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2011 DIGILAW 1124 (JHR)

Simon Barla v. State of Jharkhand

2011-12-20

D.N.UPADHYAY, R.K.MERATHIA

body2011
JUDGMENT By Court.- This appeal arises out of the judgment and order of conviction and sentence dated 22.6.2002 and 25.6.2002 respectively, passed by the Sessions Judge, Simdega in Sessions Trial No. 47 of 2000, arising out of Thetai Tangar P.S. Case No. 28 of 1999 corresponding to G.R. No. 270 of 1999 convicting the appellant No. 1 Simon Barla under Section 302/34 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for one year and convicting the appellant No.2 Ciril Barla under Section 302 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for life and pay a fine of Rs. 500/- and in default to undergo rigorous imprisonment for one year. 2. The prosecution case in short is that the informant P.W. 5 Ciril Ekka lodged ferd beyan before the Officer-incharge, Thetai Tangar P.S. on 8.11.1999 at 9.00 a.m. that in the previous evening i.e. on 7.11.1999 at about 5 p.m., his wife aged about 35 years (deceased) went to fetch water from a hand-pump situated near the house of P.W. 4 Teofil Ekka. H9 and his brother P.W. 6 Tanis Fkka rushed towards hand-pump on hearing the cry and saw that appellant no. 1 Simon Barla was holding his wife after throwing her on the ground and appellant no. 2 Ciril Barla was severing her neck. When these P.Ws. went there, the appellants threatened them. The head of wife of the informant was cut. The appellants chased these P.Ws. for assaulting them due to which they fled away. It is then alleged in the F.I.R. that reason for that incident was that about four years back, the appellants called the deceased as 'Dian' (witch) for which there was a panchayati and the matter was settled, but about 15 days back, the son and the daughter of appellant no. 2 Ciril Barla died due to which the appellants cut her neck thinking that she had haunted witchcraft. 3. The prosecution examined altogether eight witnesses. PW-1 is a formal witness. He is the witness to the seizure of blood stained soil. P.Ws. 1 and 2 are hostile witnesses. P.W. 3 is Dr. K.D. Choudhary, who conducted post mortem on the deceased. P.W. 4 is inquest witness. P.W. 5 is the informant who is an eye witness. 3. The prosecution examined altogether eight witnesses. PW-1 is a formal witness. He is the witness to the seizure of blood stained soil. P.Ws. 1 and 2 are hostile witnesses. P.W. 3 is Dr. K.D. Choudhary, who conducted post mortem on the deceased. P.W. 4 is inquest witness. P.W. 5 is the informant who is an eye witness. P.W. 6 is the brother of the P.W.5 and he is also an eye witness. P.W. 7 is a witness who saw the dead body near hand-pump. P.W. 8 is Investigating Officer. 4. Mr. Pramod Kumar, learned counsel appearing for the appellants submitted that it is surprising that F.I.R. was not lodged in the evening itself and on the next day, the police on secret information of the alleged crime, lodged the F.I.R. Even, chowkidar of the village, who is only one kilometer away, was not informed. There are vital contradiction in the deposition and weapon alleged to have been used in the crime has not been recovered. Neither the blood stained soil nor the blood stained cloth has been chemically examined or produced before the trial Court. P.W. 7 said that the appellants had gone with him fur grazing the cattle. Though, it was Dipawali, evening and independent witness must be available, but none of them has been examined. 5. On the other hand, learned A.P.P. has fully supported the impugned judgment. 6. In our opinion, the prosecution has fully proved its case beyond all reasonable doubt. Doctor has fully supported the manner of occurrence corroborating that the neck of the deceased was cut. He also found some injuries in the fingers of the deceased. There is no reason to disbelieve the statement of eye witness P.Ws. 5 and 6. P.W. 7 has stated that in the evening, the appellants returned with him after grazing cattle. It cannot tie said that at the time of alleged occurrence which took-place in the evening, the appellants could not be present. This is a case of direct evidence. Therefore, non-seizure of weapon of assault and non-production of the chemical analysis report of blood stained soil or the blood stained cloth are not adversely affecting the prosecution case. The submission of learned counsel for the appellants that the allegation of cutting neck is only against appellant no. 2 Ciril Barta and not against the appellant no. 1 Simon Barla. Therefore, non-seizure of weapon of assault and non-production of the chemical analysis report of blood stained soil or the blood stained cloth are not adversely affecting the prosecution case. The submission of learned counsel for the appellants that the allegation of cutting neck is only against appellant no. 2 Ciril Barta and not against the appellant no. 1 Simon Barla. Such submission also cannot be accepted as the prosecution case is consistent that Simon Barla was catching hold the leg of the deceased and Ciril Barla was cutting the neck. Thus, both had taken part with an intention to kill the deceased. 7. In the facts and circumstances, we find no reason to interfere with the impugned judgment. Accordingly, this appeal is dismissed.