Jharkhand High Court

Raye Ge We 2 vs Unknown on 8 February, 2021

IN THE HIGH COURT OF JHARKHAND AT RANCHI

oN

(Criminal Appellate Jurisdiction)

Criminal Appeal (DB) No. 341 of 2010

     
     
  
 
 

     

Raye ge we 2
SPU ab Corie

 

Siriaht

fod

UIWISE Ih Seasians Trig

nyt

i. Ram Ratan Munelari
2. Saneram Murch

aS . a o vilase- Bandra,
PO. &% PLS. Bandgac

. Appellants

The State of Jharkhand o. Respondent

 

PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHERHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA

Fer the Ap peliants > Mr A. K. Chaturved!, Advocate
Por the State > Mr. Saket Kumar, APP

 

CAV. on G3 /O2 SO} Pronounced one Bs G2 (202 |

\.

 

Per, Shree Chandrushekhar, J

8 ; ; eee Ngee peer be eae eye ol AYN FRE NOY SO nn ass ee pe es TPT
Against their conviction ars? sentence in Sessions Trial

Na L?O of 2008, the appellants are in appeal under section &

 

~

the Cade af Criminal Precedure.

Bs mn othe rught ef 31.03.2008, Marge Mundri, Sumi

 

Mundri and Madhusudan Murdri were attacked by Ram Ratan

¢ Bene Murdari and paneram Mundari. Pwo of them died

 

4 : 3 84 ee oveodye. carers sytem Test. 8s yt
on the spot and Madhusudan Mundri who was given First-Aid at

Pomary Health Center, Bandgaon was brought to RIMS, Ranchi for

 

treatment, hewever, he succumbed to the infuries
hours. The statement of Madhusudan Mundri was recorded at

° cy

about GO:30 hrs. in the imtervering night ef S0/31.03.2608 by

  

Arran Paswarn, off ranechiarge: af Bandgaon PLS. On the basis af

: a PP oat 2 some Tmelaerd at
his fardbeyan, Bandgaon PS. Case No i? of 2008 was lodged at
Rey T SO ARS " wate #2 PAP Ra of the Indian
OG LS AM or 2).00.2008 urider sections GO2/307 (34 of the Indian

Penal Code. Madhusudan Mundri has stated that his cousin

 

wt

brathers, namely, Rar: Ratan Mundari aru] Sangram Muni:

ty
 

ey

 

fod

 

wanted to grab his properties and in the PASE OTL Several occasions

they had threatened and raised dispute over his le

 

re. "% om Lb wae en aan re so .
Gn GOR Ss OS. ater takin ne cinner he mit for G remeora fs

«

Camimurity sleeping shelter) at about 8:30 PM. On the way

y

Sangram Mundari and Ram Ratan Mundari who w sre carrying

dagger waylaid him, Sarigram Mundari caught hold of Kir while

ANG

   

Sam Ratan Mundari struck dagger {chhura} blows over his
abdomen. He ran away crying and pressing his intestine which w AS
Nulginig out due to the ¢ agger Injury and fell on the aragund near
the house of Sornral Mundri, e adjacent ta his own house, Both fhe
accused declared that they would Arnish his entire family and
started assaulting his mother : aged about 48 years and the younger
brother eged about 12 years, ind crite with dageer and
killed them. Several villagers had rushed there, they saw both the
accused fleeing away and chased them. Arpin Paswan after

recording the fardheyan of Madhusudan Mumsciri returned te

 

Sandgacn P.S where a First Information Report was lodged under

x

OY (34 of the Indian Penal Code against Ram Ratan

 

sectors 305
Muncdari and Sangram Mundari,

a, OP. Sah, a sub-Inspector of Police took up the
ivestigation and recorded further statement ef Madhusue far
Mundr. In course of investigation, Sorral Mun dri, Diver Mundri
and Budhu Mundri stated before the inve stigating officer that on
hearing cries fhulla} they had gane to the mace of pecurrence, The
ether co-vilagers, namely, Mahajan Mundri, Patras Murry,

ax

Balram Mundri and Sukhrarn Mundri stated before him that about
the occurrence Somrai had informed them in the night of
80.02.2008. They had gone rear his house and found

RANE LIAS.

