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2018 DIGILAW 48 (JHR)

Bhauka Singh @ Bhowka Singh v. State of Jharkhand

2018-01-06

ANIL KUMAR CHOUDHARY, H.C.MISHRA

body2018
JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. This criminal appeal is directed against the Judgment of conviction dated 19.2.2011 and Order of sentence dated 21.2.2011, passed by the learned Additional Judicial Commissioner-I, Khunti, in S.T. No. 686 of 2006, whereby, the sole appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code and under Section 3 of the Prevention of Witch (Daain) Practices Act. Upon hearing on the point of sentence, the sole appellant has been sentenced to undergo Rigorous Imprisonment for life for the offence under Section 302 of the Indian Penal Code. No separate sentence has been passed for the offence under Section 3 of the Prevention of Witch (Daain) Practices Act. 3. The prosecution case was instituted on the basis of the fardbeyan of informant Chhatu Singh, who is the son of the deceased Jhalo Devi, recorded at his village on 15.3.2006, at 16:00 hours. In his fardbeyan he has stated that on 14.3.2006, his mother Jhalo Devi went out of the house when the accused Bhauka Singh @ Bhowka Singh assaulted his mother by stone whereupon she raised alarm upon which, the son of the informant, namely, Dhodeya Singh, aged about 12 years, went there and saw that his mother had fallen down and Bhauka Singh @ Bhowka Singh was assaulting her by a tangi. The son of the informant returned to the house and closed the door due to fear. At the time of occurrence, the informant, his wife, his brother and his brother's wife were not present in the house and only his son Dhodeya Singh was present. In the evening when they returned back, they were informed about the occurrence by Dhodeya Singh, whereupon they saw the dead body of their mother. It is stated that as it had, become night and it was forest area, the police could not be informed on that day. On the next day, the fardbeyan of the informant was recorded. It is stated in the fardbeyan that cause of the occurrence was that the grandmother of the accused had died about one month ago and the accused was alleging that due to witchcraft practiced by the mother of the informant, she had died, due to which, he had committed the murder of the deceased. It is stated in the fardbeyan that cause of the occurrence was that the grandmother of the accused had died about one month ago and the accused was alleging that due to witchcraft practiced by the mother of the informant, she had died, due to which, he had committed the murder of the deceased. On the basis of the fardbeyan, Rania P.S. Case NO.7 of 2006 corresponding to G.R. No. 138 of 2006, was instituted against the sole accused for the offences under Section 302 of the Indian Penal Code and Sections 3/4/5 of the Prevention of Witch (Daain) Practices Act, and the investigation was taken up. After investigation the police submitted the charge-sheet in the case. 4. Upon commitment of the case to the Court of Session, charge was framed against the sale accused for the offences under Section 302 of the Indian Penal Code and Sections 3/4 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, the prosecution has examined ten witnesses in this case, out of whom, P.W. 2-Birju Ram, P.W. 4-Soma Singh and P.W. 9-Krishna Singh have turned hostile and have not stated anything about the occurrence. P.W. 10-Pusa Ram Bhokta has stated that he has no knowledge about the occurrence. Other witnesses, except P.W. 5-Dhodeya Singh, the son of the informant, are either hearsay witnesses, or have stated nothing against the accused. The informant, the Doctor conducting the post mortem examination and the Investigating Officer have not been examined in this case and accordingly, the F.I.R. has not been proved and even though, the post mortem report appears to have taken into evidence as Exhibit-3, there is no formal proof of the post mortem report also. 6. P.W. 5-Dhodeya Singh is a child witness, who has supported the prosecution case stating that the accused Bhowka had assaulted his grandmother on the date of occurrence and upon the alarm raised by her, when he reached at the place of occurrence, he saw the accused assaulting his grandmother by tangi. Out of fear, he ran back to the house and confined himself to the house. Out of fear, he ran back to the house and confined himself to the house. He has stated that his father, mother, grandfather, uncle and aunt, all had gone out of the house and they were not present in the house at the time of occurrence, and they were informed about the occurrence in the evening, when they returned back. In his cross-examination, this witness has stated that the accused is the brother-in-law of his uncle, and he has also stated that the occurrence had taken place on the road at the distance of about 20 ft. from his house where the deceased had died. He has also stated that the police had not visited the place of occurrence and the dead body of the deceased was brought to Rania, and from the Police Station, they got the dead body on the next day. 7. P.W. 1-Turan Topno has stated that he was informed about the occurrence by the informant that his mother was killed by the accused Bhauka Singh @ Bhowka Singh. Thereafter, he had seen the dead body. He is also a witness to the fardbeyan upon which he had put his signature, which, on his identification was marked as Exhibit-1. He is also a witness to the seizure list relating to the seizure of bloodstained soil from the place of occurrence, and on his identification his signature on the seizure list was marked Exhibit-2. He has also stated that he has not seen the occurrence. 