Munshi Tudu Vs State of Jharkhand

Heard learned counsel for appellants Ms. Neharika Majumdar as well as learned Additional Public Prosecutor appearing for the State Mr. Arup Kumar Dey.

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2. Present appeal is directed against the judgment and order of conviction and sentence dated 04.02.2008 passed by learned Sessions Judge, Sahebganj in Sessions Trial Case No. 60/06 for the offence under Section 304 (Part I) of the I.P.C. and under Section 4 of the Prevention of Witch (Daain) Act, 1999 whereby and whereunder the appellant has been held guilty and sentenced to undergo R.I. of seven years and further sentence to undergo six months R.I. for the offence under Section 4 Prevention of Witchcraft (Daain) Act, 1999. Both the sentences have been directed to run concurrently.

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FACTUAL MATRIX

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3. Factual matrix giving rise to this appeal is that on 11.04.2005 at about 07:00 PM Congress Tudu (informant) along with his wife Marang Kuru Basuki was going to the house of Hopan Murmu and as they reached near the house of Munshi Tudu (appellant), then the appellant armed with an axe started abusing to informant’s wife by calling her as Daain (Witch) who has played black magic on accused’s wife due to which she is ill hand and given repeated axe blows on Marang Kuri Basuki causing her death on the spot and fled away.

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The informant promptly lodged F.I.R. at Borio police station on 12.04.2005 at about 01:00 hours in the night which was registered as Borio P.S. Case No. 50 of 2005 for the offence under Section 302 of the I.P.C. and Section 5/6 of the Prevention of Witch (Daain) Act, 1999.

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4. Learned counsel for the appellant has vehemently argued that except the informant who is under inimical terms with the present appellant, none of the prosecution witnesses have corroborated the prosecution story. There are material contradictions as regards genesis and manner of occurrence. Admittedly, it was a dark night and the informant has stated that present appellant has given two axe blows on the head of his wife, but at the time of post-mortem examination, only one head injury was found extended to the ear of the deceased. All other prosecution witnesses have seen the dead body of the deceased but have been unable to prove the happening of the incident in their presence. It is further submitted that admittedly, the appellant immediately surrendered at the police station on the next day morning at about 08:15 A.M. dated 12.04.2005. It is alleged by the Investigating Officer (P.W.8) that the appellant has also produced the blood stained axe by which the murder was committed. The said axe was also sent for F.S.L. for

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chemical examination, but there is no whisper in the report that it was stained with human blood and that of the deceased. No finger impression of the appellant was found on the handle of the axe. Therefore, the weapon used in the incident has not conclusively been proved to be used by the appellant in causing death of the deceased. The blood group of the deceased has not been mentioned and the blood group found on the seized axe has also not been opined. The appellant has falsely been implicated in this case only on the basis of suspicion and previous enmity. It is further submitted that the appellant has never surrendered before the police or produced any blood stained axe allegedly used in commission of murder of the deceased. The original production-cum-seizure list has been withheld by the prosecution without offering any valid explanation. Similarly, original confessional statement of the appellant (Munshi Tudu) showing relevant part to be proved by the prosecution has also not been brought on record. The doctor who conducted the autopsy on the deceased and found single injury caused by sharp cutting weapon and as against it the prosecution has also not examined the doctor. The sole eye witness is the informant who has stated that several tangi blows was given to his wife in his presence. This fact also falsifies the testimony of this sole eye-witness. It is further submitted that the informant was earlier prosecuted in a criminal case instituted by father of the appellant in which he is on bail and only with a view of wrecking vengeance against the appellant, he has lodged this false case after killing his wife himself. It is further submitted that the appellant was arrested from his house by the police and at the instance of informant and his henchmen has been shown to have produced the blood stained tangi and thereafter, the story of confessional statement was made which is also fabricated. The learned trial court has failed to consider the evidence of

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defence witnesses examined in this case who have denied the happening of the occurrence as alleged by the prosecution. The prosecution has also failed to conclusively prove the guilt of the appellant beyond all reasonable doubts. The learned trial court has miserably failed to properly appreciate the material contradictions and glaring lacuna in the prosecution evidence while recording the guilt of the appellant. Therefore, impugned judgment and order of conviction and sentence of the appellant is liable to be set aside and this appeal may be allowed.

