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2017 DIGILAW 1679 (JHR)

Mahesh Lohra v. State Of Jharkhand

2017-09-16

ANANDA SEN, B.B.MANGALMURTI

body2017
JUDGMENT 1. Heard learned amicus curie appointed by the Court for the sole appellant and the learned Addl. P.P. for the State. 2. This jail appeal is directed against the Judgment of conviction dated 2nd February,2006 and Order of sentence dated 04.02.2006, passed by the learned Additional Sessions Judge, (F.T.C.), Latehar, in Sessions Case No. 84 of 2005, whereby the appellant has been found guilty and convicted for the offences punishable under Section 302 of the Indian Penal Code and Section 3/4 of the Prevention of Witch (DAAIN) Practices Act, 1999. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 5000/- only, in default of payment of fine, simple imprisonment for six months for the offence under Section 302 of the Indian Penal Code and rigorous imprisonment for six months and to pay a fine of Rs. 2000/- only, in default of payment of fine simple imprisonment for two months for the offence under Section 3/4 of the Prevention of Witch (DAAIN) Practices Act, 1999, and both the sentences were directed to run concurrently. 60% of the fine deposited was directed to be given to the informant, Gopal Lohra, husband of the deceased. 3. Prosecution case is based on the fardbeyan of one Gopal Lohra (P.W.1), the husband of the deceased, wherein he states that on 14.01.2005, he was engaged in digging earth when Kaila Lohra came and informed him that his wife has been struck with Gandasa (sharp cutting weapon) by the appellant and she is lying in injured condition. On the basis of this information he rushed to his house. On reaching the house he saw his wife lying in a pool of blood and there was injury mark on her body. With the help of Kaila Lohra he brought his wife on a cot to Latehar hospital for treatment, where she is being treated. He states that the appellant is his brother who was branding his wife regularly as witch (DAAIN), which was objected by his wife; hence the assaulted his wife. 4. With the help of Kaila Lohra he brought his wife on a cot to Latehar hospital for treatment, where she is being treated. He states that the appellant is his brother who was branding his wife regularly as witch (DAAIN), which was objected by his wife; hence the assaulted his wife. 4. On the basis of the fardbeyan of the informant, Latehar P.S. Case No. 5 of 2005 dated 14.01.2005, corresponding to G.R. No. 21 of 2005, was instituted against the accused Mahesh Lohra for the offence under section 307 of the Indian Penal Code and under section 3/4 of the Prevention of Witch (DAAIN) Practices Act, 1999 and investigation was taken up. In course of investigation, after four days of the occurrence injured died, hence, section 302 of the Indian Penal Code was added in this case vide order dated 25.02.2005. After investigation, the police submitted charge sheet in the case. Thereafter, cognizance was taken and the case was committed to the Court of Session for trial. 5. After commitment of the case to the Court of Session, charge was framed against the accused Mahesh Lohra for the offence under section 302 of the Indian Penal Code and under section 3/4 of the Prevention of Witch (DAAIN) Practices Act and the charges were read over and explained to him in Hindi, and upon the accused''s pleading not guilty and claiming to be tried, he was put to trial. 6. In order to prove the charges framed against the accused-appellant, eleven prosecution witnesses were examined by the prosecution. 7. P.W.1, Gopal Lohra, he is the informant and husband of the deceased. He has stated in his deposition that on the date of occurrence he had gone to work as a labourer in construction of a pond in village Bajkum. At about 3 O''clock P.W.2, Kaila Lohra came to him and informed that his brother Mahesh Lohra after inflicting Gandasa blow has cut the head of his wife and she is lying unconscious in the house. On this information he reached his home and saw his wife is lying unconscious with cut injury on left side of head and profuse blood was flowing. Then he along with Kaila Lohra, brought his wife on a cot, to Hospital for treatment. On this information he reached his home and saw his wife is lying unconscious with cut injury on left side of head and profuse blood was flowing. Then he along with Kaila Lohra, brought his wife on a cot, to Hospital for treatment. He stated that Police came to the hospital, where his fardbeyan was recorded and he signed the same after finding his statement to be correct. The Doctor referred the injured to Ranchi, but due to shortage of money, he could not take the deceased to Ranchi, rather he brought her to his house where she was being treated but she died after two days. He also admits that the police had prepared inquest report and he had put his thumb impression. He stated the reasons for the occurrence is that the appellant used to brand his wife as a witch (DAAIN) and the deceased used to object. In cross-examination he affirmed that he got the information from Kaila Lohra. 8. P.W.-2 is Kaila Lohra, he stated that he got the information from his wife Biraj Muni (P.W.5), who informed him that Mahesh Lohra had assaulted the wife of the informant by Gandasa and struck on the left side of her head. This witness immediately rushed and informed the informant. This witness has stated that he had accompanied P.W.1 to Latehar Hospital. He also deposed that the injured was referred to Ranchi, but due to paucity of money, she could not be treated at Ranchi and after two days in course of medical treatment, the injured died. He also deposed about the reason of the occurrence. The accused was branding the deceased as witch (DAAIN) and the appellant also used to extend threat to the deceased. He admitted that the police has prepared inquest report in his presence and he has put his thumb impression on the same. 9. P.W.