The High Court dismissed the criminal appeal filed by a murder convict. Holding that witness kinship does not equate to interest unless there is a specific motive to falsely implicate, the Court found the informant's testimony reliable and corroborated by medical evidence, upholding the trial court's conviction under Section 302 IPC.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Cr. Appeal (DB) No. 145 of 2014
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Against the judgment of conviction and order of sentence dated 30.04.2013 passed by the learned Principal Sessions Judge, Simdega in Sessions Trial No. 89/2009.
Umlan Dungdung @ Umbalan Dungdung ------Appellant Versus The State of Jharkhand ------Respondent
--For the Appellant: Mr. Mahesh Kr. Sinha, Amicus Curiae For the Respondent: Mr. Abhay Kr. Tiwari, A.P.P.
--- PRESENT
Hon’ble Mr. Justice Aparesh Kumar Singh Hon’ble Mr. Justice Kailash Prasad Deo
--- By Court: Heard learned Amicus Curiae Mr. Mahesh Kumar Sinha, appointed by JHALSA to represent the appellant in the instant appeal and learned Additional Public Prosecutor Mr. Abhay Kumar Tiwari, representing the State.
As per the informant, his younger brother Vipin Bilung (deceased) aged 25 years, had gone to Kondekera Bazar at 12.00 Hrs. on 20.02.2009 and he had also gone to the market to bring household goods. After purchase, they were returning to their home at Semartoli at 6.30 pm in the evening. At that time, the informant saw his younger brother Vipin Bilung (deceased) accompanying the accused Umlan Dungdung, son of late Nahu Dungdung of village Shivnathpur, P.S. Kolebira. As soon as the accused Umlan Dungdung reached near his house around 7.00 pm in the evening, informant saw an altercation between the two, which took the form of fight. During the course of fight, Umlan Dungdung procured a tangi (sharp cutting weapon) and knife from his house and inflicted an injury on the chin of the younger brother of the informant by tangi, as a result of which, he fell down and was rendered unconscious. Thereafter, he
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again inflicted knife blow on his neck. As a result of this, his brother Vipin Bilung died instantaneously. Umlan Dungdung (accused) fled away along with his wife. Informant raised a brawl and since it was night, number of villagers assembled there who were informed about the incidence. The informant claimed that the accused Umlan Dungdung had a pre-existing dispute with his younger brother Vipin Bilung for the reason that Vipin Bilung was keeping his wife. Since it was night, the incidence could not be reported to the police station and therefore, in the morning this information was brought before the police station. On these assertion, informant alleged that the accused Umlan Dungdung had, on account of pre-existing enmity, killed the informant’s younger brother Vipin Bilung by assault with tangi and knife and fled away.
P.W.1 is Chowkidar 4/2 Herman Kerketta of P.S. Kolebira who has produced the tangi in connection with Kolebira P.S. Case No. 7/2009 which were proved and marked as Ext.1. In cross-examination, he denied that the learned court had ordered him to do so, but he had brought the tangi on the direction of Officer-in-Charge which contain the number of P.S. case tagged with the tangi. He further stated that such tangi are available in the market.
P.W.2 Francis Kerketta is of the same Kolebira P.S. who in his chief, stated that the occurrence was informed to him by the informant Basant on the next morning. He had seen the dead body and injury on the chin and neck of the dead body and other villagers like Henry Tete, Rajendra Baraik, Anand Tete, etc. had also seen it. No specific denial has been obtained by the defence in his cross-examination.
P.W.3 Henry Tete of the same Kolebira P.S. has in his deposition conveyed that information of the occurrence came to his knowledge through the informant Basant, elder brother of the deceased and he had gone to see the dead body on the next day. The dead body bore three injuries on the neck and chin. Defence has not been able to elicit anything specific during his cross-examination.
P.W.4 is Dr. Pradhu Sahay Linda who conducted post-mortem on the dead body of Vipin Bilung on 21.02.2009 at about 4.00 pm and found the following features on physical examination, external examination and on internal examination after
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dissection. He has also described the nature of the injury, weapon used and cause of death. The post-mortem report in his pen and signature was proved and marked as Ext.2. Extract of his deposition on the aforesaid aspects is being reproduced hereunder:
“On physical examination: Average built nutrition good. Rigor mortis present in all four limbs. Body was not decomposed.
On External Examination: Both eyes were closed. Mouth was open. But tongue was inside the mouth. A deep chopped wound measuring about 3”x1”x2” deep on the chin. A stab wound 1”x ½ “on the base of neck over the trachea.
