Allowed

Jongol Singh Kuntia v. State of Jharkhand

Jharkhand HC16 Jan 2019Cr.A(DB)/819/2008

Case brief

AI extract

What is this about?

In two criminal appeals challenging convictions for murder under Sections 302/34 IPC, the High Court set aside the lower court's judgment. Finding the prosecution failed to produce eyewitnesses and lacking witnesses for the informant's statement, the court held the chain of circumstances was incomplete and acquitted the appellants.

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellants acquitted under Sections 302/34 IPC. Custodial appellant released; bailed appellant discharged from bond.

Jongol Singh Kuntia Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2019)

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Cr. Appeal Jail (D.B.) No. 819 of 2008 With

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Cr. Appeal (D.B.) No. 475 of 2009

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…..

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(Against the judgment of conviction and order of sentence, both dated 22.02.2008, passed by learned Sessions Judge, West Singhbhum at Chaibasa, in Sessions Trial No. 121 of 2007).

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Jongol Singh Kuntia, aged about 30 years

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….. Appellant [in Cr. Appeal (DB) No. 819 of 2008]

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Chere Singh Kuntia @ Hurdhup, aged about 24 years

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….. Appellant [in Cr. Appeal (DB) No. 475 of 2009]

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Versus

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The State of Jharkhand

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…. Respondent (in both appeals)

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Present

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Hon’ble Mr. Justice Aparesh Kumar Singh Hon’ble Mr. Justice Kailash Prasad Deo

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For the Appellants : Mr. Rajendra Prasad Gupta, Advocate [in Cr. Appeal (DB) No. 819 of 2008] Mr. Pravin Kumar, Advocate [in Cr. Appeal (DB) No. 475 of 2009] For the State : Mr. Satish Kumar Keshri, Additional Public Prosecutor [in Cr. Appeal (DB) No. 819 of 2008] : Mr. Sanjay Kumar Srivastava, Additional Public Prosecutor [in Cr. Appeal (DB) No. 475 of 2009]

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Per Kailash Prasad Deo, J. Heard, learned counsels for the appellants, Mr. Rajendra Prasad Gupta, Advocate in Cr. Appeal (DB) No. 819 of 2008 and Mr. Pravin Kumar, Advocate in Cr. Appeal (DB) No. 475 of 2009 and learned counsels for the State, Mr. Satish Kumar Keshri, Additional Public Prosecutor in Cr. Appeal (DB) No. 819 of 2008 and Mr. Sanjay Kumar Srivastava, Additional Public Prosecutor in Cr. Appeal (DB) No. 475 of 2009.

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2. Both the criminal appeals are directed against a common judgment of conviction and order of sentence, both dated 22.02.2008, passed by learned Sessions Judge, West Singhbhum at Chaibasa, in Sessions Trial No. 121 of 2007, whereby both the appellants have been held guilty for the offence committed and punishable under Section 302/34 of the Indian Penal Code and awarded rigorous imprisonment for life and a fine of Rs.15,000/- each.

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3. The prosecution case is based upon the fardbayen of Maghe Parab Bari (P.W.-4), recorded by Sub Inspector of Police, Prabhat Kumar, Officer-InCharge of Tonto police station on 11.03.2007 at 06:30 A.M. at Harira village near house of Braj Mohan Singh Khuntia (P.W. 3). The informant has alleged that his elder brother Turi Bari went to his sasural at Harira on 10.03.2007 at 12:00 noon. The informant was also celebrating Maghe Parv at Harira village on 10.03.2007 and went to ‘Akhra’ of the village alongwith his uncle Siddiu Bari and brother Duna Bari at around 08:00 P.M., till then dance was over. Thus they were going to the sasural of his elder brother. In the meantime, before the culvert, they saw four persons fleeing towards East. When informant and others proceeded further, they saw a person lying on the road in pool of blood. Thereafter in the tube lights, that person has been identified by the informant as his brother Turi Bari, from where the informant has seen all those four persons fleeing away and in the light, informant has identified them as (1) Songa Singh Kuntia, (2) Jongol Singh Kuntia, (3) Chere Singh Kuntia and (4) Gumdi Singh Kuntia, all resident of village Harira, police station Tonto. The informant went to sasural of his brother and informed them about the occurrence. There informant could know that his brother Turi Bari came to his sasural on 10.03.2007 at 12:00 noon alongwith one Damodar Bari (P.W.-6) and after taking liquor both were roaming in the village. Subsequently brother of the informant returned to his sasural alongwith one unknown person and both after taking liquor, started roaming in the village. In the night, the informant alongwith in-laws of his brother went to the place of occurrence and saw the dead body of his brother and huge amount of blood was also there. The informant has claimed that all the above four named accused persons have killed his brother and fled away. The time of occurrence was at around 07:30 to 08:00 P.M. The informant has given his statement in presence of co-villagers Munda Vishal Singh Kuntia and village

