Etwa Munda vs The State Of Jharkhand
2023 Latest Caselaw 2541 Jhar

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     IN THE HIGH COURT OF JHARKHAND AT RANCHI
          Criminal Appeal (D.B.) No.1796 of 2017
(Against the Judgment of conviction dated 30.05.2017 and Order of
sentence dated 03.06.2017, passed by the District & Additional
Sessions Judge-I, Khunti, in Sessions Trial Case No.466 of 2009).
                         -------------
Etwa Munda, son of Sukhram Munda, resident of village
Rumchu, Tola Ruguddih, P.O. & P.S. Arki, District Khunti,
Jharkhand.                             ... ...    Appellant
                           Versus
The State of Jharkhand                 ... ...    Respondent
                          --------
For the Appellant   : Ms. Anjana Kumari, Advocate
For the Resp.-State : Mr. Vishwanath Roy, Spl.P.P.
                          --------
                          PRESENT
     HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
         HON'BLE MR. JUSTICE SUBHASH CHAND
                           -------
C.A.V. on 14.07.2023             Pronounced on 02/08/2023

Per Sujit Narayan Prasad, J.

The instant appeal has been preferred under Section

374(2) of the Code of Criminal Procedure against the

Judgment of conviction dated 30.05.2017 and Order of

sentence dated 03.06.2017, passed by the District &

Additional Sessions Judge-I, Khunti, in Sessions Trial Case

No.466 of 2009, whereby, the appellant has been found guilty

and convicted for the offences under Section 302 of the

Indian Penal Code and upon hearing on the point of

sentence, the appellant has been sentenced to undergo

imprisonment for life for the offence under Section 302 of the

Indian Penal Code.

2. The prosecution case is based on the fardbeyan of

Chaukidar, Muni Mirdha recorded on 16.12.2008 at about

11:45 hours before Officer-in-Charge, Arki Police Station that

on 16.12.2008 the informant, in course of serving notices,

went to village Rumchu, then the villagers told him that due

to previous enmity Etwa Munda S/o Sukhram Munda,

resident of village Rumchu Tola Rugaddih,, P.S. Arki, District

Khunti had mercilessly killed Dulari Devi W/o Late Lalsoy

Munda, her daughter-in-law Powline Nag and her one year

old daughter at about 4:00 PM in the evening of 15.12.2008

by a sharp cutting weapon and had fled away. On such

information, the informant went to the place of occurrence

and had seen that many persons were present there and

dead bodies of aforesaid three persons were lying there which

sustained injuries of sharp cutting weapon.

2.1 It has been stated that as per villagers, elder son of

deceased (Dulari Devi) namely Mani Ram Munda is out of

State whereas her younger son, who lives with deceased, has

fled away due to fear of accused Etwa Munda, and no other

person is present in her house.

3.1 It has further been stated that the reason behind

the occurrence, as per villagers, is that nearly one and half

months back a goat of Dulari Devi has grazed Maduwa crop

of accused and due to that there was enmity between both

the families and for such enmity Etwa Munda had committed

the murder through the sharp cutting weapon.

3.2 On the basis of the aforesaid fardbeyan Arki P.S.

Case No. 39/08 dated 16.12.2008 U/S 302 I.P.C. against the

accused Etwa Munda was registered.

3.3 After completion of investigation, the Investigating

Officer has submitted chargesheet on 31.01.2009 for the

offence U/s 302 I.P.C. against the accused Etwa Munda in

the Court of A.C.J.M. Khunti who after taking cognizance for

the offence U/S 302 I.P.C. has committed the case to the

court of sessions.

4. After commitment of the case to the Court of Session,

charge was framed against the accused for the offence under

Section 302 of the Indian Penal Code, and upon the accused's

pleading not guilty and claiming to be tried, he was put to

trial.

5. In course of trial, 09 witnesses were examined by

the prosecution, including the Doctor, who has proved the

post-mortem reports of all the three deceased.

6. The statements of the accused was recorded under

Section 313 of the Cr.P.C., wherein he has denied the

evidence against him. No evidence was adduced by the

defence.

