Jogen Mundari vs State of Jharkhand and Others

When the case was taken up, Mr. L.D.N. Shahdeo, who had earlier been appointed as Amicus Curiae, since did not appear, we appointed Mrs. Priya Shreshtha, learned counsel, as Amicus Curiae to assist this Court. This appeal is directed against the judgment of conviction and order of sentence dated 11.2.2004 and 13.2.2004 respectively passed by Additional Sessions Judge, F.T.C.I., Chaibasa in S.T. No. 203 of 2002, whereby and whereunder, the appellant on being found guilty for committing murder of Birsa Mundari and for assaulting Sukru Mundari, was convicted for the offences punishable under Sections 302 and 323 of Indian Penal Code and was sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302 of Indian Penal Code and further to undergo rigorous imprisonment for six months for the offence under Section 323 of Indian Penal Code.

The case of the prosecution, as has been projected, is that the deceased-Birsa Mundari, husband of the informant-Sukru Mundari (P.W. 1) had two brothers Late Rout Mundari and Fuddu Munda. After partition of the property, all brothers were living separately. The appellant is the son of Late Raut Mundari. After the death of Raut Mundari, his widow having married another person, had left home. Therefore, this appellant some time used to take his meal in the house of the informant (P.W.1) and sometime in the house of his uncle-Fuddu Munda. In the night of 26.1.2002, this appellant took his meal in the house of the deceased-Birsa Mundari and slept over a cot, whereas in the same room, the deceased- Birsa Mundari and his wife-Sukhi Mundari- informant slept over a mat on the floor of the room. At about 9 O''clock when the informant-PW. 1 woke up, she found the appellant restless. Having found the appellant restless, the informant asked him to go and sleep. Upon it, he went outside of the room and after a while he came with some weapon in his hands and started assaulting the informant, as a result of which, she received injury over her back, head and right hand. Thereupon, she tried to wake up her husband by shaking his body, but he did respond. Meanwhile, the appellant fled away from there. The informant also came rushing to her another house where her two daughters were sleeping and informed them all about it. When the informant came back, she found her husband dead.

Just after two hours of the occurrence, when Anil Kumar Sharma, S.I., Officer In-charge of Bandgaon Police Station came to the village, he recorded the fardbeyan [Ext. 3] of the informant-Sukru Mundari (P.W.1) at 11 O''clock, upon which a case was registered and a formal FIR (Ext. 4) was drawn against the appellant. He himself took up the investigation during which he seized the blood, which was there over the mat in presence of P.Ws. 3 and 4 under seizure a list (Ext. 1). Thereupon he held inquest on the dead-body of the deceased-Birsa Mundari and prepared an inquest report and sent the dead-body for postmortem examination which was conducted by Dr. Umendra Prasad-P.W. 6 who upon holding autopsy on the dead-body of the deceased found the following injuries:--

"Eye closed Blood on nose and right angle of the mouth. Blood in both ears. Fracture of right occipital bone, with lacerated wound 2 1/2" x 1/2" x brain matter. Fracture of right temporal bone with lacerated wound 1" x 1/2".

Incised wound: over right cheek 2" x 3/4 " x 1/2".

Sharp cutting injuries on left shoulder 3" x 1/2 x 1/4"."

The doctor issued postmortem examination report (Ext. 2) with an opinion that the death was caused on account of hemorrhage and shock due to head injuries, which was sufficient to cause death by sharp and hard weapon like that of ''Kudali''.

After completion of the investigation, when the Investigating Officer submitted charge-sheet against the appellant, cognizance of the offence, as aforesaid, was taken and the case was committed to the Court of Sessions where the appellant was put on trial.

