Ghunju Kujur @APPELLANT@Hash State of Jharkhand

Heard learned counsel for the appellant and learned counsel for the State.

The sole appellant is aggrieved by the impugned Judgment of conviction dated 24.07.2006 and Order of sentence dated 26.07.2006, passed by the

learned 1st Addl. Sessions Judge, Gumla, in S.T. No. 23 of 2006, whereby, the appellant has been found guilty and convicted of the offences under

Sections 302 and 324 of the Indian Penal Code, and Section 3 of the Prevention of Witch (Daain) Practices Act. Upon hearing on the point of

sentence, the appellant has been sentenced to undergo RI for life for the offence under Section 302 of the Indian Penal Code, RI for three years for

the offence under Section 324 of the Indian Penal Code, and RI for three months for the offence under Section 3 of the Prevention of Witch (Daain)

Practices Act, and all the sentences were directed to run concurrently.

The prosecution case was instituted on the basis of the fardbeyan of the informant Anu Kerketta, recorded on 03.11.2005 at about 6.40 A.M., at his

village Majhatoli, P.S. Raidih, District Gumla, wherein he has stated that in the previous evening at about 7:00 P.M., the accused Ghunju Kujur took up

a quarrel with him near the akhara of his village, on the pretext that his mother and aunt were practicing witchcraft, and started chasing the informant

with a gupti in his hand, with the intention to kill him. The informant ran for his safety towards his house and while he was in the lane towards his

house, his mother and aunt Peto Beck came to his rescue, whereupon Ghunju assaulted the mother of the informant by gupti injuring her on her arm

and he also assaulted his aunt Peto Beck, by gupti on her chest, causing bleeding injuries due to which she died at the spot. Informant has stated that

he was also injured in the occurrence, and they were assaulted as the accused was brandishing his mother and aunt as daain. On the basis of the

fardbeyan of the informant, Raidih P.S. Case No. 64 of 2005, corresponding to G.R. No. 738 of 2005, was instituted for the offences under Sections

302, 323 and 324 of the Indian Penal Code, and Sections 3 and 4 of the Prevention of Witch (Daain) Practices Act, against the sole accused and

investigation was taken up. After investigation, the police submitted the charge-sheet in the case.

After commitment of the case to the Court of Session, charge was framed against the accused for the offences under Sections 302 and 324 of the

Indian Penal Code and also under 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, eight witnesses were examined by the prosecution, including the IO and the Doctor, who had

conducted the post-mortem examination of the dead body of the deceased. The Doctor, who examined the injuries of the informant, or his mother, has

not been examined in the case.

P.W.-1 Anu Kerketta is the informant in this case and he has supported the prosecution case as eye witness to the occurrence. He has stated that

the occurrence had taken place on the occasion of Deepawali and it was the time of Sunset. He was at the akhara of his village, where Ghunju Kujur

came with a gupti and started telling him that his mother and aunt were practicing witchcraft, which was opposed by this witness, whereupon he

chased this witness. This witness ran to his safety towards his house, and when he came to his house, his mother and aunt came to his rescue and

they also raised alarm. The accused assaulted his mother by gupti. causing injuries on her left hand and chest, and thereafter he pierced the gupti in

the chest of his aunt, due to which she fell down. He has also stated that he was also injured by gupti near his eye and the accused had assaulted them

brandishing the ladies as daain. This witness has also stated that his brother-in-law Jairam Oroan and brother Jamuna Oraon were present in the

house and they came there and saw the occurrence, and thereafter the accused fled away with gupti. This witness has stated that his aunt was still

alive, who was brought inside the house and after about one hour, she died. In the next morning, this witness along with Jairam Oraon and Jamuna

Oraon went to the Police Station, where he gave the statement, upon which he had put his thumb impression. He has identified the accused in the

Court. In his cross-examination, this witness has stated that at the time of occurrence, it was not dark as yet, though it was the time of Sunset. He has

stated that he had not reached the house, rather he was in the lane when his mother and aunt came to his rescue. He also raised the alarm, but no one

from the nearby houses came to their rescue. He has denied the suggestion of giving false evidence.

P.W.-2 Jairam Oraon, P.W.-3 Suko Orain, the mother of the informant and also an injured in the occurrence, and P.W.-4 Jamuna Kerketta, the

brother of the informant, have also supported the case as eye witnesses to the occurrence, in more or less, the same manner, as stated by the

informant P.W.-1 Anu Kerketta. P.W.-3 Suko Orain had also shown the scars of her injuries to the Court. They have identified the accused in the

Court. P.W.-2 Jairam Oraon has stated in his examination-in-chief that after the occurrence, at about 4.00 A.M. in the morning, he had gone to the

Police Station, where he reached at about 6.00 A.M., where the statement of the informant was recorded. Similarly, P.W.-4 Jamuna Kerketta has

also stated in his cross-examination that in the morning, they had gone to the Police Station to inform the police. In his cross examination P.W.-2

Jairam Oraon has reiterated that he had gone to the Police Station along with Anu, where Anu had given the statement within his hearing. This

witness has stated in his cross-examination that no one of the village had come to the place of occurrence in spite of the alarm raised by them.