Madhusudan Mumndri Seriously injured, his mother anc younger

 

brother had died. These witnesses statecd before
aiicer that Madhusudan Mundri had teld them that Bar Ratan
Mundart ard Sangram Mundari had assaulted them. In course af
treatment Madhusudan Mundri suecambed to the iniuries at

. Base Leena ye
RIMS, Ranchi, the tnquest was prepared by Mr. Armap Kumar

: : er ¢ Tiesestaaed Bios
Sangh, Sof Bariatu PS. and the inves sgating officer collected the

 
 

 

 
 
 
 
 

     
  

  
   

     

                    

    
 
  

 

            

       
  

       

     
  

 

      

    

   
 

 

  
 
  

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CIPCLUNSLANCesS,

ii. A dying declaration is in the realm of hearsay. Tie ral

against admission af hearsay is but there are well carved out exceptions to the rule of hearsa yon the Indian Evidence

At, such as sections 6, 8 and 30. A aying declaration is made

admissible in evidence on the principle of necessity, Section 32 of the Indian Evidence Act provides that statement of relevant fact by & person whe is dead or cannot be found, ete., Ig relevant. The dying declaration can be written er oral ard any Staternent made by a person who is dead ar who cannot be found, ar who has become incapable of giving evidence, or whose atternlance cannot be procured without an arr munt of delay or expense which, under tne circumstances of the case, appears to the Court unressonabie, which relates to cause of death is a relevant fact and admissible in

evidence. Sub-section (1} to section 30 of the | ndian Evidence Act

explains that it is not necessary that at the tme when statemeriis

considered relevant under section 32 of the Act are rma: de the person who has made such staternent was under the expectation of death. {t further provides that not only the statement relating to

the cause of death but also any of the cirourmstances of me

aie

yansaction which resulted in the death is a relevant in which the cause of that person's death cames inte Qurshion

12. The statement of Madhusudan Mundri recorded by

Nth yVyst

PWIO in the intervening night of 80°/31" March

as urder:

e NX

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on. x aw ioe 're ds " ye se rs 2? on oy A 'eres "

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. Scenes

iAe dif er ans

adamara {almost dead}, it is impossible to beleve that he made a Statement before the investigating officer.

id. The fardbeyan of Madhusudan Mundri was recorded by s.l Arjun Paswan in the midnight at vilage Bhandra. The fardbeyan bears signature af PW2-INver Mundri and PW3- Meahaian Mundri whe in the Court have identified their signatures on the fardbeyan. PW2 who was declared hostile has admitted in the Court that his staternent was recorded by the police, He is gisa a witness to the inquest report and seisure-memo. In his crass examination by the prosecution he has admitted that statement of Madhusudan Murdri was recorded by the police in his presenc

and at thai time PW3 was alse present there. He has stated thus:

"4. Madhusudan's statement was written by the police im my

prs RETiSs are] al So in fronk o ry i Mahajan are rl qj SET 2ed the fardbeyari. This is my signature ~- marked as Exhibit-1.° @wee 7 ear ofte at aun Rrdr ser wMaa f arr et rs ser s WAST Mr aree fer er ze at

aay peer 2 Re wel-> aie Beer ar §). However, in the CTOSS- eéXamination by the defence he has stated that he did net read the fordbeyan. of Madhusudan Mundri nor was it read over to him and as directed by the Police he put his signature on the fardbeyan, inquest report and seigure-memo. PWS has depased in the Court that PWi came to his house in the might at about 08:50 PM ans wake Aim up. He told him that two persons were killed, whereupon he accormparued him and saw the dead body of Sumi Mundri and Manga Mundri. He found Madhusudan Mundri lying serious nyured oe his intestine was coming out, On sncuiey, Madhuspdan Mundri told him that his cousin brothers assaulted him. He has identified his signature on the fardbeyan and state that Madhusudan Mundri gave his statement in the police station. He has affirrned that the inquest report and selsure-memo which were prepared in his presence were signed by him. But, in the cress-examination by the defence he has stated that he did mot read the » fardbeyan inquest report and the selsurs-memo. During the trial, PW1O who has recorded the statement of Madhusudan

Lh Lal,

Mundri has deposed in the Court that he recorded the fardbeya

zt _ .

