Jharkhand High Court

Uday Sundi vs The State Of Jharkhand on 2 February, 2022

                                              1



                              Criminal Appeal (DB) No. 2018 of 2017

                        Against the judgment and order of conviction dated 24.08.2017
                 and sentence dated 28.08.2017 passed by Sri Manoj Kumar Singh,
                 learned Additional Sessions Judge-I, West Singhbhum at Chaibasa in
                 S. T. Case No. 205 of 2009

                  Uday Sundi                                         ...      Appellant
                                                        Versus
                 The State of Jharkhand                              ...      Respondent
                                           ----

PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE SANJAY PRASAD

For the Appellant : Ms. Shruti Shrestha, Advocate For the Respondent : Mr. Bhola Nath Ojha, A.P.P.

                 C.A.V. on 03.01.2022                   Delivered on     02.02.2022

                                                   ----
Rongon Mukhopadhyay, J.       Heard Ms. Shruti Shrestha, learned counsel for the
           appellant and Mr. Bhola Nath Ojha, learned A.P.P.

2. This criminal appeal is directed against the judgment and order of conviction and sentence dated 24.08.2017 (sentence dated 28.08.2017) passed by Sri Manoj Kumar Singh, learned Additional Sessions Judge-I, West Singhbhum at Chaibasa in S. T. Case No. 205 of 2009, whereby and whereunder, the appellant has been convicted for the offence punishable u/s 302 of the Indian Penal Code while acquitting him for the charges levelled u/s 497 of the Indian Penal Code and sentenced to undergo rigorous imprisonment (R.I.) for life along with a fine of Rs. 10,000/-.

3. The prosecution case as would appear from the First Information Report is that the son of the informant Nand Kishore Gope was married to Barsi Gope and they were having three children. The daughter-in-law of the informant was having an illicit relationship with Uday Sundi (Appellant) for the last one and half years and her daughter-in-law was carrying a pregnancy of six months. It has been alleged that Uday Sundi sells Ayurvedic medicine at Goelkera market and is also married having children. On account of such illicit relationship, the son and daughter-in-law of the informant used to regularly quarrel. On 04.05.2009 Uday Sundi on the pretext of going to a fair and consuming wine had taken away her son and after two-three days when Uday Sundi returned to Goelkera, the informant

had asked him about the whereabouts of her son to which Uday Sundi had replied that her son had returned back to Goelkera prior to his return. Since her son could not be traced out an information was given to Goelkera Police Station. It has further been alleged that on 17.05.2009 an information was received that a decomposed dead body was lying at Gantuburu forest. When the informant and other went to Daroga Sai, Rasika Bhengra who is the son-in-law of Uday Sundi had disclosed that on 05.05.2009 his father-in- law and Nand Kishore Gope had come to his house and in the afternoon they had gone to Gantuburu forest. When they reached the jungle, the father-in-law who was having an axe started assaulting Nand Kishore Gope on his head. His father-in-law had told Rasika Bhengra not to disclose the incident to anyone. When the informant went to the jungle she found the decomposed dead body of her son.

Based on the aforesaid allegations, Goelkera P.S. Case No. 13/2009 was instituted for the offences punishable u/s 302/201/366 of the I.P.C. against the sole appellant. On conclusion of investigation charge-sheet was submitted u/s 302/201/366/497 and 120B of the I.P.C. against the appellant Uday Sundi and co-accused Barsi Gope. Cognizance was duly taken and after supply of police papers, the case was committed to the Court of Sessions on 13.08.2009 which was registered as S.T. Case No. 205 of 2009. Charge was framed against Barsi Gope and Uday Sundi for the offences punishable u/s 302/34 of the I.P.C. and separate charge was framed against Uday Sundi for the offence punishable u/s 497 of the I.P.C. and the contents of the charge were read over and explained to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as nine (09) witnesses in support of its case.

