JAG MOHAN KANWAR vs THE STATE OF JHARKHAND

H.C. Mishra, J

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

The sole appellant is aggrieved by the Judgement of conviction dated 19.04.2007 and Order of sentence dated 20.04.2007, passed by the learned

Additional Sessions Judge, F.T.C.-II, Latehar, in S.T. No. 130 of 2006, whereby, the appellant has been found guilty and convicted for the offences

under Section 302 of the Indian Penal Code and Section 4 of the Prevention of Witch (Daain) Practices Act. Upon hearing on the point of sentence,

the appellant has been sentenced to undergo R.I. for life for the offence under Section 302 of the Indian Penal Code and he has further been

sentenced to R.I. for six months and fine of Rs.1, 000/- for the offence under Section 4 of the Prevention of Witch (Daain) Practices Act, and both

the sentences were directed to run concurrently.

The prosecution case was instituted on the basis of the fardbeyan of the informant Chehru Kanwar, the son of the deceased Chamra Kanwar,

recorded at his village Soharpat, P.S. Netarhat, District Latehar, on 16.8.2006 at about 2:00 P.M., wherein he has stated that on the same day, i.e., on

16.8.2006 at about 10.30 A.M. in the morning, he along-with his mother, and brother were at the house and his father was sitting on the chabutra of

the house. At the same time, the accused Jag Mohan Kanwar came armed with a sword and asked them to go away from there, otherwise they

would also be killed, upon which, the informant and the other persons went to the cow-shed and the accused assaulted his father, who was sitting on

the chabutra, by sword indiscriminately on his head, due to which, his father fell down. When his father fell down, the accused also assaulted him by

sword on both his hands. Upon the alarm raised by the informant and his family members, several persons assembled there, but Jag Mohan Kanwar

threatened all of them by sword saying that whoever would be coming near him would be killed and thereafter, he fled away. As to the cause of

occurrence, it is stated that his father was practicing as witch doctor, and 15 days prior to the occurrence, his father had practiced upon the wife of

the accused Jag Mohan Kanwar, as she was ill, but she could not be cured thereby. Claiming that for the same reason, the accused had assaulted his

father to death, the fardebayn was given by the informant, on the basis of which, Netarhat P.S Case No. 11 of 2006, corresponding to G.R No.382 of

2006, was instituted for the offence under Section 302 of the Indian Penal Code, 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 Section 302 of the Indian

Penal Code, and Section 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 ten witnesses, including the I.O. and the Doctor, who had conducted the post-mortem

examination on the dead body of the deceased.

P.W.-6 Chehroo Kanwar is the informant and the son of the deceased. He is also the eyewitness to the occurrence. This witness has stated that

the occurrence had taken place on 16.8.2006 at about 10.30 A.M. in the day. He was at his house and his father was sitting on the chabutra of the

house. The accused Jag Mohan Kanwar came there armed with sword and asked the informant and his family members to go away from there,

threatening to kill them also. Thereafter, he assaulted his father by sword on his head and both the hands, due to which, his father died at the spot. He

raised the alarm and several persons assembled there and they also tried to apprehend him, but threatening them with the sword, the accused fled

away. This witness has also stated that his father was practicing as witch doctor and 15 days prior to the occurrence, Jag Mohan had called his father

for practicing upon his wife, who was ill, but she could not be cured. He has stated that the police reached the place of occurrence and recorded his

fardbeyan, upon which, he had put his signature. He has identified his signature and also the signature of his brother on the fardbeyan, which were

marked as Exhibits-1 & 1/1 respectively. He has also stated that the police prepared the inquest report of the dead body, on which also, he had put his

signature, and he has identified his signature on the inquest report also, which was marked Exhibit-2. He has identified the accused in the Court. In his

cross-examination, this witness has stated that the accused is related as his uncle in the village relationship. Though this witness had been put to a

lengthy cross-examination, but there is nothing of much importance in his cross-examination. He has denied the suggestion to have falsely implicated

the accused.

P.W.-1 Basanti Devi, who is the daughter-in-law of the deceased, P.W.-2 Kawail Devi, who is the wife of the deceased, P.W.-3 Binda Devi, who

is also the daughter-in-law of the deceased, P.W.-4 Lalku Kawar, who is the son of the deceased, have also supported the case as the eyewitnesses

to the occurrence, stating that while the deceased was sitting on the chabutra of the house, this accused came armed with sword and assaulted the

deceased to death. P.W.-2 Kawail Devi, who is the wife of the deceased, has also stated that her husband was practicing as witch doctor and about

15 days prior to the occurrence, he had practiced the same upon the wife of the accused, who was ill, but she could not be cured. In her cross-

examination, P.W.-2 Kawail Devi has also stated that the accused is her brother-in-law in the village relationship, being the son of the uncle of her

deceased husband. Though P.W.-4 Lalku Kawar has also supported the case as the eyewitness to the occurrence, but in his cross-examination, this

witness has stated that at the time of occurrence, he was inside his house, taking his meal, whereas his father was sitting outside the house, and upon

hearing the noise, he came out of the house. He has admitted that he had not seen the accused, assaulting the deceased, but the other family members

had seen the accused, assaulting the deceased. He has also stated that by the time, he came out of the house, he saw the accused fleeing away.