2° ~~

in the intervening rught of 30/31.03 2608 jy ) presence of PW? and

PWS and at that time he was conscious. The fardbeyan was rear over and explained to Madhusudan Mundri and he pul his thumb impression (L.T.) having found the same correct. He has identified ris endorsement on the ferdbeyan and further stated that after he returned te the police station a First Information Report was lodged under sertions 202, 307 read with » cation G4 of the Indian Penal Cade and the investigation was entrusted ta PW li. In his ernss- examination he has stood to his grounds and again asserted that Madhusudan Mundri was in his c: mmplete serises, his eves Were open and he was talking. Ne has further clarified that he gave Statement In Mundari language which was translated by PWG. The doctur who conducted his postmortem also seems to affirm that Madhusudan Mundri could have given his staternent. The statement of PW2 and PWS as regards conterits of the fardheyan not read over to them in no way creates a doubt that Madhusudan Maindri was not in a fit state to speak und he did make a statement before the police.

18. Now, we would examine whether there are other evidences to support the prosemution. PW whe in the Court reviled from a major part of his statement under section 161 of the Code of Criminal Procedure. has stated in his examination-in-chief that the intestine of Madhusudan Mundri had came out and he died in the hospital PWS has flatly denied any knowledge about the incident. He has deposed in the Court that his statement was not recorded by the polce, PW4 was sleeping in the night when PW came and irformed bir. about the ireident. He was one attorgst others who had accompanied Madhusudan Mutelri ta the police station and hospital. He has stated that Madhusudan Mundri who died course of treatment at Ranchi teld hirn thet Ram Raten Mundari and Sangram Mundari had stabbed him. FAV6 was called by PW. He has alsu claimed that Madhusudan Mundri told him that ¢ appelants had stabbed him. He has seen the dead bodies of Sumi Mundri and Manga Mundri in the courtyard of their house. On a

suggestion by the defence that he has not seen the ineldent af

stabbing and killing by the appellants, he admits the same and states that he has narrated the incident as tald by Madhusudan Mandri. Like PW3, PW4 and PW6, PWY was alse in farmed abou

the occurrence by PW1. He has supported the other witnesses and stated that Madhusudan Mundri made a statement involving the appellants in the crime. He has affirmed presence of PWI , PWS, PWS, PW and others, abcut six Fersens, at the place of

y % : Noose ret $$ pes Pes SESE ST oy, Ne ng oe xa py et ocourrence when he had arrived there, In "Shatlw vp. state of MP.

pert

the Hon'ble Supreme Court has observed that it is admissible to use the examination-in-chief as well as the cross-examination of ¢ B hostile witness in so far as it supports the case of the prosecution, In "State of LLP. v. Ramesh Prasad Misra' the Hon'ble Supreme Court has observed that evidence ofa hosts witne ess would not be rejected in entirety if the same has been given in favour of either the prosecution ar the accused, bub is re equired to be subjected to careful scrutiny aru] that part of the evidence which is consistent with either the case of the prosecution or that of the defence, may be relied upon. Besides the other witnesses, PW] and PW? who

were declared hostile have also supported the prosecution albeit

partly and their evidence carmot be discarded altogether. The

3 Fe

defence set up by the appellants is one of simple denial. The

prosecution witnesses have stated that it was PWi who came tn

grt

their house and informed them about the eccurrence ~ PW is the only person who had first seen the injured Madhusudan Mundri. A hypothetical alternative scenario that PW1 himself was involved in the killings and in callusion with the iInvestigaling officer has fabricated the statement of Madhusudan Mundri also seems impossible, for PW1 has turned hostile.

