Choutha Munda vs The State Of Bihar (Now Jharkhand)
2023 Latest Caselaw 785 Jhar

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 154 of 1994 (R)

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(Against the Judgment of conviction dated 6th September, 1994 and Order of sentence dated 9st September, 1994, passed by the Additional Judicial Commissioner IV, Ranchi in S.T. No.262 of 1985)

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1.Choutha Munda, son of late Buka Munda

2.Soma Munda, son of Chaila Munda All residents of village Chalmbartoli, Police Station Khunti, District Ranchi. .... Appellants Versus The State of Bihar (Now Jharkhand) ..... Respondent

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

For the Appellants : Mr. Hemant Kumar Shikarwar, Adv Ms. Ishita Srivastava, Adv For the State : Ms. Bhola Nath Ojha, APP .....

C.A.V. on 07/02/2023 Pronounced on 15/02/2023 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 dated 6th September, 1994 and order of

sentence dated 9st September, 1994, passed by learned

Additional Judicial Commissioner IV, Ranchi in S.T.

No.262 of 1985 by which the appellants were found guilty

and convicted for the offence punishable under Sections

302/149 of the Indian Penal Code and was sentenced to

undergo rigorous imprisonment for life for the offence

punishable under Section 302/149 of the Indian Penal

Code.

Vide order dated 09.05.2019 since appellants nos. 3

to 7 have passed away as such appeal is abated so far

appellant nos. 3 to 7 are concerned.

2. As per fardbeyan of the informant, the prosecution

case in brief, is that:

There was some Gair Mazarua land in the east side

of the Basti (small village) of informant party, in which the

dead body of Basti was used to be buried, for which, a

dispute was going on in between the informant party and

accused persons-Choutha Munda etc. for some period and

previously there was proceeding under Section 107 of the

Code of Criminal Procedure for that land, which was

alleged to be pending before the Court of law.

The informant while giving statement before the

police by way of fardbeyan has alleged that today i.e.,

12.02.1985 at 10.00 a.m. morning the members of

opposite party, namely, Choutha Munda, Chamar Singh

Munda, Budha Munda, Budhu Munda, Birsa Munda,

Jhonda Munda, Soma Munda and Ratan Munda, in

which, Choutha Munda was armed with Sawal and rest

were possessing lathi-danda came and started to fix stone

over the grave of one Buka Munda, upon which, the

cousin brother of informant, namely Majhia Munda and

father of the informant, Guru Munda forbade the accused

persons to fix stone over the graveyard. On this, the

accused persons shouting to kill them started to chase

Majhia Munda and Guru Munda and lastly while chasing

through the farm of one Kamla Pahan, till village road the

accused persons by means of lathi and Sawal gave injury

upon the body of Majhia Munda and Guru Munda (father

of the informant) because of which his cousin brother

Majhia Munda died on the spot while his father Guru

Munda fell in unconscious condition. The informant has

further stated that while quarrel was going on at the

graveyard besides him Jado Munda, Laka Munda, Vinwas

Munda were also present there. On being chased by

accused persons they saved their life. Other villagers also

assembled there on hearing halla (noise) who had

witnessed the occurrence shall also narrate the incidence.

The informant has specifically stated that killing of

his cousin brother-Majhia Munda and injury sustained by

his father was caused by accused persons, namely,

Choutha Munda, Chamar Singh Munda, Budha Munda,

Budhu Munda, Birsa Munda, Jhonda Munda, Soma

Munda and Ratan Munda.

The informant has further stated that the accused by

forming unlawful assembly had killed his cousin brother

and inflicted injuries over the body of his father by means

of lathi and Sawal.

3. The investigating Officer learnt about the occurrence

at about 14.15 hours on the same day of occurrence from

one Mochi Rai Munda, who was not an eye witness of the

occurrence, as such after having recorded Sahna being

Sanha No. 204 dated 12.02.1985, he proceeded to the

place of occurrence, where he recorded the fardbeyan of

informant, basis upon which a formal F.I.R. was registered

against the accused persons under Sections 147/148/149

and 302 of the Indian Penal Code.

4. After investigation, the police submitted charge-sheet

against the accused person. Accordingly cognizance of the

offence was taken and case was committed to the Court of

Sessions, where it was registered as Sessions Trial No.

262 of 1985, wherefrom the case was received in the Court

of learned Additional Judicial Commissioner, Ranchi for

trial and disposal, wherein the charges framed against the

accused was found proved and accordingly the accused

persons were convicted vide judgment of conviction dated

6th September, 1994 and sentenced vide Order of

sentence dated 9st September, 1994 undergo rigorous

imprisonment for life for the offence punishable under

Section 302/149 of the Indian Penal Code, which is the

subject matter of instant appeal.

