PARSU SINGH, RAMDHYAN SINGH vs STATE OF JHARKHAND

H.C. Mishra, J

As both these appeals arise out of the same impugned Judgment, they were heard together and are being disposed of by this common Judgment.

Heard learned counsels for the appellants and learned counsel for the State.

Both these appellants are aggrieved by the Judgment of conviction and Order of Sentence dated 18.12.2010, passed by the learned Addl. Sessions

Judge, F.T.C.-I, Palamau at Daltonganj, in Sessions Trial No. 250 of 2006, whereby, both these appellants have been found guilty and convicted for

the offences under Sections 302 / 149 of the Indian Penal Code, and Sections 3 and 4 of the Prevention of Witch (Daain) Practices Act. Upon hearing

on the point of sentence, the appellants have been sentenced to undergo rigorous imprisonment for life and fine of Rs. 10,000/- for the offence under

Sections 302 / 149 of the Indian Penal Code. However, no separate sentence was passed for the offences under Sections 3 and 4 of the Prevention of

Witch (Daain) Practices Act.

The case relates to double murder, and the prosecution case was instituted on the basis of the fardbeyan of Malti Kumari, aged about 13 years, who

is the daughter of both the deceased wife and husband, recorded on 28.7.2005, at about 6.00 P.M., near the dead body of her father, at Sadar

Hospital, Daltonganj, wherein, she has stated that on the same day at about 9.00 A.M. in the morning, her father had gone to Chhatarpur Bazar, for

making purchases of household articles. At about 10.00 A.M., she was taking bath in the courtyard of her house and her mother Ratni Devi was

sewing old torn clothes by thread and needle in the verandah of her house. In the meantime, her co-villagers Sadhu Singh armed with balua, Parsu

Singh and Abhay Singh, both sons of Sadhu Singh, armed with tangi, the son of   Asman Singh, whose name she did not know, but was living in

her village, armed with tangi, Patiya Devi wife of Sadhu Singh armed with balua and Mantorwa Devi armed with tangi, came to the verandah of her

house and they caught her mother. Sadhu Singh and Parsu Singh assaulted her mother by balua and tangi on her neck with the intention to cause her

death, badly injuring her. They also threatened the informant to kill her if she raised noise, due to which she kept mum. Thereafter, the accused

persons fled away. She started crying and she raised alarm, whereupon the persons nearby came there. Her uncles, who were working in the

agricultural field, were also informed, whereupon her uncles Sipahi Singh and Bigan Singh also came and they were making arrangements for taking

her mother for treatment to Chhattarpur. In the meantime, her uncles were informed that the accused persons had also committed the murder of her

father, Muneshwar Singh, cutting his neck, and had thrown the dead body in the way. As her mother was alive, a vehicle was arranged and her uncles

brought the dead body of her father and her injured mother to Chhattarpur hospital, from where, they were asked to go to Daltonganj, and thereafter,

they came to Daltonganj Sadar Hospital, where her mother was undergoing treatment. She has stated that the occurrence had taken place, as the

accused persons were branding her mother as Daain. On the basis of the fardbeyan, Chhattarpur P.S. Case No. 66 of 2005, corresponding to G.R.

No. 1202 of 2005, was instituted for the offences under Sections 147, 148, 149, 341, 448, 302 of the Indian Penal Code, and Sections 3 and 4 of the

Prevention of Witch (Daain) Practices Act, against the aforesaid six named accused persons, and investigation was taken up. After investigation, the

charge sheet was submitted against the accused persons showing the accused Sadhu Singh and Mantorwa Devi as absconders. 5. After commitment

of the case to the Court of Session, charge was framed against the remaining accused persons, namely, Parsu Singh,   Abhay Singh, Ramdhyan

Singh (who is son of Asman Singh) and Patiya Devi, for the offences under Sections 148, 302 / 149 of the Indian Penal Code, and Sections 3 and 4 of

the Prevention of Witch (Daain) Practices Act, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. It

may be stated that in course of trial, Abhay Singh was declared to be a juvenile, and his trial was separated and the trial proceeded against three

remaining accused persons, namely, Parsu Singh, Patiya Devi and Ramdhyan Singh.

