Jumbal Nayak vs State Of Jharkhand

Shree Chandrashekhar, J

The sole appellant has suffered the judgment of conviction under section 302, section 307, section 326 IPC and section 3 and section 4 of

Prevention of Witch (Daain) Practices Act and he has been sentenced to RI for life under section 302 IPC, RI for seven years under section 307 IPC

and RI for five years under section 326 IPC. He has been convicted and sentenced to RI for three months each under section 3 and section 4 of the

Prevention of Witch (Daain) Practices Act, 1999.

The informant of this case is the daughter of Gono Nayak and Karni Devi, both deceased. She is an injured witness. On the basis of her fardbeyan

which was recorded at 7:15 hrs. in the morning of 26.04.2009, Jhinkpani P.S. Case No. 22/09 has been registered against the appellant.

During the trial, the prosecution has examined twelve witnesses; the informant is PW-1.

In her fardbeyan, the informant has stated that it was late night of 25.04.2009 when the appellant entered her house with a tangi. He was abusing

her parents saying that they have killed his daughter Rinki Kumari by practising witchcraft. The appellant first assaulted her father with tangi on his

neck, chest and head and when her mother rushed to save her father she was also assaulted by the appellant indiscriminately. While fleeing away the

appellant assaulted her also whereupon she fell on the ground. Thinking that she has died, the appellant left her house. At that time he was abusing. In

the court, the informant has narrated the incident in the same way she has stated in her fardbeyan. She has spoken about the assault on her mother

and father by the appellant with tangi. She has also stated that the appellant has assaulted her with tangi on her head, neck, hand and cheek. The

appellant was saying that his child has been killed by practicing witchcraft. She has identified her thumb impression on her fardbeyan and she has

stated that she was treated at Government Hospital, Chaibasa.

The conviction of an accused can be recorded on the basis of testimony of a solitary eye witness. Section 134 of the Evidence Act provides that no

particular number of witnesses is required in a trial to prove a fact. Indeed, it is quality of the evidence and not the quantity which matters the most in

a criminal trial. In “Bhimapa Chandappa Hosamani and others Vs. State of Karnataka†reported in “(2006)11 SCC 32â3€, the Supreme Court

has however cautioned that before conviction of an accused is recorded on the basis of testimony of a single witness the court must satisfy itself that

testimony of such witness is of such sterling quality that it leaves no doubt about the complicity and involvement of the accused in the crime. In

“Lallu Manjhi v. State of Jharkhandâ€​ reported in (2003) 2 SCC 401, the Supreme Court has observed as under:

“10. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced

with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly

unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or

discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to

look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single

witness.â€​

During her cross-examination, the informant has stood to her grounds. The defence has not elicited such material fact during her cross-examination

which may make her testimony doubtful. Her saying that no case was registered in respect of witchcraft and when she raised hulla no one from the

village came there are not sufficient to hold that she is not a reliable witness, rather her testimony is corroborated by the medical evidence.

The doctor who has conducted the post-mortem examination has found several sharp-cut injuries on Gono Nayak and Karni Devi. The doctor who

has examined the informant has also found several incised wounds around neck, finger and shoulder of the informant.

Dr. Vinod Kumar Pandit, who has been examined as PW-10, has found the following injuries on Gono Nayak:

“(i) Sharp cut on neck an anterior & left side cutting all the major structures, size 2 ½†x 2†x 1 ½†margin of wounds are sharp

& inverted.

(ii) Sharp cut on left shoulder- 4â€​ x 3â€​ x 2 ½â€​, margin sharp.

(iii) Sharp cut on face on left side 2â€​ x 1â€​ x 1â€​, margin sharp.

(iv) Stomach-small amount of food material present.â€​

He has found the following injuries on Karni Devi:

“(i) A sharp cut on occipital region size 4â€x 2†into brain matter deep with fracture of occipital bone. There is blood and blood inside

cranial cavity with laceration of occipital lobe of brain-wound, margin sharp.

(ii) A sharp cut on face on left side 2â€​x 1â€​x ½â€​, margin sharp.