P.W.-5 Jagdeo Oraon, who is the husband of the deceased, and P.W.-6 Palu Ekka, are the hearsay witnesses, who were informed about the

occurrence later. They had seen the dead body in the house and they are also witnesses to the inquest report of the dead body.

P.W.-7 (Dr.) Sanjay Kumar had conducted the post-mortem examination on the dead body of the deceased on 03.11.2005, and had found the

following injuries:-

One sharp cut injury on chest along the left anterior auxiliary line, lateral to left breast 1†x ½†piercing wound deep up to the heart. On internal

examination lung and heart both were punctured. Huge collection of blood was found in left thoracic cavity. Lower part of upper lobe of lung and left

atrium of heart found injured. No other injury found. He has stated that the injuries were ante-mortem in nature, caused by sharp penetrating weapon,

which may be a gupti, and cause of death was shock and haemorrhage. He has proved the post-mortem report to be in his pen and signature, which

was marked as Ext.-1.

P.W.-8 Fakhru Zama is the I.O of the case. This witness stated that on 03.11.2005, he was posted at Raidih Police Station, as S.I., and in the

morning, there was an information at the Police Station by way of rumour, that someone was murdered at Majhatoli. Upon this information, the I.O.

went to the place of occurrence, where he recorded the fardbeyan of Anu Kerketta, which he has proved, and the same was marked as Ext.-2. He

took over the charge of investigation and he has also proved the formal FIR, which was marked as Ext.-3. He prepared the inquest report of the dead

body which also he has proved from the case diary, which was marked as Ext.-4. He has also stated that he prepared the memo for the injury report

of Suko Orain and he has stated that on the back side thereof, the injury report was given by the Doctor, and he has proved the entire document,

which was marked as Ext.-5. He recorded the statements of the witnesses and he has given the details of the place of occurrence, which is a lane

near the house of the accused and the houses of other persons were also situated there. The house of accused is also situated nearby. He has stated

that he had not seized any bloodstain from the place of occurrence. He has also stated that on 03.11.2005 itself, he had arrested the accused from his

house and thereafter, he submitted the charge sheet. This witness has stated in his cross-examination that he had found the dead body inside the house

and he had not found any blood stained soil near the dead body. He had not recovered any weapon of offence. He has also admitted that he had not

recorded the statement of the persons residing in the neighbouring houses. The informant had given the time of occurrence to be about 7.00 P.M. He

has denied the suggestion of making faulty investigation.

The statement of the accused was recorded under section 313 of the Cr.P.C., wherein he has denied the evidences against him. No evidence,

however, was adduced by the defence.

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 eye of law, in view of the fact that the evidence of the informant and the eye witnesses are not worth reliable. It is

submitted that though the informant also claimed to be injured, but there is no medical evidence on record to support this fact. Even the injuries of the

mother of the informant have also not been proved, as the Doctor who examined her and issued the injury report has not been examined by the

prosecution. Learned counsel for the appellant further submitted that though the witnesses, including the informant, have stated that they had gone to

the Police Station and had lodged the case there, but the FIR shows that the fardbeyan was recorded at the village of the informant. Learned counsel

further submitted that even the place of occurrence has not been proved in the case, inasmuch as, no blood stain was found and seized by the police,

either at the alleged place of occurrence, i.e., the lane near the house of the informant, or even from the house of the informant where the dead body

was found by the I.O. Learned counsel further pointed out that appellant was arrested from his house on 03.11.2005 itself, but there is no recovery of

any weapon of offence. It is admitted by the I.O. that he had not recorded the statement of the any independent witnesses. Learned counsel

accordingly, submitted that even though the eye witnesses have supported the prosecution case, the prosecution has failed to bring home the charge

against the appellant beyond all reasonable doubts, and it is a fit case, in which, the benefits of doubt ought to have been given to the accused

appellant.

Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution has been able to prove the charge

against the accused beyond all reasonable doubts, as the case is fully supported by the four eye witnesses to the occurrence, i.e., P.W.-1 Anu

Kerketta, the informant himself, P.W.-2 Jairam Oraon, P.W.-3 Suko Orain, the mother of the informant and an injured in the occurrence, and P.W.-4

Jamuna Kerketta. The case is also supported by two hearsay witnesses P.W.-5 Jagdeo Oraon, the husband of the deceased lady, and P.W.-6 Palu

Ekka, and the ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-7 (Dr.) Sanjay Kumar and the post-mortem

report proved by him as Ext.-1, which shows that sharp piercing injury was found on the chest of the deceased, puncturing the lung and the heart,

which were sufficient in the ordinary course to caused the death. 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, worth any interference by this Court.

