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2017 DIGILAW 1261 (JHR)

Raju Khoya v. State of Jharkhand

2017-07-26

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : 1. Heard learned counsel for the appellant and the learned Addl. P.P. for the State. 2. The sole appellant is aggrieved by the Judgment of conviction dated 21.07.2007 and Order of sentence dated 23.07.2007, passed by the learned Additional Judicial Commissioner, XVIth, Ranchi, in Session Trial No. 44 of 2005, Where by the sole appellant has been found guilty and convicted for the offences under section 302 the Indian Penal Code and Section 27 of the Arms Act, as well as Sections 3/4 of the Prevention of Witch (Daain) Practices Act. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life with a fine of Rs.5000/- for the offence under section 302 of the Indian Penal Code, R.I. for 3 years for the offence under section 27 of the Arms Act and simple imprisonment for a period of three months for both the offences under Sections 3/4 of the Prevention of Witch (Daain) Practices Act, and all the sentences were directed to run concurrently. 3. The prosecution case was instituted on the basis of the fardbeyan of one Putul Devi, who is the daughter-in-law of the deceased Rukmani Devi. The occurrence had taken place on 03.08.2004 and it is stated that the mother-in-law of the informant had returned back after sowing paddy seeds. Both mother-in-law and daughter-in-law sat at the door of the house and after sometime the mother-in-law was washing the mud off her feet, when suddenly the accused Raju Khoya came there armed with pistol. Her mother-in-law started fleeing away, but Raju Khoya fired pistol upon her, injuring her near chest and he fled away. She fell down at the door of the house. The informant tied the wound of her mother-in-law with cloth and with the help of other persons, was taking her to the hospital, but in the way the accused again came armed with pistol, whereupon they started fleeing away. Her mother-in-law also tried to flee away, but the accused again fired pistol upon the back of her mother-in-law. The villagers tried to chase and apprehend the accused, but he threatened them with pistol and thereafter, he fled away. Her mother-in-law was brought to R.I.M.S., Ranchi, where she was declared dead. Her mother-in-law also tried to flee away, but the accused again fired pistol upon the back of her mother-in-law. The villagers tried to chase and apprehend the accused, but he threatened them with pistol and thereafter, he fled away. Her mother-in-law was brought to R.I.M.S., Ranchi, where she was declared dead. The informant has also stated in the fardbeyan that the accused was keeping ill, and he suspected that he was ill due to the witchcraft practiced by her and her mother-in-law. It is also alleged that in the previous night also, the accused had come at their house and he bolted the door from outside, saying that they were sleeping peacefully making him mentally ill, but the accused was taken away by his wife saying that he has become mentally ill and had not slept for the last two nights. Alleging that the accused had committed the murder of her mother-in-law on the pretext of practicing witchcraft, the fardbeyan was given by the informant Putual Devi, on the basis of which Bariatu (Gonda) P.S. Case No. 127 of 2004, corresponding to G.R. No.2278 of 2004, was instituted for the offence under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, and investigation was taken up. After investigation, the police submitted the charge-sheet against the accused. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offences under Section 302 of the Indian Penal Code, Section 27 of the Arms Act and Sections 3 and 4 of the Prevention of Witch (Daain) Practices Act, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, the prosecution has examined nine witnesses, including the I.O, and the Doctor, out of whom P.W.-1 Kunden Khoya has turned hostile. He has however identified his signature on the fardbeyan, stating that the same was obtained on a plain paper, which was marked as Ext.-1. 5. P.W.-7 Putul Devi, is the informant of the case. In course of trial, the prosecution has examined nine witnesses, including the I.O, and the Doctor, out of whom P.W.-1 Kunden Khoya has turned hostile. He has however identified his signature on the fardbeyan, stating that the same was obtained on a plain paper, which was marked as Ext.-1. 5. P.W.