1&, The evidence of PWS, PWS, PW4, PWS and PW which thraws considerable Hght on the cause of death of the informan vt, his mother and the brother and also on the circumstances leadi: 1g to the cause of their death, but has remained unch allenged, must be accepted true ~ it is not demonstrated that their evidence

suffers from any inherent improbabiity or inconsistency. In

LGR GI

fod .

bw.

Ney STN Sed wat ond oy oe

we ran he mye K.

ca Eee pee os od

the Hen'ble Supreme Court with reference fo sections 138 and 146 of the Indian Evidence Act has

elumidated the law on the subject, thus;

"AO. Fin thermore, Here caanol be any dispule wih respect in he soiiied legal nr oposition _ thal fa party wishes io raise any doubl as regards fhe orrecineas of 'the alate ement of a witness

ihe said witness must Fhe gived an cppert Slafemenn By drawing Ais attention to thal p dew? oGecied fo by ihe ather party. as bets 0g une ue. Mithaut if iS Pex possible fo fp BE SaOH Ais credibly Such a law haa advanced Inv he siatutory pravisi f Ors anshringd 9 of the Evicie) noe Ach 4 5072 witch eee party ic crose-exarune a witness as

on fendered iq evidence by Aim during has Ss arin che arid the Sonne oF Hus prowsic Siar

arged by Section 7 as 2 BRE permis a

LDOS, tor "ihe faason ihabut is impossible 'on the. Wwinass 1G siglain ar elaborate upon any doubts: gards the same, fhe shsence of Guastin As put fo Ne Rae Fesoent | to 'he ciroumoetances whieh indicate that the version of events arnvitled 70% it io fe -Gelleved, and the witness. higises®: &

by Aan is ¢ armory of credit Thus. Hg. party intends fo impeach aiwifhess he my st provide een iais. opponuaty fo ine witness if the WHIESS | box, fo give afull anid Broger explanation Me Same essential fe ensure: " Fair Dlay and fauresas in de gf

WHIESARS |

L¥. The Latin words 'Leterm Mortem' which means: words

reget

said before death" inspired origin o

term mot defined in the Indian Evicence

Fey, fe oy we o> vy "~

praesurutur mentire' which means "ne ane would meet with a le in his mouth" is the underlying principle which was

adopted by the medieval English Courts to admit dying declaration as evidence. The earliest recorded history of a dying declaration

ra case of the year 1202". A dying

re &

acimitted in eviderme is fenind i

aes

declaration enjeys 4 sacrosanct status in law and it can form the sale basis of conviction even without corroberation. In "Panther

{Smt} uv. State of Gujarat the Hon'ble Supreme Court has held that

3s rhaderer amlay to gory ti¢iors aps ei thé an aoe fae Maries de a dying declaration is entitied to great weight and once the Court is

me ch

satished that the declaration is true and voluntary, it could base

conviction without corroboration. "Paniben" was followed by

SPR yesedaie te? te Baye ORE EY Ste AF PR yy. we ( Kundula Bala Subrahmanyam uv. State of AP wherein ¢

surt has observed that steaternent made by «

of his death must be ancorded a special

wth edn. af page 886

sanctity as at that solemn moment a persen is most uniikeb ta tiake any urirue statement. Simply put, the law on the subject is fairly settleci that an accused can be convicted solely on the basis of a dying declaration amd Hf is not ruscessary that the dying

