Rabibari Munda wife Of Jhari Munda And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

Four persons, namely, Jhari Munda, Rabibari Munda, Paresh Munda and Jailal Munda have been named as accused by Prahlad Munda in his fard-

beyan which was recorded on 29.08.1996. On the basis of statement of the informant, Baharagora P.S. Case No.65 of 1996 was registered against

the appellants under section 302/34 of the Indian Penal Code.

The appellants have faced the trial on the charge under section 302/34 of the Indian Penal Code for committing murder of Ramdhan Munda in the

intervening night of 28/29.08.1996. In Sessions Trial No.633 of 2001, the appellants have been convicted and sentenced to R.I for life under section

302/34 of the Indian Penal Code.

During pendency of this criminal appeal, the appellant, namely, Jhari Munda has died and, accordingly, vide order dated 25.11.2019 this appeal qua

the appellant, namely, Jhari Munda has abated.

Admittedly, there is no eye-witness to the occurrence. The case set-up by the prosecution against the surviving appellants, namely, Rabibari Munda,

Paresh Munda and Jailal Munda is based on circumstantial evidence.

The law on the circumstantial evidence is by now well-settled. In a case founded on circumstantial evidence, the prosecution is required first to

prove the incriminating circumstances and then prove that the proved circumstances are so complete that these point out an accusing finger only

towards the accused excluding every reasonable hypothesis of innocence of the accused. In “Gambhir Vs. State of Maharashtra†reported in

(1982) 2 SCC 351, the Supreme Court has explained the law on the circumstantial evidence, thus;

“9. ..................When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (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. 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. The circumstantial evidence

should not only be consistent with the guilt of the accused but should be inconsistent with his innocence...................â€​

To prove the charge under section 302/34 of the Indian Penal Code the prosecution has led evidence on: (i) love affair between Ramdhan Munda

and Rashomani Munda, (ii) threat issued by the appellants to Ramdhan Munda to leave company of Rashomani Munda, (iii) a bicycle belonging to

Ramdhan Munda found outside the house of the appellants, and (iv) dead body of Ramdhan Munda found near the house of the appellants.

To prove the charge under section 302/34 of the Indian Penal Code against the surviving appellants, the prosecution is required to lead cogent

evidence on the aforesaid incriminating circumstance and to prove that the chain of circumstances as found proved is so complete as to lead an

inference on complicity of the appellants in the crime and to rule out any hypothesis consistent with innocence of the appellants.

On love affair between Ramdhan Munda and Rashomani Munda, the prosecution has led evidence through P.W3-Chotu Munda, P.W 4-Ramlal

Munda, P.W 5-Pulin Munda, P.W 7-Chandi Charan Munda and P.W 8-Prahlad Munda. These prosecution witnesses have consistently spoken about

love affair between Ramdhan Munda and Rashomani Munda. P.W 4, P.W 5, P.W 7 and P.W 8 have stated about threats issued by the appellants to

Ramdhan Munda asking him to leave company of Rashomani Munda.

P.W 1, P.W 2 and P.W 6 are seizure witnesses. They have proved the seizure-memo and stated that blood-stained soils, chappal, shoes, saree, pant

and socks were seized by the investigating officer on 29.08.1996 in the cow-shed of Neelkanth Upadhyay.

Through the evidence of the prosecution witnesses love affair between Ramdhan Munda and Rashomani Munda and threat by the appellants to

Ramdhan Munda stand proved. It also stands proved that the clothes belonging to Ramdhan Munda and Rashomani Munda were found in the cow-

shed of Neelkanth Upadhyay.

Now the question is whether on the basis of the aforesaid proved circumstances the appellants can be held guilty on the charge under section

302/34 of the Indian Penal Code for committing murder of Ramdhan Munda.