P.W. 1 Mithila Gope is the informant who has stated that her daughter-in-law Barsi Gope had illicit relationship with Uday Sundi which resulted in her getting pregnant. Because of such relationship there was a regular quarrel between her son and daughter-in-law. She has deposed that the Monday prior to the occurrence her son, daughter-in-law and Uday Sundi had gone to see a fair at Daroga Sai. Her son did not return back and when she confronted Uday Sundi, he disclosed that her son had left the fair much earlier. When her son did not return after 10-12 days, the matter was

intimated to the Police Station. She has deposed that in course of search Rasika Bhengra had disclosed one day that Uday Sundi had taken her son to the hills and committed his murder. When she and the other villagers went towards the hills they found the dead body of her son.

In cross examination, this witness has stated that her daughter-in-law used to frequently stay in the house of Uday Sundi. Uday Sundi also used to stay at her house with her daughter-in-law and her son also used to sleep in the same room. The house of Rasika Bhengra is at about a distance of 6-7 km. from her house. She has further stated when in course of search she had gone to Daroga Sai which is the village of Rasika Bhenrga he had disclosed about the murder committed by his father-in-law Uday Sundi.

P.W. 2 Sonamati Sundi has not supported the prosecution case and accordingly she has been declared hostile by the prosecution.

P.W. 3 Rasika Bhengra is the sole eye witness to the occurrence who has stated that the appellant Uday Sundi is his father-in-law. On the date of the incident Nand Kishore Gope @ Jhunku Gope (Deceased) and his father- in-law had come to his house in the afternoon. Uday Sundi had an axe and he had taken this witness as well as Nand Kishore Gope to Gantuburu jungle when Uday Sundi had assaulted Nand Kishore Gope with an axe on his head and back. He has stated that Nand Kishore Gope died in the jungle itself. He does not know the reason for the murder.

In cross examination he has stated that he does not know Nand Kishore Gope. He was forcibly taken to the place of occurrence by Uday Sundi. He claims to have seen the occurrence from a distance of 100 ft. The Chowkidar had come to him after three weeks from the date of occurrence. This witness had disclosed about the incident on the same day it occurred to his wife.

P.W. 4 Lobo Gope is the younger brother of the deceased Nand Kishore Gope. He has stated that Uday Sundi had taken away his brother to Daroga Sai, but he did not return and after sixteen days his dead body was found in the Jungle. He has further stated that the son-in-law of Uday Sundi had disclosed about the murder of Nand Kishore Gope being committed by Uday Sundi.

In his cross examination he has stated that neither had he seen the murder nor he had seen his brother accompanying Uday Sundi.

P.W. 5 Jurendra Samad has stated that he had heard that Uday Sundi and the wife of Nand Kishore Gope had committed the murder of Nand Kishore Gope.

P.W. 6 Turam Koda has stated that he had not witnessed the murder, but he had heard about Nand Kishore Gope having been murdered by Uday Sundi and the wife of Nand Kishore Gope.

P.W. 7 Sursingh Gagrai has stated that he had heard about Nand Kishore Gope having been murdered, but he does not know as to who had committed the murder.

P.W. 8 Dr. Vibhakar Kumar was posted as a Tutor at MGM Medical College Jamshedpur on 18.05.2009 and on that date he had conducted autopsy on the dead body of Nand Kishore Gope and had found the following injuries:

Incised wound

(i) 6 cm X 5 cm into bone deep over right side of neck upper most part lateral side.

(ii) 5 cm X 3 cm into bone deep over left side of temporal area of skull.

Internal Injury Fracture of all ribs of right side chest front.

Lungs are in putrefying stage.

Internal organs are in putrefying stage.

Heart chambers are empty.

Stomach wall are eaten away (partly) by maggots. Brain matter are solidify and are blood tinged ash colour. Cut fracture of lower border of C1 vertebra.

Crack fracture of left temporal bone.

As per his opinion, the injuries were ante mortem in nature caused by heavy sharp cutting weapon and death was due to hemorrhage and shock. He has proved the postmortem report which has been marked as Ext. 2.

