Jharkhand High Court
Magan Munda vs The State Of Bihar (Now Jharkhand) on 22 July, 2025
Author: Rajesh Kumar
Bench: Rajesh Kumar
2025:JHHC:20118-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 111 of 1999
(Against the Impugned order of conviction dated 12.04.1999 and
Order of sentence dated 15.04.1999, passed by second Additional
Judicial Commissioner Khunti in Sessions Trial No.341 of 1996)
1. Magan Munda, son of Late Pahan Munda.
2. Lobin Munda, son of Late Lodo Munda
Residents of Village-Siridih, Gusruhtola, P.S. Sonahatu, District-
Ranchi.
... ... Appellants
Versus
The State of Bihar (now Jharkhand) ... ...Respondent
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CORAM: HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJESH KUMAR
——-
For the Appellants : Mr. B.M. Tripathi, Sr. Advocate
: Ms. Nutan Sharma, Advocate
: Mr. Naveen Jaiswal, Advocate
For the Respondent : Mr. Saket Kumar, APP
—————————-
CAV on 24 June, 2025 Pronounced on 22nd July, 2025
th
Per Sujit Narayan Prasad, A.C.J.:
1. The instant appeal under Sections 374(2) of the Code of Criminal
Procedure, 1973 is directed against the judgment of conviction
dated 12.04.1999 and order of sentence dated 15.04.1999 passed
by the learned Second Additional Judicial Commissioner, Khunti in
S.T. No. 341/96 whereby and whereunder, the appellants named
above together with one Pahan Munda (since dead after
judgment) have been convicted under Sections 452, 380, 364, 427
and 147 of the Indian Penal Code and have been sentenced to
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2025:JHHC:20118-DBundergo RI for life under Section 364 IPC, RI for 7 years under
Section 452 IPC, RI for 3 years under Section 380 IPC, RI for two
years under Section 427 IPC and RI for 2 years only under Section
147 IPC, and directed the above sentences to run concurrently.
2. At the outset it needs to refer herein that the initially the instant
appeal had been preferred by the 12 accuse/appellants but during
pendency of the instant appeal except Appellant no.9 Magan
Munda and Appellant No.11 Lobin Munda the other 10 appellant
died as such the instant appeal was abated against the said 10
appellants vide order dated 24.11.2023 and 20.12.2023.
Factual Matrix
3. The brief facts of the case as per the memo of appeal is being
referred herein which reads as under:
4. In the presence of Chaman Singh Munda (P.W. 8), Rukmani Devi
P.W.7 (informant) had given her fardbeyan recorded on
27.06.1996 and on the basis of which the FIR(Ext.5) of the instant
case was instituted, alleging therein that the informant was inside
the house with her husband namely, Chaitan Singh Munda on
26.06.1994.
5. In the morning hours, at about 7 A.M., 40 to 45 persons together
along with the appellants and Gobra Munda, Jagan Munda came
and surrounded her house and started shouting.
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6. The mob broke open the main door of the house and entered into
the house and caught hold of her husband-Chaitan Singh Munda.
The unlawful assembly dragged out her husband from the house
and also took away property documents and ornaments of gold
and silver. They also damaged the chhappar of the house. The mob
took away her husband and subsequently, she came to know that
few other persons namely, Radha Munda, Lugna Munda, Bhola
Munda, Budhu Munda, Ghurna Munda and Mansa Munda were
also taken away by the mob.
7. Altogether the mob took away the Informant’s husband and six
others towards the jungle and the miscreants had severely
assaulted her husband and other persons. It was alleged that the
occurrence has taken place due to a long-standing land dispute
between her husband at one hand and accused Parasnath Munda
and Lobin Munda on the other side. She suspected that her
husband was taken away for the purpose for committing murder
in the jungle.
8. On the basis of the aforesaid, FIR being Sonahatu P.S. Case No. 45
of 1994 was instituted and the police took up investigation into
the case and accordingly chargesheet under Sections 147, 148,
149, 323, 324, 427, 380 and 364 of the IPC was submitted against
16 accused persons including the surviving appellants.
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9. Out of the accused persons, Gobra Munda and Jagan Munda had
died during the pendency of the trial, whereas accused Jaipal
Munda evaded the trial by absconding.
10. The prosecution in order to prove the case has adduced evidence,
both documentary and oral whereas the defence case is total
denial of the involvement of the accused persons in the case.
11. The Trial Court, after recording the evidence of witnesses,
examination-in-chief and cross-examination, recorded the
statement of the accused persons and found the charges levelled
against the appellants proved beyond all reasonable doubts.
12. Accordingly, the appellants have been convicted under Sections
452, 380, 364, 427 and 147 of the Indian Penal Code and have
been sentenced to undergo RI for life under Section 364 IPC, RI for
7 years under Section 452 IPC, RI for 3 years under Section 380
IPC, RI for two years under Section 427 IPC and RI for 2 years only
under Section 147 IPC, and directed the above sentences to run
concurrently, against the aforesaid order of conviction and
sentence the present appeal has been filed.
Arguments advanced by the learned counsel appearing for the
appellants:
13. The Learned counsel appearing for the appellant has assailed the
impugned judgment of conviction and order of sentence on the
following grounds:
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(i) Prosecution has miserably failed in proving the charge
leveled against the appellants and learned trial court has
committed error of law in evaluating and analyzing the
evidence in coming to the conclusion.
(ii) No independent witness(villagers) had been examined by
the prosecution to corroborate the story of the Informant.
Especially when all other witness from P. Ws.1 to 6 are
partisan and highly interested being the relatives and
agnates of the informant party.
(iii) The learned Trial Court had not appreciated the fact that
the entire evidence of P. Ws. 1 to 8 in the backdrop of
admitted land dispute and long-standing litigation between
the informant party at one hand and the appellants party
on the other hand.
(iv) In the instant trial the prosecution has not been able to
prove the genesis situs of the occurrence and the items of
offence by not examining the Investigating Officer of this
case and the prosecution has not offered any plausible
explanation whatsoever for not examining the
Investigating Officer of the case. The non-examination of
the I.Ο. has caused serious prejudice to the defence of the
appellants and the entire scenario of the occurrence had
remained eclipsed due to the absence of this important
witness.
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(v) The learned Trial Court was swayed by sentiments while
deciding the present case and had taken help of surmises
and conjecture. It has been nobody’s case that the husband
of informant P. W. 7 was taken by the mob together with P.
W. 1 to 6 with a purpose of committing their murder. When
the husband of P.W. 7 was detained by the mob and P. Ws.
1 to 6 were freed, none of the aforesaid witnesses P.Ws.1 to
6 had deposed before the Court that the mob had detained
Informant’s husband to commit his murder. Only on one
circumstance that the husband of P. W. 7 was last seen with
the appellants and the mob on the date of occurrence at the
hillock, does not conclusively prove that he was
subsequently done to death as because since that date he
did not return home. The only circumstances without any
Informant’s further evidence that the husband was actually
done to death or was subjected to further assault by the
mob, it could not be said that he was kidnapped for murder
and hence, the appellants deserve to be acquitted from
charges under section 364 Indian Penal Code.