5. 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.

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

course of trial, has examined altogether 8 witnesses,

namely, P.W. 1-Laka Munda; P.W. 2-Binsay Munda; P.W.

3-Jado Munda; P.W. 4-Gundran Munda; P.W. 5-Kishun

Munda; P.W. 6-Shiv Narayan Prasad (doctor); P.W. 7-Mr.

Renu Bala (doctor) and P.W. 8-Ramjee Pandey (the

investigating officer).

7. Mr. Hemant Kumar Shikarwar, learned counsel for

the appellants has assailed the impugned judgment of

conviction and order of sentence on the following grounds:

(I).The injured witness has not been examined by the

prosecution the reason best known to the prosecution.

(II).Further, the conviction is solely based upon the

testimony of interested witness, and as such since no

independent witness has been examined by the

prosecution though names of many independent

witnesses have come during investigation by the police

as also in deposition of so-called eye witnesses (P.W. 1

to 5), therefore, on this ground the impugned

judgment of conviction and order of sentence is not

sustainable in the eyes of law.

(II).The post mortem report does not corroborate the

nature of injury as described by the eye witnesses to

be found on the body of the deceased.

(III).The learned trial court has not considered the fact

that all the witnesses had inimical relationship with

the accused persons and had convicted the accused

persons solely relying upon such interested witnesses,

which suffers from serious infirmity.

(IV).That the place of occurrence has not been

established and further the manner of occurrence has

also not been established so as the time of occurrence.

(V).It has further been submitted that the prosecution

has not proved the pre-meditated plan to commit

murder.

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.

8. Per Contra, Mr. Bhola Nath Ojha, learned Additional

Public Prosecutor appearing on behalf of State has

defended the impugned judgment of conviction and order

of sentence taking the ground that there is no illegality in

the impugned judgment since impugned judgment is

based upon the testimony of eye witnesses (P.W. 1 to 5)

who have seen the occurrence as would be evident from

the testimony of P.W. 1 to P.W. 5, which is corroborated

by medical evidence as deposed by doctor and the

Investigating Officer.

Learned counsel for the State has further submitted

that P.W. 1 to P.W. 5 since are the eye witness who have

witnessed the commission of crime of causing death of

deceased and as such merely because they are relatives of

the deceased their testimony cannot be discarded.

It has further been submitted that taking into

consideration the testimony of these eye witnesses if the

injured has not been examined the prosecution will not

vitiate.

It has been submitted that it is incorrect submission

on the part of appellants that the nature of injury found

on the body of the deceased has not been corroborated

from the post mortem report as from bare perusal of

nature of injury as mentioned in the post mortem report

to that of description of commission of crime by the

accused persons, it would be apparent that it is

corroborated and minor discrepancy, would not disbelieve

the prosecution case.

So far argument of the appellant relating to the

finding with respect to inimical relation with P.W. 1 to

P.W. 5 with the accused persons are concerned, the same

cannot be a ground to discard the testimony of the eye

witnesses who have disclosed about the commission of

crime of causing death of the deceased.

It has been submitted that if the testimony of P.W. 1

to 5 will be taken together it would be evident that there is

no inconsistency in their testimony rather they have

consistently supported the prosecution version.

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.

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 to 5 are the eye witnesses to the occurrence.

P.W. 6 and 7 are the doctors and P.W. 8 is the

investigating officer.

P.W. 1-Laka Munda, who is the eye witness, in his

testimony has specifically deposed that on the fateful day,

the accused Choutha Munda armed with Sawal and other

accused persons armed with lathi-danda came to fix stone

over the graveyard of Suka Munda, to which, they forbade.

On the opposition shown by them, the accused persons,

after chasing, started to beat Manjhia Munda and Guru

Munda. Manjhia Munda died on the spot whereas Guru

Munda became unconscious and only he was breathing.

In his cross-examination, this witness has deposed

that Choutha Munda gave Sawal blow upon Majhia

Munda however he expressed his inability that how many

times Sawal blow was given by the accused-Choutha

Munda. This witness has further deposed that Choutha

Munda gave Sawal blow to both Majhia and Guru Munda.

He further deposed that other accused persons gave lathi

blow upon the deceased but expressed his inability that

how many times the lathi blow was given.

P.W. 2-Binsay Munda, who is also an eye witness, in

consistency with the testimony of P.W. 1 has stated that

Choutha Munda was armed with Sabal and other accused

persons were armed with lathi-danda. He has also

deposed that dispute was with respect to fixing of stone on

graveyard. He has further deposed that Sabal blow was

given upon Majhia Munda and Guru Munda. He is further

in consistency with the testimony of P.W. 1 and other

witness on the issue that the dead body of Manjhia Munda

was in the farm of Kamal Pahan and unconscious body of

Guru Munda was also lying there, who died later in

hospital.

