Judgment:
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No. 364 of 2007 (Against the Judgment of conviction dated 11 th of January, 2007 and Order of sentence dated 16th January, 2007, passed by the Additional Judicial Commissioner (F.T.C.), Khunti, in S.T. No. 377 of 2004.) Sirka Munda ..... … Appellant Versus The State of Jharkhand .…. … Respondent -------- CORAM : HON’BLE MR. JUSTICE H. C. MISHRA : HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY ------ For the Appellant : M/s. Kirti Saboo & Vishal Kr. Tiwary, Advocates. For the respondent-State : Mr. S.K. Keshari, A.P.P. -------- By Court.:- Heard learned counsel for the appellant and learned counsel for the State.
2. The appellant is aggrieved by the Judgment of conviction dated 11th of January, 2007 and Order of sentence dated 16 th January, 2007, passed by learned Additional Judicial Commissioner (F.T.C.), Khunti, in S.T. No. 377 of 2004, whereby, the sole 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 imprisonment for life for the offence under Section 302 of the Indian Penal Code and imprisonment for 3 months and imprisonment for 6 months for the offences under Sections 3 and 4 of the Prevention of Witch (Daain) Practices Act respectively. All the sentences were directed to run concurrently.
3. The prosecution case was instituted on the basis of the fardbeyan of the informant Sukhlal Munda, recorded on 13.04.2004 at about 9.45 am, wherein he has stated that on 11.04.2004, which was a Sunday, at about 7 pm, he heard the noise from the house of his neighbour Soma Munda and when he went there he saw Sirka Munda assaulting Budhni Mundain, the wife of the informant, by fists and kicks. The informant tried to save her where upon the accused told that his wife was practicing witchcraft and gave a kick blow on the stomach of his wife, due to which she died. He has stated that other persons of the village had also seen the occurrence, including his son Jagernath Munda aged about 13 years. The accused thereafter fled away. It is also stated in the fardbeyan that on the last Saturday two year old son of Soma Munda had died due to illness and they were alleging that the child had died due to witchcraft practiced by the deceased, due to which she was assaulted to death. It is also stated in the fardbeyan that the information about the occurrence could not be given in the night and on the next 2 day also he could not inform the police as he was busy in informing his relatives and accordingly, the fardbeyan was recorded on the third day of the occurrence. On the basis of the fardbeyan of the informant, Khunti P.S. Case No. 24 of 2004 corresponding to G.R. No. 177 of 2004, was instituted against the sole accused for the offences under Section 302 of the Indian Penal Code and Sections 3 and 4 of the Prevention of Witch (Daain) Practices Act, and investigation was taken up. After investigation the police submitted the charge-sheet against the accused.
4. Upon commitment of the case to the Court of Session, charge was framed against the sole accused for the offences under Section 302 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. In course of trial, the prosecution has examined 8 witnesses in this case, 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. Out of the material witnesses, P.W.-4 Soma Munda, P.W.-5 Mangra Munda, P.W.-7 Daud Munda and P.W.-8 Abhiram Hans have turned hostile and have not supported the prosecution case.
5. P.W. -1 Sukhlal Munda is the informant of the case. This witness has stated that the occurrence had taken place on 11.04.2004. At about 7 pm in the evening, upon hearing the noise near the house of Soma Munda, he went there and saw his wife fallen on the ground and being assaulted by the accused Sirka by fists and kicks, and due to the assaults she died. He has stated that the accused was branding his wife as daain. On the Saturday evening, the son of the Soma had died and they were alleging that he had died due to the witchcraft practiced by the deceased. This witness has stated that other persons had also seen the occurrence. He gave his fardbeyan to the police on which he had put his signature, which he identified and the same has marked as Ext.
1. He also identified the accused in the Court. In his cross-examination this witness has stated that he had gone to the Police Station at about 11 am in the morning on Monday, where also his statement was taken and his signature was obtained and thereafter he returned to his house and the police also came there and again took his statement, on which also his signature was obtained, which was marked as Ext. 1, and was taken on Tuesday. He has stated that he had no enmity with the Soma, Daud and Mangra and he denied the suggestion that the son of Soma has not died on Saturday. He has denied the suggestion of giving false statement.
6. P.W.-2 Jagarnath Munda is the son of the informant, who has also supported the case of the prosecution as an eye witness of the occurrence. He had stated that the occurrence had taken place on 11.04.2004 at about 7 am in the morning, while he had gone to graze his cattle. He saw that the accused Sirka had 3 thrown down his mother on the ground and was assaulting her by fists and kicks, due to which she died. He has also stated that the accused used to brand his mother as daain and son of Soma had died on Saturday for which she was being held responsible. In his cross-examination he has also denied the suggestion that the son of the Soma had not died and has denied the suggestion of giving false evidence.
7. P.W.-3 Tanka Munda has also supported the prosecution case. He has stated that the inquest report of the dead body was prepared by the police on which he has identified his signature and signature of another witness, which on his identification, were marked as Ext.
