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2016 DIGILAW 459 (JHR)

Ganshu Oraon v. State of Jharkhand

2016-03-10

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : This criminal appeal has been directed against the judgment of conviction and order of sentence dated 18th September,2004 and 20th September,2004 respectively passed by learned Additional District & Sessions Judge, F.T.C.-II, Gumla in connection with Sessions Trial no.289 of 2003 corresponding to G.R. no.443 of 2003 arising out of Gumla P.S. Case no.142 of 2003, whereby the appellant has been held guilty for the offences punishable under sections 302 of Indian Penal Code and section 3/4 of the Prevention of Witch (Dian) Practices Act and sentenced to undergo rigorous imprisonment for life, but no separate sentence under section 3/4 of Prevention of Witch (Dian) Practices Act has been inflicted against the appellant. 2. The fact emerging from the fardbeyan of Sumitra Devi recorded on 10.07.2003 at 16.15 hours at Village-Dhangaon Gajatoli is that on 10.07.2003 at about 11.30 A.M., Thibha Mahli(P.W.2) informed that her mother-in-law (Bachan Devi) has been killed by Ganshu Oraon (appellant). It is disclosed that Ganshu Oraon was under impression that deceased-Bachan Devi is a Witch and under that impression, he has killed her. After receiving such information, the informant rushed to Village-Dhjangaon Gajatoli and found her mother-in-law lying dead in the field and she was having cut injury on her neck. The appellant was caught hold by the villagers and he was also subjected to assault. On the basis of fardbeyan of Sumitra Devi, Gumla P.S. Case no. 142 of 2003 dated 10.07.2003 under section 302 I.P.C. and section 3/4 of the Prevention of Witch (Dian) Practices Act was registered against the appellant-Ganshu Oraon. The police, after due investigation, submitted charge sheet against the appellant. Accordingly cognizance was taken and the case was committed to the court of Sessions and registered as Sessions Trial no. 289 of 2003. 3. Charges under section 302 I.P.C. and section 3/4 of the Prevention of Witch Craft Act were framed against the appellant to which he pleaded not guilty and claimed to be tried. To substantiate the charges, the prosecution has examined altogether seven witnesses, including Investigating Officer, namely, Ashok Kumar (P.W.6) and the doctor, namely, Dr. Krishna Prasad (P.W.7), who had conducted post mortem examination. Sumitra Devi (P.W.5) is Informant. Ganshu Gope (P.W.1), Thiba Mahli (P.W.2) and Ghuran Gope (P.W.3) are eye witnesses to the occurrence. To substantiate the charges, the prosecution has examined altogether seven witnesses, including Investigating Officer, namely, Ashok Kumar (P.W.6) and the doctor, namely, Dr. Krishna Prasad (P.W.7), who had conducted post mortem examination. Sumitra Devi (P.W.5) is Informant. Ganshu Gope (P.W.1), Thiba Mahli (P.W.2) and Ghuran Gope (P.W.3) are eye witnesses to the occurrence. Learned Additional District & Sessions Judge, at the conclusion of trial, placing reliance on the evidences and documents available on record, held the appellant guilty for the offences punishable under section 302 I.P.C. and section 3/4 of the Prevention of Witch Craft Act and inflicted sentence as indicated above. 4. Learned counsel for the appellant has assailed the impugned judgment of conviction and order of sentence on the ground that statements of eye witnesses nos.1 to 3 are not consistent. P.Ws.1 & 2 did not disclose names of each other in their depositions in court, although they have claimed that they were present near the place of occurrence and they had seen the assault. P.W.3, who happens to be the husband of the deceased, says that he was present at a distance of 15-20 yards from the deceased at the time of occurrence, but he did not make effort to save the life of his wife-Bachan Devi. Furthermore, he did not bother to report the matter to the police. The F.I.R. was lodged by Sumitra Devi, who happens to be the daughter-in-law of the deceased (P.W.5). Aforesaid three eye witnesses have said that first blow by means of Tangi was hurled on the deceased and then she fell down. Thereafter repeated blows by means of Tangi were hurled. The oral version of these witnesses does not find support from the post mortem report (Ext.7). The doctor, who conducted post mortem examination on the dead-body of Bachan Devi, had found only two injuries on her neck and did not find any injury on the head of the deceased. Blood stained Tangi was seized by the Investigating Officer, but it was not sent for chemical examination and the Tangi was not produced before the court during trial. 5. It is submitted that learned Additional District & Sessions Judge has mis-appreciated the evidence on record and erred in holding the appellant guilty for the offence as alleged. The impugned judgment of conviction and order of sentence is liable to be set aside. 6. Learned Addl. 5. It is submitted that learned Additional District & Sessions Judge has mis-appreciated the evidence on record and erred in holding the appellant guilty for the offence as alleged. The impugned judgment of conviction and order of sentence is liable to be set aside. 