-3 is Durjan Lohra, he stated that the occurrence has taken place in January 2005 in the month of Magh. He was grazing goats there. He admitted that the police has prepared inquest report in his presence and he has put his thumb impression on the same. 9. P.W.-3 is Durjan Lohra, he stated that the occurrence has taken place in January 2005 in the month of Magh. He was grazing goats there. On hearing hue and cry he rushed to the place of occurrence and saw cut injury on the head of the deceased and the blood was oozing out from it and he also saw the appellant with blood stained Gandasa in his hand shouting that he has caused injuries to the deceased since she is a witch (DAAIN) and gave out that he is going to police station. This witness stated that later on he came to know that wife of Gopal Lohra expired. He identified the appellant in the Court. In his cross-examination he stated that at the time of occurrence he was grazing goats. Nothing was extracted out from his cross-examination. 10. P.W.-4 is Gopal oraon, he has been declared hostile. Though he has been declared hostile, yet he has supported the prosecution case to the extent that he had seen Mahesh Lohra at the place of occurrence with blood stained Gandasa and he uttered that he has inflicted Gandasa blow to the deceased since she is a witch (DAAIN) and on saying this the appellant left the place of occurrence 11. P.W.-5 Biraj Muni Devi, she stated that on hearing scream she went to the house of Gopal Lohra where she saw Mahesh Lohra had cut the head of the deceased with Gandasa and she had fallen on earth and blood was oozing out from from the wound. She further stated that she along with other witnesses had seen the entire occurrence. She has further stated that on seeing them the appellant, carrying the Gandasa ran away, saying that the deceased was a witch (DAAIN) hence he has killed her. She further stated that she informed about the occurrence to her husband Kaila Lohra (P.W.2) with instruction to inform P.W.1, Gopal Lohra, the husband of the deceased. The husband of the deceased reached and took the injured to Latehar Hospital and later on this witness came to know that the injured died. She stated that the name of the deceased was Jaleshwari Devi. The husband of the deceased reached and took the injured to Latehar Hospital and later on this witness came to know that the injured died. She stated that the name of the deceased was Jaleshwari Devi. She reiterated that as the appellant was branding the deceased as witch, the appellant had committed the murder. In her cross-examination she stated that on hearing scream she went to the place of occurrence. She admitted that she did not see the appellant assaulting the deceased with Gandasa. She has admitted that there was a land dispute between the parties. 12. P.W.-6 Dr. Rabindra Narayan is the Medical Officer, who had conducted the post-mortem examination on the dead body of the deceased Jaleshwari Devi and proved the postmortem report as Exhibit-1. He found the following ante-mortem injuries on the dead body:- An incised wound 6"x " x1" on parieto-occipital region on left side of skull vertical in direction cutting skin bone. Brain matter was protruding out of wound. The wound was full of blood. On dissection-skull cavity was full of blood, brain was lacerated, both the lungs were pale, heart was pale and empty. He opined that the cause of death is Cardio Respiratory failure due to severe bleeding, due to scalp injury by sharp cutting weapon such as "Gandasa". It is homicidal in nature. In the suggestion he stated that this injury is not possible if a person falls on a sharp glass. He has proved the post-mortem report to be in his pen and signature. 13. P.W.7 Doman Rajak is the Investigating officer of the case. He deposed that he took up investigation and went to the place of occurrence. The place of occurrence is within Latehar police station in village Dhankara in the house of the informant Gopal Lohra. He gave the description of the house and states that one room in the house belongs to Gopal Lohra and another room belongs to the appellant Mahesh Lohra. He stated that Jaleshwari Devi (deceased) is said to have been assaulted by the appellant with Gandasa. He stated that he has recorded the statement of the witnesses and also recorded confessional statement of this appellant. The said confessional statement was marked as Ext.2. He sent the dead body for postmortem examination and received the postmortem report and injury report and recorded the statements of the witnesses. He stated that he has recorded the statement of the witnesses and also recorded confessional statement of this appellant. The said confessional statement was marked as Ext.2. He sent the dead body for postmortem examination and received the postmortem report and injury report and recorded the statements of the witnesses. He proved the production-cum-seizure list as Ext.3, Fardbeyan as Ext.4, formal F.I.R. as Ext.5, carbon copy of inquest report as Ext.6 and injury requisition as Ext.7. In his cross-examination he stated that accused Mahesh Lohra himself had informed about the occurrence and had produced the Gandasa. He further stated that the injured was taken to the Hospital and Doctor had stated that there is no treatment in Latehar. The deceased died on 18.01.2005. He stated that in para 32 of the case diary, he had recorded that because of paucity of money, the injured was not taken to Ranchi, but she was taken to her house, where she died. He stated that the accused produced the Gandasa after reaching the police station, but the Gandasa was not sent for chemical examination. 