Silash Dungdung @ Jojo vs State Of Jharkhand

Shree Chandrashekhar, J

The sole appellant has challenged the judgment of conviction under section 302 IPC dated 05.12.2009 and the order of sentence of RI for life with fine of Rs.20,000/- for the said offence dated 07.12.2009 passed by the Additional District & Sessions Judge, F.T.C., Simdega in Sessions Trial Case No.132 of 2006.

The appellant namely, Silash Dungdung @ Jojo was sent to judicial custody on 26.07.2006 and after he suffered the judgment of conviction under section 302 IPC he is serving the sentence inflicted upon him in Sessions Trial Case No.132 of 2006.

The informant of the case is the wife of Elarus Dungdung, the deceased. She gave her fardbeyan on 25.07.2006 at about 11:15 a.m. before the Officer-in-Charge of Thethaitanger P.S., on the basis of which Thethaitanger P.S. Case No.41 of 2006 was registered against the appellant under section 302 IPC. After the investigation, the accused-appellant was sent up for trial on the charge of committing murder of Elarus Dungdung. During the trial, the prosecution has examined altogether 8 witnesses; the informant is P.W-6. The co-villager namely, Ram Chandar Pradhan, Robert Dungdung, Barnad Dungdung and Lawrentus Dungdung have been examined to prove the circumstance that immediately after committing murder of Elarus Dungdung, the accused-Silash Dungdung @ Jojo has been found fleeing away with a tangi in his hand. However, during the trial the above named co-villagers who have been cited as P.W-1, P.W-2, P.W-3 and P.W-4 did not support the prosecution's case on this point and, accordingly, they have been declared hostile at the instance of the prosecution.

Dr. Krishna Kumar Sharma-P.W-7, who has conducted the post-mortem examination, has found the following injuries on Elarus Dungdung:

The injury No.1 is incised wound size 2"x ½" x bone deep over outer side of left eye brow.

The Injury No.2 is incised wound size ½" x ½" x bone deep over lateral and interior edge of left eye.

The Injury No.3 is incised wound size 3"x1"x1 ½" deep along lower border of left mandible.

The Injury No.4 is incised wound size 3"x1 ½' x bone deep over medical side of left clavicle (left color bone).

The Injury No.5 is incised wound size 3"x1"x muscle deep situated lateral to injury no.4

The Injury No.6 is incised wound size 2 ½" x1 ½' x bone deep over lateral side of left chest wall.

The Injury No.7 is incised wound size ½" x 1/6" muscle deep over lateral side of left little finger near base.

The doctor has opined that the injuries found on the dead-body were ante-mortem in nature and can be caused by heavy sharp-cutting weapon, such as, Tangi. According to the doctor, the death has been caused within 48 hours; the post-mortem examination was conducted on 26.07.2006 at about 4:30 p.m.

Mr. Sahil, the learned Amicus submits that; (i) the informant is not a reliable and trustworthy witness, (ii) conviction of the appellant under section 302 IPC simplicitor in view of assault by Isidor Dungdung upon the husband of the informant is not proper, and (iii) at best the appellant can be convicted for voluntarily causing grievous hurt to Elarus Dungdung by dangerous weapon.

As against this, Mr. Arun Kumar Pandey, the learned A.P.P. submits that minor contradictions in the evidence of the informant and something which the informant failed to state in her fardbeyan; the fardbeyan not being an encyclopaedia of everything that has happened, would not discredit the informant. The learned A.P.P. submits that it is the quality of the evidence of a witness which matters the most and the informant has largely remained consistent in her evidence when she was examined in the court.

The prosecution story as narrated by the informant in her fardbeyan, who has been examined as P.W-6 is that the appellant has caused murder of her husband. The appellant and the deceased namely, Elarus Dungdung were cousin and there was dispute in respect of land between them. In her fardbeyan, the informant has claimed that when she raised cries several villagers came there who have seen the appellant fleeing away with a Tangi. The co-villagers, who have been examined as P.W-1, P.W-2, P.W-3 and P.W-4 to prove this fact, have been declared hostile as they did not support the prosecution's case. They have, of course, seen the dead-body of Elarus Dungdung. These witnesses have also stated that the police has recorded statement of Birjinia Dungdung, the informant.

Fardbeyan of the informant recorded by the Officer-in-Charge of P.S.-Thethaitanger has been signed by her son namely, Norbert Dungdung and co-villager Ram Chandar Pradhan. Son of the informant namely, Norbert Dungdung has not been examined by the prosecution and the co-villager namely, Ram Chandar Pradhan, who is P.W-1, has confirmed that the police has recorded statement of Birjinia Dungdung. In her examination-in-chief, the informant has, however, stated that the appellant was holding Tangi and his brother namely, Isidor Dungdung, who was holding a Lathi, have caused death of her husband. She further states that the appellant and Isidor Dungdung have damaged her house-hold articles and they tried to assault her also. She claimed that she is an eye-witness. In her cross-examination, however, she says that she could not count the number of Tangi blows inflicted by the appellant on her husband. The informant who has given a graphic detail of the occurrence in her fardbeyan; she says that the appellant inflicted one blow on the neck, 3 blows on the chest and one on the temporal region, now concedes that she could not count the number of Tangi blows inflicted by the appellant upon her husband. In her examination-in-chief, she has introduced Isidor Dungdung, armed with lathi, as one of the assailants who has assaulted her husband. But, the doctor in his cross-examination has said that injuries found on the body of Elarus Dungdung are not possible by hard and blunt object.

In our opinion, in view of the above inconsistencies in her evidence the informant is not a trustworthy witness. She is not an eye-witness to the actual occurrence. This becomes apparent also from the fardbeyan. In her fardbeyan, she says that the appellant came to her house and took away her husband (मेरे चचेरे देवर सिलास डुंगडुंग पिता स्वर्गीय जोसेफ डुंगडुंग उम्र करीब 45 वर्ष मेरे घर पर आये तक मेरे पति इलारूस डुंगडुग को ले गए।). In view of the inconsistencies and contradictions in the evidence of the informant and her admission during her cross-examination, we hold that on the evidence of the informant conviction of the appellant under section 302 IPC cannot be sustained and, accordingly, his conviction under section 302 IPC vide judgment dated 05.12.2009 is set-aside.

In the result, judgment of conviction dated 05.12.2009 under section 302 IPC and order of sentence of R.I. for life and a fine of Rs.20,000/- dated 07.12.2009 passed by the learned Additional District & Sessions Judge (F.T.C.), Simdega, in Sessions Trial Case No.132 of 2006 are set-aside.

The appellant-Silash Dungdung @ Jojo, who is in jail custody, shall be set free forthwith, if not wanted in connection to any other criminal case.

Criminal Appeal (D.B.) No.145 of 2010 is allowed.

The Court appreciates the efforts of Mr. Sahil, the learned Amicus, Mr. Gaurav the learned counsel for the appellant and

Mr. Arun Kumar Pandey, the learned A.P.P.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). He shall be paid Rs.5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017.

Let the lower court records be transmitted to the court concerned forthwith.