(vi) The learned Trial Court had approached the entire case on
the basis of the allegations which are omnibus in nature,
there is no evidence to show the individual acts of the
appellants in course of the occurrence. There is also no
evidence to indicate that the mob of 80 persons including
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the appellants were sharing the common object. Therefore,
the learned Trial Court has committed serious error in law
in holding that all the appellants were sharing common
object for committing the offences as alleged by the
prosecution witnesses.
(vii) The witnesses examined by the prosecution numbering 1
to 6 have contradicted themselves in material particulars
such as in the matter of giving details about the time and
place of occurrence.
(viii) The appellants were not properly been examined under
section 313 of the Code of Criminal Procedure as the
circumstances and evidence which have been utilised
against them have not properly been put to them causing
much prejudice to their defence as they have been denied
the opportunity of explaining those evidence and
circumstances against them.
(ix) Learned counsel for the appellants, in the backdrop of
aforesaid grounds, has submitted that the judgment of
conviction and order of sentence since is not based upon
cogent evidence and as such it cannot be said that the
prosecution has been able to prove the charge beyond all
reasonable doubt.
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Arguments advanced by the learned Additional Public
Prosecutor appearing for the State:
14. Per Contra, learned Additional Public Prosecutor appearing on
behalf of State has defended the impugned judgment of conviction
and order of sentence taking the ground that the impugned
judgment has been passed based upon the testimony of witnesses
who have supported the prosecution version.
15. It has been submitted that admittedly there is contradiction
among the testimony of the eyewitness but the said contradiction
is minor in nature, therefore it has no bearing upon the
prosecution story.
16. Further P.W.1 to 6 has fully substantiated the case of the
prosecution therefore it is not necessary for the prosecution to
examine any independent witness in order to prove the case.
Further it is settled position of law that non-examination of
independent witnesses is not always hamper the prosecution case.
17. Admittedly, herein the Investigating officer has not been examined
but the genesis of the said occurrence has fully been narrated by
the P.W.1 to 6 as also by the informant, therefore non examination
of the I.O. will no way eroded the credibility of the prosecution
story.
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18. Learned State counsel based upon the aforesaid ground has
submitted that the prosecution has been able to prove the guilt of
the appellants beyond all reasonable doubt.
Analysis:
19. In the backdrop of the aforesaid factual aspect and contention of
the learned counsel for the parties this Court is now proceeding to
consider the testimonies of witnesses which have been recorded
by learned Trial Court. The learned Trial Court during the trial has
altogether examined 10 witnesses.
20. PW 1 is Budhu Munda, he had stated in his examination in chief
that the incident took place on Sunday. It was seven in the
morning. He heard the sound of a drum being played. He then
went out to see what was happening and Motha, Mansa, Gurua,
Radha, Khagdu had also gone there before him. Chaitan was in his
thatched house and his wife was also in the same house. At the
same time, fifty-sixty people came to Chaitan Master’s thatched
house from the river side and surrounded both houses of Chaitan,
the building and the mud house and broke the door of the
thatched house and also broke the thatched house. When Chaitan
Master was found in the house, they caught him, tied him up and
took him out. Chaitan was tied up by Dakhin Saw Munda. After
that, those people caught them too and took them away to Tungri.
They took Chaitan there and kept him but let them return saying
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that “you all should go away or else I will kill you”. From that time
till today Chaitan is missing.
21. In that crowd he and others recognized Botha Munda, the one who
had taken them, among them he and others recognized Gotha,
Vibrun, Jagar, Tui, Jeevan, Jaipal, Kalevar Munda, Mahavir Munda,
Nakul Munda, Bodha Munda, Paras Nag Munda, Lobia Munda,
Pahan Munda, Magan Munda.
22. He identified Kalevar Munda and Mahavir Munda in the court. He
stated that if present, he can recognise all the above-mentioned
persons also.
23. In the cross examination, he stated that accused Paresh, Govind
and Lobin have had a land dispute with Chaitan and his brothers
for the last ten years. Also that Chaitan and Doman’s son Bhunesar
had no differences with each other regarding Rukmuni but they
had a dispute over land.
24. He stated in para 11 that He don’t remember on which day the
police inspector had come. Perhaps the police inspector had come
three or four days after the incident. The police inspector had
questioned them a little and they had told the police inspector
about their injuries. Then the police inspector took them to
hospital for their treatment.
25. PW 2 is Bhotha Munda. He had stated in his examination in chief
that it was Sunday. It was the time of Vinsar (Morning). At that
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time, a drum was played in his village. Hearing the drum, the
villagers gathered around Chaitan’s house. four or five people
were there. Their names were Motha, Krishna, Gurua, Rajan,
Budhu, Chaitan Master, his son-in-law, Munsa Munda. They were
just chatting when a lot of people came and surrounded them.
There were about 80 people. He recognized some people were
from his village namely Pahan Munda, Magan Munda, Pareshnath
Munda, Lobiya Munda, Bodh Munda, Nakul Munda, Kalevar
Munda, Mahavir Munda, Jagarnath Munda, Jag Jeevan Munda,
Bisam Munda, Tui Munda, Gobra Munda and Dakhin Sai from
Pusna Village was also there. These people had tang, farsa, arrow
and bow in their hands. Later, to save their lives, he along with
others entered Chaitan’s building and Chaitan entered his Khapda
house. The accused took out all the people who were hiding in the
building and tied them up. Then they entered the khapda house
and took out Chaitan from the house by hanging him and tied him
up. After that, the accused took them to Lachhan Toli Dhungri
Dhara. There, they have beaten them badly. The said accused
persons said that Chaitan is a literate teacher so they would not let
him go. They let them go but did not leave Chaitan. He returned
home. Chaitan has not returned to the village till date. He also
stated that there was a land case going on between Chaitan and
accused. He identified Kalevar and Mahavir in the court. He also
said that he could have recognised even others who were there
that day if they were present in the court.
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26. In the cross examination, he stated that the accused took them to
tori dungri. In the route of this there is house of sixteen seventeen
people. The people of that houses are Ramkrishna, Sambat Munda,
Doro Munda, Etwa Muda, Horo Munda, etc. These people had
stopped accused persons. But accused did not listen. When
accused persons took them to Tongri stream it was ten o’clock. By
eleven o’clock accused persons had released them. After that he
and others came home. They were injured. They had injuries on
head and back. They had shown their injuries to the doctor. All of
them had not been able to walk so they had shown it to the doctor
the next day.
27. He stated in para 10 that When he came home after the incident,
he did not inform the watchman about the incident. He told all his
family members about the incident. In Para-14, he stated that the
Inspector came on the day of the incident. The inspector took his
statement at Chaitan’s house that day. The statements of all those
people who were later released were taken there on the same day.
28. PW 3 is Kishua alias Luguru Munda, he stated in his
examination in chief that it was Sunday. It had been three years
since then. The time was before sunrise. He heard that a meeting
was going on, so he left his house and went to Master Chaitan’s
house.
