evidence that he saw the appellant at the house of the deceased cannot be discarded. Thus, we do find that the eye witnesses are trustworthy whose testimonies do get corroboration from the post mortem examination report whereby the doctor,who had held autopsy did notice the injuries on the person of the deceased. It be stated that the doctor has not been examined but when the post mortem report had been taken into evidence without objection being raised the defence now cannot take any advantage of the fact of non- examination of the doctor. Similarly, non-examination of the Investigating Officer hardly affects the case of the prosecution as nothing has been shown by the defence that the case of the defence has been prejudiced on account of non-examination of the Investigating Officer. Moreover, the place of occurrence gets fully proved from the testimonies of those witnesses. Thus, we do find that the trial court was absolutely justified in recording the conviction and sentence against the appellant and thereby it is hereby affirmed. In the result, this appeal stands dismissed. ( R.R.Prasad, J.) (Pramath Patnaik, J.) Jharkhand High Court, Ranchi, The 13th May, 2015, NAFR/N.Dev.