Soma Odeya @ Soma Oreya @ Sigil Oreya @ Sigil Odeya v. State of Jharkhand
2024-10-15
ANANDA SEN, GAUTAM KUMAR CHOUDHARY
body2024
DigiLaw.ai
JUDGMENT : 1. These Criminal Appeals are preferred on behalf of the appellants being aggrieved by the judgment of conviction dated 22.01.2016 and order of sentence dated 28.01.2016 passed by Learned Sessions Judge, Khunti, in Sessions Trial No.25 of 2014, whereby and wherein the appellants have been convicted for offence under Section 302/34 I.P.C. and Section 4 of The Prevention of Witch (Daain) Practices Act. They were sentenced to undergo rigorous imprisonment for life with fine of Rs.10,000/- each under Section 302 I.P.C. and to undergo simple imprisonment of 06 months under Section 4 of The Prevention of Witch (Daain) Practices Act. 2. Heard learned counsel representing the appellants and learned A.P.P. and Spl. P.P. representing the State and perused the material available on record. 3. Learned counsel representing the appellants submits that the entire conviction is based upon the testimony of P.W.-7 who is alleged to be an eye witness and daughter of both the deceased. As per the appellants, the P.W.-7 cannot be said to be an eye witness as her presence at the place of occurrence is doubtful. He submits that P.W.-7 has stated that after the incident, she had fled and went to the house of her maternal uncle but the fact is that she was in the house of her maternal uncle which is as per the suggestion given by the defence while cross examining the P.W.-7. He further states that the witness P.W.-7 has failed to disclose the name of her maternal uncle, which makes her story that she went to the house of maternal uncle, doubtful. Learned counsel further submits that no blood stains were collected from the place of occurrence and neither P.W.-7 stated as to how the accused entered her house at night. All these make the presence of P.W.-7 doubtful at the place of occurrence. He further contends that except P.W.-7, all the material witnesses have been declared hostile. Even the maternal uncle of the witness had not been examined by the prosecution. He lastly submits that particular role of each of the appellants have also not been explained by this witness. Thus, these appeals need to be allowed and the appellants need to be acquitted. 4.
Even the maternal uncle of the witness had not been examined by the prosecution. He lastly submits that particular role of each of the appellants have also not been explained by this witness. Thus, these appeals need to be allowed and the appellants need to be acquitted. 4. Learned A.P.P. representing the State submits that three named accused who are the appellants herein, entered the house of the deceased, dragged the father of the informant, assaulted him and committed his murder and thereafter committed murder of the mother of the informant. P.W.-7 is the eye witness. He further submits that there is similar allegation against all the three appellants that all the three have assaulted the deceased and they had motive to commit murder as the mother of the informant was branded as a witch. He further submits that the conviction is under Section 302 read with Section 34 IPC, and the evidence suggests that there was common intention to commit murder of the deceased. He further submits that since all of the accused persons had participated in commission of the offence and assaulted the deceased, it is not necessary to narrate as to which accused assaulted on which part of the body. If the eye witness says that all of them have assaulted with sharp weapon resulting in death, that is sufficient to sustain the conviction. He prays for dismissal of the appeal. 5. The F.I.R. is at the instance of P.W.-7 who is none but the daughter of the deceased. Both mother and father of P.W.-7 were murdered. She in her fardbeyan stated that they were preparing to go to sleep after having their dinner when these three appellants entered their house and started dragging her father. She tried to save by catching her father but her father was dragged and taken out of the door to the courtyard and was assaulted and was murdered. Her mother was also murdered by the appellants. She thereafter fled to her maternal uncle’s house and narrated the entire story and on the next day the F.I.R. was lodged. The fardbeyan was marked as Ext.5. The genesis of the occurrence is that the mother of the informant was branded as a witch by these appellants. 6. After conclusion of the evidence, the police submitted charge-sheet under Section 302/34 IPC and Section 4 of The Prevention of Witch (Daain) Practices Act.
The fardbeyan was marked as Ext.5. The genesis of the occurrence is that the mother of the informant was branded as a witch by these appellants. 6. After conclusion of the evidence, the police submitted charge-sheet under Section 302/34 IPC and Section 4 of The Prevention of Witch (Daain) Practices Act. As the appellants pleaded not guilty, they were put on trial and charges were framed. 7. To prove the prosecution case, altogether 10 prosecution witnesses were examined in this case. Out of these 10 witnesses, all the villagers who are P.W.-1, P.W.-2, P.W.-3, P.W.-4 and P.W.-5 have been declared hostile. 8. It is now a long standing trend that the eye witnesses and relatives do not want to get themselves involved and become a witness, thus, they naturally turn hostile. The Hon’ble Supreme Court in the case of Ramesh v. State of Haryana, (2017) 1 SCC 529 , has discerned following reasons which make witnesses retracting their statements before the court and turning hostile: “(i) Threat/Intimidation. (ii) Inducement by various means. (iii) Use of muscle and money power by the accused. (iv) Use of stock witnesses. (v) Protracted trials. (vi) Hassles faced by the witnesses during investigation and trial. (vii) Non-existence of any clear-cut legislation to check hostility of witness.” Some member of the witnesses have turned hostile will have no impact on the trial if even one credible witness of unimpeachable character is produced by the prosecution. It is the quality of the witness which matters and not the quantity. 9. The conviction is based on the evidence of P.W.-7. P.W.-7 is none but the informant and the daughter of the deceased. She exactly narrated what she had seen as has been narrated in the fardbeyan. She stated that at night when they were preparing to go to sleep, these appellants entered their house dragged her father and committed his murder and thereafter committed murder of her mother. The informant then fled to her uncle’s house. In cross-examination, she stated that though it was night but it was not that dark. She further stated that she knew all these appellants because they are from the same village and the appellants used to brand her mother as a witch. 10. We don’t find any substantive material to disbelieve this witness.
