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2019 DIGILAW 1 (JHR)

Mathu Mahli v. State of Jharkhand

2019-01-02

H.C.MISHRA, H.C.MISHRA, RATNAKER BHENGRA, RATNAKER BHENGRA

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JUDGMENT : Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant is aggrieved by the impugned Judgment of conviction dated 06.12.2007 and Order of sentence dated 07.12.2007, passed by the learned Sessions Judge, Gumla, in S.T. Case No.229 of 2007, whereby, the sole accused 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 life imprisonment with a fine of Rs.10,000/-, for the offence under Section 302 of the Indian Penal Code, and R.I. for three months and six months, for the offences under Sections 3 and 4 respectively, 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 Pakua Mahli, the husband of the deceased Kanchan Devi, recorded on 01.04.2007, at about 09:15 A.M., at his village Soso, Mahli Toli, PS and District Gumla, wherein, the informant has stated that he was a rickshaw puller and was married to Kanchan Devi, sister of Chaukidar Gandur Mahli. It is stated in the fardbeyan that on the previous day, which was Saturday, at about 8:30 P.M., the accused Gandur Mahli asked to open the door of the house, whereupon he opened the door and saw the accused Gandur Mahli, Mathu Mahli, Shankar Mahli and Ravi Mahli present there, whom he identified. Gandur Mahli called his wife and when she came out, all the accused persons started assaulting her. Gandur Mahli assaulted his wife by gupti on her head, but she saved her, and thereafter, the accused Mathu Mahli assaulted his wife by bhujali repeatedly, on the pretext that she was practicing witchcraft, due to which his sister Pokli Devi had died. Shankar Mahli had caught hold the informant, due to which, he could not save his wife, and the accused persons assaulted his wife by bhujali, brick and gupti, due to which, she died at the spot. Thereafter, the accused persons went away, threatening the informant not to inform the police. He has stated that this occurrence had taken place at about 8:30 P.M., in the night, and the occurrence was also witnessed by his mother Sahodri Devi. Thereafter, the accused persons went away, threatening the informant not to inform the police. He has stated that this occurrence had taken place at about 8:30 P.M., in the night, and the occurrence was also witnessed by his mother Sahodri Devi. On the basis of the fardbeyan of the informant, Gumla P.S. Case No. 79 of 2007, corresponding to G.R. No.310 of 2007, was instituted 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, against the four named accused persons, and the investigation was taken up. It appears that after investigation, the police submitted the charge-sheet against the present accused and since other co-accused persons were still absconding, the case was kept pending for investigation as against them. As such, we shall confine our discussions only to the allegation against this appellant, as far as practicable. 4. After commitment of the case to the Court of Session, charge was framed against the accused Mathu Mahli for the offences under Sections 3 and 4 of the Prevention of Witch (Daain) Practices Act, and Section 302 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, prosecution has examined ten witnesses, including the I.O., and the Doctor, conducting the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-5 Rekha Devi, P.W.-7 Lagan Mahli and P.W.-8 Ramcharan Mahli, who are the witnesses to the inquest report and the seizure list relating to the seizure of blood stained soil from the place of occurrence, have not stated anything about the occurrence. P.W.-7 Lagan Mahli has stated that police had obtained his signature on the seizure list after about fifteen days of the occurrence. He has however, identified his signature on the seizure list, which was marked as Ext.-2. 5. P.W.-6 Pakua Mahli is the informant and the husband of the deceased. P.W.-7 Lagan Mahli has stated that police had obtained his signature on the seizure list after about fifteen days of the occurrence. He has however, identified his signature on the seizure list, which was marked as Ext.-2. 5. P.W.