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Jharkhand High Court · body

2014 DIGILAW 88 (JHR)

Sukhlal Sirka @ Lusa v. State of Jharkhand

2014-01-15

D.N.PATEL, P.P.BHATT

body2014
JUDGMENT D.N. Patel, J. 1. The present appeal has been preferred by the appellant-accused against the judgment of conviction and order of sentence both dated 21st July, 2003 passed by the Additional Sessions Judge, Fast Track Court-III, Chaibasa in Sessions Trial No. 24 of 2003 whereby the present appellant-accused has been mainly punished for an offence under Section 302 of the India Penal Code for life imprisonment and is also punished for rigorous imprisonment for three months under section 3 of the Prevention of Witchcraft (Daain) Practices Act, 1999 and is further rigorous imprisonment for six months under Section 4 thereof. However, all the sentences were ordered to run concurrently. Against this judgment of conviction and order of sentence, the present appeal has been preferred. 2. Case of the prosecution is that on 01.08.2002 at 15.00 hours (i.e. 3.00 p.m.), the informant Munni Sirka (PW.2) gave fardbeyan to police at Rajkiya Hospital, Kumardugi that on 01.08.2002 at 8.00 a.m., the informant with her mother Chandu Kui Sirka (deceased) had gone to her paddy field for weeding grass, which was situated under village – Jaldiha at Matkamdipa. Then, at about 11.00 a.m. the appellant-accused Sukhlal Sirka @ Lusa came there and asked the deceased as to why she killed the mother of the accused by practising witchcraft and he further told her that he will not spare her and saying so, he started assaulting the informant's mother with Lathi on the back of head and another blow was given on right temporal region due to which she fell and died there. Thereafter, the informant, due to fear, started fleeing from there and accused assaulted her also on her right temporal region due to which she got cut injury and she fell down on the ground and thereafter accused fled away from there. After some time when the informant regained her senses, her father also arrived there and she narrated the entire occurrence to her father. Thereafter, she was taken to Primary Health Centre, Kumardungi, where she was being treated. 3. It is submitted by the counsel for the appellant that the prosecution has failed to prove the offence of murder allegedly committed by the present appellant beyond all reasonable doubts. The so-called PW.2 is not an eyewitness and there are major omissions and contradictions in the deposition of this PW.2. 3. It is submitted by the counsel for the appellant that the prosecution has failed to prove the offence of murder allegedly committed by the present appellant beyond all reasonable doubts. The so-called PW.2 is not an eyewitness and there are major omissions and contradictions in the deposition of this PW.2. This aspect of the matter has not been properly appreciated by the learned trial Court. Counsel for the appellant has pointed out the deposition given by PW.2 in detail and it is submitted that she is daughter of the deceased; she knows only 'Ho' language; the person who translated the fardbeyan in Hindi language has not been examined as a witness; moreover, looking to her deposition, PW.2 has stated that the fardbeyan was not read over before her and she has simply put her thumb impression. Thus, the so-called eyewitness is, in fact, not an eyewitness at all. The prosecution has failed to prove the fardbeyan as well as the F.I.R. and the person who has translated the language of 'Ho' of the informant into Hindi language, has not been examined and this aspect of the matter has not been properly appreciated by the learned trial Court. 4. It is further submitted by the counsel for the appellant that there was no charge for any injury caused to the injured witness upon the appellant, nor, there is any conviction thereof. Moreover, PW.2 was unconscious for a week as per deposition given by PW.3, who is father of PW.3 and therefore also, the so-called fardbeyan reduced in writing by the Investigating Officer is incorrect and cannot be given exhibit number at all. It is also submitted by the counsel for the appellant that there are various major contradictions and omissions in the evidence of the eyewitness PW.2 as well as the deceased had started from residence after taking some snacks, but, looking to the post mortem report, her stomach was empty. Thus, the whole narration given by PW.2 about the incidence is false and, therefore, PW.2 is an untrustworthy and unreliable witness. Similarly, when the statement of co-accused was recorded under Section 313 Cr.P.C., no question was put about to him about the murder caused using the word “Daain”. Thus, the whole narration given by PW.2 about the incidence is false and, therefore, PW.2 is an untrustworthy and unreliable witness. Similarly, when the statement of co-accused was recorded under Section 313 Cr.P.C., no question was put about to him about the murder caused using the word “Daain”. Alternatively, it is submitted that looking to the period of custody which is approximately 11 years and six months, let the conviction be converted into under Section 304(ii) of the Indian Penal Code and the sentence undergone may be inflicted upon the appellant as a punishment. It is also submitted by the counsel for the appellant that PW.3 is also not trustworthy because he had also stated that he also put his signature on the fardbeyan, but, there was no such signature of PW.3 upon the fardbeyan given by PW.2. This aspect of the matter has not been properly appreciated by the learned trial Court and hence, the judgment of conviction and order of sentence passed by the learned trial Court deserves to be quashed and set aside. 