Jatru Munda vs State Of Himachal Pradesh

Satyen Vaidya, J

Appellant has preferred this appeal against judgment and sentence order dated 16.07.2022/ 21.07.2022, passed by learned Additional Sessions Judge (II), Shimla, District Shimla, H.P., in Sessions Trial No 10-T/7 of 2016, whereby the appellant has been convicted for commission of offence under Section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 25,000/-.

The appellant was charged with the murder of his own three years old daughter named Kumari Sitamuni by slitting her neck with knife during the intervening night of 24th and 25th March, 2016 at Village Bassa in Theog, District Shimla.

Prosecution case in nutshell was that the appellant was working as a labourer in the construction work of Hotel Taj at Village Bassa, Theog, District Shimla, H.P. He was residing with his wife named Ms. Sunita and daughter Kumari Sitamuni in one of the temporary sheds in the ground floor of under construction building. Many other workers engaged in the same work were also occupying their respective temporary sheds for residence alongwith the appellant. During the intervening night of 24th and 25th March, 2016, appellant was in his temporary shed with his daughter. The wife of the appellant had gone to Solan for getting herself medically checked-up. At about 4:00 AM, the cries of child were heard from the shed occupied by the appellant by the occupants of adjoining sheds. One Fulmani asked PW - 7, Bandhan Munda to inquire as to what had happened. PW-7, Bandhan Munda was related to the appellant being his brother-in-law. Bandhan Munda entered the shed of appellant and found the girl child lying on the floor in an injured condition with a pool of blood. Appellant was also inside the shed. In the meantime, few other occupants of the sheds collected and witnessed the child in an injured condition. It was also alleged that the appellant was found in the shed with a weapon of offence in his hand which was a sharp knife (referred to as “Beyathi” by prosecution witnesses). Appellant had fled from the scene and was arrested later on the same day. He was subjected to medical examination.

The body of the deceased was firstly taken to Civil Hospital, Theog, District Shimla, H.P. for postmortem from where it was referred to I.G.M.C. Shimla, H.P. The postmortem was conducted on 25.03.2016 and as per opinion of the experts the cause of death was “Antemortem cut throat injury leading to hemorrhagic shock and death”.

On 26.03.2016, appellant suffered a confessional statement under Section 27 of the Indian Evidence Act and disclosed the place where he had hidden/thrown the weapon of offence. On the next date i.e on 27.03.2016, police recovered the weapon of offence at the instance of the appellant.

Police had also collected samples and evidence from the spot. The collected pieces of evidence were sent for serological analysis and DNA profiling. SFSL, Junga, reported that blood on the sweater/sweat-shirt worn by the appellant, the blood samples of deceased, blood found on the weapon of offence matched to be of the same group. The experts were also able to generate sufficient DNA to opine that DNA of the blood samples of deceased, the blood found on the weapon of offence and the sweater of appellant were matching.

Prosecution examined twenty-three witnesses. Appellant was examined under Section 313 of Cr.P.C. He, however, did not lead any defence evidence.

We have heard learned counsel for the parties and have also gone through the record of the case carefully.

The first circumstance which incriminated the appellant was that he was the only person in the shed, where the deceased child was found lying injured/dead and the child was none else than his own three years old daughter.

The wife of the appellant was examined as PW-8 by the prosecution. She categorically stated that she had gone to Solan on 22.03.2016 and was not at Theog on the night of incident. To similar effect was the statements of PW-7 Bandhan Munda, PW-5 Bina Devi and PW-6 Jaspati (all occupants of sheds adjoining the shed of appellant.

Learned counsel for the appellant made an effort to discredit the version so put forth by the prosecution by referring to a document Ext. PW2/A, which was the attendance sheet of the labourers working for the contractor at the construction site of Hotel Taj at Theog. He made a reference to an entry in the name of Sunita in Ext. PW2/A, who had been shown present w.e.f. 01.03.2016 till 26.03.2016. We, however, have not found any substance in the argument raised on behalf of the appellant for the reasons firstly, that there was overwhelming oral evidence including the version of PW-8 Smt. Sunita herself to suggest that the wife of the appellant was not with the appellant on the night of incident. Secondly , PW-2, the Contractor, who proved the document Ext. PW2/A was not confronted with the fact that Sunita as mentioned in said document was same person who was wife of the appellant. Thirdly, even the wife of the appellant when appeared as PW-8 was not confronted with this document. Even otherwise, it cannot be assumed that after death of her daughter in the early hours of 25.03.2016, the mother i.e. wife of the appellant would still attend upon the work on the same day as well as on the next day. Therefore, it cannot be said that the name of Sunita as mentioned in Ext. PW2/A refers to the wife of the appellant.