29. Radha Krishna, Motha, Gurua, Mansa all gathered there and were
talking. Then some people came. They were Pahan, Magan, Labiya,
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Pos, Nakul, Bad, Kaleva, Mahavir, Jaga, Jagjivan, Jaipal, Vishray,
Tudu, Gaura, Lakhinder, Dakhini Saw. These people came and
surrounded them. Then he with others entered the building. That
building belonged to Master Chaitan. Chaitan was in his mud
house. The accused persons completely ruined Chaitan’s mud
house. The accused persons dragged him out of the building. He
doesn’t know who else was dragged out. Chaitan too was dragged
out of his mud house by the accused persons. His hands were tied
with a cloth and he was being beaten. The accused person tied all
of them and took them to Lakhan Tola Dhungri and there also the
accused beat them badly. Then they let them go. But they didn’t
let Master Chaitan go. Chaitan hasn’t come back to the village till
today.
30. He also stated in para 3 that in his village there is no one called
Krishna Munda, Paresh Kushal Munda. He identified kaleshar in
the court and stated that he would have recognised other accused
persons too if they were present that day.
31. In the cross examination, he stated that A civil suit was going on
between Lodo Paser, Jehla and Etwa etc. This civil suit is currently
going on in the High Court. This suit is going on for a long time. He
also stated in para 8 that both parties belonged to the same family.
It was this Ram Krishna who had filed a criminal case against
these accused for cutting paddy. This case is still going on. In Para-
17, he also stated that after coming home, he told everything to his
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parents and wife. He told everything to Radha, Moth, Guruva. He
told everything to Chaitan’s brother and Chaitan’s wife. He stated
in para 18 that When he was being taken to Lachhan Tola, no one
saw them is the way. When he along with others returned from
Lachhan Tola, he did not tell anything to anyone on the way.
32. In para 21 he stated that the police inspector came on the day of
the incident. The police inspector came in the morning at about 9
A.M. The police inspector took him to the police station and
interrogated there. Everyone was interrogated at the police
station. He stated that Chamar Singh Munda has come to the court
today. He had brought us on the last date also. Chamar Singh
Munda is the father-in-law of Chaitan Master who lives in
Remadih. It is not that he has not seen anything. It is not true that
he has given false testimony on the instructions of Chamar Singh.
33. PW 4 is Gurua Munda. He stated in his examination in chief that
it was Sunday. It has been happened three years ago. It was
around 8 or 9 A.M in the morning, he was on the road, then he
heard the drum playing. He had heard the sound in the early
morning. The drum was being played in the nearby houses. They
sat on the road. After that they entered Chaitan’s building. He,
Bhokta, Radha, Rugad, Mansa, Budhu entered the building and
Chaitan entered his kachha house. After that many people came,
among whom I recognized Pahan, Mohan, Naveen, Paresh, Bodh,
Nakul, Kalevar, Mahavir, Jagarnath, Jeevan, Jaipal, Dui, Visaya,
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Lakhiya, Gobra, Dakhin Saw. These people had Lathi in their
hands. These people had beaten them forcefully. They have beaten
Bhokta, Rana, Budhu, Mansa, Chaitan. They have beaten him too.
The accused persons after beating them took them to the east.
After that accused persons let them go but did not release Chaitan.
Chaitan told them to wait, then they stopped but when accused
persons threatened them, they left Chaitan and went away.
Chaitan has not come back till date.
34. He recognized accused Bodha, Kaleshwar and Jagjivan in the court.
He also stated that the other people of Accused if they have been
there, he would have recognized them also.
35. In the cross examination he stated in para 6 that the police came
to the village on the same day. The police came to the village at 12
noon. They told the inspector everything. He got a severe injury on
his back. He even showed the injury to the police inspector. In
para 10, he stated that it is not true that he had told the inspector
that after being released they hide in the jungle in the whole night.
They had not even told the police that as the police was raiding the
jungle, so they came to know about it in the morning, then they
went to the police and gave a statement the next day. In para 12
he stated that Radha uncle had earlier filed a case against this
accused person for cutting paddy. He stated that it is not true that
he gave false testimony on the advice of his uncles.
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36. PW 5 is Radha Nath Munda. He stated in his examination in chief
that it was Sunday. He was at home that day. In the morning the
drum was being played. Near Paresh Nath’s house. They all
gathered on the road. He, Krishna Munda, Bhotha Munda, Mansa
Munda, Chaitan Munda and all our agnates gathered and started to
find out why the drum was being played. By then these people
came and surrounded their village, so they all went into their
homes. I, Krishna Munda, Botha Munda, Gurua Munda, Mansa
Munda all went into Chaitan Master’s building. Chaitan Master
went into his kachha house. After that Pahan Munda, Mangan
Munda, Paresh Nath Munda, Lohraya Munda, Nakul Munda,
Kalesar Munda, Mahvir Munda, Jagnivan Munda, Visay Munda,
Govar Munda, Dakshin Saw Munda and many other people
entered the building and took them out. These people have beat all
of them. They also have beaten Chaitan Master and took him out.
After that the accused persons brought all of them and Chaitan
across the river. They then let them go. But they didn’t let Chaitan
go. Chaitan hasn’t returned to the village till date. He recognised
Kaleshwar Muda, Jeevan Munda and Botha Munda in the court. He
stated that he can also recognise even those accused who were not
present in the court that day.
37. In the cross examination, he stated that Chaitan Master used to
work in Namkum and lived there but used to come home on
holidays. His wife Rukmini used to stay at home. Chaitan’s younger
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brother’s name is Jangal and they lived in the same house with
Jangal and his family but Chaitan lived separately from Jangal. In
Jangal’s family, Jangal, his wife, his daughter, Karmi Kumari and
his son all lived together. Chaitan’s wife, son and daughter were all
at home at that time. Chaitan’s son is not old enough but he is
young and studies in class five. Karmi was about ten years old and
Jangal has died. It has been four years since he died. The day of the
incident, Chaitan was at home with his family. Chaitan has two
houses. One is a building house and the other is a thatched house.
The building house has no cast roof. He knows Maheshwar, he
visits Chaitan’s house. He used to work in Chaitan’s house. He was
working there a year before the incident. He still works there.
Maheshwar is not married.
38. In para 8 he stated that in Tongri also they were beaten up by the
accused persons. They have beaten them with Lathi and hit them
on the back. No blood came out. First, they hit Motha. The blood
oozing out from head injury. After that accused told them to run.
Then they ran away from there. Some people returned home and
some stayed in Ada Tongri on the other side of the Koja river. He
had returned home. He came home at ten o’clock in the day. He
stated that after coming home he did not tell anyone about the
incident. Not even Chaitan’s wife or brother. He told his wife. He
did not tell the watchman, the sarpanch. He did not even go to the
police station to inform them. In para 11, he stated that the Police
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came on Sunday itself. They came around 12 o’clock. He did not go
and tell anything to the inspector. Chaitan was his elder brother.
His farm is separate from theirs. Shiv Bahadur and Prakash are
their agnates. Chaitan, Shiv Bahadur and Prakash all live in the
same place. When the accused persons were taking them away,
they were at home with their families, but he cannot tell whether
they saw accused taking them away or not. Samvat, Dom,
Budhram, Lukin, etc. saw accused taking them away. No one from
Lachhan Tola saw them. No one from Gitilandih saw them because
that village is far away, he cannot say who else saw them. He did
not show the police the place of incident at Dugri. The police took
his statement. He doesn’t remember the time. The police
interrogated us on the road three days after the incident.
