Sukra Munda son of Arjun Munda vs State Of Bihar

Sujit Narayan Prasad, J

Since both the appeal arises out of the common judgment of conviction and order of sentence dated 21st February, 2000, as such they have been tagged together and taken up together for analogous hearing and are being disposed of by this common order.

Prayer:

Both the appeals have been filed under Section 374 (2) of the Code of Criminal Procedure,1973 against judgment of conviction and order of sentence dated 21st February, 2000, passed by learned 5th Additional Judicial Commissioner, Ranchi in Sessions Trial No.215 of 1992, by which the appellants have been convicted under section 302/34 and 201/34 I.P.C and sentenced to undergo rigorous imprisonment for life for the offence under Section 302/34 IPC and rigorous imprisonment for three years for the offence under Section 201/34 IPC. Both the sentences were ordered to run concurrently.

Prosecution Case:

The prosecution case, in brief, is that on 25.01.1990 at Morhabadi, P.S Bariatu, district Ranchi in Sharma Bagan, the informant Ram Mohan Nayak, who worked as a Gardener in Sharma Bagan, learnt that a dead body was lying in naked condition in a dilapidated room situated inside of Sharma Bagan. The informant went there and saw that one unknown dead body was lying there in naked condition and there were injuries on the person caused by sharp and pointed weapons and there was profuse bleeding from the head of the dead body. The informant presumed that one unknown person had been brought there and had been murdered by sharp cutting weapons and the dead body had been kept in the room of Sharma Bagan for screening the dead body. The dead body could not be identified. It appeared to the informant that the occurrence had taken place in the last night.

On the basis of fardbeyan of the informant, Ram Mohan Nayak, F.I.R being Bariatu P.S. case no. 12/1990 was registered against unknown. After investigation, charge sheet was submitted against the accused persons, namely, Koka Munda and Sukra Munda showing the accused Rajesh Oraon as absconder. The Chief Judicial Magistrate, Ranchi declared the accused Rajesh Oraon absconder and ordered to issue permanent warrant of arrest against him.

The Chief Judicial Magistrate, Ranchi took cognizance of the offence u/s 364 and 302/34 I.P.C against the accused persons namely, Koka Munda and Sukra Munda and transferred the case to the court of Judicial Magistrate, Ranchi for commitment. The judicial Magistrate committed the case to the court of sessions.

Charges under Sections 302/34 and 201/34 of the I.P.C were framed against the appellants and were explained to them to which they pleaded not guilty and claimed to be tried. The accused persons, the appellants herein, were examined u/s 313 Cr.P.C. There also, they pleaded not guilty.

The prosecution in order to prove the case has examined altogether seven witnesses. Sunil Munda (P.W 4), Somra Munda (P.W 5) and Chunni Munda (P.W 6) have stated that they do not know anything about the occurrence. Therefore, the prosecution got them declared hostile and cross examined them.

The learned trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons, find and hold the accused persons guilty and convicted, in the manner as indicated hereinabove.

Against the aforesaid order of conviction and sentence the present appeals have been preferred.

Submission on behalf of appellants:

Learned Amicus, appearing in both the appeals has assailed the impugned judgment of conviction and order of sentence on the following grounds:

I. The prosecution has miserably failed to establish the charge said to be proved, beyond all reasonable doubt, in establishing the charge said to be committed by the appellants under section 302 of the IPC.

II. The learned Trial Court has convicted the present appellants on the basis of the statements made by the P.W.1 and P.W. 2, but there are vital contradictions in the statements made by these prosecution witnesses.

III. Pointing out those discrepancies, submission has been made that both these witnesses have stated that initially the deceased had an alteration and scuffle with the accused persons at the home of P.W. 3 to have Hadia [local wine], from there they had brought back the deceased to their home, from where the deceased again left with anger and rage. This fact gets further diluted by the statement of P.W. 3, who stated that the accused persons along with the deceased had come to her home only for 2-4 minutes, and she is not aware of any sort of scuffle or alteration that took place at her place.

