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2015 DIGILAW 1329 (JHR)

Dharma Paharia v. State of Jharkhand

2015-10-27

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT : The appellant was put on trial on the accusation of committing murder of Surji Paharin. The trial court having found the appellant guilty for the charges, convicted him for the offence punishable under Section 302 of the Indian Penal Code vide its judgment dated 30th August, 2004 and sentenced him to undergo imprisonment for life vide its order dated 7th September, 2004. 2. The case of the prosecution as has been projected in the Fardbeyan (Ext.2) is that the informant Mangi Paharin (PW4), the daughter of the deceased, Surji Paharin, had been married to Marcush Malto, who has been living with his wife Mangi Paharin in the house of the deceased as “Ghar Jamai”. On 20/11/2002 at 05.30 P.M., while the informant Mangi Paharin (PW4) was cooking food in the courtyard where her mother Surji Paharin (deceased), her Bua Bamni Paharin (PW5) and sister Chaiti Paharin (PW7) were present, the appellant Dharma Paharia came with 'Axe' and started accusing the deceased of playing witch craft on account of which he is having pain over his stomach and legs. By saying so he gave 'Tangi' blows on the head of the deceased with its back portion as a result of which the deceased sustained injuries and fell down. When the informant and other persons, present over there, tried to rescue the deceased while she was being assaulted by the appellant, the appellant tried to catch hold of them but all the three persons, i.e. the informant (PW4), her Bua (PW5) and her sister (PW7) fled from there to some distance from where they saw the appellant assaulting the deceased. When the appellant left the place, the informant and other persons came near the deceased and found her dead. Since it was night, the informant did not inform to the police station. However, the Officer-in-Charge of Littipara Police Station received information on the next day, i.e. on 21/11/2002 at about 09.00 A.M that one woman has been killed at Village Bada Margo. On receiving such information, he entered into it in station diary and left for the place of occurrence where he reached at about 11.15 A.M. There he recorded the fardbeyan of the informant Mangi Paharin (PW4), wherein she stated about the incident as has been stated above. On the basis of the said fardbeyan the case was registered and a formal FIR (Ext.4) was drawn. 3. On the basis of the said fardbeyan the case was registered and a formal FIR (Ext.4) was drawn. 3. The said Officer-in-Charge of Littipara Police Station namely Raju (PW8) took up the investigation, during which he held inquest on the dead body of the deceased and prepared an inquest report (Ext.3). Thereupon, he sent the dead body for postmortem examination, which was conducted by Dr. Vijay Kumar (PW1), who, on holding autopsy on the dead body, did find the following antemortem injuries on the person of the deceased:- “(i) Lacerated wounds of various sizes such as 2” x 1 ½” , 3/4” x 1/4” and 2” x 1” all bone deep over forehead on right side with blood and blood clot around and over the wound. (ii) Bruises of 2” x 1” and 1” x ½” over forehead and around left eye.” On dissection of skull there was fracture of frontal bone on right side and meninges was torn with blood and blood clot over it. The right frontal lobe of brain was torn with blood and blood clot on and around it. The Doctor issued Post Mortem Examination Report (Ext.1) with an opinion that the death was caused due to injury to the vital organs such as brain leading haemorrhage and shock. 4. Meanwhile, the Investigating Officer recorded the statements of the witnesses and made inspection of the place of occurrence where he did notice blood being spilled over the earth. 5. On completion of the investigation, when the charge sheet was submitted against the appellant, the Court took cognizance of the offence. 6. In due course, when the case was committed to the Court of sessions, the appellant was put on trial, during which the prosecution examined as many as 8 witnesses. Of them, PW4 Mangi Paharin, PW5 Bamni Paharin the Bua of the informant and PW7 Chaiti Paharin, the sister of the informant, are the eyewitnesses. According to them, while the informant Mangi Paharin was cooking food the deceased and other witnesses were present over there, the appellant came having 'Kulhari' with him and assaulted on the head of the deceased Surji Paharin as he was taking the deceased as Witch (Daain), due to which the deceased died. PW2 Suleman Malto, PW3 Bamna Malto and PW6 Ghasi Malto, have been declared hostile as they did not support their earlier statements made before the police. PW2 Suleman Malto, PW3 Bamna Malto and PW6 Ghasi Malto, have been declared hostile as they did not support their earlier statements made before the police. However, the trial court did find all the three eyewitnesses to be trustworthy whose testimonies were getting corroboration from the medical evidence and also from the objective finding, did find the appellant guilty and, accordingly, recorded the judgment of conviction and sentence, which is under challenge. 