Michael Dungdung Son Of Lazrus ... vs The State Of Bihar (Now Jharkhand)
2023 Latest Caselaw 635 Jhar

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 131 of 1994 (R)

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(Against the judgment of conviction and order of sentence dated 25th March, 1994, passed by Additional Sessions Judge, Simdega, in Sessions Trial No.26 of 1993)

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Michael Dungdung son of Lazrus Dungdung, Resident of village-Sugadongair Putri Toli, P.S. Bolba, District-Gumla. .... Appellant

Versus The State of Bihar (Now Jharkhand) ..... Respondent

PRESENT HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SUBHASH CHAND .....

 For the Appellant  : Mr. Sahil, Amicus
 For the State      : Ms. Vandana Bharti, APP
                                .....
C.A.V. on 30/01/2023        Pronounced on 07/02/2023
Per Sujit Narayan Prasad, J.:

The instant appeal has been filed under Section 374

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

of conviction and order of sentence dated 25th March,

1994, passed by learned Additional Sessions Judge,

Simdega, in Sessions Trial No. 26 of 1993, by which the

appellant was found guilty and convicted for the offence

punishable under Section 302 of the Indian Penal Code

and was sentenced to undergo imprisonment for life for

the offence punishable under Section 302 of the Indian

Penal Code.

2. As per fardbeyan of the informant, recorded on

15.08.1992 at 10.00 a.m. (day) before the Bara Babu

(Head Clerk) of Bolwa Police Station, the prosecution case

in brief, is that:

In the night of 14.08.1992 at about 10.00-11.00 p.m.

the informant-Fulkeria Kullu was talking with her

husband-Tanis Dungdung (deceased) (35-36 years) in

their house. In the meantime, their niece son - Michael

Dungdung (accused) (27 years) was quarreling with his

wife-Magdhali Kerketta in their house. Whereupon, her

niece Bahuria (daughter-in-law)-Magdhali Kerketta and

their niece boy -Michael Dungdung, stating Kaka-Kaka

(uncle) to Tanis Dungdung (deceased) and when her

husband intend to come out of the house, her niece -

Michael Dungdung (accused) having Daw in his hand

came to verandah of their house and took away her

husband to a distance of about 10-12 Yard towards east

and repeatedly started assaulting over his neck, face and

both sides of temples. Her husband fallen on the earth.

Even on falling down on earth, her niece repeatedly

continued to assault on body of her husband. Seeing this

incidence, the informant reached to her husband, but till

then he had died. Her niece fled away to his house with

the said Daw (weapon). On alarm being raised by the

informant, no one had come. It is further stated that

besides her house, no other house is available except the

house of accused- Michael Dungdung.

It has further been stated by the informant that her

son-Khamanus (9 years) and daughter-Jyoti Dungdung (6

years) was sleeping and further his sons Jamesh

Dungdung (18 years) had gone to Letabera to the house of

Nandu Pradhan and after taking meal he stayed there.

The informant, after waking up her son-Khamanus (9

years) and daughter-Jyoti Dungdung (6) to take care of

her deceased-husband, went to inform his son Jamesh

Dungdung and Navin Kishore Dungdung (15 years) to

Latebera as also to inform the Chowkidar-Biramjeet

Pradhan. Chowkidar was not in his house. The informant

has further stated that after narrating the story to the son

of the Chowkidar she had stated about the incidence to

her sons and returned to her house. When Chowkidar did

not turn up till morning, she sent her son-Navin Kishore

Dungdung to the house of Chowkidar and sat there

waiting for Chowkidar. On next day at 8.00 a.m

Chowkidar came and told that accused-Michael

Dungdung, has been caught and has been kept in the

vigilance in Letabara.

She has further deposed that the weapon with which

the accused Michael Dungdung has killed her husband

that has been kept on the wall of the accused house,

which has also been seen by Chowkidar.

She has further stated that her mother-in-law had

died last Paraka Festival. Before her death, the land of her

mother-in-law's) share has been used by her niece-

Michael Dungdung (accused) but after her death, the land

was shared between her husband and her niece due to

which her niece (accused) was unhappy with her husband

and because of this reason, the accused-Michael

Dungdung has murdered her husband.

3. On the basis of fardbeyan of informant-Fulkeria

Kullu (P.W. 1), recorded by Officer-in-Charge of Bolwa

Police Station, a formal F.I.R. being Bolwa P.S. Case No.

13 of 1992 was registered against the accused under

Section 302 of the Indian Penal Code.

