IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Appeal (SJ) No.275 of 2011

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Yugal Mundari @ Jugal Mundari, son of late Pandu Mundari, resident of

Village Bandgaon, P.O. & P.S. Bandgaon, District Singhbhum (W).

. ..... …... Appellant

Versus

The State of Jharkhand ….. …. Respondent

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CORAM : HON’BLE MR. JUSTICE SUBHASH CHAND

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For the Appellant : Mr. Rajendra Prasad Gupta, Advocate

Mr. Kunal Kishore, Advocate

For the Respondent : Mrs. Vandana Bharti, APP

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C.A.V. on: 12/09/2023 Pronounced on:06/ 10/2023

1. This Criminal Appeal has been preferred against the judgment of

conviction dated 15.02.2011 and the order of sentence dated 22.02.2011

passed by the learned Additional Sessions Judge, F.T.C.-V, West Singhbhum

in Sessions Trial No. 182 of 2007, whereby the learned trial Court has

convicted the appellant under Sections 304 Part-II and 324 of the Indian

Penal Code and sentenced him to undergo RI for seven years for the offence

under Sections 304 Part-II of the Indian Penal Code. There was no separate

sentence under Section 324 of the Indian Penal Code.

2. The brief facts of the prosecution case leading to this Criminal Appeal

are that Sanjay Soy and Lakhindra Sawasi both being the student of Class-X

were studying at Laxmi Narayan High School, Murhu. Both were residing in

the hostel of their school. It is alleged that on 02.05.2007, both left their

village at 11:00 O’clock of day time to go their school by their bicycle. At

about 02:00 pm, they reached at Bandgaon market, where they met their

classmate Binod Soy (victim-deceased). Binod Soy insisted them to stay

with him in the night at village Bandgaon under Taladih Tola to the house of

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his beloved Palo Mundari. The FIR reveals that there was intimate

relationship visiting terms and love affairs between Binod Soy and Palo

Mundari. On being insisted by Binod Soy, his friends Sanjay Soy and

Lakhindra Sawasi also followed him and reached at Talidih Tola of village

Bandgaon. On reaching there, Binod Soy alone went to the house of Palo

Mundari; while his two friends Sanjay Soy and Lakhindra Sawasi both

stayed at the western side of kaccha road. Binod Soy brought two bedsheets

and towels in order to sleep. About 08:30 O’clock at night, Palo Mundari

came there and insisted all of them to go to her house. In the meantime, one

Singi Mundari, who was the friend of Palo Mundari along with grandmother

of Palo Mundari, namely, Mela Mundari came there. Thereafter, Binod Soy

and Singi Mundari both proceeded near the bushes and indulged in

conversation to each other at the lonely place of agricultural field. In the

meantime, Palo Mundari went along with his grandmother, namely, Mela

Mundari to her house to bring dinner for them. It was 11:00 O’clock of

night. After half an hour at 11:30 pm, one Bishram Budding, son of Singi

Mundari’s elder sister came there and having seen Singi Mundari sitting with

Binod Soy, he reported the same to her brother Yugal Mundari. Yugal

Mundari came there along with Bishram Budding within no time. Yugal

Mundari armed with knife in his hand asked his sister Singi Mundari why

she was sitting with Binod Soy at isolated place. On being dissatisfied with

the explanation given by his sister Singi Mundari & Binod Soy, Yugal

Mundari became infuriated and he inflicted a knife blow on the chest of

Binod Soy; while Bishram Budding also assaulted him with elbow and fist.

Yugal Mundari also inflicted injury to his sister Singi Mundari and he

forcibly took her back to his house. This fardbeyan was given by Sanjay

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Soy, the informant. The informant and his friend Lakhindra Sawasi both

took Binod Soy for treatment to the local doctor, who was not found

available. Ultimately, they took Binod Soy by a Jeep to his house in village

Kochang. On reaching to the house of injured in the morning at 03:00 am,

within half an hour thereof Binod Soy succumbed to the injuries, hence the

FIR was lodged.

3. On this written information, FIR No.20 of 2007 was registered against

the accused Yugal Mundari and Bishram Budding for the offence under

Section 302 read with Section 34 of the Indian Penal Code with the police

station concerned.

4. The Investigating Officer after having concluded the investigation,

filed charge-sheet against the accused Yugal Mundari and Bishram Budding

under Sections 302 and 324 read with Section 34 of the Indian Penal Code.