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Dakua Bamia Khandait.

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4. On the basis of fardbeyan police, has registered Tonto P.S. case no. 02 of 2007 dated 11.03.2007, under Section 302/34 of the Indian Penal Code against four named accused persons namely,(1) Songa Singh Kuntia @ Kunda, (2) Jongol Singh Kuntia, (3) Chere Singh Kuntia @ Hurdhup and (4) Gumdi Singh Kuntia @ Tete.

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5. After completion of investigation, the police has submitted charge sheet vide no.8 of 2007, dated 31.03.2007, under Section 302/34 of the Indian Penal Code against all the four named accused persons.

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6. The cognizance of the offence has been taken vide order dated 09.04.2007 and the case has been committed to the court of sessions vide order dated 20.04.2007.

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7 . The case of chargesheeted accused Gumdi Singh Kuntia @ Tete has been separated vide order dated 12.03.2007 as he was found to be a juvenile in conflict with law. The other three chargesheeted accused have been committed to the court of Sessions.

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8. The charge has been framed against accused persons Songa Singh Kuntia @ Kunda, Jongol Singh Kuntia and Chere Singh Kuntia @ Hurdhup under Section 302/34 of the Indian Penal Code, vide order dated 31.05.2007, to which the accused persons have pleaded their innocence and thus, they were put under trial.

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Subsequently the case of Songa Singh Kuntia @ Kunda has been separated vide order dated 12.12.2007 as he was declared to be juvenile in conflict with law. Thus, two accused have faced the sessions trial.

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9. The prosecution, to prove its case, has examined altogether eight witnesses and also exhibited a number of documentary evidence up to exhibit-6. The admission register of accused Songa Singh Kuntia @ Kunda from Jila School

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Chaibasa has been marked as 'X' for identification.

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Vishal Singh Kuntia, has been examined as P.W.-1, Bamia Khandait, has been examined as P.W.-2, Brajmohan Singh Kuntia, has been examined as P.W.-3, Mage Parab Bari, informant of the case, has been examined as P.W.-4, Sini Kuntia, has been examined as P.W.-5, Damodar Bari, has been examined as P.W.-6, Dr. Sudama Prasad, Medical Officer, has been examined as P.W.-7 and Prabhat Kumar, investigating officer of the case, has been examined as P.W.-8. The Principal of Jila School, Chaibasa namely, Sushil Kumar has been examined in this case as court witness no. 1, who has proved the admission register, which has been marked as 'X' for identification.

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Signature of informant (P.W.-4) on the fardbeyan has been proved and marked as exhibit-1, postmortem report of the deceased has been proved and marked as exhibit-2, fardbeyan of the informant has been proved and marked as exhibit-3, inquest report has been proved and marked as exhibit-4, seizure list of danda stained with blood, stone and blood stained soil, have been proved and marked as exhibit-5, seizure list of one pair black ladies sandle, has been proved and marked as exhibit-5/1, forwarding letter for examination of blood stained danda and blood stained soil before Forensic Science Laboratory, Ranchi has been proved and marked as exhibit-6.

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10. After closure of the prosecution evidence, the statement of accused persons have been recorded under section 313 Cr.P.C. on 23.01.2008, where they have claimed themselves to be innocent and have denied about the material brought by the prosecution against them but no defence witness or documents have been brought on record.