8. P.W. 6-Aghnu Singh is the son of the deceased; and he has stated that his mother was being branded as Daain by the accused Bhowka and he had committed the murder of his mother. He has stated that he was not present at the time of occurrence and when he returned back, he was informed by his nephew about the occurrence. 9. P.W. 7-Ranthu Singh is the other son of the informant, who has stated that at the time of occurrence, he was in Himachal Pradesh and he returned back after one year and he heard about the occurrence thereafter. 10. P.W. 8-Ghuran Pradhan is also a hearsay witness and he has stated that he was informed about the occurrence and he had seen the dead body of the deceased and Dhodeya Singh had informed that the accused had committed the murder of the deceased. 11. PW. 10. P.W. 8-Ghuran Pradhan is also a hearsay witness and he has stated that he was informed about the occurrence and he had seen the dead body of the deceased and Dhodeya Singh had informed that the accused had committed the murder of the deceased. 11. PW. 3-Tarachand Singh is another signatory to the seizure list and he has proved his, signature on the seizure list, which was marked as Exhibit-2/1. He has stated nothing against the accused. 12. As stated earlier, the informant, the Investigating Officer and the Doctor have not been examined. On the basis of the evidence on record, the accused has been convicted and sentenced for the offences as aforesaid. 13. Learned counsel for the accused appellant, has submitted that the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of the law, in view of the fact that the informant, the Doctor conducting the post mortem examination and the Investigating Officer have not been examined in the case. Even the F.I.R. has not been proved and the post mortem report cannot be looked into, as the Doctor conducting the post mortem examination has not been examined in the case. Learned counsel accordingly, submitted that the fact that the deceased had died, has not been proved legally' in this case and even though, P.W. 5-Dhodeya Singh has supported the case as eyewitness to the occurrence, but it is a fit case in which, the accused ought to have been given the benefits of doubt. 14. Learned Addl. P.P., appearing for the State, on the other hand, has opposed the prayer and has submitted that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts as P.W. 5-Dhodeya Singh has fully supported the prosecution case and other witnesses have stated that they were informed about the occurrence by the informant. Learned counsel, accordingly, submitted that 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 the F.I.R., and the inquest report of the dead body have not been proved in the case. Learned counsel, accordingly, submitted that 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 the F.I.R., and the inquest report of the dead body have not been proved in the case. Even the contents of the post mortem report cannot be looked into, as the Doctor conducting the post mortem examination has not been examined in the case. The Investigating Officer has not been examined and even the informant has not entered the witness box to prove his case, even though his other family members have been examined in the case. There is no explanation on record for not examining these witnesses. There is no evidence on record regarding seizure of the weapon of offence. For these reasons, we are of the considered view that even though P.W. 5-Dhodeya Singh has supported the prosecution case, but the fact that the deceased had died due to the alleged assaults made by the accused, could not be proved by the prosecution in the present case, beyond all reasonable doubts. 16. As such, we are of the considered view that on the basis of evidences on record, the prosecution has not been able to bring home the charges against the sole accused-appellant-Bhauka Singh @ Bhowka Singh beyond all reasonable doubts, and in the facts of the case, the accused-appellant was entitled to the benefits of doubt. Hence, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 17. For the foregoing reasons, the impugned Judgment of conviction dated 19.2.2011 and Order of sentence dated 21.2.2011, passed by the learned Additional Judicial Commissioner-I, Khunti, in S.T. No. 686 of 2006, convicting and sentencing the accused Bhauka Singh @ Bhowka Singh for the offences under Section 302 of the Indian Penal Code and Section 3 of the Prevention of Witch (Daain) Practices Act, are hereby, set aside. The accused appellant Bhauka Singh @ Bhowka Singh 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. 18. This appeal is accordingly, allowed. The accused appellant Bhauka Singh @ Bhowka Singh 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. 18. 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.