5. The co-accused Bishram Budding was the child and he was declared

juvenile.

6. The Magistrate concerned took cognizance on the charge sheet against

Yugal Mundari and committed the case for trial to the Court of Sessions

Judge.

7. The trial Court framed the charge against Yugal Mundari for the

offence under Sections 302 and 324 read with Section 34 of the Indian Penal

Code. The same was read over and explained to him, he denied the charge

and claimed to face the trial.

8. On behalf of the prosecution to prove the charge against the accused

in oral evidence examined altogether eleven witnesses i.e. P.W.-1, Sanjay

Soi; P.W.-2, Lakhinder Swashi; P.W.-3, Sanika Soi; P.W.-4, Sukh Ram

Soi; P.W.-5, Dr. Ashok Kumar Mishra; P.W.-6, Somal Mundari; P.W.-7

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Pandu Mundari; P.W.-8, Dr. Arvind Kumar Rajak; P.W.-9, Palo

Mundari; P.W.-10, Singi Mundari and; P.W.-11, Smt. Mela Mundari

and in documentary evidence the prosecution has filed Exhibit-1,

Signature of Sanjay Soy in bayan; Exhibit-1/1, Signature of Lakhindra

Sawasi in bayan; Exhibit-2, Signature of Lakhindra Sawasi in Seizure

list; Exhibit-3, Signature of Sanika Soy in inquest report; Exhibit-4,

postmortem report; Exhibit-5, Signature of Somal Mundari in seizure

list; Exhibit-5/1, Signature of Pandu Mundari in seizure list and;

Exhibit-6, Injury report.

9. The statement of the accused was recorded under Section 313 of Code

of Criminal Procedure, in which, he denied the incriminating circumstances

in evidence against him and stated himself to be innocent. No defence

evidence was adduced on behalf of the accused.

10. The learned trial Court after hearing the rival submissions of the

learned counsel for the accused and learned counsel for the State, passed the

impugned judgment of conviction dated 15.02.2011 and the order of

sentence dated 22.02.2011 holding the accused guilty for the offence under

Section 304 Part-II and 324 of the Indian Penal Code and sentenced as stated

hereinabove.

11. Aggrieved from the impugned judgment of conviction dated

15.02.2011 and the order of sentence dated 22.02.2011, this Criminal Appeal

has been preferred on behalf of the appellant/convict, namely, Yugal

Mundari on the ground that the impugned judgment of conviction and the

order of sentence passed by the learned Court below is bad in the eyes of

law. The learned Court below has not appreciated the evidence in proper

perspective, while passing the impugned judgment of conviction and the

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order of sentence. The conviction of the appellant is based on the testimony

of his two friends, who had falsely implicated to the appellant. In view of the

facts and circumstances of this case and the evidence on record prayed to

allow this Criminal Appeal and set aside the impugned judgment of

conviction and the order of sentence and acquit the appellant/ convict from

the charges levelled against him.

12. Heard the rival submissions of the learned counsel for the appellant

and learned APP on behalf of the State and perused the materials available

on record.

13. In order to decide the legality and propriety of the impugned judgment

of conviction and the order of sentence, this Court avert to the evidences on

record, which are reproduced hereinbelow:

13.1 P.W.-1, Sanjay Soi, who is the informant of this case, in his

examination-in-chief, says that the occurrence is of 02.05.2007 of

Wednesday. He along with his friend Lakhinder Sawasi were going to his

school Laxmi Narayan High School, Murhu. At Bandgaon Bazar, they met

to Binod Soy, who was his classmate. At the insistence of Binod Soy, he and

Lakhinder Sawasi both stayed in the night at Bandgaon. On the very night at

07:00 O’clock Binod Soy asked him and his friend Lakhinder Sawasi to

accompany him to the house of Palo Mundari, who was the girlfriend of

Binod Soy. He asked Sanjay Soi and Lakhinder Sawasi to stay near Mahua

tree and he went to the house of Palo Mundari to bring bedsheets for them.

In the night at 11:00 O’clock Yugal Mundari and Bishram Budding both

came there. Prior to their arrival, Palo Mundari went to her house to bring

dinner for them. Bishram Budding saw Singi Mundari sitting with Binod

Soy and went back and again came along with Yugal Mundari. Yugal

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Mundari asked Binod Soi why he was sitting there along with his sister

Singi Mundari, on which, Yugal Mundari gave a knife blow to Binod Soy.

