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CASE NO.: Appeal (crl.)  360 of 2004

PETITIONER: Anjlus Dungdung                                                          

RESPONDENT: State of Jharkhand                                                       

DATE OF JUDGMENT: 04/10/2004

BENCH: B.N.AGRAWAL & A.K.MATHUR  

JUDGMENT: J U D G M E N T

B.N.AGRAWAL, J.  

       The appellant-Anjlus Dungdung along with his brother Jowakim  Dungdung, accused Silbestor Dungdung and  Rajesh Yadav @ Raju Gowala  was chargesheeted by the police.  Before the commencement of trial as  Jowakim Dungdung died, the other three accused persons, including the  appellant, were tried and by judgment rendered by the trial court, all of them  were convicted under Section 302/120B of the Penal Code.    So far the appellant is concerned, he was awarded death penalty whereas  other two accused persons were sentenced  to imprisonment for life.  All the  three accused persons were further sentenced to pay a fine of Rs. 2,500/-  each, in default to undergo rigorous imprisonment for a period of six months.   On appeal being preferred before the High Court of Jharkhand, their  conviction and sentence have been upheld.          The short facts are that on the basis of fardbayan of one Kajmir  Kerketta \026 informant  (PW 19) recorded on 24th November, 1998 at 5.30 p.m.,    a First Information Report was drawn up at Simdega police station on the  same day at 10.30 p.m. against unknown persons in which it was stated that  the informant  was next door neighbour of Benedik Dungdung and on 23rd  November, 1998 at about 7.00 p.m., he had seen Benedik Dungdung and his  family members in their house.  On 24th November, 1998, as nobody came  out from the house of Benedik Dungdung till 7.30 in the morning, the  informant went to the courtyard and found that Benedik Dungdung along with  his wife and four children was lying dead in the house, whereafter he informed  about the same to the other villagers.  It was further stated  that a land dispute  was going on between Benedik Dungdung (one of the deceased) and the  appellant, who was nobody else than his nephew, for which panchayati was  also held in the village sometime before the date of the alleged occurrence  which was never attended by the appellant and his brother rather they had  given out threats to kill the deceased.   In the month of September, 1998, a  letter was received by Jowakim Dungdung  stating therein that the appellant  had died.  It was also stated  that there was rumour in the village that the  appellant with the help of  accused Jowakim Dungdung and others murdered  Benedik Dungdung, his wife and four children.          The police after registering the case took up investigation, during the  course of which, it is said to have recovered the aforesaid letter as well as  bloodstained balwa and tangi on the disclosure statement made by accused  Rajesh Yadav @ Raju Gowala apart from the recovery of one torch cell, knife  and a railway ticket from the pocket of the appellant.  Upon the conclusion of  investigation, the police submitted chargesheet against the aforesaid accused  persons, including the appellant, but as accused Jowakim Dungdung died,  only three accused persons  were tried.          Defence of the accused persons was that they were innocent, had no  complicity with the crime but falsely implicated in the present case because of  animosity.   

       During trial, the prosecution examined several witnesses and got

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various documents exhibited.  Defence, however, did not examine any  witness.  Upon the conclusion of trial, the learned Additional Sessions Judge  convicted the three accused persons, including the appellant, as stated  above, and the same was confirmed in appeal by the High Court.  Against the  order of conviction, accused Rajesh Yadav @ Raju Gowala and Silbestor  Dungdung did not move this Court whereas the present appeal by the  appellant on leave to appeal having been granted.  

       Undisputedly, in the present case, there is no direct evidence but it is a  case of circumstantial evidence.  In order to prove its case, the prosecution  has relied upon following circumstances against the accused persons: - I)      The appellant had a motive to murder the deceased-Benedik  Dungdung and his family members as a land dispute was going  on from before the date of the alleged occurrence between him  and the deceased - Benedik Dungdung, who was his uncle,  leading to the  murder of the deceased by him in conspiracy with  his brother Jowakim  Dungdung besides accused Rajesh Yadav  @ Raju Gowala and Silbestor Dungdung, who were nobody else  than his labourers.  

II)     In the month of August, 1998, the appellant had gone  to Punjab  in search of a job and only after a month, i.e., in the month of  September, 1998, he sent a letter to his brother Jowakim  Dungdung, purported to have been written and signed by one  Jiwan Tirkey, although the same was written and signed by him,  informing thereunder that the appellant had died.  

III)    Four to five days before the date of the alleged occurrence, the  appellant came to the village of occurrence, as would appear  from a railway ticket recovered from his pocket, and was seen in  the village  by Vinsent Toppo (PW 18).  

IV)      Recovery of one torch cell and knife from the pocket of the  appellant.  

V)      Upon disclosure statement made by accused Rajesh Yadav @  Raju Gowala, the bloodstained balwa and tangi were recovered  by the police.  

       So far as the first circumstance, i.e., the motive is concerned, the  prosecution  has examined Silas Kerketta (PW 1), Fransis Kerketta (PW 2),  Albinus Kerketta (PW 3), Patrik Kerketta (PW 4), Bhimsent Kerketta (PW 5),  Abhinash Topno (PW 7), Walter Kerketta (PW 11), Mariyanus Dungdung (PW  12), Vinsent Toppo (PW 18) and informant \026 Kajmir Kerketta (PW 19) who  have consistently stated in their statements that a land dispute was going on  between the deceased - Benedik Dungdung and the appellant & his brother  Jowakim Dungdung.  They further stated that a panchayati was also held in  the village which was not attended by the appellant and his brother rather they   had given out threats to kill the deceased. Neither any infirmity could be  pointed out in the evidence nor we find any ground to disbelieve the same on  this count.  Thus, we hold that the prosecution has proved motive for  commission of the offence.          Second circumstance has been proved by PW 1 and PW 7 in whose  presence, investigating officer \026  Subodh Kumar Jaiswal  (PW 20) recovered  the letter from the house of the appellant.  The statement of these witnesses  is corroborated by the evidence of PWs 2,3,11, 12 and 19 who also stated  that they had learnt that appellant had written a letter to accused Jowakim  Dungdung  informing him that the appellant had died.  Though the appellant  has denied his handwriting on the letter but the same tallied with his specimen  writing taken in Court.  Thus, the prosecution has proved that the appellant  had written a letter to  accused Jowakim Dungdung informing him that the  appellant was dead.  

