Mangal Munda vs State of West Bengal

Debiprasad Sengupta, J.—This appeal is directed against the judgment and order of conviction and sentence dated 31.08.2004 passed by the learned Additional Sessions Judge, Fast Track Court No. I, Alipurduar in Sessions Case No. 61 of 2004 thereby convicting the accused appellant Mangal Munda u/s 302 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for life with a fine of Rs. 5,000/-, in default to suffer imprisonment for a further period of one year.

The prosecution case, in short, is that on the basis of a complaint lodged by one Ratu Oraon, a case was registered on 24.11.2003 alleging commission of murder of one Pogiya Oraon. In the First Information Report it was alleged that on 23.11.2003 at night one Marang Ashur (P.W. 12), the victim Pogiya Oraon and the accused appellant Mangal Munda consumed liquor together in the house of Marang Ashur. The victim Pogiya Oraon consumed too much and as such the appellant left the house of Marang Ashur with the victim Pogiya Oraon with an assurance that he would help him to reach his house. On the following morning the deadbody of victim Pogiya Oraon was found lying in the bed of Guakhola river with several bleeding injuries in his person. On the basis of such information Birpara Police Station Case No. 67 of 2003 Dated 24.11.2003 was registered u/s 302 IPC.

To prove its case, the prosecution examined as many as 14 witnesses and none was examined on behalf of the defence. The defence of the accused was a plea of innocence and false accusation.

One Ramdhani Oraon was examined as P.W. 1 and he stated that in the night of 23.11.2003 Marang Ashur, Mangal Munda and Pogiya Oraon consumed liquor in the house of Marang Ashur. As Pogiya Oraon (the victim) was in a dead drunk condition the appellant Mangal Munda took him from the house of Marang Ashur to escort him to reach his house. P.W. 1 also saw both Mangal Munda and Pogiya Oraon going together on the road in the same night and both were drunk. This witness also noticed one "Bhojali" hanging from the waist of accused appellant Mangal Munda. Next morning there was a hue and cry that Pogiya Oraon was killed near Guakhola river and he was lying with bleeding injuries. On 26.11.2003 Police Officers seized the weapon of assault namely, Bhojali from the house of Mangal Munda and the said Bhojali had stains of blood.

P.W. 2, Sukra Oraon, heard the facts from P.W. 12 Marang Ashur and he stated that on 23.11.2003 P.W. 12, Mangal Munda and Pogiya Oraon consumed liquor in the house of Marang Ashur and Mangal Munda escorted Pogiya Oraon to his house. On the following morning the deadbody of the victim Pogiya Oraon was found near Guakhola river.

P.W. 5, Bipul Rabidas stated that he found three persons namely, Pogiya Oraon, Mangal Munda and Marang Ashur to consume liquor in the house of Marang Ashur. Then Mangal Munda and Pogiya Oraon came out from the house of Marang Ashur in a drunken condition. Next morning he heard that murder took place by the side of river Guakhola and having reached there he found the deadbody of Pogiya Oraon. This witness also found a cover of Bhojali held in the hand of the deceased. He also stated that when Mangal Munda and Pogiya Oraon came out of the house of Marang Ashur, he found one "kukri" hanging from the waist of Mangal Munda.

P.W. 6, Sumitra Lohar, was a Panchayat Member of Tulsipara Tea Garden. She stated that in the next morning she was called by the police and after going to the place of occurrence she found the deadbody of Pogiya Oraon with several bleeding injuries and the deadbody was found holding in its hands a cover of "kukri". She further stated that 2/3 days after the incident police again came to the village and took her to the house of Mangal Munda (the appellant) where in her presence Mangal Munda handed over one "kukri" to the Police Officer. The weapon of assault was seized by the police in her presence. In the house of the appellant this witness asked the appellant as to why he killed Pogiya Oraon and in answer Mangal Munda told her that he killed Pogiya for money. She also came to know that in the previous night Pogiya Oraon, Marang Ashur and Mangal Munda consumed liquor in the house of Marang Ashur and Pogiya Oraon was escorted by the appellant, Mangal Munda to his house.