39. In para 14 he stated that it is not that he had told the Inspector
that they were beaten up and left at Tungri at 10 A.M. in the day,
rather he had told the police officer that the accused persons left
us at 10 A.M. in the day. He had told the Inspector that he
remained hidden in the jungle the entire night and the day out of
fear. And when he came to know that the police are conducting a
raid, then he came out of Jungle and gave his statement. He stated
that he had filed a case of theft against these accused persons two
years before the incident. The accused were acquitted in that case.
There was no fight between Pares and Chaitan. It is not that due
to old enmity he has given false testimony against the accused.
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40. PW 6 is Mansa Munda. He has stated in his examination in chief
that it was Sunday morning time. He was going to Ghuslu Tola to
bring Cow, when he reached near Chaitan Master’s house, he saw
five men sitting, they are Motha, Gurua, Lugru, Radha, Budhu and
Chaitan Master. At the same time, people came from the east. He
doesn’t know who all came, but a lot of people had come. They
created a ruckus and have beaten them. They beat me too. He was
hiding in Chaitan’s house. After beating him up, they took him to
the south and later they left him outside the village. What else
happened? He doesn’t know what happened after that. Chaitan is
not in the village right now. Pahan, Jangal, Logiya, Malek,
Mahaveer, Paresh, etc were the people who were there at the time
of incident.
41. He recognised Kalewar in court. In the further examination by
defence he stated in para 8 that about 4 years ago on 26.06.94 he
was not in Ghusludih village nor did he saw any incident in that
village. He doesn’t know anything about this case. No police officer
has ever questioned him.
42. PW 7 is Rukmani Devi. She is the wife of Chaitan and informant
of the case. She stated that it was Sunday, 26.06.94. It was four
o’clock in the morning when the drum was played. At that time,
she was in her mud house. There was a thatched roof. The
concrete house across the road is mine. When the drum started
playing, all her agnates gathered in front of her house. Some of the
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people who gathered were Radha Nath Munda, Lugdu Munda,
their father Pusua Munda, Gurua Munda, son of Lubin Munda,
Motha Munda, son of Birja Munda, Budhu Munda, son of Kusam
Munda, and a man from Usida village, Mansa Munda, who is Birja’s
son-in-law, was also present. After that, about 80-85 people came
from here and there and surrounded her house. Among them, she
recognized one person who was from another village, Girua
Dakhin Sayan Munda resident of Lachhan Tola Bundu Thana.
Apart from him, she recognized the people of her village who were
there. They were Kuleshwar Munda, Mahavir Munda, Gobra
Munda, Bisay Munda, Jogar Munda, Lakhin Das Munda, Tui Munda,
Ganpal Munda, Jagjivan Munda, Nakul Munda, Bodha Munda,
Pasenath Munda, Lobia Munda, Pahan Munda, Magan Munda.
These were the only people she knew. These rioters started
breaking the main door of her mud house and half of them
climbed on the roof of the house and vandalized the tiles and the
people who entered by breaking the main door dragged her
husband out of the house. When she tried to free her husband,
they pushed her away. They took away one thousand rupees in
cash, two tola gold, twenty tola silver from a box in her house and
all the documents related to the farm and all the service-related
documents of her husband which were in the box. So many people
had gathered in front of her house and they entered her building.
The accused persons beat them up and threw them out of the
building. After that, they tied her husband with a towel and took
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him away from the village to the east. The accused persons took
her agnates and everyone else too.
43. Her agnates returned later but her husband has not returned till
date. After that she informed the police the same day. The police
wrote down her statement and read it out to her. After finding it
correct, she signed it. She admitted her signature to be in Exhibit-
1. She identified Kalevar Munda, Posnath Munda and Mahavir
Munda in the court. If those people, whose name she just
mentioned, were present in the court that time, she would have
recognized them all.
44. In para 9 she stated that they had and are still having land related
dispute with accused Lobia and Paresh. The land dispute she had
with Paresh and Lobia is still going on in the High Court as an
appeal. In para 13 she stated that she could not see the accused
persons who had climbed up her thatched house but she saw all
the accused persons who were breaking the main gate of our
house coming out in my courtyard. Among those who broke the
main gate, she could identify Kalevar Munda, Lobiya Munda, Jaipal
Munda, Tudu Munda and Mahavir Munda.
45. She gave her statement to the police which was written in the
evening of the same day and before recording her statement, the
police came to the village with her. The police were first informed
about the incident at 1.15 pm. The police arrived at 2 pm. After
that, she went to the police station with her father in the evening
21
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and the police recorded her statement. She signed it. She doesn’t
remember if the police read out the statement or not. She also
doesn’t remember if she read her statement before signing it or
not. At that time, her father was also with her. In para 16 she
stated, once again, the police took her statement at her father’s
house or in the village, she doesn’t remember. In para 19 she
stated that when the accused were dragging her husband away,
none of the villagers saw it. She herself says that all the villagers
were locked in their houses out of fear. Her in-laws, who were
released by the accusedpersons, told her that they reached her
father’s house the second day of the incident. She cannot say at
what time they reached there, but it was morning. When they
were telling her about the incident, her parents and brothers were
also there. Radha Munda, Lubru Munda, Guruva Munda, Bulu
Munda, Motha Munda came to her father’s house, and told her that
the accused persons did not release her husband.
46. PW 8 is Chamar Singh Munda. He is the father of Rukmani Devi
informant. He stated in his examination in chief that on
02.06.1994, Sunday, at 8.1/2 am, his second son Itendra Narayan
Munda came to him and told him that when he was at his maternal
uncle’s house, his sister Rukmini came running to his maternal
uncle’s house and told them that some anti-social elements of the
village, with whom he had a case for ten years, had tied up his
brother-in-law, Chaitan and taken him away from his house. He
22
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also told us that his sister told him that there were 50-60
antisocial elements. After hearing this, Chamar Singh Munda went
to the inspector of Bundu but he was not there. The police told him
that he should bring his daughter to the police station and get it
registered, then it will happen immediately. Then he was going
home from the police station when he got the information on the
way that his daughter Rukmini came home crying. Then he went
to his home and took his daughter from home and took her to OP.
His son told him that some people from his in-laws’ house with
whom a property dispute is going on for the last 10 years, they
have tied up her husband and came to the house. He told the
names Kalevar Munda, Mahavir Munda, Gotha Munda, Jagan
Munda, Visaya Munda, Dui Munda, Bodha Munda, Nakul Munda,
Leen Das Munda, Lodiya Munda, Paresnath Munda of Ghuslu Tola.
His daughter also told the name of Dakhin Saw Munda of village
Lachhan Toli, Police station Budu. Our daughter told that apart
from these people there were also 40-50 unknown people. The
daughter told us that at seven o’clock in the morning, Motha
Munda, Radha Munda, Lugru Munda alias Krishna Munda, Gurua
Munda, Budhu Munda, Mansa Munda, who were sitting in the
Hatiya and having coffee, were also taken away by the accused
person along with Chaitan from the thatched house by the accused
person. He identified Kalevar Munda, Makul Munda, Dui Munda in
the court.