During trial, the prosecution in order to prove its case examined altogether 7 witnesses. Of them, P.W. 7- Nand Lal Mishra is a formal witness who has proved the fardbeyan and formal FIR as Exts. 3 and 4 respectively. P.Ws. 2 and 5 namely, Nandi Mundari and Falguni Mundari, are the daughters of the deceased, who did testify that after taking meal while they came to sleep in another house, their father, mother and the appellant remained in that house. In the night, her mother came and disclosed that their father has been murdered by the appellant and when they went there they saw their mother in the injured condition. P.W. 1-Sukru Mundari, the informant did testify that after taking meal she as well as her husband (deceased) and the appellant slept in the room. The appellant slept over a cot, whereas she as well as her husband (deceased) slept on the mat on the floor. In the night, the appellant committed murder of her husband and also caused injuries to her. After committing murder, the appellant fled away and then she came rushing to the house where her two daughters were sleeping and informed them that the appellant had committed murder of their father.

After closure of the prosecution case, the appellant was questioned under Section 313 of Cr.P.C. about the incriminating circumstances appearing against him to which he denied.

The trial court having found P.W. 1 trustworthy held the appellant guilty for the offences punishable under Sections 323 and 302 of Indian Penal Code and accordingly recorded the judgment of conviction and order of sentence against the appellant, which is under challenge.

Mrs. Priya Shreshtha, learned counsel, submits that the testimony of P.W. 1 never finds corroboration from the statement made in the fardbeyan and thereby P.W. 1 can never be said to be trustworthy and, therefore, the trial court by placing reliance on the evidence of PW.1 committed illegality in recording the judgment of conviction and order of sentence.

Further, it was submitted that a lot of contradictions are there in between the fardbeyan and the testimony and that the prosecution has also failed to prove the factum of P.W. 1 being injured by the appellant.

As against this, Mr. Abhishek Kumar, learned counsel for the State, submits that it is true that the testimony of P.W. 1 is not in consonance with the statement made in the fardbeyan but the inconsistencies which are there they are not on the material point and as such, it will not have any adverse impact on the testimony of P.W.1.

In this regard, it was submitted that whatever inconsistency is being highlighted on behalf of the defence, that is on account of the fact that P.W. 1 happened to be a rustic poor lady, whose capability of understanding the things be not compared with a general man/woman, but she is quite consistent in putting her case that it was the appellant who committed murder of her husband and, therefore, the trial court has rightly convicted the appellant and hence, the judgment of conviction and order of sentence never warrants to be interfered with by this Court.

Having heard learned counsel for the parties and on perusal of the records, it does appear that on the fateful night, the appellant and the deceased as well as P.W. 1 had slept in a room after taking meal. This fact finds corroboration from the testimonies of P.Ws. 2 and 5, daughters of P.W. 1. According to the evidence of P.W. 1, the appellant in the night, committed murder of her husband and also caused injury to her and thereafter the appellant left home and then the informant came to another house where her daughters, P.Ws. 2 and 5, were sleeping, and informed them that the appellant has committed murder of their father. However, from perusal of the fardbeyan, it does appear that P.W. 1 has stated that when she woke up at 9 O''clock at night, she did find the appellant restless and, therefore, she asked him to retire to bed but the appellant went outside the house and then came with the weapon by which he assaulted her. Meanwhile, when she tried to wake up her husband by putting all efforts, her husband did not wake up and then she left home to inform her daughters. Taking a clue from the fardbeyan, submission was advanced before the trial court and also before this Court that the informant had never seen the appellant killing her husband.

We do not find substance in the submission. The circumstances appearing in the case do suggest that the informant, made effort to wake up her husband, but when he did not wake up, she went to inform her daughters and when she came back, she found the deceased dead. This amply suggests that before P.W. 1 saw the appellant in a condition of restlessness, the appellant had already killed her husband. The appellant being in a condition of restlessness and then leaving home are the conducts admissible under Section 8 of the Evidence Act which go to indicate about the culpability of the appellant.

Further, the testimony of P.W. 1 gets corroboration from the fact that the blood had been found from the mat, over which the deceased had been sleeping.

Thus, we do find that the prosecution has been able to establish its case and thereby the trial court is absolutely justified in recording the judgment of conviction and order of sentence against the appellant.

Accordingly, the judgment of conviction and order of sentence passed against the appellant is hereby affirmed. Consequently, this appeal stands dismissed.