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5. On the other hand, learned A.P.P. appearing for the State has defended the impugned judgment and submitted that the learned trial court has very wisely and aptly considered the materials available on record and has rightly concluded about guilt of the appellant. It further submitted that there is no illegality or infirmity in the impugned judgment calling for any interference in this appeal which is devoid of merits and fit to be dismissed.

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6. For better appreciation of rival contentions of the parties, brief appraisal of evidence led by the prosecution is discussed here under:-

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The most important witness of the case is the informant (Congress Tudu) himself who has been examined as P.W.1 . According to his evidence, at about 06:00 PM, the informant along with his wife was going to the house of one Hopna and as soon as they reached near the house of Manju Tudu, the accused came and gave two axe blows one on the temple and another on the head of his wife by calling her daain (Witch) due to which his wife died on the spot.

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In his cross-examination, he has stated that he along with his wife was going to the house of Hopna for bringing a bottle. He further states that he was not drunken. His wife was just six to seven meters ahead of him when the accused murdered her by giving axe blows. He has also admitted that

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the father of the accused/appellant has also lodged a case in which he is on bail.

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P.W. 2 Suhagini Hembrom :- According to her evidence, the deceased went to the house of Hopna for bringing bottle and the house of Hopna is beside the house of the appellant. When the deceased was returning after taking the bottle, suddenly the appellant came out from his house and gave axe blows on her head, due to which she died.

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In her cross-examination, this witness admits that when she reached at place of occurrence, the informant and one Kanhai Tudu were there and Marang Kuri was lying dead. As such, this witness does not appear to be eye-witness of the occurrence.

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P.W. 3 Kanhai Murmu According to his evidence, the murder of the Marang Kuri Basuki was committed by the appellant (Munshi Tudu) in between 06:00 to 07:00 PM by assaulting on the left part of her head in front of Manju Tudu’s house due to which she died on the spot. He also admits that after committing murder, the appellant rushed to the police station with the weapon (Axe).

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In his cross-examination, he admits that his house is in front of the appellant’s house and the deceased had come to his house to meet his wife (Suhagini P.W.2). He further admits that when he reached at the place of occurrence after hearing commotion of the informant (Congress Tudu), he found Marang Kuri Basuki was lying dead. Therefore, this witness has also not seen the actual occurrence. He has also denied the suggestion that due to good relation with the informant and deceased, he is giving false statement against the accused.

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P.W. 4 Hopna Murmu who happens to be the Mukhiya of the village has been tendered by the prosecution.

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P.W. 5 Munshi Tudu son of Naro Tudu is also hearsay witness reached at

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the place of occurrence after hearing hulla in the village and seen the dead body.

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P.W. 6 Lakhin Soren has also been tendered by the prosecution.

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P.W. 7 Manjhi Tudu has also seen the dead body when he has returned from his duty.

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P.W. 8 S.I. Jogendra Murmu was the then officer-in-charge of Borio, police station. He has recorded the fardbeyan on the basis of which the formal F.I.R. of Borio P.S. Case No. 50/05 was registered for the offence under Section 302 of the I.P.C. and Section 5/6 of Witch (Daain) Practices Act, 1999 marked as Exhibit-2. He has also visited the place of occurrence which is situated in village Telo, Manjhi Tola near the house of the accused. The dead body was taken into custody and sent for post-mortem report. After preparing the inquest report, he has shown the Xerox copy of the post-mortem report marked as exhibit-X for identification. Further evidence of this witness is that on 12.04.2005 at about 08:15 AM, the accused surrendered at the police station and also produced blood stained axe by confessing his guilt. He has also produced the axe which is marked as material exhibit-1. The seized axe was also sent to F.S.L. Ranchi and after chemical examination, it was found stained with blood. The F.S.L. report is marked as Exhibit-3. He has further proved that the post-mortem report of the deceased which was conducted by Dr. L.N. Prasad, Sadar Hospital, Sahebganj and is marked as exhibit-4. According to his evidence, there is a seizure list mentioned at Para 12, Page 14 and 15 of the case diary, which was prepared after the surrendered of the axe by the accused. Out of above page only page no.14 is marked has been exhibit-5. After completion of investigation, he has submitted charge-sheet against the accused.