23
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47. PW 9 is Dr. Gopal Srivastava. He stated in his examination in
chief that, on 02.07.94 he was posted as Medical Officer in Rahe
Addl. PHC, he got police requisition through compounder. He
attended the patient in evening.
48. On that day, he examined Jageshwari Devi W/o Bhotha alias
Somara Munda of Village Siridih Tola, Ghusru Toli, P.S. Sohanhatu
Distt., Ranchi and found the following injuries on her person :- 1)
One abrasion waist back 1/4″ x 1/4″ about. 2) Age of the injury-
more than 72 hours. Nature Simple and caused by H.B. object, such
as Lathi etc. This injury report is written by him and bears his
signature. (Ext. 2-3).
49. On that day he examined Lugura alias Krishna Munda S/o Late
Pusua Munda of the same address and found the following
injuries:-
(i) One abrasion on left shoulder blade- back 1/2″ x 1/4″ about.
(ii) One abrasion back of chest right side below right shoulder
blade-1/4″ x ¼” about.
(iii) One abrasion left shin of tibia ½” x ¼” about.
Age of injuries – More than 72 hours.
Nature – All simple in nature and caused by H.B. object, such as
Lathi etc.
24
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This injury report is written by him and bears his signature (Ext.
-3/2)
In Cross examination, he stated that All abrasions found on these
injured persons may be caused by fall.
50. PW 10 is Moti Chand Choudhary. He stated in his examination in
chief that he knows K.D. Tiwari Jamadar Saheb. He was posted in
Rahe out post in 1994. The Fardbeyan is in the handwriting and
signature of K.D. Tiwari. (Exhibit-4). The FIR is in the handwriting
and signature of Jagesar Rai, Jamadar (Exhibit-5). The case diary is
in the handwriting and signature of K.D. Tiwari (Exhibit-6).
51. In cross-examination, he stated that in 1994, he was posted in
Sonahatu police station. K.D. Tiwari was also with him at that time.
KD Tiwari and Jagesar Ram are still in the service. In para 4, he
stated that all this was not written in front of him. He doesn’t have
any personal knowledge of this incident.
52. This Court, on the basis of aforesaid factual aspect vis-à-vis
argument advanced on behalf of parties, is now proceeding to
examine the legality and propriety of impugned judgment of
conviction and order of sentence by formulating following issues
to be answered by this Court:
(I). Whether the prosecution has proved the guilt of the appellants for
the charges leveled against him?
(II). Whether order of conviction can be passed on the basis of general
and omnibus allegation?
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(III). Whether the trial Court committed any error in convicting
the appellants and sentencing them by assuming that the alleged
charges were proved beyond all reasonable doubts?
53. Since all the issues are inter-linked with each other and as such
they are being taken together by taking into consideration the
facts of the given case including the testimony of witnesses.
54. This Court, in order to answer the issues framed by this Court,
first deems it fit and proper to go through the settled proposition
of law vis-à-vis, the contention of the learned counsel for the
parties.
55. One of the contentions of the learned counsel for the appellants
that no independent witness(villagers) had been examined by the
prosecution to corroborate the story of the Informant and
especially when all other witness from P. Ws.1 to 6 are partisan
and highly interested being the relatives and agnates of the
informant party.
56. Per contra, learned APP has contended that just because the some
of the witnesses are agnates or related to each other their
evidence or testimony cannot be categorized as that of interested
witnesses.
57. In the aforesaid context it needs to refer herein that the position of
law is well settled that the testimony of the witness even if related
one cannot be discarded mechanically rather the testimony is to
be considered consciously, as has been held by Hon’ble Apex Court
26
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in the judgment rendered in Rizan v. State of
Chhattisgarh (2003) 2 SCC 661, wherein it has been held as
under:
“6.We shall first deal with the contention regarding interestedness
of the witnesses for furthering the prosecution version. Relationship
is not a factor to affect credibility of a witness. It is more often than
not that a relation would not conceal the actual culprit and make
allegations against an innocent person. Foundation has to be laid if
plea of false implication is made. In such cases, the court has to
adopt a careful approach and analyse evidence to find out whether
it is cogent and credible.
7. In Dalip Singh v. State of Punjab it has been laid down as under:
(AIR p. 366, para 26)
“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
relation would be the last to screen the real culprit and falsely
implicate an innocent person. It is true, when feelings run high and
there is personal cause for enmity, that there is a tendency to drag
in an innocent person against whom a witness has a grudge along
with the guilty, but foundation must be laid for such a criticism and
the mere fact of relationship far from being a foundation is often a
sure guarantee of truth. However, we are not attempting any
sweeping generalization. Each case must be judged on its own facts.
Our observations are only made to combat what is so often put
forward in cases before us as a general rule of prudence. There is no
such general rule. Each case must be limited to and be governed by
its own facts.”
8. The above decision has since been followed in Guli Chand v. State
of Rajasthan in which Vadivelu Thevar v. State of Madras was also
relied upon.
9. We may also observe that the ground that the witness being a
close relative and consequently being a partisan witness, should not
27
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be relied upon, has no substance. This theory was repelled by this
Court as early as in Dalip Singh case in which surprise was
expressed over the impression which prevailed in the minds of the
Members of the Bar that relatives were not independent witnesses.
Speaking through Vivian Bose, J. it was observed: (AIR p. 366, para
25)
“25. We are unable to agree with the learned Judges of the High
Court that the testimony of the two eyewitnesses requires
corroboration. If the foundation for such an observation is based on
the fact that the witnesses are women and that the fate of seven
men hangs on their testimony, we know of no such rule. If it is
grounded on the reason that they are closely related to the deceased
we are unable to concur. This is a fallacy common to many criminal
cases and one which another Bench of this Court endeavoured to
dispel in — ‘Rameshwar v. State of Rajasthan‘ (AIR at p. 59). We
find, however, that it unfortunately still persists, if not in the
judgments of the courts, at any rate in the arguments of counsel.”
10. Again in Masalti v. State of U.P. this Court observed: (AIR pp.
209-10, para 14) “But it would, we think, be unreasonable to
contend that evidence given by witnesses should be discarded only
on the ground that it is evidence of partisan or interested witnesses.
… The mechanical rejection of such evidence on the sole ground that
it is partisan would invariably lead to failure of justice. No hard-
andfast rule can be laid down as to how much evidence should be
appreciated. Judicial approach has to be cautious in dealing with
such evidence; but the plea that such evidence should be rejected
because it is partisan cannot be accepted as correct.” [Emphasis
supplied]
58. Likewise, the Hon’ble Apex Court in the judgment rendered in
Shamim v. State (NCT of Delhi), (2018) 10 SCC 509 held as
under:
“9. In a criminal trial, normally the evidence of the wife, husband,
son or daughter of the deceased, is given great weightage on the
principle that there is no reason for them not to speak the truth
and shield the real culprit. We see no reason why the same28
2025:JHHC:20118-DBprinciple cannot be applied when such a witness deposes against a
closely related accused. According to normal human behaviour and
conduct, a witness would tend to shield and protect a closely
related accused. It would require great courage of conviction and
moral strength for a daughter to depose against her own mother
who is an accused. There is no reason why the same reverse
weightage shall not be given to the credibility of such a witness.