7. Dr. S.K. Chaturvedi, learned counsel appointed as Amicus Curiae, submits that it is the case of the prosecution that the appellant did assault the deceased with 'Kulhari' but the Investigating Officer failed to seize the said Kulhari and, thereby, the weapon used in commission of the offence could not be produced in the Court which makes a dent over the prosecution case. Further submission which was advanced is that according to informant, as has been testified in the cross-examination, she had informed about the incident to the village Chaukidar, who had also accompanied the informant to the police station for lodging the case but the prosecution failed to examine the said Chaukidar and, thereby, most important witness was with held by the prosecution. Further submission, which was advanced, is that it is a consistent case of the witnesses that the appellant did assault the deceased with 'Axe', a sharp cutting weapon, but surprisingly the Doctor has found the wound in the nature of laceration, which demolishes the entire case. In spite of that the Court put reliance on the testimonies of the eyewitnesses and, thereby, it committed illegality in recording the order of conviction and sentence and, hence, it is fit to be set aside. 8. As against this, Mr. In spite of that the Court put reliance on the testimonies of the eyewitnesses and, thereby, it committed illegality in recording the order of conviction and sentence and, hence, it is fit to be set aside. 8. As against this, Mr. Nagmani Tiwary, learned counsel appearing for the State submits that it is true that the case of the prosecution is that the appellant assaulted the deceased with 'Kulhari' and the injuries have been found in the nature of laceration but that does not demolishes the case of the prosecution as it is the case of the prosecution right from the beginning as has been made out in the fardbeyan that the appellant had used back portion of the 'Kulhari' while the appellant did assault the deceased over her head and that since the witnesses are illiterate they would not have thought it proper to testify that the appellant did assault the deceased with back portion of the 'Kulhari', rather they innocently did testify that the appellant came and assaulted the deceased with 'Kulhari' and under the circumstances, the prosecution case does not get affected in any manner on account of the said fact. Further submission, which was advanced, is that the testimonies of the eyewitnesses are consistent, which get corroboration from each other and it further get corroboration from the objective finding of the Investigating Officer as the Investigating Officer did notice the blood being spilled over the earth at the place of occurrence and furthermore the testimonies of the witnesses further get corroboration from the medical evidence and, thereby, the trial court was absolutely justified in recording the order of conviction and sentence, which needs no interference. 9. Having heard counsel appearing for the parties and on perusal of the records, we do find that it is the case of the prosecution as has been testified by the informant (PW4) Mangi Paharin, PW5 Bamni Paharin, Bua of the informant and PW7 Chaiti Paharin, the sister of the informant that while the informant Mangi Paharin was cooking food in the courtyard where her mother Surji Paharin (deceased) and other witnesses were there, the appellant came with 'Kulhari' and did assault on the head of the deceased with it as a result of which she sustained injuries and died. PW4 in her examination-in-chief though has not named Chaiti Paharin as the person, who was present in the courtyard but from the cross-examination it does appear that PW7 was also there in the courtyard when the appellant did assault the deceased. The presence of all the three eyewitnesses are never in doubt and, thereby, no reason appears to be there to discard their testimonies. It is true that the injuries, which have been found on the person of the deceased are in the nature of laceration though according to the eyewitnesses PWs. 4, 5 & 7, the appellant did assault the deceased with 'Kulhari' whereby as per the submission advanced on behalf of the defence the injuries should have been in the nature of sharp cutting, but the fact remains that all the witnesses must have been taken a back when they did find the appellant coming there suddenly and assaulting the deceased and, as such, they may not have noticed that the appellant had used the back portion of 'Kulhari'. Further, we do find from the evidences of the eyewitnesses that when the appellant started assaulting the deceased, they tried to intervene in the matter but they were chased by the appellant during which all the three witnesses fled to some distance. In such event, they may not have noticed the portion of 'Kulhari', which was used by the appellant. In such situation, the discrepancy, which has occurred in the case hardly affects the case of the prosecution adverse. 10. Furthermore, we do find that the testimonies of the eyewitnesses get corroboration from the objective finding of the Investigating Officer, who, in course of the inspection of the place of occurrence, did notice the blood being spilled over the earth though it was never seized by the Investigating Officer but that in the facts and circumstances, hardly matters. 11. Under the circumstances, we do find that the trial court was absolutely justified in recording the order of conviction and sentence, which is hereby affirmed. 12. In the result, this appeal, being devoid of any merit, is hereby dismissed.