PW-7 Bandhan Munda was brother-in-law of the appellant. According to this witness, the wife of the appellant is his sister. PW - 7, has stated on oath that on the night of 24.03.2016 the deceased Sitamuni had her dinner with him and then went to sleep in the shed of the appellant. This part of the testimony has remained unshaken.

PW-7 Bandhan Munda, PW-5 Bina Devi and PW-6 Jaspati, had stated in one voice that they had seen the child Sitamuni lying on the floor in the shed of appellant in an injured condition with blood oozing out from her wounds and the appellant was sitting on the bed. All these witnesses have also stated that they were awaken by the cries of child and had thus entered the shed of the appellant. According to them, the time was about 4:00 AM. Statements of these witnesses to this effect have been in unison and has also remained unshaken. That being so, the factum of presence of appellant and deceased in the shed of appellant was proved beyond doubt.

In our considered view, in the given facts of the case, Section 106 of the Indian Evidence Act, comes into play. Once it was established that the appellant and his daughter (deceased) were occupying the shed during the intervening night of 24th and 25th March, 2016 and in the early morning hours the child had cried. Persons closely related to appellant had seen the child lying in an injured condition and appellant sitting on the bed. It was for appellant to have explained, as to how, the child had received such grievous injuries.

The injuries found on the body of deceased have been described in the postmortem report as under:-

“ Antemortem Injury:-

Chop wound cut throat injury present over upper part of neck transverse commencing from left side and tailing towards right measuring 9cm X 3.5X vertebrae deep, cutting sharply skin, subcutaneous tissue muscles, larynx, oesophagus and both carotid sheath contents and two incised wounds present over cartilages of intervertebral discs. Lamina of larynx is acutely and sharply cut.”

Though, while cross-examining PW-17 Dr. Piyush Kapila, who had conducted the postmortem, it was suggested to him that the antemortem injuries found on the body of deceased were possible if the person fell from bed on the sharp-edged weapon Ext. P-12 i.e. Beyathi. PW-17, however, such suggestion had been categorically denied by the witness. No further effort was made on behalf of appellant to prove any such possibility.

The fact that the appellant had later fled from the place of occurrence can also be viewed as another circumstance against him. PW-5 Bina Devi had specifically deposed that appellant had fled from the spot by jumping from the stone wall and had also taken the knife with him. She further stated that when the appellant was asked as to where he was going, he had replied that he was going to answer the call of nature and would return back. The statement of PW-2 on above aspect has remained unchallenged. PW-7 Bandhan Munda at one stage of his examination as witness was declared hostile. While being cross examined by learned Public Prosecutor PW-7 though denied that appellant had fled from scene but had simultaneously admitted that after some time appellant had gone somewhere. Thus, the fact that appellant had left the place of occurrence was also proved.

The fact that appellant had fled away from the scene, also leads to the inference that he had nothing to explain about the injuries suffered by the deceased. None of the public witnesses had stated that the appellant had rendered any kind of explanation before them.

There is yet another circumstance against the appellant that the blood smeared knife was seen lying on the spot, when PWs 5 to 7 had entered the shed of appellant. According to PW-5 Bina Devi, she had found appellant sitting on the bed holding a blood stained knife (Beyathi). PW-5 was not cross examined on this important aspect. PW-6 Jaspati has stated in her deposition during trial that appellant was sitting on the bed and a blood smeared knife was also lying on the bed. She further stated that appellant was holding a Beyathi in his hand. PW-7 while being cross examined by learned Public Prosecutor had denied that the appellant was holding knife in his hand, however, lastly when he was shown the weapon of offence Ex. P-12 (Beyathi), though he again maintained that the same was not seen by him in the hand of appellant but was lying under the bed.