Yugal Mundari and Bishram Budding both had dragged Singi Mundari with

them to their house. Binod Soy was taken in injured condition by them to his

village in the night, wherein Binod Soy died. He had given the written

information to the Bandgaon Police Station, which is signed by him and

marked as Exhibit-1. During investigation, the police had also taken in

custody the bloodstained soil, one shirt of Binod Soy, gamcha and cap,

which were seized and also stated that the cloth was bloodstained. He

identified both the accused Yugal Mundari and Bishram Budding in dock

during trial. In cross-examination, this witness says that Binod Soy was his

childhood friend. Palo Mundari was the girlfriend of Binod Soy. He and

Lakhinder Sawasi went to the house of Palo Mundari at the behest of Binod

Soy. The house of Palo Mundari was at the distance of 50 yards from

Bandgaon. The place of occurrence where the knife blow was given was

under mahua tree 100 paces to the western side. The house of Palo was 150

paces north from mahua tree. The place of occurrence was the agricultural

field and the basti was at a distance of 50 ft. from the agricultural field. The

place of occurrence at the agricultural field was isolated place. The house of

Palo Mundari was aloof from the basti. On the night of occurrence at 10:30

they were talking at the agricultural field. He did not go to the house of Palo

Mundari. Singi Mundari was exchanging talk with Binod Soy, she was not

beloved of Binod Soy. There was no enmity between Yugal Mundari and

Binod Soy. Singi Mundari was the younger sister of Yugal Mundari. The

seizure memo bears signature of him and Lakhinder Sawasi as well. The

bloodstained soil was taken by the police from the place of occurrence in his

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presence and Lakhinder Sawasi. It is wrong to say that Yugal Mundari had

not given knife blow rather he and his friend Lakhinder Sawasi had given

knife blow to Binod Soy. It is also wrong to say that Yugal Mundari was

innocent.

13.2 P.W.-2, Lakhinder Sawasi, in his examination-in-chief, says that the

occurrence is of 02.05.2007. Sanjay Soy and he both were left their village

to the School and met with Binod Soy at Bandgaon. He and Sanjay Soy both

accompanied Binod Soy, who went to the house of Palo Mundari. Palo

Mundari was the girlfriend of Binod Soy. He and Sanjay both stayed near

the mahua Tree. Binod Soy alone went to the house of his girlfriend.

Thereafter, Bonod Soy brought the bedsheets for them to sleep under the

mahua Tree. Palo Mundari and her grandmother, namely, Mela Mundari and

Singi Mundari also came there. In the meantime, the grandmother of Palo

Mundari left the place and went to the house. Palo Mundari also went to her

house to bring dinner for them. In the meantime, he, Sanjay Soy, Binod Soy

and Singi Mundari were at the agricultural field. It was 11:00 O’clock of

night. Yugal Mundari and Bishram Budding both came there and asked

Binod Soy why he was sitting with his sister there and he gave a knife blow

in the chest of Binod Soy. He also dragged his sister Singi Mundari to his

house. The injured Binod Soy was taken by them to his village at 01:30 in

night and at the house of Binod Soy he succumbed to injuries. Next day, the

FIR was lodged by the informant with the police station concerned, on

which, he put his signature, which is marked as Exhibit-1/1. Police had also

taken in custody the bloodstained soil, shirt, gamcha and cap of Binod Soy.

The seizure memo of the same was prepared, on which, he and Sanjay Soy

both put their signature, which is marked as Exhibit-2. He identified the

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accused Yugal Mundari in the dock during trial. In cross-examination, this

witness says that nothing was predetermined between him, his friend Sanjay

Soy and Binod Soy to go to the house of Palo Mundari. The mahua tree was

at a distance of 150 ft. from Bandgaon Bazar. The mahua tree was isolated

place away from the village. Singi Mundari was about 18-19 years old. Singi

Mundari was the younger sister of Yugal Mundari. The accused armed with

knife having seen Singi Mundari, who was friend of Palo talking with Binod

Soy gave a knife blow. At the time of occurrence, Palo Mundari was not

there.

13.3 P.W.-3, Sanika Soi, in his examination-in-chief, says that the murder

of Binod Soy was caused on 02.05.2007. She put her signature on the

inquest report and identified the same, which is marked as Exhibit-3.

