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2017 DIGILAW 894 (JHR)

Alphosh Soreng v. State Of Jharkhand

2017-06-07

ANANDA SEN, PRADIP KUMAR MOHANTY

body2017
JUDGMENT Pradip Kumar Mohanty, C.J. (C.A.V.) - This criminal appeal is directed against the judgment of conviction and order of sentence dated 10.2.2005, passed by Shri Braj Kishore Pandey, the learned Sessions Judge, Simdega in connection with Session Trial No. 20/2004, whereby and where-under, the appellant having been found guilty of charges under Section 302 of Indian Penal Code, has been sentenced to undergo imprisonment for life. 2. The case of the prosecution on the basis of written information of the informant Pramila Sorang is that Alphosh Soreng and Simone Soreng were branding her mother as a ''witch'' for which, a panchayati was held on 1.10.2003. During the panchayati, younger brother of accused, Simon Soreng came and tried to assault her mother but she was saved by Herman Bage. Due to the quarrel of Simong Soreng, the panches decided to report the matter to the police and went towards the police station. The mother of the informant was also going to the police station from another way but Alphosh Soreng chased her and assaulted with Tangi on the head, mouth and neck indiscriminately due to which she died on the spot. On hearing hulla many persons gathered there and saw the dead body of the deceased. Alphosh Soreng fled from there after throwing the Tangi in the bush. It is alleged that on last Tuesday night the accused came to their house by concealing a Dauli and attempted to kill the deceased by saying that she is a witch but the deceased rushed to the house of Nuash Dungdung. The accused also chased her and assaulted her. The informant saved her mother by convincing the accused that on the next day she will call panchayati. On the basis of the aforesaid Fardbeyan of the informant, Jaldega P.S. Case No. 34 of 2003 was registered for offence under Section 302 of Indian Penal Code and Sections 3/4 of the Prevention of Witch (Daain) Practices Act against the accused person. Subsequently, the matter was taken up for investigation. After completion of investigation, charge sheet was submitted against the accused person and, accordingly, cognizance of the offence was taken and the case was committed to the Court of Sessions being Sessions Trial Case No. 20 of 2004 for trial. 3. Subsequently, the matter was taken up for investigation. After completion of investigation, charge sheet was submitted against the accused person and, accordingly, cognizance of the offence was taken and the case was committed to the Court of Sessions being Sessions Trial Case No. 20 of 2004 for trial. 3. In order to prove the charges against the accused, the prosecution has examined altogether 13 witnesses, P.W.-1 is Philip Dungdung, P.W.-2, is Ignes Dungdung, P.W.-3 is Pramila Soreng, P.W.4 is Herman Bage, P.W.5 is Piyus Soreng; P.W.6 is Joseph Kullu, P.W.7 is Maskal Bage, P.W. 8 is Matiyas Dungdung, P.W. 9 Remish Soreng, P.W.10 is Leonard Soreng, P.W. 11 is Nuas Dungdung, P.W.-12 Tapshi Bhagat and P.W.-13 is Dr. C.A. Xaxa. Out of thirteen witnesses, P.W.-5, P.W.6, P.W.-8, P.W.9 and P.W.10 have simply been tendered for cross examination. Amongst the remaining witnesses, P.W.-3 is daughter of the deceased and informant of the case whereas, P.W.1 claimed to be an eye witness. 4. After closure of the evidence of the prosecution, the statement of the appellant was recorded under Section 313 Cr.P.C. The learned trial court, after hearing the arguments of the parties and analyzing the evidences and the materials available on record, convicted the appellant for the offence under Section 302 of the Indian Penal Code. 5. Challenging the judgment of conviction and the order of sentence, the appellant is before this Court. 6. Learned counsel for the appellant submits that there is no material available on record to implicate this appellant for the offence under Section 302 of the Indian Penal Code. He further submits that the appellant has been convicted solely on the basis of the evidence of P.W.1 without there being any corroborating evidence. He also submits that from the evidence of P.W.1, who poses himself to be an eye witness, it is clear that he has not seen the occurrence. It is submitted that if the evidence of P.W.1 is discarded, then there is no evidence on record, which suggests that the appellant has committed the offence, as alleged. 7. On the contrary, the learned Addl. Public Prosecutor submits that P.W.1 is an eye witness and there is no material on record to discard his evidence. The defence was unable to dislodge the evidence of P.W.1 and there is nothing to disbelieve or doubt his evidence. 7. On the contrary, the learned Addl. Public Prosecutor submits that P.W.1 is an eye witness and there is no material on record to discard his evidence. The defence was unable to dislodge the evidence of P.W.1 and there is nothing to disbelieve or doubt his evidence. He also submits that the entire circumstances, preceding the murder coupled with the evidence of P.W.