Though there are minor contradictions in the statements of PWs 5 to 7 with respect to the exact location of the blood smeared knife in the shed of appellant, yet the fact remains that blood smeared knife was seen by all of them inside the shed of appellant, when they had visited the shed in the morning on hearing the cries of child.

The reasons for half-hearted support to prosecution case by PW-7 evidently are somewhat obvious. During his cross-examination by Public Prosecutor, PW-7 candidly admitted that he wanted to save the appellant. Keeping in view the statements of PW-5 and PW-6, it can be easily inferred that PW-7 was trying to suppress the material facts with the reason to save the appellant.

It is trite law that statements of hostile witnesses are not liable to be discarded completely. The statements of hostile witnesses to the extent are relevant and admissible can always be looked into. In the instant case, witness PW-7 has twisted his statement for reasons noticed above. Such practices are not uncommon in our legal system. In Paulmeli & Anr vs. State of Tamil Nadu, (2014) 13 SCC 90, the legal position has been explained as under

“22. In State of U.P. v. Ramesh Prasad Misra & Anr., 1996 AIR(SC) 2766, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Sarvesh Narain Shukla v. Daroga Singh &Ors., 2008 AIR(SC) 320; Subbu Singh v. State by Public Prosecutor, 2009 6 SCC 462; C. Muniappan & Ors. v. State of Tamil Nadu, 2010 AIR(SC) 3718; and Himanshu @ Chintu v. State (NCT of Delhi), 2011 2 SCC 36).Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.”

Similarly in Raja and Others Vs. State of Karnataka (2016) 10 SCC 506 , it has been observed by Supreme Court as under:

“32. That the evidence of a hostile witness in all eventualities ought not stand efaced altogether and that the same can be accepted to the extent found dependable on a careful scrutiny was reiterated by this Court in Himanshu @ Chintu by drawing sustenance of the proposition amongst others from Khujii vs. State of M. P., 1991 3 SCC 627 and Koli Lakhman Bhai Chanabhai vs. State of Gujarat, 1999 8 SCC 624. It was announced that the evidence of a hostile witness remains admissible and is open for a Court to rely on the dependable part thereof as found acceptable and duly corroborated by other reliable evidence available on record.”

Viewing the matter from another angle also, statement of PW-7 can also not be discarded as a whole, as the Investigating Officer had categorically deposed that statement of this witness under Section 154 Cr.P.C was recorded by him according to his versions. Record reveals that this part of deposition of Investigating Officer has neither been challenged nor shaken. In Mahesh Janardhan Gonnade Vs. State of Maharashtra (2008) 13 SCC 271 , Hon’ble Supreme Court has observed as under:

“(Para 49) It is the evidence of PW-PSI Dhimole that portion mark 'A' appearing in the statement of PW-1 was recorded by him correctly. The defence has not brought on record any evidence to show why the Investigating Officer had recorded mark 'A' portion of the statement of PW-1 incorrectly. If PW-1 the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the Investigating Officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW- 1 has tried to conceal the material truth from the Court with a sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavorable conduct of this witness to the prosecution.”

Prosecution has also relied upon the circumstance whereby the weapon of offence Ext. P-12 was recovered from a hidden place at the instance of appellant. Statement of appellant under Section 27 of the Indian Evidence Act, Ext. PW11/A, was recorded by investigating officer PW-22, SI Rajender Singh in presence of PW-11 C. Muni Lal and PW-19 HC Ashok Kumar. The recovery of the weapon was made in pursuance to the statement Ext. PW11/A, vide seizure memo Ext. PW-9/A in presence of PW-9 Ankit Verma and PW-19 HC Ashok Kumar. PW-9 Ankit Verma was the Vice President of the concerned Panchayat and was associated by the investigating officer as an independent witness. Defence has not been able to bring on record any material to suggest that this witness had any reason to depose falsely. Thus, the recovery of weapon of offence has also been proved at the instance of the appellant.

Section 27 of Indian Evidence Act makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence.

