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2016 DIGILAW 102 (JHR)

Arun Nayak v. State of Jharkhand

2016-01-14

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : 1. This criminal appeal has been directed against the judgment of conviction and order of sentence dated 8.5.2008 and 22.5.2008, respectively, passed by the Learned Additional Sessions Judge, F.T.C. Simdega, in connection with Sessions Trial No. 74 of 2004, corresponding to G.R. Case No. 115 of 2004, arising out of Bolba P.S. Case No. 08 of 2004 whereby the appellant has been held guilty for the offences punishable under Section 302 I.P.C. and ¾ of the Prevention of Witch (Daain) Practices Act and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 10,000/-, in default of payment of fine, further imprisonment for three months. 2. The fact, which appears from the Fradbeyan of Partima Ekka (Informant) recorded on 19.4.2004 at 9.10 hours at Bolba within district of Simdega, in brief, is that when the informant reached home on 18.4.2004 at about 18.45 hours, she found her mother lying dead having injuries on her person. She was informed by Piter Ekka-(P.W.1) that Arun Nayak has killed Josfina Ekka (mother of the informant) by means of Dawli (sharp cutting weapon). The appellant was suspecting the deceased as Witch (Daain) and that is why he has killed her. On the basis of Fradbeyan of Pratima Ekka, Bolba P.S. Case No. 8 of 2004, under Section 302 of the Indian Penal Code was registered, the Investigating Officer after due investigation submitted charge-sheet and accordingly cognizance of the offence was taken and case was committed to the Court of sessions and it was registered as S.T. No. 74 of 2004. 3. The charge under section 302 of the Indian Penal Code and section 3/4 of Prevention of Witch (Daain) Practices Act was framed to which the appellant pleaded not guilty and claimed to be tried. The prosecution has examined altogether ten witnesses to substantiate the charges. No witness on behalf of accused has been examined. The learned Additional Sessions judge placing reliance on the evidence and the documents available on record held the appellant guilty for the offence punishable under section 302 of the Indian Penal Code and section 3/4 of Prevention of Witch (Daain) Practices Act and sentenced him, as indicated above. 4. The appellant has assailed the impugned judgment on the ground that no one had seen the occurrence. 4. The appellant has assailed the impugned judgment on the ground that no one had seen the occurrence. When the informant returned home, she found the dead body of her mother lying at the door of the house. She had noticed injuries on the person of the deceased. On the following day, Fardbeyan was recorded in which she has stated that she could learn about the incident from Pitter Ekka-(P.W.1). Pitter Ekka-(P.W.1) is the cousin brother of the informant. He has tried to project himself as an eye witness but from perusal of the deposition, it will reveal that he had not seen the occurrence nor he had informed the informant about the occurrence. The learned counsel by referring the evidence of P.W. 1 and Investigation Officer P.W.8 has submitted that, house of the deceased is not surrounded by any other houses. On three sides, there is vacant land. Only on one side house of Piter Ekka-P.W 1 is situated but at a distance of 100 yards. The time of occurrence is 6.45 p.m. The contention of P.W 1 is that he reached to the place of occurrence after hearing hulla raised by the deceased but it is not acceptable. A person, who will remain present at a distance of 100 yards, normally could not be able to notice hulla, if raised from a house. Furthermore, P.W. 1 has stated that after hearing hulla he along with Khristopher Ekka-P.W 9 had gone to the house of the deceased but Khristopher Ekka did not support aforesaid version of P.W 9. Likewise, the informant, P.W 7 has stated that he heard about the occurrence from Piter Ekka, but Piter Ekka did not corroborate aforesaid facts in his deposition. Referring the cross-examination of P.W1, it is submitted that he himself has admitted that he had not seen appellant Arun Nayak inflicting blows on the deceased by means of Dawli, rather he had seen the dead body when he reached there. This statement of P.W. 1 clearly goes to show that he was not at all present at the time of assault. The confession of the accused leading to the discovery of weapon of the crime does not finds support from the statement of P.W.1. This statement of P.W. 1 clearly goes to show that he was not at all present at the time of assault. The confession of the accused leading to the discovery of weapon of the crime does not finds support from the statement of P.W.1. He did not say that the Investigating Officer has recovered the blood stained Dawli on the basis of confession