IV. It has been contended that the statement of P.W. 2 is self contradictory in nature, as she in her statement before the police u/s 161 Cr.P.C. has stated that after her brother, i.e. the deceased left her home with rage and anger, she with P.W. 1 tried to follow him and catch hold of him, but as it was dark outside she could not find her brother anywhere. However, in her examination-in-chief before the trial court, she has all of a sudden stated that when her brother, i.e. the deceased left her home with rage and anger she saw the present appellant and two other accused persons had gagged the deceased's mouth by putting a cloth in the mouth and thereafter attacked the deceased by using tangi and bhala, resulting in his death near their house. They then disposed of the body at Sharma Bagan. The next morning, she sent her husband to search for her brother and discovered his dead body there. But, as per prosecution case, the body had been discovered by one Ram Mohan Nayak, who worked as a Gardener in Sharma Bagan. Therefore, in no stretch of imagination it can be construed that she had sent her husband in the morning to find the body in Sharma Bagan and they found the body there, as because it was the informant who had for the first time discovered the body at Sharma Bagan on 25.01.1990 at around 4.00 PM. Moreover, even if it is to be considered that P.W. 2 is the eye witness of the entire incident and she had seen the accused persons committing the murder of her brother in the night, and further disposing of the body at Sharma Bagan, in no stretch of imagination it can be construed that the witness being the sister of the deceased, after seeing the commission of the offence, i.e. the killing of her brother, returned back to her home, had dinner, slept the entire night and thereafter in the morning sent her husband to find the body of her brother, which accordingly was found at Sharma Bagan. Thus, the conduct of this witness cannot be said to be natural conduct reason being that if any one witnessed the murder of brother, then she immediately approaches to the police in order to launch the prosecution as soon possible or set in motion of law. Further, unnatural conduct and unexplained circumstances can be a ground for disbelieving the witness.

V. Therefore, submission has been made that in all natural and practical consequence it can be well construed that there is no coherence in the statement made by the P.W. 2.

VI. Reference, in this regard has been made to the law laid down by the Hon'ble Apex Court in the case of Narendrasinh Keshubhai Zala v. State of Gujarat, reported in 2023 SCC OnLine SC 284, in particular paragraph 8, wherein it has been stated that doubt cannot replace proof. Suspicion, howsoever great it may be, is no substitute of proof. Only such evidence is admissible and acceptable as is permissible in accordance with law.

VII. Further there is no dispute that conviction can be based upon the testimony of the sole eye-witness but the said testimony has to be reliable, trustworthy, and testimony should be worthy of credence and the case proven beyond reasonable doubt.

VIII. Learned Amicus has further stated that the learned Trial Court has failed to take into consideration the fact that the P.W. 1 himself has stated in his deposition that he directly saw the deceased during the Post-Mortem, i.e. he had no opportunity before the post mortem to discover the body of the deceased. Per Contra, his wife, i.e. P.W. 2 has stated that her husband in the morning of 25.01.1990 found the body of deceased lying in Sharma Bagan.

IX. Further submission has been made that the learned trial Court has failed to consider the fact that P.W. 3 in her statement herself has stated the fact that the accused persons had just stayed at her place for 3-4 minutes, and no sort of alteration or scuffle took place at her home. Further in her deposition nowhere she has stated the fact that the accused persons had taken drinks, i.e. Hadia at her place in the night. But, in her statement made before the police, she has totally stated contrary that the accused person had consumed Hadia at her place and further indulged in a scuffle.

X. Further submission has been made that the trial Court has failed to take into consideration that none of the witnesses have deposed to the extent that the present appellants were being seen with the deceased in the night after the alleged scuffle took place. There are serious contradictions between the statement of PW 1 and PW 2 and based on their statement the learned Trial Court has convicted the present appellant which is not sustainable in the eye of law

XI. It has been contended that the learned Trial Court has convicted the present appellant also on the grounds of circumstantial evidence, but, from the materials available on record, it is evident that it is not the case of circumstantial evidence, no chain of circumstance is complete and further the facts so established is not so consistent that the guilt of the appellants may be proved. Herein the circumstances are neither conclusive in nature nor chain of circumstance is complete. Therefore, the present case does not fall within the ambit of circumstantial evidence.

XII. Reference in this regard be made to the judgment rendered by Hon’ble Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 wherein principles has been laid down to proof the case based on circumstantial evidence. Learned counsel for the appellants also relied upon the judgment rendered by Hon'ble Apex Court in the case of Indrajit Das Vs. The State of Tripura reported in 2023 SCC OnLine SC 201.