P.W. 7 Mahali Oraon stated in his evidence that Marang Ashur told him that in the previous night Marang Ashur, Pogiya Oraon and Mangal Munda consumed liquor and after that Mangal Munda escorted Pogiya Oraon to his house and in the next morning the deadbody of Pogiya Oraon was recovered.

P.W. 8, Saibir Oraon also stated in his evidence that all the three persons named above consumed liquor in the house of Marang Ashur. Pogiya had money with him and Mangal Munda told Pogiya that he would help him in reaching his house. He stated in his evidence that he was informed by Marang Ashur about the incident of consumption of alcohol.

P.W. 9 was Dr. Prabhat Gucchhait, who held post mortem examination over the deadbody. He found multiple sharp cut injuries which are as follows:

Oblique sharp cut injury over nape of the neck about 10" - involve vertebral column and extending from Rt. Angle of mouth below ext. ear upto 1t. side of neck.

Another sharp cut injury over lower jaw about 4" almost parallel to above injuries.

One sharp cut injury - 2" over lower part of neck on Lt. Just above clasitle.

Six stab injuries in front of chest - each about 11/2 " c sharp margin and elliptical deep about 11/2 " - down & to Lt.

Nine stab injuries - each about 2" on back of chest about 1 1/2" deep.

One sharp cut injury over Rt. On extension aspect about 21/2".

Cut injuries over palmer aspect of all five fingers of Lt. Hand at about middle.

The Doctor opined that the victim died due to haemorrhage and shock from the above injuries which were ante mortem and homicidal in nature and caused by moderately heavy sharp cutting and pointed weapon. On being shown the weapon of offence in the present case the Doctor opined that the injuries mentioned above might have been caused by weapon like "kukri".

P.W. 10 escorted the deadbody from the place of occurrence to the hospital and identified the same before the Doctor. P.W. 11 was the scribe of the FIR who wrote the complaint as per instruction of the informant, Ratu Oraon.

P.W. 12 is Marang Ashur. He is the witness in whose house the victim and the appellant were seen together and all the three i.e. Marang Ashur, the appellant Mangal Munda and the victim Pogiya Oraon were found consuming liquor. This witness further stated that the victim Pogiya Oraon had Rs. 2,000/- in his pocket. He further stated that the appellant Mangal Munda took the victim Pogiya from his house by saying that he would escort him to his house. On the following day the deadbody of Pogiya Oraon was recovered from Guakhola river. This witness also made a statement u/s 164 Cr. P.C. before the learned Magistrate which was made Exhibit - 6 in the present case.

P.W. 13 was the Judicial Magistrate, 3rd Court, Alipurduar who recorded the statement u/s 164 Cr. P.C.

P.W. 14 was the Investigating Officer of the case who visited the place of occurrence, seized articles and recorded the statements of witnesses. On 26.11.2003 he made a seizure of ''''kukri" which was blood stained and the same was produced before him by the accused himself. The seized weapon with stains of blood was sent to FSL and the report of FSL was marked as Exhibit-8 showing bloodstain to be of human blood.

This is a case in which there is no eyewitness to the incident of murder and the prosecution relied upon the circumstantial evidence to prove the guilt of the accused. It is well settled principle of law that in a case based on circumstantial evidence the circumstances, from which an inference of guilt of the accused is sought to be drawn, must be firmly established and these circumstances should unerringly point towards the guilt of the accused. It is also required that the circumstances should form a chain and there should not be any escape from the conclusion that with all probability the crime was committed by the accused himself and none else.

Mr. Kashem Ali, learned Advocate appearing for the appellant argued that there was no motive behind the commission of murder in the present case and in absence of any motive to commit murder the prosecution must fail. But we are unable to accept such contention as we find from the evidence of P.W. 12, Marang Ashur that the victim Pogiya Oraon had Rs. 2,000/- with him while all the three were taking alcohol in the house of P.W. 12, Marang Ashur. This also finds corroboration in the evidence of P.W. 6, the Panchayat Member, before whom an extra judicial confession was made by the accused in presence of other villagers. On being questioned by P.W. 6 the accused appellant confessed that he committed murder of Pogiya Oraon for money, so it cannot be said that there was no motive in committing murder. Even assuming that there was no motive, the entire prosecution case cannot be discarded on such ground. The learned Advocate of the appellant further argued that the wife of P.W. 12 in whose house all the three were taking liquor, was not examined by the prosecution. When all the three persons were taking liquor in the house of P.W. 12 the wife of P.W. 12 was also present in the said house, but she was not examined and non examination of such a vital witness casts a serious doubt on the prosecution case. We do not find any merit in such submission as we find that number of persons were examined by the prosecution, which were sufficient to prove the case of the prosecution. It is not at all necessary that each and every witness of the locality is to be examined when the witnesses examined are sufficient to prove the guilt of the accused.