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In his cross-examination, this witness states that Dr. L.N. Prasad is still alive and in the post-mortem report, two injuries are mentioned and he has denied that only one injury is mentioned in the post-mortem report. He has not received the report of blood group lying on the axe was of deceased. This witness further admits that the seized axe was sent to F.S.L., Ranchi and in the forensic report it is written as the axe was received on 02.05.2005. Between 12.04.2005 to 02.05.2005, the seized axe was kept in the Malkhana of Police Station whose in-charge is he himself and the axe was returned from the F.S.L. after 20.02.2007, but he cannot tell the exact date. He also admits that the seized axe was produced before the Court on the order of the Court. At the time of examination of P.W.1 (Congress Tudu), he has denied the suggestion of defence that no axe was produced by the accused nor he has made confessional statement and he has conducted the investigation under the influence of the informant and other witnesses. His investigation is defective.

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7. Three defence witnesses have also been examined in this case by the accused:-

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D.W.1 Lakhan Murmu has stated that after the occurrence, there was no rumour in the village that Munshi Tudu has killed the wife of the informant.

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D.W.2 Suhagini Soren has also stated that at the time of occurrence, there was darkness of evening and Congress Tudu has disclosed him that he has also not seen assailant of his wife and has not disclosed the name of accused to any of the villagers.

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D.W.3 Manju Tudu is the father of the accused. He has also stated that at the time of occurrence, there was darkness of night and after death of (Marang Basuki) deceased, her husband was also interrogated, but he did not disclose the name of any accused and later on Munshi Tudu has been

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falsely implicated. He has denied the suggestion of defence that the accused was chased, then he took the shelter at police station and confessed his guilt. He has also stated that is son has been falsely implicated in this case.

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8 . From the overall discussion of the prosecution story as well as evidence of witnesses available on record, it is crystal clear that except the informant (Congress Tudu), none of the witnesses of facts have claimed to have seen the occurrence from their own eyes and also failed to assert that they have seen the accused while fleeing with axe after commission of the offence. The investigating officer has also not produced the production-cum-seizure list of the axe allegedly seized in this case which was found stained with blood of the deceased. The confessional statement of accused has no legal value in view of the fact that nothing incriminating has been recovered from the accused on the strength of his confessional statement. Mere admission of guilt that he has committed murder of the deceased recorded by the police cannot be attached any importance. Moreover, the alleged confession recorded by the police officer has also not been brought on record.

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9 . In view of the above spectrum of relevant facts, it is quite obvious that the whole prosecution story is based upon solitary testimony of informant (Congress Tudu). This is a case of murder and admittedly there was enmity between the parties, but the prosecution has not disclosed any motive behind the occurrence except the fact that deceased was called Daain by the accused due to frequent illness of his wife. This fact has also not been proved by any cogent witness.

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10 . Now, the testimony of this solitary eye-witness (Congress Tudu) requires to be appreciated in strict yardstick to test the veracity of this witness. In the F.I.R. P.W.1 (Congress Tudu) has stated that for some urgent reason, he

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along with his wife was going to the house of Hopna Hembrom (P.W.4) at about 07:00 PM on 11.04.2005 and reached near the house of Munshi Tudu (accused/convict), then he came out with an axe and indiscriminately assaulted the deceased by calling her daain due to which Marang Kuri Basuki (deceased) fell down and died on the spot. He raised alarm Bachao-Bachao fleeing towards his home and the accused also fled away towards the east side along with Tangi.

