Jharkhand High Court
Bandhu @ Jagbandhu Mirdha @ Dhinu ... vs The State Of Bihar on 14 February, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 107 of 1994 (R)
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(Against the Judgment of conviction dated 03.06.1994 and order of sentence dated
04.06.1994 passed by the 7th Additional Judicial Commissioner, Ranchi in
S.T.No.371 of 1987)
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Bandhu @ Jagbandhu Mirdha @ Dhinu Mirdha, son of late Sahdeo Mirdha,
Resident of Param Toli, P.S. Bundu, Dist. Ranchi ... ...Appellant
-Versus-
The State of Bihar ... ... ...Respondent
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PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
For the Appellant: Mrs. Soumya S. Pandey, Amicus Curiae
For the State: Mr. Saket Kumar, A.P.P.
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C.A.V. on 06.02.2023 : Pronounced on 14.02.2023.
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Per Subhash Chand, J.
The instant Criminal Appeal is directed against the judgment of
conviction dated 03.06.1994 and order of sentence dated 04.06.1994 passed by the
7th Addl. Judicial Commissioner, Ranchi in S.T.No.371 of 1987 whereby the accused
Bandhu @ Jagbadhu @ Dhinbandhu Mirdha was convicted for the offence under
Section 302 read with Section 34 of the Indian Penal Code and sentenced with
imprisonment for life.
2. The prosecution case is based on the basis of fardbeyan Ext.1/1 of
Mahendar Munda, the informant which reads that on 15.01.1987 at 5:30 p.m. at the
village Paran Toli P.S. Bundu, Jitu Munda had come back with the cattles and she
goats after having grazed them. On his arrival to the village one she goat was found
missing. On making query of the same, one Jitu Munda disclosed that he had been
grazing along with Bhondu Mirda to the she goats. At this Sinika Munda the deceased
went to the house of Bhondu Mirdha to know in regard to the whereabouts of the
missing she-goats whereat the accused Bandhu @ Jagbadhu @ Dhinbandhu Mirdha,
Budhan and Sahdeo assaulted Sinika Munda with lathi and Baluwa causing his death
at the spot. This occurrence was also witnessed by Ram Baraik, Jitu Baraik, Kinko
Munda and others as well.
3. On the basis of this fardbeyan the formal F.I.R. was drawn which was
registered at case crime No. 07 of 1987 against the accused Bandhu Mirdha, Sahdeo
Mirdah and Budhan Mirdha for the offence under Section 302 read with Section 34
of I.P.C. with the Police Station Bundu, District Ranchi and the I.O. after having
concluded the investigation filed charge-sheet against the accused Bandhu @
Jagbadhu @ Dhinbandhu Mirdha, Budhan Mirdha and Sahdeo Mirdha for the offence
under Section 302 read with Section 34 of the Indian Penal Code with the Court of
Magistrate concerned who after having taken the cognizance on the same committed
the file to the court of Sessions Judge i.e. the Court of Judicial Commissioner, Ranchi
who transferred the same to the court of 7th Additional Judicial Commissioner, Ranchi
for trial.
4. The Trial Court framed charge against the accused Bandhu @ Jagbadhu
@ Dhinbandhu Mirdha, Budhan Mirdha and Sahdeo Mirdha for the offence under
Section 302/34 of the I.P.C. and the same was read and explained to them who
denied the charge and claimed to face the trial.
5. During trial the co-accused Bandhu Mirda and Sahdeo Mirdha died. The
sole surviving accused Bandhu @ Jagbadhu @ Dhinbandhu Mirdha was tried for the
charge framed against him.
6. On behalf of prosecution to prove the charge against the accused in
oral evidence examined P.W.1 Tapu Oraon, P.W.2-Munga Lal Munda, P.W.3-Ram
Baraik, P.W.4-Kinu Munda, P.W.5-Somra Munda, P.W.6-Mahendra Munda, P.W.7-
Shri M.Horo, the Investigating Officer and P.W.8-Dr. B.P.Chaurasia.
7. In documentary evidence the prosecution adduced Fardbeyan (Ext.1),
F.I.R. (Ext.1/1), signature on inquest report of Tapu Oraon (Ext.2), signature of
Somra Munda on the inquest report ( Ext. 2/1), signature on seizure list (Ext.3),
inquest report (Ext. 2/2), Seizure list (Ext.3/1) and Postmortem report (Ext.4).
8. The statement of accused Bandhu @ Jagbadhu @ Dhinbandhu Mirdha
was recorded under Section 313 Cr.P.C. who denied the incriminating circumstances
in evidence against him and stated that those who had committed murder both had
died and he did not commit murder. The learned Trial Court after taking into
consideration the rival submissions made by the parties and appraisal of the evidence
passed the judgment of conviction and sentence of appellant Bandhu @ Jagbadhu
@ Dhinbandhu Mirdha for the charge under Section 302 of I.P.C. read with Section
34 I.P.C. and sentenced with imprisonment for life.
9. Aggrieved from the impugned judgment of conviction and order of
sentence, this Criminal Appeal is preferred on behalf of the appellant on the grounds
that the court-below had wrongly held guilty to the appellant. The court-below had
given adverse finding in regard to testimony of P.W.6 who has not stated how and
in what way Sanika Munda was assaulted in the F.I.R. Therefore, he is not reliable
witness and cannot be said as eye-witness of the same. There is discrepancy in the
testimony of the eye-witness and the medical evidence. The entire judgment is based
on presumption and surmises. The finding given by the court-below is perverse while
in view of the evidence on record the appellant should have been given the benefit
of doubt and acquitted. No constructive liability could be fastened to the appellant in
view of Section 34 of the I.P.C. in commission of murder of the deceased. Accordingly
prayed to allow this Cr.Appeal and to set aside the impugned judgment of conviction
and sentence passed by the court-below.
