Nirmal Sanga v. The State of Bihar
Case Details
Criminal Appeal (DB) No. 135 of 1999(R) Against the judgment and order of conviction and sentence dated 22.04.1999 passed by Shri Rakesh Ranjan Verma, learned Additional Judicial Commissioner-V, Ranchi in Sessions Trial No. 149 of 1998 Nirmal Sanga ... Appellant Versus The State of Bihar (now Jharkhand) ---- … Respondent PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellant For the Respondent (State) : Mr. Ashok Kumar Pandey, Advocate : Mrs. Shweta Singh, A.P.P. CAV on 11th June, 2024 Delivered on 19.06.2024 Rongon Mukhopadhyay, J. : 1.
Legal Reasoning
Heard Mr. Ashok Pandey, learned counsel ---- appearing for the appellant and Mrs. Shweta Singh, learned A.P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 22.04.1999 passed by Shri Rakesh Ranjan Verma, learned Additional Judicial Commissioner-V, Ranchi in Sessions Trial No. 149 of 1998, whereby and whereunder, the appellant has been convicted for the offences punishable u/s 302 of the Indian Penal Code and Section 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for life for the offence u/s 302 I.P.C. and rigorous imprisonment for three years for the offence u/s 27 Arms Act. Both the sentences were directed to run concurrently. 3. The prosecution case arises out of the fardbeyan of Simon Munda, recorded on 22.05.1997, in which it has been stated that his sister on 21.05.1997 at 6 a.m. had gone to pick Ken in Uli Bunda Jungle and on the same date he, his brother Panda Munda and villagers Indu Munda and Barai Munda had also gone to pick Ken at 10 a.m. when they had found his sister writhing in pain near a Kusum tree. When she was asked about the incident she had disclosed that Nirmal Sanga (appellant) had shot at her with a firearm. After sometime she died. The informant suspected that the appellant must have 1 | P a g e tried to outrage the modesty of his sister and when she objected she was shot at. Based on the aforesaid allegations, Namkum P.S. Case No. 66/1997 was instituted for the offences punishable u/s 302 of the I.P.C. and Section 27 Arms Act against Nirmal Sanga. On completion of the investigation, charge- sheet was submitted against the sole accused and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as Sessions Trial No. 149 of 1999. Charge was framed for the offences punishable u/s 302 of the I.P.C. and Section 27 of the Arms Act which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as eight (08) witnesses in support of its case. P.W. 1 Simon Munda is the informant who has stated that the incident is of a year back when he was going to pick Kent from Uli Bunda Jungle and Panda Munda, Indu Munda were also with him. While going towards the jungle, he had seen his sister near Tiril Piri and she was lying down in an injured condition. His sister was conscious and she had disclosed that the accused Nirmal Sanga had fired at her. His sister was being brought home and on the way she died. His fardbeyan was recorded by the police. He has identified his signature in the fardbeyan which has been marked as Ext. 1. He has proved his signature in the inquest report which has been marked as Ext. 1/1. In cross examination she has deposed that Nirmal Sanga is his co- villager whom he knows from childhood. He had no previous enmity with Nirmal Sanga. He had not witnessed the incident of firing. When his sister had disclosed to him about the occurrence no one else were present. P.W. 2 Panda Munda has stated that while he was going to Uli Bunda Jungle for picking Ken, he had seen his sister sitting in an injured condition who disclosed that Nirmal Sanga had fired at her. While taking her home, his sister died on the way. 2 | P a g e In cross examination he has deposed that there was no previous enmity with Nirmal Sanga. His sister did not have any animosity with anyone, not even with Nirmal Sanga. P.W. 3 Sanika Munda has stated that on 21.05.1997, Panda Munda had come to his house and disclosed that Nirmal Sanga has committed the murder of his sister. In cross examination he has deposed that whatever has been stated by him was disclosed to him by Panda Munda. P.W. 4 Indu Munda has stated that he had gone to pick Ken along with Simon Munda and Panda Munda and on the way, he saw his aunt Achi Mundain lying in an injured condition. She was in a conscious state and when asked by Simon Munda, she had disclosed that Nirmal Sanga had fired at her. She was taken home, but on the way she died. In cross examination he has deposed that there was no enmity between the deceased and her family members with Nirmal Sanga. Nirmal Sanga did not frequent the house of the deceased. P.W. 5 Barai Munda has stated that on the date of the incident at around 12-1 p.m., he along with Indu Munda, Panda Munda and Simon Munda were going to the jungle to pick Ken and near Tiril forest, they heard the cry of alarm of Achi Mundain. When they rushed towards her, she had disclosed that Nirmal Sanga had shot at her. She was being taken to a hospital where on the way she died. In cross examination he has deposed that he had disclosed to the police that Achi Mundain died while talking to him. P.W. 6 Etwary Mundain is the mother of the deceased who has stated that Indu, Panda, Simon and Barai had disclosed to her that her daughter had been murdered by Nirmal Sanga. In cross examination she has deposed that there was no animosity between the accused and her family members. P.W. 7 Dr Ajit Kumar Choudhary was posted as a Tutor in the Department of Forensic Medicine, RMCH, Ranchi and on 22.05.1997 he had 3 | P a g e conducted autopsy on the dead body of Achi Mundain and had found the following injuries: A. Firearm injury having wound of entrance 1 cm in diameter on right chest lateral side situated 5 cm right to right mid-line surrounded by blackening 7 cm diameter. The projectile passes through right fourth intercostal space breaking the right fifth rib, perforates the right lung, breaks the seventh thoracic vertebrae, then perforates the left lung, breaks the seventh right posteriorly into the track is divided upwards with bullet has been found lodged in left axillae. The track of the wound is contused and lacerated. There