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2017 DIGILAW 1348 (JHR)

Anil Mahli v. State of Jharkhand

2017-08-03

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : Heard the learned senior counsel for the appellant and the learned counsel appearing for the State. 2. This criminal appeal is directed against the Judgment of conviction dated 15.5.2008 and Order of sentence dated 16.5.2008, passed by the learned Additional Judicial Commissioner, F.T.C.-VIII, Ranchi, in Session Trial No. 518 of 2004, whereby, the sole appellant has been convicted for the offence under Section 302 of the Indian Penal Code and 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 life imprisonment and to pay a fine of Rs.5000/- for the offence under Section 302 of the Indian Penal Code and R.I. for three months and six months for the offences under Section 3 and 4 respectively, of the Prevention of Witch (Daain) Practices Act. All the sentences were directed to run concurrently. 3. The prosecution case was instituted on the basis of fardbeyan of one Karma Mahli, the son of the deceased, Ribon Devi. The occurrence had taken place on 17.7.2004 and it is stated in the fardbeyan that at the time of occurrence, the informant along with his wife Karmi Devi and a child was sitting in his verandah and his mother Ribon Devi was sitting in the courtyard and they were talking. In the meantime, suddenly, the accused Anil Mahli came armed with axe and closed the door of the verandah on which the informant and his wife were sitting, and started assaulting his mother. The informant could see the occurrence from the gap in the door and he saw that the accused Anil was assaulting his mother by axe and when his mother fell down, he assaulted her by danda. No one was present nearby. After about 10 minutes, one Ananat Mahli of his village came and opened the door, whereupon the informant and his wife came out and saw his mother dead. By that time Anil Mahli had fled away with axe and Danda. He stated that the occurrence had taken place as on the previous day, 15 days' old child of Anil had died and he used to allege that the mother of the informant was practicing witchcraft and had killed his child. By that time Anil Mahli had fled away with axe and Danda. He stated that the occurrence had taken place as on the previous day, 15 days' old child of Anil had died and he used to allege that the mother of the informant was practicing witchcraft and had killed his child. It is also alleged that the accused had also assaulted the informant alleging the same thing, but the informant took it lightly thinking that he had done so in the drunken condition. On the basis of the aforesaid fardbeyan, Bero P.S. Case No. 39 of 2004, corresponding to G.R. No. 2081 of 2004, was instituted for the offences under Section 302 of the Indian Penal Code and Sections 3/4 of the Prevention of Witch (Daain) Practices Act, and investigation was taken up. After investigation, the police submitted charge-sheet against the accused appellant. 4. Upon commitment to the case to the Court of Session, charges were framed against the accused for the offences under Section 302 IPC and 3 / 4 of the Prevention of the Witch (Daain) Practices Act, to which, the appellant pleaded not guilty and claimed to be tried and he was put on trial. In course of trial, seven witnesses have been examined by the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 5. P.W.-5 Karma Mahli is the informant of the case and son of the deceased. This witness has stated that the occurrence had taken place about one year ago. He was sitting on the verandah along with his wife and his mother. In the meantime, Anil Mahli came armed with axe and pushed the informant and his wife into the room and closed the door and started assaulting his mother. He assaulted his mother by axe and when she fell down, he assaulted her by lathi, causing her death at the spot. After about 10 minutes, Anant Mahli came and opened the door, whereupon, the informant and his wife came out and saw his mother dead. He had seen the injuries on the dead body of his mother, including the cut injury on the head. He has also stated that 15 days' old child of the accused had died, and the accused was alleging that the child had died due to witchcraft practiced by the deceased. He had seen the injuries on the dead body of his mother, including the cut injury on the head. He has also stated that 15 days' old child of the accused had died, and the accused was alleging that the child had died due to witchcraft practiced by the deceased. This witness had informed the Choukidar, who had gone to inform the police, whereupon, the police came at the place of occurrence. He has identified the accused in the Court. He has stated that the police had prepared the inquest report of the dead body on which, he and his wife had put their thumb impressions. The police had also seized the blood stained soil from the place of occurrence. This witness and his wife also put their thumb impressions on the seizure list. In his cross-examination, he has again stated that at the time of occurrence he was in the room and he was raising alarm from the room itself, whereas his mother had fallen in the courtyard, which was after the verandah. 6. P.W.