-7 Putul Devi, is the informant of the case. She has stated that the occurrence had taken place on 03.08.2004 at about 4.30 P.M., when her mother-in-law had returned back after sowing the paddy seeds, and was washing her hands and feet, when Raju Khoya came running and her mother-in-law starting fleeing away raising the alarm, but Raju Khoya shot revolver on her and he fled away. Upon the alarm raised, several persons assembled there and found her mother-in-law injured in her chest. While she was being taken to hospital, Raju Khoya came and he again assaulted her mother-in-law in her back due to which she fell down, thereafter she was brought to R.I.M.S., Ranchi, where she was declared dead. The police had recorded her fardbeyan at R.I.M.S., Ranchi, which was read over and explained to her and finding it true she put her signature thereon, which, on her identification, was marked as Exhibit-3. She has also stated that the police had also visited the place of occurrence, where her restatement was also taken. This witness has also stated that Raju Khoya used to allege that her mother-in-law was Daain, and for that he had killed her. This witness has identified the accused in the Court. In her cross-examination she has stated that the accused used to brand the deceased as Daain from some days prior to the occurrence. She has also stated that the accused used to brand her also as Daain, and no one had apprehended Raju Khoya, because he was with revolver. She has also stated that after he was arrested by the police, the said fire armed was recovered. This witness has denied the suggestion that the deceased was murdered due to an illicit relationship of this witness, and the accused, who was mad man, has been falsely implicated in the case. 6. P.W.-2 Sushil Toppo @ Oraon, P.W.-4 Sanjay Linda and P.W.-5 Mahesh Linda, have stated that on 03.08.2004 in the evening they heard the sound of firing and saw Raju Khoya fleeing away with a pistol in his hand. 6. P.W.-2 Sushil Toppo @ Oraon, P.W.-4 Sanjay Linda and P.W.-5 Mahesh Linda, have stated that on 03.08.2004 in the evening they heard the sound of firing and saw Raju Khoya fleeing away with a pistol in his hand. They went to the house of Rahul Toppo and found Rukmani Devi in the injured condition fallen at the door. The daughter-in-law of the Rukmani Devi and other persons were taking her to hospital and they also accompanied them. In the way Raju Khoya again came they fled away due to fear, but Rukmini Devi could not flee away. P.W.-2 Sushil Toppo @ Oraon heard the sound of firing. Both of them have stated that Raju Khoya had assaulted Rukmani Devi again and he fled away. P.W.-4 Sanjay Linda has stated that the accused was chased for being apprehended, but he threatened them with pistol. They brought Rukmani Devi to R.M.C.H, Ranchi, where she was declared dead. Putul Devi (informant) informed that on the allegation of practicing witchcraft, the accused had assaulted her mother-in-law. They have identified the accused in the Court. P.W.-2 Sushil Toppo @ Oraon has stated that the fradbeyan of the informant was recorded in his presence on which he had also put his signature, which he identified and the same was marked Exhibit-1/1. There is nothing of much importance in their cross-examination, except that P.W.-4 Sanjay Linda has stated that he had not seen any one assaulting the deceased, and P.W.-5 Mahesh Linda has admitted that once Raju Khoya had gone to the mental asylum, but he had no knowledge whether he was again admitted in the mental asylum. 7. P.W.-3 Mahesh Khalko is not an eye witness to the occurrence, rather he had seen the deceased being brought to hospital and at hospital she was declared dead. He has stated that he was informed by Rahul Toppo and Putul Devi that the deceased had been assaulted by fire arm by Raju Khoya on the pretext that she was practicing witchcraft. He is the witness to the inquest report, and he has identified his signature on the inquest report which was marked Exhibit-2. 8. P.W.-6 Rahul Toppo is the son of the deceased. He has stated that he had gone to duty and he returned back at about 6 P.M. He was informed by his wife that Raju Khoya had assaulted his mother by fire arm. 8. P.W.-6 Rahul Toppo is the son of the deceased. He has stated that he had gone to duty and he returned back at about 6 P.M. He was informed by his wife that Raju Khoya had assaulted his mother by fire arm. He was also informed about the other assault made by Raju Khoya when she was being taken to hospital and that his mother was declared dead at the hospital. He has stated that Raju Khoya had assaulted his mother on the allegation that she was practicing witchcraft. This witness has stated that at R.I.M.S, Ranchi, inquest report was prepared, on which he had also put his signature and he has identified the signature on the inquest report which was marked as Exhibit-2/1. This witness has also identified the accused in the Court. In his cross-examination he has stated that he is not the eye witness to the occurrence. 