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Jharkhand High Court · body

2009 DIGILAW 50 (JHR)

Petar Soy v. State of Jharkhand

2009-01-12

D.G.R.PATNAIK, R.K.MERATHIA

body2009
JUDGMENT R.K.MERATHIA, & D.G.R.PATNAIK, JJ. This appeal has been directed against the judgment dated 14.5.1999 passed by learned IInd Additional Sessions Judge, Khunti in Sessions Trial No. 268 of 1998 convicting the appellant under Sections 302/34 and 201 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life for Section 302/34 and to undergo rigorous imprisonment for five years for the offence under Section 201 of the Indian Penal Code. However, the sentences were ordered to run concurrently. 2. The prosecution case, in short, was that the informant Santosh Soy (P. W. 1) lodged a written report to the effect that Markus Soy, his son of elder wife Sonmati Ramdi (P.W. 3) informed him that when he and his mother-Sonmati Ramdi (the deceased) were preparing for sleep on 30.12.1996 at about 8 to 9 P.M., the appellant and one Enam Lohra entered into the house and assaulted the deceased with fists and slaps. In the light of Dhibri, they were identified by P.W. 3. It was further said that during said assault, the deceased fell on a stone causing bleeding head injury. When P.W. 3 tried to save her, he was also assaulted by fists and slaps upon which he fell on the ground having bleeding head injuries. P.W. 3 hide under a cot. The appellant and Enam Lohra dragged the deceased outside the house. The deceased was crying for help. The appellant and Enam were saying that due to witchcraft practiced by the deceased, the brother of the appellant-Johan Munda died three months back and therefore, they will not leave her. Thereafter, P.W. 3 came to the informant and informed about the occurrence. The case was registered under Sections 364/34 of the Indian Penal Code. The dead body was recovered from a well on 2.1.1997. The police submitted charge-sheet under Section 302 & 201/34 of Indian Penal Code. Both the accused persons were charged accordingly to which they pleaded not guilty and claimed to be tried. 2. The prosecution examined 8 witnesses. P.W. 1 Santosh Soy-is the informant; P.W. 2 Mary Soy is the Gotni of the deceased; P.W. 3 Markus Soy, the son of the informant and the same is the sole eye witness; P.W. 4 Sammuel Soy is own brother of the informant who was informed by P.W. 3 about the occurrence; P.W. 5 Dr. The prosecution examined 8 witnesses. P.W. 1 Santosh Soy-is the informant; P.W. 2 Mary Soy is the Gotni of the deceased; P.W. 3 Markus Soy, the son of the informant and the same is the sole eye witness; P.W. 4 Sammuel Soy is own brother of the informant who was informed by P.W. 3 about the occurrence; P.W. 5 Dr. Lalita Verma is the Medical Officer who conducted the post mortem report; P.W. 6 Emmanuel Bodra is the Mukhiya; P.W. 7 Karan Singh Munda is the witness who proved the recovery of the dead body from well and P.W. 8 Shaligram Choudhary is a formal witness. Besides the said witnesses, the prosecution got certain documents exhibited. 3. Mr. Dayal, learned counsel appearing for the appellant submitted that the whole case is based on the testimony of a child witness-P.W. 3 who was aged about 12 years and his evidence can not be relied for maintaining conviction of the appellant. 4. It is true that P.W. 3 is the only eye witness, but the trial court tested and found him capable of giving evidence. His evidence regarding manner of occurrence finds support from the medical evidence. There is corroboration on record on all material particulars of the prosecution’s case. We are not inclined to hold that the evidence of P.W. 3 cannot be relied. 5. However, the question is whether the appellant had intention to kill the deceased. Admittedly, the appellant and co-accused Enam Lohra assaulted the deceased with fists and slaps on the suspicion that the brother of the appellant died three months back as the deceased had practiced witchcraft. Admittedly, during such assault she fell on a stone due to which she got bleeding head injury. From the post mortem report, it appears that cause of death was the bleeding head injury and consequent shock. Injury no. 1 was found sufficient to cause death which was lacerated injury about 6 ½” x 1 ½” x 1” right side behind ear extending towards the occipital bone. Mastoid bones were fractured. The other injury was lacerated injury below left eye about 1” x ½ “x ¼ “. The doctor also said that such injury is might be caused also by fall from height on stone or like thing. 6. Mastoid bones were fractured. The other injury was lacerated injury below left eye about 1” x ½ “x ¼ “. The doctor also said that such injury is might be caused also by fall from height on stone or like thing. 6. Thus, it appears that the appellant had knowledge that such assault is likely to cause death, but the facts and circumstances and the evidence is not sufficient to hold that he had intention to cause death of the deceased. The dead body was found in the well. The doctor has not said that the deceased died due to drowning. 7. In the facts and circumstances, we are inclined to uphold the conviction and sentence under Section 201 of Indian Penal Code, but convert the conviction under Section 302/34 of Indian Penal Code into a conviction under Section 304 Part II of the Indian Penal Code. On the question of sentence, the trial court observed that the appellant is aged about 25 years and belongs to a member of Scheduled Tribe and was labouring under superstitious belief that due to witchcraft practiced by the deceased, his brother died. It appears that the appellant has remained in jail for about 12 years. Accordingly he is sentenced to the period already undergone by him in jail. The appellant is therefore directed to be released forthwith, if not wanted in any other case.