Sundar @ Sudar Chik vs Mogla Chik And Ors

Shree Chandrashekhar, J

Affidavit dated 09.08.2019 has been filed by Sylvester Kerketta, Sub-Inspector of T. Tanger Police Station, District-Simdega stating that the

appellant, namely, Mogla Chik has died during pendency of these criminal appeals. On death of Mogla Chik, the Sub-Inspector of T. Tanger Police

Station has produced death certificate issued by Mukhiya of village-Joram.

Mr. Avishek Prasad, the learned counsel who appears for the appellant, namely, Mogla Chik states that he has received no instruction to file an

application for impleadment of legal heirs and successors of Mogla Chik in his place.

Accordingly, Criminal Appeal (DB) No. 1714 of 2003 qua the appellant, namely, Mogla Chik has abated.

Three persons were named as accused by Etwari Devi in her fardbeyan which was recorded at about 15:30 hrs. on 26. 06.1996. On the basis of

her fardbeyan, T. Tanger P.S. Case No. 25 of 1996 has been registered against Mogla Chik, Sundar @ Sudar Chik and Somaru Chik under section

302/34 of the Indian Penal Code.

In S.T No. 278 of 1996, the appellants have faced the trial on the charge under section 302/34 of the Indian Penal Code and they have been

convicted and sentenced to R.I for life for the said offence.

During the trial the prosecution has examined 9 witnesses; Etwari Devi is P.W.9. Her daughter, namely, Angni Devi-P.W.7 and son-in-law, namely,

Tharlu Nag-P.W.6 have also been examined as eye-witnesses.

The informant is mother of Bambi Chik, the deceased. In her fardbeyan, she has stated that last evening at about 8:00 p.m Bambi Chik had come

back home and after dinner they were gossiping. At about 10:00 p.m, Mogla Chik and Sundar @ Sudar Chik came to her house and called her son

outside. When her son went outside Mogla Chik asked him about whereabouts of his mother and both the accused persons started assaulting him with

fists indiscriminately whereupon her son fell on the ground. The informant has stated that both the accused persons continued to assault her son even

after he had fallen on the ground and even she tried to intervene but they did not stop and were threatening to kill her son. In the meantime, a co-

villager, namely, Somaru Chik came there and asked the accused persons to take Bambi Chik to the Sarpanch. Thereafter Somaru Chik tied her son

with a rope and dragged him towards school. When she raised cries her daughter and son-in-law came there, however, afraid, they did not intervene.

After sometime, Mogla Chik and Somaru Chik brought her injured son and left him on the Varandah and after sometime he died.

The informant has been examined in the court as P.W.9. She has spoken about Mogla Chik and Sundar @ Sudar Chik coming to her house in the

evening of 25.06.1996 and Mogla Chik asking her son about whereabouts of his mother. She has stated that Mogla Chik and Sundar @ Sudar Chik

have assaulted her son with fists and all the three accused persons have dragged her son towards school. After sometime they have brought back her

son and left him on the Varandah of her house. She has seen blood oozing from mouth, nose, ear and eyes of her son. Her son-in-law, namely, Tharlu

Nag-P.W.6 and her daughter, namely, Angni Devi-P.W.7 have also claimed that they have seen the accused persons assaulting Bambi Chik. They

have also deposed that the accused persons dragged Bambi Chik to the Mission School and after sometime they brought him back and left him on the

Varandah.

On presence of P.W.6 and P.W.7 at the place of occurrence and at the time of occurrence, we find that the informant has disclosed their presence

at the place of occurrence, at the first instance itself. In her fardbeyan, she has stated that when she raised cries her daughter and son-in-law came

there and they have seen the accused persons taking away Bambi Chik. It has come in the evidence of P.W.6 and P.W.7 that they are residing just

adjacent to the house of the informant. On such evidence, their presence atleast at the time when the accused persons dragged Bambi Chik towards

school cannot be doubted.

Mr. Ajit Kumar, the learned counsel appears for the appellant, namely, Sundar @ Sudar Chik in Criminal Appeal (DB) No. 376 of 2001 and Mr.

Avishek Prasad, the learned counsel appears for the appellants, namely, Mogla Chik and Somaru Chik in Criminal Appeal (DB) No. 1714 of 2003.

The learned counsels appearing for the appellants have contended that the informant has admitted during her cross-examination that it was a dark

night and she has difficulty in seeing. P.W.7 has also admitted in her cross-examination that it was a dark night and several local villagers had

assembled at the place of occurrence but she could not identify any of them. On such evidence, the learned counsels appearing for the appellants have

contended that identification of the appellants as the persons who have assaulted Bambi Chik is not established.

The appellants are the co-villagers. May be, it was a dark night but in paragraph no. 3 of her cross-examination the informant has stated that she

has no vision problem. The learned Additional Sessions Judge has recorded her response and found that she can see the things properly. The

appellants are named by the informant as accused in her fardbeyan which was recorded next day at about 15:30 hrs. The distance between the place

of occurrence and the police station was about 8 K.M and the incident has happened at about 10:00 p.m in the night. In these facts, it cannot be said

that there was delay in lodging the First Information Report and the appellants have been falsely implicated in this case after due deliberations. It is

well-accepted proposition in law that if complicity of the accused persons is disclosed at the first instance and they are known to the prosecution

witnesses their identification by the witnesses even in a dark night or at a place where there is little source of light can be accepted.

From the evidence of P.W.6, P.W.7 and P.W.9, the prosecution has established presence of the appellants at the place of occurrence and the time

of occurrence. They have played some role in the incident stands proved from the evidence of the prosecution witnesses.