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In cross-examination, the defence failed to shake his

evidence.

P.W. 3-Jado Munda, and P.W. 4-Gundran Munda,

who are also the eye witnesses, have stated the same

version as other eye witness have told and in his cross-

examination they did not deviate from what they stated in

his examination-in-chief.

P.W. 5-Kishun Munda, who is the informant in this

case in his examination-in-chief has stated the same

prosecution story as has been given in his fardbeyan,

wherefrom it is evident that the accused persons wanted

to fix a stone slab on the grave of Buka Munda, to which,

the informant party opposed. On opposition shown by the

informant party, the accused persons got annoyed and

started to beat them by chasing them. In course thereof,

Manjhia Munda who was assaulted by Choutha Munda

with Sawal died on the spot and Guru Munda, who

became unconscious on spot because of assault given by

accused persons and later on died in Bariatu hospital in

course of treatment.

In his cross-examination, the informant has

specifically deposed that Choutha Munda had used Sawal

to kill Manjhian Munda and also assaulted Guru Munda

by means of Sawal. He has further deposed that other

accused persons were armed with lathi in their hands. In

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his cross-examination he further deposed that he had

seen the assault given by accused persons.

P.W. 6- Dr. Sheo Narayan Prasad performed post

mortem examination on the dead body of Majhia Munda

on 13.02.1985 and found following ante mortem injuries

on the person of deceased-Majhia Munda:

(i).Cut injury 3" X 1" X scalp deep placed over the right eyebrow causing fracture of right frontal bone.

(ii).Cut injury 2 ½" X 1/2 " X scalp deep placed over the right occipital bone.

(iii).Cut injury 1" X 1/2 " X scalp deep on lower part of right occipital bone.

(iv).Cut injury 1"X ½ " X ¼ " on the chin.

(v).Cut injury ½" X ½" X on right side of lower lip.

(vi).Cut injury ½"X ¼"X1/4" on the right cheek.

The doctor opined that all the injuries were caused

by sharp cutting weapon. The doctor also opined that

such injuries may be caused by Sabal if the blade is wide

according to doctor, death had occurred within 24 hours

from the time of postmortem examination and death was

due to shock and haemorrhage and injury to vital organ.

The doctor further opined that these injuries were

sufficient in ordinary course of nature to cause death. The

doctor stated that injuries nos. 1, 2 and 3 were sufficient

to cause death.

The doctor has proved the postmortem report, which

has been marked as Exhibit 1.

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In his cross-examination, the doctor has stated that

Sabal is generally not a sharp cutting weapon but if the

blade of Sabal is wide, then injuries nos. 1 to 3 can be

caused by it.

P.W. 7-Dr. Mrs. Reena Bala had performed

postmortem examination on the dead body of deceased-

Guru Munda. She found following wounds on the person

of Guru Munda:

Stitched wound:

(i).8 c.m. long on the left side of occipital region of the head.

(ii).3 c.m. long on the pinna of the left year. Abrasions:

(i).3 c.m. X 1 c.m. on the left side of the forehead.

(ii).3 c.m. X 1 c.m. and

(iii).2 c.m. X 1 c.m. both on the left cheek.

Internal injury The doctor deposed that there was depressed fracture of left occipital region of the head. There was also crack fracture of right occipital region of the head and right parietal region of the head. The doctor found epidural blood clot over occipital region of the brain. The doctor found laceration of right frontal lobe of the brain and subdural bleeding. The doctor also found laceration of liver with bleeding of abdominal cavity.

The doctor (P.W. 7) opined that the injuries were ante

mortem caused by hard and blunt substance. The doctor

has proved postmortem examination report of deceased-

Guru Munda, which has been marked as Exhibit 1/1. The

doctor has stated at paragraph 4 of her cross-examination

that it is not correct to suggest that the depressed wound

in the instant case was caused by fall. According to P.W.

7, the crack fracture may be caused by fall.

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P.W. 8-Ramji Pandey, is the investigating officer of

this case, who has deposed that he after recording the

fardbeyan of informant-Kishun Munda took up the

investigation of the case. He further deposed that on the

fardbeyan there is endorsement of officer-in-charge for

lodging of the case which he identified and that has been

marked as Exhibit 2. He further identified the signature

and writing of Sri Lal Bahadur, Officer-in-Charge of the

concerned Police Station over the formal F.I.R., which has

been marked as Exhibit 2/1.