Having heard learned counsels for both the sides and upon going through the record, we find that though the prosecution case is fully supported by

four eye witnesses, namely, PW-1 Anu Kerketta, PW-2 Jairam Oraon, PW-3 Suko Orain and PW-4 Jamuna Kerketta, but all these witnesses are

close relatives and they are highly interested witnesses. Even the hearsay witness P.W.-5 Jagdeo Oraon is an interested witness, being the husband of

the deceased. There is no independent eye witness to the occurrence, even though the occurrence is said to have taken place at or about the time of

Sunset, and the evidence of I.O. shows that there were the houses of other persons also, near the lane, where the occurrence had allegedly taken

place. The I.O. has clearly stated that he had not recorded the statements of any of those persons, which creates doubt about the prosecution case.

This apart, though the injury on the deceased is such which would have caused profuse bleeding, as the heart and lung of the deceased were

punctured, but no blood stain was found and seized by the police from either the place of occurrence, i.e., the lane, or even from the house where the

dead body was kept. This accused was arrested on the same very day from his house, but there is no recovery of any weapon of offence from him,

and there is no explanation as to why the weapon of offence could not be recovered.

Apart from the aforesaid circumstances which make the prosecution case doubtful, we also find that the evidence of the informant and the

witnesses with regard to time of occurrence is absolutely doubtful. In the fardbayan, it is clearly stated that the occurrence had taken place at about

7.00 P.M., whereas in the evidence it has come that at the time of occurrence it was not dark, rather it was about the time of Sunset. The occurrence

having taken place in the month of November, it becomes dark at about 7.00 P.M. This apart, we also find that the informant Anu Kerketta has

clearly stated in the FIR that the deceased lady died at the spot itself, whereas in his evidence he has stated that the deceased had not died at the spot,

rather she died in the house, where she was brought, after about one hour. Similar are the statements of all the other eyewitnesses also. The informant

Anu Kerketta has stated in his evidence that in the next day morning, he had gone to the Police Station along with Jairam Oraon and Jamuna

Kerketta, where he had given his fardbeyan to the police. Even P.W.-2 Jairam Oraon has stated that they had gone to the Police Station at about 4.00

A.M. in the morning and they reached there at about 6.00 A.M., where Anu Kerketta gave his statement to the police within his hearing, and P.W.-4

Jamuna Kerketta has also stated in his cross examination that they had gone to the Police Station in the morning, where the case was lodged. The

fardbayan clearly shows that it was recorded at the village of the informant and not at the Police Station, and same is the evidence of P.W.-8 Fakhru

Zama, the I.O of the case, which clearly shows that none of the witnesses had gone to the Police Station.

The I.O has clearly stated in his evidence that only on the information by way of rumor, he had gone to the village of occurrence. He has also

admitted in his cross-examination that he had not recorded the statement of any independent witness, though he had mentioned in the case dairy about

the presence of the houses near the place of occurrence. We are of the considered view that the time of occurrence being about Sunset, or even at

about 7.00 P.M., at the place, which is a lane in the village, having houses on both sides, it is absolutely doubtful as to why the statement of any

independent person residing nearby, was not recorded by the police. The investigation made by the I.O. of the case appears to be absolutely

perfunctory, as only relying upon the statements of the interested witnesses, the charge-sheet has been submitted in the case. The I.O. has not taken

any pains to make any independent investigation in the case, by recording the statements of the independent witnesses residing in the nearby houses,

nor he has taken the pains to seize / recover the blood stained soil or even the weapon of the offence, even though the accused was arrested from his

house on the same day. Even the presence of the accused in his house on the same day, and yet no recovery of any incriminating article, makes the

prosecution case doubtful, and points towards the innocence of the accused. We are of the considered view that for these reasons, the prosecution

has failed to bring home the charges against the accused beyond all shadow of reasonable doubts, and even though the interested eye witnesses have

supported the prosecution case, it is a fit case in which the benefits of doubt ought to have been given to the accused. As such, the impugned

Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law.

For the foregoing reasons, the impugned Judgment of conviction dated 24.07.2006 and Order of sentence dated 26.07.2006, passed by the learned

1st Addl. Sessions Judge, Gumla, in S.T. No. 23 of 2006, convicting and sentencing the appellant Ghunju Kujur, for the offences under Sections 302

and 324 of the Indian Penal Code, and Section 3 of the Prevention of Witch (Daain) Practices Act, are hereby, set aside. Consequently, the appellant

is given the benefits of doubt, and he is acquitted of the charges. The appellant is in custody undergoing the sentence. He is directed to be released

and set at liberty forthwith, if his detention is not required in any other case.

This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this

judgment.