10. We have heard the learned Amicus Curiae on behalf of appellant and
learned A.P.P. on behalf of State and perused the material on record on the L.C.R.
and the impugned judgment passed by the court-below.
11. To decide the legality and propriety of the impugned judgment of
conviction and order of sentence, the prosecution evidence available on record is
being re-appreciated hereunder:
P.W.1-Tapu Oraon, is the Mukhiya of Buchadih Panchayat, in his
examination-in-chief says the occurrence was of two years ago in the month of
January. He was at his house. Kinu Munda, Mahendar Munda and Ram Baraik had
informed him that Sinika Munda had been murdered. By whom he was murdered
was not told by them. They also told him that Sinika Munda was lying dead in the
Bari of Sahdeo Mirdha. Having received this information he reached along with these
persons to the Bari of Sahdeo Mirdha and found the dead body of Sinika Munda
there. Since it was 10 O'clock of night he could not observe the injuries on the dead
body. He along with Kinu Munda, Mahendar Munda and Ram Baraik reached to the
Police Station whereat Kinu Munda and Mahendar Munda informed to the Police.
Barababu recorded the fardbeyan. Daroga Ji read over and explained the same and
on the same Mahendar put his thumb impression he also put his signature being a
witness that fardbeyan is marked Ext.1. This witness further stated that on next day
Daroga Ji inspected the place of occurrence along with him and also prepared the
inquest report. On the inquest report Somra Munda also put his signature. The
inquest report is marked Ext.2. The signature of Somra Munda is marked Ext. 2/1. In
cross-examination this witness says Daroga Ji had recorded the statement of one by
one all the three persons including him.
P.W.2-Munga Lal Munda in his examination-in-chief says that
Daroga Ji took in his custody the blood stained clay from the place occurrence in
presence of Somra Munda and him. Bandhu @ Jagbadhu @ Dhinbandhu Mirdha also
handed over the blood stained Farsa to Daroga Ji in presence of him and other
persons. The seizure memo of the both was prepared by Daroga Ji which is marked
as Ext.3.
P.W.3-Ram Baraik in his examination-in-chief says that day when the
occurrence took place. It was Thursday evening. The she-goat of Sinika Munda was
missing. He was making the search of the same. He told that his she-goat had not
come at the house. Thereafter Sanika Munda went to make search of the she-goat.
He also followed him while the she-goat was being searched by Sanika Munda at the
house of Sahdeo Mirdha. Sanika was assaulted there. Sanika raised alarm to save
him. He also attracted there and saw Budhan Mirdha, Sahdeo Mirdha assaulted with
Danda and Bandhu @ Jagbadhu @ Dhinbandhu Mirdha assaulted with Tabla. Sanika
Munda fell down in front of the house of Sahdeo Mirdha sustaining assault. Thereafter
all the accused persons fled away. This witness was questioned whether he had seen
the accused persons assaulting. This witness replied in affirmative and stated that
Sahdeo and Budhan had assaulted with Danda while Bandhu @ Jagbadhu @
Dhinbandhu Mirdha had assaulted with Tabla on his head.
In cross-examination this witness says that the she-goats which was
missing was not found. This witness was also questioned when he reached there
whether Sanika died. This witness replied in affirmative. Again this witness was
questioned whether anyone else was also there besides the accused persons. This
witness replied in affirmative and stated that Mahendar Munda, Kino Munda was also
there. Budhan and Sahdeo had assaulted with Lathi. He had seen the blood oozing
at that time. Again this witness questioned whether he rescued the deceased. This
witness replied in negative. This witness further stated that today he was called by
Mahendar Munda to give evidence and Mahendar Munda also told him of what the
evidence was to be given. This witness denied the suggestion given by the defecee
that it was not so that he had not seen the occurrence.
P.W.4-Kinu Munda in his examination-in-chief says that the
occurrence was of month of January. The she-goat of Sanika Munda was taken by
Jitu Munda for grazing the same did not come back in the evening. It was told by
Jitu Munda that she-goats of Bandhu @ Jagbadhu @ Dhinbandhu Mirdha also grazed
with the she-goats of him. On the day of occurrence one she-goat did not come back
to his house. On the date of occurrence in the evening the uncle Sanika Munda went
to search his she goats to the house of Bandhu @ Jagbadhu @ Dhinbandhu Mirdha.
After some time uncle Sanika raised alarm. In the meantime, Mahendra Munda and
he rushed to the house of Bandhu @ Jagbadhu @ Dhinbandhu Mirdha and saw
accused Sahdeo Mirdha, Budhan Mirdha both assaulting to Sanika with lathi while
Bandhu @ Jagbadhu @ Dhinbandhu Mirdha was assaulting with Farsa. Uncle Sanika
fell down there while all three were present there Sanika died at the spot.