made by the accused rather he says that one dawli, knife, axe and cloths had been seized by the police and for that seizure list was prepared. Khristopher Ekka-P.W.9 has not supported the prosecution case. Saroj Ekka-P.W 2 and Bipin Ekka-P.W 3 are daughter and son of deceased respectively and they are hearsay witnesses. Jirom Khesh-P.W.5 is the witness to the seizure lists. Pratima Ekka-P.W.7 happens to be the informant but she is hearsay witness, according to her statement, she received information from Pitter Ekka. Dr. Anil Kumar-P.W 4 had conducted postmortem examination on the dead body of Josphina Ekka (deceased) whereas Binay Kumar-P.W.8 happens to be the Investigating Officer. Shiv Kumar Singh-P.W.10, is the formal witness, who has proved the report received from State Forensic Science Laboratory. Since, the statement of P.W 1 is not consistent and reliable, impugned judgment of conviction and sentenced can not be upheld. 5. The learned A.P.P. has opposed the arguments and submitted that minor contradiction are appearing in the statement of P.W.1 who is a rustic tribal. He has clearly stated that he had seen the appellant moving in the village armed with Dawli. When he heard Hulla, he rushed to the house of the deceased and saw the appellant causing assault to the deceased by means of Dawli. Pitter Ekka informed the villagers about the occurrence. P.Ws. 2, 3 and 7 are the children of deceased. Since P.Ws. 2 and 3, who are living out from the village, they had reached after receiving information regarding murder of their mother. Pitter Ekka, who is the informant has supported the prosecution case. The ocular version of P.W.1 finds support from postmortem report proved by P.W. 4. It is submitted that the appellant after his arrest had voluntarily confessed his guilt and gave his confessional statement. On the basis of confession made by the appellant, the weapon used for commission of the murder and the blood stained cloth of the appellant were seized. The ocular version of P.W.1 finds support from postmortem report proved by P.W. 4. It is submitted that the appellant after his arrest had voluntarily confessed his guilt and gave his confessional statement. On the basis of confession made by the appellant, the weapon used for commission of the murder and the blood stained cloth of the appellant were seized. Those blood stained articles were sent for its chemical examination which find support from the report received from S.F.S.L. The Investigating Officer has supported the investigation done by him. There is no merit in this appeal and the same is liable to be dismissed. 6. Heard learned counsel appearing from both sides and perused the records. Admittedly, the trial judge has mainly relied on the statement of P.W.1, who is the sole eye witness. We have carefully examined the evidence of P.W.1 which is not consistent rather contradictions appearing are vital. P.W.1 happens to be the cousin of the informant and the deceased was his aunt. He did not take effort to save his aunt nor he chased the appellant to apprehend him. In his examination-in-chief, he says that he reached to the place of occurrence after hearing hulla of the deceased and he had seen the assault but in his cross-examination he says that he has not said like that before the police. In cross-examination he admits that he had gone to the place of occurrence along with Khristopher Ekka-P.W.9, but P.W.-9 did not support this version of the P.W.1. Not only that P.W 1 says that he had seen the dead body when he reached to the place of occurrence. Besides the above, according to the informant, she received information from P.W1 but P.W 1 has not corroborated the same. Only because of the fact that blood stained Dawli and cloths stained with blood have been recovered. The conviction of the appellant cannot be upheld. 7. Since the evidence of sole eye-witness is wholly not reliable and not inspiring confidence, we do not feel inclined to uphold the judgment of conviction and order of sentence passed by the Learned Additional Sessions Judge, F.T.C., Simdega. The impugned judgment of conviction and order of sentence dated 8.5.2008 and 22.05.2008 respectively, passed by Learned Additional Sessions Judge, F.T.C., Simdega, in Sessions Trial No. 74 of 2004 is set aside and the appeal is allowed. The impugned judgment of conviction and order of sentence dated 8.5.2008 and 22.05.2008 respectively, passed by Learned Additional Sessions Judge, F.T.C., Simdega, in Sessions Trial No. 74 of 2004 is set aside and the appeal is allowed. Accordingly, the appellant Arun Nayak is acquitted from the charges levelled against him and directed to be released forthwith from jail custody, if not wanted in any other cases and for that appropriate direction may be issued, if necessary, by the convicting/successor Court. Appeal allowed.