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2000 DIGILAW 1033 (PAT)

Nata Sinku v. State Of Bihar

2000-08-22

A.K.PRASAD, N.PANDEY

body2000
Judgment 1. This appeal at the behest of the sole appellant Nata Sinku is directed against the judgment and orders dt. 19th August, 1991, in ST No. 500 of 1989 passed by the then 2nd Additional Sessions Judge, Singhbhum (West) at Chaibasa, whereby he has been convicted under Section 302 of the Indian Penal Code, 1860 on the charge of committing the murder of Sankati Kui and sentenced to undergo rigorous imprisonment for life. 2. Briefly, the prosecution case, as made out in the first information report (Exhibit 1) is as under: Budhram Sinku (PW 1), the informant and husband of the deceased, was living at his Sasural at village Megra within P.S. Jagannathpur. In the morning hour on 22.9.1988, he had gone to graze the bullock of his master (Jogen Sinku) and returned home in the evening after taking Hadia drink. On the way he met Jonga Champia (PW 2) his mother-in-law, who was coming from Kocha market, who disclosed that accused/appellant Nata Sinku detained Sankati Kui, his wife on the verandah of the house, who had bleeding wounds on head and eye, where accused/appellant Nata Sinku, armed with Danda and iron rod, was assaulting her. She further narrated that when his mother-in-law had asked Sankati Kui to return home, the accused/appellant said that she would not go until she cures his daughter who was in the spell of witchcraft. The informant and his mother-in-law did not again visit the house of Nata Sinku on fear and slept in the night at their home. On the next morning, on enquiry and search, the dead body of Sankati Kui was found in the field of Sahu Sinku in village Mogra. It is alleged that the accused/appellant Nata Sinku had thrown her dead body there. The informants mother-in-law (Dungri Guria), his niece and other villagers were the witnesses to the occurrence. The motive alleged for the murder of the deceased (Sankati Kui). the informants wife, is that accused/ appellant Nata Sinku suspected that by witch-craft, his daughter suffered from ailments. On 24.9.1988 at about 6 p.m. the informant (Budhram Sinku) lodged the first information report (Exhibit 1) with Jagannathpur Police Station about the incident. The motive alleged for the murder of the deceased (Sankati Kui). the informants wife, is that accused/ appellant Nata Sinku suspected that by witch-craft, his daughter suffered from ailments. On 24.9.1988 at about 6 p.m. the informant (Budhram Sinku) lodged the first information report (Exhibit 1) with Jagannathpur Police Station about the incident. On the basis of the first information report (Exhibit 1) the present case came to be instituted the investigation commenced, the police officer visited and inspected the place of occurrence, held inquest over the dead body of Sankati Kui, sent it for post- mortem examination and on completion of investigation chargesheet was laid in Court against the sole accused (Nata Sinku). 3. The case was, ultimately, committed to the Court of Sessions by order dated 7.9.1989 passed by the then Chief Judicial Magistrate, Singhbhum (West) at Chaibasa. 4. The main defence is of innocence, bare denial that the accused had assaulted the deceased to death and of false implication. 5. At the trial, the prosecution examined six witnesses in support of its case. Out of them, PW 6 (Md. Mujib) an advocates clerk, is the formal witness, who has proved the first information report (Exhibit 1). the inquest report (Exhibit 2), and the post-mortem report (Exhibit 3). The other PWs. are: PW 1 (Budhram Sinku) the informant, PW 2 (Jonga Champia), mother-in-law, PW 3 (Dungri Guria), PW 4 (Belong Kui). widow daughter of PW 2, and PW 5 (Namsi Champia) daughter of PW 4. The defence, on the other hand, did not examine any witness. 6. On consideration of the materials on record and mainly relying on the testimony of PWs 2, 3, 4 and 5, the trial Court found the accused/appellant guilty of the charge under Section 302 of the Indian Penal Code and Convicted and sentenced him, as stated above. 7. While assailling the impugned conviction, Mr. 6. On consideration of the materials on record and mainly relying on the testimony of PWs 2, 3, 4 and 5, the trial Court found the accused/appellant guilty of the charge under Section 302 of the Indian Penal Code and Convicted and sentenced him, as stated above. 