7. Ms. Anjana Kumari, learned counsel for the appellant,

has submitted that the learned trial court has not considered

the infirmities in the testimony of the witnesses. It has been

submitted by referring to the testimony of PW-5 that it would

be evident by going through the testimony of PW-5, the same

cannot be said to be acceptable, because in paragraph-8 of

his cross-examination wherein he has deposed that after

seeing the dead bodies, he fled away from the village and

thereafter 15 - 20 days he remained in the maternal uncle's

house. He returned from his maternal uncle's house after 15

- 20 days but in the meanwhile the villagers had already

cremated the dead bodies.

7.1 Learned counsel for the appellant has submitted

that the aforesaid conduct of PW-5 cannot be said to be

natural since he happens to be the son of one of the deceased

namely, Dulari Devi, and being son, the natural behavior of

PW-5 would have to report the commission of crime to the

police but he remained silent for about 15 - 20 days, as per

the testimony as recorded in paragraph-8, and as such the

same cannot be said to be reliable.

7.2 It has also been submitted that the informant, PW-

4, who happens to be the Chowkidar, has also not disclosed

that on whose information the F.I.R. was instituted.

7.3 Learned counsel for the appellant, on the basis of

these grounds, has submitted that the instant appeal may be

allowed by quashing and setting aside the judgment of

conviction.

8. Per contra, Mr. Vishwanath Roy, learned Special

Public Prosecutor, appearing for the respondent State, has

submitted that the impugned judgment suffers from no

infirmity since the testimony of PW-5 has well been

corroborated by the medical evidence and by taking into

consideration the ocular evidence in corroboration to the

medical evidence, the judgment of conviction since has been

passed, therefore, the impugned judgment needs no

interference.

9. We have heard the learned counsel for the parties,

perused the documents available on record and the testimony

of the prosecution witnesses as well as the postmortem report

as available in the lower court records.

10. This Court, in order to appreciate the argument

advanced on behalf of the parties, as per the grounds referred

hereinabove, deems it fit and proper that before appreciating

the same in order to consider the legality and propriety of the

impugned judgment, to consider the testimony of the

prosecution witnesses.

10.1 P.W.1-Mohan Singh Munda, P.W.-2-Sohan Munda

and P.W.3. Bahudar Nag, who are villagers have turned

hostile.

10.2 P.W.4 Muni Mirdha is informant of this case who

was examined and admitted that he is not eye witnesses of

occurrence but being a Choukidar when he went to village

Ruguddih, he came to know about the occurrence and this

case has been lodged on his fardbeyan as because the three

persons of the same family were killed by the accused and

the only remaining family member, who is younger son of

deceased Dulari, had fled away, due to fear of this very

accused.

10.3 He has deposed that he had lodged this case and

has further identified his signature over the fardbeyan which

is marked as Ext.1. In para 2 of his examination-in- chief he

has stated that occurrence was of nearly four years back and

on that day some villagers of Rugdudih came and informed

about the murder of deceased then he alongwith officer-in-

charge went to the place of occurrence and had seen the dead

bodies. He has categorically stated that three dead bodies

were lying on the ground. Out of them one dead body was of

a girl child whereas two were the dead bodies of women.

10.4 He has further deposed that as per villagers they

were killed by Etwa Munda from sharp edged weapon. This

witness has stated that one son of the deceased old lady was

working outside the state whereas another son had fled away

from his house after seeing the occurrence.

10.5 P.W.5 Jitrai Munda the younger son of the

deceased Dulari Devi is only eye witness of the occurrence

and in his examination-in-chief he has stated that occurrence

was of 15.12.2008. It was afternoon and at that time he was

present at his house. He has further stated that nearly 200

yards away Etwa had killed his mother Dulari Devi, his

sister-in- law Powlin and her daughter Ramdin by a 'Tono" (a

sharp edged weapon, used to cut trees). He was also present

there. The accused had also attempted to kill him and rushed

towards him, then he fled away and went to his maternal

uncle's (Mama) house. This witness has further explained the

reason of occurrence by stating therein that his goat had

grazed Maduwa crops of accused, so the accused had killed

his mother, bhabhi and niece. This witness has further stated

that now he is living alone in his house and his brother is

working at Gujarat. He identified the accused present in

dock.

