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Judgment
By Court Heard learned counsel for the appellant and learned counsel for the State.
This criminal appeal is directed against the Judgment of Conviction dated 12th April, 2010 and Order of sentence dated 15th April, 2010
passed by the learned 1st Additional Session Judge, West Singhbhum at Chaibasa in Session Trial No.48 of 2008, whereby the sole appellant was
found guilty and was convicted for offence punishable under Section 302 of the Indian Penal Code and Sections 3, 4 of the Prevention of Witch
(Daain) Practices Act and was sentenced to undergo rigorous imprisonment for life and fine of Rs.1000/- only under Section 302 of the Indian
Penal Code and was also sentenced to undergo simple imprisonment of three months under Section 3, 4 of the Prevention of Witch (Daain)
Practices Act.
The prosecution case is based on the fardbeyan of one Raghunath Munda, recorded on 15.10.2007 at about 11.45 a.m., wherein the informant
has stated that on 14.10.2007, after watching a football match which was going on at Icha Kuchi when he came to his home at about 05.30 p.m.
in the evening, he saw that his wife Sukurmundi Munda was assaulted by the appellant by a Sabal and was saying that you have killed my child.
When the informant reached there the appellant fled away with the sabal in her hand. Upon reaching to his wife, the informant saw his wife in pool
of blood and was restless. On raising cry, the neighbours assembled and by that time his wife had died.
On the basis of the aforesaid fardbeyan, Chakradharpur Police Station Case No.144 of 2007 was registered for offence punishable under
Section 302 of the Indian Penal Code and Sections 3, 4 of the Prevention of Witch (Daain) Practices Act against the appellant. The police
investigated the case and after completion of investigation, submitted chargesheet against this appellant under Section 302 of the Indian Penal Code
and Sections 3, 4 of the Prevention of Witch (Daain) Practices Act. Subsequently, cognizance was taken and the case was committed to the Court
of Session, for trial. The Trial Court, after commitment, framed charge against this appellant. The charge was read over and explained to the
appellant and upon the appellant pleading ""not guilty"", he was put on trial.
Altogether 8 (eight) witnesses were examined by the prosecution to prove its case, who are P.W.1 Raghunath Munda (Informant), P.W.
Sonamani Munda, P.W.3 Narender Jamuda, P.W.4 Man Singh Jamuda, P.W.5 Ratan Jamuda, P.W.6 Lakshman Munda, P.W.7 Phanibhushan
Marandi and P.W.8 Dr. Swapan Kumar Singh.
(a) Out of these eight witnesses, P.W.3 is hostile witness. The said witness had stated that he has heard that someone has murdered
the deceased. He has denied whatever he stated before the police.
(b) P.W.4 is also hearsay witness. He stated that from the villagers, he could come to know that the deceased was murdered by
someone, but he stated that he does not know as to who had killed the deceased. He admitted his signature of the seizure list, which
was prepared when the blood stained earth, the sabal (murder weapon) were seized. His signature on the seizure list was marked as
Exhibits 1/1 and 1/2.
(c) P.W.5 is also a hearsay witness, who stated that from the villagers he heard that there was quarrel between the deceased and the
appellant and because of the said quarrel, the deceased died.
(d) P.W.6 is the son of the deceased, who is also not an eye witness and even was not present at the place of occurrence. He stated
that at the time of occurrence, he was at Pune.
(e) P.W.7 Phani Bhushan Marandi is the investigating officer of this case, who had recorded the fardbeyan of the informant, which
was marked as Exhibit 2. He also prepared the inquest report in carbon copy, which was marked as Exhibit 3. He has taken the
restatement of the informant and prepared the seizure list, which was marked as Exhibit 4. He proved the signature of witnesses in the
seizure list, which was marked as Exhibit 4/1. He also proved the formal FIR which was marked as Exhibit 5. After investigation he
had submitted the chargesheet in this case.
(f) P.W.8, Dr. Swapan Kumar Singh, is the doctor who had conducted the postmortem. He has stated that upon examination, the
following ante-mortem injuries were found: -
External Examination : -
(1) Lacerated wound 3"" x 1/2 x intracranial deep over left side occipital area with fracture of occipital bone.
On dissection:-
Head and neck - intracranial cavity contained blood clot. Occipital cortext thorax - lungs-pale, heart-empty.
Abdomen - stomach contained undigested food particles, other viscras-NAD.
Time since death - within 12 to 48 hours due to presence of rigor mortis in all limbs.
Cause of death - Haemmorrhage and shock due to head injury caused by hard and blunt object, such as may be by iron sabal.
This witness has admitted that postmortem report is prepared by him and bears his signature and the same was marked as Exhibit 6.
In cross-examination, he stated that the nature of injury found on the body may be possible by fall from sufficient height on rocky
substance.
Thus, the main witnesses to support the prosecution case are P.W.1, the informant, who claims to be the eye witness and P.W.2,
who was present at the place of occurrence.
Now we would like to discuss the statement of P.W.1. He is the husband of the deceased. He says that after selling Bengal grams (chana), he
returned to his house and he was basking fire lit by him when the appellant struck the deceased by a sabal on the right side of her temple, as a
result of which the deceased fell down and died. She was asking her whether her son would be cured or not. He stated that Parwati also chased
him, but, he escaped and took shelter in the room and closed the door. He stated that on the next day, he informed the police. Police, villagers,
Village Munda and Dakua came to the place of occurrence. His statement was recorded. The fardbeyan was marked as Exhibit 1. He identified
the accused in Court and stated that she is his niece. In cross-examination, he stated that at one point of time, there was some land dispute
between the family of the appellant and his family. He stated that at the time of occurrence, except him and his wife (deceased) there was no one
present. He stated that his daughter-in-law was feeding her child in the other room.