In cross-examination, she stated that though it was night but it was not that dark. She further stated that she knew all these appellants because they are from the same village and the appellants used to brand her mother as a witch. 10. We don’t find any substantive material to disbelieve this witness. Though, she stated that she does not know the name of her maternal uncle but she categorically gives description that her maternal uncles are brothers and they live separately and she has also given the name of the village where her maternal uncle stays. In cross examination, merely a suggestion was given that she was residing with her maternal uncle which she denied. This suggestion cannot be said to be any substantive material to disbelieve the prosecution case that the P.W.-7 was an eye witness and was present at the place of occurrence when the incident occurred. 11. The fact that the father and mother of this informant were murdered is substantiated from the evidence of P.W.-6 also who is the Doctor. He found the following injuries:- Father of the informant:- On external & internal examination: i. One incised wound on right side of temporal area of head size 5” x 1/2 “ x bone deep. Brain tissues visible. Right temporal bone cutted. ii. One incised wound on right side of cheek adjacent to mandible size 3” x 1/2 “ x bone deep. Right maxillary and lower jaw cutted. iii. One incised wound on right side of forhead. Size 3” x 1” x bone deep. Frontal bone cutted. Above all incised wound show more than one attempts. iv. One incised wound on right side of leg above ankle only. Skin intact behind injury. Size 3 1/2 “ x 1 1/2 “ x bone deep. Both lower one third of tibia and fibula on right side completely cutted. v. One incised wound on left side of leg above ankle only skin intact behind injury size 3 1/2 “ x 1/2" x bone deep on left side lower on third of Tibia and fibula completely cutted. All injuries are antemortem in nature and caused by hard sharp edges object. Cause of death: Haemorrhage and shock leading to death. The post-mortem report of father of the informant was marked as Ext.2.
All injuries are antemortem in nature and caused by hard sharp edges object. Cause of death: Haemorrhage and shock leading to death. The post-mortem report of father of the informant was marked as Ext.2. The Doctor also conducted post-mortem on the body of mother of the informant and found following injuries:- Mother of the informant:- On external & internal examination: i. One incised wound on right side of occipital area of head adjacent to temporal area. Size 5” x 2 “ x bone deep. Brain tissues visible. Occipital bone and temporal bone cutted. ii. One incised wound on right side of neck. Size 4” x 2“ x bone deep. Trachea esophagus, third cervical vertibra and great vessels cutted. iii. One incised wound on back. Size 2” x 1” x muscle deep. iv. One incised wound on abdomen, above navel size 3“ x ½ “ x abdominal deep, intestinal coils protruded outside of injured part. v. One incised wound on left side of thigh size 1½ “ x 1/2" x muscle deep. All above injuries are antemortem in nature and caused by hard sharp edges object. Cause of death: Haemorrhage and shock leading to death. The post-mortem report was marked as Ext.2/A. 12. Even the hostile witnesses have stated that the father and mother of P.W.-7 were murdered and they had seen the dead body and injury on the body, though they had stated that they don’t know as to who had committed the murder. The Investigating Officer has given description of the place of occurrence which as per the Investigating Officer is just in front of the door of the house of the deceased. This place of occurrence as per the Investigating Officer, corroborates with the statement of P.W.-7. 13. It is the quality of the witness which should be taken into account and not the quantity. Even on the basis of testimony of the sole-eye witness, if the eye witness is reliable, the conviction can be sustained. The Hon’ble Supreme Court in the case of Amar Singh v. State (NCT of Delhi), (2020) 19 SCC 165, in para-16 has held as hereunder:- “ 16. Thus, the finding of guilt of the two appellant-accused recorded by the two courts below is based on sole testimony of eyewitness P.W 1. As a general rule the court can and may act on the testimony of single eyewitness provided he is wholly reliable.
Thus, the finding of guilt of the two appellant-accused recorded by the two courts below is based on sole testimony of eyewitness P.W 1. As a general rule the court can and may act on the testimony of single eyewitness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise [see Sunil Kumar v. State (NCT of Delhi), (2003) 11 SCC 367 : 2004 SCC (Cri) 1055]. 14. In this case we don’t find any material to disbelieve the presence of P.W.-7 at the place of occurrence. Her testimony has remained unshaken in cross-examination. The medical evidence also corroborates with the ocular evidence of P.W.-7. Considering all this, we find no merit in these appeals. The Trial Court has rightly taken note of all the evidences and materials available on record and we do not find any material to interfere with the judgment of the Trial Court, and set aside the same. 15. Accordingly, both these Criminal Appeals are dismissed. The impugned judgment of conviction dated 22.01.2016 and order of sentence dated 28.01.2016 passed by Learned Sessions Judge, Khunti, in Sessions Trial No.25 of 2014, are hereby affirmed. 16. Pending interlocutory application, if any, stands disposed of. 17. Trial Court Record be transmitted back to the Court concerned.