A Bruise measuring 1”x5” on right side of base of neck was present. On Internal Examination after dissection:
Heart - both chambers of heart were empty. Thoracic cavity contain semi clotted blood. Stomach contain undigested food and small intestine contain semi digested food along with gases and large intestine contain faecal matter with gases. Mandible was found fractured.
Nature of Injuries: All above mentioned injuries are ante mortem in nature. Time since death is about 20 hours to 40 hours of duration.
Weapon used: Heavy Sharp cutting edged like Tangi and long sharp cutting weapon like knife.
Cause of death: Due to cardio respiratory failure due to hypovolnic shock. This post mortem report is in my pen and signature. It is marked exhibit-2.”
In the cross-examination, he has stated that he has opined that Axe and knife are the weapon by which aforesaid injuries are possible, but from Balua and pointed rod also, aforesaid injuries by single-single blow can be caused by each weapon. Bruise injury referred above may be of stick of Axe.
P.W.5 is Tapsi Bhagat, who was posted as Assistant Sub Inspector of Police at Kolebira P.S. on 21.02.2009 and came to know at 9.30 on telephone that a person has been killed in village Shivnathpur. He entered Sanha bearing no. 821 and proceeded with the Officer-in-Charge and armed police to the place of occurrence. On reaching there, he recorded the fardbeyan of the informant, which is in his handwriting and signature and has been proved and marked as Ext.3. Endorsement thereupon in the signature of Navin Kumar, Officer-in-Charge, Kolebira P.S. is identified by him and proved as Ext.3/1. The formal FIR in his handwriting and signature of Navin Kumar has been proved and identified as Ext.4. He took over the investigation and took restatement of the informant. He prepared the inquest report which has been proved in his handwriting and signature as Ext.5. The dead body was sent for post-mortem to Sadar Hospital, Simdega. As per his description, the place of occurrence is at village Shivnathpur and adjacent towards the northern corner of the house of the accused Umlan Dungdung. He had during inspection of the place of occurrence found lot of blood lying there along with the dead body of the victim. The other physical boundary of the place of occurrence are the land of Sudhir Tete in the east, land of the accused in the western side, land of Umlang Dungdung in the north side and 40 ft. wide road on the south. He had also recorded the statement of Francis Kerketta, Henry Tete, Anand Tete, Rajendra
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Baraik and Sujit Bilung and returned to the police station. He arrested the accused person and recovered tangi on his information. The confessional statement of the accused was also recorded. The seizure list in his handwriting and signature has been proved and marked as Ext.6. After obtaining the post-mortem report and on instruction of senior officials and Superintending of Police, charge sheet under section 302 of the Indian Penal Code was filed. He has identified the accused in the dock.
In his cross-examination, he has stated that all the witnesses were of Semartoli and the deceased was also of Semartoli which is about 1.00 km from the place of occurrence. He had not gone to Semartoli. He further states that the place of occurrence is in a large village of Shivnathpur from where he had not recorded the statement of any witnesses. Kondekera is the place where market is held and people go to Kondekera market from Seramtoli where on the way, house of the accused is situate. He has denied knowledge of the person who gave information upon which Sanha No. 321/09 was entered. He has stated further at para-9 that he had not sent the seized articles like blood and tangi to forensic science laboratory. He also states that tangi is used for cutting pigs also.
P.W.6 is the informant Basant Bilung. He has in his deposition supported the allegations made in the fardbeyan. According to him, incidence took place on 20.02.009 at 7.00 pm in the evening. He had gone to Kondekera market for some purchase. The accused Umlang Dungdung and Vipin Bilung were both together. When he reached near the house of Umlang at 7.00 pm on his bicycle, he saw an altercation going on between Umlang and Vipin. He further states that Vipin Bilung was assaulted by Umlang Dungdung by means of tangi on his chin and thereafter by knife on his neck. He raised hulla / brawl, on which villagers assembled there. As a result of the injuries, Vipin Bilung died. He further states that Vipin Bilung was in love with the wife of Umlang and that is the reason for occurrence. Umlang had fled away thereafter. The occurrence was reported to the police and his fardbeyan was recorded and signature thereupon has been identified by him, which has been marked as Ext.7. He has identified the accused in dock.
In his cross-examination, he has stated that he had gone to the market at 4.30 pm and when he left the market, it was 6.00 pm and by 6.30-7.00, he reached Shivnathpur. Shivnathpur is about 3.00 km from Kolebira. He had not stopped at any place. Both the accused and the deceased had started 15 minutes before. Both of them had consumed country made liquor. He denied that he had not seen both of them leaving the market. He further states that his house is at Semartoli. While going through pucca road, first Mongaltoli comes, then Semartoli and thereafter Shivnathpur. From Semartoli he had gone on pucca road. Both the accused and the
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deceased were on the same bicycle. It was not completely dark and there were no other person apart from these two. Rest of the persons came on brawl, but he did not remember who had come. He had disclosed the incidence to Hendrik, Francis and Surendra. He has stated that there was no free fight during altercation and that the accused had brought tangi from his house and assaulted him.