According to Investigating Officer, the place of

occurrence is Kachha Road of the village Bar Toli. This

witness in his examination-in-chief has given all details of

place of occurrence and has deposed that at the place of

occurrence, the Kachha Road runs east to west. The road

coming from village Bar Toli passes through the place of

occurrence and goes to graveyard in question. At place of

occurrence the road is about 15 feet wide. Further place of

occurrence is 500 yard from village. He has further

deposed that he found the dead body of deceased-Manjhia

Munda at the place of occurrence and live body of injured

Guru Munda.

The Investigating officer has found large quantity of

blood at the place of occurrence and also a piece of cloth

under the head of Manjhia Munda, which was fully blood

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soaked. The I.O. prepared inquest report of the dead body

of deceased-Majhia Munda at the place of occurrence in

triplicate carbon copy. He proved one of the carbon copy of

the inquest report, which has been marked as Exhibit 3.

The I.O. had further inspected wounds of Guru Munda

and seized blood stained earth and blood soaked cloth and

prepared seizure-list, which has been marked as Exhibit

4.

11. This Court after having discussed the factual aspect

above and the ground as agitated on behalf of the parties,

is now proceeding to examine the testimony of eye

witnesses-P.W 1 to P.W. 5, whose version have been

corroborated by the testimony of the Investigating Officer

and the doctor basis upon which the learned trial Court

has found the charges proved against the appellants

proved beyond all shadow of doubt.

It appears from the testimony of P.W. 1 to P.W. 5

that they all along have supported the prosecution version

of causing commission of crime to the effect that on the

fateful day, the accused Choutha Munda armed with

Sawal and other accused persons armed with lathi-danda

came to fix stone over the graveyard of Buka Munda, to

which, they forbade. On the opposition shown by them,

the accused persons, after chasing, started to beat

Manjhia Munda and Guru Munda. Manjhia Munda died

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on the spot whereas Guru Munda became unconscious

and only he was breathing.

In their cross-examination, the eye witnesses, P.W.1

to P.W. 5 were consistent what they have stated in the

examination-in-chief. Further, the testimony of P.W. 1 to

P.W. 5 has been corroborated by the testimony of

investigating officer who had prepared inquest report and

visited the place of occurrence and collected the blood

stained earth and other incriminating articles and

prepared the seizure-list.

The doctor, who had conducted post mortem

examination has also corroborated the nature of injury as

have been narrated by the eye witnesses, P.W. 1 to P.W 5

by giving cause of death to the effect Choutha Munda gave

Sabal blow upon Majhia Munda and Guru Munda and

other accused persons who were armed with lathi and

danda gave lathi and danda blow upon the deceased,

which resulted into death of Manjhia Munda and Guru

Munda.

12. This Court, after having discussed the testimony of

these eye witnesses as also the investigating officer and

doctor, is now proceeding to discuss the grounds upon the

impugned judgment of conviction and order of sentence

has been challenged.

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13. The first ground has been taken that the injured

witness has not been examined and therefore, the

judgment of conviction and order of sentence is not

sustainable.

The position of law is well settled as has been held

by Hon'ble Apex Court in the case of Rajan Rai Vs. State

of Bihar [(2006) 1 SCC 191], wherein at paragraph 11 it

has been held as under:

"11. Now the question arises as to whether the trial court as well as the High Court were justified in placing reliance upon the evidence of PWs 2, 3, 5 and 9. PW 9 is the informant himself and, being the brother of the deceased, the most competent person to have witnessed the occurrence that had taken place in the outer verandah of the house. PW 9 himself was injured in the said occurrence and was examined by Dr. B.P. Tribedi (PW 12) who found four injuries on his person caused by explosive substance, such as bomb. The investigating officer (PW 17) heard the sound of bomb explosion at the police station which was at a distance of 1/4th kilometre from the place of occurrence and arrived there at 8.25 p.m. i.e. only after 15 minutes of the occurrence which had taken place at 8.10 p.m. and recorded fardbeyan of PW 9 on the basis of which the formal FIR was registered at the police station. The informant, PW 9 in his substantive evidence in the court has supported the prosecution case disclosed by him in all material particulars. In the FIR he disclosed names of three witnesses specifically, who had received injuries, namely, DWs 1, 2 and 3. Apart from these injured witnesses, it has been stated in the FIR that there were other persons as well who had seen the occurrence. Immediately after the fardbeyan was recorded, the statements of PWs 2, 3 and 5 were recorded by the police without any delay whatsoever. In their statements made before the police, they have categorically supported the prosecution case disclosed in the FIR. They have also specifically stated that all the accused persons threw bombs upon the deceased as a result of which he received injuries and succumbed to the same. PW 9 stated in his