There was wound in the abdomen of the dead body.

13.4 P.W.-4, Sukh Ram Soi, in his examination-in-chief, says that he was

the witness of the inquest report of deceased, put his signature and

identified the same, which is marked as Exhibit-3/1.

13.5 P.W.-5, Dr. Ashok Kumar Mishra, in his examination-in-chief, says

that on 04.05.2007 at 10:30 am, he conducted the autopsy of dead body of

Binod Soy, aged about 16 years old, son of Sukh Ram Soy, resident of

village Kochang, P.S. Araki, Ranchi. The body was brought and identified

by the Havildar, Suresh Paswan of Bandgaon Police Station. In examination,

he found the following injuries on the bead body of Binod Soy: “incised

wound medially to right nipple 1”x1/2” x deep to thorax cavity with the

blood coming out from the wound”. The cause of death was due to

haemorrhage and shock on account of ante-mortem injuries. He

prepared autopsy report of deceased in his handwriting and signed, which

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is marked as Exhibit-4. In cross-examination, this witness says that he

cannot say how the injuries were done.

13.6 P.W.-6, Somal Mundari, in his examination-in-chief, says that the

police had taken his signature on a blank paper. He identified his signature

on the recovery memo of the knife dated 03.05.2007. In cross-examination,

this witness says that he signed on the recovery memo of knife at the behest

of police.

13.7 P.W.-7, Pandu Mundari, in his examination-in-chief, says that on the

seizure memo of the knife he put his signature and identified the same,

which is marked as Exhibit-5/4. In cross-examination, this witness says that

the knife was not recovered in his presence. He put his signature on the

recovery memo of the same at the behest of police.

13.8 P.W.-8, Dr. Arvind Kumar Rajak, in his examination-in-chief, says

that on 03.05.2007, he was posted at Primary Health Center, Bandgaon and

at 04:00 pm, he examined Singi Mundari, daughter of late Pandu Mundari

aged about 18 years and found following injuries: (1) Left arm near elbow

area lacerated wound approx. length 3 inches and breath ½ cm approx.

(2) Right ear area lacerated wound approx. length 1 inch & breath 1mm

approx. Both the injuries were caused by sharp instrument like nail. The

injury report is in his handwriting and signature, which is marked as

Exhibit-6.

13.9 P.W.-9, Palo Mundari, in her examination-in-chief, says that she is

not aware in regard to the occurrence. She is not acquainted with Binod Soy,

how he was murdered, she is not aware. Police did not record her statement.

This witness was declared hostile by the prosecution and was cross-

examined. In her cross-examination, this witness denied her statement given

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to the Investigating Officer under Section 161 of the Code of Criminal

Procedure. In cross-examination by the defence, this witness says that the

deceased Binod Soy was not known to her.

13.10 P.W.-10, Singi Mundari, in her examination-in-chief, says that the

occurrence was of two years ago. She is not aware that Yugal Mundari had

committed murder of Binod Soy. Police has not recorded her statement. She

is not familiar with Binod Soy. This witness was also declared hostile and

cross-examined by the prosecution. In her cross-examination, she denied the

statement given by her to the Investigating Officer under Section 161 of the

Code of Criminal Procedure. In cross-examination by the defence, this

witness says that the accused is his real brother.

13.11 P.W.-11, Smt. Mela Mundari, in her examination-in-chief, says that

she has no knowledge of occurrence. She is not acquainted with Binod Soy.

Police did not record her statement. This witness was also declared hostile

by the prosecution and cross-examined. This witness denied her statement

given to the Investigating Officer under Section 161 of the Code of Criminal

Procedure. In cross-examination by the defence, this witness says how

Binod Soy was murdered, she is not aware.

14. For disposal of this Criminal Appeal following point of determination

is being framed:

“Whether the impugned judgment of conviction and the

order of sentence is sustainable in the eyes of law?”

15. To decide the aforesaid point of determination, this Court averts to

scrutinize the oral as well as documentary evidence adduced on behalf of the

prosecution.

16. The prosecution case is based on the direct evidence. The

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eyewitnesses of the occurrence are P.W.-1, Sanjay Soy; P.W.-2, Lakhinder

Sawasi and; P.W.-10, Singi Mundari; but P.W.-10, Singi Mundari has

turned hostile during trial.