P.W. 9 Satyendra Singh has deposed that in the year 2009 he was posted at Goelkera Police Station as Literate Police. The Investigating Officer was Tileshwar Ram who has since died. The Fardbeyan of Mithila Gope is in the handwriting of Tileshwar Ram who had also signed on the same. The Fardbeyan has been marked as Ext. 3 with objection. The formal F.I.R. was

marked as Ext. 4 also with objection. The memo of arrest of Uday Sundi and Barsi Gope bears the handwriting and signature of Tileshwar Ram which has been marked with objection as Ext. 5 and 5/1. The inquest report, case diary and charge sheet which are also in the handwriting of Tileshwar Ram and bears his signature have been marked with objection as Ext. 6, 7 and 8 respectively.

5. The appellant on being confronted with the evidence of the witnesses during his Section 313 Cr.P.C. examination has merely denied of his involvement in the murder.

6. Ms. Shruti Shrestha, learned counsel appearing for the appellant has submitted that the entire conviction is based on the evidence of the solitary eye witness Rasika Bhengra (PW 3). It has been submitted that the silence of this witness for such a long time discredits his testimony. P.W. 3 had disclosed about the incident to the Chowkidar of the village but the said Chowkidar has not been examined. Ms. Shrestha has submitted that as per P.W. 3, he had disclosed about the incident of murder to his wife on the same day, but his wife has also not been examined. It has been submitted that the informant (PW 1) has claimed to have been apprised of the murder committed by the appellant by Rasika Bhengra (PW 3), but the said version also appears to have remained uncorroborated, if the evidence of PW 3 is taken into consideration. Learned counsel adds that there has been an inexplicable delay in lodging the First Information Report. She has submitted that the motive for the murder seems to have evaporated as on conclusion of the trial, the learned trial court had acquitted the appellant for the offence punishable u/s 497 I.P.C. The non-examination of the Investigating Officer has caused prejudice to the defence as neither the place of occurrence could be established nor could he be confronted with the evidence of the witnesses who seems to have given different versions of the occurrence. On such parameters, learned counsel prays that the appellant be acquitted from the charges levelled against him.

7. Mr. Bhola Nath Ojha, learned A.P.P. has relied upon the evidence of the sole eye witness P.W. 3 whose version according to him is cogent and trustworthy. Mr. Ojha submits that P.W. 4 had witnessed the assault committed by the appellant upon Nand Kishore Gope with an axe and it was quite natural for this witness to have kept silent as he was threatened

by the appellant if the incident was disclosed to anyone. Learned APP adds that P.W. 3 had disclosed about the occurrence to P.W. 1 and P.W. 4 and both have stated about coming to know about the incident from Rasika Bhengra (PW 3). So far as the non-examination of the Investigating Officer is concerned, Mr. Ojha submits that he has already died during the trial and as such he could not be examined and his non-examination has not at all caused prejudice to the defence.

8. We have considered the rival submissions and have also scrutinized the lower court records. The genesis of the conviction of the appellant seems to be the evidence of P.W. 3 who claims himself to be an eye witness and therefore his evidence has to be treated with circumspection. He has stated that in the afternoon of the date of the incident, the appellant as well as Nand Kishore Gope had come to his house. The appellant was having an axe in his hand. The appellant had taken Nand Kishore Gope as well as P.W. 3 to the jungle where Nand Kishore Gope was done to death by the appellant by assaulting him with an axe. In his cross examination P.W. 3 has stated that he was forcibly taken to the jungle by the appellant. This conduct of the appellant does not seem to be a natural human conduct. The prosecution has painted the appellant as a person who has committed the murder since he was having an illicit relationship with the wife of the deceased Nand Kishore Gope. If that be the scenario it would be a highly imprudent act on the part of the appellant to have forced P.W. 3 to accompany him towards the jungle. Moreover, if we assume whatever has been stated by P.W. 3 to be true, the same would indicate a predetermined act on the part of the appellant as P.W. 3 has not disclosed of any quarrel between the appellant and Nand Kishore Gope inviting an assault by the appellant on the spur of the moment and such predetermined act would not indulge showcasing such act of murder.