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evidence that the three injured witnesses, referred to above, were not ready to depose out of fear of the accused persons. Presence of three injured witnesses, namely, DWs 1, 2 and 3 at the place of occurrence has been accepted by them and their injuries have been proved by the two doctors PWs 15 and 16. In their evidence, DWs 1, 2 and 3 have simply stated that the appellant was not present at the place of occurrence. It appears that these three injured witnesses were not ready to depose on behalf of the prosecution out of fear of the accused persons, as such, merely because they could not be examined by the prosecution, the evidence of PWs 2, 3 and 5 cannot be discarded especially when their statements were recorded by the police immediately after recording of the fardbeyan. As such, no adverse inference can be drawn against the prosecution for not examining the three injured witnesses. The evidence of PWs 2, 3 and 5 is consistent with the prosecution case disclosed in the FIR as well as in the substantive evidence of the informant, PW 9. In our view, the trial court and the High Court were quite justified in placing reliance upon their evidence. In view of the facts stated above, we are of the view that the prosecution has succeeded in proving its case beyond reasonable doubt."

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

rendered in Sadhu Saran Singh [(2016) 4 SCC 357] at

paragraph 28 held as under:

28. Coming to the issue of non-examination of the injured witness Ganga Singh, it is relevant to point out that the trial court had appreciated the fact that though the prosecution had made an attempt to produce Ganga Singh, they failed to do so as he was kidnapped at the relevant period. This stands proved by the registration of two FIRs dated 12-9-1997 and 6- 10-1997 which establish the fact that Ganga Singh was threatened and kidnapped. Therefore, non-examination of injured Ganga Singh could not be fatal to the case of the prosecution and the same cannot be a ground to disregard the evidence of PWs 1 and 2. Thus, no adverse

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inference can be drawn against the prosecution for not examining Ganga Singh, the injured witness. (Also see Rajan Rai v. State of Bihar [Rajan Rai v. State of Bihar, (2006) 1 SCC 191 : (2006) 1 SCC (Cri) 209] .) [Emphasis Supplied] This Court on the basis of law settled regarding the

effect of prosecution due to non-examination of injured

witness is of the view that herein the fact of the given is

also that there are eye witnesses who have corroborated

the prosecution version, as would appear from the

testimony of P.W.1 to P.W. 5 after reading it together.

Therefore, applying the principle laid down by Hon'ble

Apex Court in the cases, as referred hereinabove, merely

the injured witness has not been examined the

prosecution version will not fail.

14. The second ground has been agitated that P.W. 1 to

5 since are the interested witness and as such the

impugned judgment of conviction and order of sentence

will not sustain.

The law is well settled in this regard that what would

be the effect if the conviction is solely based upon the

testimony of interested witness, as has been held by

Hon'ble Apex Court in the case of Mallanna and Ors. vs.

State of Karnataka, (2007) 8 SCC 523 wherein it has

laid down that the evidence of interested witnesses cannot

be thrown out and the only requirement for the Court is to

consider their evidence with great care and caution and if

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such evidence does not satisfy the test of credibility then

the Court can disbelieve the same. Relevant paragraph

reads as under:

"22. Another ground of attack to the evidence of PW 1, PW 2 and PW 3 is that no reliance should be placed upon these witnesses as PW 1 and PW 2 are close relations of the deceased and PW 3 is his bodyguard inasmuch as, undisputedly, there was animosity between the deceased and the accused persons, especially when these witnesses cannot be said to be stamp witnesses as none of them has received any injury. In our view, merely because witnesses are related or interested or not injured, their evidence cannot be discarded if the same is otherwise found to be credible, especially when they have supported the prosecution case in material particulars. All the three eyewitnesses, PW 1, PW 2 and PW 3 are natural witnesses. PW 3 was undisputedly bodyguard of the deceased and PW 1 and PW 3 came with the deceased to the house of PW 2 which was in Gulbarga the previous night for appearance of the deceased in sessions trial, pending against him, in the morning court at Gulbarga and in the morning all of them went to the court where the present occurrence had taken place in the broad daylight. So far as PW 2 is concerned, further submission has been made that his evidence should be discarded also on the ground that he made the statement before the doctor (PW 6) to the effect that A-4 was also the assailant, as would appear from Exhibit P-10, an entry made in the register duly maintained in the hospital, which shows that he had not seen the occurrence."

