Filmohan Kujur ? Filmon Kujur Vs. State of Jharkhand - Court Judgment

SooperKanoon Citationsooperkanoon.com/64100
CourtJharkhand High Court
Decided OnAug-24-2015
AppellantFilmohan Kujur ? Filmon Kujur
RespondentState of Jharkhand
Excerpt:
1 cr. appeal (d.b.) no. 516 of 2008 against the judgment of conviction dated 01.06.2004 and order of sentence dated 02.06.2004 passed by the then additional sessions judge, f.t.c. no.-iii, gumla, in s.t. no. 273 of 2002. filmohan kujur @ filmon kujur s/o patras kujur, resident of netapole guna toli, p.s. chainpur, district-gumla. … … appellant versus the state of jharkhand … … respondent ----- for the appellant : mr. g.b. rao, advocate for the state : mr. arun kumar pandey, a.p.p. ----- present hon’ble mr. justice r. r. prasad hon’ble mr. justice pramath patnaik by court :- the appellant filmohan kujur was put on trial to stood charge of committing murder of filomeena xess and also for committing offence u/s 4/5 of the prevention of witch (daain) practices act, 1999. the court having found the appellant guilty of both the charges convicted him for the offence punishable u/s 302 of the indian penal code and also for the offence punishable u/s 4 of the prevention of witch (daain) practices act, 1999 vide its judgment dated 01.06.2004 passed in s.t. case no. 273 of 2002 and sentenced him to undergo imprisonment for life u/s 302 of the indian penal code vide its order dated 02.06.2004. however, no separate sentence was awarded u/s 4 of the prevention of witch (daain) practices act, 1999.2. the case of the prosecution is that joseph xess (p.w.6)-the informant on the day of occurrence i.e. on 17.07.2002 had gone to plough his field early morning leaving his wife filomeena xess (deceased) and son joy jon xess (p.w.5) at home. at about 10/11 o'clock when he returned home he found his wife filomeena xess lying dead near the house of alban xess. he found several injuries on the person of his wife. several villagers had assembled over there. 2 amongst them, bimla kujur (p.w.2), albina lakra (p.w.1), fulmani kumari (p.w.4) told him that at about 8/9 o'clock, the appellant filmohan kujur did assault the deceased by tangi as a result of which his wife died and then the appellant fled away.3. upon coming to know all about it when the informant was going to chainpur police station alongwith chowkidar for giving information, he found officer in charge of chainpur police station mr. r.p. singh in the way at village tongo where joseph xess (p.w.6) gave his fardbeyan (ext.4) which was recorded by said mr. r.p. singh, officer in charge of chainpur police station. the informant narrated about the incident as aforesaid and also stated that the appellant did kill his wife filomeena xess as the appellant had suspicion that on account of witch craft being played by the deceased his daughter and also a bullock had died some days before and on account of that the appellant had come to his house two days before and had extended threat that he will not leave his wife.4. on the said fardbeyan a formal f.i.r. (ext.5) was drawn. the matter was taken up for investigation by the i.o., who in course of investigation held inquest on the dead body of the deceased and prepared an inquest report (ext.7). thereupon, the dead body was sent for postmortem examination which was conducted by dr. radheshyam gupta (p.w.8). upon holding autopsy on the dead body, the doctor did find following injuries:- (i) sharp cutting wound 2 cm x 2 cm x bone deep on right shoulder with fracture of neck and right humerous. (ii) sharp cutting wound 7 cm x 5 cm x bone deep on back of head with fracture of occipital bone and tear of surrounding part of the brain with blood clot around. the doctor issued postmortem examination report (ext.3) with an opinion that the death was caused on account of brain injury 3 caused by sharp cutting weapon.5. meanwhile, the i.o. seized earth smeared with blood from the place of occurrence which was seized under seizure list (ext.6). he also recorded the statements of the witnesses. on completion of the investigation, when the charge sheet was submitted, the court took cognizance of the offence against the appellant. in due course, when the case was committed to the court of sessions, the appellant was put on trial, during which, 9 witnesses were examined by the prosecution in order to prove the charge. of them, p.w.1-albina lakra, p.w.2-bimla kujur are the eye witnesses. p.w. 1-albina lakra did testify that she saw the appellant assaulting the deceased when the deceased after throwing cow dung came near the house of alban. similarly, p.w.2-bimla kujur did testify that when she was in her home she heard distress sound coming from outside and when she came out she saw this appellant assaulting the deceased with kulhari. p.w.4-fulmani xess-the daughter of the deceased though in her examination in chief claimed herself to be the eye witness but in the cross examination she did testify that by the time she came out of the house, the appellant had already fled away. rest of the witnesses p.w.3-isdor xess, p.w.5-joy jon xess, son of the informant and p.w.7- sunil kujur are the hearsay witnesses who either came to know about the occurrence from p.w.1 or p.w.2. p.w.2-bimla kujur is the witness to the seizure of earth smeared with blood whereas p.w.3-isdor xess and p.w.7-sunil kujur are witnesses to the seizure of earth smeared with blood and also of inquest.6. upon closure of the prosecution case, when the appellant was questioned under section 313 of cr.p.c. over the incriminating material/evidence