XIII. The learned Trial Court further failed to take into consideration that the matter at hand relates to conviction based on circumstantial evidence, therefore the Investigating Officer in this matter ought to have been examined as the chain of circumstances in this matter has not been completed, and there is nothing concrete on record to implicate the present appellants with the instant matter. Reference in this regard be made to the judgment rendered by Hon’ble Supreme Court in the case Rajesh Yadav & Anr. Vs. State of U.P. reported in (2022) 12 SCC 200 wherein it has been held that the evidence of Investigating Officer is not indispensable, it requires corroboration of other material witnesses as he is one, who links and presents them before the Court.

XIV. The learned Amicus appearing for the appellants based upon the aforesaid grounds has submitted that the impugned conviction under section 302 IPC is not established against the appellants and hence, the impugned judgment is fit to be quashed and set aside.

Learned Amicus for the appellants, in the backdrop of aforesaid grounds, has submitted that the judgment of conviction and order of sentence since is not based upon cogent evidence and as such it cannot be said that the prosecution has been able to prove the charge beyond all reasonable doubt.

Submission of the learned APP for the state

Per Contra, learned counsel appearing on behalf of State has defended the impugned judgment of conviction and order of sentence taking the ground that the impugned judgment has been passed based upon the testimony of witnesses who have supported the prosecution version.

It has been submitted that the two witnesses namely Sukar Munda (P.W 1) and Dahu Mundain (P.W 2) are own relations of the deceased but they have supported the fact that scuffle between the deceased and the accused persons in the house of Shanichari Mundain (P.W.3).

It has further been contended that the evidence of Dahu Mundain and Sukar Mundain has remained consistent in the cross-examination. The witness Daha Muhdain had seen the accused persons gagging the mouth of the deceased Laxman Munda with cloth, thereafter, in the next morning, the dead body was found thrown in Sharma Bagan. So, there is strong circumstantial evidence to find the hands of these two appellants in the murder of the deceased Laxman Munda. Furthermore, the doctor found many sharp cutting injuries on the vital portion of the body in the postmortem examination.

It has been argued that in this case, strong circumstantial evidence has been established to find that the deceased had been murdered by the accused persons. It is also found that the accused persons had thrown the dead body in Sharma Bagan for screening the evidence of murder.

Therefore, submission has been made that the prosecution version has not only been supported by the testimonies of the witnesses but the prosecution version has also been supported by the medical evidence.

Learned State counsel based upon the aforesaid grounds has submitted that the prosecution has been able to prove the guilt of the appellants beyond all reasonable doubt.

Analysis

We have heard learned counsel for the parties, perused the documents and the testimony of witnesses as also the finding recorded by learned trial Court in the impugned order.

This Court, before appreciating the argument advanced on behalf of the parties as also the legality and propriety of the impugned judgment, deems it fit and proper to refer the testimonies of the prosecution witnesses. For ready reference, the relevant portion of their testimonies is quoted as under:

PW-1: Sukar Munda is the brother-in-law of the deceased. In his examination-in-chief, he has stated that the deceased was his brother-in-law and around three years back he had come to his home for mehmani. Deceased went out to the neighborhood house of Shanichari Mundain alongwith Koka and Sukra (present appellants) for taking daru-hadia. Thereafter, scuffle took place between all three and he [present witness] intervened and brought the deceased back to his home. Thereafter, the deceased in anger left PW 1's home and went out. PW-1 further stated that they followed him, as it was dark, as such deceased was not found, therefore, he returned back as he had a small baby at his home. In the cross-examination, he has stated that Laxman Munda alone had left his house and he identified the deceased during post-mortem.

P.W.2: Dahu Mundain is the sister of the deceased, who in her examination-in-chief has stated that four years ago his brother Laxman Munda had visited her home for mehmani and in her house quarrel took between Koka, Sukra and Rajesh Munda and she separated them and brought her brother inside the house. Thereafter, her brother in anger left out the house and went there where all the three accused persons were there armed with an axe and balua and they gagged his mouth by putting a cloth in the mouth and they took him and killed him near their house and dragged the body to Sharma Bagan and threw it there. The next morning, she sent her husband to search for her brother and then they came to know about a body. Then, police came and went there and saw body of her brother. During her cross-examination, PW-2 Stated that altercation occurred in her presence and her husband's presence.