The learned Advocate of the appellant next argued that charge framed by the learned Trial Judge was defective as no date and time of the alleged offence was mentioned. This argument also in our considered view does not have any merit as we find that it has been specifically mentioned in the charge the date of offence as 23rd day of November, 2003. The learned Advocate next argued that FIR maker in the present case was not examined and non-examination of such person casts a serious doubt on the prosecution case. This argument also does not appeal to us. Simply because of non -examination of the FIR maker the entire prosecution case cannot be disbelieved when there are circumstantial evidence of other witnesses to prove the prosecution case.

The learned Advocate of the appellant relies upon a judgment of the Hon''ble Apex Court reported in Nagappa Dondiba Kalal Vs. State of Karnataka, From a reading of the said judgment it appears that there was recovery of ornaments of the deceased at the instance of the accused. The deceased was last seen wearing those ornaments. It was held by the Hon''ble Apex Court that inference, that accused must have murdered the deceased, cannot be drawn in absence of any evidence to connect him with the murder and thus, accused was liable to be convicted u/s 411 and not u/s 302 IPC. This judgment, in our considered view, is not applicable in the present case as the facts and circumstances of the said case are quite different from that of the present case.

Next judgment relied upon by the learned Advocate of the appellant is reported in State of U.P. Vs. Sukhbasi and Others, .. In the said judgment, it was held by the Hon''ble Apex Court that in a case in which evidence is of a circumstantial nature, the facts and circumstances from which conclusion of guilt is sought to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with the guilt of the accused, but they must be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. This is the settled principle of law and the judgment referred to above is not at all applicable in the present case because of different facts and circumstances.

The next judgment relied upon by the learned Advocate of the appellant is reported in Param Hans Yadav and Sadanand Tripathi Vs. State of Bihar and Others, This was a case, involving killing of a District Magistrate in his office. It was observed by the Hon''ble Apex Court that better investigation was expected and State should have taken great care to ensure that every loophole in the investigation is plugged at right time in accordance with law. Since the prosecution failed to establish the case by circumstantial evidence, the accused was acquitted of the charge.

The next judgment relied upon by the learned Advocate of the appellant is reported in Rang Bahadur Singh and Others Vs. State of U.P., . In the said judgment it was held that unless the prosecution establishes the guilt of the accused beyond reasonable doubt, a conviction cannot be passed on the accused. This was a case u/s 396 IPC where the written complaint, which became the basis of FIR, reached the Magistrate after two days of incident. No raid was conducted in the house of the accused and no search was also conducted. No article was recovered and the Investigating Officer could not recover even the guns with which the appellants would have killed five persons in the occurrence. In such circumstances, the accused appellants were acquitted of the charge. This judgment is also not applicable in the present case as the facts and circumstances of the said case are totally different from the present case.

The next judgment relied upon by the learned Advocate of the appellant is reported in Shivu and Another Vs. R.G. High Court of Karnataka and Another, In the said judgment, the Hon''ble Supreme Court laid down the conditions precedent in a case of circumstantial evidence. This is also a settled principle of law laid down by the Hon''ble Apex Court and this judgment does not have any manner of application in the present case.

The next judgment reported in 2007 CRI. L.J. 2083 Kewal Singh v. State is also not applicable in the present case. In the said case the testimony of star prosecution witness, who was not only eyewitness but was also an injured in the incident, did not disclose the names of assailants either in inquest report or in brief facts prepared by Investigating Officer. It was held that such evidence suffered from serious doubt about truthfulness of account of incident. In our considered view, this judgment also has no manner of application in the present case where the facts and circumstances are totally different.