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11. After hearing learned counsel for the parties and on perusal of materials available on record, the learned trial court has convicted both the accused persons facing trial namely, Jongol Singh Kuntia and Chere Singh Kuntia @

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Hurdhup under Section 302/34 of the Indian Penal Code.

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Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, appellants have preferred two separate appeals before this Hon'ble Court vide Criminal Appeal (DB) Nos. 819 of 2008 and 475 of 2009, which are being heard together and disposed of by this common judgment as both are arising out of same impugned judgment.

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12. Heard, learned counsels for the appellants, Mr. Rajendra Prasad Gupta [in Cr. Appeal (DB) No. 819 of 2008] and Mr. Pravin Kumar, Advocate [in Cr. Appeal (DB) No. 475 of 2009]. Learned counsels for the appellants have submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsels for the appellants have submitted, that prosecution has though examined altogether 8 prosecution witnesses but none of the prosecution witnesses are eye-witness to the occurrence. Learned counsels for the appellants have submitted, that even the informant has not seen the occurrence. As per fardbeyan of the informant, the informant has claimed that while he was going to the sasural of his brother along with his uncle and younger brother, they saw four persons fleeing away near the culvert, but he has not seen the actual occurrence. Learned counsels for the appellants have thus submitted, that manner of occurrence has not been disclosed and described by any of the prosecution witness. P.W.-1 Vishal Singh Kuntia, P.W.-2, Bamia Khandait and P.W.-3, Brajmohan Singh Kuntia have been examined in this case but all these three witnesses have been declared hostile by the prosecution. P.W.-5, Sini Kuntia has also not supported the prosecution case and thus she has also been declared hostile by the prosecution. Learned counsels for the appellants have further submitted, that informant Mage Parab Bari (P.W.4) has given a vivid description of the occurrence while examining in the court as P.W.-4, which is contradictory from his fardbeyan and no motive has been

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shown by the informant in his fardbeayn, which was subsequently exaggerated by the informant in his deposition though from comparing the fardbeyan as well as the deposition of the informant there are vital contradictions in the prosecution case. Learned counsels for the appellants have submitted, that informant has claimed in the First Information Report that after seeing the dead body of his brother they went to the sasural of his brother and informed them about the occurrence but while deposing in the court as P.W.-4, the informant has claimed that after seeing the dead body of his brother he went to his house and informed his mother about the occurrence. Learned counsels for the appellants have further submitted, that neither the uncle of the informant nor the another brother of the informant have been examined in this case, though they have been named in the fardbeyan as Siddiu Bari and Duna Bari, who were accompanying the informant, while he was going to the sasural of his elder brother but these two witnesses have not been examined in this case. Learned counsels for the appellants have further submitted that as per the evidence of Damodar Bari (P.W.-6) , the cause of occurrence was different from the other prosecution witnesses. Damodar Bari (P.W.-6) , has categorically stated that Turi Bari (deceased) has weared the sandle of a girl, due to which Songa Singh Kuntia became angry as the sandle is of his sister and thereafter an occurrence of assault took place, which was intervened by several persons, who were dancing and singing at Akhra and thereafter Turi Bari has been surrounded by four persons, who have killed Turi Bari. This witness has claimed that after killing Turi Bari, when the accused persons were fleeing away, he saw the accused persons. Learned counsels for the appellants have further submitted that while cross-examining this witness in paragraph-9, has categorically stated that he has not seen the occurrence, meaning thereby that this witness (P.W. 6) is also not an eye witness to the occurrence. Learned counsels for the appellants have

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further submitted that autopsy of the dead body was conducted by Dr. Sudama Prasad (P.W. 7), Medical Officer who has found two external injury on the person of the deceased which are as follows:

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“External Finding: Blood and blood clot present over whole face with both palm. Lacerated wound over left eyebrow with blood clot size-1 ½” x ½” x bone deep.

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Lacerated wound on left temporal area with blood clot. Size- 2” x 2” x bone deep

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Internal Finding: Head neck meninges pale, brain congested, sab dural haematoma, Heart – Left empty, right full, lungspale, lever empty, spleen- empty, stomach – semi digested food particle like 'Haria'.