P.W.3: Shanichari Mundain, has stated in her examination-in-chief that four years ago, the accused persons along with the deceased had come to her house and had stayed there for 2 to 4 minutes and then said that they were going, thereafter, she closed her house and slept. She is unaware where Laxman Munda went along with the accused persons. In the cross-examination on behalf of the prosecution, she has stated that she had given statement to the police that the accused persons and Laxman Munda had drunk liquor in her house, but she had stated the same as police had told her to say. She had not stated before the police that there was altercation and scuffle between Laxman Munda and the accused persons.

P.W. 4- Sunil Munda, P.W. 5-Somra Munda and P.W. 6-Chunni Munda have stated that they do not know anything about the occurrence. Therefore, the prosecution got them declared hostile and cross examined them.

P.W.7 Dr. Ajeet Kumar Chaudhary is the doctor who performed the Post Mortem of the deceased on 26.01. 1990. Doctor had found ante-mortem incised wounds on various parts of the body, including the mandible, left chin, left cheek, right lateral neck and right shoulder. Additionally, a drag mark was observed on the back of the trunk, determined to be postmortem injury. The doctor opined incised wounds were ante-mortem and it was caused by heavy sharp cutting weapon that may be tangi. Death was due to shock and hemorrhage and time since death was 12 to 36 hours from the time of postmortem examination.

From the testimonies, it is evident that out of the seven prosecution witnesses P.W.7 Dr. Ajeet Kumar Chaudhary, is the doctor who coducted the Post Mortem of the deceased. Out of remaining six witnesses, three witnesses i.e., P.W.4, P.W. 5 and P.W. 6 have been declared hostile. Therefore, the case of the prosecution rests mainly on the testimony of P.W. 1 and 2.

Admittedly, P.W. 1 and P.W 2 are the brother-in-law and sister of the deceased Laxman Munda. P.W 2 has placed himself to be an eye witness but the defence case is that there are so many discrepancies in her testimony as such the testimonies of these witnesses are not fit to be believed.

P.W.3 is the independent witness, who is the neighbor of the deceased, who has stated that the accused persons along with the deceased had come to her house and had stayed there for 2 to 4 minutes and said that they were going and thereafter, she closed her house and slept. She is unaware where the accused individuals went from her residence.

Therefore, this Court, on the basis of documents available on record as exhibited and testimony of the witnesses, is to see as to whether there is sufficient material to attract offence under Section 302/34 and 201/34 IPC against the appellants.

Learned counsel for the appellants has mainly taken the ground that there are vital discrepancies in the testimonies of the witnesses and no chain of circumstance is complete so as to convict these appellants under Section 302/34 and 201/34 IPC; whereas on the other hand, learned APPs appearing for the State has stated the chain of circumstance is complete and the discrepancies so pointed out by learned counsel for the appellants are not enough to disbelieve the prosecution story.

This Court, on the basis of the aforesaid factual aspect vis-à-vis argument advanced on behalf of parties, is now proceeding to examine the legality and propriety of the impugned judgment of conviction and order of sentence by formulating following questions to be answered by this Court:

(I) Whether on the basis of the testimony of P.W.-2 Dahu Mundain (Sister of the deceased), can it be said to be a case based on circumstantial evidence or if it based upon the circumstantial evidence the chain is being completed or not?

(II) Whether contradiction as shown in the deposition of P.W-1 and P.W-2, is enough to disbelieve the case of the prosecution.

Re: First Issue

Regarding the first issue, we find from the impugned judgment that learned trial court has convicted the appellants observing that strong circumstantial evidence has been established that deceased has been murdered by the appellants, but, on the other hand submission has been made by the amicus curaie appearing for the appellants that no chain of circumstance is complete so as to convict these appellants under Section 302/34 and 201/34 IPC.

Before we analyze and appreciate the circumstances that have weighed with the trial court, we think it apposite to refer to certain authorities pertaining to delineation of cases that hinge on circumstantial evidence.

