Faguwa Munda @ Faguwa Munda And Ors vs State Of Jharkhand

Shree Chandrashekhar, J.

Two persons, namely, Faguwa Munda and Mehman Munda @ Nema Munda were sent up for trial to face the charge under section 302/34 IPC.

Both the appellants have been granted bail by this Court vide order dated 15.09.2005.

Both of them have been convicted vide judgment dated 27.02.2001 for the offence punishable under section 302/34 IPC and they have been inflicted punishment of imprisonment for life vide the order of sentence dated 28.02.2001, passed against them by the learned Additional Judicial Commissioner, Lohardaga in Sessions Trial No.453 of 1997| 50 of 1997.

The informant, namely, Sukhni Orain is the wife of Saligram Oraon, the deceased. The informant gave her fardbeyan on 02.05.1997 alleging that last evening her husband had gone to village-Jamhare, however, he did not come back in the night. Next day, she came to know that her husband has been killed. On inquiry from the villagers she was told that dead body of her husband was lying near the southern wall of the house of Sukhmaniya Mundain. The informant says that last evening Sukhmaniya Mundain and Sukho Mahlin had come to her house. Both the accused persons are son of Sukhmaniya Mundain. The informant has alleged that her husband had illicit relationship with Sukhmaniya Mundain and that is the reason why her sons have killed her husband.

During the trial, the informant was not examined. The prosecution has examined altogether six witnesses out of which PW-5 is a police officer, who has proved the fardbeyan.

The Investigating Officer of this case was also not examined during the trial.

Dr. Birendra Kumar Pandey, who has conducted the post-mortem examination, has found the following injuries on Saligram Oraon @ Sali Oraon:

"(i) One perforating wound 2" x ½" x thoracic cavity on rt. side of chest just below rt. areola.

(ii) One perforated wound size 3" x ½" x thoracic cavity on left side chest four inches medial to left areola.

(iii) One perforated wound 3" x ½" thoracic cavity on chest, left side at the level of 8th and 7th ribs.

(iv) One incised wound 3" x 1" x 2" lateral angle of left upper arm.

(v) One incised wound 2" x ½" x 1" on posterior aspect of left elbow joint.

(vi) One incised wound 2" x ½"x 1" on posterior aspect of left elbow joint ½" above the fifth injury.

(vii) One incised wound 4" x ½" x 2" on posterior aspect of left forearms.

(viii) One incised wound 4" x ½" x 1" on posterior aspect of left forearm 1" above the wrist joint.

(ix) One incised wound 3" x ½" x 1" posterior angle of rt. elbow joint.

(x) One incised wound 4" x ½" x 2" on posterior angle of rt. forearm 3" below the rt. elbow joint.

(xi) One incised wound 3" x ½" x 1" posterior aspect of rt. fore-arm about 2" above the 10th injury.

(xii) Fracture of upper and of radius and ulna.

(xiii) One wound 4" x ¼" x 4" on left side of chest.

(xiv) Fracture of nasal bone.

Internal injuries:

(i) Thoracic cavity full of blood.

(ii) Rt. lung on relative external injury collapsed.

(iii) Heart-Rt. Chamber perforated in relation to external injury.

(iv) Liver, Spleen, and kidney all were pale.

(v) Stomach-Contained semi-digested food."

The doctor has found as many as 14 injuries on Saligram. His right lung and right heart were injured and thoracic cavity was found full of blood. According to the doctor, death has been caused due to shock and haemorrhage resulting from the injuries on Saligram. According to the doctor, the injuries found on Saligram were caused by sharp-cutting and pointed weapon, such as, Khurpi and Tangi.

The prosecution witnesses, namely, Kunj Bihari Bhagat and Lakshaman Bhagat have proved the seizure memo through which two Khurpi, one Tangi, blood-stained soil and one Lungi allegedly belonging to the deceased were seized.

The son of the deceased, namely, Munna Oraon, who has been examined as PW-6 has stated that at about 6:00 p.m. in the evening the mother of the accused Faguwa Munda had accompanied his father to village-Jamhare and thereafter he did not come back home. During the trial, Sukhmaniya Mundain and Sukho Mahlin were not examined by the prosecution. The prosecution has relied on two incriminating circumstances against the appellants to prove the charge under section 302/34 IPC. The first circumstance sought to be proved by the prosecution is that the dead body of Saligram was found outside the house of the appellants and there were dragging marks from the door to the southern wall of their house. The second circumstance is recovery of two Khurpi and one Tangi from a corner of a room in the house of the appellants.

The prosecution witnesses who have proved the recovery memo have not spoken consistently about the recovery of Khurpi and Lungi. Leaving aside this issue, we find that the portion of the confessional statements of the accused persons which led to the alleged recoveries were not marked and exhibited during the trial. No pointing memo was prepared by the Investigating Officer, showing that the accused persons have led him to a place, unknown to others, from where two Khurpi and one Tangi were recovered by him.

Section 27 of the Evidence Act provides that only that portion of the confessional statement is admissible in evidence which has led to discovery of a fact pursuant to which any incriminating article has been recovered during the investigation.

On such evidence as laid by the prosecution on the confessional statement of the appellants and the recovery of two Khurpi, one Tangi, blood-stained soil and Lungi allegedly belonging to the deceased, we are of the opinion that the prosecution has failed to prove the recovery at the instance of the appellants.

Recovery of the dead body of Saligram outside the house of the appellants and, that too in the broad day light is so improbable that it is not possible to hold that the appellants have killed Saligram and thrown his dead body outside their own house.

The law on circumstantial evidence has been discussed by the Supreme Court in plethora of judgments, the earliest one being in "Bhagat Ram Vs. State of Punjab" reported in AIR 1954 SC 621, wherein it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt. In "C. Chenga Reddy Vs. State of A.P." reported in (1996) 10 SCC 193, it has been observed that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. These principles have been reiterated by the Supreme Court in "Trimukh Maroti Kirkan Vs. State of Maharashtra" reported in (2006) 10 SCC 681, as under :

"12. ............ The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established: that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused: that 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 they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with their innocence."

In view of the above discussions, we hold that the prosecution has failed to prove the charge under section 302 IPC against the appellants.

Accordingly, the judgment of conviction dated 27.02.2001 for the offence punishable under section 302/34 IPC and the order of sentence dated 28.02.2001, passed by the learned Additional Judicial Commissioner, Lohardaga in Sessions Trial No.453 of 1997| 50 of 1997 against the appellants, namely, Faguwa Munda and Mehman Munda are set aside.

Both the appellants who are on bail are discharged from the liability of bail bonds furnished by them.

Cr. Appeal (D.B.) No. 161 of 2001 is allowed.

We appreciate the able assistance rendered by Mr. Bishwambhar Shastri, the learned Amicus.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s).

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