In cross-examination this witness says this question was asked to this
witness whether Sanika was alive or dead when he reached at the place of
occurrence, this witness replied that when he reached there Sanika had fell down
dead. Again the question was put up to this witness to whom he saw assaulting this
witness replied Sahdeo and Budhan both assaulted with lathi and Bandhu @
Jagbadhu @ Dhinbandhu Mirdha assaulted with Baluwa. Lathi were assaulted on the
back. Both assaulted with lathi twice or thrice. Bandhu @ Jagbadhu @ Dhinbandhu
Mirdha assaulted with Baluwa on the head not on the neck.
P.W.5-Somra Munda in his examination-in-chief says the occurrence
was of the year 1987 in the month of Janauary and it was Thursday night. He was
at his house. Mahendra Munda told him at his house that at Paran Toli at the house
of Sahdeo Mirdha the Mukhiya was called. Why Mukhiya was called was not told to
him. He reached along with Mahendar Munda and Dalpat Munga Lal Munda to the
house of Sahdeo Mirdha found Sanika Munda dead in the courtyard of Sahdeo
Mirdha. Blood was oozing from the tample of Sanika Munda. He came to know. He
was put up question where were the assailants. He replied that they were at house.
At the place of occurrence Mahendar Munda told him that Bandhu @ Jagbadhu @
Dhinbandhu Mirdha had assaulted with Tabla to Sanika. Mahedar Munda also told
him that Sanika was assaulted with Sahdeo Mirdha when Sanika Munda had gone to
search his she-goat. When Bandhu @ Jagbadhu @ Dhinbandhu Mirdha assaulted him
Sanika Munda had raised alarm. Again the question was put up to this witness who
besides Bandhu @ Jagbadhu @ Dhinbandhu Mirdha assaulted to Sanika. This witness
replied that Mahendar told him that besides Bandhu @ Jagbadhu @ Dhinbandhu
Mirdha, Sahdeo and Budhan had assaulted to Sanika. Inquest was also prepared in
his presence. He put his signature which is marked Ext.2/1.
P.W.6-Mahendar Munda. This witness in his examination-in-chief
says that the occurrence was of three months ago from that day it was Thursday. It
was sunset time and he was at his house. Jitu Munda was his son. Jitu Munda had
gone to graze the cows and she-goat. He came after sunset along with cattle but one
she-goat was missing which was of Sanika uncle. Sanika asked Jitu in regard to the
whereabouts of his she-goats. Jitu replied that he along with Bandhu @ Jagbadhu @
Dhinbandhu Mirdha had gone to graze the cattle. Again this witness was questioned
whether he knew Bhondu Mirdha. He replied in affirmative and he was further asked
whether Bhondu Mirdha also went to graze the cattle. He replied in affirmative. Again
he was questioned whether Bandhu @ Jagbadhu @ Dhinbandhu Mirdha and Bhondu
both resided in one house. He replied in affirmative. Further stated that uncle Sanika
first asked Jitu to make search of she-goat. Thereafter he also went to search the
she-goat. Sanika Munda went to make search of she-goat at the house of Bandhu @
Jagbadhu @ Dhinbandhu Mirdha where Bandhu @ Jagbadhu @ Dhinbandhu Mirdha
and others were armed with Baluwa and lathi. Uncle Sanika raised alarm. He, Kinu
Munda rushed there and saw Sahdeo Mirdha, Budhan Mirdha assaulting with lathi to
Sanika while Bandhu @ Jagbadhu @ Dhinbandhu Mirdha assaulted with Baluwa on
the head of Sanika. He also sustained injury on his tample. Sanika also sustained
Baluwa injury on his tample. At that time Ram Munda was also present. Later on
many persons came there. All accused persons intruded in their house. Sanika Munda
was lying dead there.
In the cross-examination this witness says that whether the house of
accused persons and one of them were adjoining. He replied that on being alarmed
it was audible. He was questioned whether Sanika had died when he reached at the
place of occurrence. He replied in affirmative. Whether missing she-goat was found.
He replied in negative.
P.W.7-Shri M. Horo, the Investigating Officer, stated that on
16.01.1987 he was In-charge of the Police Station, Bundu. Mahendar Munda along
with Mukhiya Tapu Oraon came to the Police Station. He recorded the statement of
Mahendar Munda in presence of Tapu Oraon. Fardbeyan was also read over and
explained to him. Thereafter Mahendra Munda put his thumb impression thereon.
Tapu Oraon also signed. Thereafter the formal F.I.R. was prepared which is marked
Ext.1/1. On 16.01.1987 he left the Police Station for place of occurrence and at 9
O'clock of the morning he reached at the place of occurrence and found the dead
body of Sanika Munda at the Bagan of Sahdeo Mirdha. In presence of Tapu Oraon
Mukiya the inquest report was prepared which is Ext.2/2. Thereafter postmortem was
got conducted and inspection of the place of occurrence was made which was Bagan
of Sahdeo Mirda in the west of Bagan is the house of Sahdeo Mirdha east facing.