2. In his cross-examination he has stated that he has not seen the accused assaulting the deceased.
8. P.W.-6 Dr. Prince Pingua had conducted the post-mortem examination on the dead body of the deceased on 13.04.2004 and had found the following ante-mortem injuries on the dead body:- (i) No external injury seen on the body. Face, neck and abdomen as well as breast were swollen. No external signs of pregnancy was found. Blisters present all over the body, neck, chest, abdomen and limbs. Neck: No external injury of ligature, Maggots in left nostril. Subcutaneous veins were prominent. (ii) On dissection haemoperitonium was present. Spleen was ruptured and there was large quantity of liquid blood in the abdominal cavity. He has stated that the death was caused due to the ante-mortem blunt injuries which could be caused by beating by legs. He has identified the post-mortem report to be in his pen and signature, which was marked as Ext.3. In his cross-examination this witness has stated that such injures could be caused by running calf.
9. Though P.W.-4 Soma Munda and P.W.-5 Mangra Munda have been declared hostile by the prosecution, but the evidence of these witnesses are of some importance. P.W.-4 Soma Munda has stated in his cross-examination that he had no son and there was no question of his son's dying. He has also stated that the bull of Mangra had thrown the deceased due to which she died. Similarly, P.W.-5 Mangra Munda has also stated that the deceased was killed by the bull.
10. The statement of the accused was recorded u./s 313 of the Cr.P.C., wherein he has denied the evidence against him. No witness was examined by the defence in the case. On the basis of the evidence on record, the sole appellant was found guilty, convicted and sentenced by the Trial Court below, as aforesaid. 4 11. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence are absolutely illegal and cannot be sustained in the eyes of law, in as much as, the prosecution has failed to bring home the charges against the accused beyond all reasonable doubts. It is submitted that there are two eye witnesses to the occurrence, who were P.W.-1 Sukhlal Munda, the informant himself, and P.W.-2 Jagarnath Munda, the son of the informant. The father has stated that the occurrence had taken place at 7 pm in the evening whereas, the son has stated that the occurrence had taken place at 7 am in the morning. It is further submitted that though according to these witnesses the deceased was assaulted to death for the fact that the son of Soma Munda had died one day before the occurrence, and the deceased was being held responsible for that, but Soma Munda has been examined as P.W.-4, who has clearly stated that he had no son and there was no question of his son's dying. Learned counsel further pointed out that admittedly the occurrence had taken place on 11.04.2004 and the fardbeyan was given on 13.04.2004, which gave sufficient time to the informant for thinking over and falsely implicate the accused. Though there is an explanation in the FIR that on the next day he was busy in informing his relatives due to which he could not inform the police time, but this explanation cannot be accepted and this explanation has also not been stated in the deposition of the P.W.-1. Learned counsel accordingly, submitted that the prosecution has not been able to prove the case beyond all reasonable doubts, and in the facts of the case, the appellant ought to have been given at least the benefit of doubt.
12. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the witnesses have supported the prosecution case and have clearly stated that the accused was assaulting the deceased by fists and kicks due to which the deceased died. The oral evidence of these witnesses is fully corroborated by the medical evidence of P.W.6- Dr. Prince Pingua, who has stated that the deceased died due to the injuries which could be caused by kicks. 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.
13. Having heard learned counsels for both the sides and upon going through the record, we find that the occurrence had taken place on 11.04.2004 and the FIR was lodged on 13.04.2004 after a gap of one day. The explanation of this delay as given in the FIR is not at all acceptable and in our considered view this delay in lodging the FIR casts sufficient doubt on the prosecution case, benefit of which, must go to the accused. In his evidence the informant P.W.-1 Sukhlal Munda has unsuccessfully tried to bridge this gap, and has stated he had gone to the Police Station at 11 am on Monday (the occurrence having taken 5 place on Sunday), where his statement was recorded and he had put his signature thereon. But again he has admitted that his signature on the fardbeyan was taken on Tuesday. Though it is stated by the eye witnesses that the deceased was assaulted by the accused due to the fact that one day prior to the occurrence, the son of Soma Munda had died, allegedly due to the witchcraft practiced by the deceased, but Soma Munda has also been examined as P.W.-4 by the prosecution itself. This witness has turned hostile and he has stated in his evidence that he had no son at all, and there was no question of his son's dying. P.W.-4 Soma Munda and P.W.5 Mangra Munda have also stated that the deceased was killed by the bull, and the medical evidence of P.W.6- Dr. Prince Pingua shows that such injuries could be caused by bull, particularly, as the spleen of the deceased was found ruptured, which appears to be the main cause of death due to excessive internal bleeding.
14. For the foregoing discussions, we are of the considered view, that in the facts and circumstances of the case, even though two witnesses have supported the prosecution case, but due to the delay in lodging the FIR, and the discrepancies in the evidence, discussed above, the appellant was entitled to benefits of doubt, and the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law.
15. Accordingly, the impugned Judgment of conviction dated 11th of January, 2007 and Order of sentence dated 16 th January, 2007, passed by learned Additional Judicial Commissioner (F.T.C.), Khunti, in S.T. No. 377 of 2004, convicting and sentencing the appellant Sirka Munda for the offences under Section 302 of the Indian Penal Code and Sections 3 and 4 of the Prevention of Witch (Daain) Practices Act, are hereby, set aside. The appellant Sirka Munda 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.
16. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment. (H.C. Mishra, J.) (Anil Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 22nd of November, 2017. NAFR/ M.M./Sonu-