Jharkhand High Court
Gardi Mundari @ Diku vs The State Of Jharkhand on 5 July, 2022
Cr. Appeal (DB) No. 1042 of 2012
[Against the judgment and order of conviction and sentence dated 23.05.2012,
(Sentence passed on 24.05.2012), passed by Shri Ghanshyam Kumar Mallik,
learned 1st Additional Sessions Judge-Singhbhum West at Chaibasa in S.T. No.
90 of 2001(S).
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Gardi Mundari @ Diku, S/o late Morai Mundari, R/o village-Haribeda, P.O. P.S.
Manjhari, District-Singhbhum West. .....Appellant
Versus
The State of Jharkhand. ....Respondent
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For the Appellant : Mr. Jitendra S Singh, Advocate
For the Respondent : Mr. Satish Prasad, A.P.P.
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE AMBUJ NATH
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13/05.07.2022 Heard Mr. Jitendra S Singh, learned counsel for the appellant and Mr.
Satish Prasad, learned A.P.P.
2. This appeal is directed against the judgment and order of conviction and
sentence dated 23.05.2012 (Sentence passed on 24.05.2012), by Shri
Ghanshyam Kumar Mallik, learned 1st Additional Sessions Judge-Singhbhum
West at Chaibasa in S.T. No. 90 of 2001(S), whereby and whereunder the
appellant has been convicted for the offences under sections 302, 201/34 and
120B of the Indian Penal Code and has been sentenced to rigorous
imprisonment for life for the offence under section 302 of the Indian Penal Code,
rigorous imprisonment for two years for the offence under section 201/34 of the
Indian Penal Code and rigorous imprisonment for three years for the offence
under section 120B of the Indian Penal Code and all the sentences were directed
to run concurrently.
3. The fardbeyan of one Palo Hembrom was recorded on 15.3.2010 at 7
a.m., in which it has been stated that her husband-Birsa Hembrom works as a
Peon in Chaibasa Court and everyday he goes out for his duty on his bicycle.
On 9.3.2000, her husband had left for his duty at 7 A.M. but he did not return.
When on the next day also, he did not return, the informant became suspicious
and he informed his son who stays in a hostel and both of them made a search
at various places. It has been alleged that on 14.03.2000, the informant came to
Cr. Appeal (D.B.) No. 1042 of 2012
know that a dead body was found floating in a well at village-Punduguttu. On
hearing such news, he went to Punduguttu along with her son and identified the
body floating in the well as that of her husband. When the dead body of the
husband of the informant was taken out from the well, several injuries were found
on his person, which were perhaps inflicted with a sharp cutting weapon. In order
to cause disappearance of the dead body, a stone was strapped on his right leg
before being thrown in the well. It has been alleged that the husband of the
informant was on inimical term with the accused-Gardi Mundari @ Diku for the
last six months since the accused on the pretext of marriage had physical
relationship with the daughter of Bara Sadhu Kalundia resulting in her becoming
pregnant and on account of being related to Bara Sadhu Kalundia, he was
pressuring the accused to solemnize marriage with Madey Kui, the daughter of
Bara Sadhu Kalundia. Further allegation has been levelled that Gardi Mundari
often used to come at night to the house of the informant and threaten her
husband to not to get himself involved in the dispute. It was Gardi Mundari who
had conspired and committed the murder of her husband and had thrown the
dead body in the well to cause disappearance of evidence.
4. Based on the aforesaid allegations Manjhari P.S. Case No. 5 of 2000 was
instituted against the appellant- Gardi Mundari @ Diku for the offences under
sections 302, 201 and 120B of the Indian Penal Code. On conclusion of
investigation, chargesheet was submitted against Pradeep Purty, Gardi Mundari
and Chandra Mohan Mundari who has since died. After cognizance was taken,
the case was committed to the Court of Sessions. The present accused who was
absconding was finally arrested and thereafter charge was framed against him
under sections 302, 201/34 and 120B of the Indian Penal Code, which was read
over and explained to the accused in Hindi, to which he pleaded not guilty and
claimed to be tried.