17. The FIR of this case was lodged by P.W.-1, Sanjay Soi. This witness

proved the contents of the written information, which is marked as Exhibit-

1. P.W.-1, Sanjay Soi, in his statement, has stated that on 02.05.2007, he

along with his aide Lakhinder Sawasi left their house to go Laxmi Narayan

High School, Murhu and reached at Bandgaon Bazar. Their batch-mate

Binod Soy met them. Binod Soy asked them to stay at Bandgaon in night.

Binod Soy also asked them to accompany as he was to go to the house of

Palo Mundari, his girlfriend. He and Lakhinder Sawasi were asked by Binod

Soy to stay near mahua tree. He alone went to the house of Palo Mundari,

from there, he brought the bedsheets for them. Singi Mundari, who is the

friend of Palo Mundari, grandmother of Palo Mundari, namely, Mela

Mundari and Palo Mundari herself also came at the agricultural field isolate

place away from the house of Palo Mundari. Thereafter, Palo Mundari and

her grandmother Mela Mundari both left the agricultural field and went to

bring dinner for them. Singi Mundari remained seated there and was

exchanging talk with Binod Soy behind the bush at the isolate place. He and

his friend Lakhinder Sawasi both were also sitting nearby them at some

distance, at the same time, Bishram Budding came there having seen Singi

Mundari sitting along with Binod Soy, he went back to his house and told

Yugal Mundari. Thereafter, Yugal Mundari and Bishram Budding both came

back. Yugal Mundari was armed with knife and he asked Binod Soy why he

was sitting along with his sister at the isolated place and talking with her,

having got no satisfactory explanation, he got infuriated and gave a knife

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blow to Binod Soy on his chest. He also dragged away his sister Singi

Mundari from there. He and his friend Lakhinder both took to injured Binod

Soy to the nearby doctor, but the doctor was not found available, thereafter,

took to his village, where Binod Soy succumbed to injuries.

18. The same kind of statement is given by P.W.-2, Lakhinder Sawasi,

who is also the eyewitness of the occurrence.

19. Both these eyewitness during their examination stated that the police

had also taken the bloodstained soil, bloodstained cloth, shirt, gamcha and

cap as well. Both these witnesses also stated the place of occurrence was

away from basti and also away from the house of Palo Mundari at the

distance of 150 paces. Therefore, the testimony of these two witnesses i.e.

P.W.-1, Sanjay Soy and P.W.-2, Lakhinder Sawasi is to be evaluated in

the light of other prosecution witnesses, who were examined during

trial.

20. P.W.-3, Sanika Soi and P.W.-4, Sukh Ram Soi both are the

witnesses of inquest report and both identified their signature on the inquest

report of the deceased Binod Soy.

21. P.W.-5, Dr. Ashok Kumar Mishra, who conducted the postmortem

of deceased Binod Soy. While conducting the post mortem of the deceased,

he found incised wound medially to right nipple 1”x1/2” x deep to thorax

cavity with the blood coming out from the wound. The cause of death

opined by him is shock and haemorrhage due to abovementioned

injuries caused by sharp cutting substance. He proved the autopsy report

of deceased, which is marked as Exhibit-4.

22. Therefore, from the testimony of P.W.-3, Sanika Soi and P.W.-4,

Sukh Ram Soi, who proved the inquest report of deceased, which is

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marked as Exhibit-3 also stated that there was wound caused to the

deceased and P.W.-5, Dr. Ashok Kumar Mishra, who proved the autopsy

report, which is marked as Exhibit-4 also stated that the deceased died

on account of sustaining ante-mortem injury, which he found one incise

wound medially to the right nipple 1”x1/2” x deep to thorax cavity with

blood coming out from the wound. He also opined that this wound was

caused by sharp cutting weapon, as such, from the medical evidence, the

ocular evidence P.W.-1, Sanjay Soi and P.W.2, Lakhinder Sawasi is also

corroborated.

23. So far as the recovery of knife is concerned, the seizure memo of

the knife is marked as Exhibit-5 on the seizure memo of the knife, the

witness P.W-4, Somal Mundari and P.W.-7, Pandu Mundari both

admitted their signature on the seizure memo of the knife. Both have

stated that they put their signature at the behest of police and stated

that the knife was not recovered in their presence.

