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2018 DIGILAW 2829 (JHR)

Rajendra Saw @ Dukhi Saw v. State of Jharkhand

2018-12-27

H.C.MISHRA

body2018
JUDGMENT : 1. Heard learned senior counsel for the appellant and the learned counsel for the State. 2. The sole appellant is aggrieved by the impugned judgment of conviction dated 16.12.2009 and order of sentence dated 19.12.2009, passed by the learned Additional Sessions Judge. F.T.C.-II, Daltonganj, Palamau, in S.T. No. 340 of 2007, whereby the appellant has been found guilty and convicted for the offences under Section 302 of the Indian Penal Code and Sections 3 and 4 of the Prevention of Witch (Daain) Practices Act. Upon hearing on the point of sentence, the appellant has been sentenced to undergo rigorous imprisonment for life and fine of Rs. 5,000/-, for the offence under Section 302 of the Indian Penal Code. He has also been sentenced to undergo rigorous imprisonment for three months and six months respectively, for the offences under Sections 3 and 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 the informant Santi Devi, who is the wife of the deceased Indradeo Sao, recorded on 29.06.2007, at about 11.00 a.m., at the place of occurrence at village Datum. P.S. Chainpur, District Palamau, wherein she has stated that on the same day at about 9.00 a.m., Mahendra Sao, his wife Chinta Devi, Jagdish Sao and his wife Lalti Devi, came to her house and told them that Rajendra Sao @ Dukhi Sao had called a panchayati for the fact that the informant and her husband were practicing witchcraft. They induced the informant and her husband to go to village Datum and as soon as they reached there, they found several persons assembled there, in which Rajendra Sao @ Dukhi Sao was also there. It is alleged that Rajendra Sao @ Dukhi Sao assaulted the husband of the informant by tangi, cutting his neck, due to which, he died at the spot. The accused also tried to assault her, but the persons present there snatched the tangi from him. The informant came to the police station and along with police, she came to the place of occurrence, where her statement was recorded by the police. The accused also tried to assault her, but the persons present there snatched the tangi from him. The informant came to the police station and along with police, she came to the place of occurrence, where her statement was recorded by the police. She has stated that the occurrence had taken place due to the fact that about one month ago, the wife of Rajendra Sao had committed suicide by consuming poison, and the accused persons were alleging that she had died due to the witchcraft practiced by the informant and her husband. On the basis of the fardbeyan of the informant, Champur P.S. Case No. 87 of 2007, corresponding to G.R. No. 933 of 2007, was instituted for the offence under Sections 302/34 of the Indian Penal Code, against the five named accused persons, and investigation was taken up. After investigation, the police submitted the charge-sheet against the appellant, who had been apprehended, keeping the investigation pending against the absconding accused persons. 4. After commitment of the case to the Court of Session, charge was framed against the accused appellant for the offences under Sections 302/34 of the Indian Penal Code 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. 5. In course of trial, six witnesses were examined by the prosecution, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. The I.O. of the case has not been examined and out of the material witnesses examined, PW 5 Ram Lal Bhuiyan and PW 6 Hasuli Parhiya have turned hostile and have not supported the prosecution case at all. 6. PW 2 Santi Kunwar @ Santi Devi is the informant in the case, and the wife of the deceased. She is also the eyewitness to the occurrence. This witness has stated that the occurrence had taken place about eleven months ago on a Friday at about 9.00 a.m. The occurrence had taken place at village Datam, behind the house of Butan Bhuiyan, where she had gone along with her husband, as there was a panchayat on the allegation that she and her husband were practicing witchcraft. The panchayati was called by the accused Rajendra Sao. The panchayati was called by the accused Rajendra Sao. She has stated that as soon as the panchayati started, her brother-in-law (Dewar) Rajendra Sao assaulted her husband by tangi, cutting his neck, due to which, her husband fell down and died at the spot. The accused Rajendra Sao was helped by Jagdish Sao, Lalti Devi and Mahendra Sao. After assaulting her husband, Rajendra Sao also assaulted her by lathi. His tangi was snatched away by the villagers and the bloodstained tangi was handed over to the police on the next day. After the occurrence, she went to the police station to inform the police. Thereafter the police came and took away the dead body. The police also recorded her statement, upon which, she had put her thumb impression. She has stated that the wife of the accused Rajendra Sao had committed suicide after consuming