5. We have heard the learned counsel for the State-A.P.P. who has submitted that no error has been committed by the learned trial Court in appreciating the evidence on record. The case of the prosecution is based upon the deposition of the eyewitness who is PW.2 who is also injured eyewitness. It is submitted by the A.P.P. that the incident was taken place on 1st August, 2002 at about 11.00 a.m. and the fardbeyan of PW.2 was recorded in the hospital, as, PW.2 was an injured eyewitness and had also sustained injuries which are proved by PW.13 Dr. Bhuneshwar Sah and the injury certificate is Ext.5. It is submitted by the A.P.P. that immediate is the F.I.R. and name of the appellant is mentioned in the F.I.R. PW.2 is an injured eyewitness; her presence at the scene of offence is also natural with her mother and looking to her deposition, without any exaggeration she has narrated the whole incident in detail and it is submitted by the A.P.P. that the appellant caused injury by lathi, a hard and blunt substance, on the mother of PW.2. The manner of occurrence has also been referred by PW.2 in F.I.R. as well as in her deposition. The manner of occurrence has also been referred by PW.2 in F.I.R. as well as in her deposition. Thus, PW.2 is a reliable and trustworthy witness and no error has been committed by the learned trial Court in appreciating the evidence given by PW.2. It is further submitted by the A.P.P. that PW.2 is reliable, as, when the appellant was beating her mother, she tried to run away, but, she was also injured by the appellant. Thereafter, PW.3, who is father of PW.2 and husband of the deceased, rushed there along with PW.4 and other witnesses. Thus, looking to the deposition given by PW.2, though he is not an eyewitness, he has also proved the place of offence, the time of occurrence and the immediate version of PW.2 it is also submitted by the A.P.P. that PW.3 is a rustic witness and is giving his deposition after several weeks i.e. approximately 13 weeks and, therefore, it appears that he has narrated that PW.2 was unconscious for a week. It is submitted by the A.P.P. that there are always chances of truth in the deposition of the prosecution witnesses and false in uno omnibus maxim is not applicable in the criminal jurisprudence. Thus, the exaggerated version has been given by Investigating Officer PW.3 and it is submitted by the A.P.P. that from one or two sentences of PW.3, there is no much improvement in the deposition given by PW.3. It is also submitted by the A.P.P. that deposition of PW.2 is getting enough corroboration from medical evidence given by PW.11 who is Dr. Surendra Lov. Deceased had sustained several injuries out of which injury no.3 was fatal in nature and as per the medical evidence, the injuries were capable by hard and blunt substance. The inquest Panchnama has been proved by PW.8. The Investigating Officer has proved fardbeyan, F.I.R. and inquest report which are Exts.2, 3 and 4 respectively. The Injury Certificate of the PW.2 is proved by PW.13 which is Ext.5. Thus, looking the evidence on record, no error has been committed by the learned trial Court in convicting and sentencing the appellant for causing murder of the deceased and the prosecution has proved the offence of murder committed by the appellant beyond all reasonable doubts. Therefore, this appeal may not be entertained by this Court. 6. Thus, looking the evidence on record, no error has been committed by the learned trial Court in convicting and sentencing the appellant for causing murder of the deceased and the prosecution has proved the offence of murder committed by the appellant beyond all reasonable doubts. Therefore, this appeal may not be entertained by this Court. 