There were also house of the father of Sahdeo Mirdha. Blood was near the dead body
of deceased. Blood stained clay was taken in presence of witness Munga Lal Munda,
Budhu Munda. At the same time Bandhu @ Jagbadhu @ Dhinbandhu Mirdha also
handed over Farsa used in murder. This Farsa was blood stained. Seizure memo of
the same was prepared which is marked Ext.3/1. The blood stained soil and Farsa
both the material exhibits were sent to Forensic Science Laboratory for examination
and thereafter the charge-sheet was filed where the dead body was lying that place
was surrounded by bush.
P.W.8- Dr. B.P.Chaurasia, in his examination-in-chief says that on
16.01.1987 he was posted as Medical Officer, Department of Forensic Medicine,
R.M.C.H., Ranchi. At that date at 17 hours he performed the postmortem examination
on the dead body of Sanika Munda and found the following ante-mortem injuries:
Incised wound-
(i) 14 X 2 ½ cm x cranial cavity deep on the left fronto
temporo-parietal region of head, cutting the left fronto
parieto-temporal bone and brain matter underneath.
Presence of blood & blood clot in the cranial cavity
(ii) 9 x 1 cm x cranial cavity deep on the parietal region of
head posterior part cutting the both parietal bones
posterior part and brain matter underneath
(iii) 5 x 1 cm x scalp deep on the Rt. Forehead and adjoining
frontal scalp.
All the injuries were ante-mortem caused by heavy sharp cutting
weapon may be by Baluwa. Death is due to the above noted injuries. Time elapsed
since death 12 to 36 hours from the date of performing postmortem. He did not find
any Alcohal in the abdomen of deceased.
12. Learned Amicus Curiae for the appellant has submitted
a. The statements of the so-called eye-witnesses are contradictory in
itself as in their statement they also stated that when they reached
at the place of occurrence, deceased was found dead while to the
contrary they also narrated the manner and method in what way
the accused parsons assaulted with which weapon to deceased.
b. All the prosecution witnesses are the interested witness. Their
testimony cannot be relied upon. It is also further submitted that
the I.O. has recovered blood stained Farsa and also took in his
custody the blood stained soil from the of occurrence, the same was
not sent to F.S.L. for examination to ascertain whether the
recovered Farsa was used in commission of the murder.
c. Further it is also contended that the blood stained soil was also not
sent to F.S.L. to ascertain the place of occurrence. Moreover, I.O.
did not prepare the site plan of the place of occurrence. There is
contradictory statement of the witnesses in regard to the place of
occurrence. Some of the witness say the place of occurrence is
Bagan of the house of Sahdeo Mirdha while other say that it was
courtyard of the house of Sahdeo Mirdha.
d. The ocular evidence in regard to the injuries is at variance with the
medical evidence. As per postmortem report, all the injuries were
caused by sharp cutting weapons while in ocular evidence it came
that the deceased was also assaulted with lathi.
e. There is no pre-meditation on the part of accused persons to show
their intention to commit murder to warrant the conviction of the
appellant under Section 302 of the I.P.C. Accordingly, prayed to
allow this Criminal Appeal and to set aside the impugned judgment
of conviction and to acquit the appellant.
13. Per contra learned A.P.P. opposed the contention made by the Amicus
Curiae appearing for the appellant and contended that the prosecution case is based
on direct evidence. What are the contradiction in the statement of the eye-witness
i.e. manner and nature is not on any material point. The ocular evidence is also
corroborated with the medical evidence. In case of a direct evidence, the motive is
not relevant even if the F.S.L. report pertaining to the weapon used in the murder
and the blood stained soil was not produced but same is not fatal to the prosecution
case since prosecution case is based on direct evidence and the prosecution case is
otherwise proved from the testimony of prosecution witnesses.
14. The first issue raised on behalf of the appellant is that the prosecution
witnesses are the interested witness. Their testimony cannot be believed because
there is inconsistency in the statement of the witnesses.
On behalf of prosecution to prove the charge against the appellant has
examined altogether eight witnesses. Out of them P.W.3-Ram Baraik,
P.W.4-Kinu Munda, P.W.6- Mahendra Mahto are the eye-witness of the
occurrence. P.W.3- Ram Baraik in his testimony has stated that on the day of
occurrence Sanika Munda had gone to make search of his she-goat. He also followed
Sanika Munda to the house of Sahdeo Mirdha. Sanika was assaulted there at the
house of Sahdeo Mirdha. On his raising alarm he also attracted there and saw
Budhan Mirdha, Sahdeo Mirdha armed with Danda. Bandhu @ Jagbadhu @
Dhinbandhu Mirdha armed with Tabla. Sanika Munda fell down in front of
the house of Sahdeo Mirdha sustaining the assault and all the accused
persons fled away from there. He also stated that he had seen the accused
Sahdeo and Budhan assaulting with lathi; while Bandhu @ Jagbadhu @
Dhinbandhu Mirdha assaulting with Tabla on the head of deceased. This
witness also stated that at the time of occurrence Mahendar Munda, Kinu
Munda and he was there. She-goat which was missing was not found.
P.W.4-Kinu Munda is also the eye-witness of the occurrence.