appearing against him, the appellant denied. thereupon, the trial court by placing its reliance on the testimonies 4 of p.ws.1 and 2 the eye witnesses getting corroboration from the medical evidence did find the appellant guilty for the charges and accordingly recorded the order of conviction and sentence which is under challenge.7. mr. g.b. rao, learned counsel appearing for the appellant submits that the prosecution has come forward with a case that p.ws.1 and 2 did see the appellant assaulting the deceased but none of them is the eye witness. in this regard, it was highlighted that p.w.2 as per her evidence was inside the house when occurrence took place and with her p.w.1 was there which is evident from the evidence given by p.w.2 at para 12 and thereby the trial court should have discarded the testimonies of both the witnesses p.w.1 and p.w.2. further, it was submitted that the prosecution though has come forward with a motive of the case that the appellant did assault the deceased as he was considering her to be a witch who was practicing witch craft, on account of which the daughter and also a bullock of the appellant had died but the prosecution cannot be said to have proved this fact as neither the informant nor the deceased had made any complaint either before the panchayat or before the police station. in this respect, it was also pointed out that nor they did lodge any complaint when the appellant had extended threat two days before the occurrence and thereby the judgment of conviction and order of sentence is fit to be set aside.8. as against this, mr. arun kumar pandey, learned counsel appearing for the state submits that there does not appear to be any reason to discard the testimonies of the eye witnesses i.e. p.w.1- albina lakra and p.w.2-bimla kujur who had categorically deposed that they had seen the appellant assaulting the deceased and their testimonies get corroboration from the medical evidence and thereby, 5 the trial court was absolutely justified in recording the order of conviction and sentence which never warrants to be interfered with.9. having heard learned counsel for the parties and on perusal of the record, we do find that it is the case of the prosecution as has been made by the prosecution that when the informant-p.w.6-joseph xess had gone to plough his field early morning, his wife and son joy jon xess-p.w.5 were there in the house. when he was returning home at about 12 o'clock he saw his wife lying dead near the house of alban xess. on her person injuries were there. there it was told by p.w.1-albina lakra and also by others that it was the appellant who had killed his wife. p.w.1-albina lakra has categorically deposed that while she was passing through the road she saw this appellant assaulting the deceased whereas p.w.2-bimla kujur another eye witness has testified that while she was inside the house she heard hulla and on hearing it when she came to place of occurrence she did see the appellant assaulting the deceased and then he fled away. nothing seems to have been illicited on behalf of the defence so as to have have any doubt over the truthfulness of the testimonies of the aforesaid eye witnesses. however, it be stated that submission has been advanced on behalf of the defence that neither p.w.1-albina lakra nor p.w.2-bimla kujur did see the appellant assaulting the deceased as both of them as per the evidence of p.w.2-bimla kujur testifying at para 12, were in the house. it is true that p.w.2-bimla kujur has testified in para 12 that p.w.1-albina lakra was there in the house of p.w.2 but if we will take into account the testimony of p.w.2 in totality it would appear that p.w.2 while saying so never meant that at the time of occurrence p.w.1 was there in her house. she may be there at the house of p.w.2 at earlier point of time and therefore, she had testified in the same paragraph that when p.w.2 reached at 6 the place of occurrence she did find there p.w.1 who has testified that while she was passing through the road she did see the appellant assaulting the deceased. thus, the submission advanced in this regard is not acceptable. the testimonies of p.w.1-albina lakra and p.w.2-bimla lakra further get corroboration from the medical evidence as the testimonies of the witnesses to the effect that the deceased did assault by kulhari/tangi over the head and shoulder, gets corroboration from the medical evidence as the doctor did find injuries over the shoulder and also over the head. further, we do find that the prosecution has also been able to establish the motive of the occurrence. the informant-p.w.6-joseph xess has testified that as the daughter and also a bullock of the appellant has died, the appellant did carry an impression that it was on account of witchcraft being played by the deceased the daughter and the bullock died and on account of that two days before the occurrence the appellant had extended threat. this fact has also been supported by p.w.1-albina lakra and p.w.2-bimla kujur.10. thus, we do find that the prosecution has been able to establish beyond any reasonable doubt that it was the appellant who did assault the deceased as a result of which she died.11. under the circumstances, we do find that the trial court was absolutely justified in recording the judgment of conviction and order of sentence against the appellant which is, hereby, affirmed.12. consequently, this appeal stands dismissed. (r.r. prasad, j.) (pramath patnaik, j.) jharkhand high court, ranchi dated the 24th august, 2015 n.a.f.r. /mm/saket
Judgment:

1 Cr. Appeal (D.B.) No. 516 of 2008 Against the judgment of conviction dated 01.06.2004 and order of sentence dated 02.06.2004 passed by the then Additional Sessions Judge, F.T.C. No.-III, Gumla, in S.T. No. 273 of 2002. Filmohan Kujur @ Filmon Kujur S/o Patras Kujur, resident of Netapole Guna Toli, P.S. Chainpur, District-Gumla. … … Appellant Versus The State of Jharkhand … … Respondent ----- For the Appellant : Mr. G.B. Rao, Advocate For the State : Mr. Arun Kumar Pandey, A.P.P. ----- PRESENT HON’BLE MR. JUSTICE R. R. PRASAD HON’BLE MR. JUSTICE PRAMATH PATNAIK By Court :- The appellant Filmohan Kujur was put on trial to stood charge of committing murder of Filomeena Xess and also for committing offence u/s 4/5 of The Prevention of Witch (Daain) Practices Act, 1999. The Court having found the appellant guilty of both the charges convicted him for the offence punishable u/s 302 of the Indian Penal Code and also for the offence punishable u/s 4 of The Prevention of Witch (Daain) Practices Act, 1999 vide its judgment dated 01.06.2004 passed in S.T. Case No. 273 of 2002 and sentenced him to undergo imprisonment for life u/s 302 of the Indian Penal Code vide its order dated 02.06.2004. However, no separate sentence was awarded u/s 4 of The Prevention of Witch (Daain) Practices Act, 1999.

2. The case of the prosecution is that Joseph Xess (P.W.6)-the informant on the day of occurrence i.e. on 17.07.2002 had gone to plough his field early morning leaving his wife Filomeena Xess (deceased) and son Joy Jon Xess (P.W.5) at home. At about 10/11 O'clock when he returned home he found his wife Filomeena Xess lying dead near the house of Alban Xess. He found several injuries on the person of his wife. Several villagers had assembled over there. 2 Amongst them, Bimla Kujur (P.W.2), Albina Lakra (P.W.1), Fulmani Kumari (P.W.4) told him that at about 8/9 O'clock, the appellant Filmohan Kujur did assault the deceased by tangi as a result of which his wife died and then the appellant fled away.