-6 Pakua Mahli is the informant and the husband of the deceased. This witness has supported the prosecution case as eye witness to the occurrence, stating that the occurrence had taken place about five months ago, in the night at about 8:00 P.M. He had returned home after plying rickshaw and when they were about to take their meals in the night, Gandur Mahli knocked the door of his house, whereupon this witness opened the door and the accused Gandur Mahli dragged his wife outside the house and the accused Mathu Mahli, Gandur Mahli, Ravi Mahli and Shankar Mahli started assaulting his wife. He tried to save her, but he could not save her. Accused Mathu Mahli was armed with bhujali, by which he assaulted his wife on her head and also in her stomach. He has stated about the assaults made by other co-accused also. This witness has stated that accused persons were assaulting his wife alleging that she was practicing witchcraft, due to which, sister of Mathu Mahli, who is the wife of Gandur Mahli, had died eight days ago, though she had died due to cancer. He has stated that his wife died at the spot, and thereafter the accused persons fled away, threatening not to inform the police. After the occurrence, he went to the house of his brother-in-law, Chaukidar Gandur Ram Mahli, who came there along with his mother. As it was already night, they could not inform the police and on the next day, at about 9:00 A.M., the police was informed. Police recorded his fardbeyan, on which, he had put his thumb impression and Chaukidar Gandur Ram Mahli had put his signature as witness. Dead body was taken for post-mortem examination. He has identified this accused in the Court. In his cross-examination, this witness has stated that he had gone to the police station, where he stayed for about half an hour. Dead body was at the spot itself for the whole night. He has stated that his village is near to Gumla town. The parents' place of his wife was also in the same village. In his cross-examination, this witness has stated that he had gone to the police station, where he stayed for about half an hour. Dead body was at the spot itself for the whole night. He has stated that his village is near to Gumla town. The parents' place of his wife was also in the same village. Though the attention of the witness has been drawn towards his statements made before the police, but there is nothing of much importance therein, as they do not relate to the assault made by this accused. He has also stated that his wife was assaulted by brick due to which she had sustained injuries in her eyes. This witness has stated that there were three injuries in the stomach of his wife, apart from other injuries on the dead body. He has admitted that prior to the occurrence, the accused persons had never alleged any practice of witchcraft against his wife. He has denied the suggestion of giving the false evidence. 6. P.W.-1 Aakash Mahli is a child witness, aged about seven years. He is the son of the deceased, and P.W.-2 Sahodri Devi is mother-in-law of the deceased, and both of them have also supported the prosecution case as eye witnesses to the occurrence, stating that it was this accused Mathu Mahli who had assaulted the deceased by bhujali. They have specifically stated that this accused had assaulted the deceased in her stomach. They have identified the accused in the Court. 7. P.W.-3 Gandur Ram Mahli is the brother of the deceased and also the Chaukidar of the village. P.W.-4 Karyo Devi is the mother of the deceased, and these witnesses have supported the prosecution case as hearsay witnesses, stating that on the date of occurrence in the night, Pakua Mahli came and informed them that his wife had been assaulted by the accused persons. Thereafter, they came to the place of occurrence and saw the dead body of the deceased. They were also informed that the deceased was assaulted and killed alleging that she was practicing witchcraft. P.W.-3 Gandur Ram Mahli has also stated that the fardbeyan of the informant was recorded, on which he had put his signature as a witness, which he as identified, and was marked as Ext.-1. They were also informed that the deceased was assaulted and killed alleging that she was practicing witchcraft. P.W.-3 Gandur Ram Mahli has also stated that the fardbeyan of the informant was recorded, on which he had put his signature as a witness, which he as identified, and was marked as Ext.-1. He has also stated that due to the threats given by the accused to the informant, they did not go to the Police Station in the night. Prior to this occurrence also, the accused Mathu Mahli had been jailed in connection of a murder case. Both these witnesses have also identified the accused in the Court. In his cross-examination, P.W.-3 Gandur Ram Mahli has stated that after seeing the dead body he had returned to his house in the night, whereas, P.W.-4 Karyo Devi, has stated in her cross-examination, that she along with her son had gone to see the dead body in the morning and they had not gone to see the dead body in the night. 8. P.W.-9 Dr. Angraj Subhas Chandra had conducted the post-mortem examination on the dead body of the deceased on 01.04.2007, and had found the following injuries on the dead body:- 1. Lacerated injury of scalp left side size 1” x1”x ½” with fracture of frontal bone. 2. Lacerated injury of occiput size 2” x 1”x 1” with fracture of underlying bone. 3. Incised injury of epigastric region size 1” x ½”x ½”. 