This witness also stated that she-goat of Sanika Munda was taken by Jitu Munda for
grazing which did not return in the evening. Jitu Munda had told that Bandhu had
also grazed she-goat along with him. Therefore, Sanika Munda went to the house
of Bandhu @ Jagbadhu @ Dhinbandhu Mirdha to know the whereabouts of
the she-goat. Sanika Munda raised alarm and he rushed to the house of Bandhu @
Jagbadhu @ Dhinbandhu Mirdha and saw Sahdeo Mirdha, Budhan Mirdha both
were assaulting Sanika with lathi while Bandhu @ Jagbadhu @
Dhinbandhu Mirdha was assaulting with Farsa. Sanika fell down on the
ground and died at the spot. This witness in his cross-examination has also
specifically narrated that Bandhu @ Jagbadhu @ Dhinbandhu Mirdha assaulted with
Baluwa while the remaining two had assaulted with lathi.
P.W.6-Mahendar Munda is also the eye-witness of the
occurrence. This witness also stated that on the day of occurrence Jitu Munda who
had gone to graze the she-goats and the cows while came back to the house after
sunset the she-goat of Sanika was missing. Sanika asked in regard to the
whereabouts of the she-goats Jitu replied that he along with Bandhu @
Jagbadhu @ Dhinbandhu Mirdha had gone to graze the cattle along with
Bandhu @ Jagbadhu @ Dhinbandhu Mirdha. Accordingly, Sanika reached to
the house of Bandhu @ Jagbadhu @ Dhinbandhu Mirdha and Bhondu who
resided in one house and asked in regard to whereabouts of his she-goat
where Bandhu @ Jagbadhu @ Dhinbandhu Mirdha assaulted with Baluwa.
On raising alarm by Sanika, Kinu Munda and Ram Baraik also rushed there
and saw Sahdeo Mirdha and Budhan Mirdha assaulting with lathi while
Bandhu @ Jagbadhu @ Dhinbandhu Mirdha assaulting with Baluwa. All the
accused persons intruded in their house and Sanika Munda was found lying dead.
The missing goat was not found.
From the testimony of all the three eye-witnesses, it is evident that all
the three witnesses reached at the place of occurrence on raising alarm by Sanika
Munda and they saw Sahdeo and Budhan assaulting with lathi while Bandhu @
Jagbadhu @ Dhinbandhu Mirdha assaulting with Baluwa to Sanika Munda who on
account of sustaining injury fell down on the ground and died at the spot. There is
consistency in the statement of all the three witnesses in regard to assaulting two
accused Sahdeo and Budhan with lathi while Bandhu @ Jagbadhu @ Dhinbandhu
Mirdha with Baluwa to Sanika Munda. Though these witnesses during cross-
examination stated that when they reached, they also found Sanika Munda dead. On
the single sentence, the testimony of these witnesses cannot be discarded because
it is the settled proposition of law that a statement of the witness has to be read as
a whole, the court relying upon any single line in the testimony cannot discard the
whole of the testimony of the witness. Though these witnesses have stated that they
found dead at the place of occurrence to Sanika Munda. At the same time they also
given an account in regard to inflicting injury by the accused persons to deceased
Sanika Munda that in what manner and with which weapon the accused persons had
assaulted to deceased.
The Hon'ble Apex Court in "Prem Prakash @ Lillu & Ors. vs. State
of Haryana", reported in (2011) 3 SCC Cri. 463 has held:
"That in criminal trial the evidence of a witness must be
viewed collectively. The statement of a witness must be
read as a whole placing reliance on mere line in a statement
will not serve the end of justice."
15. So far as the aforesaid witnesses being interested witness are
concerned on the sole ground their testimony cannot be discharged. All these three
eye-witnesses have stated that their house and the house of accused persons were
at some distance though were not adjoining yet if the alarm is raised, the same can
be heard. On raising alarm, these three witnesses whose house were adjoining to
the house of accused also reached to the place of occurrence to the house of Sahdeo
Mirdha. Their presence at the place of occurrence is not doubted. There is
consistency in statement of all the three witnesses in regard to the assailant who
had inflicted injury to deceased. Moreso there is no enmity between the accused
persons and the witnesses. Their presence at the place of occurrence is not doubted
from the statement given before the Trial Court as nothing was confronted during
cross-examination from these witnesses in regard to show inconsistency in their
testimony in regard to their presence at the place of occurrence.
The Hon'ble Apex Court in "Gangabhavani vs. Rayapati Venkat
Reddy & Ors.", reported in Cr.L.J. 2013 (4) 4618 has held:
"The testimony of an interested witness cannot be
disbelieved merely because they are related to each other
or to the deceased."
The Hon'ble Apex Court in "Shivappa and Ors. vs. State of
Karnataka & Anr.", reported in AIR 2008 SC 1860 has held:
"The Minor discrepancies or improvement in the statement
of eye-witness would not justify to reject their testimony
altogether. Some discrepancies are bound because of social
background of the witness also the time gap between the
date of occurrence and the date on which they deposed
before the Court."
16. The learned Counsel for the appellant also contended that the testimony
of these witness cannot be relied because these witnessed did not intervene to rescue
the deceased while the accused persons were assaulted. As per testimony of these
witnesses when on raising alarm by Sanika Munda all these three witnesses rushed
to the place of occurrence and saw the accused Budhan and Sahdeo assaulting with
lathi and Bandhu @ Jagbadhu @ Dhinbandhu Mirdha assaulting with Baluwa to
deceased Sanika Munda and sustaining injury Sanika fell down on the ground and
died at the spot. Accused intruded in their house. As such there was no occasion for
these witnesses to intervene to rescue the deceased. Moreso the accused persons
were assaulting to deceased ferociously. On this sole ground the testimony of these
witnesses cannot be discarded.