       Third circumstance is that four to five days before the date of the  alleged occurrence the appellant had come to his village and seen in village

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Simdega by Vinsent Toppo (PW 18).  The fact that the appellant came to the  village of occurrence, four to five days before the date of occurrence from  Punjab is proved by the railway ticket which was recovered from his pocket by  the investigating officer PW 20 in presence of Govind Sao (PW 13) and  Benjamin Kullu (PW 14), who have consistently supported the factum of  recovery.  As regards the fact that the appellant was seen in village Simdega  four to five days before the date of the alleged occurrence by PW 18, the best  evidence in this regard is that of PW 18 who has categorically stated in court  that he had seen the appellant in village Simdega four to five days prior to the  date of the alleged occurrence and the same is consistent with his statement  before the police.  That apart, evidence of PW 18 is corroborated by PWs 1, 7  and 12 who stated that PW 18 disclosed before them that he had seen the  appellant in village Simdega four to five days before the date of the alleged  occurrence.  Thus, the prosecution has successfully proved this circumstance  as well.   

       Fourth circumstance is recovery of one torch cell as well as a knife  from the pocket of the appellant after the alleged occurrence which has been  proved by PWs 13 and 14 in whose presence, the said articles were  recovered by the investigating officer \026 PW 20.  No infirmity could be pointed  out in the evidence of these witnesses.  

       Last circumstance is recovery of bloodstained balwa and tangi upon  the disclosure statement made by accused Rajesh Yadav @ Raju Gowala.  In  order to prove this circumstance,  prosecution examined Radha Prasad Sao  (PW 8) in whose presence the same are said to have been recovered, but this  witness has categorically stated that nothing was recovered in his presence.   He has further stated that seizure memo was prepared near his house which  was signed by him and the same shows that it was not prepared at the  alleged place of recovery.  Thus, the solitary seizure witness has not  supported the factum of recovery and in view of his statement, it is not  possible to place reliance upon the evidence of the investigating officer \026 PW  20 who stated that he recovered  balwa and tangi in the presence of PW 8 on   disclosure statement made by accused Rajesh Yadav @ Raju Gowala.  

       Thus, from the aforesaid discussion, it would be clear that out of the  five circumstances, the prosecution has failed to prove the recovery of blood  stained balwa and tangi upon the disclosure statement of accused Rajesh  Yadav @ Raju Gowala by credible evidence.  The circumstance that the  appellant came to his village from Punjab four to five days before the date of  the alleged occurrence and was seen by PW 18 in village Simdega cannot be  said to be an unnatural conduct on the part of the appellant, as such the same  cannot be taken as a circumstance against him.   Recovery of one torch cell  and knife from the pocket of appellant after the date of alleged occurrence   cannot be used as a  circumstance against him, especially when neither there  is any case nor evidence that the knife recovered was stained with blood.   The other circumstances which remain are motive and  letter written by the  appellant giving false information to his brother that he was dead.  These two  circumstances  raise strong suspicion against the appellant, but it is well  settled that suspicion howsoever strong it may be cannot take the place of  proof.   In any view of the matter, on the basis of these circumstances, it is not  possible to draw an irresistible conclusion which is incompatible with  innocence of the appellant so as to complete the chain.  It is well settled that  in a case of circumstantial evidence, the chain of circumstances must be  complete and in case there is any missing link therein, the same cannot form  the basis of conviction.        For the foregoing reasons, we are of the opinion  that prosecution has failed to prove its case beyond reasonable doubt against  all the accused persons, much less the appellant.   

We find cases of accused Rajesh Yadav @ Raju Gowala and          Silbestor Dungdung stand on the same footing as that of the appellant, though  their conviction was upheld by the High Court and no appeal has been  preferred to this Court.   It is well settled that in such circumstances, this  Court, in the exercise of powers under Article 136 of the Constitution, can set  aside their conviction as well in spite of the fact that they did not prefer any

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appeal to this Court if, in its opinion, their case also stands on the same  footing.  Reference in this connection may be made to the decision of this  Court in the case of Pawan Kumar Vs. State of Haryana, (2003) 11 SCC  241, in which case even though no appeal was preferred by one of the  accused, but while hearing appeal of another accused, this Court having  doubted veracity of the prosecution case in its entirety, interfered with the  conviction of that accused also who did not prefer any appeal to this Court.   Thus, we are of the view that accused Rajesh Yadav @ Raju Gowala and  Silbestor Dungdung are also entitled to acquittal along with the appellant.   

Accordingly, the appeal is allowed, the conviction and sentence of  appellant, accused Rajesh Yadav @ Raju Gowala and Silbestor Dungdung  are set aside and all of them are acquitted of the charge.  The appellant,  accused Rajesh Yadav @ Raju Gowala and Silbestor Dungdung are directed  to be released forthwith if not required in connection with any other case.