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2016 DIGILAW 21 (JHR)

Sulo Devi v. State of Jharkhand

2016-01-05

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : This appeal has been directed against the judgment of conviction and sentence dated 31.01.2005 passed by learned District and Sessions Judge, Latehar in connection with Sessions Trial No.91 of 2004 corresponding to G.R. No.127 of 2004 arising out of Chandwa P.S. Case No.30 of 2004 whereby the appellants have been held guilty for the offence punishable under Section 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life and to pay fine of Rs.500/- each and in default of making payment of fine, further imprisonment for two months. The appellants have also been held guilty for the offence punishable under Section 3 of the Prevention of Witch (Daain) Practices Act, 1999 (for short hereinafter referred to as “Witchcraft Act”) and sentenced to undergo imprisonment for three months. 2. Prosecution case, in brief, is that on 05.04.2004 at about 10.00 p.m. the appellants namely Tiju Bhuian, Sitan Bhuian, Sulo Devi and Taro Devi entered into the house of informant and dragged out Dhiru Bhuian (husband of the informant) from the house. When the informant made protest, she was caught hold by Sulo Devi and Taro Devi. It is alleged that Tiju Bhuian and Sitan Bhuian caused assault to Dhiru Bhuian (deceased) by means of tangi and killed him. The reason behind the occurrence as assigned by the informant is that minor son of Sitan Bhuian in course of playing fell down from the verandah and sustained injury on his leg and this incident had taken place 34 days prior to the date of occurrence. It is disclosed that the accused persons called a Ojha from Barwadih and said Ojha had made the accused persons convinced that the injury sustained to the son of Sitan Bhuian is the result of witch practice done by Dhiru Bhuian. On being convinced from the disclosure made by Ojha, the accused persons committed murder of Dhiru Bhuian. On the basis of written report lodged by Rijha Devi Latehar, Chandwa P.S. Case No.30 of 2004 dated 06.02.2004 u/s 452, 302/34, 120B of the Indian Penal Code and Section 3/4 of the Witchcraft Act was registered. The police after due investigation submitted chargesheet and accordingly cognizance was taken. On the basis of written report lodged by Rijha Devi Latehar, Chandwa P.S. Case No.30 of 2004 dated 06.02.2004 u/s 452, 302/34, 120B of the Indian Penal Code and Section 3/4 of the Witchcraft Act was registered. The police after due investigation submitted chargesheet and accordingly cognizance was taken. Since the occurrence u/s 302 of the Indian Penal Code is triable by the Court of Sessions, the case of appellants accused was committed to the Court of Sessions and registered as Sessions Trial No.91 of 2004. The appellants were charged for the offence punishable under Section 302/34 of the Indian Penal Code and Section 3/4 of the Witchcraft Act. The prosecution has examined altogether seven witnesses to substantiate the charges whereas the appellants have examined four witnesses in their defence. The learned Sessions Judge, after considering the evidence and documents on record has held the appellants guilty for the offence punishable u/s 302/34 of the Indian Penal Code and Section 3 of the Witchcraft Act and they were inflicted sentence, as indicated above. 3. The appellants have assailed the impugned judgment on the ground that all the four eye witnesses i.e. P.Ws. 1 to 4 are close relatives of the deceased and they are highly interested witnesses. P.W.1 in para 5 of his deposition has disclosed name of independent witnesses but they have not come forward to support the prosecution case. In such case, non-examination of independent witness is fatal to the prosecution. The informant could not be examined because she died sometimes after the incident due to illness. Non-examination of informant has caused prejudice to the appellants. The informant in her written report has stated that the deceased was assaulted by means of blunt portion of the tangi but the post mortem report indicates two incised wound caused by sharp cutting weapon and therefore, the ocular version of the informant does not find support from the post mortem report. P.W.1 Sahdeo Bhuian and P.W.4 Baneshwar Bhuian are nephew of the deceased whereas P.W.2 Chalitar Bhuian and P.W.3 Bijan Ram are grand sons. There are contradictions in their statement regarding manner of occurrence. They all are related to each other but they have not disclosed presence of each other in their statement. The learned counsel has further argued that charges framed by the trial court is also defective. There are contradictions in their statement regarding manner of occurrence. They all are related to each other but they have not disclosed presence of each other in their statement. The learned counsel has further argued that charges framed by the trial court is also defective. Section 3 and Section 4 of the Witchcraft Act are two distinct offences and the charge framed under those sections are vague and that has caused prejudice to the appellants. It is contended that appellant Rameshar Mochi was not at all present at the time of occurrence which is apparent from the written report and also from the evidence of witnesses examined. Appellants Sulo Devi and Taro Devi had not participated in any manner in the assault caused to the deceased. The allegation against them is that they were catching hold of the informant at the time of occurrence. This evidence is not sufficient for holding them guilty for the offence punishable under Section 302/34 of the Indian Penal Code. Learned counsel has placed reliance on the judgment reported in 2003(3) East Criminal Cases 136 (SC) (Surendra Singh Vrs. State of Punjab) and 2007(3) East Criminal Cases 3 (Jhar.) (Mangal Tudu Vrs. State of Bihar, now Jharkhand). It is further submitted that conviction recorded and sentence inflicted against appellant Rameshar Mochi, Taro Devi and Sulo Devi are liable to be set aside. The learned Sessions Judge has held the appellants guilty for the offence punishable under Section 3 of the Witchcraft Act but that is also illegal and unwarranted. No witness has come forward to say that he ever heard Rameshar Mochi branding Dhiru Bhuian as a witch. If this part of evidence goes away, the motive behind the occurrence, as assigned by the witnesses shall also disappear. The impugned judgment of conviction and sentence is highly erroneous and is liable to be set aside. 