24. P.W.-9, Palo Mundari, P.W.-10, Singi Mundari and P.W.-11, Mela

Mundari all these three are also the witness of the fact; but all these

witnesses have turned hostile during examination and all these three

witnesses have stated that they are not aware in regard to the

occurrence. They were not acquainted with the deceased Binod Soy and had

shown their unawareness in regard to the occurrence.

25. So far as the testimony of P.W.-1, Sanjay Soy and P.W.-2, Lakhinder

Sawasi both are the eyewitnesses is concerned, the same is corroborated

with the medical evidence of P.W.-5, Dr. Ashok Kumar Mishra. Merely,

being the friend of deceased, their testimony cannot be discredited.

More so, their presence on the place of occurrence has not been

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questioned at all, neither in cross-examination of the prosecution

witnesses nor in statement of the accused under Section 313 of the Code

of Criminal Procedure and even no defence evidence has been adduced

to that effect on behalf of the accused.

25.1 The Hon’ble Apex Court in the case of Bheru Lal & Ors. Vs. State of

Rajasthan, reported in (2009) 9 SCC 997 held that in criminal trial the

evidence of an interested witness cannot be thrown merely because the

witness is interested witness if the ring of truth is found in version of the

witness.

25.2 The Hon’ble Apex Court in the case of Gangabhavani Vs. Rayapati

Venkat Reddy & Ors. reported in (2013) 15 SCC 298 held that the evidence

of an interested witness cannot be disbelieved merely because they are

related to each other or to the deceased.

25.3 The Hon’ble Apex Court in the case of Satish Narayan Sawant Vs.

State of Goa, reported in (2009) 17 SCC 724 held that in criminal trial the

eyewitness although related to the deceased yet consistent about the

principal act of the appellant in stabbing the deceased. The discrepancies

minor in nature are immaterial.

26. Learned counsel for the appellant has also contended that in this case

neither the knife, which is alleged to be used in commission of the offence

has not been produced nor the same has been sent to SFSL. Even the

Investigating Officer has not been examined, who is alleged to have taken in

custody the bloodstained cloth of the deceased and blood soil from the place

of occurrence.

27. In this case in hand, the knife, with which, the appellant had given

stab blow to the deceased was taken in custody by the Investigating Officer

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and the seizure memo of the same was also prepared. On the seizure memo,

P.W.-4, Somal Mundari and P.W.-5, Pandu Mundari though both have

admitted their signature; yet they have stated that the knife was not

recovered in their presence.

28. Admittedly, the bloodstained cloth and bloodstained soil was not sent

to the SFSL by the Investigating Officer. Even the Investigating Officer was

neither examined during trial to prove the bloodstained cloth of deceased

and bloodstained soil as well, nor the knife was produced reason being that

the Investigating Officer was not examined.

29. Non-examination of the Investigating Officer, non-production of

the weapon and not sending the bloodstained soil and bloodstained cloth

to the SFSL, cannot be said to be fatal to the prosecution case because

the prosecution case is based on direct evidence. The eyewitnesses

account, which is corroborated with the medical evidence shows that the

appellant had given knife blow to the deceased. In cross-examination of both

the eyewitnesses i.e. P.W.-1, Sanjay Soy and P.W.-2, Lakhinder Sawasi, no

contrary conclusion could be drawn to shake the veracity of the testimony of

these witnesses.

29.1 The Hon’ble Apex Court in the case of Md. Zamiludin Nasir Vs.

State of West Bengal, reported in AIR 2014 SC 2587 held that non-

production of a weapon used in attack by the accused is neither fatal to the

prosecution case nor an adverse inference can be drawn, if the case is based

on the witness account.

29.2 The Hon’ble Apex Court in the case of State of Punjab Vs. Hakam

Singh, reported in (2005) 7 SCC 408 held that non sending of the weapon of

assault or cartridge to the ballistic expert for examination would not be fatal

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to the prosecution case if the same is based on ocular testimony, which is

found credible and cogent.

30. So far as the non-examination of the Investigating Officer is

concerned, certainly the testimony of Investigating Officer is required for the

purpose of contradiction or corroboration of the prosecution witnesses.

Herein, during cross-examination of P.W.-1, Sanjay Soy and P.W.-2,

Lakhinder Sawasi, no contradiction was drawn in the testimony of these

witnesses in regard to their statement recorded by Investigating Officer

under Section 161 of the Code of Criminal Procedure and their testimony

given before the trial Court. In the case in hand, the Investigating Officer

even if was not examined; but the same does not corrode the testimony

of the eyewitness, which is well corroborated with the medical evidence.