6. Learned Addl. P. P. has opposed the contention and submitted that statements of all the three eye witnesses i.e. Ganshu Gope(P.W.1), Thibha Mahli (P.W.2) and Ghuran Gope (P.W.3) are consistent and no material contradiction has been taken away from mouth of any of aforesaid witnesses to disbelieve their testimony. Gosai Oraon (P.W.4) happens to be the hearsay witness, but he has supported the prosecution case that he had seen the dead-body of Bachan Devi and could learn that Ganshu Oraon has committed murder. The informant has also supported the prosecution case and corroborated with the contention made in the fardbeyan. All eyewitnesses have stated that neck of deceased-Bachan Devi was cut by means of Tangi and two incised wounds on her neck were found by the doctor at the time of post mortem examination. The Investigating Officer has also proved fardbeyan (Ext.2), formal F.I.R. (Ext.3), seizure list of blood stained Tangi and blood stained soil as Ext.4. The appellant, who was produced before the police by the villagers, had confessed his guilt and his confessional statement was recorded, which has been marked as Ext.5. The inquest report has been marked as Ext.6. The prosecution evidence is intact and charges framed against the appellant have well been proved. 7. Heard rival submissions and perused the case record. We have also gone through the impugned judgment. From the evidence of Ganshu Gope (P.W.1), we find that he was present in his field. Bachan Devi (deceased) was grazing her cattle at some distance. In the meantime, the appellant armed with Tangi reached to the place and hurled Tangi blow on the head of Bachan Devi. When she fell down, further injuries on her neck were caused. In course of fleeing away from the place, appellant-Ganshu Oraon was apprehended by the villagers. Thiba Mahli (P.W.2) has stated that on the date of occurrence at about 9 A.M., he had gone to answer call of nature. In the meantime, he heard Halla. When he was attracted towards place of occurrence, he had seen appellant causing injury to Bachan Devi by means of Tangi. Thiba Mahli (P.W.2) has stated that on the date of occurrence at about 9 A.M., he had gone to answer call of nature. In the meantime, he heard Halla. When he was attracted towards place of occurrence, he had seen appellant causing injury to Bachan Devi by means of Tangi. Ghuran Gope (P.W.3) is husband of the deceased and he was working in his field. He says that his wife had been grazing her cattle at a distance of about 20 hands (about 30 feet). In the meantime, appellant-Ganshu Oraon reached to the place and inflicted Tangi blow on the head and neck of the deceased. It was argued that P.Ws. 1 and 3 have stated that first blow by means of Tangi was hurled on the head of the deceased, but the doctor did not find any injury on head and, therefore, evidence of aforesaid two witnesses are not acceptable. We do not agree with the submission for the reason, at that point of time, the witnesses were busy in their field and their attention was towards their work, but as soon as they heard Halla, they were attracted towards the deceased and the appellant. Furthermore, if a witness would see the occurrence from a distance of 20-30 yards and the blow by means of Tangi if inflicted even on the neck, inference may by them be drawn that it was inflicted on the head because neck is closer to head. In the case at hand, major portion of the neck from upper part was found cut. Besides the above, if the evidence of eye witnesses is convincing, reliable and without being influenced or without having exaggeration that will prevail. Further injuries caused to the deceased on her neck find full support from the medical evidence (Ext.7). We find that evidence of P.Ws.1, 2 & 3, who are eye witnesses, is consistent and intact on the point of assault and the weapon used and we do not find any contradiction in their deposition to disbelieve them. The appellant has also confessed his guilt and the confessional statement has been marked as Ext.5. It is true that conviction cannot be recorded only on the basis of confession, but for the collateral purpose, that can be considered. Here, in the case at hand, there are three eye-witnesses, who have supported the prosecution case. The appellant has also confessed his guilt and the confessional statement has been marked as Ext.5. It is true that conviction cannot be recorded only on the basis of confession, but for the collateral purpose, that can be considered. Here, in the case at hand, there are three eye-witnesses, who have supported the prosecution case. The appellant was apprehended by the villagers while he was fleeing away from the place of occurrence. He was produced before the police and his confession was recorded in presence of witnesses and on the basis of confession, blood stained Tangi was recovered from the field of Prasad Sahu and the seizure list bears signature of the appellant. The evidence of Dr. Krishna Prasad (P.W.7) is sufficient to prove that death of Bachan Devi was homicide and she died due to injury caused on her neck. The injuries were sufficient in ordinary course of nature to cause death. We do not find any laches in the investigation done by Investigating Officer (P.W.6). 8. Considering all these aspects of the matter, evidence and material available on record, we do not find any merit in this appeal and the same stands dismissed. 9. The judgment of conviction and order of sentence dated 18th September, 2004 and 20th September, 2004 respectively passed by learned Additional District & Sessions Judge, F.T.C.-II, Gumla in connection with Sessions Trial no. 289 of 2003 is hereby upheld.