P.W.7 is Sujeet Bilung. He has proved the seizure list which has been marked as Ext.6/1 and identified the accused in the dock. In his cross-examination, he stated that occurrence was brought to his notice by the informant Basant Bilung and the deceased was the informant’s brother. He had come to know of the incidence between 9-10 in the night and had gone to see it also. He had seen the occurrence by his own eyes. Thereafter, evidence of the prosecution was concluded.
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Indian Penal Code as the act of assault took place on grave and sudden provocation on the part of the deceased for the aforesaid reason. In either of the eventuality, conviction under Section 302 of the Indian Penal Code cannot be sustained. In the alternative, this Court may modify the conviction and sentence to one under Section 304 Part II of the Indian Penal Code for the aforesaid reasons. On these submissions, the impugned findings have been assailed.
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fardbeyan during the course of trial regarding the time of occurrence i.e., about 7.00 p.m on 20.02.2009; place of occurrence i.e., adjacent to the house of the accused / appellant ; manner of occurrence i.e., both the accused and the deceased entered into a quarrel just near the house of the appellant on their return from Kondekera market in the evening and the accused procured a tangi (sharp cutting weapon) and knife and inflicted injuries on the chin of the victim and after he fell down, knife blow on his neck which resulted in his death instantaneously. These injuries stand corroborated through medical evidence of P.W.4 beyond any reasonable doubt.
“12. As regards the contention that the eye witnesses are close relatives of the deceased, it is by now well-settled that a related witness cannot be said to be an ‘interested’ witness merely by virtue of being a relative of the victim. This Court has elucidated the difference between ‘interested’ and ‘related’ witnesses in a plethora of cases, stating that a witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused ( for instance, see State of Rajasthan v. Kalki, (1981) 2 SCC 752; Amit v. State of Uttar Pradesh,(2012) 4 SCC 107; and Gangabhavani v. Rayapathi Venkat Reddy, (2013) 15 SCC 298). Recently, this difference was reiterated in Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549, in the following terms, by referring to the three-Judge bench decision in State of Rajasthan v. Kalki (supra):
“14. “Related” is not equivalent to “interested”. A witness may be called “interested “only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be “interested ….”
“26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative
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would be the last to screen the real culprit and falsely implicate an innocent person….”
(Aparesh Kumar Singh, J)
(Kailash Prasad Deo, J)
Jharkhand High Court, Ranchi Dated 27th March 2019 Ranjeet/
3 issues framed by the court
Whether the evidence of the informant, who is the elder brother of the deceased and an interested witness, is sufficient to sustain the conviction for murder.
Whether the conviction and sentence under section 302 of the Indian Penal Code can be set aside or reduced upon the ground that the prosecution evidence suffered from foundational flaws and lack of fo
Whether an allegation of illicit relationship constitutes grave and sudden provocation under Exception 1 to Section 300 of the Indian Penal Code warranting a reduction in charge to Section 304 Part II
Colour shows how this judgement treated each authority
State of Rajasthan v. KalkiReferred¶53
State of Rajasthan v. Kalki, (1981) 2 SCC 752 · Who else cites this
Amit v. State of Uttar PradeshReferred¶53
Amit v. State of Uttar Pradesh, (2012) 4 SCC 107 · Who else cites this
Gangabhavani v. Rayapathi Venkat ReddyReferred¶53
Gangabhavani v. Rayapathi Venkat Reddy, (2013) 15 SCC 298 · Who else cites this
Ganapathi v. State of Tamil NaduReferred¶53
Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549 · Who else cites this
Dalip Singh v. State of PunjabReferred¶56
Dalip Singh v. State of Punjab, 1954 SCR 145 · Who else cites this
Jayabalan v. Union Territory of PondicheeryReferred¶59
Jayabalan v. Union Territory of Pondicheery, (2010) 1 SCC 199 · Who else cites this
Laltu Ghosh Versus State of West BengalRelied on¶52
Laltu Ghosh Versus State of West Bengal in Criminal Appeal No. 312 of 2010
Md. Rojali Ali & others Versus State of AssamRelied on¶52
Md. Rojali Ali & others Versus State of Assam in Criminal Appeal No. 1839 of 2010
1 provisions across 1 enactments
Umlan Dungdung @ Umbalan Dungdung
The State of Jharkhand
Aparesh Kumar Singh
Kailash Prasad Deo
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
