1 Cr. (Jail) Appeal (D.B.) No. 1870 of 2004 Against the judgment and order of conviction and sentence dated 21.09.2004 passed by the learned Additional Judicial Commissioner, F.T.C. No. IV, Ranchi, in S.T. No.123 of 1999 (arising out of G.R. Case No. 633 of 1998). …..... Kinu Munda ... Appellant . Versus The State of Jharkhand ... ... ... … Respondent. ------ PRESENT HON'BLE MR JUSTICE PRADIP KUMAR MOHANTY, A.J.C. HON'BLE MR. JUSTICE ANANDA SEN ------ For the Appellant : Mr. Saurabh Shekhar, Advocate ( A.C.) For the State : Mr. Pankaj Kumar, A.P.P. …...... By the Court: This criminal appeal is directed against the judgment and order of conviction and sentence dated 21.09.2004 passed by the learned Additional Judicial Commissioner, F.T.C. No. IV, Ranchi, in S.T. No.123 of 1999 (arising out of G.R. No. 633 of 1998), convicting the present appellant under section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life.
2. The case of the prosecution is that on 19.03.1998, in the evening at about 6.30 PM, while the informant was talking with her sister-in-law in the courtyard of Jirku Munda, the informant's husband also came and sat there. The informant's brother-in-law (appellant) came there, armed with knife and assaulted the deceased on the shoulder due to which he fell down. Thereafter, accused assaulted two to three times by knife on his neck. When the informant and her sister-in-law tried to save the deceased, the accused again assaulted the informant's husband by spade on the neck and thereafter the informant and her sister-in-law came out and raised hulla. After some time accused-appellant came out of the house and fled away. When the wife of the deceased (informant) and her sister-in-law entered into the room, they found that informant's husband was lying dead. Thereafter, the informant went to Bero Police Station within Ranchi district and gave her fardbeyan; on the basis of which Bero P.S. Case No. 18 of 1998 was registered and after investigation charge sheet was submitted against the present appellant under section 302 of the Indian Penal Code.
3. The plea of the accused is complete denial of the allegation.
4. In order to prove its case, the prosecution altogether has examined 6 witnesses and exhibited as many as 5 documents in support of its case and the defence has not examined any evidence on its behalf.
5. The learned trial Court i.e. Additional Judicial Commissioner, F.T.C. No. IV, 2 Ranchi, who had tried the case,convicted the present appellant under section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life basing upon the evidence of P.W.1-informant, wife of the deceased and Doctor (P.W.5).
6. Mr. Saurabh Shekhar, learned counsel for the appellant assailed the judgment of conviction on the following grounds:-(i) In fact, there is no eye witness to the alleged occurrence. (ii) nobody had seen the occurrence, (iii) P.W.1, wife of the deceased had also not seen the occurrence. She only saw some scuffle between her husband and the accused and thereafter she went away to call villagers and thereafter when she returned, she found that her husband was lying dead. She has admitted that there was no dispute between the appellant and the deceased and there was cordial relationship between them. Thereafter, she went to the police station and lodged the complaint and put her L.T.I. in the said complaint (iv) P.W. 3 and P.W.4 were declared hostile by the prosecution and (v) P.W.2 is a villager and is a witness to the inquest report and seizure list. Therefore, it is not a fit case to convict the appellant under section 302 of the Indian Penal Code. Moreover, the appellant is languishing in jail custody for more than 18 years. Therefore, it is a fit case to set aside the judgment of conviction passed against the appellant.
7. Mr. Pankaj Kumar, learned Additional Public Prosecutor vehemently opposes the submissions made on behalf of the appellant. He submits that P.W.1 has clearly supported the case of the prosecution and P.W.2, who is a villager and is a witness to the inquest report and seizure list, has proved the inquest report and seizure list (Exts. 1 and 1/1) and P.W.5, Doctor, who had conducted autopsy on the dead body of the deceased has also corroborated the oral evidence. Learned Addl. P.P. Has also submitted that there is no infirmity and illegality committed by the learned trial court in convicting and sentencing the appellant under Section 302 IPC.