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Cause of Death: Head injury haemorrhage and shock due to hard and blunt object such as danda and stone.”

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Learned counsels for the appellants have submitted that the doctor has proved the post-mortem report which has been marked as Exhibit-2. During cross-examination the Medical Officer has admitted that the stomach contains semi digested Haria, such type of death may be caused by fall on hard substance. Learned counsels for the appellants have further submitted that as per the prosecution case four persons have assaulted the victim but the doctor has found external injury which can be caused because of fall on hard surface and in absence of any eye-witness, the conviction of the appellants is not sustainable in the eyes of law. Learned counsels for the appellants have further submitted that Prabhat Kumar, Sub-Inspector of Police has been examined as P.W.-8. He is the investigating officer of the case and has proved the fardbeyan of the informant as Exhibit-3, the inquest report in his handwriting and signature as Exhibit-4 and the seizure of blood stained danda and blood stained soil as Exhibit-5. This witness has described the place of occurrence in paragraph-6 of his examination-in-chief which was said to be a Kacchi Morang Road, where the dead body was found and

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the culvert is situated at 7 to 8 feet ahead in the North. Huge amount of blood and a danda stained with blood was also found near the dead body. From the place of occurrence at a distance of 50 Gz, in the West, the house of Brajmohan Singh Kuntia was situated and in the East, land of Vijay Singh Kuntia was situated, though Vijay Singh Kuntia has not been examined in this case but Brajmohan Singh Kuntia has been examined as P.W.3, who has not supported the prosecution case and has been declared hostile by the prosecution. Learned counsels for the appellants have further submitted that a lady sandle (black in colour) was seized from the place of occurrence, the sasural of the deceased was situated at a distance of 200 yards but none of the in-laws of the deceased have been examined in this case to support the prosecution case. Learned counsels for the appellants have submitted that police has seized one pair of lady sandle, black in colour and the seizure list has been proved and marked as Exhibit-5/1 but said sandle has not been proved as sandle of Sini Kuntia (P.W.-5) and Sini Kuntia (P.W. 5) has been declared hostile by the prosecution. Learned counsels for the appellants have further submitted that this witness has proved the forwarding letter of the blood stained danda and blood stained soil sent for examination to the Forensic Science Laboratory, Ranchi, which has been marked as Exhibit-6 but the report has not been brought on record that both the blood (found on danda and on soil) are of the deceased. Under the aforesaid circumstances, learned counsel for the appellants have submitted that the appellants cannot be convicted for the offence committed and punishable under Section 302/34 of the Indian Penal Code, as there is no eyewitness to the occurrence nor the chain of circumstance is complete to prove the guilt of the accused persons beyond all shadows of reasonable doubt, as such, learned counsels for the appellants have submitted that the appellants are entitled for benefit of doubt by setting aside the impugned judgment of conviction and order of sentence.

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13. Heard, learned counsels for the State, Mr. Satish Kumar Keshri, Additional Public Prosecutor in Cr. Appeal (DB) No. 819 of 2008 and Mr. Sanjay Kumar Srivastava, Additional Public Prosecutor in Cr. Appeal (DB) No. 475 of 2009. Learned counsels for the State have submitted, that the impugned judgment of conviction and order of sentence is well founded and is based on the materials available on record. Learned counsels for the State have submitted that the informant though has not claimed himself to be an eye-witness to the occurrence in his fardbeyan but while deposing as P.W. 4, he has categorically stated that he has seen the occurrence. Learned counsels for the State have further submitted that because of teasing of sister of Songa Singh Kuntia, the occurrence has taken place and as such, the learned trial court has rightly convicted the appellants under Section 302/34 of the Indian Penal Code. Learned counsels for the State have further submitted that the doctor has found the cause of death to be head injury haemorrhage and shock due to hard and blunt objects such as danda and stone. Learned counsels for the State have thus submitted that, the impugned judgment of conviction and order of sentence does not warrant any interference by this Hon'ble Court.