In course of trial, seven witnesses were examined on behalf of the prosecution including the Doctor, who had conducted the post-mortem

examinations on the dead bodies of both the deceased. The Investigating Officer of the case has not been examined and as such, the fardbeyan,

formal FIR, the inquest report and post-mortem reports were proved by a formal witness P.W.-2 Ranjneesh Kumar, which were marked as Exhibits-

2, 3, 4, 1/1, 4 and 4/1 respectively. Out of the material witnesses examined by the   persecution, P.W.-5 Ramsundar Singh, P.W.-6 Balkesh

Singh and P.W.-7Â Â Â Kamta Prasad Yadav have been declared hostile and they have not supported the prosecution case at all.

The prosecution case is supported by the only eyewitness P.W.-3 Malti Kumari, the daughter of the deceased persons. She has stated that the

occurrence had taken place about three years ago at about 9.00 A.M., in the morning. She was at her house and her mother was sewing torn clothes.

Her father had gone to Chhattarpur. In the meantime, Sadhu Singh, Patiya Devi, Parsu Singh, Mantori Devi, Abhay Singh and Ramdhyan Singh came

there and the accused persons assaulted her mother by balua and tangi cutting her neck and they threatened her that if she raised the noise, she would

also be killed. When the accused persons fled away, she raised alarm, whereupon, the persons nearby came there. Her uncles Sipahi Singh and Bigan

Singh were informed in the agricultural field where they were working, whereupon, they came and they were taking her mother for treatment to

Chhattarpur hospital, but in the meantime, they were informed that the accused persons had also committed the murder of her father while he was

going to Chhattarpur. The dead body of her father and her injured mother were brought to Chhattarpur hospital, from where they were referred to

Daltonganj. At Daltonganj hospital, her mother died during treatment. She has stated that the police arrived at Daltonganj hospital, where her

fardbeyan was recorded, which was read over to her, whereupon she had put her signature. She has identified her signature on the fardbeyan, which

was marked as Exhibit-2/1. She has identified the accused Patiya Devi in the Court, and she claimed to identify the other accused persons also, who

were not present in the Court. This witness was put to a lengthy cross-examination, wherein, she has reiterated that the accused persons were

branding her mother as Daain, and they used to quarrel for the same. In her cross-examination, she has also stated that she had seen the accused

persons assaulting her mother by balua and tangi, but she had not seen the accused persons committing the murder of her father. They were only

informed by the villagers that these accused persons had committed the murder of her father. In her cross-examination, it was taken by the defence,

that at the time of occurrence, Sadhu Singh entered into her house armed with balua. He was followed by Parsu Singh, who was armed with tangi,

and they were followed by Ramdhyan Singh armed with tangi. Abhay Singh armed with tangi, Patiya Devi armed with balua, Mantori Devi armed

with tangi and all of them had assaulted her mother. At that time she was taking bath in the open courtyard of her house and her mother was sitting on

the verandah sewing clothes. She has again stated in her   cross-examination that Sadhu Singh first assaulted her mother by balua and Parsu

Singh had assaulted her mother by tangi on her neck, whereupon her mother fell down on the verandah with bleeding injuries, and thereafter all the

accused persons fled away. She has also stated that the police had come to the place of occurrence, and had made investigation and she had seen the

dead body of her father. She has denied the suggestion that she had not seen the occurrence and she has reiterated that she had seen her mother

being assaulted. She has denied the suggestion to have falsely implicated the accused persons.