-1, clearly suggest that the appellant is the assailant and had an intention to commit the murder of the deceased. In fact, the appellant assaulted the deceased with sharp cutting weapon, resulting in death of the deceased. He also submits that the learned court below has rightly awarded the punishment to the appellant for the offence under Section 302 of the Indian Penal Code. 8. We have heard the learned counsel appearing for the parties and gone through the Lower Court Record and have also scanned the Exhibits as well as the evidences available on recorded. P.W. 1-Philip Dungdung is nephew of the deceased and eye witnesses of the instant case. He deposed that about six month ago at about 1.30 -2:00 p.m. when he was at the door of his house, he saw the deceased Kalara Soreng coming from her house and when she came near his house the accused came from behind with a Tangi and started assaulting her on mouth, head and neck, as a result of which, she fell down and died on the sport and after that accused threw his Axe there and fled away. In his cross examination, he has clearly stated that he did not know anything about the panchayati. He further stated that the deceased was wife of his eldest uncle and also stated that he has no previous enmity with the accused. He stated that he is also related with the accused. P.W.-2, Ignes Dungdung is a hearsay witness and he deposed that panchayati was convened in the village on 1.10.2003 as the accused used to brand the the deceased as a witch. He further submitted that panchayati was disturbed by brother of accused and as such no decision was taken up in panchayati. In his cross examination, he stated that he heard about the occurrence when he was returning from panchayati to his house. P.W.-3 Pramila Soreng is the daughter of the deceased and informant of this case. He further submitted that panchayati was disturbed by brother of accused and as such no decision was taken up in panchayati. In his cross examination, he stated that he heard about the occurrence when he was returning from panchayati to his house. P.W.-3 Pramila Soreng is the daughter of the deceased and informant of this case. She deposed that a day prior to occurrence accused attempted to kill her mother with Dauli and told the deceased that she had eaten her child and she does not allow him having any child therefore, he would kill her. She further deposed that on the following day a panchayati was convened in the village and in the said panchayati also an attempt was made to assault the deceased but on account of her intervention and that of Herman, deceased was saved and after that villagers had advised them to go to the police station. She further deposed that thereafter her mother was going to police station concealing herself. The informant alongwith her grandfather were also going to the police station from another route. The informant was at distance of 500- 600 yards from the deceased. She further deposed that at the same time he heard hulla of Philip (P.W.1) who was saying that the accused had killed her mother. In her cross examination, she deposed that in panchayati an attempt was also made to assault. P.W.4 Herman Bage is hearsay witness. He deposed that panchayati was convened in the village on 1.10.2003 as the accused alleged that the deceased is a witch and quarreled with her. He further stated that in the meeting accused and his brother started quarreling and due to which, decision was not taken up and deceased was advised to go to the police station. He further stated that thereafter he along with informant was going to police station and after some time he heard shouting of P.W.1 Philip, who was saying that the deceased had been killed by the accused. He further deposed that he was told by Philip that the deceased had been killed by the accused. In his cross-examination, he deposed that he had not seen the occurrence with his own eyes. P.W.-7 Maskeal Bage is the formal witness. He was the writer of the written report. He proved the written report i.e. marked as Ext.-1. He further deposed that he was told by Philip that the deceased had been killed by the accused. In his cross-examination, he deposed that he had not seen the occurrence with his own eyes. P.W.-7 Maskeal Bage is the formal witness. He was the writer of the written report. He proved the written report i.e. marked as Ext.-1. In his cross-examination, he stated that when decision was not taken in the Panchayati then they were going to police station and the deceased was killed while she was on her way to police station. He further deposed that Philip has informed them about the incident. P.W.-11 Nuwas Dungdung is the seizure list witness. He deposed that one day prior to occurrence a fight had taken place between deceased and accused and in this relation panchayati was convened in the village. He further stated that during this meeting fight had also taken place between accused and deceased and due to which no decision could be taken. He further deposed that the deceased was killed while she was on way to police station. He further deposed that in course of interrogation accused told the police that the Axe was used in killing and in his presence, accused had brought out that Axe (Tangi) and handed over the same to police. He further deposed that at the time of arrest accused was wearing a vest of white colour which got blood stains and the accused had told that the blood has fallen on his vest at the time of the murder. He had put his LTI over the seizure list of Tangi, blood stained soil and blood stained cloths of appellant. P.W.12 Tapshi Bhagat is the Investigating Officer of the instant case. He proved the formal FIR, marked as Ext.-2. He proved inquest report i.e. marked as Ext.-3. He proved seizure list of blood stained earth i.e. marked as Ext.-4. According to him, the place of occurrence is western side of the house of Nuwas Dungdung and he also arrested the accused on 03.10.2003 and on the basis of confessional statement of accused the Axe(Tangi) used in the murder was seized and accordingly, seizure list was prepared and marked as Ext.