6. Having heard learned counsel for both the sides and looking to the evidences on record, we see no reason to entertain this appeal mainly for the following facts, reasons and evidence on record:- i) It is the case of the prosecution that the incident was taken place on 1st August, 2002 at about 11.00 a.m.; when PW.2 was with the deceased in their field, the appellant came with lathi and was addressing both of them that the mother of PW.2 was a “Daain” and because of mother of PW.2, the mother of appellant was expired and appellant will not spare PW.2 as well as the mother of PW.2 and he started abusing mother of PW.2, namely Chandu Kui Sirka and assaulted the mother of PW.2 with lathi. Because of injury caused by lathi, the mother of PW.2 expired on the spot. PW.2 raised alarm, but, there was no one nearby and, therefore, she tried to save herself; while she was running away, the appellant chased her also and caused injured by lathi. PW.2 had fallen down and thereafter, PW.3 who is father of PW.2 and husband of deceased, rushed there along with other persons. Looking to the death of Chandu Kui Sirka and also looking to PW.2, who is injured, she was taken by PW.3 at hospital where PW.13 Dr. Bhuneshwar Sah had examined her and narrated down two injuries sustained by PW.2 and injury certificate marked as Ext.5 upon deposition of PW.13 and her fardbeyan was recorded in the hospital itself by the police on 1st August, 2002 at about 15.00 hours. Thus, it appears that PW.2 and PW.3 are the important prosecution witnesses. ii) Looking to the fardbeyan and the F.I.R. it appears that immediate is the F.I.R. and fardbeyan within couples of hours, the fardbeyan of PW.2 was recorded and the F.I.R. was also lodged, in which this appellant has been named; the whole incident has been narrated with sufficient details about the role played by this appellant in causing murder of the deceased. The F.I.R. reveals the date of death of the incident, name of the appellant, identity of the appellant, weapon used by the appellant, injuries sustained by the deceased Chandu Kui Sirka and the injuries sustained by the informant (PW.2). F.I.R. also revealed the fact that PW.3 was informed immediately. Fardbeyan is at Ext.2 and F.I.R. is Ext.3. Looking to the deposition given by PW.2, it appears that she is daughter of the deceased; her presence at the scene of occurrence was a natural one, she has clearly narrated that the appellant came with lathi abusing daughter and mother both mainly for the reason that the mother of PW.2 was a witch (Daain), as per the appellant and because of mother of PW.2, the mother of the appellant had expired and, therefore, he wanted to take revenge and the appellant assaulted with lathi upon the mother of PW.2. Looking to the cross-examination, nothing is coming out in favour of the appellant. It is submitted by the counsel for the appellant that PW.2 only knows 'Ho' language, whereas fardbeyan is recorded in Hindi language and the person who has translated the same, namely, Juren Sirka, is not examined by the prosecution. This contention is not much helpful to the appellant mainly for the reason that Juren Sirka has already put his signature upon the fardbeyan and looking to the deposition of PW.2, she along with PW.12 who is Investigating Officer, the fardbeyan was recorded in presence of police also; there is a thumb mark of PW.2 upon the fardbeyan, the person who has translated the fardbeyan, namely Juren Sirka, has also put his signature and even otherwise also, looking to the deposition of PW.2, she has clearly narrated the whole incident with all sufficient details without any major omission, contradictions or improvements. PW.2 is a trustworthy and reliable witness. Though she is a daughter of the deceased, it cannot be said that her deposition should be brushed aside by the Court merely because she is a relative of the deceased. The Court has to look at the evidence given by PW.2 with all circumspection and looking to her deposition, we are of the opinion that she has given a clear narration of the whole incident and especially the role played by the appellant in causing murder of the deceased. Moreover, PW.2 is an injured eyewitness. The Court has to look at the evidence given by PW.2 with all circumspection and looking to her deposition, we are of the opinion that she has given a clear narration of the whole incident and especially the role played by the appellant in causing murder of the deceased. Moreover, PW.2 is an injured eyewitness. Her injury certificate has been proved by PW.13 Dr. Bhuneshwar Sah and her injury certificate is marked Ext.6 and, thus, this PW.2 was also at the scene of occurrence proved by the prosecution and, therefore, we have no reason to disbelieve PW.2. iii) Looking to the deposition given by PW.11 Dr. Surendra Lov, it appears that he carried out post mortem of the dead body of the deceased which is Ext.1. Following injuries were sustained by the deceased: - “i) Lacerated wound 1cm x 0.5cm x 0.5cm lateral side of right eye. ii) Lacerated wound behind right ear 1cm x ½ cm x ½ cm. iii) Lacerated wound on occipital area right side 4cm x 1cm x deep to cranial cavity. iv) Lacerated wound at Nap of the neck 3cm x 1cm x bone deep. On internal examination – Brain lacerated at Injury No.3 Chest – Lungs – NAD Heart – Both Chambers empty Abdomen – stomach empty. Bladder – full. Uterus – small. Facal incontenance Other visra – NAD Cause of injury – Hard blunt substance like Lathi. Cause of death – Shock haemorrhage and injury to brain at injury No.3 Time since death 6 to 36 hours.” Looking to the deposition given by PW.11, it appears that injury No.3 