4. Incised injury above left hypocondrium size 1” x ½”x ½”. He has stated that all the above injuries were ante-mortem in nature, and caused by sharp as well as blunt substance. Injury Nos. 1 and 2 were grievous in nature and sufficient to cause death. Cause of death was hemorrhage and shock. He has identified the post-mortem report to be in his pen and signature, which was marked as Ext.-3. 9. P.W.-10 Ashok Ram is the I.O. of the case. This witness has stated that he was posted on 31.03.2007 at Gumla Police Station. On 01.04.2007, there was a telephonic information that in village Soso, Mahli Toli, one female had been murdered. He made the sanha entry about this information and proceeded towards the place of occurrence, where he recorded the fardbeyan of the informant Pakua Mahli, which he has proved and the same was marked Ext.-4. On 01.04.2007, there was a telephonic information that in village Soso, Mahli Toli, one female had been murdered. He made the sanha entry about this information and proceeded towards the place of occurrence, where he recorded the fardbeyan of the informant Pakua Mahli, which he has proved and the same was marked Ext.-4. He prepared the inquest report of the dead body, which also he has proved and the same was marked Ext.-5. He sent the dead body for post-mortem examination. He recorded the re-statement of the informant Pakua Mahli and the statements of the witnesses. He inspected the place of occurrence, which was the PCC road, adjacent to the house of the informant, where lot of blood was found. He seized the blood stained soil from the place of occurrence. He has proved the seizure list which was marked as Ext.-6. He recorded the statement of the accused Mathu Mahli who was in judicial custody, and he conducted raids for apprehension of the other accused persons, but they could not be apprehended. He submitted the charge sheet against the accused Mathu Mahli and continued the investigation against other absconding co-accused persons. He has also identified the accused in the Court. In his cross-examination, he has stated that he had received telephonic information on 01.04.2007 at about 8:20 A.M., in the morning, which was a cryptic information. He proceeded towards the place of occurrence along with the Chaukidar and he recorded the farebeyan at the place of occurrence itself. This witness has given the distance of the place of occurrence from the Police Station to be about one and half kms. He has stated that he had not recovered any weapon of offence. He had not made any investigation regarding the death of Pokli Devi (sister of this accused). He has denied the suggestion of making faulty investigation. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. Defence has also examined two witnesses, namely, D.W.-1 Ganesh Nayak and D.W.-2 Basant Nayak, who are co-villagers and have stated that they had heard about the murder of the deceased. They went to the place of occurrence, but the informant did not inform them as to who had committed the murder of his wife. Defence has also examined two witnesses, namely, D.W.-1 Ganesh Nayak and D.W.-2 Basant Nayak, who are co-villagers and have stated that they had heard about the murder of the deceased. They went to the place of occurrence, but the informant did not inform them as to who had committed the murder of his wife. D.W.-2 Basant Nayak has also stated that the extremists used to visit his village, and due to their fear the villagers did not venture out in the night and used to stay in their houses in the night. On the basis of the evidence on record, the appellant has been convicted and sentenced by the Trial Court below as aforesaid. 11. 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, inasmuch as, there are contradictions in the evidence of the witnesses. It is submitted by the learned counsel that though it is stated by the informant that after the occurrence he informed his brother-in-law, who is also a Chaukidar, whereupon his brother-in-law and mother-in-law came and saw the dead body, but the mother-in-law, PW-4 Karyo Devi, has clearly stated that they did not come to the place of occurrence in the night, rather they came to the place of occurrence in the morning only. It is further submitted by learned counsel that even the brother of the deceased P.W.-3 Gandur Ram Mahli has stated that he came to the place of occurrence upon getting information and thereafter he returned back to his house and slept in his house, which appears to be an abnormal conduct of a brother. Learned counsel further submitted that though the informant has stated that he had gone to the police station for informing the police, and had remained there for about half an hour, but the I.O., P.W.-10 Ashok Ram has stated that he had only received a telephonic information about the occurrence. The informant also stated that there were injuries in the eye of the deceased, but no such injury was found in the post-mortem examination. Learned counsel, accordingly, submitted that these contradictions clearly show that the witnesses are not the truthful witnesses and accordingly, it is a fit case, in which, accused-appellant ought to have been given the benefits of doubt. 