There is no quarrel with the settled position of law that in the case of circumstantial evidence, the chain should be complete then only there will be conviction of the concerned accused person, as has been laid down by the Hon'ble Apex Court in the case of Hanumant son of Govind Nargundlar vs. State of Madhya Pradesh, AIR 1952 SC 343 wherein it has been held that "It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

The same view has been taken by the Hon'ble Apex Court in Bakhshish Singh vs. State of Punjab, (1971) 3 SCC 182 wherein the Hon'ble Apex Court has observed that the principle in a case resting on circumstantial evidence is well settled that the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. These circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

The Hon'ble Apex Court while laying down such proposition in the said case has considered the factual aspect revolving around therein and while considering the fact has only found the incriminating evidence against the appellant was his pointing the place where the dead body of the deceased had been thrown which the Hon'ble Apex Court has not considered to be circumstantial evidence though undoubtedly it raises a strong suspicion against the appellant. The Hon'ble Apex Court while coming to such conclusion has observed that even if he was not a party to the murder, the appellant could have come to know the place where the dead body of the deceased had been thrown. Hence anyone who saw those parts could have inferred that the dead body must have been thrown into the river near about that place. In that pretext, the law has been laid down at paragraph-9 thereof, which reads as under:

"9. The law relating to circumstantial evidence has been stated by this Court in numerous decisions. It is needless to refer to them as the law on the point is well-settled. In a case resting on circumstantial evidence, the circumstances put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Again, those circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the   of the aforesaid judgments, the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(iii) the circumstances should be of a conclusive nature and tendency,

(iv) they should exclude every possible hypothesis except the one to be proved, and

(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

The Hon'ble Apex Court has reiterated the said principle again in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 holding all the above five principles to be the golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence. The Hon'ble Apex Court in the said case as under paragraph-155, 156, 157, 158 and 159 has been pleased to hold that if these conditions are fulfilled only then a Court can use a false explanation or a false defence as an additional link to lend an assurance to the court and not otherwise. Paragraphs-155, 156, 157, 158 and 159 of the said judgment read as under:

"155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry [1952 NZLR 111] thus: "Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and 2025:JHHC:13669-DB compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for."

Lord Goddard slightly modified the expression "morally certain" by "such circumstances as render the commission of the crime certain".

This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry case [1952 NZLR 111] was approved by this Court in Anant Chintaman Lagu v. State of Bombay [AIR 1960 SC 500] Lagu case [AIR 1960 SC 500] as also the principles enunciated by this Court in Hanumant case [(1952) 2 SCC 71] have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases -- Tufail case [(1969) 3 SCC 198] , Ramgopal case [(1972) 4 SCC 625] , Chandrakant Nyalchand Seth v. State of Bombay [ Criminal Appeal No 120 of 1957,], Dharambir Singh v. State of Punjab [ Criminal Appeal No 98 of 1958,]. There are a number of other cases where although Hanumant case [(1952) 2 SCC] has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration [(1974) 3 SCC 668, 670] , Mohan Lal Pangasa v. State of U.P. [(1974) 4 SCC 607,] , Shankarlal Gyarasilal Dixit v. State of Maharashtra [(1981) 2 SCC 35, 39] and M.G. Agarwal v. State of Maharashtra [AIR 1963 SC 200 : (1963) 2 SCR 405,] -- a five-Judge Bench decision.

It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor General relying on a decision of this Court in Deonandan Mishra v. State of Bihar [AIR 1955 SC 801] to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor-General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus: "But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation. such absence of explanation or false explanation would itself be an additional link which completes the chain."

It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier viz. before a false explanation can be used as additional link, the following essential conditions must be satisfied: (1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation."

The foremost requirement in the case of circumstantial evidence is that the chain is to be completed. In Padala Veera Reddy v. State of A.P. [1989 Supp (2) SCC 706 the Hon'ble Apex Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:

"10. ... (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."

In Ram Singh v. Sonia (2007) 3 SCC 1, while referring to the settled proof pertaining to circumstantial evidence, the Hon’ble Apex Court reiterated the principles about the caution to be kept in mind by court. It has been stated therein as follows:

"39. ... in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts."

Thus, it is evident that for proving the charge on the basis of circumstantial evidence, it would be necessary that evidence so available must induce a reasonable man to come to a definite conclusion of proving of guilt; meaning thereby there must be a chain of evidence so far it is complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

This Court, after referring the impugned judgment and adverting to the testimony as recorded in course of the trial of the witnesses produced on behalf of the prosecution, has found that none of the witnesses have deposed that they have seen commission of crime particularly in terms of manner of assault on the deceased Laxman Munda and nothing has been said about recovery of the incriminating material used in commission of crime.