30.1 The Hon’ble Apex Court in the case of Bihari Rai Vs. State of Bihar

(Now Jharkhand), reported in (2009) 3 SCC (Cr) 1209 held that non-

examination of the Investigating Officer, who had only conducted the

inquest report, which was also exhibited without any objection and there was

no challenge to the correctness of report, held non-examination of

Investigation Officer did not corrode the credibility of prosecution version.

31. Though the prosecution witness P.W.-9, Palo Mundari; P.W.-10, Singi

Mundari and; P.W.-11, Mela Mundari all three witnesses have declared

hostile, but on account of their being hostile, on this ground, the testimony

of other eyewitnesses cannot be doubted.

31.1 The Hon’ble Apex Court in the case of Gurunath Donkappa Keri &

Ors. Vs. State of Karnataka, reported in (2009) 13 SCC 34 held that in

criminal trial merely because the other witnesses turned hostile, the evidence

of remaining witness cannot be doubted on the very ground.

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32. So far as the ocular evidence of P.W.-1, Sanjay Soy and P.W.-2,

Lakhinder Sawasi, which is corroborated with the medical evidence of P.W.-

5, Dr. Ashok Kumar Mishra, it is proved that the appellant-convict had given

stab wound in the chest of deceased Binod Soy because he went to the place

of occurrence and saw his sister sitting along with Binod Soy alone at the

agricultural field at 11:00 O’clock of night, on which, he asked Binod Soy

why he was sitting at the isolated place with his sister, having got no

satisfactory answer, he got provoked and gave one stab wound in his chest of

Binod Soy, which ultimately resulted in death of Binod Soy. Herein the

grave and sudden provocation is proved, on which, the appellant-

convict Yugal Mundari got provoked. Though he had no intention to

cause death of Binod Soy; yet he had knowledge that his act of giving

stab wound was likely to cause death or such bodily injury is likely to

cause death. Therefore, the act of appellant-convict falls within Section

304 Part-II of the Indian Penal Code.

32.1 The Hon’ble Apex Court in the case of Kailash Vs. State of M.P.,

reported in (2006) 11 SCC 420 held that the offence under Section 304 Part-

II of the Indian Penal Code, merely because, the blow given with axe on the

head of the victim who later died, was only one, held not by itself a ground

to hold that the injury was not sufficient to cause death. In such a case an

entire attending circumstances must be taken into consideration for the

purpose of finding out the nature of the actual offence committed.

Paragraph No.23 of the aforesaid judgment reads as under:

“23. The possibility of the deceased, thus, having been hit

by a hard and blunt weapon cannot be totally ruled out. PW

11 in his statement opined that such an injury is also

possible to be caused when a person falls on a solid object.

The fact that there had been a quarrel between the parties is

not in dispute. The dispute between the parties was over the

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construction of a wall. If PW 2 is to be believed, quarrel in

regard thereto had been going on for about a week.

According to the prosecution witnesses, labourers were

engaged to construct the wall. Both the deceased and PW 3

were helping the labourers in regard thereto. If the

construction of the wall was being carried out at the time of

or just before the incident and the construction had reached

up to a height of four feet, the same must have been started

early in the morning. It is only thereafter the accused

persons came and protested. Abuses had been hurled by

both sides. Babulal, as noticed hereinbefore, had suffered

injury. The genesis of the occurrence, thus, cannot be said to

have been proved. All prosecution witnesses attributed

specific overt acts on Babulal as well as Prakash. Except

PW 3 nobody supported the prosecution case in regard to

the alleged overt act on the part of Prakash. The trial Judge

did not also find Babulal to be guilty of commission of

offence. Although the courts below relied upon the evidence

of Savitri, injuries on her person had not been proved. All

the accused persons have been acquitted of the charge of

causing an injury on her. Evidently, there was no

premeditation on the part of the appellant or his associates.

The quarrel must have erupted suddenly. Only one blow was

given. It might be with the blunt side of the axe. It may be

true that only because one blow was hurled, the same by

itself may not be a ground to arrive at a conclusion that the

injury inflicted was not sufficient to cause death but in a

case of this nature the entire attending circumstances must

be taken into consideration for the purpose of finding out

the nature of the actual offence committed.”

