Chuneshwar Sai @ Chunnu Sai vs State Of Jharkhand

Chandrashekhar, J

The sole appellant has challenged the judgment of conviction under section 302/34 IPC and under section 380/34 IPC dated 07.03.2002 and the

order of sentence of RI for life under section 302/34 IPC and R.I. for four years under section 380/34 IPC dated 13.03.2002 passed by the learned

Sessions Judge, Lohardaga in Sessions Trial No. 409 of 1998/ 36 of 1998.

Vide order dated 04.01.2005, the sole appellant, namely, Chuneshwar Sai alias Chunnu Sai has been granted bail by this Court.

The prosecution case as disclosed by the informant Lurku Mahto in his fardbeyan recorded on 16.01.1998 is that in the night of 15.01.1998, at about

9 p.m., he heard knocking on his door and, thereafter, the miscreants entered his house. They threatened him not to raise alarm. They confined him

and his brother, namely, Chulku Mahto in a room and tied their hands. The informant has further stated that the miscreants took him and his brother to

the river-side in the Jungle where they released him on the condition that if he pays Rs. 10,000/- his brother would be released. The informant claims

that there were six miscreants, one of them was his co-villager, namely, Chhunu Sai, the appellant. He has also stated that they have looted Rs. 5000/-

from his house.

On the basis of fardbeyan of the informant, Kuru P.S. Case No. 8 of 1998 was registered under sections 452, 379, 364/34 IPC. Subsequently, the

offence under section 302 IPC was added during the course of investigation, after dead body of Chulku Mahto was recovered. After the investigation,

charge sheet was submitted against the appellant, showing investigation pending against the other unknown accused persons. Charge against the

appellant was framed under sections 452, 380, 364, 302/34 IPC on 30.10.1998. Initially, during the trial the prosecution did not examine the informant

and wife of the deceased, namely, Jhanjho Devi. However, on an application under section 311 Cr.P.C. moved by the prosecution, they were

examined as court witnesses. Dr. Alakh Niranjan Kashyap-P.W.3, who has conducted postmortem examination of the dead body, has found the

following injuries on Chulku Mahto:-

i. A sharp cutting lacerated wound on neck extending from both mastoids to front of neck through base of skull 10â€x8†through and through the

neck, separating head and mandible from rest of the body and the neck vessels, muscles, trachea, oesophagus and cervical vertebrae 3rd and 4th were

incised along with spinal cord.

INTERNAL INJURY

Heart- Both chambers empty.

Maninges and underline brain intact.

Lungs- Pale,

Liver- Pale,

Spleen- Pale,

Kidney- Pale

Stomach contained semi digested food about two ounce, Small and large intestine filled with gas.

Bladder-empty.

The doctor has opined that injuries on Chulku Mahto were antemortem injuries and those were caused by heavy sharp-cutting weapon. He has also

stated that death was caused within 24 hours; postmortem was conducted on 17.01.1998 at 4:40 p.m.

On the basis of the evidences laid before him, the learned Judge has found the charge under sections 302/34 and 380/34 IPC proved against the

appellant. However, no finding has been recorded by the learned Judge on the charge under section 364 IPC.

Sri Binod Kumar Dubey, the learned counsel appearing for the appellant submits that effect of this would be that the appellant shall be deemed to

be acquitted for the charge under section 364 IPC.[refer-Lokendra Singh v. State of M.P., (1999) SCC (Cri.) 371].

The prosecution has projected the informant as an eye-witness. In his examination in the court he has deposed that he has seen the accused

persons, severing the head of his brother; one amongst them was the appellant. There is no other eye-witness to the actual occurrence. Claim of the

informant that he has seen the accused persons causing death of his brother is falsified from the FIR. It is his own case that in the intervening night of

16.01.1998 he was released by the miscreants for arranging Rs. 10,000/- for release of his brother, accordingly, FIR was lodged under sections 452,

380 and 364/34 IPC. There is no whisper of death of Chulku Mahto by that time. It is an admitted position that after the dead body of Chulku Mahto

was recovered the offence under section 302 IPC was added in the FIR.

In the aforesaid facts, we hold that the informant is not an eye-witness to the actual occurrence of the death of Chulku Mahto.

The prosecution has led evidence which at best can be said to be last-seen-together evidence. But then, it has not been brought on record how,

when and by whom Chulku Mahto has been done to death. In the FIR, the informant has himself stated that the appellant was not holding any arm; he

was empty handed.

The law on the circumstantial evidence is well settled . In “Hanumant Govind Nargundkar Vs. State of M.P.†reported in AIR 1952 SC 34,3

the Supreme Court has observed thus;

“It is well to remember that in case 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.â€​

In the above state of affairs, we hold that the prosecution has failed to establish the charge under section 302/34 IPC against the appellant and,

accordingly, the appellant is acquitted of the charge under section 302/34 IPC. From the prosecution's case all that is established is that he was in the

company of the accused persons who had entered the house of the informant and looted Rs. 5,000/-. The learned Judge has observed that this could

have been a case under section 395 IPC but no charge under section 395 IPC was framed, rather a charge under section 380 IPC was framed. In

view of the consistent evidence led by the prosecution through the informant, his wife and widow of the deceased, we hold that the prosecution has

proved the charge under section 380 IPC against the appellant.

The learned Judge has inflicted sentence of four years for the offence punishable under section 380 IPC upon the appellant.

Mrs. Vandana Bharti, the learned APP states that the appellant has undergone more than six years of sentence.

Accordingly, the appellant, namely, Chuneshwar Sai @ Chunnu Sai is discharged from liability of the bail-bonds furnished by him.

Cr. Appeal (DB) No. 132 of 2002 is partly allowed.

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