-2 Karmi Devi, the wife of the informant, is the other eye witness to the occurrence. She has stated that she along with her husband and mother-in-law and a child were sitting in the courtyard of the house. In the meantime, Anil came and pushed her and her husband on the verandah and closed the door and thereafter he started assaulting his mother-in-law by axe. She saw the occurrence from the gap in the door and saw that the accused had made 4-5 assaults by axe on her mother-in-law whereupon, she fell down and thereafter, the accused assaulted her by lathi. They were raising alarm, but no one was present there. After sometime, Anant Mahali came and opened the door and when they came out, they saw the deceased dead. Anil had fled away by that time. The Chaukidar was informed and upon his information, the police came and had prepared the seizure list and the inquest report, on which she had put her thumb impressions. She has also stated that the child of Anil had died and he used to allege that his child died due to witchcraft practiced by the deceased. She has identified the accused in the Court. She has also stated that the child of Anil had died and he used to allege that his child died due to witchcraft practiced by the deceased. She has identified the accused in the Court. In her cross-examination, she has stated that in her house, there was a room and verandah and thereafter, the courtyard, and in the door, there were gaps, through which, the occurrence was seen. She has also stated that the door was closed for about half an hour. The child of the accused had died 2-3 days prior to the occurrence. She has denied the suggestion to have given false evidence. 7. P.W.-1 Mangra Mahli , who is the son-in-law of the deceased, P.W.-4 Kiran, who is the daughter of the informant and P.W.-7 Petla Mahli, who is the nephew of the deceased, are not the eye witnesses to the occurrence, rather they had reached the place of occurrence, after the occurrence, and they were informed about the occurrence by the informant and his wife. They have also supported the case of the prosecution as hearsay witnesses, and there is nothing of much importance in their cross-examinations. 8. P.W.-3 Chandrashekhar Prasad, was working as Lecturer in the Department of Forensic Medicine, RIMS, Ranchi, who had conducted the post-mortem examination on the dead body of the deceased on 18.07.2004 and had found the following ante-mortem injuries on the dead body:- (1) Abrasion-No. 1: 4 x 2 cm on left arm lateral side with fracture of left humerous bone. (2) L. Ws.-No. 1-8 x 3 cm into bone deep on left frontal region of head. (3) 4 x 1 cm. x soft tissue on the centre of forehead. (4) 2 x 2 cm x soft tissue on the left forehead. (5) 7 x 4 cm x bone deep on left parieto temporal region of head. (6) 3x 2 cm. X soft tissue on left mestoid region. (7) 5 x 2 cm x bone deep on the left side of chin with fracture of left side of mandible bone. Internal :-There was diffused contusion of left fronto parieto temporal scalp and occipital region. There was crack fracture of left tempero perietal bone and fracture line extended to left middle cranial fossa. There was contusion of brain and presence of subdural blood and blood clots over both sides of brain. There was fracture of left 3rd to 6th ribs. Internal :-There was diffused contusion of left fronto parieto temporal scalp and occipital region. There was crack fracture of left tempero perietal bone and fracture line extended to left middle cranial fossa. There was contusion of brain and presence of subdural blood and blood clots over both sides of brain. There was fracture of left 3rd to 6th ribs. He opined that all the injuries were ante-mortem in nature and caused by hard and blunt substance. The death was caused due to these injuries. He has identified the post-mortem report to be in his pen and signature, which was marked Ext.-1. 9. P.W.-6 Rajnarayan Singh is the Investigating Officer of this case. He has stated that on 17.07.2007, he was posted as Officer-In-charge in Bero Police Station. He got the information about the occurrence and he came to the place of occurrence and recorded the fardbeyan of the informant, Karma Mahli, which he has proved and the same was marked as Exhibit-2. He also prepared the inquest report and collected the blood stained soil from the place of occurrence and had prepared the seizure list. He has proved the inquest report and the seizure list, which were marked Exhibits 3 and 4, respectively. As to the details of the place of occurrence, he has only given the boundary of the place of occurrence and he has not stated anything whether there was any door on the verandah and whether the door was having such gaps through which, the occurrence could be seen. This witness is absolutely silent on these points. He has also proved the formal FIR, which was marked as Ext.5, and has stated that after getting the post-mortem report, he submitted the charge-sheet. In his cross-examination, he has admitted that he had not prepared the sketch map of the place of occurrence, he had recorded the statements of only the family members of the deceased, and when he reached the place of occurrence, no one else was present there, except the family members. He has admitted that he had not recorded the details of the verandah in the case diary. He has denied the suggestion to have made faulty investigation. 10. After closure of the evidence of the prosecution, the statement of the appellant was recorded under Section 313 of the Cr.P.C., and we find from the statement that it has been recorded in very sketchy manner. He has denied the suggestion to have made faulty investigation. 10. After closure of the evidence of the prosecution, the statement of the appellant was recorded under Section 313 of the Cr.P.C., and we find from the statement that it has been recorded in very sketchy manner. It was only asked whether the accused had committed the murder of the deceased, and no other circumstance appearing against him in the evidence, either about the death of his child, or his apprehension that the child had been killed due to witchcraft practiced by the deceased, was put to him. The defence is complete denial of the charge. On the basis of the evidence on record, the accused has been found guilty, convicted and sentenced for the offences, as aforesaid. 