9. P.W.-8 is Dr. Ajit Kumar Choudhary, who has proved the post-mortem report of the deceased to be in the handwriting and signature of Late Dr. Shambhu Sharan, who had conducted the post-mortem examination on the dead body of the deceased. This witness has stated that since he had worked with Late Dr. Shambhu Sharan, he was recognizing his handwriting and signature. On his identification, the post-mortem report was marked as Exhibit-4. 10. P.W.-9 Suresh Prasad Srivastava is the Investigating Officer of the case and has stated that on 03.08.2004 he was posted as Officer-In-charge of Gonda Police Station, when he was informed that in village Hatma Dahutoli, one Rukmani Devi was assaulted by fire arm and she had died at R.I.M.S., Ranchi. He made Sanha entry about the information and went to R.I.M.S., Ranchi, where he recorded the fradbeyan of Putul Devi. He has identified the fardbeyan to be in his pen and signature, and the same was marked as Exhibit-5. He has also proved the endorsements on the fardbeyan, which were marked as Exhibits-5/1 and 5/2. The formal FIR was also proved by this witness which was marked Exhibit-6. He has also stated that he had prepared the inquest report of the dead body, which was marked Exhibit-7. He also recorded the restatement of the informant. He has also proved the endorsements on the fardbeyan, which were marked as Exhibits-5/1 and 5/2. The formal FIR was also proved by this witness which was marked Exhibit-6. He has also stated that he had prepared the inquest report of the dead body, which was marked Exhibit-7. He also recorded the restatement of the informant. He has given the details of both the places of occurrences, and he has stated that on 06.08.2004, on the basis of a secret information, he arrested Raju Khoya, who accepted his guilt and stated that he had concealed the fire arm in the drain near a Temple, which was taken out from the drain by the accused himself, which were one country made pistol, two live cartridges and one fired cartridge, for which another police case was instituted. The seizure list of that case was not proved in this case. This witness has stated that he did not find any mark of violence, or blood stains at both the places of occurrence due to heavy rain on that day. After completing the investigation he submitted the charge-sheet. In his cross-examination he has stated that at both the places he did not find any mark of violence and he has also stated that it could not be said that at the time of arresting the accused, that he was mentally ill. This witness had denied the suggestion to have made the faulty investigation. 11. On the basis of the evidence on record, the Court below has found the appellant guilty, convicted and sentenced him for the offences as aforesaid. 12. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and order of sentence cannot be sustained in the eyes of law, inasmuch as, prosecution has not been able to prove the charges against the accused beyond all reasonable doubts. It is submitted that except P.W.-7 Putul Devi, no one is the eye witness to the occurrence, as the other witnesses had assembled at the place of occurrence upon hearing sound the firing. At the second place of occurrence, the witnesses admittedly had fled away upon seeing the accused, and as such they cannot be said to be the eye witnesses to the second assault also. At the second place of occurrence, the witnesses admittedly had fled away upon seeing the accused, and as such they cannot be said to be the eye witnesses to the second assault also. Learned counsel has further submitted that it has come in the FIR itself that the accused was mentally ill and he had not slept for the last two nights. One witness P.W.5 Mahesh Linda has also admitted that once he was admitted in mental asylum as well. Leaned counsel accordingly, submitted that the accused was mentally ill and his case shall fall under the exception under Section 84 of the Indian Penal Code, as the appellant, at the time of occurrence, was a person of an unsound mind, and even if the witnesses have stated that the appellant had assaulted the deceased by fire arm, no offence can be said to be made out against the accused appellant. In support of his contention, learned counsel has placed reliance upon a decision of this Court in State of Jharkhand Vs. Madras Nayak, reported in 2003 (1) East Cr C 607 (Jhr), wherein where, the accused with an unsound mind had assaulted and killed seven persons by axe and had also assaulted and injured several other persons without any reason, he was given the benefit of Section 84 of the Indian Penal Code. Learned counsel accordingly, submitted that the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law, and it is a fit case in which the appellant also ought to have been given the benefit of Section 84 of the Indian Penal Code. 13. Learned counsel for the State on the other hand, has opposed the prayer and has submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Court below, as P.W.