5. The prosecution has examined as many as twelve witnesses in support of
its case. It appears that four of the chargesheet witnesses namely Sura Kalundia,
Bara Samad, Narsingh Diggi and Sri Ram Mundari had died during the pendency
of the trial.
P.W-1-Lal Krishna Sidiu is a signatory to the inquest report, which has
been marked as Ext-1. He has also proved his signature on the seizure list of
the rope, which has been marked as Ext-1/1. He had also signed on the
fardbeyan of Palo Hembrom, which has been proved and marked as Ext-1/2.
In cross-examination, he has stated that he had reached the place of
occurrence after the body was taken out from the well. He had not seen any
injuries over the dead body.
Cr. Appeal (D.B.) No. 1042 of 2012
P.W-2-Mora Mundari has not supported the prosecution case and
accordingly has been declared hostile by the prosecution.
P.W-3-Raghubir Chaki has deposed that the incident is of 8-10 years
back. A dead body was taken out from a well situated in his village and the same
was identified to be that of Birsa Hembrom. There were injuries on the dead
body. He has proved his signature on the inquest report, which has been marked
as Ext-2. He has also proved his signature in the seizure list with respect to a
rope and which has been marked as Ext-2/1.
In cross-examination, he has deposed that he had gone to the place of
occurrence in his capacity of being the Munda of the village.
P.W-4-Bir Singh Gagrai has stated that he knew the deceased-Birsa
Hembrom who was a Peon in C.J.M. Court, Chaibasa. On 9.3.2000, he had gone
for court duty on a bicycle but did not return back. He has stated that on
14.3.2000, his dead body was recovered from inside a well situated in village-
Pundigutu. The dead body was identified to be that of Birsa Hembrom. A stone
was tied on the leg of the deceased. He has also stated that there were marks
of injuries on his body. He had come to know that prior to the occurrence, a
quarrel had ensued between the deceased and Gardi.
In cross-examination, he has stated that the deceased and Gardi had
never quarreled in his presence.
P.W-5-Vijay Oraon has deposed that he was having acquaintance with
Birsa Hembrom. On 9.3.2000, Birsa Hembrom had gone to attend his duty but
he did not return back and on 14.03.2000, he had come to know that his body
was tied to a stone and thrown in the well. He had gone to see the dead body
and he had found marks of violence over the same.
P.W-6-Arjun Singh Birua has not supported the case of the prosecution
and has accordingly been declared hostile by the prosecution.
P.W-7-Palo Hembrom is the informant and the wife of the deceased who
has stated that the incident is of 15 years back and on the fateful day her
husband had gone on a bicycle to Chaibasa Court but he did not return home.
He was searched and the Munda was also informed. She has stated that on
Tuesday his body was recovered from inside a well at village-Pundigutu. The
dead body was floating in the well and there were marks of injuries on various
parts of the body. She has also deposed that the body was tied with a stone
which was confined in a bag. The police was informed and her fardbeyan was
recorded, in which she had put her thumb impression. She has stated that the
accused had a physical relationship with Madey Kui as a result of which she had
Cr. Appeal (D.B.) No. 1042 of 2012
become pregnant. A Panchayati was called but the accused refused to
solemnize marriage with Madey Kui. She has stated that her husband had been
vocal in the Panchayat meeting due to which Gardi Mundari had threatened him
with dire consequences. Her husband was also threatened by Gardi Mundari
even a day before the occurrence.
In cross-examination, this witness has stated that her husband shared a
sour relationship with Gardi Mundari from before. She has stated that the
Panchayat meeting was held one week prior to the occurrence.
P.W-8-Chokro Birua has proved his signature over the confessional
statement of Pradeep Purty, which has been marked as Ext-3.
In cross-examination, he has stated that he had signed on the
confessional statement on the dictates of the police and the Munda.
P.W-9-Lakhan Kalundia has proved his signature on the confessional
statement of Pradeep Purty, which has been marked as Ext-3/1.
In cross-examination, he has stated that he had made his signature in the
presence of the police and the villagers. He does not know the contents of the
statement, in which he had put his signature.