P.W.-5 Gahnoo Kanwar and P.W.-7 Yadu Kanwar are the co-villagers, who had reached the place of occurrence, upon hearing the noise. They

have stated that when they reached the place of occurrence, they saw the accused fleeing away with sword in his hand and they saw the dead body

of deceased with the bleeding injuries. There is nothing of much importance in their cross-examinations.

P.W.-8 Dr. Shamim Raza had conducted the post-mortem examination on the dead body of the deceased on 17.8.2006, and had found the following

ante-mortem injuries on the dead body:-

(I) A Sharp cut from left parietal region to frontal region, cutting soft tissue of scalp, bone and brain. Size 9â€​ x 3â€​ x 1â€​.

(II) A sharp cut medial aspect of parietal bone. Size 4â€​ x 3â€​ x 1â€​.

(III) A Sharp cut right parietal bone cutting soft tissue. Size 3â€​x2â€​ x 1â€​.

(IV) Sharp cut dorsal aspect of right hand cutting the bone of little finger and ring finger. Size 2â€​ x 1/2â€​ x 1â€​.

(V) A sharp cut dorsal aspect of left wrist. Size 3â€​ x 1' x 1â€​.

 Postmortem findings:-

In stomach - Semi-digested food and liquid.

In small intestine -liquid and gas.

In large intestine- faecal material and gas.

Lung pale, brain pale and a cut mark over parietal region, size 5â€​ x 3â€​ x 1â€​. Kidney pale, heart empty and pale.

This witness has stated that the cause of death was cardio-respiratory failure due to severe hemorrhage and shock caused by the injuries, caused by

hard, heavy and sharp substance. He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-3. In his cross-

examination, this witness has stated that all the injuries were caused by five assaults and they were located at a distance of 3†to 5†from one

another. There were three injuries on the skull and two injuries on the wrist.

P.W.-9 Arjun Singh Yadav is the I.O. of the case. This witness has stated that on 16.8.2006, he was posted at Netarhat Police Station and on the

basis of a secret information, he proceeded to the village Soharpat, where he recorded the fardbeyan of Chehru Kanwar. He has identified the

fardbeyan to be in his pen and signature, which was marked Exhibit-4. He has also identified the endorsement on the fardbeyan, and has proved the

formal FIR, which were marked as Exhibits- 5 & 6 respectively. He has stated that the inquest report of the dead body was also prepared and he has

proved the same also, which was marked as Exhibit-7. He inspected the place of occurrence and has given the details thereof. He has further stated

that on 16.8.2006 itself, the accused had surrendered at the Police Station and had produced the weapon of offence, i.e., the sword, which was seized

after preparing the production-cum-seizure list, which also he has proved to be in the hand-writing and signature of ASI, Shamim Ahmad, and the

same was marked as Exhibit-8. He has stated that he recorded the statements of the witnesses and after concluding the investigation, he submitted

the charge-sheet against the accused. In his cross-examination, this witness has stated that the production-cum-seizure list was not prepared by him,

nor the sword was produced before him by the accused. He has also admitted that he had not seized the blood from the place of occurrence and he

has stated that the weapon of offence, i.e., the sword was produced by the accused in Mahuatanr Police Station, before the A.S.I. Shamim Ahmad,

where he had surrendered with the sword. He has admitted that he did not get the statement of the informant recorded under Section 164 of the

Cr.P.C. He has denied the suggestion that the accused was arrested from his house. He has also denied the suggestion of making faulty investigation.

P.W.-10 Albert Topno, the ASI of Netarhat Police Station, had produced the weapon of offence, i.e., the sword, in the Court, which was marked

as material Exhibit-I.

The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein the accused had denied the evidence against him. No

witness was examined by the defence. On the basis of the evidence on record, the sole appellant has been convicted and sentenced for the offences

as aforesaid.

Learned counsel for the appellant has submitted that the prosecution has failed to bring home the charge against the accused beyond all reasonable

doubts, inasmuch as, all the eyewitnesses are highly interested witnesses, being the near relatives of the deceased and as such, their evidences are not

very trustworthy. Though P.W.-4 Lalku Kawar has also supported the case as the eyewitness to the occurrence, but he is not an eye witness.

Learned counsel also submitted that the other two witnesses, namely, P.W.-5 Gahnoo Kanwar and P.W.-7 Yadu Kanwar are also only the chance

witnesses, and their evidences are also not very trustworthy. Learned counsel accordingly, submitted that even though the witnesses have supported

the prosecution case, in the facts of this case, the appellant ought to have given the benefits of doubt.