P.W.1, P.W.2 and P.W.3 are the formal witnesses. P.W.4 and P.W.5 who are inquest witnesses have turned hostile, however, P.W.8 who has

also stated that the inquest report was not prepared in his presence has not been declared hostile.

Another significant aspect of the matter is that the doctor who has conducted the post-mortem examination and the investigating officer have not

been examined during the trial.

Referring to the judgments in “Munna Kumar Vs. State of Bihar†reported in (2005) 12 SCC 209a nd “Sowam Kisku and Others Vs. The

State of Bihar (now Jharkhand)†reported in 2006 SCC OnLine Jhar 1,7 Mr. Avishek Prasad, the learned counsel for the appellants, namely, Mogla

Chik and Somaru Chik has contended that in absence of evidence on cause of death of Bambi Chik the appellants cannot be convicted for the offence

of murder.

Before dealing with this aspect of the matter, we intend to record that in a crime scenario like this; (i) except the informant none of the prosecution

witnesses has seen the appellants assaulting Bambi Chik, (ii) no allegation of assault has been imputed to Somaru Chik, and (iii) motive on the part of

Mogla Chik alone for committing the crime, non-examination of the investigating officer would substantially shake foundation of the prosecution's

case.

The post-mortem report was taken on record without objection. Dr. S. P. Jha, who has conducted the post-mortem examination on 27.06.1996 at

about 11:55 a.m, has found the following injuries on Bambi Chik :

“(i)Blood clot coming out of nose on dissection lacerated wound of ½'' x ¼ '' at inside of the both noses.

(ii) Abrasions at Rt big toe and Rt 2nd toe, ½'' x ¼'' in size all the both toes on dissection an denouement upto the sluice was found.

(iii) Abrasions of ½''x ¼'' size all the big toe, 2nd and 3rd toes of the left foot. On dissection only innoluement of sluir was found.

(iv) An abrasion at the upper right arm 3'' x 2'' x stuideepondly. On dissection, in abdomen the spleen were tore and lacerated and blood and blood clot

was present in peritoneal cavity. Blood clot of six fist full size was present. Size of spleen 3'' x 1'' x 1'' lacerated all where.â€​

The post-mortem report records that the injuries found on Bambi Chik were ante-mortem and caused within 48 hours of the post-mortem

examination.

Under section 45 of the Indian Evidence Act, 1872 opinions of the experts are relevant. Chapter IV of the Indian Evidence Act, 1872 deals with

oral evidence. Section 59 of the Indian Evidence Act, 1872 provides that all facts except (content of documents or electronic records), may be proved

by oral evidence. Section 61 of the Indian Evidence Act, 1872 provides that contents of a document may be proved either by primary or by secondary

evidence. A document in original if produced during the trial is a primary evidence, however, contents of a document unless the maker is examined

cannot be read in evidence. In terms of section 293 of the Code of Criminal Procedure a post-mortem report needs to be proved by the doctor who

has conducted the examination or a person who is conversant with the facts of the case and can satisfactorily depose in the court on behalf of the

doctor. In “Munna Kumar†case, finding that the post-mortem report was not proved in terms of section 293 of the Code of Criminal Procedure,

the Supreme Court has observed that the appellant was entitled for the benefit of doubt. It has been held that the prosecution should have produced

the best evidence by proving the post-mortem report by examining the doctor or any other person acquainted with the hand-writing of the doctor who

had prepared post-mortem report.

In the present case, the prosecution has come out with a positive case that Mogla Chik and Sundar @ Sudar Chik have assaulted Bambi Chik with

fists, may be indiscriminately. The inquest report; the inquest witnesses have turned hostile, records assault by fists. But, it has also come in the

prosecution's evidence that Bambi Chik was sleeping in his house and the next day he was found dead.

In the aforesaid state of evidence, we find that there is serious controversy on the cause of death of Bambi Chik and even assuming assault upon

him by Mogla Chik and Sundar @ Sudar Chik by fists their conviction under section 302/34 of the Indian Penal Code cannot sustain in law.

Accordingly, conviction of the appellants, namely, Sundar @ Sudar Chik and Somaru Chik under section 302/34 of the Indian Penal Code is set-

aside.

Assault upon Bambi Chik by Sundar @ Sudar Chik by fist due to which he has suffered such injuries on account of which blood was oozing from

his nose, ear and eyes â€" there is no allegation of assault by Somaru Chik â€" would attract offence under section 325 of the Indian Penal Code and,

accordingly, the appellant, namely, Sundar @ Sudar Chik is convicted and sentenced to R.I for Five years under section 325 of the Indian Penal Code

[refer, “Lal Mandi Vs. State of W.Bâ€​ reported in (1995) 3 SCC 603].

The appellant, namely, Sumaro Chik is convicted and sentenced to R.I for One year under section 323 of the Indian Penal Code.

A report on total period of custody of the appellants has been produced. It is stated that both the appellants have remained in custody for about

Nine years.

Accordingly, the appellants, namely, Sundar @ Sudar Chik in Criminal Appeal (DB) No. 376 of 2001 and the appellant, namely, Somaru Chik in

Criminal Appeal (DB) No. 1714 of 2003, who are on bail, shall stand discharged of liability of the bail-bonds furnished by them.

Criminal Appeal (DB) No. 376 of 2001 and Criminal Appeal (DB) No. 1714 of 2003 are partly allowed.

Let a copy of the Judgment be transmitted to the court concerned through FAX.

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