is presence of blood and blood clot in the thoracic cavity. Internal organs are pale. The cause of death has been opined to be on account of the above noted firearm injures. He has proved the postmortem report, which has been marked as Ext. 2. P.W. 8 Akshay Kumar Ram was posted as a Sub Inspector of Police at Namkum P.S. and on 21.05.1997 he had received an information about an untoward incident which had occurred at Postabera village. After entering a Sanha, he had proceeded towards the village with other police personnel. In Postabera village he had found the dead body of a woman in the house of Simon Munda. He had recorded the fardbeyan of Simon Munda and had started investigation himself. He has proved the inquest report which has been marked as Ext. 3. He had recorded the restatement of the informant and had also inspected the place of occurrence which is in Tiril Piri which is at a distance of one kilometer from Postabera village. The said place is surrounded with jungles. Near the Kusum tree stains of blood were detected. He had sent the body for postmortem, recorded the statement of the witnesses and on completion of investigation had submitted charge sheet. He has proved the fardbeyan which has been marked Ext. 4. He has proved the forwarding report of the fardbeyan which has been marked as Ext. 5. He has also proved the formal F.I.R. which has been marked as Ext. 6. In cross examination he has stated that it is a lonely place where the incident had occurred. The house of Nirmal Sanga was searched, but no incriminating materials were recovered. The witnesses had disclosed that there was a love affair between Nirmal Sanga and the deceased and the murder had taken place due to some dispute between them. 4 | P a g e 5. The statement of the accused was recorded under Section 313 Cr.P.C. in which he has denied his complicity in the offence. 6. It has been submitted that by Mr. Ashok Kumar Pandey, learned counsel for the appellant that save and except the purported oral dying declaration of Achi Mundain, there is no material to implicate the appellant in the commission of the murder. It is a case of circumstantial evidence, where motive plays an important part, but in absence of motive such circumstantial evidence does not have any intrinsic value. 7. Mrs. Shweta Singh, learned APP has submitted that such dying declaration of the deceased was given in presence of P.W. 1, P.W. 2, P.W. 4 and P.W. 5 and therefore such evidence was rightly considered by the learned trial court in convicting the appellant. 8. We have heard the learned counsel for the respective sides and have also perused the lower court records. 9. The entire case of the prosecution hinges upon the purported dying declaration of the deceased Achi Mundain. As per the prosecution case, she was lying in an injured state near Tiril forest which is situated at a distance of one kilometer from her village and she had disclosed about the appellant firing at her and after sometime she died. As per the informant, she had left for the forest at 6 a.m. while the informant and others had gone at 10 a.m. P.W. 5 has stated that he and the informant and others had gone to the forest at around 12-1 p.m. Admittedly no one was found in the vicinity of where the deceased was lying. If the incident had taken place just before the arrival of the informant and others, the sound of firing would have reverberated all around the jungle, but there is no such evidence on record. The incident therefore must have occurred much prior to the informant and the others leaving for the jungle to pick Ken. Whether the deceased was in a conscious state of mind at the time of giving such oral dying declaration has to be ascertained and the autopsy report would enable us to figure out any vulnerability of such dying declaration. The finding of the postmortem report 5 | P a g e reveal that the bullet which had entered through the right chest had caused subsequent damage to the lungs, ribs and vertebrae. The right lung as well as the left lung were perforated, the 7th thoracic vertebrae was found broken, 5th rib and the 7th rib were also found broken. Though no question was put by the defence to the Doctor conducting autopsy with respect to the state of a person suffering such massive injuries, but we can deduce that the physical capability of the deceased to give such declaration would be greatly reduced. The other important factor of the case appears to be the absence of motive as none of the witnesses including the family members of the deceased have revealed about any animosity between the deceased and the appellant. Though P.W. 8 (I.O.) has stated about a love affair between the appellant and the deceased being the cause of the incident, but he has not named any of the witnesses, who had stated so. Therefore such evidence of P.W. 8 would not enhance the case of the prosecution so far as motive is concerned. It also appears as per P.W. 8 that a search was conducted in the house of the appellant, but nothing of substance were recovered. The informant (P.W. 2) has in his cross examination deposed that when the deceased had given such dying declaration, she had confided only to him and there was no one present at that point of time. The entire case is based on circumstantial evidence when the chain would only be complete once the motive is established. In the present case, as we have stated above motive seems to be totally absent which would also make the prosecution case vulnerable. The learned trial court has overly relied upon the oral dying declaration of the deceased without considering the credibility of such dying declaration and other surrounding circumstances and as a result of the above noted discussions, we hereby set aside the judgment and order of conviction and sentence dated 22.04.1999 passed by Shri Rakesh Ranjan Verma, learned Additional Judicial Commissioner-V, Ranchi in Sessions Trial No. 149 of 1998. This appeal is allowed. 6 | P a g e 11. Since the appellant is on bail, he is discharged from the liability of his bail bond. (RONGON MUKHOPADHYAY,J.) (DEEPAK ROSHAN, J.) Jharkhand High Court, Ranchi Dated the 19th June, 2024 MK/N.A.F.R. 7 | P a g e