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2018 DIGILAW 171 (JHR)

Moyka Purty v. State Of Jharkhand

2018-01-18

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT 1. Heard learned counsels for the appellant and learned counsel for the State. 2. Appellant is aggrieved by the Judgment of conviction dated 21.08.2008 and Order of sentence dated 22.08.2008, passed by the learned Additional Sessions Judge-II, Chaibasa, in S.T. No.53 of 2006, whereby, the accused Moyka Purty, who was facing the trial along with his wife Pangila Kui for the offence under Sections 302 / 34 of the Indian Penal Code, has been found guilty and convicted for the same. The co-accused, wife of the appellant, has been given the benefit of doubt and she has been acquitted of the charge. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life with a fine of Rs.5,000/- for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of Menjo Purty, daughter of the deceased Man Singh Purty, recorded on 26.08.2005 at Bazartand, Goilkera, at about 7 to 7:30 PM. In the fardbeyan, the informant has stated that on the previous day, at about 8 PM in the night, her child became seriously ill, whereupon, she along with her father Man Singh Purty was taking her child to a doctor for treatment. At about 9 to 10 PM, when they reached near the house of the Moyka Purty, Moyka Purty armed with bow and arrow and his son Mohan Purty armed with tono (a sharp cutting weapon) came there and Moyka Purty Shot arrow on her father. The first arrow did not hit her father; second and third arrows were pierced in the stomach and chest of the father of the informant. Mohan Purty, the son of Moyka Purty, slit the neck of her father by tono. When she raised alarm, both the accused fled away. Thereafter, with the help of the villagers, she brought her injured father to her house and thereafter he was being taken to Goilkera hospital, but he died in the way. Thereafter, in the morning, she was bringing the dead body of her father to the Police Station, but she met the police at Bazartand, where she gave her fardbeyan. In the fardbeyan, she has stated that there was previous enmity between her father and Moyka Purty as her father had assaulted the wife of the Moyka Purty alleging that she was practicing witchcraft. In the fardbeyan, she has stated that there was previous enmity between her father and Moyka Purty as her father had assaulted the wife of the Moyka Purty alleging that she was practicing witchcraft. On the basis of the fardbeyan of the informant, Goilkera P.S. Case No.26 of 2005, corresponding to G.R. No.240 of 2005, was instituted for the offence under Sections 302 / 34 of the Indian Penal Code, against the accused Moyka Purty and his son Mohan Purty, and investigation was taken up. After investigation, it appears that the charge-sheet was also submitted against Pangila Kui, the wife of the accused Moyka Purty. The impugned Judgment shows that the case of Mohan Purty was separated due to the fact that he was declared juvenile. 4. After commitment of the case to the Court of Session, the charge was framed against both the accused Moyka Purty and Pangila Kui for the offence under Sections 302 / 34 of the Indian Penal Code, and upon the accused persons'' pleading not guilty and claiming to be tried, they were put to trial. 5. In course of trial, eleven witnesses were examined on behalf of the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased, out of whom, PW 7 Dushashan Lohar turned hostile and has not supported the prosecution case and PW 8 Mohan Singh Purty was only tendered by the prosecution. 6. Pw 1 Menjo Purty is the informant in the case. This witness has stated that the occurrence had taken place about two years ago on a Wednesday. Her child became ill and she was going to a doctor along with her father. When they reached near the house of Moyka Purti, Moyka Purty, his son Mohan Purty, Pulu Purty and Pangila Kui came there. Mohan Purty was armed with dauli and Moyka Purty was armed with bow and arrows. Moyka Purty shot arrows on her father, injuring him on his stomach, due to which, her father fell down. Thereafter, Mohan Purty slit the neck of her father by dauli, causing bleeding injury. She raised the alarm. Her father in the injured condition, anyhow reached the house of her uncle Massa Purti and thereafter, he was being taken to hospital, but he died in the way. Thereafter, they took the dead body to the Police Station. Thereafter, Mohan Purty slit the neck of her father by dauli, causing bleeding injury. She raised the alarm. Her father in the injured condition, anyhow reached the house of her uncle Massa Purti