3. Upon coming to know all about it when the informant was going to Chainpur police station alongwith chowkidar for giving information, he found Officer in charge of Chainpur police station Mr. R.P. Singh in the way at village Tongo where Joseph Xess (P.W.6) gave his fardbeyan (Ext.4) which was recorded by said Mr. R.P. Singh, officer in charge of Chainpur police station. The informant narrated about the incident as aforesaid and also stated that the appellant did kill his wife Filomeena Xess as the appellant had suspicion that on account of witch craft being played by the deceased his daughter and also a bullock had died some days before and on account of that the appellant had come to his house two days before and had extended threat that he will not leave his wife.

4. On the said fardbeyan a formal F.I.R. (Ext.5) was drawn. The matter was taken up for investigation by the I.O., who in course of investigation held inquest on the dead body of the deceased and prepared an inquest report (Ext.7). Thereupon, the dead body was sent for postmortem examination which was conducted by Dr. Radheshyam Gupta (P.W.8). Upon holding autopsy on the dead body, the doctor did find following injuries:- (i) Sharp cutting wound 2 cm x 2 cm x bone deep on right shoulder with fracture of neck and right humerous. (ii) Sharp cutting wound 7 cm x 5 cm x bone deep on back of head with fracture of occipital bone and tear of surrounding part of the brain with blood clot around. The doctor issued postmortem examination report (Ext.

3) with an opinion that the death was caused on account of brain injury 3 caused by sharp cutting weapon.

5. Meanwhile, the I.O. seized earth smeared with blood from the place of occurrence which was seized under seizure list (Ext.6). He also recorded the statements of the witnesses. On completion of the investigation, when the charge sheet was submitted, the Court took cognizance of the offence against the appellant. In due course, when the case was committed to the Court of Sessions, the appellant was put on trial, during which, 9 witnesses were examined by the prosecution in order to prove the charge. Of them, P.W.1-Albina Lakra, P.W.2-Bimla Kujur are the eye witnesses. P.W. 1-Albina Lakra did testify that she saw the appellant assaulting the deceased when the deceased after throwing cow dung came near the house of Alban. Similarly, P.W.2-Bimla Kujur did testify that when she was in her home she heard distress sound coming from outside and when she came out she saw this appellant assaulting the deceased with kulhari. P.W.4-Fulmani Xess-the daughter of the deceased though in her examination in chief claimed herself to be the eye witness but in the cross examination she did testify that by the time she came out of the house, the appellant had already fled away. Rest of the witnesses P.W.3-Isdor Xess, P.W.5-Joy Jon Xess, son of the informant and P.W.7- Sunil Kujur are the hearsay witnesses who either came to know about the occurrence from P.W.1 or P.W.2. P.W.2-Bimla Kujur is the witness to the seizure of earth smeared with blood whereas P.W.3-Isdor Xess and P.W.7-Sunil Kujur are witnesses to the seizure of earth smeared with blood and also of inquest.

6. Upon closure of the prosecution case, when the appellant was questioned under section 313 of Cr.P.C. over the incriminating material/evidence appearing against him, the appellant denied. Thereupon, the trial Court by placing its reliance on the testimonies 4 of P.Ws.1 and 2 the eye witnesses getting corroboration from the medical evidence did find the appellant guilty for the charges and accordingly recorded the order of conviction and sentence which is under challenge.

7. Mr. G.B. Rao, learned counsel appearing for the appellant submits that the prosecution has come forward with a case that P.Ws.1 and 2 did see the appellant assaulting the deceased but none of them is the eye witness. In this regard, it was highlighted that P.W.2 as per her evidence was inside the house when occurrence took place and with her P.W.1 was there which is evident from the evidence given by P.W.2 at para 12 and thereby the trial Court should have discarded the testimonies of both the witnesses P.W.1 and P.W.2. Further, it was submitted that the prosecution though has come forward with a motive of the case that the appellant did assault the deceased as he was considering her to be a witch who was practicing witch craft, on account of which the daughter and also a bullock of the appellant had died but the prosecution cannot be said to have proved this fact as neither the informant nor the deceased had made any complaint either before the panchayat or before the police station. In this respect, it was also pointed out that nor they did lodge any complaint when the appellant had extended threat two days before the occurrence and thereby the judgment of conviction and order of sentence is fit to be set aside.

