Jitu Tirkey vs State of Jharkhand

Shree Chandrashekhar, J

The sole appellant has challenged the judgment of conviction under section 302 IPC and under section 3/4 of the Prevention of Witch (Daain) Practices Act, 1999 dated 01.05.2007, and the order of sentence of R.I for life and fine of Rs. 5000/- under section 302 IPC and in default R.I for three months dated 05.05.2007, passed by the learned Additional Sessions Judge, Fast Track Court No.-I, Gumla in Sessions Trial Case No. 210 of 2006.

The appellant who was arrested on 17.06.2006 in course of investigation, after the judgment of conviction in Sessions Trial Case No. 210 of 2006 is serving the sentence awarded to him.

On the basis of the written report submitted by Karma Tirkey, the informant, to the officer-in-charge, P.S.-Basia on 16.06.2006, Basia P.S Case No. 66 of 2006 was registered against the appellant under section 302 IPC. In his written report, the informant, son of the deceased, has stated that his uncle namely, Jitu Tirkey has killed his mother on 16.06.2006. The written report was submitted by him as an information to the police of the aforesaid occurrence. He has further stated that dead body of his mother is lying in the house. During the course of investigation, confessional statement of the appellant was recorded and at his instance a blood-stained Dauli was recovered from the stack of rice in his house. After the investigation, charge-sheet was submitted against the appellant under section 302 IPC and section 3/4 of the Prevention of Witch (Daain) Practices Act, 1999. During the trial, the prosecution has examined altogether 7 witnesses; Manjula Tirkey-P.W.1 is the daughter of the deceased and Manish Tirkey and Karma Tirkey, son of the deceased, have been examined as P.W. 2 and P.W. 3 respectively. The doctor who has conducted the post-mortem examination over the dead body has been examined as P.W.6 and the investigating officer is P.W. 7.

The doctor-P.W.6 has found the following injuries on Dukhani Devi :

"External injury

(i) Sharp cut injury on right side of neck 4"X1"X3" cutting skin, sub-cutaneous tissues, muscle, great vessels and nerves and IInd cervical vertebra.

(ii) Lacerated cut injury over right palm near thumb of size- 1"X 1/2" X muscle deep."

In the opinion of the doctor, injury no. (i) was caused by heavy sharp cutting weapon and the injury no. (ii) has been caused by hard blunt substance. The doctor has opined that the death was caused as a result of shock and hemorrhage due to injury no.(i).

The learned Additional Sessions Judge has recorded a finding that the informant, his younger brother and sister are the eye-witnesses to the occurrence.

Mr. Pankaj Srivastava, the learned Amicus has contended that: (i) presence of P.W. 2 and P.W. 3 at the place of occurrence is doubtful, (ii) recovery of blood-stained Dauli is not proved, (iii) it is not proved that the Dauli allegedly recovered from the house of the appellant was the crime weapon as there is no serological report and the said Dauli has not been produced in the court, and (iv) cryptic examination of the appellant under section 313 Cr.P.C has caused serious prejudice to him.

As against the above, the learned A.P.P referring to the eye-witness account of the occurrence led through P.W.1, P.W. 2 and P.W. 3 has contended that the judgment of conviction of the appellant under section 302 IPC and under section 3/4 of the Prevention of Witch (Daain) Practices Act, 1999 is well-founded.