12. Learned counsel, accordingly, submitted that these contradictions clearly show that the witnesses are not the truthful witnesses and accordingly, it is a fit case, in which, accused-appellant ought to have been given the benefits of doubt. 12. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the prosecution case is fully supported by P.W.-1 Aakash Mahli, the son of the deceased, P.W.-2 Sahodri Devi, the mother of the informant, and P.W.-6 Pakua Mahli, the informant and the husband of the deceased, as eye witnesses to the occurrence, and so far as this accused is concerned, all these witnesses have stated that he was armed with bhujali and had assaulted the deceased in her stomach. It is submitted by learned counsel that this evidence is fully corroborated by the medical evidence of P.W.-9 Dr. Angraj Subhas Chandra, and the post-mortem report proved by him as Ext.-3, which clearly show that there were two incised injuries on the abdominal region of the deceased. Learned counsel submitted that there is no contradiction in the evidence so far as manner of assault, the time and place of occurrence are concerned. As such, the prosecution has been able to bring home the charges against the accused beyond all reasonable doubts. 13. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that the prosecution case is fully supported by P.W.-1 Aakash Mahli, who is a child witness and son of the deceased, apart from P.W.-2 Sahodri Devi, mother-in-law of the deceased and P.W.-6 Pakua Mahli, the informant and the husband of the deceased. All these witnesses have stated that the occurrence had taken place in the night when the accused persons came to their house and the deceased was dragged out of the house and was assaulted. There is specific allegation against this appellant in the evidence of all these witnesses, to have assaulted the deceased by bhujali in her stomach. She was also assaulted by other co-accused and due to the cumulative effect of the injuries she died, which is apparent from the evidence of P.W.-9 Dr. Angraj Subhas Chandra and the post-mortem report proved by him as Ext.-3. P.W.-3 Gandur Ram Mahli and P.W.-4 Karyo Devi, the brother and the mother of the deceased, have also supported the prosecution case as hearsay witnesses. Angraj Subhas Chandra and the post-mortem report proved by him as Ext.-3. P.W.-3 Gandur Ram Mahli and P.W.-4 Karyo Devi, the brother and the mother of the deceased, have also supported the prosecution case as hearsay witnesses. The occurrence had taken place in the village in the night, and in the morning the police was informed. In view of the fact that the allegation against this appellant is supported by three eye witnesses, who are the natural witnesses, being the inmates of the house, which is fully corroborated by the medical evidence on record, we are of the considered view that minor contradictions pointed out by learned counsel for the appellant, cannot be said to be fatal to the case of the prosecution. There also appears to be cogent reason for not informing the police in the night, even though the Police Station was situated at the distance of only about one and half kms., as stated by P.W.-10 Ashok Ram, the I.O. of the case. D.W.-2 Basant Nayak, examined by the defence itself, has stated that the extremists used to visit the village, and due to their fear the villagers did not venture out in the night and used to stay in their houses in the night. P.W.-3 Gandur Ram Mahli has also stated that they did not go to the police station in the night due the threats given by the accused. The witnesses have also stated that the occurrence had taken place alleging practice of witchcraft against the deceased. We are of the considered view that so far as this accused is concerned, the prosecution has been able to bring home the charges against him 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. 14. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 06.12.2007 and Order of sentence dated 07.12.2007, passed by the learned Sessions Judge, Gumla, in S.T. Case No.229 of 2007, convicting and sentencing the appellant, Mathu Mahli 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 is already in custody, undergoing the sentence. 15. The appellant is already in custody, undergoing the sentence. 15. Before parting with this Judgment, we find that P.W.-6 Pakua Mahli, who is the husband of the deceased, is the victim of crime, and he should be duly compensated under the Victims Compensation Scheme, under Section 357-A of the Cr.P.C. Accordingly, we direct the Member-Secretary, Jharkhand State Legal Services Authority, Ranchi, to take up the matter with the concerned DLSA, so that this victim of crime may be duly compensated at an early date. 16. There is no merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.