P.W-10-Dr. Arun Kumar was a posted as a Medical Officer at Sadar
Hospital, Chaibasa on 15.03.2000 and on that date, he had conducted autopsy
on the dead body of Birsa Hembrom and had found the following:-
(I) Lacerated wound 2 ½ x 1" x bone deep over left parietal and frontal
region.
(II) Lacerated wound 1 x1/2"x1/2"x1 ½ over left side of neck.
(III) Incised wound 2 ½ "x1/2x2" over abdomen at right hypo chondrium.
On dissection:
Head and neck-fracture of left parietal and part of frontal bone,
blood & blood clot were present in left cranial cavity. Brain was
lacerated.
Chest:
Fracture of VIIIth, IXth and Xth ribs of right side chest. Blood and
blood clot were present at fracture side.
Right lung was lacerated. Blood and blood clot was present in the
right pleural cavity.
No fluid in the lung and trachea was present.
Cr. Appeal (D.B.) No. 1042 of 2012
Abdomen:
Peritoneal cavity was full of blood. Right lobe of liver was lacerated.
Multiple punctures of intestines were present. Stomach was empty.
The cause of death was opined to be due to hemorrhage and shock
caused by above injuries and head injuries. The nature of weapon
used as per this witness were hard blunt and sharp cutting. He has
proved the postmortem report, which has been marked as Ext-4.
P.W-11-Prabhunath Prasad was posted as a Judicial Magistrate, First
Class, Porahat (Chaibasa) and on 18.03.2000 he had recorded the 164 Cr.P.C.
statement of the accused-Pradeep Purty. He has stated that the accused
Pradeep Purty had voluntarily given his statement which was read over and
explained to him, after which he had put his thumb impression over the same.
The Bench clerk Chandra Bhushan Prasad had written down the certificate on
the statement and this witness had put his signature on the same. The 164
Cr.P.C. statement is in his handwriting and he had signed on the same, which
has been proved and marked as Ext-5.
In cross-examination, he has stated that the certificate in the 164 Cr.P.C.
statement of Pradeep Puty was written by the Bench Clerk on his orders.
P.W-12-Marshal Topno has proved the formal FIR, Fardbeyan and
inquest report, which has been marked as Ext-6, 7 and 8 (with objection)
respectively. He has proved the seizure list with respect to seizure of rope,
which has been marked as Ext-9. The application given to the C.J.M., Chaibasa
for recording the 164 Cr.P.C. statement is in the handwriting of Anirudh Prasad
Sharma, Sub Inspector of Police and has been signed by him and it has been
proved and marked as Ext-10.This witness has also proved the production cum
seizure list of a Titan watch, which has been marked as Ext-11.
6. The statement of the accused was recorded under section 313 Cr. P.C. ,
in which he has denied to be having any role in the murder of Birsa Hembrom.
7. Mr. Jitendra S Singh, learned counsel for the appellant, has submitted that
the conviction of the appellant is based upon a suspicion raised by the informant
on account of a previous enmity with her husband and the 164 Cr.P.C. statement
of accused-Pradeep Purty, in which Pradeep Purty had made a confession and
has implicated the present appellant of being primarily involved in commission
of the murder of Birsa Hembrom. Mr. Singh, learned counsel further submits that
Pradeep Purty has been tried, convicted and sentenced in a separate trial and
Cr. Appeal (D.B.) No. 1042 of 2012
in absence of there being a joint trial, the confessional statement of an accused
cannot be used against another accused.
8. Reference has been made to Section 30, Illustration (b) of the Evidence
Act while submitting that the learned trial court has erred in relying upon
Illustration (a) to Section 30 of the Evidence Act and there being no other
material available on record to indict the appellant the judgement and order of
conviction and sentence dated 15.03.2000 is liable to be set aside.
9. Mr. Satish Prasad, learned A.P.P., has opposed the prayer for bail of the
appellant and has submitted that the 164 Cr.P.C. statement, which is inculpatory
in nature can clearly be used against the appellant in view of Section 30 of the
Evidence Act. Learned A.P.P. has submitted that the circumstances warrant a
strong presumption since the appellant was already on inimical terms with the
deceased and in view of the confessional statement rendered by Pradeep Purty
before the police as well as before the learned Magistrate while recording his
statement under section 164 Cr.P.C., the needle of suspicion clearly points
towards the appellant more so in view of the fact that for the same set of
allegations, Pradeep Purty has also been convicted by the learned trial court
much prior to the conviction of the appellant. As the appellant was absconding,
no interference can be made with respect to the impugned judgement.