(iii) A sharp cut on right hand size 2â€​ x 1â€​ x ½â€​ margin sharp.â€​

According to the doctor, their death was caused within 6 hrs. to 48 hrs. of the post-mortem and the injuries were caused by sharp and heavy

object like kulhari.

Dr. Santosh Kumar Srivastava, who has been examined as PW-11, has examined the informant Padma Nayak on the same day and found the

following injuries on her person:

(i) Incised wound on left mandibular region of face 2â€​ x ½â€​ x ½â€​, caused by sharp cut object, simple in nature.

(ii) Abrasion on right side of forehead ¼â€​ x ¼â€​, caused by hard and blunt substance, simple in nature.

(iii) Incised wound on left first finger with dislocation of distal interflasial joint 2â€​ x 1â€​ x 1â€​, caused by sharp cutting object, grievous in

nature.

(iv) Incised wound on left shoulder ½â€​ x ¼â€​ x ¼â€​, caused by sharp cutting object, simple in nature.

(v) Incised wound of left scapular region 4â€​ x 2â€​x 3â€​ caused by sharp cut object, simple in nature.

(vi) Incised wound on right scapular region 4â€​ x 3â€​ x 2â€​.

(vii) Incised wound on left side 2â€​ x 1â€​ x 1â€​.â€​

According to PW-11, the injury Nos. 1 to 5 to Padma Nayak were caused by sharp-cutting object and within 24 hrs. of the post-mortem

examination.

According to the prosecution, the appellant has assaulted the victims in the night of 25.04.2009 and when an information through rumour was

received in the police station the police had arrived at the place of occurrence. The time of information received in the police station is 6:05 a.m. in the

morning. The Investigating Officer has stated that he reached the place of occurrence at 7:15 hrs. on 26.04.2009 and prepared the inquest report at

7:30 a.m. The First Information Report was lodged at 12:15 hrs. on 26.04.2009 and on the same day PW-10 has conducted the post-mortem

examination of the dead bodies of Gono Nayak and Karni 1:00 p.m. and 1:30 p.m. respectively.

On the basis of the aforesaid contemporaneous documents, it can be safely assumed that the appellant was not falsely implicated in the case after

due deliberation and consultation.

The other witnesses are not the eye-witness but they have supported the prosecution’s case on other material aspects.

PW-5 and PW-6 who are the seizure witnesses and PW-2 and PW-3 who are the inquest witnesses have also supported the prosecution’s

case.

Mr. A.K. Sahani, the learned counsel for the appellant has contended that the prosecution has not established that there was source of light at the

place of occurrence and PW-3 has stated that the informant has not revealed name of the appellant and, therefore, her evidence is not reliable and

trustworthy.

It was a night of late April, 2009, that is, a summer night when the occurrence has taken place. During the cross-examination, son of the deceased,

who has been examined as PW-4, has stated that house of the appellant is near his house. The appellant himself has stated during his examination

under section 313 of the Code of Criminal Procedure that his house is in front of house of the informant. He is a neighbour and, therefore, on the

ground of minor inconsistency in the evidence of the informant, identification of the appellant as the one who has killed her parents and assaulted her

cannot be challenged. The informant is an injured witness and, therefore, she had sufficient time to identify the appellant. Minor inconsistency in her

testimony would not render her evidence doubtful. In “A. Shankar Vs. State of Karnataka†(2011) 6 SCC 279, the Hon’ble Supreme Court

has held as under:

In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation,

namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the

omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material

improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies,

embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on

which the evidence can be rejected in its entirety.â€​

The above being the factual scenario, we find that the prosecution has proved presence of the appellant at the place of occurrence and at the time

of occurrence. Assault by the appellant on the victims in the night of 25.04.2009 is also proved. The prosecution has proved that the appellant who is a

co-villager and resides in front of house of the informant has committed the crime.

In the above facts, after having examined the records of Sessions Trial No. 165 of 2009, we find no merit in this criminal appeal and, accordingly,

it is dismissed.

Let lower court records be transmitted to the court concerned, forthwith.

Let a copy of the judgment be communicated to the trial court through FAX.