Dungdung Vs. State of
 Insc 607 (4 October 2004)
B.N.AGRAWAL & A.K.MATHUR 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 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
During trial, the prosecution examined several witnesses and got 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
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
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 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
Second circumstance has been proved by PW 1 and PW 7 in whose presence,
investigating officer 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 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 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 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 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 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.