10. We have heard the respective counsels and have also perused the Lower
Court Records. The prosecution case in a nutshell is of the husband of the
informant going to attend his duties but having not returned a search was
conducted and after almost five days, his dead body which was tied with a stone
was recovered from a well situated at village-Pundigutu. The incriminating
circumstance, which has been highlighted by the prosecution before the learned
trial court is the apparent suspicion the informant had on account of her husband
objecting to the immoral act of the appellant in not solemnizing marriage with
Madey Kui though she was made pregnant by the appellant on account of a
physical relationship he had established on the pretext of marriage and the
regular threats extended to the deceased by the appellant. The other
incriminating circumstance is the 164 Cr.P.C. statement of accused Pradeep
Puty implicating himself as well as the appellant in committing the murder of the
husband of the informant and causing disappearance of the dead body by
throwing it in the well.
11. It would be pertinent to mention herein that the appellant was absconding
since the date of the offence and finally on being apprehended after almost nine
years the appellant had faced trial and was convicted and sentenced for the
offences under sections 302, 201/34 and 120 B of the Indian Penal Code. The
Cr. Appeal (D.B.) No. 1042 of 2012
trial of co-accused-Pradeep Puty who is the harbinger of the involvement of the
present appellant was tried and convicted vide judgment dated 8.1.2004. The
164 Cr.P.C. statement of Pradeep Puty has been exhibited and a perusal of the
same reveals that Pradeep Purty has conveniently implicated the appellant as
being the person who had pressed the neck of Birsa Hembrom, taken him to a
field and assaulted him with a tangi resulting in his death. As regards his own
role is concerned, he has tried to make out a case in the 164 Cr.P.C. statement
that he had helped in getting the dead body thrown in the well by catching hold
of the legs of the deceased due to the threats meted out by the present appellant.
12. Section 30 of the Evidence Act reads as follows:-
30. Consideration of proved confession affecting person making it
and others jointly under trial for same offence.--When more persons
than one are being tried jointly for the same offence, and a confession
made by one of such persons affecting himself and some other of such
persons is proved, the Court may take into consideration such
confession as against such other persons as well as against the person
who makes such confession.
[Explanation.--"Offence", as used in this section, includes the abetment
of, or attempt to commit the offence.]
Illustrations
(a) A and B are jointly tried for the murder of C. It is proved that A said--
"B and I murdered C". The Court may consider the effect of this
confession as against B.
(b) A is on his trial for the murder of C. There is evidence to show that C
was murdered by A and B, and that B said--"A and I murdered C".
This statement may not be taken into consideration by the Court against
A, as B is not being jointly tried.
13 The learned trial court has relied upon illustration (a) but the facts of the
present case would attract illustration (b) of Section 30 of the Evidence Act since
the author of the 164 Cr.P.C. i.e. Pradeep Purty was tried and convicted while
the present appellant was an absconder and on being arrested was
subsequently tried and convicted and sentenced accordingly. In absence of
there being a joint trial of Pradeep Purty as well as the appellant, the
confessional statement of Pradeep Purty, if taken into consideration for
convicting the appellant the same would be against the spirit of illustration (b) of
Section 30 of the Evidence Act.