PW 4 is the daughter of the appellant. She has deposed that two
days prior to the occurrence the appellant had threatened the
witness to leave PW 1 else she would get his family members killed.
Soon after the occurrence having reached the house of her in-laws
she stepped out on the verandah. The appellant who was standing
on her own verandah told the witness that she had got the
deceased killed because the witness did not listen to her and that
her husband would be killed next. In cross-examination she
reiterated the same. The statement, in our opinion, can be
considered as a corroborative evidence being a voluntary
extrajudicial confession, considering the nature of relationship
between the witness and the appellant.
59. Similar view has been taken by Hon’ble Apex Court in the
judgment rendered in Mohd. Rojali Ali v. State of Assam, (2019)
19 SCC 567 relevant paragraphs of which is quoted as under :
“13. As regards the contention that all the eyewitnesses 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. Kalki2; Amit v. State of U.P.3; and Gangabhavani v.
Rayapati Venkat Reddy4). Recently, this difference was reiterated
in Ganapathi v. State of T.N.5, in the following terms, by referring29
2025:JHHC:20118-DBto the threeJudge Bench decision in State of Rajasthan v. Kalki2:
(Ganapathi case5, SCC p. 555, para 14) “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 eyewitness in the circumstances of a case cannot be said to
be “interested”.”
14. In criminal cases, it is often the case that the offence is
witnessed by a close relative of the victim, whose presence on the
scene of the offence would be natural. The evidence of such a
witness cannot automatically be discarded by labelling the witness
as interested. Indeed, one of the earliest statements with respect to
interested witnesses in criminal cases was made by this Court in
Dalip Singh v. State of Punjab6, wherein this Court observed: (AIR
p. 366, para 26)
“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 would be the last to screen the real culprit and falsely
implicate an innocent person.”
15. In case of a related witness, the Court may not treat his or her
testimony as inherently tainted, and needs to ensure only that the
evidence is inherently reliable, probable, cogent and consistent. We
may refer to the observations of this Court in Jayabalan v. State
(UT of Pondicherry)7: (SCC p. 213, para 23)
“23. We are of the considered view that in cases where the court is
called upon to deal with the evidence of the interested witnesses,
the approach of the court, while appreciating the evidence of such
witnesses must not be pedantic. The court must be cautious in
appreciating and accepting the evidence given by the interested
witnesses but the court must not be suspicious of such evidence.
The primary endeavour of the court must be to look for
consistency. The evidence of a witness cannot be ignored or thrown
30
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out solely because it comes from the mouth of a person who is
closely related to the victim.”
60. Thus, from the aforesaid settled position of law it is evident that
the court must be cautious in appreciating and accepting the
evidence given by the interested witnesses and the primary
endeavour of the court must be to look for consistency.
61. So far as ground of non-examination of independent witness is
concerned it has been held that for nonexamination of
independent witness the case of the prosecution cannot be
doubted alone, as has been held by Hon’ble Apex Court in the
judgment rendered in Sadhu Saran Singh Vs. State of U.P.
[(2016) 4 SCC 357], wherein at paragraph 29 it has been held as
under:
“29. As far as the non-examination of any other independent
witness is concerned, there is no doubt that the prosecution has
not been able to produce any independent witness. But, the
prosecution case cannot be doubted on this ground alone. In
these days, civilised people are generally insensitive to come
forward to give any statement in respect of any criminal
offence. Unless it is inevitable, people normally keep away from
the court as they find it distressing and stressful. Though this
kind of human behaviour is indeed unfortunate, but it is a
normal phenomena. We cannot ignore this handicap of the
investigating agency in discharging their duty. We cannot derail
the entire case on the mere ground of absence of independent
witness as long as the evidence of the eyewitness, though
interested, is trustworthy.
62. In the light of the aforesaid settled position of law this Court is re-
adverting of the factual aspect of the instant case. admittedly
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herein P.W.1 to 8 is related to each other and they are cognates
and close relative to each other. It has come in the testimony of
these witnesses especially P.W.1 to 6 that there were mob of 80 to
85 persons and the said mob had taken the victim Chaitan along
with P.W.1 to 6 to Tungri and after some time, and the accused
persons freed P.W.1 to 6 but kept master Chaitan (husband of the
informant) and from that time Chaitan is missing.
63. Admittedly herein no independent witness (villagers of the said
village) had been examined and it is pertinent to mention herein
that all the accused persons including the present surviving
appellants are also the resident of the same said village. In the
aforesaid circumstances question arises herein that in the mob of
80 to 85 persons the prosecution witnesses had recognized only
the accused persons who belong to the same village and further
question arises herein that the named accused persons were few
in number then how 80 to 85 persons were assembled there i.e at
the place of occurrence.
64. Further the prosecution witnesses (P.W.1 to 6) has categorically
stated that they were not sure that whether the villagers had seen
the alleged offence or not. Admittedly these witnesses have not
brought on record that why the accused persons let them go and
kept Chaitan. Noticeably it has come in the evidence that there
was land dispute among the victim and accused persons, therefore
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the false accusation against the surviving appellant cannot be
denied outrightly.
65. Further from perusal of the testimony of P.W.6 it is evident that he
has denied to witness the alleged occurrence as he had stated in
the cross examination that at the relevant time, he was not present
in the village. For ready reference the relevant part of the
testimony is being quoted as under:
“आज से लगभग 4 वर्ष पहले दिनाक 26.06.94 को मैंने घुसलुडीह ग्राम में
नहीीं था और ना हीीं उस ग्राम में मैंने कोई घटना ही िे खा था। मैं इस मोकिमा
के बारे में कुछ नहीीं जानता हूँ हमसे कभी कोई पुदलस पिादिकारी पुछताछ
नहीीं दकया”
66. Thus, it is evident from the aforesaid part of testimony of P.W.6
that there is inter-se contradiction among the prosecution
witnesses which is major in nature.
67. Further, it is the settled proposition of law that if the result of
cross-examination of prosecution witnesses, accused could
establish the probability of his defence and if probability was
established by accused, it would really entitle him to the benefit of
doubt, reference in this regard may be made to the judgment
rendered by the Hon’ble Apex Court in the case of Bhikam Saran
Vrs. State of U.P., reported in (1953) 2 SCC 560, wherein, at
paragraph-16, it has been held as under:
“16. It is significant to observe that the appellant led no
evidence in defence but merely relied upon the evidence of the
prosecution witnesses in order to establish his defence. He had33
2025:JHHC:20118-DBnot to affirmatively establish his defence in the manner in
which the prosecution had to establish its case. If as the result
of his cross- examination of the prosecution witnesses he
could establish the probability of his defence it was enough for
his purposes, because if such a probability was established by
him it would really entitle him to the benefit of the doubt
insofar as such probability would prevent the prosecution case
being established beyond reasonable doubt.”