The Hon'ble Apex Court in "Suresh Yadav @ Guddu vs. State of
Chhatishgarh", reported in 2022 Live Law (S.C.) 217 has held:
"In criminal trial the evidence of eye-witness cannot be
discarded only for the reason that he did not raise alarm or
he did not try to intervene when the deceased was
ferociously assaulted and stabbed."
17. The testimony of all these three witnesses are also corroborated with the
testimony of P.W.8 Dr. B.P.Chaurasia who conducted the postmortem of deceased.
This witness P.W. 8 while conducting postmortem found following ante-
mortem injuries:
Incised wound
(i) 14 X 2 ½ cm x cranial cavity deep on the left fronto
temporo-parietal region of head, cutting the left fronto
parieto-temporal bone and brain matter underneath.
Presence of blood & blood clot in the cranial cavity
(ii) 9 x 1 cm x cranial cavity deep on the parietal region of
head posterior part cutting the both parietal bones
posterior part and brain matter underneath
(iii) 5 x 1 cm x scalp deep on the Rt. Forehead and adjoining
frontal scalp.
All the injuries were ante-mortem caused by heavy sharp cutting weapon.
Death is due to above noted injuries. Time elapsed since death 12 to 36 hours.
Doctor has opined that all the injuries were ante-mortem caused by sharp
cutting weapon may be by Baluwa.
All these three witnesses have stated that the accused (appellant herein)
Bandhu @ Jagbadhu @ Dhinbandhu Mirdha was armed with Baluwa and he had
assaulted the deceased with Baluwa. Though these witnesses have not stated how
many times the appellant-accused had assaulted with Baluwa but this ocular evidence
is corroborated to the extent that the injuries which were ante-mortem on the body of
deceased were incised wound and were caused by sharp cutting weapon may be
Baluwa. The Trial Court also held that the ocular evidence in regard to inflicting injuries
with Baluwa to the deceased is also corroborated with the medical evidence as per
testimony of P.W.8 Dr. B.P.Chaurasia who had conducted the postmortem of deceased
Sanika Munda. Therefore, the ocular evidence is not at variance with the
medical evidence on the material point and the injuries inflicted which were
the cause of death of deceased.
The Hon'ble Apex Court in "Bhajan Singh @ Harbhajan Singh vrs.
State of Haryana", reported in A.I.R. 2011 S.C. 2552 has held:
"Contradiction between medical and ocular evidence can be
crystalized to the effect that though the ocular testimony of
a witness has greater evidentiary value vis. a vis. medical
evidence, when medical evidence makes the ocular
testimony improbable, that becomes a relevant factor in the
process of the evaluation of evidence. However, when the
medical evidence goes so far that it completely rules out all
possibility of the ocular evidence being true, the ocular
evidence may be disbelieved."
Herein in the instant case though as per medical evidence there were no
injury caused by hard and blunt object but the ocular testimony is corroborated to the
extent that the appellant-Bandhu @ Jagbadhu @ Dhinbandhu Mirdha had inflicted
injuries to deceased with Baluwa. Therefore, inflicting injury by appellant as per
testimony of the eye-witnesses is corroborated with the medical evidence.
18. Learned Amicus Curiae for the appellant also contended that blood
stained clay and the blood stained Farsa which was taken into custody by the I.O.
same was sent to F.S.L. for examination but no F.S.L. report was produced on behalf
of prosecution on record. As such non-production of the F.S.L. report is fatal to
prosecution case to establish the place of occurrence and also the weapon Farsa
whether the same was used in commission of the offence or not.
As per statement of P.W.2-Munga Lal Munda the seizure memo of the
blood stained clay and the blood stained Farsa which was given by Bandhu @ Jagbadhu
@ Dhinbandhu Mirdha was prepared in his presence. This seizure memo is also
proved by the I.O. P.W.7-M. Horo as Ext.3/1. This witness has stated that he had
sent the same the blood stained soil and also the blood stained Farsa to the F.S.L. but
the F.S.L. report of the same was not received and he had filed the charge-sheet.
Admittedly, no F.S.L. report was produced on behalf of the prosecution. The instant
case is based on the direct evidence. The eye-witness of the occurrence P.W.1-Tapu
Oraon and P.W.3-Ram Baraik and P.W.6-Mahendar Munda have categorically stated
that the appellant-Bandhu @ Jagbadhu @ Dhinbandhu Mirdha had assaulted with
Baluwa and this ocular testimony is also corroborated with the medical evidence as Dr.
B.P.Chaurasia stated that the ante-mortem injuries were caused by sharp edged
weapon may be Baluwa. Although the I.O. and these three witnesses have also
categorically stated that the place of occurrence is the house of Sahdeo Mirdha wherein
Bandhu @ Jagbadhu @ Dhinbandhu Mirdha also resided. Despite preparing the seizure
memo of blood stained soil and Baluwa and having sent the same to F.S.L. non-
production of the same cannot be said to be fatal to the prosecution case. Moreso the
prosecution case is proved from the testimony of the eye-witnesses which is
corroborated with medical evidence. As such the same cannot be said to be fatal to
prosecution case.
The Hon'ble Apex Court in the case of "Dhanaj Singh @ Shera and
others vs. State of Punjab," reported in 2004 Cri.L.J.,1807 in paragraph nos. 5,6
and 7 has held as under:
"5. In the case of a 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; to do so would tantamount to playing into the
hands of the investigating officer if the investigation is
designedly defective. (See Karnel Singh vs. State of M.P.:
(1995) 5 SCC 518).
6. In Paras Yadav and Ors. v. State of Bihar: (1999) 2 SCC
126 it was held that if the lapse or omission is committed by
the investigating agency or because of negligence the
prosecution evidence is required to be examined dehors
such omissions to find out whether the said evidence is
reliable or not. The contaminated conduct of officials should
not stand on the way of evaluating the evidence by the
courts; otherwise the designed mischief would be
perpetuated and justice would be denied to the complainant
party.
7. As was observed in Ram Bihari Yadav v. State of Bihar
and Ors.: (1998) 4 SCC 517, 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 as again reiterated in Amar Singh v.
Balwinder Singh and Ors., (2003) 2 SCC 518. As noted in
Amar Singh's case (supra) it would have been certainly
better if the firearms were 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 eye-witnesses corroborated by the medical
evidence fully establishes the prosecution version failure or
omission of negligence on part of the I.O. cannot affect
credibility of the prosecution version."
19. Lastly the learned Counsel for the appellant has contended that there is
no pre-meditation on the part of the accused person to commit the alleged offence. As
per prosecution case the deceased Sanika Munda whose one she-goat was missing
had gone to the house of appellant-Bandhu @ Jagbadhu @ Dhinbandhu Mirdha to
know the whereabouts of his she-goat which as per information of Jitu had been grazed
along with other she-goats and animals by Jitu and Bandhu @ Jagbadhu @ Dhinbandhu
Mirdha. On reaching to the house of Bandhu @ Jagbadhu @ Dhinbandhu Mirdha,
Sanika asked the whereabouts of the she-goat it provoked to Bandhu @ Jagbadhu @
Dhinbandhu Mirdha and Bandhu @ Jagbadhu @ Dhinbandhu Mirdha assaulted with
Baluwa while the others are alleged to have assaulted with lathi. There is no evidence
on record whether any sudden fight took place but there is evidence that deceased
had gone to house of Bandhu @ Jagbadhu @ Dhinbandhu Mirdha to know the
whereabouts of the missing she-goat which ultimately was not found at the house of
appellant-Bandhu @ Jagbadhu @ Dhinbandhu Mirdha. It invoked the grave and sudden
provocation to Bandhu @ Jagbadhu @ Dhinbandhu Mirdha who assaulted to deceased
with Baluwa. He had no pre-meditation for the same since the grave and sudden
provocation was also invoked by Sanika Munda to Bandhu @ Jagbadhu @ Dhinbandhu
Mirdha. This grave and sudden provocation was not sought voluntarily by appellant-
Bandhu @ Jagbadhu @ Dhinbandhu Mirdha as he lost the self-control on asking in
regard to the whereabouts of the she-goat of Sanika and assaulted him with Baluwa.
As such the alleged act of Bandhu @ Jagbadhu @ Dhinbandhu Mirdha would come
within the periphery of the offence of culpable homicide not amounting to murder in
view of Exception 1 of Section 300 of I.P.C.
20. In order to decide this question whether the case in hand comes in
periphery of Section 304 of I.P.C. it is necessary to go through the provisions of Section
300 and 304 of the Indian Penal Code which are reproduced here-in-below:
Section 300. Murder.- Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death is caused is done with the
intention of causing death, or
2ndly.- If it is done with the intention of causing such bodily injury as the
offender knows to be likely to cause the death of the person to whom the harm is
caused, or
3rdly.- If it is done with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is sufficient in the ordinary course
of nature to cause death, or
4thly.- If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury as is likely
to cause death, and commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.
Exception 1.- When culpable homicide is not murder.- Culpable
homicide is not murder if the offender, whilst deprived of the power of self-
control by grave and sudden provocation, causes the death of the person
who gave the provocation or causes the death of any other person by
mistake or accident.
Exception-2 Culpable homicide is not murder if the offender, in
the exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law and causes the death of
the person against whom he is exercising such right of defence without
premeditation and without any intention of doing more harm than is
necessary for the purpose of such defence.
Exception-3 Culpable homicide is not murder if the offender,
being a public servant or aiding a public servant acting, for the advancement
of public justice, exceeds the powers given to him by law, and causes death
by doing an act which he, in good faith, believes to be lawful and necessary
for the due discharge of his duty as such public servant and without ill-will
towards the person whose death is caused.
Exception-4 Culpable homicide is not murder if it is committed
without premeditation in a sudden fight in the heat of passion upon a
sudden quarrel and without the offender having taken undue advantage or
acted in a cruel or unusual manner.
Exception-5 Culpable homicide is not murder when the person
whose death is caused, being above the age of eighteen years, suffers death
or takes the risk of death with his own consent.
Section 304.Punishment for culpable homicide not amounting
to murder.-
Whoever commits culpable homicide not amounting to murder,
shall be punished with [imprisonment for life], or imprisonment of either
description for a term which may extend to ten years, and shall also be liable
to fine, if the act by which the death is caused is done with the intention of
causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may
extend to ten years, or with fine, or with both, if the act is done with the
knowledge that it is likely to cause death, but without any intention to cause
death, or to cause such bodily injury as is likely to cause death.