P.W.2 is Sonamuni Munda, who stated that she went to the shop and after returning, as her children were crying, she was feeding them. Parwati
and Sukurmuni were talking in their room, when Parwati assaulted the deceased with a sabal. She stated that she has not heard any sound or noise
when the assault was made because the children were shouting. She in paragraph 2 has categorically stated that she had seen Sukurmuni and
Parwati, the deceased and the appellant, talking in their room and there was no person present in the said room.
After conclusion of the prosecution evidence, appellant was examined under Section 313 of the Code of Criminal Procedure. He denied the
occurrence.
The Court below, thereafter, convicted the appellant under Section 302 of the Indian Penal Code and Sections 3, 4 of the Prevention of Witch
(Daain) Practices Act and sentenced her to undergo rigorous imprisonment for life with a fine of Rs.1000/- for the offence under Section 302 of
the Indian Penal Code and simple imprisonment for three months for the offence under Sections 3, 4 of the Prevention of Witch (Daain) Practices
Act.
Learned counsel, appearing on behalf of the appellant, submits that the entire case hinges on the evidence of P.W.1. He submits that if the
depositions are carefully scrutinized, it will be clear that P.W.1 is not the eye witness and in fact, was not present at the place of occurrence. He
submits that if the deposition of P.W.1 is discarded, there is no material against the petitioner in the entire case. He further submits that the genesis
of the prosecution is branding of the deceased as witch by this appellant, but, surprisingly, none of the witnesses have whispered this fact in their
evidence. It is submitted that the prosecution has, thus, failed to prove the genesis of the occurrence, which is fatal for it. Thus, when the motive is
not proved, the appellant is liable to be acquitted. It is also submitted that the alleged ocular evidence so far it relates to the assault, does not match
with the medical evidence. It is also submitted that it is the case of the prosecution that only one blow was given by the appellant and that being so,
the case cannot come within Section 302 of the Indian Penal Code.
Learned A.P.P., on the contrary, argues that P.W.1 is the eye witness, who had seen the occurrence. She submits that his testimony cannot be
doubted. She further submits that when there is an eye witness to the occurrence of commission of murder, the motive need not be proved. She
also submits that even if a single blow is given, if the same is fatal, with such magnitude and it was within the knowledge of the appellant that the
same may result in death, then conviction under Section 302 is very well justified. She lastly submits that the prosecution case stood firmly proved
and thus, it needs no interference.
In this case, the appellant has been convicted under Section 302 of the Indian Penal Code and Sections 3, 4 of the Prevention of Witch
(Daain) Practices Act.
So far as the charge of Prevention of Witch (Daain) Practices Act is concerned, we find that neither the P.W.1 nor the P.W.2 have stated in
their evidence that the deceased was being branded as a witch by this appellant. P.W.1 only states that Parwati was saying whether her son would
be cured or not. Further, P.W.2 said nothing on the point of branding the deceased as witch by the appellant nor there is any evidence to attract an
offence under the said Act. We find that there is no material to substantiate and prove the charge under Section 3, 4 of the Prevention of Witch
(Daain) Practices Act. Thus, the prosecution has failed to prove the said charge as against the appellant.
So far as conviction under Section 302 of the Indian Penal Code is concerned, the main evidence, upon which the entire prosecution case
hinges is the statement of P.W.1 and P.W.2. P.W.1 claims to be the eye witness, who had seen the occurrence. He stated that he was in the house
and was basking fire when this appellant had given a sabal blow on the right temple of the deceased, as a result of which she died. In cross
examination, he says that at one point of time, there was some dispute between both the families. P.W.2 was also present in the next room. She
stated that she had heard there was conversation going on between the appellant and the deceased. In examination-in-chief, she categorically
stated that in the said room, there was only the appellant and the deceased and no other person was present. In the entire evidence of P.W.2,
there is no whisper about the presence of P.W.1, i.e., the informant at the place of occurrence. In fact, she categorically stated that in the room
there was no one else except these two persons, i.e., the appellant and the deceased. Further, as per P.W.1, the assault was on the right side and
one blow was given, but, surprisingly, the doctor found injury on the left side of the occipital region with the fracture of occipital bone. In the
inquest report, which is Exhibit 3, it has also been mentioned that the injury is on the left side.
From the evidence of P.W.2, a doubt is casted as to whether P.W.1 was actually present at the place of occurrence or at all had seen the
occurrence or not. Further, there can be a reason for false implication of the appellant, as P.W.1 had himself said that there was some dispute
between both the families.
Further, from the evidence also I find that no one had seen this appellant entering in the house or in the room of the deceased with the murder
weapon. This clearly suggests that there was no intention also on the part of the appellant to commit murder. The prosecution has failed to establish
from where the appellant has got the sabal. Thus, all these factors create a doubt in the prosecution story as to whether informant was really an eye
witness and his present was there at the place of occurrence or not. If the presence of P.W.1 is doubtful at the place of occurrence, then the
remaining material witness, i.e., P.W.2, admittedly, has not seen the assault.
Thus, the defence has been able to create an element of doubt in the prosecution case. When the defence is successful to creating doubt over
the involvement of the appellant in the occurrence, then the appellant is entitled to get the benefit of doubt. Thus, by giving benefit of doubt to the
appellant, we are inclined to acquit the appellant by setting aside the impugned judgment.
Thus, we set aside the judgment dated 12th April, 2010 and Order of sentence dated 15th April, 2010 passed by the learned 1st Additional
Session Judge, West Singhbhum at Chaibasa in Session Trial No.48 of 2008. The appellant, who is in custody, is directed to be set at liberty
forthwith, if her custody is not required in any other case. This appeal, accordingly, stands allowed.
Let the Lower Court Records be transmitted to the Court concerned forthwith along with a copy of this judgment.