68. Further, this court is conscious with the settled position of law
that minor discrepancy cannot vitiate the prosecution story, as has
been held by Hon’ble Apex Court in the case of Bharwada
Bhoginbhai Hirjibhai Vs. State of Gujrat [(1983) 3 SCC 217], in
particular at paragraph nos. 5 which reads as under:
“5. …The finding of guilt recorded by the Sessions Court as affirmed
by the High Court has been challenged mainly on the basis of
minor discrepancies in the evidence. We do not consider it
appropriate or permissible to enter upon a reappraisal or
reappreciation of the evidence in the context of the minor
discrepancies painstakingly highlighted by learned Counsel for the
appellant. Overmuch importance cannot be attached to minor
discrepancies. The reasons are obvious :
“(1) By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an incident. It is
not as if a video tape is replayed on the mental screen. (2)
Ordinarily it so happens that a witness is overtaken by events. The
witness could not have anticipated the occurrence which so often
has an element of surprised. The mental faculties therefore cannot
be expected to be attuned to absorb the details.(3) The powers of
observation differ from person to person.What one may notice,
another may not. An object or movement might emboss its image
on one person’s mind, whereas it might go unnoticed on the part of
another.(4) By and large people cannot accurately recall a
conversation and reproduce the very words used by them or heard
by them. They can only recall the main purport of the34
2025:JHHC:20118-DBconversation. It is unrealistic to expect a witness to be a human
tape-recorder. (5) In regard to exact time of an incident, or the
time duration of an occurrence, usually, people make their
estimates by guess- work on the spur of the moment at the time of
interrogation. And one cannot expect people to make very precise
or reliable estimates in such matters. Again, it depends on the
time-sense of individuals which varies from person to person. (6)
Ordinarily a witness cannot be expected to recall accurately the
sequence of events which takes place in rapid succession or in a
short time span. A witness is liable to get confused, or mixed up
when interrogated later on.(7) A witness, though wholly truthful,
is liable to be overawed by the court atmosphere and the piercing
cross-examination made by counsel and out of nervousness mix up
facts, get confused regarding sequence of events, or fill up details
from imagination on the spur of the moment. The sub-conscious
mind of the witness sometimes so operates on account of the fear
of looking foolish or being disbelieved though the witness is giving
a truthful and honest account of the occurrence witnessed by him –
– Perhaps it is a sort of a psychological defence mechanism
activated on the spur of the moment.”
69. Further, the Hon’ble Apex Court in the case of Mukesh Kumar v.
State (NCT of Delhi), reported in (2015) 17 SCC 694, at
paragraph-8, it has been held as under:
“8. While the slight difference in the initial version of the prosecution
and the FIR version has been reasonably explained by the cross-
examination of PW 6, it is our considered view that minor
discrepancies, embellishments and contradictions in the evidence of
the eyewitnesses do not destroy the essential fabric of the
prosecution case, the core of which remains unaffected. Even if we
have to assume that there are certain unnatural features in the
evidence of the eyewitnesses the same can be reasonably explained
on an accepted proposition of law that different persons would react
to the same situation in different manner and there can be no
uniform or accepted code of conduct to judge the correctness of the
conduct of the prosecution witnesses i.e. PWs 1 and 2. The relation
between PWs 5 and 6 and PWs 1 and 2 and the deceased, in our35
2025:JHHC:20118-DBconsidered view, by itself, would not discredit the testimony of the
said witnesses. There is nothing in the evidence of PWs 1 and 2 which
makes their version unworthy of acceptance and their testimony
remains unshaken in the elaborate cross- examination undertaken.”
70. Thus, from the aforesaid proposition of law it is evident that minor
discrepancies, embellishments and contradictions in the evidence
of the eyewitness do not destroy the essential fabric of the
prosecution case, the core of which remains unaffected. But at the
same time, it is equally settled that the discrepancies which go to
the root of the matter and shake the basic version of the witnesses
that can be annexed with due importance. More so when there is
need of corroboration of the testimony of eyewitness from other
available evidences.
71. In the backdrop of aforesaid settled position of law this Court is
again adverting to the testimony of prosecution witnesses
wherefrom it is evident that in cross-examination P.W.6 had
totally stated the different version and denied his presence on the
day of alleged occurrence. It needs to refer herein that P.W.6
claimed himself as victim and eyewitness of the case and in spite
of that he had not corroborated the prosecution case in his cross
examination he has not been declared hostile by the prosecution
as such his version is fully acceptable.
72. Further, P.W.7 in para 13 had stated that she did not raise alarm
at the time of occurrence and in para 24 she had admitted that she
did not inform the Chowkidar or Mukhia or Surpanch of the village
36
2025:JHHC:20118-DB
about the alleged occurrence, therefore this court is of the view it
is an abnormal conduct of this witness.
73. It is apparent from the testimony that P.W.7 has named all 16
accused persons in para 3 of her evidence but at the same time
this court finds that P.W.l could have named only 14 accused
persons in para -2, and P.W.2 could have named 14 accused
persons also P.W.3 could have named all the 16 accused persons
in P.W.4 could have named all the 16 accused persons, P.W.5 could
have named only 12 accused persons and P.W.6 could not name
any of the accused at all.
74. In the aforesaid circumstances, it cannot be said that the
prosecution could prove the accusation against the surviving
appellants beyond all reasonable doubt.
75. It needs to refer herein that the law is well settled that in the case
of eye witness, who, if supports the prosecution version, the
conviction is to be there, but the law is equally settled that it is the
duty of the prosecution to substantiate the charge said to be
proved without any iota of doubt and if there is any doubt, then
the benefit of such doubt is to be given to the accused person.
76. The Hon’ble Apex Court in catena of decision has propounded the
proposition that in the criminal trial, there cannot be any
conviction if the charge is not being proved beyond all reasonable
doubts, as has been held in the case of Rang Bahadur Singh &
37
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Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454, wherein, at
paragraph-22, it has been held as under:-
“22. The amount of doubt which the Court would entertain
regarding the complicity of the appellants in this case is much
more than the level of reasonable doubt. We are aware that
acquitting the accused in a case of this nature is not a matter
of satisfaction for all concerned. At the same time we remind
ourselves of the time-tested rule that acquittal of a guilty
person should be preferred to conviction of an innocent
person. Unless the prosecution establishes the guilt of the
accused beyond reasonable doubt a conviction cannot be
passed on the accused. A criminal court cannot afford to
deprive liberty of the appellants, lifelong liberty, without
having at least a reasonable level of certainty that the
appellants were the real culprits. We really entertain doubt
about the involvement of the appellants in the crime.”
77. Likewise, the Hon’ble Apex Court in the case of Krishnegowda
& Ors. Vrs. State of Karnataka, reported in (2017) 13 SCC 98,
has held at paragraph-26 as under:-
“26. Having gone through the evidence of the prosecution
witnesses and the findings recorded by the High Court we feel
that the High Court has failed to understand the fact that the
guilt of the accused has to be proved beyond reasonable doubt
and this is a classic case where at each and every stage of the
trial, there were lapses on the part of the investigating agency
and the evidence of the witnesses is not trustworthy which can
never be a basis for conviction. The basic principle of criminal
jurisprudence is that the accused is presumed to be innocent
until his guilt is proved beyond reasonable doubt.”