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In his evidence before the court, the informant (P.W.1) has testified that on the date of occurrence, when he reached near the house of accused, then his wife was assaulted by axe on her left temple and head by tangi caused by accused and she died on the spot. This witness has admittedly stated in F.I.R. that after the occurrence, he rushed towards his house raising alarm and the accused fled away towards east side, but in his cross-examination, he admits that it was a dark night and he had gone at the house of Hopna Tudu to bring some bottle of liquor. The house of accused is adjacent to the house Hopna Tudu. He stayed in the house of Hopna Tudu and came out after bringing bottles along with his wife. His wife was about 6 to 7 meters ahead to him when the occurrence took place. He also admits that it was dark night. He raised alarm, but the witnesses Suhagini Hembrom (P.W.2) and Kanhai Murmu (P.W.3), the husband of P.W.2, came after half an hour. He also admits that a criminal case has been lodged by father of the accused against him in which he is on bail. It is here to be noticed that Hopna Murmu (P.W.4) is the village Mukhiya, but has been tendered by the prosecution which means he has either no knowledge about the occurrence or assume to be hostile by the prosecution. Therefore, very genesis of the case that the informant along with his wife went to the house of Hopna Murmu and while returning there from, the incident took place proves to be

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false and fabricated story. It is also apparent that the house of P.W.2 (Suhagini Hembrom) and Hopna Murmu (P.W.4) is just adjacent to the place of occurrence and other witnesses P.W.6 and P.W. 7 are also neighbours who have not corroborated the testimony of P.W.1. Therefore, the informant has given colourable evidence not only as regards the genesis of occurrence, but also as regards of manner of occurrence. In the F.I.R., he states that the deceased was indiscriminately assaulted by axe on her head by the accused. In his evidence, he states that the accused has given twice blow on right and left part of head of the deceased, but in the post mortem report of the deceased which has not been proved by the concerned Doctor, but marked as exhibit by the investigating officer clearly shows that there was only one injury (incised wound on middle portion of head continued up to left ear) caused by sharp cutting weapon, heavy type. In the instant case, exhibit-5 is the seizure list mentioned in the case diary at Para 12 of Page 14 and no separate seizure list has been proved which shows that the Munshi Tudu has produced blood stained axe, the handle of which was 26½ inch long the total length of axe was 8 inch and its edge was about 3^1/2 inch. Here, in this case as per post-mortem report there is only one sharp cut injury the length of which is 8 inch. Therefore, it is not possible to cause such type of injury by a tangi edge of which is only 3½ inch. The tangi (axe) alleged to be proved as material exhibit in this case. On production of accused does not contain finger print of the accused and as per the F.S.L. report, the axe was measured as 8½ inch in length, 3½ inch width towards sharp end and 2 inch width towards the handle end. It bore reddish brown stains over small area. It is further opined that Serological report on origin and blood group would follow, but no supplementary report of Serological Department as regards origin and blood group has been

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proved by the prosecution. Therefore, it is absolutely doubtful as to the alleged axe seized in this case was ever used in commission of murder of the deceased. Even if it is assumed that the tangi produced by the accused, it cannot be concluded that it was used in commission of murder of the deceased.

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11 . In view of the above glaring inconsistencies and infirmities as well as contradictions appearing in the evidence of P.W.1 who happens to be sole eye-witness of the occurrence, it cannot safely be concluded that the appellant was author of the alleged murder of the deceased. The learned trial court has miserably failed to properly apprise and appreciate the overall aspect of the case and ignored the above noted material, contradictions and discrepancies appearing in the prosecution evidence and arrived at wrong conclusion about the guilt of the accused.

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12 . In my considered view, the prosecution has miserably failed to prove the charge levelled against the appellant. The whole prosecution story is shrouded with doubt. Therefore, the appellant deserves the benefit of doubt. Accordingly, impugned order of conviction and sentence of appellant is hereby set aside and this appeal is allowed and the appellant is acquitted from the charges levelled against him.

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