ABy

declaration mrust be corroborated by other independent evidence; a corollary is that even on the basis of uncorreboratecd dying

declaration conviction of an accused can be maimtained, Therefore, a dying declaration requires closer scrutiny andl its truthfulness is nudged im the Hight of surrounding cirsumstances. From the

nostmorter report if appears that the candihion of Madhusudan WAS precarious ard as stated by the witnesses a towel was ted arpund his abdomen to prevent further bleeding from the

abdominal injury. PW2 and PWS hac mo enmity with the appellants

nor was there any suggestion by the defence that they came to the Court to imphecate them falsely im this case. The investigating

officer

had no animus, no motive was attached and no suggestion was put forth to indicate any motive on his part to cancoct a false

story against them. Madhusudan Mundr was quite young, aged

about 18 years, The proseciticm withnessea had aasembled rear

x o

him immecately after the occurrence and he disclosed the name ai his assaulters to them. His youth had kept him alive and he was able ta give his statement when the pohce arrived in the village.

Madhusudan Mundri has survived for few hours, it was night time and the sequence of events discloses that there was no time to call a Magistrate to record his staternent. The appellants are his cousim brothers who were on inimical terms with him. Identity of the appellants ever on account of insuficiernt Ught at the place of accurrence was rot challenged during the trial, rather the case set up by the defence is that Madhusudan Mundri never made a dying decisration and the appellants were falsely inypheated in this case, The atteruling circurnstances in the case do not suggest any reason for false implication of the appellants except the statement of Madhusudan Mundri that they were trying to grab his properties, which, in cur opinion can be a strong mistive on part of the

appellants to firdsh the entire family of the infermant. In their

Ss y Apovad (BS Nay So fu

examination under section 313 of the Cade of © riminal Procedure making of a dying declaration by Madhusudan Mouindri in presence of the prasecution witnesses and his statement before PW10 were clearly put te them but they have shosen to remain silent, Matthow Arnold has said, "truth sits weon the lips of a dying mar'. The

dying declaration of Madhusudan Muruiri is clear and does mot

suffer frora any Inherent improbability or inconsistency. The dying declaration of Madhusudan Mundri recorded by PWIO un presence of PW2 and PWS inspires confidence and the learned trial Judge has rightly admitted it asa valid piece of evulence.

18. The eviderice of FW2, PWS, PW4, PWG and PWY that Madhusudan Mundri told them name of the ass saulters is relevarit and provides the missing link in the chain of evidence tendered by the prosecution. The statement of a dead man whose words are spoken by another person is not con widered the best evidence, sil, f is held admissible as part af res gestive, AN CXcey otian to the general rule against hearsay evidence. In "Homes v. Y Neunige the Privy Council observed that: "res gestae, it has been stated, is the pines' ad opted te pravide a respectable legal cloak to a variety of CASHS aich no formula of precision can be applied". Kes gestae, a Latin ; phrase which was adopted in common law as far back as ui the year 1637 in "Ship Money ease'? refers te "the events at issue or others cortamporancous with theme', Taylor writes that res gestae inchides - everything that may be fairly considered an wicident of the event under consideration'. In "Teper uv. R. e the

Privy Council has elucidated the ru le af res gestae as under

FA Tan ses WE tg foo of Fest if thse: we

Thin al feast 7 ay be a, Hs essential inet the 8 word meet ~ aris ix

sought fo be p aida be, ¥ eof

og "nomporaneous ahh fon OF 'ave Hy og feast & aD clear . aoxoolaied wilh if in iene, place and offcumetances, that they are nant of fe thing being done and so af Hem of part of real

evidence and nol merely & Sen0

ead afta; Spe aa fig near' .

1 The rule of res gestae expounded by Lord Normand in

aan

"Teper? was incorporated m gention 8 of the Indian Evidence Act

&. S23 g. R Garner, 4 Dicnanary of!

i Johnson & G. Bridg

y of statutory illustration fal, which reads as under:

2 The sfeafament of Pegeaben afands fish aroved and roboreted fram the Bvidence 5 7 PMS. who were informed sean afer ise incidenf as fo how fhe iyfietact by the appetige

tive +h . "

Feve: af ahs af Dey / were

RU ESS Yee

B AMONG ites ran : ?

oe cae

at or Pee Agbend Ther

POET ESS,

ts gS

cS =.