and thereafter, he was being taken to hospital, but he died in the way. Thereafter, they took the dead body to the Police Station. She has stated that she had given her fardbeyan to the police and finding the same to be true, she had put her thumb impression on the fardbeyan. She has also stated that there was previous enmity between the accused and the deceased, due to which, they had committed the murder. She has identified both the accused in the Court. In her cross-examination, this witness has stated that at the time of occurrence, she herself and her father were going at a distance of about ten to fifteen feet. She has also stated that when her father fell down, no one had come to his rescue. She has also admitted in her cross-examination that her father was in jail for about three years for brandishing Pangila as daain. She has denied the suggestion that she had made the statement before the police that after the occurrence, she had brought her injured father to the house. She has also denied the suggestion that since her father was jailed in the case related to Panglia Kui, they have falsely implicated the accused persons. She has reiterated that she had seen the occurrence and also denied the suggestion to have falsely implicated the accused persons. 7. Pw 3 is Masso Purty, the elder brother of the deceased. This witness has stated that the occurrence had taken place more than two years ago at about 10 PM. He was in his house. His brother Man Singh Purty came running to his house and he was profusely bleeding. He was having arrow pierced in his stomach and his neck was slit. He asked for water and he informed that Mohan Purty, Moyka Purty, Pangila Purty and Pulu Purty had assaulted and injured him. This witness informed the family members of his brother, whereupon, the family members came there. Thereafter, he was taken to hospital, but he died in the way. There was previous enmity with the accused persons. He has identified the accused in the Court. This witness informed the family members of his brother, whereupon, the family members came there. Thereafter, he was taken to hospital, but he died in the way. There was previous enmity with the accused persons. He has identified the accused in the Court. In his cross-examination, this witness has stated that his brother Man Singh had come to his house at about 10 PM in the night in injured condition alone, and after half an hour, he had gone to inform his family members. He has stated that at that time, Menjo Purty was not present at her house. This witness has also stated in his cross-examination that there were two injuries by arrow on the body of his brother. The other injury was in his chest, but that arrow had fallen down, and one arrow was still pierced in his stomach, and his neck was slit. He has stated that the deceased remained in his house from 10 PM to about 3 AM in the morning, when he was taken to the hospital and in the meantime, he was talking. He has denied the suggestion that on the behest of Menjo Purty, he had named Pulu Kui and Pangila Kui as accused and he has denied the suggestion that the deceased had not come to his house in the injured condition and had died at the place of occurrence itself. This witness has also stated that the deceased had remained in jail custody for about three years on the allegation that he was brandishing the accused Pangila Kui as daain. He has denied the suggestion to have falsely implicated the accused due to previous enmity. 8. Pw 4 Bindeshwari Kumari Purty is the daughter of the deceased, PW 5 Behra Purty is son of the deceased and PW 6 Gurbari Kui is the wife of the deceased, and all these witnesses have supported the version given by PW 3 Massa Purty. They have said that they were informed about the occurrence by Massa Purty, whereupon they went to his house and saw the deceased in the injured condition and the deceased informed them that Moyka Purty, Pulu Purty, Mohan Purty and Panglia Purty had assaulted and injured him. They have stated that while being taken to hospital, he died. They have said that they were informed about the occurrence by Massa Purty, whereupon they went to his house and saw the deceased in the injured condition and the deceased informed them that Moyka Purty, Pulu Purty, Mohan Purty and Panglia Purty had assaulted and injured him. They have stated that while being taken to hospital, he died. In her cross-examination, PW 4 Bindeshwari Kumari Purty has stated that when she went to the house of her uncle, she found her father lying on the ground, but he was talking and he informed about the occurrence. He also named the accused persons. This