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14. Heard, learned counsels for the appellants, Mr. Rajendra Prasad Gupta, Advocate in Cr. Appeal (DB) No. 819 of 2008 and Mr. Pravin Kumar in Cr. Appeal (DB) No. 475 of 2009 and learned counsels for the State, Mr. Satish Kumar Keshri, Additional Public Prosecutor in Cr. Appeal (DB) No. 819 of 2008 and Mr. Sanjay Kumar Srivastava, Additional Public Prosecutor in Cr. Appeal (DB) No. 475 of 2009 and perused the materials brought on record including the First Information Report, framing of charge, evidence of eight prosecution witnesses, six prosecution exhibits, statement of the appellants recorded under Section 313 Cr.P.C., as well as the impugned judgment of conviction and order of sentence. This Court has taken judicial notice of the fact that the prosecution case

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is based upon the fardbeyan of the informant Mage Parv Bari (P.W.-4). While recording the fardbeyan of the informant, the informant has never claimed himself to be an eye-witness to the occurrence rather as per the fardbeyan, the informant along with his uncle Siddiu Bari and brother Duna Bari were going towards the culvert and saw four persons fleeing away and after proceeding further he saw one person lying on the road and has been identified as the dead body of his brother Turi Bari. The informant has stated in his fardbeyan that after seeing his brother, he went to the sasural of his brother but while deposing in the court as P.W. 4, the informant has categorically stated in paragraph-1 that while seeing the occurrence, he hide himself and after the occurrence he went to his house and informed about the occurrence to his mother at Mauda village. Such vital contradictions in the evidence of the informant coupled with the fact that the other persons present with informant have not been examined, this Court is of the view that informant is not an eye-witness to the occurrence. As per the First Information Report, the informant was along with his uncle Sidiu Bari and brother Duna Bari but both have not been examined in this case. The other prosecution witnesses namely Vishal Singh Kuntia, Bamia Khandait, Brajmohan Singh Kuntia and Sini Kuntia who have been examined as P.W.-1, P.W.-2, P.W.-3 and P.W.-5 have not supported the prosecution case and thus they have been declared hostile by the prosecution. Damodar Bari (P.W.-6) has admitted in paragraph-9 of his crossexamination that he has not seen the occurrence. As such, this Court is of the opinion that prosecution has miserably failed to prove the manner of occurrence and chain of circumstance is also not complete against the accused-appellants. There is no eye-witness to the occurrence, entire prosecution witnesses i.e. P.W. 1, P.W. 2, P.W. 3 and P.W. 5 have been declared hostile by the prosecution, though Sini Kuntia (P.W.-5) is the same girl regarding whom, it has been stated by the prosecution that deceased has teased her by wearing her sandle.

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15. Under the aforesaid circumstances, in absence of any material to prove the guilt of the accused persons and in absence of any motive, and lack of any legal evidence against the appellants, this Court is of the view that the appellants are entitled for the benefit of doubt.

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16. In the result, impugned judgment of conviction and order of sentence, both dated 22.02.2008, passed by learned Sessions Judge, West Singhbhum at Chaibasa, in Sessions Trial No. 121 of 2007 arising out of Tonto P.S. case no. 02 of 2007corresponding to G. R. No. 133 of 2007, is hereby set aside and the appellant of both the appeals are acquitted from the charge and conviction under Section 302/34 of the Indian Penal Code by extending benefit of doubt.

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17. Accordingly, both the criminal appeals are allowed.

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18. The appellant Jongal Singh Kuntia in Cr. Appeal (DB) No. 819 of 2008 is in custody, as such, he is directed to be released forthwith, if not wanted in any other case. So far the appellant Chere Singh Kuntia @ Hurdhup in Cr. Appeal (DB) No. 475 of 2009 is concerned, he is on bail, as such, he is discharged from the liability of his bail bonds.

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19. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.

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(Aparesh Kumar Singh, J.)

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(Kailash Prasad Deo, J.)

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Jharkhand High Court, Ranchi Dated the 16^th January 2019 Pallavi/R.S.

Jongol Singh Kuntia v. State of Jharkhand

Case brief

What is this about?

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Jongol Singh Kuntia v. State of Jharkhand

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