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In the present case, an appeal is preferred against the order of conviction and sentence dated 27.07.2015 whereunder the appellants have been convicted for the offences punishable under Sections 302/34 and 201/34 of I.P.C. and have been sentenced to undergo S.I. for life and a fine of Rs. 10,000/- for the offence under Section 302/34 of I.P.C. No separate sentence has been passed for the offence under Section 201/34 of I.P.C. A division bench comprising of Justice Rongon Mukhopadhyay and  Justice Rajesh Kumar adjudicating the matter of Arti v. The State of Jharkhand(Criminal Appeal (D.B.) No. 1013 of 2015) dealt with the issue of whether to grant bail to the accused or not.

According to the prosecution, an FIR was filed by Jairam Munda stating that the son of the informant had gone to his inlaws’ place on 05.02.2013 at village Panchpadwa in the district of Lohardaga. On 06.02.2013 at about 8 AM, he came to know that his son has been murdered by Boda Munda @ Suman Munda, Birsa Munda @ Runka Munda, Jama Munda @ Sushil Munda and Arti Kumari @ Sukar Kumari. At this, he along with his another son reached Panchpadwa, where he found his son having been murdered and thrown at Panchpadwa Tongri. The reason for the occurrence is that the son of the -2- informant – Mansukh Munda used to remain sick and in spite of being treated at various places, he was not getting well. It has been alleged that the informant and his family members were thinking of taking Mansukh Munda to Devas for treatment and this intention was disclosed to his brother Hadu Munda and on this issue there appeared a fissure in the relationship between the families of the informant and Hadu Munda. It has been alleged that the family of Hadu Munda left for Panchpadwa. The informant had sent his son to bring them back, but they did not return. On 28.01.2013, the son of the informant Markas Munda had died and there was friction between both sides for practicing witchcraft which resulted in the occurrence. The informant could come to know that his son Markas Munda had gone to the house of Bauda Munda on 05.02.2013 and near the doorstop, Arti Kumari had started assaulting him with fists, slaps, and danda. It has been alleged that all the accused persons had dragged Markas Munda towards the jungle and assaulted him on his head with lathi and stones which resulted in his death. It has also been stated that his relation Baura Munda has seen the occurrence.

Based on the facts, a police institute the case under Section 302 & 201/34 of I.P.C. in which after investigation charge-sheet was submitted leading to the taking of cognizance and after the case was committed to the court of Sessions, the charge was framed for the offences punishable under Sections 302/34 & 201/34 of I.P.C. and under Section 3 of the Prevention of Witch (Daain) Practices Act, 1999, to which the accused pleaded not guilty and claimed to be tried.

The appellant stated that the prosecution has miserably failed to prove its case beyond all reasonable doubt. It is submitted that except PW1 and 2 there is no eyewitnesses to the occurrence and their testimony suffers major discrepancies. According to PW1 & 2 stated that it was a dark night and there is no electricity in the village and as such it would have been absolutely impossible to have identified the assailants. The claims of PW1 and 2 are is improbable and unbelievable if his version is taken to be true to the effect that he claims to have seen the accused persons committing the murder of his son-in-law, but neither had he tried to save him nor did he inform this matter to any of the villagers immediately. Learned counsel also submits that as per P.W. 2, the incident is said to have taken place near the house of P.W. 1, but the I.O. has disclosed that the distance between the place of occurrence and the house of P.W. 1 is about half a km. He further submits that nothing -6- has been stated as to whether P.W. 1 and P.W. 2 had followed them which further nullifies the story created by P.W. 1 and P.W. 2 to implicate the appellants. Learned counsel submits that as per P.W. 1, both the sides were on inimical terms and hence the false implication of the appellant cannot be ruled out. On such parameters, learned counsel for the appellants has stated that the present appeal is allowed.

The Opposite part submitted that the eye-witnesses of the occurrence and their evidence are cogent, convincing, and believable, and therefore, conviction of the appellants under Section 302/34 and 201/34 of I.P.C. has rightly been done.

The Court held that” The prosecution has tried to build an edifice based on the evidence of P.W. 1 and P.W. 2 who have started to have seen the occurrence relating to the son of the informant namely, Markas Munda being subjected to assault by the appellants with stone and tangi. However, the edifice crumbles once the cross-examination of P.W. 1 and P.W. 2 is taken into consideration. P.W. 1 in very categorical terms has stated in his cross-examination that it was difficult for the persons to be recognized who was standing at a distance on account of the darkness. He has further admitted that it was a dark night. According to the evidence of P.W. 1, he out of fear had returned back to his residence which conduct appears to be totally contrary to what one would expect in such a situation when the son-in-law of the P.W. 1 is being done to death and he neither informs the villagers nor raises any alarm, but rushes to his house and stays put. On a court question, he has stated that from the place of occurrence, he was at a distance of 150 feet and considering the darkness which had engulfed the area and the distance from where the incident is said to have been seen by P.W. 1, it totally nullifies the prosecution case with respect to the identification of the appellants being the assailants. Similarly, the evidence of P.W. 2 is fraught with major discrepancies as he has stated that he had not seen any person in the place of occurrence and that he had never disclosed the incident to the villagers. This witness has also admitted that there is no electricity in the village. He has also stated about total darkness The evidence of the other witnesses do not energise the prosecution case and the falsity of the allegations levelled against the appellants lie threadbare on a dissection of the evidence of the so-called eye-witnesses P.W. 1 and P.W. 2 as has been taken note of earlier.

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