21. As per prosecution case, she-goat of the uncle of informant namely
Sanika Munda had gone for grazing did not return to his house. Sanika Munda made
queries from Jitu in regard to his she-goat. As informed by Jitu, he reached to the
house of Bandhu @ Jagbadhu @ Dhinbandhu Mirdha to know the whereabouts of his
she-goat. On reaching Sanika Munda at the house of Bandhu @ Jagbadhu @
Dhinbandhu Mirdha, he raised alarm. Hearing the same P.W.3-Ram Baraik, P.W.4-Kinu
Munda and P.W.6-Mahendar Munda all the three attracted there and they saw Bandhu
@ Jagbadhu @ Dhinbandhu Mirdha assaulting with Baluwa while Sahdeo Mirdha and
Budhua Mirdha assaulting with lathi to Sanika Munda who fell down on the ground on
account of sustaining injury and succumbed to injury at the spot. As per statement of
prosecution eye-witnesses no scuffle took place between the accused persons and the
deceased Sanika Munda. There was no intention or pre-meditation on the part of
appellant-Bandhu @ Jagbadhu @ Dhinbandhu Mirdha to cause death of Sanika Munda.
It was the act of Sanika Munda who asked the whereabouts of she-goat and went to
make search of the she-goat at the house of appellant-Bandhu @ Jagbadhu @
Dhinbandhu Mirdha and as per evidence on record the she-goat was not found at the
house of appellant-Bandhu @ Jagbadhu @ Dhinbandhu Mirdha. This act of Sanika
Munda had provoked to appellant-Bandhu @ Jagbadhu @ Dhinbandhu Mirdha who lost
his self-control and without any intention to cause death and without any pre-
meditation inflicted injuries with Baluwa to Sanika Munda. While inflicting injuries with
Baluwa to Sanika Munda by the appellant reflect that he had the knowledge that
inflicting injury with Baluwa was likely to cause his death though he had no pre-
meditation or intention to cause death of deceased Sanika Munda. This grave and
sudden provocation was invoked by deceased Sanika Munda to appellant and appellant
inflicted injuries with Baluwa to Sanika which ultimately resulted in death of Sanika at
the spot. Therefore, the act of the appellant comes within the Exception 1 of Section
300 of I.P.C. culpable homicide not amounting to murder. As such in view of the
evidence on record the offence committed by the appellant Bandhu @ Jagbadhu @
Dhinbandhu Mirdha is made out culpable homicide not amounting to murder in view
of Exception 1 of Section 300 of I.P.C. and the same is punishable under part-II of
Section 304 of I.P.C.
The Hon'ble Apex Court in "Mavila Thamban Nambiar vs. State of
Kerala", reported in 1997 SCC (Cri) 726 at page 442 has held:
"10. Mr. Lalit then, seriously challenged the conviction of the
appellant under Section 302 of the Penal Code. He urged
that the appellant had neither intention nor knowledge that
such an injury would result into the death of Madhavan. He,
therefore, urged that the appellant at the most could be
convicted or any other minor offence. Mr. George, appearing
for the State of Kerala urged that the appellant was rightly
convicted under Section 302 of the Penal Code and no
interference was called for. After giving our careful thought
to the nature of offence, we are of the considered view that
the offence of the appellant would more approximately fall
under Section 304 Part II of the Penal Code. The appellant
had given one blow with a pair of scissors on the vital part
of the body of Madhavan and, therefore, it would be
reasonable to infer that he (appellant|) had knowledge that
any injury with pair of scissors on the vital part would cause
death though he may not have intended to commit the
murder. We accordingly alter the conviction of the appellant
from Section 302 IPC to one under Section 304 Part II IPC.
22. Therefore, after reappraisal of the evidence on record, it is found that the
prosecution has been successful to prove its case beyond reasonable doubt for the
offence under part-II of Section 304 of I.P.C. Consequently, the impugned judgment
of conviction and sentence passed by the Trial Court needs interference.
23. Accordingly, this Cr. Appeal is partly allowed and the impugned judgment
of conviction and sentence passed by the Trial Court is set aside and the conviction of
the appellant is upheld under part II of Section 304 of I.P.C. and for the same the
appellant is sentenced with imprisonment of 10 years. Accordingly, conviction and
sentence of the appellant stands modified.
24. The appellant has been enlarged on bail during pendency of this appeal,
his bail bond are hereby cancelled and sureties are discharged from their liability.
25. Let the record of Trial Court be sent along with the copy of the judgment
and the Trial Court is directed to ensure compliance of the judgment of conviction and
sentence by sending the appellant to jail to serve out the sentence passed against him.
26. This Court vide order dated 18.01.2023 has appointed Amicus Curiae to
learned Counsel Ms. Soumya S. Pandey. Therefore, let the Secretary, Jharkhand High
Court Legal Services Committee be communicated in regard to the judgment in this
Criminal Appeal, directing him to reimburse fee to learned Amicus Curiae on submission
of bill(s) thereof.
I agree (Sujit Narayan Prasad,J.)
(Sujit Narayan Prasad,J.)
(Subhash Chand,J.)
Jharkhand High Court, Ranchi
Dated the 14.02.2023
P.K.S./A.F.R.
