- (1.) This appeal has been preferred by the original accused of Sessions Trial No. 355 of 1999, namely, Tezu Munda, against the judgment and order of conviction and sentence dated 21st December, 2004 and 24th December, 2004 respectively, passed by learned Additional District & Sessions Judge (F.T.C. No. 6), Hazaribagh, in Sessions Trial No. 355 of 1999, arising out of Ramgarh P.S. Case No. 269 of 1998, whereby, the sole appellant, namely, Tezu Munda, has been convicted for the offence under Sections 302 of the Indian Penal Code and sentenced to undergo imprisonment for life for causing murder of one Mangal Munda. Further, a fine of Rs. 25,000/- has also been imposed upon him, to be paid in favour of the legal heirs of the deceased, if realized from the appellant. Facts of the case:-
(2.) If the case of the prosecution is unfolded, the facts are as under: On 13.12.1998-Sunday at day hours, the informant Dewaki Munda wife of late Mangal Munda gave her fardbeyan along with her son Raju in front of the dead body of her husband to the police that she is Munda by caste and is Indian. In the day hours, she used to beg in station and town and her husband Mangal Munda (deceased) used to grow vegetable and sell it, by taking field from other persons on Batai. In the evening of last Saturday, she was with her husband and children in her hut (Jhopari). In the night Teju Munda (accused) who is servant of the son of Aseshwar Mahto, and Singh Ji, who is Rickshav Puller, came to her hut (Jhopari) and by hurling abuses, caught the hand of he husband Mangal Munda and started dragging him from the hut (Jhopri). When the informant asked Teju Munda as to why he is doing this, then he told her that her husband had sold the potato, by digging out the same from the field of his Malik (Master) and he is taking him to his Malik. The informant tried to stop them but they forcibly dragged her husband Mangal Munda from the hut (Jhopri) and by assaulting him, took him towards the house of Aseshwar Mahato which is situated near the pond. The informant reached there by following them and saw both of them assaulting her husband. Having seen the informant there, Teju Munda tried to catch her, but, she flew away to her house and out of fear, she did not come out of her house for whole night. Today in the morning, she along with her son Raju went near the pond in search of her husband and saw a mob assembled at a house, constructed near the pond. When the informant reached there, she saw her husband Mangal Munda lying dead on the ground and also saw some blood fallen on the ground. The informant has claimed that Teju Munda, who is servant of the son of Asheshwar Mahto, and Singh Ji, in furtherance of common intention, have committed murder of her husband, by assaulting him, on false allegation of theft. Summary of Prosecution Witnesses:- Eight witnesses were examined by the prosecution: Arguments on behalf of the appellant:-
(3.) It is submitted by the learned counsel for the appellant that there are major omissions, contradictions and improvements in the deposition of the prosecution witnesses. Moreover, PW 1, who is wife of the deceased, in her Fardbeyan has not stated that her son (PW 3) had ever accompanied her, when she had followed her husband. Similarly PW 1 has also not stated about PW 2, who is another son of PW 1, that he had accompanied her. Both these sons of PW 1, who are PW 2 and PW 3, are, in fact, not the eye witnesses to the occurrence, at all. This aspect of the matter has not been properly appreciated by the learned trial court. So far as PW 1 is concerned, she is also not an eye witness to the occurrence, at all, because her husband was alive when she left the place of occurrence. It is further submitted by the learned counsel for the appellant that there are more than one accused and who has caused the injury, is not narrated by PW 1 before the learned trial court. Moreover, "last seen together" theory is also not proved by the prosecution, because there is a long lapse of time in between the death of Mandal Munda (deceased) and the time, when this appellant was seen in the company of the deceased. It is further submitted by the learned counsel for the appellant that PW 3 has stated that knife blows were given by this appellant to the deceased whereas looking to the medical evidence, given by PW 6-Dr. Prem Das, there is not a single injury, which is capable of being caused by knife. It is also alternatively submitted by the learned counsel for the appellant that this appellant is languishing in judicial custody since last approximately 15 years, 6 months and 4 days as on 2nd July, 2014. Learned counsel for the appellant has relied upon several decisions, including a decision, rendered in the case of Badal Murmu & Ors. v. State of West Bengal, 2014 3 SCC 366, especially paragraph Nos. 8, 9, 10 and 11 thereof, and has submitted that this appellant is a rustic tribal; intention is not proved by the prosecution and no injury has been found on the person of the deceased, caused by sharp cutting instrument. In fact, the appellant is an employee of the owner of the field, from where the potato was stolen away by the deceased. Thus, looking to these aspects of the matter and also looking to the fact that by now the appellant has remained in custody approximately for a period of 15 years and 7 months, the offence may be converted from murder to culpable homicide, not amounting to murder and the appellant may be punished for the offence under Section 304 Part II of the Indian Penal Code, instead of Section 302 of the Indian Penal Code, because he has already undergone the highest sentence under this Section and, therefore, he may be forthwith released from custody. Arguments on behalf of the State:-;