In our opinion, the answer is an emphatic “Noâ€. In the first place, we intend to indicate that distance between the house of the appellants and

Neelkanth Upadhyay and between the house of the deceased and the place of occurrence are about 100 yards to 200 yards only. The dead body of

Ramdhan Munda has been found in the cow-shed of Neelkanth Upadhyay, however, he has not been examined during the trial. The investigating

officer has admitted during his cross-examination that he has not made enquiries about relationship between Neelkanth Upadhyay and Nigam Prasad

Upadhyay. In his fard-beyan the informant has stated that on 28.08.1996 his brother had gone to Angarisole to watch football match and he came

back at around 8:00 p.m. in the night to the house of Jhari Munda. He has further stated that the appellants asked his brother to stay in their house in

the night where he had dinner with them and next morning his dead body has been found in the cow-shed of Neelkanth Upadhyay. In the court also

the informant who has been examined as P.W 8 has stated the aforesaid facts. But, nowhere the informant says that he was accompanying his

brother when he had gone to watch football match and came back to the house of the appellants. None of the prosecution witnesses has deposed in

the court that they have seen Ramdhan Munda coming to the house of the appellants in the night of 28.08.1996. On what basis the informant has

stated in his fard-beyan and deposed in the court that his brother came to the house of the appellants on 28.08.1996 and stayed there in the night has

not been revealed by the prosecution. Therefore, on such evidence it cannot be inferred that Ramdhan Munda was lastly seen in the house of the

appellants. This is also a fact not disputed by the prosecution, rather admitted by the investigating officer in his cross-examination that murder of

Ramdhan Munda has taken place in the cow-shed of Neelkanth Upadhyay. As noticed above, distance between the house of the appellants and cow-

shed of Neelkanth Upadhyay is about 100 yards to 200 yards but no body has seen the occurrence; P.W 1, P.W 2 and P.W 7 are the neighbours.

The learned Sessions Judge in paragraph no.27 of the judgment under challenge has observed that when the appellants found Ramdhan Munda

and Rashomani Munda engaged in sexual intercourse they assaulted Ramdhan Munda from behind on his neck which has proved fatal and that is the

reason dead body of Ramdhan Munda was found undressed. From the evidences led by the prosecution during the Sessions Trial No.633 of 2001, in

our opinion, such an inference cannot be drawn. Moreover, if at all that had happened, blood-stained soil or any other sign of murder should have been

found in the house of the appellants whereas this is the prosecution's own case that murder has taken place in the cow-shed of Neelkanth Upadhyay.

In a case based on circumstantial evidence motive provides an additional link to the chain of circumstances [refer, “Surinder Pal Jain Vs. Delhi

Administration†reported in 1993 Supp (3) SCC 681], however, motive alone cannot form foundation for conviction of an accused for an offence like

murder [refer, “Keshav Vs. State of Maharashtra†reported in (2007) 13 SCC 284]. The evidence of the prosecution witnesses disclose that the

appellants had a motive to murder Ramdhan Munda, but this also has to be kept in mind that the appellants have disowned Rashomani Munda and

after the occurrence she has disappeared and never found.

In the aforesaid state of affairs; love affair between Ramdhan Munda and Rashomani Munda and threat issued by the appellants to Ramdhan

Munda are proved, all that we gathered is that only on suspicion the appellants have been convicted for the charge of committing murder of Ramdhan

Munda. May be there is strong doubt against the appellants which may arise on the basis of love affair between Ramdhan Munda and Rashomani

Munda and threat issued by the appellants to Ramdhan Munda to leave company of Rashomani Munda, but then, suspicion howsoever strong cannot

take place of the legal evidence [refer, “Sharad Birdhichand Sarda Vs. State of Maharshtraâ€​ reported in (1984) 4 SCC 116].

In the above facts, having examined the records of Sessions Trial No.633 of 2001 we find that the chain of circumstances is not complete. The

prosecution has, therefore, failed to prove the charge under section 302/34 of the Indian Penal Code against the appellants for committing murder of

Ramdhan Munda.

Accordingly, conviction of the surviving appellants, namely, Rabibari Munda, Paresh Munda and Jailal Munda and sentence of R.I for life inflicted

upon them for the offence under section 302/34 of the Indian Penal Code are set-aside.

The above-named surviving appellants are acquitted of the charge framed against them in Sessions Trial No.633 of 2001.

The surviving appellants, namely, Rabibari Munda, Paresh Munda and Jailal Munda, who are on bail, shall stand discharged of liability of the bail-

bonds furnished by them.

In the result, Criminal Appeal (D.B) No.498 of 2001 is allowed.

We appreciate the assistance rendered by the learned Amicus, who has prepared meticulous notes and chart on the prosecution evidence.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus as per Notification dated 23.11.2017.

Let a copy of the judgment be transmitted to the court concerned through 'Fax'.

Let lower-court records be sent to the court concerned forthwith.