The informant of the case namely Ram Mohan Nayak, is gardener in Sharma Bagan, at Morabadi, and as per FIR he had firstly seen the body of the deceased in a broken room at Sharma Bagan on 25.01.1990 at 4 pm. But, the informant Ram Mohan Nayak, was not examined.

Further, investigating officer of the case, was also not examined by the prosecution.

PW-2 Dahu Mundain , the sister of the deceased has deposed in her examination-in-chief that her brother Laxman Munda (deceased) had visited her home for mehmani and in her house quarrel took between Laxman Munda and accused persons Koka, Sukra and Rajesh Munda and she separated them and brought her brother inside the house. Thereafter, her brother, in anger, left out her house and went where all the three accused persons were there, armed with an axe and balua and they gagged his mouth by putting a cloth in the mouth and they took him and killed him near their house and dragged the body to Sharma Bagan and threw it there. The next morning, she sent her husband i.e. P.W.-1 Sukar Munda, to search for her brother and then they came to know about a body. Then, police came and went there and saw body of her brother.

Hence, P.W.-2 has specifically deposed that appellant after killing her brother had dragged his body to Sharma Bagan and threw it at Sharma Bagan and in the next morning, she sent her husband i.e.P.W.-1 for search of her brother, then, body of her brother was discovered in the morning.

But, as per prosecution case, the body had been discovered by the informant Ram Mohan Nayak, who worked as a Gardener in Sharma Bagan, at 4pm on 25.01.1990 and not in the morning by P.W.-1 Sukar Munda, as deposed by the P.W.-2. Further, P.W-1 has also admitted that he had firstly seen the body during the postmortem. Therefore, in no stretch of imagination it can be construed that P.W.-2 had sent her husband P.W.-1 in the morning to find the body in Sharma Bagan and they found the body there in the morning.

Hence, deposition of P.W.-2 on the point of discovery of body from Sharma Bagan in the next morning of killing  of  deceased,  is  falsified  by  deposition  of  the informant Ram Mohan Nayak and P.W-1 Sukar Munda.

So, the evidence of P.W-2 is self-contradictory as to discovery of the body and contradiction is further added due to non-examination of the informant and investigating officer of the case.

Moreover, even if it is to be considered that P.W.-2 is the eye witness of the entire incident and she had seen the accused persons committing the murder of her brother in the night, and further disposing of the body at Sharma Bagan, in no stretch of imagination it can be construed that the witness being the sister of the deceased, after seeing the commission of the offence, i.e. the killing of her brother, did not report the matter to the police.

Hence, from the unreliable evidence of P.W-2 and non-examination of both the informant and investigating officer, this court is of the view that the present case is not based on circumstantial evidence and accordingly, the first issue is answered.

Re: Second Issue

The second is whether contradiction as shown in the deposition of P.W-1 and P.W-2, is enough to disbelieve the case of the prosecution beyond all reasonable.

On going through the impugned judgment of conviction, we find that learned trial court has convicted the appellants relying on deposition of P.W.-1 Sukar Munda and P.W.-2 Dahu Mundain. But, submission has been made that in the deposition of P.W-1 and P.W-2, there are vital contradiction.

This Court in order to answer this question needs to refer the case laws as laid down by Hon’ble Apex Court. The Hon'ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka, reported in (2017) 13 SCC 98 at paragraph 32 and 33 has held as under:-

"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.

It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.--- -”

In his evidence P.W.-1 has deposed that deceased went out to the neighborhood house of Shanichari Mundain (P.W.-3) along with Koka and Sukra (present appellants) for taking daru-hadia. Thereafter, scuffle took place in the house of Shanichari Mundain (P.W.-3), between all three and he intervened and brought the deceased back to his home.

But, contrary to deposition of P.W-1, P.W.-2 Dahu Mundain has deposed that in her house itself altercation took place between Laxman Munda and accused persons Koka, Sukra and Rajesh Munda and she separated them and brought her brother inside the house.

Hence, as per evidence P.W-1, initially the deceased had altercation in the house of Shanichari Mundain (P.W.-3), but, P.W.-2 has deposed that altercation took place in her house itself.