7. While assailling the impugned conviction, Mr. R.C.Khatri, learned counsel for the appellant, has urged that the informant (PW 10 and PW 4, in fact, are not eye-witnesses to the occurrence; that the Investigating Officer or the doctor, who had performed the post-mortem examination have not been examined in the case and there is no eye-witness on the point that the accused/appellant, in fact, had thrown the dead body in the field of Sahu Sinku, and, in the alternative, he urged that in absence of the examination of the doctor, the conviction of the appellant under Section 302 of the Indian Penal Code cannot be sustained and, at best, the case would fall within the ambit of Section 326 of the Indian Penal Code. Mr. N.N. Mahto, learned APP appearing on behalf of the State, on the other hand, has supported the impugned judgment. 8. The point that falls for consideration is; whether the appellant was instrumental in the murder of the deceased. 9. One may now proceed to discuss and analyse the evidence of PWs 1 to 5 on the involvement of the sole accused/appellant in causing the death of Sankati Kui. PW 1 (Budhram Sinku) has testified to the effect that on the date of the occurrence he had gone to graze the cattle of Jogen, where after on returning to the house of (sic), he went to the house of Mana and drank Hadia and then he was returning, he met Jonga Champia (PW 2), his mother-in-law. He learnt from her that accused Nata Sinku had taken away Sankati Kui, his wife, assaulting her, to his home and when he visited the house of the accused, he found blood on the body of Sankati Kui. and thereafter this witness returned home and when on the next day, he went in search of his wife, he found her corpse in the field, and. ultimately, he lodged the first information report with the police station (Exhibit 1). and thereafter this witness returned home and when on the next day, he went in search of his wife, he found her corpse in the field, and. ultimately, he lodged the first information report with the police station (Exhibit 1). This witness has admitted in his cross-examination that he did not witness the actual occurrence and when on the next morning, he woke up he came to know about the murder of the deceased. Thus, PW 1 is a hear-say witness and not an eye-witness to the alleged occurrence. PW 2 (Jonga Champia), the mother of the deceased, has testified to the effect in chief-examination that when on the fateful Friday, she was returning from (sic) Hat. on the way she met her grand-daughter. She reported to her that accused Nata Sinku had taken away Sankati Kui. assaulting with Danda in his hand, where after this witness went to the house of the accused, found wound on her body and when she called her, the accused threatened to assault her as well, where after she returned home and on the next day her dead body was found in the field of the village. It has come in her cross-examination that by the time she brought water for Sankati Kui from her house, which is at a short distance, both the accused and Sangati Kui were not present at the house of the accused. It has come in her cross-examination that she had visited the court-yard of the accused before the sun-set. In-spite of searching cross-examination, she is consistent in her evidence that she had seen Sankati Kui, her daughter with wounds in the house of the accused. PW 3 (Dungri Guria) has testified to the effect that she was residing with her maternal-grand-mother (PW 2) and on the date of occurrence when she returned home after scrapping grass, she saw that the accused (Nata Sinku) as assaulting Sankati Kui saying that she was witch and she witnessed the accused forcibly taking away Sankati Kui from her house towards his own house, assaulting her with Danda and Iron rod and she was frightened at the fight site and had narrated the incident to her maternal-grand-mother (PW 2). It has come in her cross-examination that this witness and the deceased Sankati Kui had returned home together, when the accused came, assaulted and took her away. It has come in her cross-examination that this witness and the deceased Sankati Kui had returned home together, when the accused came, assaulted and took her away. She has asserted in cross-examination that she had witnessed the assault on Sankati Kui and out of fear she fled and narrated the incident to PW 2. It has further come in her cross-examination that the accused had assaulted Sankati Kui on her head abdomen and back. Inspite of searching cross-examination, she is consistent in her evidence that the accused had assaulted and taken away Sankati Kui to his house. PW 4 (Pelong) another widow daughter of PW 2 has stated in chief-examination that on the date of occurrence she had returned home at about 4 p.m. in the company of Dungri Guria, her sisters daughter and Namshi, her daughter, when the accused/ appellant came, armed with iron rod uttering that Sankati Kui is a witch and he assaulted her and in fear, this witness went inside the house, while accused Nata Sinku dragged Sankati from the court-yard, assaulted