Cr. Appeal (S.J.) No.894 of 2006 1 Cr. Appeal (S.J.) No.894 of 2006 [Against the judgment of conviction and order of sentence dated 24.05.2006/25.05.2006 passed by learned Additional District and Sessions Judge-II, Gumla in S.T. No.218 of 2005] ------ Tetaru Munda, son of Bidesiya Munda, resident of village-Lorba, P.S.-Chianpur, District-Gumla .... .... …. Appellant Versus The State of Jharkhand .... .... .... Respondent ------ For the Appellant : Ms. Sunita Kumari, Advocate For the State : Mrs. Vandana Bharti, A.P.P. ------ PRESENT HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA JUDGEMENT ------ Dated-28/11/2024 Pronounced On: 28 /01/2025 Per-Pradeep Kumar Srivastava, J. 1. Heard, Ms. Sunita Kumari, learned counsel for the appellant and Mrs. Vandana Bharti, learned Additional Public Prosecutor appearing for the State. 2. The present appeal has been preferred by the appellant challenging the judgment of conviction and order of sentence dated 24.05.2006/25.05.2006 passed by learned Additional Cr. Appeal (S.J.) No.894 of 2006 2 District and Sessions Judge-II, Gumla in S.T. No.218 of 2005 whereby and whereunder, the appellant has been held guilty for the offences under section 304(part I) of Indian Penal Code and sentenced to undergo R.I. of 5 years. FACTUAL MATRIX 3. Factual matrix giving rise to this appeal is that on 28.07.2005, the informant Antonish Minz was sleeping in the house of one contractor Piyush Babu, then at about 1:00 PM, he was informed by his younger son Manoj Minz that his brother Lalit Minz has been murdered in the house of Tetaru Munda(appellant) and the dead body is lying at the door inside the house of the appellant. The informnat went to the house of the appellant and saw that his son Lalit Minz has sustained injury on head and lying dead. He asked from the wife of the appellant namely Buddu Devi(P.W6), who replied that in the night at about 12:00 hours, Lalit Minz came to her house and wanted to take undue advantage by establishing physical relationship with her by catching hold her hand then a hot talk took place between the deceased and her husband and her husband gave him axe blow and the deceased also gave an axe blow on the leg of the appellant, who sustained severe injury then she snatched the axe from the hand of the Cr. Appeal (S.J.) No.894 of 2006 3 deceased and gave one axe blow on his head due to which he fell down and died after sometime. It is further alleged that the deceased frequently used to visit to the house of the present appellant and teasing his wife calling her ‘bhaujai’. 4. Upon above information, the FIR was registered for the offence under section 302 of IPC against the appellant and after completion of investigation, charge-sheet was submitted and cognizance was taken by the learned Magistrate and the case was committed to the court of Sessions, where S.T. No.218 of 2005 was registered and after conclusion of the trial, impugned judgment and order has been passed. 5. Learned counsel for the appellant assailing the impugned judgment and order of conviction and sentence has submitted that altogether 8 witnesses were examined by the prosecution but no material has been brought on record establishing the guilt of the appellant. The prosecution has manipulated a story about illicit relationship between the wife of the appellant and the deceased. No incriminating articles have been recovered from the possession of the appellant nor the alleged recovery of weapon has been established by the prosecution to be sued in commission of murder of the deceased. Merely, the dead body of the deceased was found near the house of the present Cr. Appeal (S.J.) No.894 of 2006 4 appellant, hence he has been implicated in this case only on the basis of suspicion. The prosecution has miserably failed to prove the charge leveled against the appellant, hence he deserves acquittal by setting aside the impugned judgment and order, and allowing this appeal. 6. On the other hand, learned Additional Public Prosecutor appearing for the State has vehemently opposed the aforesaid contentions raised on behalf of the learned counsel for the appellant and submitted that there is direct evidence against the appellant of committing murder of the deceased. Learned trial court has found the case of grave and sudden provocation as appended to Exception 1 to section 300 of IPC and taking lenient view, the appellant was awarded sentence of 5 years imprisonment only. There is no illegality and infirmity in the impugned judgment and order calling for any interference, which is fit to be dismissed. 7. I have gone through to the entire record of the case along with impugned judgment and order in the light of the contentions raised on behalf of both the sides. 8. It appears that altogether 8 witnesses have been examined by the prosecution in order to substantiate the charges leveled against the appellant. Cr. Appeal (S.J.) No.894 of 2006 5 9. For better appreciation of the case, I have to apprise with the ocular testimony of the witnesses examined by the prosecution. P.W.1 Kishore Kindo is a witness of inquest report having no knowledge about the occurrence. P.W.2 Herman Kujur has been declared hostile by the prosecution. In the next morning, he came to know from the father of the deceased about murder but does not know who has caused murder of the deceased. P.W.3 Antonish Lakra has also been declared hostile by the prosecution and has not supported the prosecution story. P.W.4 Antonish Minz, who is father of the deceased- cum-informant of this case has also been declared hostile by the prosecution. According to his evidence, Lalit Minz (deceased) was his son. This witness heard hulla about murder and the dead body of his son was found adjacent to the house of the accused, he cannot tell who has committed murder of his son. P.W.5 Manoj Minz is brother of the deceased and son of P.W.4 Antonish Minz, it is utter