-4/1. According to him, the place of occurrence is western side of the house of Nuwas Dungdung and he also arrested the accused on 03.10.2003 and on the basis of confessional statement of accused the Axe(Tangi) used in the murder was seized and accordingly, seizure list was prepared and marked as Ext.-4/1. He also stated that at the time of arrest, accused was wearing a vest of white colour which was blood stained and the accused had confessed that the blood has fallen on his vest at the time of the murder and accordingly, another seizure list was prepared i.e. marked as Ext.-4/2. In his cross-examination, he stated that the dead body was not found near the house of Philip Dungdung. P.W.-13, Dr. C.A. Xaxa is a Medical Officer, who conducted postmortem over the dead body of the deceased. He noted the following external injuries:- (I) Incised wound 2 cm x 1 cm over the mid part of nose extending from the mid part of nose up to the upper lip with fracture of mandible-upper. (II) Lacerated injury over right lateral side upper part of neck 4 cm x 1 cm with fracture of underlying bone. (III) Lacerated injury 4 cm x 2 cm on the occipital bone with fracture, and (IV) Lacerated injury 3 cm x 2 cm on the frontal bone with fracture of underlying bone. According to him, the injuries were ante mortem caused by sharp cutting hard and blunt weapon such as Tangi and back portion of Tangi within 24 hours. He further opined that death was due to shock by the aforesaid injuries, excessive bleeding and head injury. He proved the postmortem report i.e. marked as Ext.-5. In his cross-examination, he stated that these injuries are not possible by fall on rock. 9. After going through the record, we find that P.W.3 is the daughter of the deceased, who categorically stated that a day prior to the occurrence, this appellant, entering into the house with Dauli (Axe-a sharp cutting weapon), tried to assault the deceased. This witness intervened, as a result of which, the deceased could save herself by fleeing away from her house to the neighbour. On the next day, when the Panchayati failed, her mother was on her way to the Police Station, when she heard that P.W.-1 was screaming and saying that this appellant has murdered the deceased. This witness intervened, as a result of which, the deceased could save herself by fleeing away from her house to the neighbour. On the next day, when the Panchayati failed, her mother was on her way to the Police Station, when she heard that P.W.-1 was screaming and saying that this appellant has murdered the deceased. There is nothing in the cross-examination to disbelieve her statement. P.W.-1 is an eye witness who was not present at Panchayati but was sitting in front of his house. He saw the deceased being followed by this appellant and suddenly this appellant gave tangi (a sharp cutting weapon) blows on the mouth, head and neck of the deceased, as a result of which, she fell down and died. He also narrated that after assaulting the deceased by means of a Axe, the appellant fled way from the place of occurrence. In his cross-examination, he was confronted with a question as to whether he could see the occurrence or not as he was sitting in front of his house. In reply, he categorically stated that from his door step, his vision was not obstructed and he could see the occurrence. He further stated in his cross-examination that he is related to the appellant and the deceased also and therefore, there is nothing in his evidence to disbelieve the same. He being related to both i.e. the appellant and the deceased and admittedly, there being no enmity amongst them (as it came in the evidence) he is the best neutral person to depose in this case. There is no contradiction in his cross-examination. Thus, this witness is fully reliable one. 10. Thus, from the evidence adduced, it is clear that one day before the date of occurrence, this appellant tried to commit the murder of the deceased, but the deceased somehow could save herself. On the next day, when the Panchayati failed, and the deceased was going to the Police Station, she was attacked by this appellant from the behind by Axe, resultantly, the deceased died instantly. The medical evidence i.e. the post mortem report (Exhibit-5), clearly suggests that there is incised wound and several injuries on the head and neck of the deceased, which corroborates the testimony of P.W.-1. The nature of weapon used was a sharp cutting weapon, which is also mentioned in the post mortem report. The medical evidence i.e. the post mortem report (Exhibit-5), clearly suggests that there is incised wound and several injuries on the head and neck of the deceased, which corroborates the testimony of P.W.-1. The nature of weapon used was a sharp cutting weapon, which is also mentioned in the post mortem report. In fact, the Axe (tangi) was also recovered from the place of occurrence and the death was due to head injury. From this evidence, we find that the prosecution has proved its case beyond all reasonable doubt that this appellant has committed the murder of the deceased. 11. Under the circumstances, this Court finds that the trial court was absolutely justified in recording the order of conviction and sentence. Accordingly, the judgment of conviction and order of sentence do not warrant any interference by this Court and, hence, it is affirmed. 12. In the result, this appeal is dismissed. Ananda Sen, J. - I agree.