True, in the First Information Report the informant has not disclosed presence of his minor brother and sister in the house at the time of occurrence, but then, a glance at the written report dated 16.06.2006 would reveal that it was just an information about the occurrence given to the police. On the aforesaid omission in the First Information Report all that we can say is that on that basis the prosecution's entire case would not fall. The prosecution witnesses-P.W. 1, P.W. 2 and P.W. 3 have remained unshaken during their cross-examination, barring minor inconsistencies in their evidence in the court. The informant has stated that on 16.06.2006 it was 3 p.m in the afternoon when the appellant armed with Dauli entered his house. At that time his mother namely, Dukhani Devi was engaged in her domestic work. Son of the deceased namely, Manish Tirkey who has been examined as P.W. 2 was minor at the time of occurrence. The learned Additional Sessions Judge has tested his maturity and after satisfying himself recorded his statement. He has also deposed that the appellant has assaulted his mother with Dauli on her neck due to which she died on the spot. P.W. 1 is the daughter of the deceased. She has spoken about the appellant nursing a grudge against her mother believing her witch (Daain). She has narrated the incident in which the appellant has assaulted her mother. From the evidence of the eye-witnesses-P.W. 1, P.W. 2 and P.W.3, we find that presence of the appellant at the place of occurrence and assault by him upon Dukhani Devi are established. Other prosecution witnesses have claimed that they reached the place of occurrence after they heard cries. On recovery of a blood-stained Dauli from the stack of rice from the house of the appellant, we find that the investigating officer has committed mistakes in course of investigation and as rightly pointed by Mr. Pankaj Srivastava, the learned Amicus it creates some doubt on the confessional statement of the appellant, but then, we are of the opinion that even excluding this piece of incriminating material from consideration the prosecution has been able to prove assault by the appellant on Dukhani Devi.

Now, we shall consider whether the appellant has been rightly convicted under section 302 IPC.

The doctor-P.W.6 has rendered an opinion that the injury no. (i) was caused by a single blow and the injury no. (ii) was possible from the blunt portion of the same weapon, however, it is not specified by P.W.6 by which weapon injury no. (i) could have been caused. We thus find that opinion of the doctor to the extent that injury no.(ii) can be caused by hard blunt substance can be considered but it cannot be held that it has been caused by the same weapon. We find that there is no allegation by any eye-witness of assault by the appellant upon Dukhani Devi by a hard blunt substance.

A written report was given in the police station at 19.00 hrs. on 16.06.2006, the police has visited the place of occurrence on 16.06.2006 itself, however, the inquest report would reveal that it was prepared on 17.06.2006 (interpolation/cut marks found). The appellant was arrested on 17.06.2006 at 22.30 hrs. and his confessional statement was recorded at the same time. P.W. 2 has stated that Dauli was about one foot in size, however, the seizure list witness-P.W.4 has admitted that it was not sealed in his presence. The investigating officer has also admitted that the material object was not sealed by him. We also find that examination of the accused under section 313 Cr.P.C was cryptic. Only three questions were put to him; the last question was, "what do you have to say in your defence".

In view of the aforesaid inconsistencies in the prosecution's case and the prejudice caused to the appellant during the trial in Sessions Trial Case No. 210 of 2006, we are of the opinion that conviction of the appellant under section 302 IPC should be converted under section 304 Part-I IPC. On the question of sentence under section 304 Part-I IPC, in view of assault by the appellant on neck of Dukhani Devi we hold that he had requisite intention as envisaged under section 304 Part-I IPC and, accordingly, he is sentenced to undergo R.I for Ten years.

His conviction under section 3/4 of the Prevention of Witch (Daain) Practices Act, 1999 is affirmed.

Accordingly, the judgment of conviction dated 01.05.2007 and the order of sentence dated 05.05.2007 of R.I for life and fine of Rs. 5000/- imposed upon the appellant in Sessions Trial Case No. 210 of 2006 are set-aside.

Criminal Appeal (DB) No. 1118 of 2007 is partly allowed.

The appellant namely, Jitu Tirkey who has served more than 13 years of sentence shall be set free forthwith, if not wanted in connection to any other case.

We appreciate the able assistance rendered by Mr. Pankaj Srivastava, the learned Amicus. He has prepared a list of dates and short synopsis on the prosecution evidence. The assistance rendered by Mrs. Priya Shrestha, the learned A.P.P is also appreciated.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). He shall be paid Rs. 5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017.

Let a copy of the Judgment be transmitted to the court concerned through FAX.

Let the lower-court records be sent to the court concerned, forthwith.