32.2 The Hon’ble Apex Court in the case of Ramesh Vithalrao Thakre Vs.

State of Maharashtra, reported in (2009) 17 SCC 438 held that for offence

under Section 304 Part-II of the Indian Penal Code single knife injury on the

chest of deceased inflicted by the accused when deceased intervene to save

her brother from being assaulted. No other injury inflicted by the accused the

offence falls under Section 304 Part-II of the Indian Penal Code.

33. Herein, the case in hand, taking into consideration the attending

circumstances as the appellant-convict having seen his younger sister

sitting along with the deceased at isolated place in jungle at about 11:00

O’clock of night, he lost his temper and on account of grave and sudden

provocation he gave a stab wound to the deceased. This stab wound was

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only single wound, as such, taking into consideration the attending

circumstances and the evidence on record, which is supported with the

evidence on record the offence under Section 304 Part-II of the Indian

Penal Code is made out against the appellant-convict.

34. So far as the offence under Section 324 of the Indian Penal Code is

concerned, the same was on the ground that the appellant-accused has also

inflicted injury to his sister while dragging her from the place of occurrence

to his house. Though the injuries of his sister are proved by P.W.-8, Dr.

Arvind Kumar Rajak; yet the same is not corroborated with the

testimony of P.W.-10, Singi Mundari, wherein she stated that the

appellant-convict has not inflicted any injury to her and she did not get

examined by any doctor in any hospital, as such, the offence under

Section 324 of the Indian Penal Code is not made out against the

appellant.

35. Learned counsel for the appellant has argued on the point of quantum

of the sentence, which was inflicted by the learned Court below. Learned

counsel for the appellant has contended that the appellant was convicted by

the learned Court below with RI of seven years. The appellant-convict has

been facing enquiry, trial and appeal since 2007 and he has served out the

sentence of 3 years, 10 months and 21 days, which is more than half of the

sentence awarded by the learned trial Court. In view of the length of period

in custody and also the appellant-convict has been facing trial, contended to

modify the sentence of the appellant and release him on his custodial

imprisonment, which he had served out in jail.

36. The learned APP appearing on behalf of the State opposed the

contentions made by the learned counsel for the appellant.

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37. In view of the submissions made by the learned counsel for the

appellant and taking into the attending circumstances, in which, the alleged

offence was committed and also taking into consideration the fact that the

appellant has served out the sentence of 3 years, 10 months and 21 days, the

ends of justice will meet, if the appellant-convict is released on custodial

imprisonment, which he had served out for 3 years, 10 months and 21 days.

37.1 The Hon’ble Apex Court in the case of Ananta Deb Singha

Mahapatra & Ors. Vs. State of West Bengal, reported in (2007) 13 SCC 374

at paragraph No.11 held as under:

“11. Coming to the question of sentence we find that 8

years' sentence has been awarded for the offence punishable

under Section 304 Part II. The incident is of the year 1990.

Considering this fact and the background in which the

occurrence took place, custodial sentence of 6 years would

meet the ends of justice.”

38. Herein in this case, the appellant-convict has been facing enquiry, trial

and appeal for last 16 years, therefore, the ends of justice will meet in

modifying the sentence of the appellant from 7 years to his custodial

imprisonment, which he has served out i.e. 3 years, 10 months and 21 days.

As such, this Criminal Appeal deserves to be partly allowed.

39. Accordingly, the impugned judgment of conviction dated 15.02.2011

passed by the learned Additional Sessions Judge, F.T.C.-V, West Singhbhum

in Sessions Trial No. 182 of 2007 for charge under Section 324 of the Indian

Penal Code is set aside; but the conviction of appellant for charge under

Section 304 Part-II of the Indian Penal Code is upheld. The sentence as

awarded by the learned Court below is modified from 7 (seven) years to 3

(three) years, 10 (ten) months and 21 (twenty-one) days, which is custodial

imprisonment already served out by the appellant in jail and the appellant is

released for having served out the custodial imprisonment.

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40. In consequence thereof, this Criminal Appeal is stood partly allowed.

41. The appellant is on bail. Hence, his bail bond is hereby cancelled and

the sureties are discharged from their liabilities.

42. Let the Lower Court Records be sent back to the learned Court below

along with a copy of this judgment.

(Subhash Chand, J.)

Madhav/- A.F.R.