z hea Ba or oS

orime arid

sila ©

gare

i. Renny seated

evidence and coeur

FAAS

Sup aT ie x BVOCs

es SO? intion ?

them, ithe they welufe Be

al. There are twa ger neral requirements under

of MS

ection 6;

we oe REE FAAS entra byl ing AN, . NP weed AS pene noes cede ant necessity and reliabiity. The essence of the rule of res gestae

which is incorporated in section 6 of the Indian Eviderme Art is

rak

4 though not im issue is so connected with the

issue as ta form part of the same transaction that it becomes

Sees,

relevant by itself Section 6 makes a statement or the fact

admissible in evidence on account of spontaneity and irimerciacy af

'act im reiation

such statement of

demlaration of Madhusudan Miundri

issue here and evid

noe of PIV, PW, PW

which tridinates

that imme ely after Madhusudan Mundri was assaulted by the nis on hearing his cries PW arrived at the snene and called

4.5

the other Prosecun m witnesses before whom Madhusudan Mumndri

. deniaration or involvement of the appellants lervis

eredence to the prosecution story. There was a definite and live

berween the cause af death and statement of these

witrresses, which provides Ynk in the chain of

evidence. The statement of PW, PWS,

admissible as evidence and fertifies the furdbeyan of Madhusudan Mundri from any attack on the ground of inherent improbability in

1H %

the dying declaration or any Suspicious Clreurmstance surrounding it. The circumstances put forth in evidence by the prosecution make us believe that there was neo possibinty of consochon and distartion, and moreover these witnesses were not io gain anything by tampering the statement of Madhusudan Mundri, The statement of FAVS, PW4, PWG and PW to the effect that PW came and informed them about the occurrence and Madhusudan Mundri disclased mame of the appellants to them are so intertwined im time and space with the circumstances of the cause of death of Madhusudan Mundri forming part of the same transaction that it beromes relevant under section 6,

ae. The evidence of the investig gating officer WAS @ major point of discussion during the course of Hearing. The argument is that in absence of materials which could have proved complicity of the appellants in the crime or otherwise and those materials were available but riot collected by the investigating officer, the cage set up by the prosecution against the appellants was so weakened as

to give benefit of douki ta thern.

ee. PW, the investigating officer has deposed in the Court that fardkeyan of Madhusudan Mundri was recorded by PWI1O0 in his presence aru] after taking up charge of the investigation he recorded restatement of the informant. He has stated that the dead badies of Sumi Muridri and Manga Murndri were tying in the courtyard. He has seen huge quantity of blood spilled on the ground, prepared the scizure-list in presence of two witnesses ane recovered a Jarge knife from the bushes near the house of Madhusudan Mundri ~ the knife was bload-stained. On the information from Hawaliar Suresh Psaswan that Madhusudan Mundri passed away he had gone to RIMS, Ranchi and sent the

dead body for postmortem examination. In the meantime, inquest

was prepared by Anup Kumar Singh, SJ of Bariath PS, a copy a P

which was received by him. He has deseribed the "e at

securrence but admits that he did net prepare a sketch map.