8. As against this, Mr. Arun Kumar Pandey, learned counsel appearing for the State submits that there does not appear to be any reason to discard the testimonies of the eye witnesses i.e. P.W.1- Albina Lakra and P.W.2-Bimla Kujur who had categorically deposed that they had seen the appellant assaulting the deceased and their testimonies get corroboration from the medical evidence and thereby, 5 the trial Court was absolutely justified in recording the order of conviction and sentence which never warrants to be interfered with.

9. Having heard learned counsel for the parties and on perusal of the record, we do find that it is the case of the prosecution as has been made by the prosecution that when the informant-P.W.6-Joseph Xess had gone to plough his field early morning, his wife and son Joy Jon Xess-P.W.5 were there in the house. When he was returning home at about 12 O'clock he saw his wife lying dead near the house of Alban Xess. On her person injuries were there. There it was told by P.W.1-Albina Lakra and also by others that it was the appellant who had killed his wife. P.W.1-Albina Lakra has categorically deposed that while she was passing through the road she saw this appellant assaulting the deceased whereas P.W.2-Bimla Kujur another eye witness has testified that while she was inside the house she heard hulla and on hearing it when she came to place of occurrence she did see the appellant assaulting the deceased and then he fled away. Nothing seems to have been illicited on behalf of the defence so as to have have any doubt over the truthfulness of the testimonies of the aforesaid eye witnesses. However, it be stated that submission has been advanced on behalf of the defence that neither P.W.1-Albina Lakra nor P.W.2-Bimla Kujur did see the appellant assaulting the deceased as both of them as per the evidence of P.W.2-Bimla Kujur testifying at para 12, were in the house. It is true that P.W.2-Bimla Kujur has testified in para 12 that P.W.1-Albina Lakra was there in the house of P.W.2 but if we will take into account the testimony of P.W.2 in totality it would appear that P.W.2 while saying so never meant that at the time of occurrence P.W.1 was there in her house. She may be there at the house of P.W.2 at earlier point of time and therefore, she had testified in the same paragraph that when P.W.2 reached at 6 the place of occurrence she did find there P.W.1 who has testified that while she was passing through the road she did see the appellant assaulting the deceased. Thus, the submission advanced in this regard is not acceptable. The testimonies of P.W.1-Albina Lakra and P.W.2-Bimla Lakra further get corroboration from the medical evidence as the testimonies of the witnesses to the effect that the deceased did assault by kulhari/tangi over the head and shoulder, gets corroboration from the medical evidence as the doctor did find injuries over the shoulder and also over the head. Further, we do find that the prosecution has also been able to establish the motive of the occurrence. The informant-P.W.6-Joseph Xess has testified that as the daughter and also a bullock of the appellant has died, the appellant did carry an impression that it was on account of witchcraft being played by the deceased the daughter and the bullock died and on account of that two days before the occurrence the appellant had extended threat. This fact has also been supported by P.W.1-Albina Lakra and P.W.2-Bimla Kujur.

10. Thus, we do find that the prosecution has been able to establish beyond any reasonable doubt that it was the appellant who did assault the deceased as a result of which she died.

11. Under the circumstances, we do find that the trial Court was absolutely justified in recording the judgment of conviction and order of sentence against the appellant which is, hereby, affirmed.

12. Consequently, this appeal stands dismissed. (R.R. Prasad, J.) (Pramath Patnaik, J.) Jharkhand High Court, Ranchi Dated the 24th August, 2015 N.A.F.R. /MM/Saket