The next judgment relied upon by the learned Advocate of the appellant is reported in Shri Parimal Gowala and Others Vs. State of Tripura, In the said case, the testimony of the informant, who was eyewitness, was in contradiction with the FIR. In such circumstances, it was held that the evidence of such a witness was seriously doubtful. This judgment is also not applicable in the instant case in which there is no eyewitness and the entire case is based on circumstantial evidence. The facts and circumstances of the case referred to above are also totally different.

The learned Advocate of the State submits that this is a case of circumstantial evidence and there is sufficient evidence to establish that the victim, Pogiya Oraon, was last seen in the company of the accused appellant. There is evidence that the victim consumed liquor with one Marang Ashur and the accused appellant in the house of Marang Ashur and after that the appellant left the house of Marang Ashur with the victim after giving assurance that he would help the victim to reach his house. There is also evidence that the appellant had one bhojali with him, which was hanging from his waist. On the following morning the deadbody of the victim was found lying with bleeding injuries. The weapon of assault namely, bhojali with stains of blood was recovered from the house of the accused appellant at his instance. The bhojali was sent to FSL for chemical examination and it was opined by the FSL that the bloodstains in the bhojali were that of human blood. The appellant also made extra judicial confession before the P.W. 6, who was a Panchayat Member, and he confessed before P.W. 6 and other villagers that he committed murder of the victim for money. P.W. 12 is a vital witness as in his house all the three persons consumed liquor. He also stated that the victim had Rs. 2,000/- with him when he came to his house for consuming liquor. P.W. 12 also stated in his evidence that the appellant, Mangal Munda, took the victim with him from his house after they finished consuming liquor with an assurance that he would help him to reach his house. P.W. 12 also made a statement u/s 164 of the Code of Criminal Procedure. It is the contention of the learned Advocate of the State that when all the circumstances are taken together, it completes a chain, which unerringly points to the guilt of the accused.

We have heard the learned Advocates of the respective parties. We have also perused the evidence on record. We find sufficient merit in the submissions made by the learned Advocate of the State. The prosecution witnesses were cross-examined at length and nothing infirm could be elicited to cast even a slightest doubt on their veracity. It should not be lost sight of that there was no reason as to why the said witnesses would implicate falsely the accused appellant. There was no suggestion of any motive for such false implication. On careful scrutiny of entire evidence on record, we find the evidence of the prosecution witnesses, as discussed above, are acceptable.

The totality of the evidence of the witnesses coupled with the medical evidence makes it clear and is sufficient for holding that it was the accused appellant, who committed murder of victim, Pogiya Oraon. It is clear in the evidence that the victim, Pogiya Oraon, was last seen together with the accused appellant. P.W. 1, P.W. 5 and P.W. 12 clearly stated in their evidence that the victim consumed liquor in the house of P.W. 12 and after that the victim came out from the house of P.W. 12 along with the accused appellant, Mangal Munda. They were also seen by the other witnesses and at that time there was a bhojali with the accused appellant hanging from his waist. On the following morning the deadbody of the victim was found. The weapon of assault namely, bhojali with bloodstains was recovered from the house of the accused appellant. The FSL report shows that the stain of blood was that of human blood. Extra judicial confession made by the accused before P.W. 6 and other villagers is also very significant and we do not find any reason to disbelieve the same. This is a case of circumstantial evidence and we find that chain of circumstances is complete. The Doctor opined that the death was due to shock and haemorrhage caused by the injuries and such injuries might have been caused by heavy sharp cutting and pointed weapon. The weapon of assault was shown to the Doctor, who opined that such injuries might be caused by such weapon.

After considering the entire evidence on record, we do not find any reason to interfere with the judgment and order of conviction and sentence passed by the learned Trial Judge. In the result, we uphold the conviction of the accused appellant, Mangal Munda, u/s 302 of the Indian Penal Code and affirm the same. The appeal, having no merit, is hereby dismissed.

A copy of this judgement along with LCR may be sent down to the court below immediately and let another copy of the judgment be forwarded to the Superintendent of Jail/Correctional Home where the appellant, Mangal Munda, is presently lodged for his information.

Urgent Xerox certified copy of this judgment and order may be supplied to the learned Advocates of the respective parties, if the same is applied for.

I agree.