4. After investigation, the police submitted the charge-

sheet under Sections 302 of the Indian Penal Code against

the accused person. Accordingly cognizance of the offence

was taken by learned A.C.J.M., Simdega, who after taking

cognizance transferred this case to the file of Sri A. Tirkey,

Judicial Magistrate, who committed the case to Court of

Sessions, where it was registered as Sessions Trial No. 26

of 1993, wherefrom the case was received in the Court of

learned Additional Sessions Judge, Simdega for trial and

disposal, wherein the charges framed against the accused

was found proved and accordingly the accused was

convicted and sentenced vide order dated 25th March,

1994, which is the subject matter of instant appeal.

5. The prosecution, in order to establish the charge, in

course of trial, has examined altogether 11 witnesses,

namely, P.W. 1-Fulkeri Kullu is the informant and wife of

the deceased; P.W. 2- Ram Sugan Pradhan (son of

Chaukidar); P.W. 3-Biramjeet Pradhan (Chaukidar); P.W.

4-Narayan Singh (seizure witness); P.W. 5-James

Dundung is the son of the deceased; P.W. 6-Amus

Kerketta; P.W. 7-Saran Naik, witness to Inquest Report;

P.W. 8-Xavier Dungdung; P.W. 9-Bendick Kerketta; P.W.

10-Dr. Sudhir Kumar Mahto (doctor) and P.W. 11-Ramjee

Pandey, the Investigating Officer.

6. Mr. Sahil, learned amicus for the appellant has

assailed the impugned judgment of conviction and order of

sentence on the following grounds:

(I).That the sole testimony, basis upon which the

judgment of conviction and order of sentence has been

passed, is of the informant-P.W. 1 (Fulkeria Kullu),

who is none other than the wife of the deceased as

such she is an interested witness. Furthermore, no

other independent witness has been examined by the

prosecution.

(II).The learned trial Court did not take into

consideration the discrepancies while passing the

impugned judgment as admittedly, there are

discrepancies on the point of recovery of blood stained

Daw, weapon by which the murder was committed.

The P.W. 11 (Investigating Officer) in his examination-

in-chief has stated that on the basis of statement of

accused, he recovered Daw from Eastern Wall of the

house in presence of witness whereas in his cross-

examination he has deposed that the house was

closed therefore, he brought out blood stained Daw

from the Eastern Wall of the house from outside.

(III).Further, the blood stained cloth of the accused

and blood stained soil recovered at the spot as also the

blood stained Daw, though it was seized by the

Investigating Officer but the same were not sent for

Forensic Science Laboratory for their examination and

even the blood stained Daw (Weapon) was not

produced in the Court at the time of examination of

witnesses, therefore, the impugned judgment calls for

interference by this Court.

(IV).Further, there is absence of motive for which the

murder has been committed, which fact stands

corroborated from the statement made by the

informant (P.W. 1) who in her cross-examination has

categorically stated that there was no previous enmity

between her deceased-husband and the accused,

therefore, in absence of motive to commit murder, the

prosecution version cannot be believed.

In the backdrop of aforesaid grounds, submission

has been made that the impugned judgment of conviction

and order of sentence since is not based upon cogent

evidence and as such it cannot be said that the

prosecution has been able to prove the charge beyond all

reasonable doubt.

7. Per Contra, Ms. Vandana Bharti, learned Additional

Public Prosecutor appearing on behalf of State has

defended the impugned judgment of conviction and order

of sentence taking the ground that the impugned

judgment has been passed based upon the testimony of

eye witness who has seen the occurrence as would be

evident from the testimony of P.W. 1, which is

corroborated by medical evidence as deposed by doctor,

who has been examined as P.W. 10 as well as the

deposition of the Investigating Officer.

Learned counsel for the State has further submitted

that it has come during investigation as also it has been

deposed that within one kilometer radius of the house of

informant only the house of informant is situated and

accused person was there and since it was night on the

fateful day of occurrence as such there is no question of

independent witness being present there in night and

furthermore, the solitary eye witness since has gracefully

made meticulous description of the occurrence, which has

been corroborated by medical evidence and other

witnesses including Investigating Officer, as such the

evidence of sole eye witness is to be fully relied upon while

proving the charge against accused person as it is settled

principle of law that quality of witness matters and not the

quantity of witness.

So far question of motive is concerned, it has

specifically been stated in the fardbeyan that there was

land dispute pertaining to partition of land between the

parties, so it cannot be said that motive is absent in the

case at hand.

So far the issue of not sending the blood stained

cloths of accused, blood stained soil and blood stained

Daw (Weapon) to the FSL is concerned, it has been

submitted that since in the case at hand the accused

persons have been identified and marked as exhibited as

such solely on the ground that these articles were not ent

for examination to FSL, the case of prosecution cannot be

disbelieved as eye witness and other witnesses have fully

supported the case of the prosecution.

Learned counsel for the State in the aforesaid

backdrop has submitted that the impugned judgment of

conviction and order of sentence requires no interference

by this Court.