10.6 This witness was cross-examined at length. In his

cross-examination, this witness has explained the occurrence

and had stated that after seeing the occurrence he fled away

to his Mama's house due to fear. This witness has further

stated in cross- examination that the dead body of his mother

was lying near the house of Dubraj, which is 200 yards away

from his house and there is no other house present in

between house of this witness and the house of Dubraj.

10.7 P.W.6 Maniram Munda, P.W.7 Ragho Munda and

P.W.8 Hira Munda are hearsay witnesses who have supported

the case and have corroborated the deposition of P.W.4.

10.8 Dr. Sunil Khalkho has been examined as P.W.-9

who has stated that he had not conducted the postmortem

examination on the dead bodies of the deceased and the

postmortem reports have been prepared by Dr. Dayanand

Saraswati. He proved the postmortem reports the deceased

wherein following anti-mortem injuries on the body of the

deceased have been mentioned:-

Deceased Dulari Devi aged about 50 years

i. One deep cut wound at neck on the back side with

fracture of fourth and fifth cervical vertebra size 4"x1 ½"x

bone deep

ii. One cut wound over the nose about ½"x 1/4"

iii. One cut wound just below the eye 2"x1"x" deep ½".

All injures were found ante-mortem in nature and

caused by hard and sharp object.

Deceased Ramadi Nag aged about one year

i. One deep cut wound on neck, partially neck was

attached with vertebra size 6"x2½"x bone deep. In the neck

both sternocalcidomantiod mussels cut major vessels carotid,

both side cut at fourth and fifth at cervical vertebra trachea

and oceophogus.

ii. Abrasion of the left eyebrow size about 2"x1 ½"

iii. One cut would above the upper lips size 1 ½"x1"x4"

All injuries were ante-mortem in nature and caused by

hard heavy and sharp object.

Deceased Powlin Nag aged about 30 years

i. One deep cut wound over neck from back side 6" x 2 ½ "

bone deep. There was cut on both side fourth and fifth

cervical vertebra.

ii. One deep cut wound over the left chick including chin

4"x2 ½"x bone deep.

All injuries were ante-mortem in nature and caused by

hard heavy and sharp object.

The time elapsed since death was in between 12 to 24

hours at post- mortem examination.

10.9 The Investigating Officer has not been examined in

this case.

11. The learned trial court has considered the

testimony of P.W.-4 Muni Mirdha and P.W.-5 Jitrai Munda

particularly and corroborating it from the testimony of P.W.-9

Dr. Sunil Khalkho, has passed the order of conviction.

12. This Court, therefore, is now to consider as to

whether the testimony of P.W.-4 and P.W.-5 can be said to be

trustworthy to establish the charge by taking together the

testimony of the Doctor, P.W.-9.

12.1 There is no dispute that death is there and, as

such, the testimony of P.W.9, the doctor, so far as the nature

of injuries are concerned, cannot be disputed. But the

question herein is who has committed the crime.

12.2 The learned trial court has found the evidence

against the appellant on the basis of testimony of P.W.4 and

P.W.5. It is evident from the testimony of P.W.4 who happens

to be the Chaukidar of the area and is the informant, he has

deposed that when he reached to the village he was informed

by the villagers about commission of crime and then he

rushed to the place of occurrence along with Officer-in-

Charge and police force and found three dead bodies lying

there.

12.3 He has deposed that the villagers have disclosed

that Etwa Munda, the appellant herein, had killed all the

three deceased with sharp cutting weapon. He has further

deposed that the second son of the deceased Dulari Devi had

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fled away after seeing the crime. He has been cross-examined

and on the question that on whose call he had come to the

place of occurrence, answering the same, it has been deposed

by him that he cannot disclose the name. He has also not

disclosed the name of any of the villagers.

12.4 It is evident from the testimony of P.W.4 that he

has not seen the occurrence, rather, in the examination-in-

chief, although he has disclosed that he has been called by

the villagers but in the cross-examination he has also failed

to disclose the name of the villagers who had given

information about commission of crime.

