SONA RAM MAHLI Vs. STATE OF BIHAR

JUDGEMENT

(1.) APPELLANTS namely, Sona Ram Mahli (Cr. Appeal No. 130 of 1998), Manki Munda, Thakur Munda, Harinath Singh Munda, Behru Munda, Fulari Munda, Ram Charan Kumhar, Gholtu Kumhar and Feklu Munda (Cr. Appeal No. 157 of 1997), Inderdeo Mahto (Cr. Appeal No. 158 of 1997, Budhu Mahli (Cr. Appeal No. 177 of 1997) and Behra Munda, Lulari Munda, Thakur Munda and Hari Nath Munda @ Hari Nath Singh Munda were convicted by the 5th Additional Judicial Commissioner, Ranchi for the offences under Sections 364, 302, 201 and 34 of the Indian Penal Code and was sentenced to undergo imprisonment for life for the offence under Sections 364 and 302 IPC and three years for the offence under Section 201 IPC vide sessions trial No. 216 of 1991/T.R. No. 24 of 1991. It appears however that Cr. Appeal No. 183 of 1997 (R) has been preferred by four appellants namely, Behru Munda, Fulari Munda, Thakur Munda and Hari Nath Munda @ Hari Nath Singh Munda, white memorandum of appeal of Cr. Appeal No. 157 of 1997 (R) contains also the names of the aforesaid four appellants along with others. Considering the above, names of the above named appellants, namely, Behru Munda, Fulari Munda, Thakur Munda and Hari Nath Munda @ Hari Nath Singh Munda are deleted from Cr. Appeal No. 157 of 1997 (R)

(2.) FACTS of the case in brief are that Jawahar Mian (deceased) was found missing from his house situated at village Hesadih within the P.S. Silli. District Ranchi, from the late evening of 5.11.1990. Six days later i.e. on 11.11.1990 in the afternoon at about 1.30 PM, Noor Mohammad (PW7) the son of Jawahar Mian lodged information at the police station stating that on the previous day i.e. on 10.11.1990 he was informed that his father was missing since the evening of 5.11.1990. On this information, the informant along with his cousin Md. Azim Mian went to the house of his father at village Hesadih where his father's tenant Sagri Majhian @ Bangalin revealed on enquiry that her land lord Jawahar Mian left the house to sleep at Kokar Mahalli Tola carrying cash of Rs. 250/ -besides documents pertaining to his lands. A few moments later, she heard alarms from the side of the house of co -villager Teju Gohrai. She went there and saw that Inder Mahto, Guddu Munda, Ram Charan Kumhar, Manki Munda, Thakur Munda, three sons of Gofula Mahto, Sona Ram Mahli, Budhu Mahali, Phulari Munda, Nand Lal Mahato, Gholtu Kumhar and Kalwari Munda were assaulting Jawahar Mian and dragging him away towards the forest. Accusing the appellants of having kidnapped his father and expressing apprehension of danger to the life of the victim, the informant has claimed land dispute to be the motive for the occurrence.

(3.) ASSAILING the impugned judgment of conviction and sentence, learned Counsel appearing for the appellants have commonly advanced several grounds, laying emphasis on the ground that the learned trial court has committed serious error leading to miscarriage of justice by placing implicit reliance upon the testimony of PW10 and has failed to appreciate the evidences on record in proper perspective. Elaborating the statement, learned Counsel explains that before relying on the testimony of PW10 who claims herself to be the eye witness, the trial court should have ensured as to whether PW10 is the same lady whom the informant (PW7) in his F.I.R. and in his deposition and PW6 in his evidence has referred to. To demonstrate, learned Counsel advert to the F.I.R. and the charge sheet where the lady named as Sagri Majhian has been described by the informant as being the wife of Masudan Choudhary, a tenant living in the house of the informant's father Jawahar Mian, and proceed to contrast the same with the evidence of PW10 who claims herself to be the wife of Konua Munda and the evidence of PW 11 Masudan Choudhary who denies to have any wife by the name of Sagri Majhian or even of his living as a tenant in the house of Jawahar Mian. Learned Counsel advert next to the evidence of PW10 and by comparing the same with the evidence of the informant (PW7) and that of PW6, point out certain inconsistencies which purportedly suggest that PW10 is not the lady from whom the informant claims to have obtained the information on which his F.I.R. is based and neither are PW7 and PW6 the persons to whom PW10 claims to have narrated the occurrence. Learned Counsel further point out from the evidence of PW10 that her narration of the occurrence wherein she insists that she had seen that the accused persons had assaulted and killed Jawahar Mian in front of the house of co -villager Teju Gohrai, and dragged the dead body of the victim from there towards the forest, the narration appearing in the F.I.R. is in total contradiction to her claim and neither does the description of the place of occurrence as given by the investigating officer (PW12) tally with the description given by her. Learned Counsel raise serious doubt regarding the veracity of the lady's evidence by adverting to the fact that she has not explained as to why she did not promptly inform about the occurrence either to the son's of Jawahar Mian or to the police on 5.11.1990 or even on the next day and under what circumstances she had voluntarily surfaced before the investigating officer after over eight days on 13.11.1990. Learned Counsel contend that the unexplained delay leads to the inference that the entire story of the prosecution is cooked up and PW10 is a fictitious person planted as an eye witness by members of the community to which the informant and his father belong. The next ground on which equal emphasis has been placed by the appellants is that there is no clear and cogent evidence adduced by the prosecution to confirm that the skeletal bones recovered and seized in this case, are the skeletal remains of Jawahar Mian. Referring in this context to the evidence of PW7 read with the evidence of the investigating officer (PW 12) and that of the inquest witnesses (PW5 and PW6) as also that of the doctor (PW8), learned Counsel point out that according to the inquest and seizure witnesses, the skeletal bones without skull was recovered from within the Jungle. PW7 claims to have identified the headless dead body to be that of his father. His identification was on the basis of the clothes, which was purportedly recovered by the side of the dead body and also on the basis of tattoo marks which he claims to have seen on one of the legs of the dead body. Learned Counsel submit further that this claim of identification made by the informant cannot be relied upon, firstly because he was not expected to have seen the clothes which his father had worn prior to his disappearance, for the simple reason that he was living at a far off distance from the house of his father and secondly, because neither the inquest witnesses nor the police officer who had prepared the inquest report, have affirmed that they had seen any tattoo marks on any of the legs of the dead body. Further more, even the doctor who had examined the skeletal bones, does not affirm that' he had observed any tattoo mark on any of the legs.