P.W.-1 Sipahi Singh is the uncle of the deceased. He has stated that the occurrence had taken place about two years ago at about 10.00 AM. He

was working in his field when he was informed that his sister-in-law (Bhabhi) was assaulted and killed by Sadhu Singh, Parsu Singh, Abhay Singh,

Ramdhyan Singh, Patiya Devi and Mantorwa Devi by tangi. Upon getting the information, he rushed to the house and saw his sister-in-law (Bhabhi)

lying on the verandah with bleeding injuries in her neck. She was still writhing in pains and there was lot of blood. His niece was crying there. His

brother Bigan Singh, who was also working with him in the field, had came there with him. They arranged a vehicle for bringing his injured Bhabhi to

Chhattarpur hospital, and when they had proceeded about half kilometers from the house, they saw the dead body of his brother, Muneshwar Singh,

who was also assaulted by tangi on his neck and they were informed that the same accused persons had committed the murder of his brother also. He

has also stated that the accused persons were branding her Bhabhi as Daain, due to which they had committed the murder. He has also identified his

signature on the inquest report, which was marked as Exhibit-1. He has also identified the accused Parsu Singh in the Court, claiming to identify the

other accused persons, who were not present in the Court. In his cross-examination, he has stated that the deceased were his brother and Bhabhi. He

has also admitted that he had not seen the occurrence and he had informed the police about the occurrence, as informed to him by his niece. He has

also denied the suggestion of falsely implicating the accused persons.

P.W.-4 Jaywant Lakra is the Medical Officer, who had conducted the post-mortem examinations on the dead body of both the deceased on

29.7.2005. On the dead body of Ratni Devi, he had found the following   ante-mortem injuries:-

(i) Incised Wound â€" 3â€​x1/2â€​ x bone deep left side neck;

(ii) Incised wound- 3â€​x1/2â€​ x bone deep left side neck shoulder.

 Internal Examination:-

 (I) fracture of cervical vertebral bone.

(ii) fracture of clavicular bone left side.

(iii) carotid artery cut out.

  Heart - both chamber empty.

 He has stated that cause of death was due to shock and hemorrhage due to the above mentioned injuries caused by heavy sharp object.

  On the same day, he had conducted the post-mortem examination on the dead body of Muneshwar Singh and had found the following ante-

mortem injuries:-

(i) Incised Wound â€" 1 ½â€​x1/2â€​ x muscle deep in front of neck.

(ii) Incised wound- 1â€​x1/2â€​ x muscle deep in front of neck.

(iii) Incised wound- 2 ½â€​ x ½â€​ in front of neck. Trachea and esophagus cut out.

 Internal examination:-

 Heart - both chamber empty.  He has stated that cause of death was due to shock and hemorrhage due to the above mentioned injuries caused by

sharp object. He has identified both the post-mortem reports to be in his pen and signature, which were earlier marked as Exhibit-4 and 4/1.

The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein, they have denied the evidence against them. No

evidence was adduced by the defence.

Learned counsels for the appellants have submitted that the impugned Judgment of conviction and Order of sentence cannot be sustained in the

eyes of law, inasmuch as, though three accused persons were facing the trial, out of whom, two accused appellants have been convicted by

the   Trial Court, but the accused Patiya Devi has been acquitted of the charge on the basis of the same evidence, giving her the benefits of

doubt. It is submitted by learned counsels for the appellants that accordingly, the appellants were also entitled to the same benefits. It is further

submitted that the Investigating Officer of the case has not been examined by the prosecution, causing serious prejudice to the defence. It is further

submitted that the case is based on the testimony of the sole eyewitness, who is highly interested witness, being the daughter of the deceased persons,

and accordingly, it was not safe to base the conviction of the accused persons only on the testimony of sole eyewitness. In support of his contention,

learned counsels placed reliance upon the decisions of the Hon'ble Supreme Court of India, in State of Haryana Vs. Inder Singh & Ors, reported in

(2002) 9 SCC 537 and Joseph Vs. State of Kerela, reported in (2003) 1 SCC 465, wherein, it is laid down that when there is a solitary eyewitness to

the incident, his evidence must be confidence-inspiring, and has to be accepted with a amount of caution and after testing it on the touchstone of the

evidence tendered by other witnesses. Placing reliance upon these decisions, learned counsels submitted that since on the basis of the evidence of

P.W.-3 Malti Kumari, one of the accused persons has been acquitted after trial giving her the benefits of doubt, both these appellants were also

entitled for the same relief.

Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the occurrence had taken place in the house of

deceased, where only her daughter was present and she has fully supported the case as eyewitness to the occurrence. It is submitted that she has

clearly stated that at the time of occurrence, all the six named accused persons, came armed with deadly weapons, such as tangi and balua, and no

sooner they arrived at the place of occurrence, they assaulted the mother of the informant, causing grievous injuries on her neck, which ultimately

proved fatal. She has clearly stated that accused Parsu Singh had assaulted her mother by tangi on her neck, along with Sadhu Singh, and

accused   Ramdhyan Singh had also came there armed with tangi. Learned counsel submitted that this clearly shows that all the accused

persons were forming unlawful assembly armed with deadly weapons, and in prosecution of the common object of unlawful assembly, they had

assaulted the deceased. The dead body of the father of the informant was found in the way to Chhattarpur, at a distance of about half kilometers from

his house, and P.W.-1 Sipahi Singh, as also P.W.-3 Malti Kumari had clearly stated that they were informed that these accused persons had

committed the murder of her father also. P.W.-1 Sipahi Singh has also deposed as hearsay witness, as informed by P.W.-3Â Malti Kumari, as

regards the assaults made on her mother. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-4 Jaywant

Lakra, who had found two incised wounds on the neck of mother of the informant and three incised wounds on the neck of father of the informant.

The injuries were sufficient to cause death in ordinary course of nature. 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.

Having heard learned counsels for both the sides and upon going through the record, we find that two accused persons, namely, Sadhu Singh and

Mantorwa Devi were absconders in the case. The trial was faced by three accused persons, namely, Parsu Singh, Patiya Devi and Ramdhyan Singh.

One accused Abhay Singh had been declared juvenile. The impugned Judgment shows that accused Patiya Devi had been acquitted by the Trial Court

below giving her the benefits of doubt, stating that no role was stated against her by P.W.-3. So far as the remaining two appellants, namely, Parsu

Singh and Ramdhyan Singh are concerned, there is direct and specific allegation in the evidence of P.W.-3 Malti Kumari that while the accused

persons came and assaulted her deceased mother, to which, she was an eyewitness, accused Parsu Singh had assaulted her by tangi, and accused

Ramdhyan Singh was also present with the tangi in his hand. All the accused persons forming an unlawful assembly armed with deadly weapons had

entered into the courtyard of the deceased and without any instigation, they had assaulted the deceased, which clearly shows that all the accused

persons were having the common object to commit the murder of the deceased mother and in prosecution of the common object of that unlawful

assembly, her mother was assaulted by two persons, namely, Sadhu Singh and Parsu Singh, by tangi and balua on her neck. Two incised wounds were

found on her neck, which is apparent from the evidence of P.W.-4 Jaywant Lakra and the post-mortem report proved by him as Exhibit-4. P.W.-1

Sipahi Singh, was also informed by P.W.-3 Malti Kumari about the occurrence. Both these witnesses were informed about the committing of murder

of the father of the informant by the accused persons, and the medical evidence of P.W.-4 Jaywant Lakra and the post-mortem report proved by him

as Exhibit-4/1, show that there were three incised wounds on the neck of that deceased. The manner of assault upon both the deceased is same, i.e..

both of them were assaulted on the neck only, by sharp cutting weapons. This clearly indicates that the offence was committed by the same set of

accused persons in prosecution of the common object of the unlawful assembly, of which they were members at the time of occurrence.

Even, though it is a fact that the investigating officer of the case has not been examined in the case, but we find that this has caused no prejudice

to the defence, inasmuch as, no suggestion was given to P.W.-3 Malti Kumari, about any statement made by her before the police, which was

contrary to her deposition. Though P.W.-3 Malti Kumari is the solitary eyewitness to the occurrence, but her evidence is quite trustworthy and

reliable, and confidence-inspiring, inasmuch as, she was the only person present in the house, when her mother was being assaulted in her presence,

and even though she was put to a lengthy cross-examination, there is nothing therein to discredit her testimony.

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In Bhagwan Jagannath Markad Vs. State of Maharashtra, reported in (2016) 10 SCC 537, the Hon'ble Apex Court, has clarified the law on both

the points involved in this case, as follows:-

While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in

mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the

core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when

discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. -------------- .