14. P.W.8 is Dr. Nihar Nelson Kandulna, who had treated the deceased when she was injured. He found the following injuries on the head of the injured. (i) A sharp cutting injury measuring about 8"x " x " size over the scalp above left eye to occipital region. In his cross examination he has stated that the injured was not unconscious at the time of examination. Above injury may be caused by sharp cutting weapon. Above injury may not be caused by Bhala. He stated that this injury report is in his own pen and signature, which was marked as Ext.8. 15. P.W.9 is Bhuneshwar Turi. He is a local Chowkidar. He has produced the material Exhibit and has proved blood stained "Gandasa" as material Ext.I. He has stated that the material Exhibit was brought from the police station. He stated that material exhibit was produced before the Court as it is, without any modification. 16. P.W.10 Raju Gupta is the seizure list witness. He proved his signature as Ext. 10 on the seizure list, but has stated that he had signed on the blank paper and the police have not seized any material in his presence. 17. P.W.11 is also the seizure list witness and his signature was marked as Ext. 10/1. 16. P.W.10 Raju Gupta is the seizure list witness. He proved his signature as Ext. 10 on the seizure list, but has stated that he had signed on the blank paper and the police have not seized any material in his presence. 17. P.W.11 is also the seizure list witness and his signature was marked as Ext. 10/1. He stated that no material was seized in his presence, but he signed a paper over which something was written. 18. After closure of the prosecution witnesses, statement of the accused was recorded under section 313 of the Code of Criminal procedure, 1973. 19. On the basis of the evidence on record and after hearing the arguments of the parties, the learned trial Court vide judgment of conviction dated 02.02.2006 has convicted the appellant under section 302 of the Indian penal Code and under section 3/4 of the Witch DAAIN) Practices Act, 1999, against which the present jail appeal has been filed by the appellant. 20. Learned Amicus Curiae argued that the prosecution has not been able to prove this case beyond all reasonable doubt. She submits that the charge under section 3/4 of the Prevention of Witch (DAAIN) Practices Act, 1999 is unfounded and without any basis. She submits that even no evidence has come that the appellant has branded the deceased as witch (DAAIN). She argued that there being no specific allegation against the appellant, he could not have been convicted under section 3/4 of the Prevention of Witch (DAAIN) Practices Act, 1999. She submits that the prosecution has heavily relied upon the evidence of P.W.5 and P.W.3, but these two witnesses are not the eye witnesses. As per the learned counsel these witnesses reached the place of occurrence when the assault had already taken place, thus, it cannot be said that this appellant committed murder of the deceased. She also argues that the statement of the accused cannot be taken in evidence as it is a confessional statement, which is before the police and is inadmissible. She further argues that death occurred four days after the assault and in midst of treatment and it has come in evidence that due to paucity of fund better treatment could not be extended to the deceased and that may be the cause of death. She submits that there is no motive to commit murder of the deceased. She further argues that death occurred four days after the assault and in midst of treatment and it has come in evidence that due to paucity of fund better treatment could not be extended to the deceased and that may be the cause of death. She submits that there is no motive to commit murder of the deceased. She further submits that this appellant has been falsely implicated because of some land dispute between the parties, which is substantiated by the witnesses also. She submits that the statement of the deceased was not recorded though she was in a conscious state. Doctor (P.W.8), who treated the deceased when she was injured has categorically stated that the injured was in conscious state and thus, non-recording of the statement of the injured is fatal to the prosecution case. She submits that the seizure list witnesses have also not supported the case of the prosecution. Hence, she claims that on these grounds, the conviction of the appellant cannot be sustained and he is liable to be acquitted. 21. Learned Addl. P.P. on the other hand opposed the prayer and submitted that though there are no eye witnesses to the assault, but immediately after the assault P.W.3 and P.W.5 reached at the place of occurrence. He also submits that there were no other person in the said house. It is also submitted that assault was given on the head of the deceased which is a vital pat of the body and medical evidence supports the prosecution case. It is also submitted that the appellant himself has given out without any threat or coercion before the witnesses that he had committed murder of the deceased and went to the police station. He went to the police station and produced the murder weapon also. He submits that even if there are no eye witnesses, but witnesses have stated that when they reached the house of Gopal Lohara they saw this appellant present there with blood stained Gandasa in his hand and was uttering that he has committed murder of the deceased and is going to the police station. He in fact went to the police station. Learned A.P.P. Submit that on these grounds the appeal should be dismissed. 