was fatal in nature and the injury was capable by hard and blunt substance, namely, Lathi. The deposition of PW.11 is corroborative to the evidence given by injured eyewitness PW.2. iv) Looking to the deposition given by PW.12, who is the Investigating Officer, he has proved in detail the F.I.R. (Ext.3) and the Inquest Report (Ext.4). This witness has clearly stated that when he reached the place of occurrence the dead body of Chandu Kui Sirka was lying in the field. He has also narrated the place of occurrence in detail. PW.2 was also in injured condition. She was sent to doctor for examination with report of the police. The deposition of PW.12 is also corroborative to the deposition given by injured eyewitness PW.2. v) PW.13 Dr. He has also narrated the place of occurrence in detail. PW.2 was also in injured condition. She was sent to doctor for examination with report of the police. The deposition of PW.12 is also corroborative to the deposition given by injured eyewitness PW.2. v) PW.13 Dr. Bhuneshwar Sah has proved the injury of PW.2 and the injuries sustained by PW.2 which are as under:- i) Lacerated wound on right ear low about 1 ½” x ¼”. ii) Scratch wound below right ear – 1” x 1” Both the injuries are simple in nature and caused by hard blunt substance. Thus, the deposition of PW.13 is also corroborative to the deposition given by injured eyewitness PW.2. vi) Looking to the deposition given by PW.3, who is father of PW.2 and the husband of the deceased, he has also stated that though he is not an eyewitness, he rushed immediately after the incident was taken place and he saw his wife Chandu Kui Sirka lying in the field and she was dead and his daughter, who is PW.2, was also lying in the field and she was brought to hospital by PW.3. It appears that PW.3 has also stated in his cross-examination that PW.2 was unconscious for a week and lot of argument has been canvassed by the appellant upon this last sentence of PW.3. This sentence is also of no help to the appellant mainly for the reason that this witness is also giving deposition approximately after 30 weeks. He is also a rustic witness. One sentence given by one witness cannot be evaluated in isolation. The evidence given by all the prosecution witnesses should be evaluated as a whole, because it is a duty of the Court to separate grains from chaff and false in uno omnibus maxim is also not applicable in criminal jurisprudence. If one sentence of the prosecution witness is wrong, that does not mean that he is wrong in whole. There may be an embroidery of untruth whenever any close relative is being examined as a witness. Here also, looking to the deposition given by Investigating Officer (PW.12), who has clearly stated that PW.3 has not stated in his statement under Section 161 Cr.PC., that PW.2 was unconscious for a week. There may be an embroidery of untruth whenever any close relative is being examined as a witness. Here also, looking to the deposition given by Investigating Officer (PW.12), who has clearly stated that PW.3 has not stated in his statement under Section 161 Cr.PC., that PW.2 was unconscious for a week. Thus, the last sentence of deposition of PW.3 is material improvement which should be appreciated in the light of totality of the evidence and looking to the overall evidence of the prosecution witness, we see no reason to give any benefit of this sentence to the appellant. PW.3 has also corroborated to the deposition of injured eyewitness PW.2 so far as the date of occurrence, so far as the place of occurrence, so far as the death of the deceased and so far as the injury of PW.2, is concerned. It is the PW.3 who has taken PW.2 to hospital where in the hospital, the fardbeyan of PW.2 was recorded. Similarly, PW.3 has also stated that he had also signed the fardbeyan, but, looking to the deposition of PW.12, there was no signature of PW.3. In fact, fardbeyan was given by this PW.2 and was also signed by Juren Sirka who has translated 'Ho' language into Hindi language. This exaggerated version is also of not much helpful to the appellant, because the PW.3 is giving deposition after several weeks and, therefore, there is some variation in his deposition from the facts. vii) Looking to the deposition given by PW.8, he has proved the inquest drawn by police at the place of offence. He has also signed the inquest Panchnama. viii) PW.4 is a hearsay witness whereas PW.5, PW.6 and PW.7 are hostile witnesses. 7. Thus, looking to the evidence on record, the injured eyewitness PW.2 has proved the offence beyond all reasonable doubts of murder of the deceased which is committed by this appellant and her deposition is getting enough corroboration from the deposition of PW.3, PW.8, PW.11, PW.12 and PW.13 to be read with Exts.2, 3, 4, 5 and 6. No error has been committed by the learned trial Court in appreciating the evidences on record and in convicting and sentencing the present appellant for causing murder of the deceased. There is no substance in this criminal appeal and the same is hereby dismissed.