8. Perused the L.C.R. and we have gone through the evidence minutely. P.W.1 , wife of the deceased. She specifically stated in her evidence that the present appellant Kinu Munda came and caught hold the deceased and assaulted the deceased with knife. Thereafter, she went away and when she returned, she found that her husband was lying dead. In her cross-examination she has admired that she had not seen the assault; P.W.2 is the villager, who is a witness to the inquest report and the seizure list as Exts. 1 and 1/1 and has put his signature. P.W.3 is the brother of the appellant/accused and he was turned hostile. P.W.4 is the wife of P.W.3 and she was declared hostile. When she confronted with her earlier statement, nothing 3 has been elicited by the prosecution in support of its case. P.W.5 is the Doctor, who conducted the autopsy and found the following injuries: Abrasions- (1) 5 X2cm on right side of abdomen front, (ii) 2 X1cm on right knee. Lacerated wound:- (I) 2X1cm X soft tissue over left side of neck upper part. Stabbed wound:- (i)1 X ½ X1½ cm on right side of neck (ii) 1 X ½ X1½ cm under surface chin the track of the wounds were oblique and confined to the soft tissues. Incised wound- (I) 5 X2cms. X bone deep on left side of neck cutting the blood vessel oesophagus, trachea and third survical vertibra partially (ii) 7 X2cm X bone deep on left side of neck 1 cm below preceding injury cutting the blood vessel, oesophagus, trachea and forth survical vertibra partially (iii) 5 X2cm X soft tissues on left side of neck lower part 2 cms below preceding injury (iv) 6 X2cm X bone deep on front of neck lower part cutting blood vessels, oesophagus, tracea and fifth survical vertibra partially.
9. The Doctor opined that all the injuries were ante-mortem, abrasion and lacerated wounds, which were caused by hard and blunt substance, stabbed wound by sharp cutting cum-pointed weapon and incised wounds by heavy sharp cutting weapon. The death was due to shock and hemorrhage, Time since death 12 to 36 hours from the time of postmortem examination. He has also proved the postmortem report (Ext.-2). In his cross-examination, he has admitted that the injuries found on the death body were very much possible by one weapon.
10. P.W.-6 is ASI of Bero Police Station. He has only proved the fardbeyan , which was written by Hari Shankar Prasad, the then Officer In-charge, Bero Police Station and his signature as Ext.-3, a formal First Information Report, which was also written by the said Hari Shankar Prasad as Ext.-4. In his cross-examination, he has admitted that no paper was prepared in his presence and he had no personal knowledge about the case.
11. On scrutiny of the entire evidence, it is clear that nobody had seen the occurrence. The I.O. of the case has not been examined by the prosecution. P.W.-1 has specifically stated that she had not seen the occurrence. Ext.-1 and Ext.-1/1 have not been produced before the Doctor nor were produced before the learned Trial Court. No specific questions were put to the appellant with regard to the assault. P.W.1-informant (wife of the deceased) had also admitted in her evidence that there was no enmity between the appellant and the deceased and the appellant, 4 as submitted, has already remained in custody for 18 years. Since the material exhibits have not been produced either before the Doctor for his opinion nor before the Court and no question was put to the appellant by the Court under Section 313 Cr.P.C., it cannot be accepted that the seizure list (Ext.-1/1) is a valid document.
12. After considering the submissions of learned counsel for both the parties, this Court is of the view that the prosecution has not been able to prove its case beyond all reasonable doubts. As such, this criminal appeal is allowed and the judgment and order of conviction and sentence dated 21st September, 2004 passed by the Additional Judicial Commissioner, Fast Tract Court No. IV, Ranchi in S.T. No. 123 of 1999 is hereby set aside. Appellant- Kinu Munda having been found not guilty of the charges levelled against him, is accordingly, acquitted. Therefore, appellant- Kinu Munda, who is in jail, shall be released forthwith, if not wanted in any other case. (Pradip Kumar Mohanty,A.C. J.) ( Ananda Sen, J.) High Court of Jharkhand at Ranchi Dated 17th November, 2016 Sharma-Anu/ N.AFR