witness has also admitted that her father was in jail for about three years on the allegation of branding Pangila Kui as daain. Similarly, PW 5 Behra Purty, son of the deceased, has also stated in his cross-examination that in the injured condition, his father had named all the accused persons, but he had not stated that which accused had assaulted at which part of the body. PW 6 Gurwari Kui, the wife of the deceased, has stated in her cross-examination that she was not informed about the occurrence by Menjo Purty and when she had reached the house of Massa Purty, her husband was still alive. She has denied the suggestion in her cross-examination that she had named the accused persons at the behest of Massa Purty, rather she has stated that she had heard about the occurrence from her husband''s mouth. All these witnesses have denied the suggestion to have falsely implicated the accused persons. 9. Pw 2 Shailendra Pradhan is only a witness to the inquest report of the dead body of the deceased and he has identified his signature on the inquest report, which marked Ext 1. He has not stated anything about the occurrence. PW 10 Kanu Ram Purty is only the witness to the seizure list relating to the seizure of the arrows, on which he had put his signature, which he had proved and the same was marked Ext. 3. He has also proved the signature of the other witness on the seizure list, which was marked Ext. 3/1. This witness has also not stated anything about the occurrence. 10. Pw 9 Dr. 3. He has also proved the signature of the other witness on the seizure list, which was marked Ext. 3/1. This witness has also not stated anything about the occurrence. 10. Pw 9 Dr. Surendra Lov had conducted the post-mortem examination on the dead body of the deceased on 26th August 2005, at 3:30 PM and had found the following injuries on the dead body:- On External Examination:- (1) Penetrating epileptical wound on epigastric area right side size 3 cm x 1 cm with deep to abdominal cavity, margin not red and swollen. (2) stab wound left 3rd inter space mid clavicular line 1 cm x cm margin not red and swollen. (3) sharp cut anteriorly mid neck 5 cm x 1 cm x 3 cm, trachea cut, margin not read and swollen. On Internal Examination:- Head : NAD, Lungs : NAD, Heart : both chambers empty. Abdominal cavity contained blood. Stomach and loops of intestine cut at injury No.1. Stomach : contained partially digested food. Bladder empty. Other viscera intact. This witness has stated that injuries No. 1 and 2 could be caused by penetrating weapon like arrow, whereas injury No.3 could be caused by sharp cutting substance, like dawly. He has identified the post-mortem report to be in his pen and signature, which was marked Ext. 2. In his cross-examination, this witness has stated that due to injury No.3, the victim could not speak any word and it may not be possible for him to move due to trachea injury and injuries Nos. 1 and 2. 11. Pw 11 Nirmal Kumar Jha is the I.O. of the case. This witness has stated that on 26.8.2005, he was posted as S.I. in Goilkera Police Station. There was an information that one person was murdered, about which, sanha entry was made, and upon the instructions of the Officer In-charge and he along with the police party proceeded for the place of occurrence. In the way, they found some persons bringing the dead body to the Police Station. He recorded the fardbeyan of Menjo Purty, which he has proved and the same was marked Ext 4. He has also proved the inquest report of the dead body of the deceased, which was marked Ext 5 and he sent the dead body for post mortem examination. He recorded the fardbeyan of Menjo Purty, which he has proved and the same was marked Ext 4. He has also proved the inquest report of the dead body of the deceased, which was marked Ext 5 and he sent the dead body for post mortem examination. He had visited the place of occurrence, where the deceased was assaulted and he has given the details of the place of occurrence. He has stated that from this place of occurrence, at a distance of about 200 yards, is the house of Massa Purty, the elder brother of the deceased. He had seized the blood stained arrows from the place of occurrence and has proved the seizure list, which was marked Ext 6. He has proved the formal FIR, which was marked Ext 7. He has stated that he recorded the restatement of the informant and the statements of the witnesses. He arrested the accused Moyka Purty. He also received the post-mortem report. He has also stated that the accused was jailed in connection with the offences under Sections 307 / 324 of the Indian Penal Code, Section 27 of the Arms Act and Sections 