14. In the case of Hardeep Singh Sohal Vs. State of Punjab reported in
(2004) 11 SCC 612 the Hon'ble Supreme Court was considering the extra
judicial confession of an accused vis a vis the stringent provisions of the Terrorist
and Disruptive Activities Prevention Act, 1987and it was held as follows:-
6. The extra-judicial confession allegedly made by Balwinder Singh can only be
considered under Section 30 of the Indian Evidence Act, 1872. The extra-judicial
confession cannot be admitted in evidence as Balwinder Singh was not tried
along with the appellants. It is interesting to note that though a charge-sheet was
filed against Balwinder Singh, in the judgment he is shown as a proclaimed
Cr. Appeal (D.B.) No. 1042 of 2012
offender. According to the prosecution, Balwinder Singh was arrested on 18-4-
1993. PW 45 Gurnam Singh, who was the Station House Officer of Police Station
Civil Lines, Patiala, along with a Sub-Inspector and three constables, was on
patrol duty near NIS Chowk, Patiala on 18-4-1993. They came to know that one
taxi driver who had committed various crimes had been roaming in the city in a
vehicle without registration number. In the meanwhile, one Maruti car without
registration number came and the same was intercepted and its driver was taken
into custody. He was in possession of a .32 bore revolver loaded with five live
cartridges. He told them that his name was Balwinder Singh. According to the
prosecution he escaped from custody and was later declared as a proclaimed
offender. The counsel for the appellants contended that Balwinder Singh was
killed in a fake encounter by the police, for which a criminal case also is filed
against some of the police officers. In any case, Balwinder was never tried along
with the present appellants. The extra-judicial confession made by Balwinder
Singh could have been taken into consideration only when he was tried along
with the present appellants.
13. Section 15 of the TADA Act as amended by Act 43 of 1993 clearly stipulates
that the confession recorded under Section 15 of the TADA Act is admissible only
if the confessor is charged and tried in the same case together with the co-
accused. After the amendment of 1993, the addition of the words "co-accused,
abettor or conspirator" and the insertion of the new "proviso" to the effect that "the
co-accused, abettor or conspirator is charged or tried together with the accused"
clearly shows that the confession could be considered by the court only when the
co-accused who makes the confession is charged and tried along with other
accused.
14. Unfortunately, Balwinder Singh @ Fauji is alleged to have escaped from
custody by 4-5-1993 or 5-5-1993 and the charge itself was framed by the court
later and Balwinder Singh was treated as a proclaimed offender by the Special
Judge. The Special Judge relied on the decision in Esher Singh v. State of A.P.3
and held that merely because one accused died before charges were framed,
that does not affect the confessional statement. The learned Judge was also of
the view that by operation of Section 30 of the Indian Evidence Act, the
confession of the co-accused could be made use of. The stand taken by the
Special Judge is incorrect. We do not think that Esher Singh case3 lays down the
law that a confession recorded under Section 15 could be made use of as
admissible evidence even if the co-accused, who made the confession, was not
charged or tried along with other accused. On the other hand, the decision
clearly states that after the amendment, the Designated Court could use the
confession of one accused against another accused only if the following two
conditions are fulfilled:
(1) The co-accused should have been charged in the same case along with the
confessor.
(2) He should have been tried together with the confessor in the same case."
15. We, therefore, are of the considered view that the reliance of the learned
trial court upon Illustration (a) of Section 30 of the Evidence Act was misplaced
and in view of the fact that there is absolutely no evidence on record save and
except suspicion, the learned trial court could not have convicted the appellant
for the offences under sections 302, 201/34 and 120B of the Indian Penal Code.
16. Consequent to what has been discussed above, we find merit in this
appeal and accordingly this appeal stands allowed and the judgment and order
of conviction and sentence dated 23.05.2012 (Sentence passed on 24.05.2012),
by Shri Ghanshyam Kumar Mallik, learned 1st Additional Sessions Judge-
Singhbhum West at Chaibasa in S.T. No. 90 of 2001(S), whereby and
whereunder the appellant has been convicted for the offences under sections
302, 201/34 and 120B of the Indian Penal Code and has been sentenced to
rigorous imprisonment for life for the offence under section 302 of the Indian
Cr. Appeal (D.B.) No. 1042 of 2012
Penal Code, rigorous imprisonment for two years for the offence under section
201/34 of the Indian Penal Code and rigorous imprisonment for three years for
the offence under section 120B of the Indian Penal Code, is hereby set aside.
Since the appellant is in custody, he is directed to be released forthwith if not
wanted in any other case.
( Rongon Mukhopadhyay,J)
(Ambuj Nath, J)
Jharkhand High Court, Ranchi
Dated-5th July, 2022
Rakesh/NAFR.