poison and the accused was alleging that she had died due to witchcraft practiced by her and her husband and he got the panchayati called. In presence of the punches, the accused assaulted her husband by tangi causing his death. The dead body was brought to Daltonganj for post-mortem examination and thereafter, she cremated the dead body. She has identified the accused in the Court. In her cross-examination, she has stated that her husband was five brothers and three sisters and the accused is also his own brother. Her father-in-law had died about five to six years ago. She has admitted that some lands were purchased in her name. She has also stated that her statement was taken by the police at the police station and subsequently also. Her attention was drawn towards her statement made before the police, and she has stated that she had given the statement before the police that after assaulting her husband, the accused had also assaulted her by lathi and his tangi was taken away by the villagers, which was subsequently handed over to the police by the villagers. She has also stated that about 30 to 40 persons were present in the panchayati. She has reiterated in her cross-examination that after the occurrence, she had gone to the police station and thereafter the police came to the place of occurrence. She has stated that lot of blood was there at the place of occurrence, but she could not say whether the same was seized by the police or not. She has reiterated in her cross-examination that after the occurrence, she had gone to the police station and thereafter the police came to the place of occurrence. She has stated that lot of blood was there at the place of occurrence, but she could not say whether the same was seized by the police or not. She has denied the suggestion that in order to grab the land of the family, she had falsely implicated the accused. 7. PW 1 Manoj Parhiya and PW 3 Butan Bhuiyan, who is also one of the punches present in the panchayati, have also supported the prosecution case as eye-witnesses to the occurrence, stating that soon after the panchayati started, the accused assaulted the deceased by tangi, cutting his neck, due to which he fell down and died at the spot. They have also stated that the accused was apprehended by the persons present there and he was handed over to the police. PW 3 Butan Bhuiyan is also a witness to the inquest report, on which he had put his thumb impression. Both these witnesses have identified the accused in the Court, and have also stated that the accused and the deceased were own brothers. There is nothing of much importance in their cross-examinations. 8. PW 4 Dr. Ajay Kumar had conducted the post-mortem examination on the dead body of the deceased on 29.6.2007, and had found one incised wound of 6" x 1/2" x bone deep over the neck at the right side, cutting the trachea, muscles and both the artery and vein. The said injury was ante-mortem in nature and the death of the deceased was caused due to shock and haemorrhage due to the said injury. He has proved the postmortem report to be in his pen and signature, which was marked Exhibit 1. 9. The statement of the accused was recorded under Section 313 of the Cr PC, wherein he has denied the evidence against him. Two witnesses were examined on behalf of the defence, who are DW 1 Ramdeo Parhiya and DW 2 Rajmuni Kunwar, who have come to depose that the informant is a lady of questionable character and the accused was innocent. On the basis of the evidence on record, the trial Court below has convicted and sentenced the appellant as aforesaid. 10. Two witnesses were examined on behalf of the defence, who are DW 1 Ramdeo Parhiya and DW 2 Rajmuni Kunwar, who have come to depose that the informant is a lady of questionable character and the accused was innocent. On the basis of the evidence on record, the trial Court below has convicted and sentenced the appellant as aforesaid. 10. Learned senior 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 I.O. has not been examined in the case, which has caused serious prejudice to the defence. It is also submitted that the police hawaldar and chowkidar, who had taken the dead body for post-mortem examination, have not been examined in the case. Learned senior counsel also submitted that though the witnesses have stated that there were several persons present in the panchayati, but no other witness has been examined in the case. It is submitted by the learned senior counsel that the defence has examined two witnesses, who have stated that the informant herself is a lady of questionable character, which makes the prosecution case absolutely doubtful, particularly in absence of the I.O. due to which, even the place of occurrence could not be proved. Learned counsel submitted that the weapon of offence has also not been produced and proved in the case, and as such, it is a fit case, in which, the appellant ought to have been given at least the benefits of doubt. 