[Emphasis Supplied]

In Kulesh Mondal vs. State of W.B., (2007) 8 SCC

578, the Hon'ble Apex Court has laid down at paragraph-

10 which reads as under:

"11. "10. We may also observe that the ground that the [witnesses being close relatives and consequently being partisan witnesses,] should not be relied upon, has no substance. This theory was repelled

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by this Court as early as in Dalip Singh v. State of Punjab [AIR 1953 SC 364 : 1953 Cri LJ 1465] 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 Rajasthan [1951 SCC 1213 : AIR 1952 SC 54 : 1952 Cri LJ 547] (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.'"

We have also observed that the ground that the

witnesses being close relative and consequently being

partisan witnesses should not be relied upon, has no

substance. This theory was repelled by the Hon'ble Apex

Court in Dalip Singh and Ors. vs. State of Punjab, AIR

1953 SC 364 in which surprise was expressed over the

impression which prevailed in the minds of the members

of the Bar that the relatives were not the independent

witness. Relevant paragraph-26 reads as under:

"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. 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

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mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. 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."

Again in Masalti and Ors. vs. State of Uttar

Pradesh, AIR 1965 SC 202, the Hon'ble Apex Court has

observed that there is no doubt that when a criminal court

has to appreciate evidence given by witnesses who are

partisan or interested, it has to be very careful in weighing

such evidence. Whether or not there are discrepancies in

the evidence; whether or not evidence strikes the court as

genuine whether or not the story disclosed by the evidence

is probable, are all matters which must be taken into

account. But it would 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. Often enough, where factions prevail in villages

and murders are committed as a result of enmity between

such factions, criminal courts have to deal with such

evidence of a partisan type with great care. 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 cautions in dealing with such evidence; but the

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plea that such evidence should be rejected because it is

partisan, cannot be accepted as correct.

In Rizan and Anr. vs. State of Chattisgarh,

(2003) 2 SCC 661, the Hon'ble Apex Court has observed

at paragraphs-6 to 9, which reads 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 [AIR 1953 SC 364 : 1953 Cri LJ 1465] it has been laid down as under : (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 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."

- 23 -

8. The above decision has since been followed in Guli Chand v. State of Rajasthan [(1974) 3 SCC 698 : 1974 SCC (Cri) 222] in which Vadivelu Thevar v. State of Madras [AIR 1957 SC 614 : 1957 Cri LJ 1000] 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 [AIR 1953 SC 364 : 1953 Cri LJ 1465] 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 Rajasthan [1951 SCC 1213 : AIR 1952 SC 54 : 1952 Cri LJ 547] ' (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.""

In Shamim vs. State (Government of NCT of

Delhi), (2018) 10 SCC 509, the Hon'ble Apex Court has

observed at paragraph-9 which reads 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

- 24 -

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 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."

Herein in the instant case, P.W. 1 to P.W 5 are the

relatives of the deceased but merely because they are

relatives as per law laid in by Hon'ble Apex Court, as

referred hereinabove, their testimony cannot be discarded

since in their testimony they are all along consistent to the

prosecution story, which has been corroborated by the

testimony of investigating officer and the doctor, who have

conducted post mortem examination of the deceased.

15. Further ground has been taken that the post mortem

report cannot be said to be in corroboration with the

injury report. We have considered the post mortem report

wherefrom it is evident that injuries have been found on

the body of the deceased persons, description of which

- 25 -

has been given in the post mortem report given by doctor,

as quoted hereinabove

We have also considered the narration of the injuries

inflicted upon the deceased persons by the

accused/appellant as has been disclosed by the eye

witnesses (PW 1 to PW 5) and found therefrom that the

injury as has been narrated by the prosecution witnesses

is almost same and similar and even if there is minor

discrepancy in the nature of injury that itself cannot be

said to be sufficient to disbelieve the prosecution story.

The position of law is well settled that if the

prosecution has been able to prove the charges leveled

against the person concerned who has committed the

crime from the testimony of the eye witnesses even if there

is discrepancy in the medical evidence, the testimony of

the ocular witnesses cannot be discarded, reference in this

regard may be made to the judgment rendered by the

Hon'ble Apex Court in the case of Sadhu Saran Singh

Vrs. State of Uttar Pradesh & Ors., reported in (2016) 4

SCC 357, wherein, at paragraph-26, it has been held as

under:-

"26. We are of the view that the High Court, for acquitting the respondents, had mainly relied upon the medical evidence in a very inappropriate manner. When the doctor (PW 7) in his examination-in-chief had categorically stated that the incident could have occurred at 8.00 a.m. which corroborated the case of the informant, there was no reason to disbelieve this fact to

- 26 -

hold that the incident occurred between 2.00 to 4.00 a.m. merely basing on a vague statement made by the doctor in the cross examination. Also we believe that merely for the reason that no blunt injuries were present on the deceased, the whole evidence - 12 - of PW 1 cannot be discarded as primacy has to be given to the ocular evidence, particularly in the case of minor discrepancies.

This Court in Darbara Singh v. State of Punjab [Darbara Singh v. State of Punjab, (2012) 10 SCC 476 : (2013) 1 SCC (Cri) 1037] , wherein this Court has held : (SCC pp. 480-81, para 10) "10. ... So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved."

(emphasis supplied)

Likewise, in the case of Abdul Sayeed Vrs. State of

Madhya Pradesh, reported in (2010) 10 SCC 259, it has

been held by the Hon'ble Apex Court at paragraph-34 to

39 as under:-

"34. Drawing on Bhagirath case [(1999) 5 SCC 96 : 1999 SCC (Cri) 658] , this Court has held that where the medical evidence is at variance with ocular evidence, "it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to

- 27 -

be tested independently and not treated as the 'variable' keeping the medical evidence as the 'constant' ".

35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. "21. ... The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the 'credit' of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation." [Vide Thaman Kumar v. State (UT of Chandigarh) [(2003) 6 SCC 380 : 2003 SCC (Cri) 1362] and Krishnan v. State [(2003) 7 SCC 56 : 2003 SCC (Cri) 1577] at SCC pp. 62-63, para 21.]

36. In Solanki Chimanbhai Ukabhai v. State of Gujarat [(1983) 2 SCC 174 : 1983 SCC (Cri) 379 : AIR 1983 SC 484] this Court observed : (SCC p. 180, para 13) "13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence." (emphasis added)

37. A similar view has been taken in Mani Ram v. State of U.P. [1994 Supp (2) SCC 289 : 1994 SCC (Cri) 1242] , Khambam Raja Reddy v. Public Prosecutor [(2006) 11 SCC 239 : (2007) 1 SCC (Cri) 431] and State of U.P. v. Dinesh [(2009) 11 SCC 566 : (2009) 3 SCC (Cri) 1484] .

38. In State of U.P. v. Hari Chand [(2009) 13 SCC 542 : (2010) 1 SCC (Cri) 1112] this Court reiterated the aforementioned position of law and stated that : (SCC p. 545, para 13) "13. ... In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."

- 28 -

39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-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, where 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."

Argument has been advanced that P.W. 1 to P.W. 5

had inimical relationship with the accused persons as

such due to grudge the appellants have been falsely

implicated in this case. There is no dispute that the Court

has to consider the testimony of the witnesses who are

having inimical relation but the law is settled that the plea

of inimical relation is having double edge sword as has

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

Singh v. State of Uttar Pradesh reported in (2015) 16

SCC 168 has held as under paragraph 14 which reads

hereunder as :-

14. That brings us to the question whether there is any room for our interference with the conviction of Matibar Singh, appellant, as recorded by the High Court in the impugned judgment [State of U.P. v. Indrasen, Criminal Appeal No. 902 of 1979, decided on 26-9-2001 (All)]. We must, at the outset, say that the High Court's judgment, which has been read out at length before us, has dealt with the evidence adduced at the trial as also the submissions made by the learned counsel for the parties with commendable clarity. We have, therefore, no hesitation in affirming the reasoning and the conclusions arrived at by the High Court. The fact that there was previous enmity between the complainant's party and the rival group of which the accused happen to be members or sympathisers is a factor that need to be taken as adverse to the prosecution.

- 29 -

Enmity is a double-edged weapon. It was because of the said enmity that the victim was assaulted while he was on his way to attend the function. The existence of such enmity lends support to the prosecution case rather than demolish the same. The trial court was obviously in error in taking a contrary view which the High Court has rightly corrected by the impugned judgment. So also, the High Court was, in our opinion, perfectly justified in holding that the deposition of the victim and the eyewitnesses examined at the trial had not been shaken in cross-examinations to render it unsafe for the Court to rest an order of conviction against the accused persons.

This Court after taking into consideration the law

laid down by Hon'ble Apex Court, as above, is of the

considered view that the ground of inimical relation

having with P.W. 1 to P.W. 5 with the accused persons

cannot be said to be acceptable ground to vitiate the

prosecution story reason being that P.W 1 to P.W 5 has

stated about commission of crime by the appellants and

as such the ocular evidence of P.W. 1 to P.W. 5 cannot be

discarded on this ground.

16. So far as the ground of place of occurrence, manner

of occurrence and time of occurrence, having not been

established are concerned, this Court is of the view that

nothing has been placed on record that the place of

occurrence has not been established, as would appear

from the inquest report and examination of the I.O. where

he has prepared the inquest report or the place where the

commission of crime has been committed so as also the

- 30 -

manner of occurrence has also been found to be in

corroboration.

Even accepting there is minor discrepancy that

cannot be said to be a justified reason to discard the

prosecution story in a case where culpability of the

appellants have been found corroborated by the testimony

of P.W. 1 to P.W 5.

17. Further ground has been taken that there was no

plan to commit murder since prosecution was not able to

prove any pre-mediated plan.

In the context of the aforesaid argument, it will be

purposeful to analyze Section 300 of the Indian Penal

Code, which reads as under:

"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"

There are four exceptions to Section 300 of the

Indian Penal Code. The learned counsel for the appellant

has relied upon Exception IV to Section 300 which reads

as under:

"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. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault."

From the plain reading of the aforesaid provision it is

amply clear that to avail of the benefit of Exception IV to

- 31 -

Section 300, the defence is required to show that the

offence was committed without any premeditation in a

sudden fight in the heat of passion upon a sudden

quarrel. The exception is based upon the principle that in

the absence of premeditation and on account of total

deprivation of self-control but on account of heat of

passion, the offence was committed which, normally a

man of sobriety would not resort to.

Reference in this regard may be taken from the

judgment rendered by Hon'ble Apex Court in Sukhbir

Singh vs. State of Haryana reported in (2002)3 SCC

327, wherein at paragraph 17, it has been held as under:

"17. To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self- control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by the courts that a fight is not per se palliating circumstance and only unpremeditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception.

Applying this test to the facts of the instant case, it is

evident from the testimonies of the eye witnesses (P.W.1 to

5) that the accused/appellants were armed with Sawal

and Lathi and assembled at the place of occurrence to fix

stone over the graveyard and when they were forbade by

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the informant's father, the accused persons started

shouting to kill the deceased persons and after chasing,

started to beat Manjhia Munda and Guru Munda due to

which both the deceased persons succumbed to their

injuries.

Further from the testimonies it is amply clear that

the deceased persons were simultaneously hit by the

sawal and lathi blow as inflicted by the

accused/appellants.

Further it is pertinent to mention here that that in

order to sustain a conviction under Section 149 I.P.C., it

was important that the accused should be sharing a

common object to murder. Mere presence of the accused

at the place of occurrence would not suffice inasmuch as

it had to be proved that the accused have come to the

place of occurrence with a premeditated plan. To sustain a

conviction under Section 302 that even if the murder was

proved, those persons who are not involved in the actual

assault and were not responsible for the injuries caused to

the deceased, unless and until it was conclusively proved

that they had come at place of occurrence with

premeditated plan.

In the instant case the accused/appellants after

forming of unlawful assembly had murdered the deceased

persons which is fully corroborated by the deposition of

- 33 -

doctors (P.W.6 and 7) who performed the autopsy on the

dead body of the deceased persons. From the post-mortem

report it is evident that different type of multiple injuries

were found on the bodies of deceased which reflects the

repeated and multiple blow as made by the accused

persons.

In view of discussions made hereinabove, it is evident

that there is no iota of doubt that the offence

of murder was committed by the accused/appellants in

furtherance of premeditated plan to kill the deceased and

that is why the accused persons along with sawal and

lathi were present nearby the place of occurrence and

when the deceased tried to escape they chased and killed

them.

Hence we find no force in contention of the learned

counsel for the appellants that the crime alleged was not

committed in furtherance of premeditated plan.

18. This Court after considering the grounds as agitated

on behalf of appellants and after taking into consideration

the discussions made hereinabove has scrutinized the

finding recorded by trial Court in the impugned order

wherefrom it is evident that the learned trial Court has

found that the prosecution has been able to prove the

charge beyond all reasonable doubt against the appellants

by taking into consideration the testimony of eye

- 34 -

witnesses P.W. 1 to P.W 5 being corroborated with the

testimony of doctor and I.O. and as such according to our

considered view that cannot be said to suffer from any

error, which requires no interference by this Court.

19. 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 appellants is

imposed.

- 35 -

20. With the aforesaid modification in the order of

sentence, the instant appeal stand dismissed.

21. Consequent upon dismissal of the appeal preferred

by the appellants, since appellants are enjoying

suspension of sentence after the order being passed by

this Court directed to release them during pendency of the

appeal, their bail bond are cancelled and they are directed

to surrender before the learned trial Court who would

send them jail to serve out their remaining sentence.

22. Needless to say that if the appellants will not

surrender, the trial Court will take endeavours for

securing custody to serve out their remaining sentence

and further secure that they may deposit the amount of

fine so imposed by this Court.

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

Court concerned forthwith, along with the copy of this

Judgment.

          I Agree                         (Sujit Narayan Prasad, J.)



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




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