8. We have heard learned counsel for the parties,

perused the documents available on record and the

testimony of witnesses as also the finding recorded by

learned trial Court in the impugned order.

9. This Court, in order to examine the legality and

propriety of the impugned judgment of conviction and

order of sentence, deems it fit and proper first to go

through the material testimony of witnesses examined by

prosecution:

10. P.W. 1-Fulkeria Kullu, the informant and wife of the

deceased, has deposed in her examination-in-chief that on

the fateful night, she was in her house along with her two

children and husband. Children were sleeping and she

was talking with her husband. At about 10.00 p.m. night

accused-Michael Dungdung came there and called her

husband saying Kaka-Kaka (uncle) whereupon she opened

the door and told to him that her husband is not present

seeing a Daw (a local sharp-edged weapon) in the hand of

accused.

But when her husband came out, the accused put

him out to about 15-20 steps away of his house and

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assaulted with Daw on his neck etc. whereafter her

husband fell down on the earth and succumbed to

injuries. Thereafter, she woke up her children and went to

call her other sons, namely, James and Navin Kishore.

On the next morning, she went to the Police Station

along with Choukidar, where her fardbeyan was recorded.

In her cross-examination, she has deposed that in

the same house, accused - Michael and they live

separately. She has further deposed that on the day of

occurrence, the accused was quarreling with her wife. She

has further stated that on being called by accused-Michael

Dungdung her husband came out of his house whereupon

the accused killed her husband.

In her cross-examination, she has stated that before

occurrence, no quarrel took place in between her husband

(Tanis) and the accused (Michael Dungdung). She has

further deposed that she did not do anything at the time

of occurrence due to fear. In her cross-examination,

corroborating her version as made in the fardbeyan she

has deposed that her husband has received several

injuries on his body.

She has further deposed that after the occurrence,

she had gone to Chaukidar but he was not available and

she also narrated the occurrence to Sarpanch but

Sarpanch shown his inability due to night. In her cross-

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examination she has further deposed that the accused

was produced by Chaukidar before the Police and the

police took him in custody.

On the issue of motive, she has deposed in her cross-

examination that she does not know why Michael

Dungdung murdered her husband.

11. P.W. 2-Ram Sugan Pradhan, is the son of

Choukidar. He has deposed at paragraph 1 of his

examination-in-chief that the accused Michael had come

to his house and told that he killed his uncle-Tanis.

Whereupon this witness called his father, who is a

Choukidar, till then the accused sat in his house. On the

next day, the father of this witness i.e., Choukidar

brought the accused-Michael to Police Station.

He has further deposed that blood was found in the

Buniyan (Ganji) of the accused, which was seized by Sub-

Inspector of Police in his presence and seizure-list was

prepared, whereupon he put his signature, which has

been identified by him and marked as Exhibit 1. He has

also identified the signature of other witness, namely

Narayan Singh (P.W. 4), which was marked as Exhibit

1/1.

In his cross-examination, he deposed that the

accused-Michael Dungdung came in the mid-night and

called his father and upon calling this witness he came

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out. The accused told to him that he had murdered his

uncle-Tanis Dungdung. In that night, Michael Dungdung

had slept in his house. He has further stated that he

called his father who was one mile away. He has further

deposed that he has no enmity with the accused.

12. P.W. 3-Biramjeet Pradhan, is the Chaukidar, has

deposed that on the date of occurrence, he had gone to

Juria Toli, the house of his daughter and son-in-law. He

has further deposed that his son, Ram Sugan Pradhan

had come to call him and told that Michael Dungdung had

murdered Tanis (deceased) and the wife of Tanis had also

come and she returned but Michael remained in his

house. Upon hearing such information this witness has

returned to his house also with son and till then accused

Michael was present there. He has further deposed that on

being asked, accused Michael had stated that he killed

Tanis Dungdung with Daw. The accused has also stated

that he had kept the Daw on the wall of his house. He has

further deposed that on the next day, he took Michael

Dungdung to Police Station and thereafter he came to the

place of occurrence, where he found the dead body of

deceased-Tanis Dungdung lying on the ground.

In his cross-examination, he did not deviate what he

has stated in his examination-in-chief and told that at the

time of visiting Police Station, he recovered Daw from the

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house of accused Michael Dungdung on the direction of

police.

13. P.W. 4-Narayan Singh, is the hearsay witness, who

has deposed that he came to know about the occurrence

from the wife of deceased-Tanis. He has stated that in his

presence the Sub-Inspector of Police has seized the blood-

stained Banyan and prepared seizure-list whereupon he

put his signature. He identified his signature which was

marked as Exhibit 1/1. In his cross-examination, he has

stated that for last two days he had no talk with accused

Michael Dungdung.