-7 Putul Devi who is the informant, is the eye witness to the entire occurrence and she has fully supported the case that the accused came at the place of occurrence with a pistol and assaulted the deceased and when she was being taken to hospital, in the way he again came and assaulted the deceased. The other witnesses, namely, P.W.2 Sushil Toppo @ Oraon, P.W.-4 Sanjay Linda and P.W.-5 Mahesh Linda, though they are not the eye witnesses to the first assault, but they had reached the place of occurrence upon hearing the sound of firing, and they are witnesses to the fact that while the deceased was being taken to the hospital, the accused again came there armed with fire arm, and when these persons started flying away, he again fired upon the deceased causing injury in her back, which proved fatal. Learned counsel submitted that the ocular evidence of the witnesses are fully corroborated by the post-mortem report which was proved by the P.W.8 Dr. Ajit Kumar Choudhary, as Ext.-4, which shows that the deceased had died due to fire arm injuries. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charges against the accused beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and Order of sentence. 14. Having heard learned counsels for both the sides and upon going through the record, we find that the prosecution case is fully supported by the P.W.-7 Putul Devi, who is the informant and the daughter-in-law of the deceased, as an eye witness. The other witnesses, viz., P.W.2 Sushil Toppo @ Oraon, P.W.-4 Sanjay Linda and P.W.-5 Mahesh Linda, had assembled at the place of occurrence on hearing the sound of firing, but they are also the witness to the second occurrence when the accused again came with fire arm and assaulted the deceased and thereafter she was taken to the hospital, where she was declared dead. Though P.W.-4 Sanjay Linda has stated in his cross-examination that he had not seen any one assaulting the deceased, but the fact remains that he had also seen that when the deceased was being taken to hospital, the accused again came armed with fire arm in such a condition that due to fear they had to flee away. The deceased, who could not flee away, was assaulted by the accused, which ultimately proved fatal. The ocular evidence of these witnesses are fully corroborated by the post-mortem report, which was marked Exhibit-4, which shows that the deceased had died due to fire arm injuries. The deceased, who could not flee away, was assaulted by the accused, which ultimately proved fatal. The ocular evidence of these witnesses are fully corroborated by the post-mortem report, which was marked Exhibit-4, which shows that the deceased had died due to fire arm injuries. Though the doctor conducting the post-mortem examination could not be examined due to the fact that he was dead, and the details of the findings in the post-mortem examination could not be proved, but the post-mortem report, Exhibit-4, shows that the deceased had died due to fire arm injuries. The Investigating Officer of the case, P.W.-9 Suresh Prasad Srivastava, has stated that when he arrested the accused, he admitted his guilt and informed that the fire arm was concealed in the drain near a Temple, and it was the accused himself, who took out the fire arm from the drain and handed over the same to the police officer. Though it is submitted by learned counsel for the appellant that the appellant was suffering from mental illness and he is entitled to the benefit of Section 84 of the Indian Penal Code, but the fact remains that no evidence was adduced by the defence to show that at the time of the occurrence, the appellant was incapable of knowing the nature of his act, or that his act was either wrong or contrary to law. The action of the accused clearly shows that at the time of occurrence, he was not suffering from any mentally illness to that extent, as he had assaulted his target only, i.e., the deceased, on both the occasions, and no one else, in the state of mental illness. He was knowing the fact he had committed an offence, and he concealed the fire arm in the drain which he himself took out from the drain and handed over to the I,O. 15. Section 84 of the Indian Penal Code reads as follows:- “84. He was knowing the fact he had committed an offence, and he concealed the fire arm in the drain which he himself took out from the drain and handed over to the I,O. 15. Section 84 of the Indian Penal Code reads as follows:- “84. Act of a person of unsound mind.- Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.” From the evidence on record, we find that there is nothing in the evidence to show that at the time of committing the offence, by the reason of unsound of his mind the accused was either incapable of knowing the nature of his act, or he was incapable to understand that his act was wrong or contrary to law, rather the evidence clearly shows that the accused was fully aware of the nature of his act. The law in this regard is well settled by the Apex Court in T.N. Lakshmaiah Vs. State of Karnataka, as reported in (2002) 1 SCC 219 , wherein, the law has been laid down as follows:- “10. In State of M.P. v. Ahmadulla this Court held that the burden of proof that the mental condition of the accused was, at the crucial point of time, such as is described by the section, lies on the accused who claims the benefit of this exemption vide Section 105 of the Evidence Act [Illustration (a)]. The settled position of law is that every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the contrary is proved. Mere ipse dixit of the accused is not enough for availing of the benefit of the exceptions under Chapter IV. 11. In a case where the exception under Section 84 of the Indian Penal Code is claimed, the court has to consider whether, at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. In a case where the exception under Section 84 of the Indian Penal Code is claimed, the court has to consider whether, at the time of commission of the offence, the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. The entire conduct of the accused, from the time of the commission of the offence up to the time the sessions proceedings commenced, is relevant for the purpose of ascertaining as to whether plea raised was genuine, bona fide or an afterthought. Dealing with the plea of insanity, the scope of Section 84 IPC, the attending circumstances and the burden of proof, this Court in Dahyabhai Chhaganbhai Thakkar v. State of Gujarat held: (AIR pp. 1566-67, para 5) ( AIR 1964 SC 1563 ) “-------------. But, Section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of ‘shall presume’ in Section 4 thereof, the court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances did not exist, --------------- .” (Emphasis supplied) 16. In Madras Nayak's case (supra), relied upon by the learned counsel for the appellant, we find that evidence was brought on record by the defence to show that the accused was mentally ill, but in the present case, we find that though in his statement recorded under Section 313 of the Cr. In Madras Nayak's case (supra), relied upon by the learned counsel for the appellant, we find that evidence was brought on record by the defence to show that the accused was mentally ill, but in the present case, we find that though in his statement recorded under Section 313 of the Cr. P.C., the accused has taken the plea that in the year 2004 he was mentally ill, but no evidence has been brought on record by the defence to show that the appellant was mentally ill. Indeed, the action of the accused appellant as revealed from the evidence on record, clearly shows that the case of the appellant does not come under the General Exceptions under Chapter-IV of the Indian Penal Code. The appellant has failed to discharge the burden that his case falls under Chapter-IV of the Indian Penal Code. In absence of discharge of this burden, it has to be presumed that the accused was absolutely a sane person at the time of committing the offence. 17. In the facts of this case, we are the considered view that the prosecution has been able to prove the charges against the accused appellant beyond all reasonable doubts and it has been able to prove that the appellant committed the murder of the deceased by the fire arm, on the pretext that she was practicing witchcraft. 18. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 21.07.2007 and Order of sentence dated 23.07.2007, passed by the learned Additional Judicial Commissioner, XVIth, Ranchi, in Sessions Trial No. 44 of 2005, which, we hereby, affirm. The appellant Raju Khoya is in custody and is undergoing the sentence. 19. There is no merit in this appeal, and the same is accordingly, dismissed. Let the Lower Court Records be sent back forthwith to the Court concerned, along with a copy of this Judgment.