appellants surrendered on 03.04.2008 and he has rec vorded ther

statement in the jail, He has proved carbon copy of the inquest

Le Fiuerl (BS Ne

report ancl postmortem report. He has also proved staten ment of

PW and PW. the hostile witne

the Code of Crinrunal Procedure whereunder they stated that

Madhusudan 2 Mundri disclosed he store therm name of the assailaris,

His examination-in-chief 7 rSSES8 certain important fects which if

Spoken would have cleared the doubts, what the defence RAS

AAG

Sought to exploit. [t is Rindamental that facts de not CHAMBRE on

accunnt af Incorisistent evide nee of the witnesses, Nad the Public

Prosecutor been alert enough and the investigating officer de spased

Pos

relevant facts from the records, inconsistencies ANPeary

i EET rs hh a

i> NeSRA BGG gy AAR MA LSS

testimony of the Brosecuhion witnesses could have been easily

sechion PP 212) of the Code of

Criminal Procedure any criminal Court May use the police diary in

explained and doubts removed. } MEY s

aid of enquiry or trial. We fine from the original records that after

\ASAL,

recording his restatement Madhusudan Mundri was taker te

Primary Health Centre. , Bandgaon by the police. It is recorded ix

the case diary at para S that snificient facilities were not avaliable

at the Primary Health Centre

and Madhusudan Mundy Was brought te RIMS, Ranchi. The statement

yn of PWS that in HIS

presence Madhusudan Munir! Rave Ris statement. at the pouce Sation was a stray statement m ade contrary to the records. The

brigee

centre and the police station both were at Bandgaon and in the

FAL

Process of transferring Madhusudan Mundr te RIMS, PWL1 might

have stopped at the police statian, The statement of Madhusudan

Say

Mundri records that it was reduced in writing af OO-30 AM

Whage Bhandra and PWIO and PW] Rave affirmed the same.

Under sertion Lid of the Indian Ewidence Art there

presuniption that every officiel act dea & by thie police was regularly

2 lek oa EF eo Gow he TAY

performed ~ the presumption re. quires rebuttal,

- fs ifr "tea!

on seat!

- RO SEPELL

the Hon'ble Su iprerie Court has observed

that fis an archaic notion that actions of the police officers should

be approached with initial distrust. oe. The learned counsel for the appellants has contender

that there is no eyewliness ta murder f Marge Mundri and Simi

recorded under section tei of

oe nna

yew.

Mundri, and Sangrarn. Mundari has nat assaulted Madhusudan

Munari and while so, he cannot be con

or section L208 of the Indian Penal Cade.

ao. Madhusudan Mundri has stated in his fardbeyan that Ram Ratan Mundari and Sangram Muundari affer assauliing him declared that they would finish his entire family. We get an impression from his statement that he has seen assault upon his mother and brother, but for a moment we woulc { assure that there

is no direct evidence that the appellants have comn mitted murder ot

RXemxyagyey 2 wehbe} ane oo a OMS Saat Peevey Mang aanicdaemre of ee Manga Mundri and Suri Munarn. From the evidence of the

prosecution witnesses it appears that by the time they arrived at the place of securrence Manga ! Mundr? and Sumi Mundri were dead. There was no intervening cirmumsiance > suggested] by the

deferice and there is no trace of even faintest motive for ary ot her

person to Kil them, Madi weudan Mundri would not have made

false accusahior

mother and brother and frem the materiais an record w

reasori why the other presecution witnesses would also lene

guppert to kim. The motive attributed to the appellants for the

crime may appear weak buf if would not weake

case. It is stated that motive leses all iis importance IN a Cage where direct evidence of eyewitness is available, because even uw there may be a very strong motive for the accused persars to cornmit a particular crime, they cannot be convicted i the evidence of eyewitricases are not convincing' In "Suresh Chandra Bahri vu

State af Bihar' the Hon'ble Supreme Court while explaining about

- of motive that what may prompt a person to form an

acy af matiy:

rake ¢ ag te bene and

Seppe {88s Ne

opinion or intention to do certaim llepal act has observed that it is

cafficult and fast rule as to hese and in what

manner a person would react.

28, fm the trial the indictment which was framed on thr

counts was clearly explained to the appellants. The following

a ed,

charges were framed against the appellants:

SOOT PS aye coe $b aout 2S a FIRST about the GG" day af March O8 af 8 20 PAG at PS-Sandyaon, Cush-West Siighitiuyn in fi jurtherans

Infedtion of you all cid comurnt murder Gy iy dsafh of Som Mundar

sr mesg

oy Ae x = Mundar As amended

Sek ine a offears Fer aHinh 1S Lender Sen HON ' 2 bys af Swnete ALA MS SG23 34 of ee oe Ogs, and iv HRD fay bog SAILS.