11. Learned senior counsel appearing for the appellant submits that the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law, as the prosecution has not been able to bring home the charges against the accused beyond all reasonable doubts. It is submitted that even though both the eye witnesses have clearly stated that the accused had assaulted the deceased by axe and when she fell down, she was assaulted by lathi, but no sharp cut injury was found on the deceased in the post-mortem examination, and all the injuries were caused only by hard and blunt substance. Learned senior counsel further submitted that Anant Mahli, about whom it is stated that after 10 minutes of the occurrence, he came and opened the door, whereupon, the informant and his wife could come out, has not been examined in this case, which also creates sufficient doubt in the case of the prosecution. It is further submitted that though the boundary of the place of occurrence has been detailed by the I.O., mentioning that there are houses nearby, but only the statements of the family members were recorded by the police and no statement of any independent witness had been recorded in this case. It is submitted by the learned counsel that in absence of the statement of any independent witness, false implication of the accused cannot be ruled out, particularly when the enmity is admitted in this case, as it is stated that the accused used to brand the mother of informant as Daain. It is submitted by the learned counsel that in absence of the statement of any independent witness, false implication of the accused cannot be ruled out, particularly when the enmity is admitted in this case, as it is stated that the accused used to brand the mother of informant as Daain. Learned senior counsel accordingly, submitted that even though the prosecution witnesses have supported the prosecution case, in the facts and circumstances of this case, the appellant ought to have been given at least the benefits of doubt. 12. Learned counsel for the State on the other hand has opposed the prayer and has submitted that the informant and his wife are the eye witnesses to the occurrence and they have given the details of the occurrence, stating that they had seen the occurrence through the gaps in the door. It is submitted that the other witnesses, who came to the place of occurrence later on, were also informed by these witnesses about the concurrence, and the ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W. -3 Chandrashekhar Prasad and the post-mortem report proved by him as Ext.-1. Learned counsel accordingly, submitted that the prosecution has been able to prove the charges against the appellant beyond all reasonable doubts. 13. Having heard learned counsels for both the sides and upon going through the record, we find that according to the FIR, at the time of occurrence, the informant and his wife were sitting on the verandah whereas, the mother of the informant (deceased) was sitting in the courtyard. However, this version has been changed by the informant in his evidence, as P.W.-5 Karma Mahli has stated that at the time of occurrence all of them were sitting on the verandah, when the accused came and pushed the informant and his wife into the room and closed the door and thereafter he assaulted his mother. P.W.-2 Karmi Devi has stated that all of them were sitting in the courtyard and she and her husband were pushed on the verandah and the door was closed. P.W.-5 Karma Mahli has stated that he had seen the occurrence from the room whereas, P.W.-2 Karmi Devi has stated that they had seen the occurrence from the verandah. P.W.-2 Karmi Devi has stated that all of them were sitting in the courtyard and she and her husband were pushed on the verandah and the door was closed. P.W.-5 Karma Mahli has stated that he had seen the occurrence from the room whereas, P.W.-2 Karmi Devi has stated that they had seen the occurrence from the verandah. These witnesses have stated that they could see the occurrence through the gaps of the door, but the I.O. has not stated anything whether any such door was present there, with such gaps through which the occurrence could be seen by theses witnesses. We have also looked into the case diary and we are surprised as to why this piece of the evidence is withheld by the prosecution, as these matters are mentioned in the case diary in the description of the place of occurrence. This apart, both the eye witnesses P.W.-5 Karma Mahli and P.W.-2 Karmi Devi, have stated that they saw that the accused assaulted the deceased first by axe and when she fell down, he assaulted her by lathi. In her evidence, P.W.-2 Karmi Devi has specifically stated that the accused had given 4-5 axe blows on her mother in-law, whereas, P.W.-5 Karma Mahli has specifically stated that when he came out after the door was opened, he saw cut injury on the head of his mother. The evidence of P.W.-3. Chandrashekhar Prasad, clearly shows that there was no sharp cut injury on the dead body of the deceased and this clearly makes the entire prosecution story doubtful, as to whether the eye witnesses P.W.-2 Karmi Devi and P.W.-5 Karma Mahli had actually seen the occurrence through the gaps of the door, if they were locked in the room / verandah. Anant Mahli, who came and opened the door, has not been examined in this case by the prosecution and this also makes the prosecution story doubtful. Due to these discrepancies in the prosecution case, we are of the considered view, that even if the prosecution witnesses have supported the prosecution case, in the facts and circumstances of this case, the appellant is entitled to get the benefits of doubt and as such, the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 14. 14. For the foregoing reasons, the impugned Judgment of conviction dated 15.5.2008 and Order of sentence dated 16.5.2008, passed by the learned Additional Judicial Commissioner, F.T.C.-VIII, Ranchi, in S.T. No. 518 of 2004, are hereby, set aside. The appellant Anil Mahli is given the benefits of doubt and he is acquitted of the charges. The appellant is in custody, let him be released and set at liberty forthwith, if his detention is not required in any other case. 15. In the result, this appeal is allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.