3,4,5 and 6 of the Prevention of Witch (Daain) Practices Act. He has also stated that initially, he submitted the charge-sheet against the accused Moyka Purti and Mohan Purti and continued the investigation against the other co-accused and he handed over the charge to another I.O., who had arrested Pulu Purty and Panglia Kui and submitted the charge-sheet against them also. In his cross-examination, this witness has stated that initially the informant had named only two accused, but in her restatement recorded after two days, she had named Pangila kui and Pulu Purty also. He had not recovered blood from the place of occurrence as it was a PCC road. This witness has also stated that Massa Purty had given the statement before him that the injured had come to his house, but this witness had not inspected his house and there is nothing in the case diary to show that blood stains were found from the place of occurrence up to the house of Massa Purty, as he had written in the case diary only those facts that he found. This witness has denied the suggestion to have made faulty investigation. 12. This witness has denied the suggestion to have made faulty investigation. 12. The statement of the accused persons were recorded under Section 313 of the Cr.P.C., wherein, they have denied the evidence against them. No defence evidence was adduced in the case. On the basis of the evidence on record, the Court below has convicted and sentenced the appellant Moyka Purty for the offence as aforesaid and has acquitted the co-accused Pangila Kui giving her benefit of doubt. 13. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, in as much as, the prosecution has failed to bring home the charge against the accused appellant beyond all reasonable doubts. It is submitted by the learned counsel that there are two versions of the prosecution case, one as given by PW 1 Menjo Purty, the informant, and other as given by PW 3 Massa Purty and supported by PW 4 Bindeshwari Kumari Purty, PW 5 Behra Purty and PW 6 Gurwari Kui, and they are contradictory to each other and they cannot go together. According to the version of the informant Menjo Purty in her fardbeyan, after the occurrence, she brought her injured father to her own house, whereas in her evidence she has stated that her father anyhow went to the house of Massa Purty. According to the version of PW 3 Massa Purty and other witnesses, the deceased had himself gone to the house of Massa Purty and had disclosed about the occurrence making omnibus allegation against four accused persons that they had assaulted and injured him. The presence of Menjo Purty at the place of occurrence is not there in the versions of the prosecution case as given by PW 3 Massa Purty, which is supported by the other witnesses PW 4 Bindeshwari Kumari Purty, PW 5 Behra Purty, PW-6 Gurbari Purty, rather PW-6 Gurbari Purty has stated in her cross-examination that she was not informed about the occurrence by her daughter Menjo Purty. Thus, if the evidence of PWs 3, 4, 5 and 6 are relied upon, the presence of PW 1 Menjo Purty at the place of occurrence is absolutely ruled out and she cannot become the eyewitness to the occurrence. Thus, if the evidence of PWs 3, 4, 5 and 6 are relied upon, the presence of PW 1 Menjo Purty at the place of occurrence is absolutely ruled out and she cannot become the eyewitness to the occurrence. Even in her evidence, PW 1 Menjo Purty had made improvements over her earlier version, in as much as, in the FIR, she has named only two accused, namely, Moyka Purty and Mohan Purty, whereas in her evidence before the Court, she had made allegation against four accused persons. As such, the evidenced of PW 1 Menjo Purty cannot be relied upon. Similarly, if the other version of the prosecution case as given by PW-3 Massa Purty and supported by PW 4 Bindeshwari Kumari Purty, PW 5 Behra Purty and PW 6 Gurwari Purty, is taken into consideration, the same is completely belied by the evidence of PW 9 Dr. Surendra Lov, who had conducted the post-mortem examination on the dead body of the deceased. This witness had found trachea on the deceased completely cut and has clearly stated that the deceased could not have uttered any word after the said injury. This witness has also stated that due to trachea injury and the other injuries on his body, even he was not in a position to move any further from the place of occurrence. Learned counsel accordingly, submitted that even the second version of the prosecution case given by these witnesses cannot be relied upon. It is submitted by learned counsel for the appellant that it is an admitted fact that there was long drawn