13. P.W.5 Jitrai Munda, second son of deceased Dulari

Devi, although in the examination-in-chief, he has said that

at the time of occurrence he was in the house where the

appellant has killed his mother Dulari Devi, his bhabhi and

daughter. But in the cross-examination as under paragraph-

4 he has deposed that on the date of occurrence he was in

the house of his maternal uncle which is situated at a

distance of 10 k.m. from his house.

13.1 He has deposed at paragraph-5 that after seeing

the occurrence he had fled away to his maternal uncle's

house.

13.2 He has further deposed at paragraph-8 that after

seeing the dead bodies he fled away from the village and, after

remaining in the maternal uncle's house for 15 - 20 days

when he came back, he found that the dead bodies of all the

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three deceased were cremated.

13.3 He has further disclosed at paragraph-9 that he

was interrogated after 15 days from the date of occurrence.

13.4 It is evident from the testimony of PW-5, who

happens to be the son, that although in the examination-in-

chief he has deposed that he had seen the commission of

crime but in the cross-examination he has not supported the

aforesaid version, rather, it has been deposed by him that at

the time of crime he was in his maternal uncle's house.

13.5 Further, he has deposed at paragraph-8 that after

seeing the dead bodies he ran away from his house to his

maternal uncle's house and remained there for about 15 - 20

days and when returned the dead bodies of his mother,

bhabhi and daughter were cremated.

14. The question now requires to be considered that

the testimony of PW-4 who is not an eye witness, as would

appear from his testimony wherein he has disclosed that he

has not seen the commission of crime, rather, on call of the

villagers he came at the place of occurrence, can it be said to

be trustworthy.

15. It would be evident from the judgment impugned

that the learned trial court has considered the testimony of

PW-4 found to be in corroboration of the testimony of PW-5

and the medical evidence.

16. This Court is to see that whether the testimony of

PW-5 can be said to be reliable so as to warrant the

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conviction by way of piece of corroborative evidence of the

information furnished by PW-4.

16.1 Admittedly, the PW-5 is son of Dulari Devi, one of

the deceased. He, in the cross-examination, has said that he

has not seen the commission of crime.

16.2 He has further stated in the cross-examination as

under paragraph-8 that after seeing the dead bodies, he fled

away from his house to maternal uncle's house and remained

there for 15 - 20 days.

16.3 It is further evident from the testimony of PW-5,

who happens to be the son of deceased Dulari Devi, that he

remained silent for 15 - 20 days without making any report

even to his maternal uncle about murder of three members of

his family even then at the time of commission of crime he

was a man of full consciousness having the age of 25 years as

per the assessment of age made from the date of recording of

testimony, i.e., on 08.03.2013, and the disclosure of his age

was recorded as 30 years. The occurrence since was of

15.12.2008, so taking the date of recording the evidence, i.e.,

08.03.2013, the age of PW-5 will be about 25 years.

16.3 This Court, therefore, is of the view that PW-5 is

not an eye witness.

16.4 Further, the conduct of PW-5 is also unnatural

since, being the son, the normal conduct would have been to

immediately inform to the police even accepting that he might

have been nervous due to the murder of three members of his

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family but in that circumstances the natural conduct of PW-5

would have been to inform about the said occurrence to his

maternal uncle, in any case, the natural conduct would be to

immediately report to the police or the elders in the family

but it is the admitted version of the PW-5 that he remained

silent for 15 - 20 days.

17. The learned trial court while passing the judgment

has relied upon the testimony of PW-5 considering him to be

an eye witness, as would be evident from the consideration so

made at page 10 of the impugned judgment wherein it has

been observed "the only acclaimed eye witness of the

occurrence was the younger son of deceased Dulari Devi,

namely, Jitrai Munda, who has been examined as PW-5".

Basis upon the same, the conviction is based by giving the

finding that the testimony of PW-4 finds in corroboration with

the testimony of PW-5.

18. Since in the cross-examination PW-5 himself has

said that he was not present in the house at the time of

occurrence, as would appear from paragraph-4 of the

testimony but the said part of testimony of PW-5 has not

been considered.