Prosecution has been able to creditably prove on record the entire sequence in which the investigation was conducted and evidence collected. The information regarding the incident had been received at Police Station and police party headed by PW-22, SI Rajender Singh, had immediately reached the spot. Statement of PW-7 was recorded under Section 154 of Cr.P.C. and was sent to Police Station for registration of FIR through PW-23 HHC Laiq Ram. FIR Ext. PW15/A was recorded by PW-15 ASI Man Dev. The photographs of the spot Ext. PW1/A-1 to A-6 were snapped. PW-22 SI Rajender Singh prepared inquest report Ext. PW17/B and PW17/C. The body was sent to Civil Hospital, Theog, alongwith PW-12 ASI Sunil Kumar. PW-7 had also accompanied the body. Spot map Ext. PW22/A was prepared by the investigating officer on identification of PW - 7 Bandhan Munda. One blood stained plastic carry bag, a cut piece of blood stained blanket, controlled sample of blood lying on the spot were taken into possession, vide Ext. PW7/C. The evidence so collected was sealed in a separate parcel with seal impression ‘T’. The facsimile of seal was preserved as Ext. PW7/B. PW-7 though had denied the collection of evidence in his presence but had admitted the presence of all such pieces of evidence on spot. Above all he has identified the weapon Ex. P-12 to be same which according to him was lying under the bed inside the shed of appellant on the morning of 25.3.2016.

On scientific examination of the samples sent to SFSL, Junga, it was clearly opined that the blood group of deceased matched with the blood stains found on the sweater worn by appellant as also on the weapon of offence. To similar effect was the opinion rendered by the experts on DNA profiling.

The recovery of weapon Ex. P-12 at the instance of appellant has been linked with the crime as the DNA profile of blood found on such weapon matched with that of the blood sample of the deceased.

Learned counsel for the appellant drew our attention towards the fact that though the postmortem was conducted on 25.03.2016, the belongings on the person of deceased as also her blood samples were deposited in Malkhana of Police Station on 31.03.2016. Learned counsel for the appellant asserted that tampering with the samples could not be ruled out as there was no explanation for such delay in deposit of samples in the Malkhana. We have gone through the evidence and have found that PW-12, SI Sunil Kumar, who had got the postmortem conducted at I.G.M.C. Shimla on 25.03.2016 had stated in his examination-in-chief that the hospital authority had asked him to collect the articles so preserved later. No challenge was laid to such statement of PW-12. As regards, the preservance of blood samples and belongings on the person of deceased, PW-17 Dr. Piyush Kapila, had deposed that he had preserved such articles. Again, no challenge was made to such statement. Merely because, prosecution had omitted to render any explanation with respect to delay in deposit of samples in Malkhana, will not be fatal to the prosecution case, especially keeping in view the other available evidence, as noticed above.

Learned counsel for the appellant also referred to the discrepancies in the statements of PWs 14, 15 and 23 on the aspect of despatch of samples from Police Station to SFSL, Junga. He pointed out that according to PW-14 HHC Mohar Singh, he had handed over the samples, vide RC Ext. PW14/E to HHC Laiq Ram, whereas PW-15 ASI Man Dev, had stated that the parcels were handed over by HHC Mohar Singh to him and he had handed over the said parcels to PW-23 HHC Laiq Ram. If the statement of HHC Laiq Ram is seen, he also stated that the samples were given to him by PW-15 ASI Man Dev. The fact remains that the samples were received by HHC Laiq Ram from Malkhana and were taken to SFSL Junga and those were delivered on the same day i.e. on 01.04.2016. Merely because, PW-14, fails to mention the delivery of articles to HHC Laiq Ram through ASI Man Dev, will not defeat the prosecution case. He further submitted that PW-9, Ankit Verma was a stock witness of the prosecution and reliance could not be placed on his testimony. As per him, PW-9 was the person, who was associated by the police even on 25.03.2016 and thereafter again on 27.03.2016. PW-9 was the Vice President of the concerned Panchayat and it was not unusual to have associated him as an independent witness by the investigating officer. There is nothing odd in the fact that PW-9 was associated on 25.03.2016 and also on 27.03.2016.

In light of above discussion, we have not found any infirmities in the findings and conclusions recorded by learned trial court. In result, there is no merit in this appeal and is same is accordingly dismissed.

The appeal is accordingly disposed of, so also the pending miscellaneous application(s), if any,