This Court is of view that this is a major contradiction in the testimonies of P.W.-1 and P.W-2, as to place of altercation between the deceased Laxman Munda and the appellants and hence, fatal for the prosecution case and accordingly, issue no.2 has been answered.

Further, P.W.-2 was established as eye witness by the prosecution to have seen the altercation between the deceased and the appellants and after killing, dragging away the dead body of the deceased and throwing it at Sharma Bagan.

But, the testimony of P.W.-2, who is sister of the deceased, does not appear to be trustworthy due to various contradictions and discrepancies, as discussed in the preceding paragraphs.

In the case of sole eye witness, the witness has to be reliable, trustworthy, his testimony worthy of credence and the case has to be proved beyond reasonable doubt. Unnatural conduct and unexplained circumstances can be a ground for disbelieving the witness. Reference in this regard be made to the judgment rendered in the case of Narendrasinh Keshubhai Zala Vs. State of Gujarat [(2023) 18 SCC 783], wherein it has been held as under:

“8. It is a settled principle of law that doubt cannot replace proof. Suspicion, howsoever great it may be, is no substitute of proof in criminal jurisprudence (Jagga Singh v. State of Punjab [Jagga Singh v. State of Punjab, 1994 Supp (3) SCC 463 : 1994 SCC (Cri) 1798] ). Only such evidence is admissible and acceptable as is permissible in accordance with law. In the case of a sole eyewitness, the witness has to be reliable, trustworthy, his testimony worthy of credence and the case proven beyond reasonable doubt. Unnatural conduct and unexplained circumstances can be a ground for disbelieving the witness.

This Court in Anil Phukan v. State of Assam [Anil Phukan v. State of Assam, (1993) 3 SCC 282 : 1993 SCC (Cri) 810] has held that : (SCC p. 285, para 3)

“3. … So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect.”

This Court, in view of aforesaid discussion and taking into consideration the settled position of law that the prosecution has to prove the charge beyond all reasonable doubt, is of the view so far appellants are concerned that prosecution has not been able to prove the charges said to be beyond reasonable doubt. Hence the judgment of conviction and sentence needs interference.

The Hon'ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, as has been held in the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454, wherein, at paragraph-22, it has been held as under:-

"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

Likewise,  the  Hon'ble  Apex  Court  in  the  case  of Krishnegowda & Ors. Vrs. State of Karnataka, (supra), has held at paragraph-26 as under:-

"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."

Further, it needs to refer herein the principle of 'benefit of doubt' belongs exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana Vrs. Bhagirath & Ors., reported in (1999) 5 SCC 96, wherein, it has been held at paragraph-7 as under: -

"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."

It needs to refer herein that the Hon'ble Apex Court, in the case of Allarakha K. Mansuri v. State of Gujarat reported in (2002) 3 SCC 57 has laid down the principle that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, for ready reference, paragraph 6 thereof requires to be referred herein which reads hereunder as :-

“6. ------The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view  which is favourable to the accused should be adopted. —"

It  needs  to  refer  herein  before  laying  down  the aforesaid view, the Hon’ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has already laid down the same view at paragraph 163 which is required to be referred which read hereunder as

“163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.---"

This Court, after having discussed the factual aspect and legal position as discussed hereinabove, is of the view that the prosecution has miserably failed to prove the charges against the appellants beyond all reasonable doubt as such the impugned judgment of conviction and order of sentence requires interference by this Court.

Accordingly, the impugned judgment of conviction and order of sentence dated 21st February, 2000, passed by learned 5th Additional Judicial Commissioner, Ranchi in Sessions Trial No.215 of 1992, is hereby quashed and set aside.

In consequence thereof, the instant appeal stands allowed and the appellants are acquitted from their criminal liability and discharged from the liability of bail bonds.

Pending Interlocutory Applications, if any, stand disposed of.

Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.

Before parting with this order, it requires to refer herein that the Co-ordinate Bench of this Court vide order dated 09.05.2024 appointed Mr. Sankalp Goswami, the learned counsel as Amicus to argue this criminal appeal on behalf of appellant(s).

In view thereof, the Secretary, Jharkhand High Court Legal Services Committee is directed to ensure payment of admissible fee in favour of learned Amicus.