enmity between the parties, as the deceased himself was brandishing the wife of the appellant Moyka Purty as daain, for which the deceased was in jail for about three years, and as such, the false implication of the accused persons cannot be ruled out. Learned counsel accordingly, submitted that the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 14. Learned counsel accordingly, submitted that the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law. 14. Learned counsel for the State on the other has opposed the prayer and has submitted that the prosecution case is supported as eyewitness by PW 1 Menjo Purty, and the deceased himself went to his brother PW 3 Massa Purty and informed him about the occurrence, which fact is supported by PW-3 Massa Purty and the other family members, PW 4 Bindeshwari Kumari Purty, PW 5 Behra Purty and PW 6 Gurwari Kui, who had gone to the house of Massa Purty and had seen the deceased there in the injured condition, who also informed these witnesses about the occurrence naming the accused persons. It is submitted by learned counsel that the oral evidence of these witnesses is fully corroborated by the medical evidence of PW 9 Dr. Surendra Lov, and as such, there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 15. Having heard learned counsels for both the sides and upon going through the record, we find that there are two versions of the prosecution case and both of them are contrary to each other. If one story is believed, the other version of the prosecution case cannot be believed and vice versa. If we rely upon the evidence of PW 1 Menjo Purty, the informant of the case, she has claimed to be the eyewitness to the occurrence, but her very presence at the place of occurrence is completely belied by the evidenced of PW 6 Gurwari Kui, her own mother, who has stated that she was not informed about the occurrence by PW 1 Menjo Purty. None of the family members of the deceased have stated that at the time of occurrence, the deceased was going with his daughter Menjo Purty for the treatment of the child. As such, her presence at the place of occurrence is completely ruled out. None of the family members of the deceased have stated that at the time of occurrence, the deceased was going with his daughter Menjo Purty for the treatment of the child. As such, her presence at the place of occurrence is completely ruled out. The other version of the prosecution case, as given by PW 3 Massa Purty, that the deceased himself came running to his house, situated at the distance of about 200 yards from the place of occurrence (as deposed by the I.O.), in the injured condition informing him about the occurrence, which fact is supported by all the other family members of the deceased, is completely belied by the evidence of PW 9 Dr. Surendra Lov and the post-mortem report proved by him, which shows, that the trachea of the deceased was cut and the Doctor has clearly stated that due to this injury, the injured could not speak any word and due to injuries upon his body, he could not even move from the place of occurrence. We also find from the evidence of I.O. PW -11 Nirmal Kumar Jha that no blood stains were found by him from the place of occurrence up to the house of Moyka Purty, which was situated at the distance of 200 yards from the place of occurrence. The long drawn enmity between the parties in this case is admitted and the false implication of the accused due to enmity also cannot be ruled out. As such, we are of the considered view that on the basis of the evidence on record, the prosecution has failed to bring home the charge against the accused appellant beyond all reasonable doubts, and it is a fit case, in which even though the witnesses have supported the prosecution case, the appellant ought to have been given the benefits of doubt. 16. For the foregoing reasons, the impugned Judgment of conviction dated 21.08.2008 and Order of sentence dated 22.08.2008, passed by the learned Additional Sessions Judge-II, Chaibasa, in S.T. No.53 of 2006, convicting and sentencing the appellant Moyka Purty for the offence under Sections 302 / 34 of the Indian Penal Code, are hereby, set-aside. The appellant Moyka Purty is given the benefits of doubt and he is acquitted of the charge. The appellant is in custody undergoing the sentence. The appellant Moyka Purty is given the benefits of doubt and he is acquitted of the charge. The appellant is in custody undergoing the sentence. Let him be released and set at liberty forthwith, if his detention is not required any other case. 17. This appeal is accordingly allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.