14. P.W. 5-Jamesh Dungdung, who is the son of the

deceased, has deposed that he was working in the house

of Nandu Pradhan. On the date of occurrence, his mother

came to her and told that Michael had murdered his

father. Thereafter he informed the incidence to his

younger brother, namely, Navin Kishore and they returned

to their house and found the dead body of their father in

front of house of Michael and there were several injuries

on the body of his father and his father had died.

In his cross-examination, he has stated that he did

not know that there was any enmity in between his father

and Michael for which murder has been committed.

15. P.W. 6-Amus Kerketta is a formal witness, who has

identified the writing and signature of officer-in-charge of

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Batwa Police Station in F.I.R and F.I.R. has been marked

as Exhibit 2.

16. P.W. 7-Sharan Naik, who is the witness to the

Inquest report, has deposed that the police seized the

dead body of Tanis Dungdung (deceased) and prepared

Inquest Report in his presence, whereupon he put his

signature as witness, which has been identified by him

and marked as Exhibit 3.

17. P.W. 8-Xavier Dungdung, has deposed that the

informant-Fulkaria had told him about the occurrence.

Next day he went to see the dead body. In his presence,

blood and blood-stained soil was seized as also seizure-list

was prepared, whereupon he put his signature. He

identified his signature as witness, which was marked as

Exhibit 4. He has further deposed that Chaukidar brought

out a Daw (weapon) from eastern portion of the wall of the

house of Michael Dungdung and handed over the same to

police. There was blood stain on the Daw, which was

seized by police and seizure-list was prepared over which

he put his signature, which has been marked as Exhibit

4/1. He has further deposed that Sri Pandey (I.O.) also

prepared inquest report of the dead body in his presence

which has been marked as Exhibit 5.

18. P.W. 9-Bendick Kerketta is tendered witness.

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19. P.W. 10-Dr. Sudhir Kumar Mahto, has conducted

post mortem examination on the dead body of deceased

and found following internal and external injuries:

"External Injury

i) One incised wound of right parietal bone of skull with cut fracture of under lying bone size 3" x ½" into deep to brain.

ii) The incised wound on right parotid region size 2" x 1" x 1" after cutting pinna of right ear and underlying bone.

iii) One incised wound on right frontal bone of skull size 4 x 1" ½" x deep to brain after cutting the underlying bone.

iv) One incised wound on the right side of neck extending from right angle of mandible bone to back of the neck size 12" x 2" x 2".

v) One incised wound 2" to below the No.4 injury size 6" x 1" ½" x 1. ½" extending right mandible bone to back side of the neck.

vi) One incised wound on the back of right shoulder size 6" x 1.1/2" x 1.1/2" after cutting the right specular bone.

vii) One incised wound on right elbow joint of the right upper arm size 3" x 1" x ½".

viii) One incised wound on the right thigh 6" x 2" x 2"

extending from medial to lateral size of the thigh.

ix) One incised wound of left palm size 2" x 1" x ½".

x) One incised wound on back left side size 4" x 1" x 1 ½".

Internal Injury After opening the skull there was a cut fracture of right partial and right frontal bone of skull with laceration of meninges and brain matter blood clot was found on trace surface and there was intra cerebral haemorrhages also found.

After opening of neck wound cervical vertebrate is partially cut at the level of fourth and fifth cervical vertebrate underlying muscles, vessels and nerves on neck were cut.

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On opening of the wound there was cutting of underlying muscles, vessels and nerves and blot clots were seen.

All injuries were ante mortem in nature grievous, caused by a sharp cutting weapon such Dawli or knife, Bhujali Phansa, three four injury 24 hours 48 hours.

Time since death about 24 to 48 hours. The death in my opinion caused by shock and coma, due to head injury and excessive hammering from the above mentioned injuries."

The Post Mortem prepared by him, which bears his

signature and same has been marked as Exhibit 6.

20. P.W. 11-Ramjee Pandey, Sub-Inspector of Police, is

the Investigating Officer of this case. He has deposed that

while he was posted at Bolwe Police Station, on

15.08.1992, the complainant-Fulkeria Kullu, wife of late

Tanis Dungdung came with his son James and Chaukidar

Biramjeet Pradhan where her fardbeyan was recorded,

which is in his handwriting. He identified his handwriting

and signature on F.I.R., which has already been identified

and marked as Exhibit 2. He has further deposed that

thereafter he started to investigate the case. He has

further deposed that the complainants had also brought

the accused with them.

He has further deposed that the informant-Fulkeria

Kullu had told him that Michael Dungdung murdered her

husband by means of Daw. Thereafter, he arrested the

accused Michael Dungdung and inspected his body and

found that there is blood stain on his clothes and the

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accused confessed that he murdered Tanis Dungdung.

The Investigating Officer seized the blood stained clothes

and prepared seizure-list in presence of witness and

obtained signature thereupon. He identified the seizure-

list stating that it was prepared by him which has already

been identified and marked as Exhibit 4/2. He has further

deposed that after recording the statement of accused he

proceeded towards the place of occurrence. In his

testimony he has fully described the place of occurrence.

He has further deposed that the accused Michael has

told him that he had hidden the Daw (weapon) in his

house whereafter he searched the house and recovered

the blood-stained Daw (weapon) which was kept in the

eastern wall.

In his cross-examination, he has specifically deposed

that he did not sent the blood-stained soil or blood-

stained clothes to Forensic Science Laboratory.

In the cross-examination, he also clarified that on

the place of occurrence there was only one house which is

portioned into two parts and in one part deceased was

residing and in another the accused was residing. He has

further deposed that within a radius of one kilometer no

other house is available.

He has further deposed that he seized the Daw from

outside and he did not enter the house.

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21. This Court having discussed the testimony of

prosecution witnesses is now proceeding to consider the

grounds, basis upon which the impugned judgment of

conviction and order of sentence is said to have been

suffered from infirmity.

22. The first ground taken by the appellant is that the

judgment of conviction and order of sentence since is

based upon the sole testimony of informant-P.W 1, who is

none other than the wife of the deceased as such she is an

interested witness. Furthermore, no independent witness

has been examined by the prosecution in corroboration of

testimony of informant (P.W. 1).

The position of law is well settled that the testimony

of the witness even if related one cannot be discarded

mechanically rather the testimony is to be considered

consciously, as has been held by Hon'ble Apex Court in

the judgment rendered in Rizan v. State of Chhattisgarh

(2003) 2 SCC 661, wherein it has been held as under:

"6.We shall first deal with the contention regarding interestedness of the witnesses for furthering the prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

7. In Dalip Singh v. State of Punjab it has been laid down as under: (AIR p. 366, para 26)

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"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

8. The above decision has since been followed in Guli Chand v. State of Rajasthan in which Vadivelu Thevar v. State of Madras was also relied upon.

9. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -- 'Rameshwar v. State of

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Rajasthan' (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."

10. Again in Masalti v. State of U.P.5 this Court observed: (AIR pp. 209-10, para 14) "But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. ... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and- fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

[Emphasis supplied] Likewise, the Hon'ble Apex Court in the judgment

rendered in Shamim v. State (NCT of Delhi), (2018) 10

SCC 509 held as under:

"9. In a criminal trial, normally the evidence of the wife, husband, son or daughter of the deceased, is given great weightage on the principle that there is no reason for them not to speak the truth and shield the real culprit. We see no reason why the same principle cannot be applied when such a witness deposes against a closely related accused. According to normal human behaviour and conduct, a witness would tend to shield and protect a closely related accused. It would require great courage of conviction and moral strength for a daughter to depose against her own mother who is an accused. There is no reason why the same reverse weightage shall not be given to the credibility of such a witness. PW 4 is the daughter of the appellant. She has deposed that two days prior to the occurrence the appellant had threatened the witness to leave PW 1 else she would get his family members killed. Soon after the occurrence having reached the house of her in-laws she stepped out on the verandah. The appellant who was standing

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on her own verandah told the witness that she had got the deceased killed because the witness did not listen to her and that her husband would be killed next. In cross-examination she reiterated the same. The statement, in our opinion, can be considered as a corroborative evidence being a voluntary extra- judicial confession, considering the nature of relationship between the witness and the appellant.

Similar view has been taken by Hon'ble Apex Court

in the judgment rendered in Mohd. Rojali Ali v. State of

Assam, (2019) 19 SCC 567 relevant paragraphs of which

is quoted as under :

"13. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between "interested" and "related" witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused (for instance, see State of Rajasthan v. Kalki2; Amit v. State of U.P.3; and Gangabhavani v. Rayapati Venkat Reddy4). Recently, this difference was reiterated in Ganapathi v. State of T.N.5, in the following terms, by referring to the three- Judge Bench decision in State of Rajasthan v. Kalki2: (Ganapathi case5, SCC p. 555, para 14) "14. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested"."

14. In criminal cases, it is often the case that the offence is witnessed by a close relative of the victim, whose presence on

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the scene of the offence would be natural. The evidence of such a witness cannot automatically be discarded by labelling the witness as interested. Indeed, one of the earliest statements with respect to interested witnesses in criminal cases was made by this Court in Dalip Singh v. State of Punjab6, wherein this Court observed: (AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person."

15. In case of a related witness, the Court may not treat his or her testimony as inherently tainted, and needs to ensure only that the evidence is inherently reliable, probable, cogent and consistent. We may refer to the observations of this Court in Jayabalan v. State (UT of Pondicherry)7: (SCC p. 213, para 23) "23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency. The evidence of a witness cannot be ignored or thrown out solely because it comes from the mouth of a person who is closely related to the victim."

So far as ground of non-examination of independent

witness is concerned it has been held that for non-

examination of independent witness the case of the

prosecution cannot be doubted alone, as has been held by

Hon'ble Apex Court in the judgment rendered in Sadhu

Saran Singh Vs. State of U.P. [(2016) 4 SCC 357],

wherein at paragraph 29 it has been held as under:

- 23 -

"29. As far as the non-examination of any other independent witness is concerned, there is no doubt that the prosecution has not been able to produce any independent witness. But, the prosecution case cannot be doubted on this ground alone. In these days, civilised people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the court as they find it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy.

[Emphasis supplied] It transpires from the above proposition of law that

even if the independent witness has not been examined

the testimony of the eye witness being related one to the

deceased cannot be discarded.

Further, it transpires from the testimony of

Investigating officer that there was no other house within

one kilometer radius of the house of informant and

accused person was there and since it was night on the

fateful day of occurrence as such there is no question of

independent witness being present there. In that view of

the matter also, if the independent witness has not been

examined the same cannot be said to be fatal to the

prosecution case.

Here, in the facts of the given case, the informant

(P.W. 1) has specifically deposed that on the fateful night

she was in her house along with her two children and

- 24 -

husband. Their children were sleeping and she was

talking with her husband. At about 10.00 p.m. night

accused-Michael Dungdung, came there and committed

the crime.

She has thoroughly been cross-examined, wherein

she has corroborated the occurrence and the defence

could not be able to shake his testimony as has been

made in the examination-in-chief or statement made in

the fardbeyan rather the occurrence which has been seen

by her has fully been corroborated.

The Investigating Officer has also seen the blood-

stained Daw, blood stained clothes and blood stained soil,

which was seized in presence of independent witness and

seizure-list was prepared where the witnesses put their

signature in presence of Investigating Officer. The inquest

report was also prepared as also the Post Mortem report

wherein the doctor has corroborated the nature of injury

with the opinion of cause of death.

Therefore, merely because the independent witnesses

have not been examined and P.W. 1 (informant) being the

wife of the deceased, her testimony cannot be discarded.

In that view of the matter, argument made to this

effect by learned counsel for the appellant is having not

found to be satisfactory, is rejected.

- 25 -

23. The second ground has been raised about non-

consideration by the trial Court about the discrepancy in

the testimony of witnesses while passing the impugned

judgment of conviction and order of sentence.

According to learned Amicus appearing for the

appellant, there are discrepancy with respect to place of

recovery of blood stained Daw, the weapon by which the

murder was committed since the P.W. 11 (Investigating

Officer) in his examination-in-chief has stated that he

entered into the house of the accused and on the basis of

basis of statement of accused, he recovered Daw from

Eastern Wall of the house in presence of witness whereas

in his cross-examination he has deposed that the house

was closed therefore, he brought out blood stained Daw

from the Eastern Wall of the house from outside.

The position of law is well settled that minor

discrepancy cannot vitiate the prosecution story, as has

been held by Hon'ble Apex Court in the case of Bharwada

Bhoginbhai Hirjibhai Vs. State of Gurajar [(1983) 3

SCC 217], in particular at paragraph nos. 5 and 6, which

read as under:

"5. ...The finding of guilt recorded by the Sessions Court as affirmed by the High Court has been challenged mainly on the basis of minor discrepancies in the evidence. We do not consider it appropriate or permissible to enter upon a reappraisal or reappreciation of the evidence in the context of the minor discrepancies painstakingly highlighted by learned

- 26 -

Counsel for the appellant. Overmuch importance cannot be attached to minor discrepancies. The reasons are obvious : "(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprised. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess- work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him -- Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment."

- 27 -

6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses.

As per law laid down in the case referred hereinabove

that minor discrepancy is to be discarded if the case is

being proved by the sole testimony of eye witness as the

case herein is since P.W. 1 (informant) is an eye witness

who has witnessed the crime and meticulously described

the occurrence, therefore the minor discrepancy as per the

version of P.W. 11-Investigating Officer regarding place of

recovery of Daw even the same cannot alone vitiate the

entire prosecution story.

Accordingly, this Court is of the view that since the

aforesaid ground having no force the same is hereby

rejected.

24. The ground has been taken that the blood stained

cloth of the accused and blood stained soil was recovered

from the spot as also the blood stained Daw (weapon) was

recovered but they were not sent to Forensic Science

Laboratory for their examination, as such serious

prejudice has been caused.

In this regard, the position of law is well settled that

due to non sending the weapon which was used to commit

crime and other incriminating articles to Forensic Science

- 28 -

Laboratory, the entire prosecution story will not vitiated,

as has been held by Hon'ble Apex Court in the case of

Amar Singh v. Balwinder Singh, (2003) 2 SCC 518, the

relevant paragraph of which is quoted as under:

"15. Coming to the last point regarding certain omissions in DDR, it has come in evidence that on the basis of the statement of PW 4 Amar Singh, which was recorded by PW 14 Sardara Singh, SI in the hospital, a formal FIR was recorded at the police station at 9.20 p.m. In accordance with Section 155 CrPC the contents of the FIR were also entered in DDR, which contained the names of the witnesses, weapons of offence and place of occurrence and it was not very necessary to mention them separately all over again. It is not the case of the defence that the names of the accused were not mentioned in DDR. We fail to understand as to how it was necessary for the investigation officer to take in his possession the wire gauze of the window from where A-1 is alleged to have fired. The wire gauze had absolutely no bearing on the prosecution case and the investigating officer was not supposed to cut and take out the same from the window where it was fixed. It would have been certainly better if the investigating agency had sent the firearms and the empties to the Forensic Science Laboratory for comparison. However, the report of the ballistic expert would in any case be in the nature of an expert opinion and the same is not conclusive. The failure of the investigating officer in sending the firearms and the empties for comparison cannot completely throw out the prosecution case when the same is fully established from the testimony of eyewitnesses whose presence on the spot cannot be doubted as they all received gunshot injuries in the incident. In Karnel Singh v. State of M.P. it was held that in cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the

- 29 -

investigation is designedly defective. In Paras Yadav v. State of Bihar while commenting upon certain omissions of the investigating agency, it was held that it may be that such lapse is committed designedly or because of negligence and hence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not. Similar view was taken in Ram Bihari Yadav v. State of Bihar when this Court observed that in such cases the story of the prosecution will have to be examined dehors such omissions and contaminated conduct of the officials, otherwise, the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law-enforcing agency but also in the administration of justice. In our opinion the circumstances relied upon by the High Court in holding that the investigation was tainted are not of any substance on which such an inference could be drawn and in a case like the present one where the prosecution case is fully established by the direct testimony of the eyewitnesses, which is corroborated by the medical evidence, any failure or omission of the investigating officer cannot render the prosecution case doubtful or unworthy of belief."

[Emphasis supplied]

Likewise, the Hon'ble Apex Court in the judgment

rendered in Dhanaj Singh v. State of Punjab, (2004) 3 SCC

654 at paragraph 7 held as under:

"7. As was observed in Ram Bihari Yadav v. State of Bihar if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice. The view was again reiterated in Amar Singh v. Balwinder Singh. As noted in Amar Singh case it would have been certainly better if the firearms were

- 30 -

sent to the Forensic Test Laboratory for comparison. But the report of the ballistic expert would be in the nature of an expert opinion without any conclusiveness attached to it. When the direct testimony of the eyewitnesses corroborated by the medical evidence fully establishes the prosecution version, failure or omission or negligence on the part of the IO cannot affect the credibility of the prosecution version.

[Emphasis supplied]

Herein, in the instant case, even if the weapon used

to commit murder and other incriminating articles were

not sent for its examination to Forensic Science

Laboratory, the same according to case laws referred

above cannot vitiate the prosecution story since the case

has fully been proved by the informant which has been

corroborated by the medical evidence of doctor, who

conducted post mortem, and the Investigating Officer and

other witnesses.

25. The fourth ground has been taken that in absence of

motive for which the murder has been committed it

cannot be said that conviction under Section 302 of the

Indian Penal code is attracted.

Herein, in the instant case motive has been shown in

the fardbeyan to the effect that mother-in-law of the

informant had died last Paraka Festival. It has been stated

that before her death, the land of informant's mother-in-

law's was used by her niece-Michael Dungdung (accused)

but after her death, the land was shared between her

- 31 -

husband and deceased for which her niece (accused) was

unhappy with her husband and because of this reason,

the accused-Michael Dungdung has murdered her

husband, but her version could not be corroborated by

P.W. 1 during cross-examination regarding inimical

relation of deceased with the accused.

But even if it is presumed that commission of crime

of murder lacks motive which is having not been

corroborated in the testimony of witness the question

arises that on this ground can the entire prosecution story

can be disbelieved.

The law is well settled in this regard by Hon'ble

Supreme Court in the case of Kumar Vs. State [(2018)

7SCC 536],wherein at paragraph 33 and 34 it has been

held as under:

"33. Coming to the other aspect of the case, motive of the accused to commit the crime is ascribed to the previous quarrel occasioned between the accused and the deceased during a drama at a village festival. Generally, in the case prosecution desires to place motive of the accused as a circumstance, like any other incriminating circumstance, it should also be fully established. We are alive to the fact that if the genesis of the motive of the occurrence is not proved, the ocular testimony of the witnesses as to the occurrence could not be discarded only on the ground of absence of motive, if otherwise the evidence is worthy of reliance. But in the case on hand, as we have already discussed in the above paragraphs, the evidence of direct witnesses is not satisfactory and on the other hand, it is demonstrated that the deceased hit the accused on his head with the wooden log besides the testimony from the

- 32 -

eyewitnesses that there was scuffle. In such a factual situation, certainly motive may act as a double-edged sword.