78. Further from perusal of the evidence in its entirety it is evident
that no any prosecution witnesses had categorically stated about
the specific attributability of the surviving appellants and there is
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general and omnibus allegation against the appellants. Further it
is evident from record that learned trial court has not taken the
aid of Section 149 IPC in order to substantiate the common object
of the assembly and inspite of that the learned trial court has
convicted all the appellants for the offence under section 364 IPC.
79. Further, at this juncture it would be apt to discuss the core of the
Section 364 IPC wherefrom it has been stipulated that whoever
kidnaps or abducts any person in order that such person may be
murdered or may be so disposed of as to be put in danger of being
murdered, shall be punished with imprisonment for life or
rigorous imprisonment for a term which may extend to ten years,
and shall also be liable to fine
80. But in the instant case it has been nobody’s case that the husband
of informant P.W.7 was taken by the mob together with P.W.1 to 6
with a purpose of committing their murder. When the husband of
P.W. 7 was detained by the mob and P.Ws. 1 to 6 were freed, none
of the aforesaid witnesses P.Ws.1 to 6 had deposed before the
Court that the mob had detained Informant’s husband to commit
his murder. Only on one circumstance that the husband of P. W. 7
was last seen with the appellants and the mob on the date of
occurrence at the hillock, does not conclusively prove that he was
subsequently done to death as because since that date he did not
return home.
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81. The only circumstances without any Informant’s further evidence
that the husband was actually done to death or was subjected to
further assault by the mob, it could not be said that he was
kidnapped for murder and hence, the appellants on ground of
benefit of doubt, deserve to be acquitted from charges under
section 364 Indian Penal Code.
82. So far, the conviction under other various Sections of the IPC is
concerned, this Court by taking into consideration the testimony
of prosecution witnesses particularly P.W.6 has already observed
in preceding paragraph that there is major contradiction among
the witnesses and further the allegation against the surviving
appellants are general and omnibus in nature and further no
specific attributability of the surviving appellants has been
brought forth by the prosecution, therefore, this Court is of the
considered view that surviving appellants are deserve to be
acquitted from all the charges as alleged in the instant case.
83. It requires to refer herein that prosecution has not been able to
prove the genesis situs of the occurrence and the items of offence
by not examining the Investigating Officer of this case and the
prosecution has not offered any plausible explanation whatsoever
for not examining the Investigating Officer of the case. it is
considered view of this Court that the non-examination of the I.Ο.
has caused serious prejudice to the defence of the appellants and
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the entire scenario of the occurrence had remained unearthed due
to the absence of this important witness.
84. Further, it needs to refer herein the principle of ‘benefit of doubt’
belongs exclusively to criminal jurisprudence. The pristine
doctrine of ‘benefit of doubt’ can be invoked when there is
reasonable doubt regarding the guilt of the accused, reference in
this regard may be made to the judgment rendered by the Hon’ble
Apex Court in the case of State of Haryana Vrs. Bhagirath & Ors.,
reported in (1999) 5 SCC 96, wherein, it has been held at
paragraph-7 as under: –
“7. The High Court had failed to consider the implication of the
evidence of the two eyewitnesses on the complicity of
Bhagirath particularly when the High Court found their
evidence reliable. The benefit of doubt was given to Bhagirath
“as a matter of abundant caution”. Unfortunately, the High
Court did not point out the area where there is such a doubt.
Any restraint by way of abundant caution need not be
entangled with the concept of the benefit of doubt. Abundant
caution is always desirable in all spheres of human activity.
But the principle of benefit of doubt belongs exclusively to
criminal jurisprudence. The pristine doctrine of benefit of
doubt can be invoked when there is reasonable doubt
regarding the guilt of the accused. It is the reasonable doubt
which a conscientious judicial mind entertains on a conspectus
of the entire evidence that the accused might not have
committed the offence, which affords the benefit to the
accused at the end of the criminal trial. Benefit of doubt is not a
legal dosage to be administered at every segment of the
evidence, but an advantage to be afforded to the accused at the
final end after consideration of the entire evidence, if the Judge
conscientiously and reasonably entertains doubt regarding the
guilt of the accused.”
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85. Likewise, the Hon’ble Apex Court in the case of Krishnegowda v.
State of Karnataka (Supra) at paragraph-32 and 33 has held as
under:-
“32. — — The minor variations and contradictions in the evidence of
the eyewitnesses will not tilt the benefit of doubt in favour of the
accused but when the contradictions in the evidence of the
prosecution witnesses proves to be fatal to the prosecution case
then those contradictions go to the root of the matter and in such
cases the accused gets the benefit of doubt.
33. It is the duty of the Court to consider the trustworthiness of
evidence on record. As said by Bentham, “witnesses are the eyes and
ears of justice.— –‘”
86. It needs to refer herein that the Hon’ble Apex Court, in the case
of Allarakha K. Mansuri v. State of Gujarat reported in
(2002) 3 SCC 57 has laid down the principle that the golden
thread which runs through the web of administration of justice
in criminal case is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the accused and
the other to his innocence, the view which is favourable to the
accused should be adopted, for reference, paragraph 6 thereof
requires to be referred herein which reads hereunder as :-
“6. ——The golden thread which runs through the web of
administration of justice in criminal case is that if two views
are possible on the evidence adduced in the case, one pointing
to the guilt of the accused and the other to his innocence, the
view which is favourable to the accused should be adopted. —
”
87. It needs to refer herein before laying down the aforesaid view,
the Hon’ble Apex Court in the case of Sharad Birdhichand
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Sarda v. State of Maharashtra reported in (1984) 4 SCC 116
has already laid down the same view at paragraph 163 which is
required to be referred which read hereunder as
“163. We then pass on to another important point which seems to
have been completely missed by the High Court. It is well settled
that where on the evidence two possibilities are available or open,
one which goes in favour of the prosecution and the other which
benefits an accused, the accused is undoubtedly entitled to the
benefit of doubt.—”
88. Thus, on the basis of discussion made hereinabove this Court is of
the considered view allegations made against surviving appellants
are completely vague and omnibus. There is no allegation of
specific overt act against these appellants and on account
of land dispute, general and omnibus allegation is levelled against
the surviving appellants.
89. This Court, after having discussed the factual aspect and legal
position and considering the finding recorded by the learned trial
Court, is of the view that the learned trial Court had not given
thoughtful consideration to the evidences available on record in
entirety and has come to the conclusion that the prosecution has
been able to prove the charge beyond all shadow of doubt against
the present appellants, therefore, the impugned order requires
interference by this Court.
90. Accordingly, the impugned order of conviction dated 12.04.1999
and Order of sentence dated 15.04.1999, passed by second
Additional Judicial Commissioner Khunti in Sessions Trial No.341
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appellants are concerned.
91. Consequently, the instant appeals stand allowed.
92. The surviving appellants namely Magan Munda and Lobin Munda
is hereby discharged from all criminal liabilities. Since the
aforesaid appellants are on bail, they are discharged from the
liability of the bail bonds.
93. Let the Lower Court Records be sent back to the Court concerned
forthwith, along with the copy of this Judgment.
I agree, (Sujit Narayan Prasad, A.C.J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
/A.F.R.
Samarth
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