Munna Kumar vs State of Bihar

K.G. Balakrishnan and B.N. Srikrishna, JJ.—The Appellant Munna Kumar was found guilty by the Xth Additional Sessions Judge, Patna for the offence punishable u/s 302 read with Section 34, I.P.C. He challenged his conviction and sentence in the appeal preferred before the High Court of Judicature at Patna. The High Court confirmed the conviction and sentence. The prosecution case is that the Appellant Munna Kumar and his friend Dilip Kumar went to the house of the deceased Ashok Kumar on 1.6.1994 at about 2.00 p.m. and took him away from his house on the pretext of playing football. As Ashok Kumar did not return home in the evening, his father got suspicious and went in search of him. When he reached near the office of Damodar Valley Corporation he saw his son Ashok Kumar in the presence of these Appellants. Ashok Kumar was raising alarm and was trying to escape from the Appellants. The case of the prosecution is that the Appellant fired a shot at deceased Ashok Kumar and he sustained injury on his head. In the injured condition he was taken to Patna Medical College Hospital but his life could not be saved.

The Investigating Officer came to know of the incident and he went to the Patna Medical College Hospital and thereafter he visited the place of incident and conducted further investigation. The body of the deceased Ashok Kumar was subjected to post-mortem examination and it was found that there was a bullet injury on his head. The Sessions Judge as well as the High Court relied on the evidence of P. Ws. 1 to 3 who were eye-witnesses. The High Court accepted the evidence of these three witnesses and we do not find any infirmity in this and the evidence of these witnesses were rightly accepted by the High Court.

One significant aspect of this case is that the post-mortem examination produced by the prosecution was neither proved by the examining doctor who prepared it nor any person who had any acquaintance with the handwriting of the doctor was examined on the side of the prosecution. An advocate's clerk was examined to prove the post-mortem examination. He candidly admitted in the cross-examination that he had no acquaintance with the doctor who prepared the post-mortem examination and that he had no familiarity with the handwriting of the doctor. Therefore, it is clear that the post-mortem report was not proved as per the prescribed procedure. On this basis, counsel for the Appellant contended that the prosecution evidence would not show the cause of death of Ashok Kumar and it is submitted that the prosecution failed to prove the offence of murder against the Appellant. We find some force in this contention. The prosecution should have produced the best evidence by proving the post-mortem certificate. It should have examined any person who had some acquaintance with the handwriting of the doctor who prepared the post-mortem report, either one of his colleagues or anybody who had been working in the hospital where the doctor worked. The prosecution failed to produce the best evidence and the Appellant is certainly entitled to the benefit of doubt arising out of this.

However, there is evidence to the effect that the Appellant Munna Kumar fired a shot at the head of the deceased Ashok Kumar. The inquest report also would show that Ashok Kumar sustained an injury on his head but there is no sastifactory evidence to prove the cause of death of Ashok Kumar. In the absence of any satisfactory evidence it is difficult to convict the Appellant for the offence of murder punishable u/s 302. However, there is satisfactory evidence beyond all reasonable doubt to show that the Appellant Munna Kumar fired a shot at the head of deceased Ashok Kumar. The offence would certainly come within the purview of Section 307, I.P.C.

In the result, we set aside the conviction and sentence of the Appellant for the offence punishable u/s 302 and find him guilty and sentence him to undergo imprisonment for a period of 8 years u/s 307, I.P.C. We are told that the Appellant has already undergone a long period in jail and he is entitled to set off for the period already undergone and if he has already completed 8 years, he be released forthwith. Dilip Kumar, the co-accused, who had been convicted alongwith Munna Kumar has not filed any appeal in this Court. He would be entitled to the benefit of this, in case he comes before this Court in appeal. Accordingly, the appeal is allowed.