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

charge against the sole accused beyond all reasonable doubts as the all witnesses have fully supported the prosecution case. P.W.-6 Chehroo Kanwar

and P.W.-2 Kawail Devi, who are the son and the wife respectively, of the deceased, have fully supported the case and they have also proved the

motive behind the occurrence, stating that the deceased was practicing as witch doctor in the village and he had also practiced upon the wife of the

accused, who was ill, but as she could not be cured by him, the accused had committed the murder of the deceased. The other family members, P.W.-

1 Basanti Devi, P.W.-3 Binda Devi and P.W.-4 Lalku Kawar have also fully supported the prosecution case, stating that it was this accused who had

assaulted to the deceased by sword, causing his death at the spot. P.W.-5 Gahnoo Kanwar and P.W.-7 Yadu Kanwar, are the co-villagers who had

reached the place of occurrence upon hearing the noise, and they saw the dead body of the deceased with bleeding injuries and they also saw the

accused fleeing away from the place of occurrence along with the sword. The ocular evidence of these witnesses is fully corroborated by the medical

evidence of P.W.-8 Dr. Shamim Raza, who had found five incised wounds on the dead body of the deceased, three of which were on the head, which

were sufficient in the ordinary course of nature to cause the death.

Learned counsel accordingly, submitted that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubts,

and there is no illegality in the impugned Judgement of conviction and Order of sentence.

Having heard learned counsels for both the sides and upon going through the record, we find that all the material witnesses examined in the case

have fully supported the prosecution case. Though it is a fact that P.W.-1 Basanti Devi, P.W.-2 Kawail Devi, P.W.-3 Binda Devi, P.W.-4 Lalku

Kawar and P.W.-6 Chehroo Kanwar, who is also the informant in the case, are the family members of the deceased, but they are the natural

witnesses whose presence at the place of occurrence cannot be doubted. They have stated that they were at the house when the accused came

armed with sword and assaulted the deceased causing his death at the spot. Even if it is taken that P.W.-4 Lalku Kawar is not the eyewitness to the

occurrence, but he was present in the house and when he came out, he saw the accused fleeing away with sword, and he also saw the bleeding

injuries on his father. Their evidences are quite trustworthy, and there is nothing in their cross-examinations to discredit their testimonies. Their

evidence cannot be discarded only on the ground that they are interested witnesses, being the close relatives of the deceased. The prosecution case is

also supported by two co-villagers, who are P.W.-5 Gahnoo Kanwar and P.W.-7 Yadu Kanwar who have stated that upon hearing the noise, they

rushed to the place of occurrence, where they saw the deceased with bleeding injuries and the accused was fleeing away with the sword in his hand.

The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-8 Dr. Shamim Raza, and the post-mortem report proved

by him as Exhibit-3, who had found three sharp cut injuries on the head of the deceased, cutting even the tissues of the brain. The other two sharp cut

injuries were found on both the wrists of the deceased. He has proved that the cause of death was cardio-respiratory failure due to severe

hemorrhage and shock caused by injuries, which were caused by hard, heavy and sharp substance. The weapon of offence, i.e., the sword, was also

produced in the Trial Court below, by the prosecution, which was marked as material Exhibit-I. We are of the considered view, that on the basis of the

evidence brought on record, the prosecution has been able to bring home the charge against the accused for the offence under Section 302 of the

Indian Penal Code, beyond all reasonable doubts.

So far as the conviction and the sentence of the accused under Section 4 of the Prevention of Witch (Daain) Practices Act is concerned, we find

that Section 4 of the said Act is not at all applicable to the facts of this case. Section 4 of the Prevention of Witch (Daain) Practices Act, reads as

follows:-

Damages for causing harm. â€" Any person who cause any kind of physical or mental torture to any women by identifying her as a Witch (Daain)

whether deliberately or otherwise shall be punished with imprisonment for a term which may extend to 6 months or fine of Rs.2,000 or with both.

A plain reading of the Section clearly shows that the deceased being a male, this Section is not at all applicable to the facts of this case. As such, the

conviction and sentence of the appellant for the offence under Section 4 of the Prevention of Witch (Daain) Practices Act, cannot be sustained in the

eyes of law.

Accordingly, the impugned Judgment of conviction dated 19.04.2007 and Order of sentence dated 20.04.2007, passed by the learned Additional

Sessions Judge, F.T.C.-II, Latehar, in S.T. No. 130 of 2006, finding the appellant, Jag Mohan Kanwar, guilty and convicting and sentencing him for the

offence under Section 302 of the Indian Penal Code, are hereby, affirmed. The impugned Judgment of conviction and order of sentence, convicting

and sentencing the appellant for the offence under Section 4 of the Prevention of Witch (Daain) Practices Act, are hereby, set aside. The appellant is

already in custody, undergoing the sentence.

Before parting with this Judgment, we find that the victim of the crime, i.e., P.W.-2 Kawail Devi, who is the widow of the deceased, if alive, is

required to be duly compensated under the Victim Compensation Scheme, under Section 357-A of the Cr.P.C. We accordingly, direct the Member

Secretary, Jharkhand State Legal Services Authority, Ranchi, to take appropriate steps, in this regard in consultation with the concerned District Legal

Services Authority, so that the said victim of crime, if alive, is duly compensated at the earliest. Let a copy of this Judgement be sent to the Member

Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful.

This appeal is accordingly, dismissed with the modification in the Judgment of conviction and order of sentence, as above. Let the Lower Court

Records be sent back to the Court concerned forthwith, along with the copy of this Judgement.