Mangal Tudu and Others vs The State of Bihar (now Jharkhand)

All the appellants stand convicted for the offence punishable under Sections 302/34 and 379/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and three years respectively, by the 6th Additional Sessions Judge, Dumka in Sessions Case No. 121 of 1993. However, both the Sentences were ordered to run concurrently.

Brief facts leading to this appeal are that the deceased Munna Danial used to serve in Kuruwa Post Office within Dumka Muffasil in the town of Dumka. According to the prosecution case, the deceased was going to attend his duty in the morning of 6.8.1992 when all the appellants named above overpowered him outside the village- Ghashipur and assaulted him with sharp cutting weapons resulting in his death on the spot. Informant Suleman Murmu as P.W. 4 and P.W. 3 Ram Murmu have seen the occurrence in broad day light to inform P.W.1 Subhashini Hembram, mother of the deceased. According to the informant, the deceased was carrying Rs. 1000/- in cash and Rs. 34/- of the Post office as well as postal documents, which was carried away by the appellant. The reason behind this occurrence is said to be land dispute between the deceased and appellant Fan Murmu. P.W. 3 has further asserted that he saw the occurrence while he was going to college at Dumka.

On information, Dumka Muffasil Police arrived at the place of occurrence in the afternoon and got the statement of P.W. 4 recorded in presence of P.W. 2 and P.W.1, the mother of the deceased, on the basis of which, Dumka Muffasil police station Case No. 85 of 1992 under Sections 302, 379 and 34 was registered against all the appellants. The police prepared inquest report, sent the dead body for post-mortem examination and seized bloodstained soil from the place of occurrence. The police after completion of investigation submitted charge sheet against the appellants u/s 302/34 and 379/34 of the Indian Penal Code. The appellants pleaded not guilty and claimed false prosecution due to previous enmity. However, the learned trial court after examining witnesses relied upon the prosecution version and held all of them guilty under Sections 302/34 and 379/34 of the Indian Penal Code respectively to sentence them as mentioned above.

This appeal has been preferred by the appellants on the grounds that the learned trial court has committed a mistake of fact by accepting the evidence of highly interested and improbable witnesses. According to Mrs. Sunita Srivastava, learned Amicus Curiae, the prosecution has not been able to prove that the witnesses examined before the trial court have actually seen the occurrence. It is also submitted that when the occurrence took place in broad daylight just by the side of village Ghashipur, no independent and probable witness of the village has come to support the prosecution case. Learned Counsel further submitted that the admitted enmity between the parties is one of the reasons for false implication. He has further asserted that in case appellants have got intention to commit theft, they would not have left the bicycle there. Therefore, the charges are not proved. Learned Counsel further pointed out that the injuries found on the deceased do not confirm the ocular version of P.W.3 find P.W.4. As such, the trial court should have acquitted the appellants.

We have anxiously gone through the materials on record. The prosecution has examined altogether seven witnesses in support of it, out of which P.W. 2 Paltan Murmu has signed over the inquest report and seizure list and proved the same as Ext. 1 and 1/A. P.W.1 is the mother of the deceased who claimed that she was informed by P.W.3 and P.W. 4 regarding the incident and went at the place of occurrence to find that his son Munna Danial was dead with his neck slit. She further asserted that she found Rs. 1000/- in cash, wristwatch and some money of Post office missing from the place of occurrence. According to her version, there was dispute between the appellant and the deceased for certain properties due to false claims made by the mother of the appellant Fan Murmu. She has been cross-examined at length, in which, she admitted that she could not name the person, who came after the incident to her house. She has admitted that she was examined by the police same day. She was serving as A.N.M., Raneshwar at that time.

P.W.3 Ram Murmu asserted that he was going along with the deceased when all the appellants surrounded them. According to him, all of them caught hold of the deceased and dragged him towards the field in which maize was growing. Thereafter appellant Mangal Tudu assaulted the deceased with back portion of the axe and appellant Fan Murmu slit the neck of the deceased with ''Hasua''. According to him, when he tried to intervene, he was chased, after which he met P.W. 4 Suleman Murmu. Both of them have asserted that they saw the occurrence. Thereafter they informed the mother of the deceased. These witnesses have also asserted that the motive of this offence was litigation between the parties for land. He admitted during cross-examination that his house was situated at a distance but claimed that he was going to college at that time. He further admitted that many villagers assembled at the place of occurrence and in the house of the deceased, though, they have not been examined as witness in this case. P.W.4 has supported his fardbeyan made before the police. He along with P.W. 3 has seen the entire occurrence and the manner in which Munna Danial was killed by the appellants. He has been cross-examined at length on the point that appellant Fan Murmu and the deceased were stepbrothers from one Gopin Murmu. According to him, when he raised alarms, he was chased by the appellants. This witness has been consistent in describing the place of occurrence, manner in which assault was made and preparation of seizure list in his presence by the police.