Sseondive Thal you, an or about ih hime af SANS pecs a furthers ane?

year aad

a yeu

all, oa COM Hn a wat SLUR dan Mundas! ~ stich CARED si ian Osused feath af ante

FORA

BO TRS pax 3 wit 3 mgted f9 cause the ceerh i ihe Saw, f dois i of the agreement and fhereby cammnilied an aflence

Munday ¢

Boe nz nee

of informant pursuan wushable under Section 720 B nf ihe incian Penal Pimy COMMNZEC 7 and] Hensby direc! af you be tired by me

on fie sas ofserge"

27. There

PSS

no ambiguity im the charge ars the

appellants have gore into the trial on clear understanding that

; : a oJ ee 2 ~~ : << Th :

they ¥ cherped with murder of three persons. They

ition witnessss

provided sufficient corrokeration ta the prosecution case. The

infuries on Manga Mumdri and Sumi Mundri were caused by sharp

entting object such as imife and the time elapsed since death was

6 to GG hours. The inquest was prepared aft 05:50 AM, a Pirst

informatian Report was at Q&:1S AM and the postmortem

reports of M: Jiseiose that their

et won, phe

ped re ait on he < poy ws iw pane nw Ww ~~ ped of Sele "A pny se ~ yee pede ey c Pat ped ws ye we ~ fs bee

mae

pene £

"30

started at "$5 PM. There was littic

to coneant a false story involy

death of

ce. The approximate time

lanve Mhandri and Suri Mundri corroborates the

Pooed oe "oan ay % owed aA go pat panes aL:

mos fe

18 RG AgReOE NR No Saf of ee

the dead bso dy of Madhusudan Murdri has found stitched wournd

en his abdomen and the small intestine was repaired at two place

wa en

These findings corroborate the evidence of the prosecution witnesses that Madhusudan Mundri was taken to RIMS where in course of treatment he succumbed to the injuries. PWS has also ebaerved that the injuries on Madhusudan Mundri were caused by sharp cutting weapon Uke knife and in his cross-examination he has stated that a person who has suffered such injuries m ay remain conscious. There was never any doubt about the

prosecution case,

28, The prosecution has sought aid of section 34 of the Indian Penal Code and'a separate charge wader section 1205 of the Indian Penal Code was also framed against both-the accused. Section G4 provides that when a criminal act is dorie by several persens im furtherance of the common intention each of such persons is hable for that act in the same manner as if it were done by him alone. In "Mahbub Shak Vs. Emperor' the Judicial Cormmittee has pointed out that to Invoke the aid of section 34 of the Inchar Penal Code it mrust be shown that the criminal act complained against was dene by one of the accused. persons in furtherance of the cammon intention of. all. The manner of occurrence and role played by an accuse d are important factors t ascertain the intention. It is difficult te gather direct evidence tu prove the intention of a person and therefore in most cases intention of the accused has to be gathered frorn his acts and conduct as also from the other relevant circumstances of the case. The question with regard to the nature of offence, therefore, has to be determined om the facts and in the circumstances of the case. The participation of Sangram Mund in the oecurrence is 4 foregone coriclusion. By holding Madhusudan Mundri he has erishred fatal blows over his abdominal area and therefurse he must be imputed with the knowledge that Madhusudan Mundri would be killed. In "Bharwad Mepa Dana and Annu. The State of Bombay

2e Hon'ble Supreme Court has observed that the principle which

i, AER P90 AC 280

steed IDE

wei SSS

section 34 of the Indian Penal Cade embodies is participation in action with the common intention of committing a crime amd once

r <

such participation is established section 24 1s at ¢ = attracted. in

So Fo ee ey aw ote . rp alt i. a ¥ ven + yo . . wad Speen 'Terar uv. State of DLR tne aochse do whe was holding the victim

aricl Yesir QU ns mov

sents enabling the co-accused to inflict

y his death was held to share common intention

knife blows casing co cause death. There was a pre-plan, the accused waylaid Madhusudan Mundri and attacked him. We are of the opinion that