her with iron red and took her to his own house and when the accused threatened to assault other female members, they fled away and on the next day her dead body was found in a field in the village. In cross- examination, she has stated that she cannot state about the parts of the body on which the accused/appellant had assaulted the deceased. An stray statement has come in her deposition that she had deposed about what she has heard. This part of her statement indicated that she is not an eye-witness to the actual assault made on the deceased. PW 5 (Nanshi Champia). daughter of PW 4, has stated in chief-examination that she had returned home by dusk on the date of the occurrence, when she saw the accused Nata Sinku coming to her house armed with iron rod incurring that he would finish Sankati and Sankati shut herself in the house, but the accused Nata Sinku forcibly opened the door, dragged her out from the court yard, assaulted and took her towards his house and in fear she did not raise any alarm or intervened to save her and on the next morning her dead body was found in the field. She has clearly asserted in her evidence that she had witnessed the actual act of the occurrence when the accused had forcibly taken away Sankati Kui from the house assaulting her. Inspite of searching cross-examination she is consistent in her evidence on the point that the accused had come assaulted and taken away the deceased. The evidence of PW 3 corroborates her testimony. The evidence of PWs 2, 3 and 5 establish beyond doubt that the accused had assaulted the deceased and taken her to his house where after her dead body was found. There is no material on record to even remotely suggest that they have any animous against the accused/appellant. It does not stand to reason as to why they would spare the real culprit and falsely implicate the appellant. No material contradiction has been taken in the cross-examination by the defence vis-a-vis their evidence in Court and their statement before the police. Their evidence gives the ring of truth. 10. It has now to be considered as to what offence has been committed by the accused/appellant. 11. The identity of the place of occurrence has been established by the ocular testimony of PWs 2, 3 and 5. It is not the defence version that the occurrence had taken place else where. No vital contradiction has been taken by the defence from the eye-witnesses, namely, PWs 2, 3 and 5 with reference to their statements made before the police and their evidence in Court. The defence has failed to demonstrate that any serious prejudice has been caused to it for non-examination of the Investigating Officer. Hence, the failure on the part of the prosecution to examine the Investigating Officer, in the circumstance of the case, does not materially affect the prosecution case. The doctor, who performed the post-mortem examination has not been examined in the case. The postmortem report of the deceased has been brought on record by getting it proved by the formal witnesses. It shows that the deceased has met with violent death and there was massive lacerated would on the fore-head with fractured scalp. In case of post-mortem report, the right person for substituting in place of the doctor who held autopsy would be another doctor competent to reply the question to be put on behalf of both the prosecution and the accused. In case of post-mortem report, the right person for substituting in place of the doctor who held autopsy would be another doctor competent to reply the question to be put on behalf of both the prosecution and the accused. No other doctor has been examined by the prosecution to seek his opinion about the cause of death on the basis of the facts recorded in the post-mortem report. Hence, in the circumstances, in absence of examination of the doctor, who performed the post-mortem examination or any other doctor for his opinion about the cause of death, the conviction of the appellant under Section 302 of the Indian Penal Code cannot be sustained. As such, the conviction of the appellant is altered to one under Section 326 of the Indian Penal Code. It has been submitted that the accused/appellant is in custody since 6.12.1988, i.e. for more than 11 years. Hence, in the circumstances of the case, the sentence of rigorous imprisonment for life imposed on the appellant by the trial Court is modified to rigorous imprisonment for ten years. 12. In the result, this appeal is dismissed with the modification in the orders of conviction and sentence, as indicated above. By now the appellant has served out the modified period of sentence of ten years rigorous imprisonment. Hence, he is directed to be released from custody forthwith, if not required in any other case(s).