Dr. Vishnu Kumar Singh (P.W. 5) has found seven incised wounds on vital parts of the dead body causing death, except injury No. 2 caused with sharp cutting weapons. P.W. 6 is the S.I. who went to place of occurrence on receiving information that a murder has taken place in village-Ghashipur. He has recorded the statement of informant, prepared inquest report and sent the dead body for post-mortem examination. P.W. 7 is the Investigating Officer of this case who arrives at the place of occurrence in the evening of 6.8.1992 and taken up investigation. He has described the place of occurrence and items found lying at the place of occurrence. He has admitted in the cross-examination that the inquest report and seizure list bears the number of the case though it was put on where he arrived at the police station from the place of occurrence. He has further submitted that he did not prepare the map of the place of occurrence and recorded the statement of Charan Kisku, Parmeshwar Murmu, Sunni Ram Murmu, Jetha Murmu, Ramdas Hembrom, Sunnilal Hembrom, though not examined as prosecution witness in this case. Some minor contradictions in the statements of P.W.3 and P.W. 4 have been brought to his attention by the defence. However, these minor contradictions do not discredit the statements of P.W.3 and P.W.4, eyewitness of the occurrence.

The incident as alleged takes place in the forenoon of 6.8.1992 and first information report was lodged at 5.00 P.M., the same day as the police station was situated at a distance of twenty kilometers. The information, therefore was sent to police immediately and police took time to reach the place of occurrence. The statement of P.W.6 and P.W. 7 in this case is consistent that they arrived at the place of occurrence immediately after receiving information The injuries found on the dead body of Munna Danial shows that he was assaulted with sharp cutting weapons and hard and blunt substance equally. The deceased was going to attend his duty is apparent from the documents seized by the police from the place of occurrence. The place of occurrence as described by the Investigating Officer also confirms the story of dragging of the deceased by assailants, more than one in number the police has seized sleepers left at the place of occurrence. Eyewitnesses of the occurrence, P.W.3 and P.W. 4, consistently asserted the manner in which the deceased was assaulted by at least two appellants, Mangal Tudu and Fan Murmu, causing grievous injuries on the deceased. In the entire episode, other three appellants are said to have caught hold of the deceased. Except the non-examination of other villagers being examined in this case, no valid ground is there to disbelieve the prosecution version. From the charge-sheet, it appears that the all the witnesses named in the charge-sheet have been examined to support the prosecution case. Therefore, the non-examination of non-charge-sheeted witnesses is not going to affect the merit of the prosecution case. It is for the investigating Officer to decide as well as the prosecution to examine witnesses according to their choice. As such, we find no merit in the suggestion that adverse inference should have been drawn by the trial court because of non-examination of the other villagers as prosecution witnesses.

We further find that there was continuing litigation between the deceased and appellant Fan Murmu for the properties of one Gopin Murmu said to be common father of both of them. In such circumstances, the motive is also found present for commission of the offence. The manner in which the assault was made shows that the appellants Fan Murmu and Mangal Tudu had assaulted the deceased with intention to kill him. However, the participation of remaining three appellants, Gazar Hembram, Budh Ram Hembram and Mangal Hembram are concerned, no specific overt act is alleged against them in the assault except that they caught hold of the deceased. It has come on record that these three appellants have remained in custody for about two years before they were admitted to bail in this appeal.

Having regard to the above mentioned facts and circumstances, we find and hold that the conviction of appellants Mangal Tudu and Fan Murmu is fit to be affirmed. So far as the conviction of appellants Gazar Hembram, Budh Ram Hembram and Mangal Hembram is concerned, their conviction are fount not tenable.

In the result, the present appeal is allowed in part. The conviction under Sections 302/34 and 379/34 of the Indian Penal Code of the appellants Gazar Hembram, Budh Ram Hembram and Mangal Hembram is set aside and they an discharged from the liabilities of their bail bonds. The conviction and sentence awarded on appellants Mangal Tudu and Fan Murmu is hereby confirmed.