 In the same decision the Apex Court has further continued to lay down the law as follows:-

An offence committed in prosecution of common object of an unlawful assembly by one person renders members of unlawful assembly sharing

the common object vicariously liable for the offence. The common object has to be ascertained from the acts and language of the members of the

assembly and all the surrounding circumstances. It can be gathered from the course of conduct of the members. It is to be assessed keeping in view

the nature of the assembly, arms carried by the members and the behaviour of the members at or near the scene of incident. Sharing of common

object is a mental attitude which is to be gathered from the act of a person and result thereof. No hard-and-fast rule can be laid down as to when

common object can be inferred. When a crowd of assailants are members of an unlawful assembly, it may not be possible for witnesses to accurately

describe the part played by each one of the assailants. It may not be necessary that all members take part in the actual assault. In Gangadhar Behera,

this Court observed: [(2002) 8 SCC 381 pp. 398-99, para 25]

“25. The other plea that definite roles have not been ascribed to the accused and therefore Section 149 is not applicable, is untenable. A four-Judge

Bench of this Court in Masalti case observed as follows: (AIR 1965 SC 202, p. 210, para 15)

‘15. Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the

assailants, that evidence should not have been accepted. This criticism again is not well founded. Where a crowd of assailants who are members of an

unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for

witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the

intended victims, it may not be necessary that all of them have to take part in the actual assault.’â€​ (Emphasis supplied).

In view of the law laid down by the Apex Court, as above, we are of the considered view that the prosecution has been able to bring home the

charges against both these appellants for the offence under Sections 302 read with Section 149 of the Indian Penal Code and Sections 3 and 4 of the

Prevention of Witch (Daain) Practice Act. Simply for the reason that one lady co-accused Patiya Devi has been acquitted of the charges, giving her

the benefits of doubt, by the Trial Court below, and the State has not filed any appeal against that Judgment of acquittal, it cannot be presumed that the

prosecution has failed to prove the charges against these appellants also, beyond all reasonable doubts. We do not find any illegality in the impugned

Judgment of conviction and Order of sentence passed by the learned Trial Court below against these appellants.

For the foregoing reasons, the impugned Judgment of conviction and Order of sentence dated 18.12.2010, passed by the learned Addl. Sessions

Judge, F.T.C.-I, Palamau at Daltonganj, in Sessions Trial No. 250 of 2006, convicting and sentencing the appellants Parsu Singh and Ramdhyan Singh,

for the offences under Sections 302 / 149 of the Indian Penal Code, and also convicting them for the offences under Sections 3 and 4 of the

Prevention of Witch (Daain) Practices Act, are hereby, affirmed. The appellant Parsu Singh is already in custody, undergoing the sentence. Appellant

Ramdhyan Singh is on bail. His bail is hereby, cancelled and he is directed to surrender in the Court below to serve out the sentence passed by the

Trial Court below. The Trial Court below is also directed to issue process compelling the surrender / production of appellant Ramdhyan Singh for

serving out the sentence.

Before parting with this Judgment, we wish to record that we find it to be a fit case for granting compensation to P.W.-3 Malti Kumari, who is the

informant in the case and the daughter of both the deceased, under the Victim Compensation Scheme under Section 357-A of the Cr.P.C. She is

certainly the victim of crime, as she has lost both her parents in the offence. We 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 P.W.-3 Malti

Kumari, is duly compensated under the Victim Compensation Scheme at the earliest. Let a copy of this Judgment be sent to the Member Secretary,

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

We also deem it to be a fit case to direct the Trial Court below, that in case the absconding co-accused Sadhu Singh and Mantorwa Devi are still

absconding, and yet not put to trial separately, the Trial Court below shall take fresh steps once again to secure the surrender / production of those

absconding accused persons, and to ensure that they are put to trial at the earliest.

We do not find any merit in both these appeals, which are accordingly, dismissed. Let the Lower Court Records be sent back to the Court

concerned forthwith, along with the copy of this Judgment.