11. Learned counsel for the State on the other hand has opposed the prayer, submitting that the prosecution case is supported by three eye-witnesses, PW 1 Manoj Parhiya, PW 2 Santi Kunwar @ Santi Devi, the informant in the case and the wife of the deceased, and PW 3 Butan Bhuiyan, who was one of the panches in the panchayati. All these witnesses have stated that it was this accused, who had given the axe blow on the neck of the deceased, due to which, he fell down and died at the spot. The ocular evidence of these witnesses is fully corroborated by the medical evidence of PW 4 Dr. Ajay Kumar, and the postmortem report proved by him as Exhibit 1. The ocular evidence of these witnesses is fully corroborated by the medical evidence of PW 4 Dr. Ajay Kumar, and the postmortem report proved by him as Exhibit 1. Learned counsel 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 passed by the trial Court below, worth any interference by this Court. 12. Having heard learned counsels for both the sides and upon through the record, we find that the prosecution case is supported by the three eye-witnesses, who are PW 1 Manoj Parhiya, the villager, who was present in the panchayati, PW 2 Santi Kunwar @ Santi Devi, the informant in the case and the wife of the deceased, who was also present at the spot, and PW 3 Butan Bhuiyan, one of the panches in the panchayati. The panchayati was on the allegation that the informant and her husband were practicing witchcraft, due to which, the wife of the accused had died. It has come in evidence of all the eyewitnesses that no sooner the panchayati started, the accused assaulted his own brother by axe, causing injury on his neck, due to which; he fell down and died at the spot itself. The ocular evidence of these witnesses is fully corroborated by the medical evidence of PW 4 Dr. Ajay Kumar, who had found the incised wound on the neck cutting the trachea, the muscles the artery and the vein which were sufficient in the ordinary course of nature to cause the instantaneous death. Though the I.O. has not been examined in the case, and the plea is taken that this has caused serious prejudice to the defence, but we find that in the crossexaminations of all the three eye-witnesses, there is no cross-examination on the point that they had not given the statement before the police that the accused had assaulted the deceased by axe cutting his neck, resulting in his death at the spot. As such, we find that no. prejudice has been caused to the defence due to non-examination of the I.O. as no contradiction has been taken from any eye-witness on the point of assault made by the accused upon the deceased. As such, we find that no. prejudice has been caused to the defence due to non-examination of the I.O. as no contradiction has been taken from any eye-witness on the point of assault made by the accused upon the deceased. Though two defence witnesses have been examined questioning the character of the informant for creating doubt about the prosecution case, but the fact remains that no suggestion was given to the informant PW 2 Santi Kunwar @ Santi Devi questioning her character, rather the suggestion given to her by the defence was that for grabbing the property, she had falsely implicated the accused. In the facts, we are of the considered view that with the help of the three eyewitnesses, who have fully stood the test of cross-examination and nothing could be taken by the defence to discredit their testimony, the prosecution has been able to bring home the charges against the accused beyond all reasonable doubts, and the impugned judgment of conviction and order of sentence passed by the trial Court below suffers with no illegality. 13. For the foregoing reasons, we do not find any illegality in the impugned judgment of conviction dated 16.12.2009 and order of sentence dated 19.12.2009, passed by the learned Additional Sessions Judge. F.T.C.-II. Daltonganj, Palamau, in S.T. No. 340 of 2007, convicting and sentencing the appellant Rajendra Sao @ Dukhi Sao, for the offences under Section 302 of the Indian Penal Code and Sections 3 and 4 of the Prevention of Witch (Daain) Practices Act, which we hereby, affirm. The appellant Rajendra Sao @ Dukhi Sao is already in custody undergoing the sentence. 14. We find from the record that PW 2 Santi Kunwar @ Santi Devi is the victim of the crime in this case, as she has lost her husband in the occurrence. It is a fit case in which she should be duly compensated under the Victim Compensation Scheme, under Section 357-A of the Code of Criminal Procedure. We, accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take up the matter with the concerned District Legal Services Authority, so that PW 2 Santi Kunwar @ Santi Devi is duly compensated under the Victim Compensation Scheme, at an early date. Let a copy of this judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi for the needful. 15. Let a copy of this judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi for the needful. 15. We find no merit in this appeal, which is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this judgment. Appeal dismissed.