22. He in fact went to the police station. Learned A.P.P. Submit that on these grounds the appeal should be dismissed. 22. We have heard learned counsel for the appellant and learned A.P.P. for the State and have examined the Lower Court record and have gone through the statement of the witnesses. P.W.1 and P.W.2 are hear say witness. P.W.1 heard about the occurrence from P.W.2, who was also informed about the occurrence by his wife P.W.5. P.W.5 Biraj Muni Devi on hearing scream went to the place of occurrence immediately when the assault had taken place. She found this appellant standing there with blood stained Gandasa in his hand. She stated that Durjan Lohra (P.W.3) and other witnesses were also present there. She states that on seeing these witnesses the appellant left the place saying that he had committed murder of the deceased as she is a witch (Daain) and now he is going to the police station. From her evidence it is clear that she had seen this appellant standing near the injured with blood stained Gandasa in his hand. Another fact which comes out from her evidence that this appellant has given out that he has committed the crime and he is going to the police station P.W.3 Durjan Lohra, is another witness who also reached the place of occurrence immediately after the assault had taken place. He also stated that the appellant was present there with blood stained Gandasa in his hand and the appellant has given out that he has committed the crime and he is going to the police station. There is nothing in their evidence to disbelieve them. From the evidence of these two witnesses, it is crystal clear that the prosecution has proved the fact that the appellant was present at the place of occurrence with blood stained Gandasa in his hand and seeing these witnesses left the place of occurrence by shouting that he had committed murder of the deceased and is going to the police station. P.W.7, Investigating Officer has stated that this appellant reached police station and has informed that he has committed the crime and handed over the blood stained weapon to him. Thus, from his evidence also the statement of P.W.3 and P.W.5 gets corroboration. Doctor (P.W.8), who had treated the deceased, when she was injured, found one injury on the left side of the scalp. Thus, from his evidence also the statement of P.W.3 and P.W.5 gets corroboration. Doctor (P.W.8), who had treated the deceased, when she was injured, found one injury on the left side of the scalp. Doctor (P.W.6), who had conducted postmortem has also found similar injury. The fact that the appellant has assaulted the deceased over the scalp above left eye to occipital region was corroborated by P.W. 1 and P.W.2. The murder weapon was also produced in the Court by P.W.9. Thus, from the aforesaid evidence, we find that the appellant was found present at the place of occurrence immediately after the assault holding blood stained Gandasa. The appellant has declared that he is the person who had assaulted and killed the deceased. We also find that this appellant had gone to the police station and had handed over the weapon to the Investigating Officer. Thus, the involvement of this appellant for commission of offence has been proved. 23. So far as the confessional statement of the appellant is concerned, we find that though, he has confessed his guilt before the police, but prior to that, without there being any threat or coercion, at the place of occurrence. In front of P.W.3 and P.W.5 he has stated that he had committed the murder of the deceased and reasons for committing her murder has also been narrated by him. He stated that as the deceased was a witch, she was done to death. It is, thus, established that as per opinion of the appellant, the deceased was a witch, so he has murdered her. This was a voluntary declaration by the appellant before the independent witnesses. This declaration is immediately after the occurrence without there being any delay and can be said to be done in a single transaction. 24. Thus, we find that the prosecution has been able to prove the guilt of this appellant beyond all reasonable doubts. Thus, we find no merit in this appeal and the appellant has been correctly convicted vide judgment dated 02.02.2006 passed by the Addl. Sessions Judge, F.T.C., Latehar, in Sessions Case No. 84 of 2005 for committing offence under sections 302 of the Indian Penal code and under section 3/4 of the Prevention of Witch (DAAIN) Practices Act, 1999 and has been rightly sentenced under the aforesaid sections. 25. In the result, this appeal is dismissed. The appellant is already in custody. Sessions Judge, F.T.C., Latehar, in Sessions Case No. 84 of 2005 for committing offence under sections 302 of the Indian Penal code and under section 3/4 of the Prevention of Witch (DAAIN) Practices Act, 1999 and has been rightly sentenced under the aforesaid sections. 25. In the result, this appeal is dismissed. The appellant is already in custody. He will serve out the rest of the sentence. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment. 26. Before parting we must record that we have been very ably assisted in this case by Miss. Chaitali C. Sinha, the learned amicus curie, who argued this case before the Specially constituted Bench on a Saturday. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to Miss. Chaitali C. Sinha, the learned amicus curie. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful.