Jharkhand High Court
Rekoda Munduiya @ Rekonda Munduiya Son ... vs State Of Jharkhand on 5 September, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 129 of 2011
[Arising out of judgment of conviction dated 28.06.2010 and order of sentence
dated 30.06.2010 passed by learned Additional Sessions Judge, F.T.C.-I,
Chaibasa in Sessions Trial No. 141 of 2006]
Rekoda Munduiya @ Rekonda Munduiya son of Late Laduna Munduiya
resident of Gitilpee, P.O. Chaibasa, P.S. Muffasil, District West Singhbhum
.... .... .... Appellant
--Versus--
State of Jharkhand .... .... .... Respondent
For the Appellant: Mr. R.P. Gupta, Advocate
For the State : Mr. Bhola Nath Ojha, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
Reserved on: 28.08.2024 Pronounced On: 05.09.2024
Per Gautam Kumar Choudhary, J. This appeal is preferred against the judgment
of conviction and sentence passed in Sessions Trial No. 141 of 2006 whereby
and whereunder the appellant has been convicted and sentenced under Sections
147, 427, 452 and 302 of the IPC by the learned Additional Sessions Judge,
F.T.C.-I, Chaibasa.
2. As per the FIR, on 4/5.10.2004 a midnight raid was conducted in the
house of the informant by 10 - 12 unknown persons at about 1:30. At that time,
the informant was sleeping in his house with his family members when he woke
up at the cries of Ram Nath Gope, who was sleeping in the outhouse. At that
time, some one was also banging the rear side door to the south and the door
was broken open by the intruders, who were two in number. The family
members got very terrified and somehow hid themselves in the house. Later on,
Chaitnya Gope was found in an injured condition and Ram Nath Gope had also
sustained injuries.
3. On the basis of the fardbeyan, West Singhbhum P.S. Case No.115 of 2004
was registered under Sections 147, 148, 307, 452, 427 of the IPC. Chaitnya
Gope died during course of his treatment on 7th October, 2004 and later on,
Section 302 of the IPC was also added in the FIR. After investigation, charge
sheet was submitted against the appellant and he was put on trial for the offence
under Sections 147, 427, 452, 302/34 of the IPC.
4. Altogether nine witnesses have been examined on behalf of the
prosecution and relevant documents including the post mortem examination
report, have been adduced into evidence and marked as Exhibit 1 - 5.
5. Judgment of conviction and sentence has been assailed on the ground that
there is no legal evidence against the appellant and he has been convicted only
on the basis of conjecture and surmises.
6. Deceased- Chaitnya Gope died a homicidal death, is proved by the
testimony of P.W. 7. As per the post-mortem examination report conducted on
08.10.2004, deceased suffered six ante-mortem injuries, the injuries included
lacerated wound stitched which are as follows: -
I. 9 cm long on the vertex of head situated anterio posteriorly. Underneath,
there is a fracture measuring 8 cm long of right parietal bone with
separation of coronal suture.
II. 6 cm long on right parietal region of head posterior part with depressed
and fracture on right parietal bone situated on the right end of said crack
fracture.
III. 4 x 1 cm x scalp deep on middle part of the occipital region of head.
IV. 4 x 1 cm x 3 x 1 cm scalp deep on right occipital region situated below
the preceding injury.
V. Abrasion 2 x 1cm on medial side of left ankle.
There was diffuse contusion of scalp with both temporalis muscle. There
was presence of expidural blood clot over right parietal region of brain
measuring 8 x 6 cm. There was presence of subdural blood and blood clot over
both sides of brain.
The Doctor has opined that reason of death was due to above injuries
which were caused by hard and blunt substance.
7. All the material witnesses have identified the appellant in dock during
trial as the person who was among the assailants. It has been specifically stated
by P.W. 5, who is the informant of the case that appellant was wearing a red
colour knicker.
P.W. 2, who is daughter of the informant and was present in the house at
the time of occurrence, has corroborated the testimony of informant that
appellant was wearing red knicker and banyan. She has further added that in the
ongoing construction work, he had come to unload brick in the adjacent house
and had come there for drinking water. This witness could be identified in the
tube light.
P.W. 3- Ram Nath Gope is the brother of the deceased. He has deposed
that the appellant was one of the assailants who had come and got the door open.
Source of light for identification has been stated by him to be tube light.
P.W. 4 has also testified on the same line.
8. The main contention raised on behalf of the appellant is that no Test
Identification Parade of the appellant was held during investigation. It is also
argued that there were 10 - 12 assailants and the only role attributed to him was
that he was present with them and had asked to open the door.
9. On the combined reading of testimony of witnesses, it is evident that
witnesses have consistently stated that the appellant was also present along with
the 10 - 12 unknown persons at the time of incidence. Charge in this case has
been framed under Sections 147, 427, 452, 302/34 of the IPC. The very presence
of the appellant in the dead of night along with other assailants, is sufficient to
show that he shared the common intention with the other appellants and
participated in the offence by directing them to open the door of the house. It
matters little whether the appellant actually participated in the assault and he
will be jointly liable for the offence of committing house trespass and murder.
10. The plea that since the Test Identification Parade was not held, therefore,
identification in court cannot be accepted, is not sustainable. It has been held by
Hon'ble Supreme Court in the case of Motilal Yadav Versus State of Bihar,
(2015) 2 SCC 647 that not holding TIP is not fatal to the prosecution. Law is
settled that identification tests do not constitute substantive piece of evidence.
They are primarily an assurance to the investigating agency that their
investigation is progressing in the right line.
Under the circumstance, the appellant is held guilty for the offence under
Sections 449 and 302/34 of the IPC and is sentenced to undergo RI for life and
a fine of Rs.5000/- under Section 302 of the IPC. In the event of default in
payment of fine, SI of one month. He is also sentenced to RI for five years under
Section 449 and a fine Rs.2500/-. In the event of default of payment of fine, SI
for ten days. All the sentences are directed to run concurrently.
Criminal Appeal is dismissed with modification in finding and
sentence.
Appellant is on bail. His bail is cancelled and is he is directed to surrender
before the court below to serve the remaining part of the sentence.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned along
with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Per Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, 5th September, 2024
AFR/Anit