19. This Court, on the basis of the discussion made

hereinabove, is of the view that the conviction since is to be

based upon proving the charge beyond all shadow of doubt

and there cannot be conviction on presumption or suspicion

as per the law laid down by Hon'ble Apex Court in the case of

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Vasudev v. State of M.P., reported in (2022) 4 SCC 735

wherein at paragraph 16 it has been observed which reads

hereunder as :-

"16. The High Court, while convicting the appellant by the impugned judgment [Rajesh v. State of M.P., 2020 SCC OnLine MP 4590], merely observed that because the accused were prized goons and were absconding and as per the deposition, it could not be said that Appellant 2 was not involved because he was arrested on the spot and taken to police station. In this regard, it is required to observe that the prosecution is required to prove its case beyond reasonable doubt and the conviction cannot be based merely on the basis of presumption to rule out the presence of accused."

19.1 Further, in the case of Sujit Biswas v. State of

Assam, reported in (2013) 12 SCC 406, the Hon'ble Apex

Court has held that in a criminal case, the court has a duty

to ensure that mere conjectures or suspicion do not take the

place of legal proof, for ready reference, paragraph 13 is being

referred herein which reads hereunder as :-

"13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved, and something that "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of

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clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.

(Vide Hanumant Govind Nargundkar v. State of M.P. [(1952) 2 SCC 71 : AIR 1952 SC 343 : 1953 Cri LJ 129] , State v. Mahender Singh Dahiya [(2011) 3 SCC 109 : (2011) 1 SCC (Cri) 821 : AIR 2011 SC 1017] and Ramesh Harijan v. State of U.P. [(2012) 5 SCC 777 : (2012) 2 SCC (Cri) 905])"

20. This Court, after taking into consideration the

aforesaid settled position, is of the view that the learned trial

court while considering the testimony of PW-5 has treated

him to be an eye witness and a corroborative piece of

evidence of the testimony of PW-4, cannot be said to be

proper in view of the discussion made hereinabove.

21. This Court has considered the statement recorded

under Section 313 Cr.P.C. as also the consideration so made

by the learned trial court in the impugned judgment and has

found therefrom that the statement so recorded of the

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accused in defence has not properly been appreciated by

taking into consideration the testimony of P.W.-5 whose

testimony cannot be said to be reliable due to the unnatural

conduct of the said prosecution witness.

22. The law is well settled that the statement made

under Section 313 Cr.P.C. cannot be said to be merely a

formal observation of the requirement, rather, the same has

got important bearing in the matter of convicting a person by

taking away its liberty and, as such, the same is required to

be considered in the light of the testimony of the prosecution

witnesses and if there is any iota of doubt in accepting the

version of prosecution witness, the defence of the accused as

recorded under Section 313 Cr.P.C. is required to be

considered.

23. But herein, the learned trial court has simply

referred the statement so made by the appellant without

taking into consideration the unnatural conduct of PW-5 as

has been considered by this Court hereinabove.

24. Accordingly, we are of the view that the impugned

judgment suffers from perversity and, as such, the same is

not sustainable.

25. For the foregoing reasons, the impugned Judgment

of Judgment of conviction dated 30.05.2017 and Order of

sentence dated 03.06.2017, passed by the District &

Additional Sessions Judge-I, Khunti, in Sessions Trial Case

No.466 of 2009, convicting and sentencing the appellant,

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namely, Etwa Munda, for the offence under Section 302 of

the Indian Penal Code, are hereby, quashed and set aside.

26. Consequently, the appellant is given the benefit of

doubt and he is acquitted of the charge. The appellant Etwa

Munda is still in custody undergoing the sentence. He is

directed to be released and set at liberty forthwith, if his

detention is not required in any other case.

27. This appeal is accordingly, allowed. The appellant

is discharged from criminal liability.

28. Let the Lower Court Records be sent back to the

Court concerned forthwith, along with a copy of this

Judgment.

(Sujit Narayan Prasad, J.) I agree.

(Subhash Chand, J.) (Subhash Chand, J.)

Jharkhand High Court, Ranchi Dated, the 2nd day of August, 2023.

Birendra /N.A.F.R.