34. In the light of the settled law thus by this Court and also from what is clear from the evidence, there is absence of extreme cruelty, even if it is assumed that the accused hit the deceased with the log. Had there been a strong motive to do away with the life of the deceased, generally there would have been more fatal injuries caused on the deceased not by a log but by utilising more dangerous weapons. These circumstances would tell us that there is no reason to believe that motive was entertained by the accused in the backdrop of quarrel that took place during drama at the village festival, prior to the date of occurrence. Inasmuch as the prosecution laid the foundation for the commission of crime by the accused in the said quarrel as an element of motive, in the absence of positive proof of such motive, the prosecution has to face the peril of failure in establishing that foundation."

This Court on the basis of aforesaid settled position

of law and considering the testimony of P.W. 1, who is

witness the commission of crime committed by the

accused, who has assaulted her husband on neck, face

and both sides of temples etc. due to which he succumbed

to injuries, which is corroborated by the doctor and

Investigating Officer, is of the view that for this the

prosecution case cannot be disbelieved.

26. This Court, after having discussed the ground as has

been agitated by learned amicus appearing for the

appellant and answering the same against the appellant,

and coming to the testimony of the prosecution more

particularly the testimony of informant-P.W-1 (eye-

witness), who has supported the prosecution version,

- 33 -

which has been corroborated by the Investigating Officer

as well as by the opinion of the doctor is of the view that

the prosecution is to establish the charge beyond all

shadow of doubt.

Reference in this regard be made to the judgment

made in the case rendered in the case of Rang Bahadur

Singh vs. State of [U.P. (2000) 3 SCC 454] at paragraph

22, which reads as under:

"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

(Emphasis supplied)

27. This Court, therefore, is of the considered view that

since the trial Court on the basis of testimony of the

prosecution witnesses in particular the testimony of P.W.

1 whose version having been supported by other witnesses

i.e., the Investigating Officer and the doctor and other

witnesses, has come to the conclusion that the

- 34 -

prosecution has been able to prove the charge beyond all

shadow of doubt, requires no interference by this Court.

28. This Court, after having passed the order as

aforesaid has considered the sentence and found

therefrom that the order of sentence to undergo

imprisonment for life for the offence committed under

Section 302 of the Indian Penal Code suffers from

infirmity, reason being that Section 302 provides that

along with the sentence of imprisonment for life, the fine is

also mandatory to be inflicted as would appear from

Section 302 of the Indian Penal Code, which reads as

under:-

"302. Punishment for murder.-Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine."

The trial Court while imposing the sentence has not

considered the mandatory provision as contained under

Section 302 of the Indian Penal Code and passed the order

of sentence without inflicting any fine, therefore, the order

of sentence is modified to the extent that apart from the

sentence to undergo imprisonment for life, a fine of

Rs.5,000/- (Rupees Five Thousand) to the appellant is

imposed.

29. With the aforesaid modification in the order of

sentence, the instant appeal stand dismissed.

- 35 -

30. Consequent upon dismissal of the appeal preferred

by the appellant, since appellant is enjoying suspension of

sentence after the order being passed by this Court

directed to release them during pendency of the appeal,

his bail bond is cancelled and he is directed to surrender

before the learned trial Court who would send them jail to

serve out his remaining sentence.

31. Needless to say that if the appellant will not

surrender, the trial Court will take endeavours for

securing custody to serve out his remaining sentence and

further secure that he may deposit the amount of fine so

imposed by this Court.

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

Court concerned forthwith, along with the copy of this

Judgment.

33. Before parting with this order, it requires to refer

herein that the Co-ordinate Bench of this Court vide order

dated 11.04.2019 appointed Mr. Sahil, the learned

counsel as Amicus to argue this criminal appeal on behalf

of sole appellant, upon the report received from the

Secretary, Jharkhand High Court Legal Services

Committee that the sole appellant has desired for legal

aid, and directed the Secretary, Jharkhand High Court

Legal Services Committee to reimburse the bill(s) which

shall be fixed after disposal of this criminal appeal.

- 36 -

34. In view thereof, the Secretary, Jharkhand High Court

Legal Services Committee is directed to ensure payment of

admissible fee in favour of learned Amicus.

         I Agree                  (Sujit Narayan Prasad, J.)



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




Jharkhand High Court, Ranchi
Alankar / A.F.R.