4. Learned A.P.P. appearing for the State has opposed the argument and submitted that all the eye witnesses are natural witnesses. They are having their houses near the place of occurrence. They reached to the scene of occurrence after hearing hulla raised by informant and they had witnessed the assault caused to deceased Dhiru Bhuian. Only because they are related to the deceased, their testimony cannot be discharged. They are having their houses near the place of occurrence. They reached to the scene of occurrence after hearing hulla raised by informant and they had witnessed the assault caused to deceased Dhiru Bhuian. Only because they are related to the deceased, their testimony cannot be discharged. It is not possible for the witnesses to identify as to which of the injury was caused from the blunt portion of the tangi and which injury was caused by sharp portion of the tangi. It always depend upon the perception of the witnesses as to from which angle they had been seeing the occurrence and that also depends upon the manner of assault and the weapon used. The evidence of all the four witnesses is consistent and reliable and that find support from the post mortem report and therefore, the learned Sessions Judge has rightly recorded the judgment of conviction. 5. At the very outset, we feel no hesitation to hold that charge framed under Section 3/4 of the Witchcraft Act is defective and the evidence regarding aforesaid offence is also lacking. In that view of the matter, the judgment of conviction and sentence recorded u/s 3 of the Witchcraft Act is hereby set aside. 6. We have scrutinised the statement of PW1 and PW4. The time of occurrence is 10.00 p.m., place of occurrence is the house of the deceased, the appellants and the witnesses are the resident of same village. The evidence that deceased Dhiru Bhuian was dragged out from his house by appellants Tiju Bhuian and Sitan Bhuian is consistent. The statement of all the four eye witnesses is also consistent on the point of assault caused to the deceased Dhiru Bhuian by appellants Tiju Bhuian and Sitan Bhuian. These witnesses have stated in their deposition, even in their cross-examination, that “tangi chal raha tha”. Out of these four witnesses PW1 in para1 of his deposition has stated that “Dhiru Bhuian ko nikalkar patak diya aur tangi ke pas se kaat diya”. PW2 in para1 has stated that “Sitan Bhuian aur Tiju Bhuian mar raha tha, ye dono tangi se mar rahe the, teen bar tangi se seer par aur chehra par mara tha”. In his cross-examination PW2 in para 4 has stated that he had noticed two injuries on the person of deceased out of which one might have been caused from blunt portion of the tangi. In his cross-examination PW2 in para 4 has stated that he had noticed two injuries on the person of deceased out of which one might have been caused from blunt portion of the tangi. PW3 and PW4 have also stated the manner of occurrence in the like manner. The statement of all the four witnesses is consistent that appellants Tiju Bhuian and Sitan Bhuian had caused injury to Dhiru Bhuian by means of tangi and repeated blows were hurled. Dr. Ravindra Narayan, PW5 who had conducted post mortem examination on the dead body of deceased Dhiru Bhuian had found two incised wound and one depressed wound causing fracture of mascular bone. The doctor has opined injury nos.1 and 2 caused by sharp cutting weapon whereas injury no.3 was caused by hard and blunt object. According to statement of witnesses the weapon used is tangi and tangi is having both ingredients, one portion of the tangi is blunt whereas another portion which is used for cutting wood is sharp. In view of the account of injuries sustained and the blows inflicted by tangi by the appellants accused, it is not expected even from the mouth of eye witnesses that they would give correct picture of each and every blow. It is not expected that he would say as to which of the injury was caused by blunt portion and which injury was caused by sharp portion of the weapon. We are not agree to accept this argument that the statement of witnesses is not consistent on the point of manner of occurrence. 7. It is settled law that the evidence of witnesses who are related to the informant or deceased could not be discarded only on the ground that they are interested witnesses and relative of the deceased. If it is free from influence and otherwise reliable and consistent that can well be considered. We have already referred the evidence of aforesaid four witnesses which is consistent on the point of manner of occurrence and place of occurrence. If any untoward happens in the family and that too within the four walls of the house and near relatives put their presence, that is natural. We do not find that presence of these four witnesses could be disbelieved. If any untoward happens in the family and that too within the four walls of the house and near relatives put their presence, that is natural. We do not find that presence of these four witnesses could be disbelieved. We do not find any exaggeration in their statement, rather we find that all the four witnesses have reproduced in their deposition the incident which they had witnessed. 8. The argument advanced by learned counsel appears to be tenable to the extent that none of the witnesses has stated anything against appellant Rameshar Mochi regarding his presence at the time of occurrence. We have carefully gone through the evidence of aforesaid four eye witnesses and we find that they have not stated that appellant Sulo Devi and Taro Devi had participated in causing assault to the deceased or they had facilitated appellants Tiju Bhuian and Sitan Bhuian in any manner in committing murder of deceased Dhiru Bhuian. The evidence that they were catching hold of the informant is not sufficient to hold them guilty with the aid of Section 34 of the Indian Penal Code and that too in the situation, the informant could not be examined. 9. Considering all these aspects of the matter, we feel inclined to give benefit of doubt to appellants Rameshar Mochi, Sulo Devi and Taro Devi and accordingly they are hereby acquitted from the charges leveled against them. The judgment of conviction and sentence recorded by the trial court against aforesaid three appellants is hereby set aside. Appellants Sulo Devi and Taro Devi are discharged from the liability of their bail bonds and they are set at liberty. Appellant Rameshar Mochi is directed to be released forthwith from jail custody, if not wanted in any other case. The judgment of conviction and sentence recorded u/s 302/34 of the Indian Penal Code against appellants Tiju Bhuian and Sitan Bhuian is hereby upheld.