surprising that as per FIR, this witness went to his father at the house of contractor Cr. Appeal (S.J.) No.894 of 2006 6 Piyush Babu and told him about murder of his brother in the night. But this witness has stated nothing against the appellant rather he simply admits that he informed his father about murder of his younger brother whose dead body was lying outside of the house of the appellant. He can’t tell who has murdered his brother. P.W.6 Budhu Devi is the wife of the appellant and she has simply stated that the dead body of Lalit Minz was lying adjacent to her house. She can’t tell who has killed him and on suspicion, her husband has been involved in this case. Her attention has been drawn towards the statement recorded by the I.O. P.W.7 Dr. Manvendra Kumar Singh has conducted autopsy on the dead body of the deceased on 30th July, 2005 and found following:- Rigors mortis was absent over all 4 limps. Body swollen and few glitters were present here and there over body. Bleeding to nostrils and right ear present. Injuries (i) One incised wound on right tempal standing up to lateral end of right eye size 2 ½ “ x 1” x bone deep. Right temporal bone was cut completely. Cr. Appeal (S.J.) No.894 of 2006 7 (ii) Bruise just below and posterior to the right pinna size 3” diameter right mandible, and occipital bone fractured. Above injuries found ante-mortem in nature cut by sharp-cutting weapon like tangi and hard and blunt substance respectively. Cause of death is opined to be hemorrhage and shock. Time elapsed since death in between 36 to 46 hours. Post-mortem report is proved as Ext.4. P.W.8 is the Investigating Officer of this case. According to his evidence, on 29.07.2005 at about 11:00 AM, he got information through rumor that in village Loramba, one man has been murdered. He entered S/D Entry No.458 dated 29.07.2005 and he went to the place of occurrence where he recorded the fardbayan of Antonish Minz (P.W.4) marked as Ext.5. On the basis of which, a formal FIR was lodged and marked as Ext.6. He undertook the investigation himself and went to the place of occurrence where he prepared inquest report of the deceased in presence of witnesses (Ext.7). He has also recorded the restatement of the informant and witnesses and other witnesses present at the place of occurrence. The dead body of the deceased was found near the front door of the appellant and at a distance of 15 meters towards south the Cr. Appeal (S.J.) No.894 of 2006 8 house of the deceased is situated. He further deposed that he arrested the accused, who confessed his guilt and was recorded by him and marked as Ext.8. This witness has further stated that in his confessional statement, the accused told that the axe used in commission of murder of the deceased has been kept concealed in the kitchen of his house, which was recovered on his identification and seizure list was prepared (Ext.9). The material exhibit axe was also produced wrapped in a paper and kept at Chainpur Police Station Malkhana, which is marked as Material Ext.1. He has also admitted that accused was also injured and he was sent to Family Health Center, Chainpur for medical treatment. After finding sufficient evidence, this witness submitted charge-sheet. 10. From the aforesaid discussion of evidence of material witnesses of facts, it is obvious that ocular witnesses examined in this case have not been able to prove the prosecution story as alleged in the FIR, even the informant and his son along with other witnesses have been declared hostile by the prosecution. It appears that learned trial court has convicted the appellant only on the basis of confessional statement of the accused recorded by the police leading to recovery of tangi from the kitchen of his house. It is utter surprising that neither Cr. Appeal (S.J.) No.894 of 2006 9 the confessional statement before the police nor the alleged discovery and seizure list appears to have any legal consequence. The recovery of the tangi is the matter of ordinary search and seizure, which may be recovered by the police through ordinary search of the house of the appellant and it cannot be said that the alleged recovery of tangi attracts the provision of section 27 of the Evidence Act. The confessional statement as a whole is marked exhibit in this case without drawing the attention of the Court towards that part of the statement of the accused which was specifically leading to discovery of tangi. It is also to be mentioned that the weapon of offence (material Ext.1) allegedly seized in this case was not sent to FSL, Ranchi for chemical examination as to whether it was stained with human blood or any murder was committed by the said tangi. Therefore, the tangi was not connected towards causing murder of the deceased. Moreover, the dead body of the deceased was not found inside the house of the appellant rather it was found just 50 yards away adjacent from the house of accused. 11. Considering the overall aspects of the case, I find that learned trial court has miserably failed to take note of above glaring infirmities appearing in the prosecution evidence. The Cr. Appeal (S.J.) No.894 of 2006 10 conviction and sentence of the appellant solely on the ground of suspicion cannot be justified under law. In this view of matter, I find merit in this appeal, therefore, impugned judgment and order or conviction and sentence of the appellant passed by learned Additional District and Sessions Judge-II, Gumla in S.T. No.218 of 2005 is, hereby set aside and this appeal is allowed. 12. The appellant is on bail, hence he is discharged from bail bond. The sureties are also discharged. 13. Pending I.A(s), if any, is also disposed of accordingly. 14. Let the copy of this judgment along with Trial Court Record be sent back to the trial court for information and needful. (Pradeep Kumar Srivastava, J.) High Court of Jharkhand, Ranchi Dated:28 /01/2024 N.A.F.R.-Pappu/-