9. The other important aspect which could be deciphered from the evidence of P.W. 3 is the fact that whatever has been stated by him has not even been circumstantially corroborated. In the First Information Report, the informant had stated about a body having been found lying in Gantuburu jungle and Rasika Bhengra (PW 3) had disclosed about the incident to the informant and others. In her examination-in-chief, P.W. 1 (Informant) has stated that she and others were informed about the murder

by P.W. 3 and thereafter they went and found the decomposed dead body of Nand Kishore Gope in the jungle. P.W. 4 who happens to be the brother of the deceased has stated about the dead body of his brother having been found in the jungle after sixteen days. Rasika Bhengra (PW 3) in his examination has stated about the disclosure made by him to the Chowkidar and others, but he has admitted that he does not know the other persons present. In his cross examination P.W. 3 has been categorical in stating that the Chowkidar had come to him after three weeks from the date of the incident and he had disclosed about the occurrence to the police and the Chowkidar. He had also stated about the incident to his wife Chand on the same date. To no other person he had disclosed about the incident. This contradicts whatever has been stated by P.W. 1 and P.W. 4 to the effect that it was P.W. 3 who had disclosed about the occurrence to them. Neither the Chowkidar has been examined nor the police personnel before whom such disclosure was made were examined. The wife of P.W. 3 namely Chand has also not been examined by the prosecution.

10. We must also indicate herein that so far as the blood stained Farsa is concerned, the same could not undergo a serological test as the blood detected was too little for carrying out such test as stated by P.W. 9 and therefore the Farsa cannot be ascertained to be one of the weapons used in the commission of the murder.

11. What remains therefore is the version of a person (PW 3) which lacks credibility and trustworthiness. It was observed by the Hon'ble Supreme Court in the case of Lahu Kamlakar Patil v. State of Maharashra reported in 2013(6) SCC 417 while considering the other judgments on the issue of human behavior that:-

26. From the aforesaid pronouncements, it is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear and if there is any delay in their examination, the testimony should not be discarded. That apart, a court has to keep in mind that different witnesses react differently under different situations. Some witnesses get a shock, some become perplexed, some start wailing and some run away from the scene and yet some who have the courage and conviction come forward either to lodge an FIR or get themselves examined immediately. Thus, it differs from individuals to individuals. There cannot be uniformity in human

reaction. While the said principle has to be kept in mind, it is also to be borne in mind that if the conduct of the witness is so unnatural and is not in accord with acceptable human behaviour allowing variations, then his testimony becomes questionable and is likely to be discarded.

12. The conduct of P.W. 3 is beyond reasonableness. As noted above nothing is on record to indicate that immediately after the occurrence he had disclosed about the incident thus setting the criminal law in motion. He keeps silent for an inordinately long time and all of a sudden comes up with his version of the incident. He has not explained as to why it took so much time for him to speak out and/or what prompted him to reveal the facts later on. In the backdrop of such facts, the Investigating Officer assumes considerable significance but then he could not be examined on account of his untimely death.

13. The learned trial court has not properly appreciated the evidence on record specially that of P.W. 1 and P.W. 4 with respect to their veracity and truthfulness as well as the conduct of P.W. 3 which is not at all above board.

14. In view of the reasonings noted above, we think it fit to allow this appeal. Accordingly, the judgment and order of conviction and sentence dated 24.08.2017 (sentence dated 28.08.2017) passed by Sri Manoj Kumar Singh, learned Additional Sessions Judge-I, West Singhbhum at Chaibasa in S. T. Case No. 205 of 2009 by which the appellant has been convicted for the offence punishable u/s 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment (R.I.) for life along with a fine of Rs. 10,000/- is hereby set aside.