Jharkhand High Court
Ashok Paswan & Ors. vs State Of Jharkhand on 3 August, 2015
Author: R.R. Prasad
Bench: R.R. Prasad, Pramath Patnaik
Criminal Appeal (DB) No. 979 of 2006
Against the judgment of conviction and order of sentence dated
23.8.2005 passed by Sessions Judge, Palamau at Daltonganj in Sessions
Trial No.119 of 2003.
1. Ashok Paswan son of late Chanarik Paswan
2. Rita Devi, wife of late Chanarik Paswan
3. Yogendra Paswan son of Charitan Paswan
4. Ganesh Paswan son of Charitan Paswan
All are residents of Village Namudag, P.S. Chhatarpur (Naudiha O.P.),
District Palamau. ... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
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For the Appellants : M/s Mahesh Tewari, Ashok Kumar Sinha &
Pankaj Kumar Dubey, Advocates
For the State : Mr. Amresh Kumar, APP
PRESENT
HON'BLE MR. JUSTICE R.R. PRASAD
HON'BLE MR. JUSTICE PRAMATH PATNAIK
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By Court:- All the four appellants were put on trial on the charge of committing
murder of Jamuni Devi as well as for committing offence punishable under Section 3 of the Prevention of Witch (Dian) Practices Act, 1999. The trial court having found the appellant-Ashok Paswan guilty for committing murder of said Jamuni Devi convicted him for the offence punishable under Section 302 of the Indian Penal Code whereas, the other appellants, namely, Ganesh Paswan, Yogendra Paswan and Rita Devi were convicted under Section 302/34 of the Indian Penal Code and further all the appellants were convicted under Section 3 of Prevention of Witch (Dian) Practices Act, 1999 vide judgment dated 23rd August, 2005 and each of the appellants were sentenced to undergo imprisonment for life and further to undergo rigorous imprisonment for 3 months vide order dated 23rd August, 2005.
(2) The case of the prosecution, as has been made out in the Fardbayan, is 2. that on 13.9.2002 at about 6.30 P.M. all the appellants came to the house of the informant-Bhagal Ram (P.W.-10) and took his wife-Jamuni Devi (deceased) by dragging to the house of one Rapho Bibi @ Rakho who told them that she (Jamuni Devi) is the woman who got Chanarik Paswan (father of the applleant- Ashok Paswan) killed by playing witch craft. Thereupon, the said Ashok Paswan alongwith other appellants took Jamuni Devi to a lane where appellant- Ashok Paswan slit the neck as a result of which she died.
On the next day, i.e. 14.09.2002 when S.I.-P.K. Singh, Officer In-charge of Naudiha O.P., Police Station Chhatarpur came to know about the incident he came to the house of the informant- Bhagal Ram and recorded his statement wherein he narrated the same story as has been stated above. On such fardbayan, the formal First Information Report was drawn. He undertook investigation, during which he held inquest on the dead-body and prepared an inquest report. Thereupon the dead-body was sent for postmortem examination which was conducted by Dr. A. K. Choudhary (P.W.-11) who on holding autopsy on the dead-body did find following injuries:-
(i) Cut injury right side of neck- 5"X4". The wind pipe was open and slit. Major vessels on right side of neck were slit open. Vertebrae were found intact.
(3) The Doctor issued postmortem examination report (Exhibit-2) with an opinion that the death was caused due to shock and hemorrhage, on account of the aforesaid injury which might have been caused by 'Chhura'.
Meanwhile, the Investigating Officer recorded the statements of other witnesses. Upon completion of the investigation, the charge-sheet was submitted upon which cognizance of the offences was taken against these appellants and also against one Rapho Bibi @ Rakho. In due course, when the 3. case was committed to the court of session the appellants and also Rapho Bibi @ Rakho were put on trial during which prosecution examined as many as 11 witnesses. Of them P.W. 1-Nagia Devi ( daughter-in-law of the deceased), P.W. 4-Manoj Ram (grandson of the deceased) and P.W.-10- informant- Bhagal Ram (the husband of the deceased) claimed to be the eye witnesses wherein they did testify that while they were in the house the appellants came and took Jamuni Devi-deceased alongwith them by dragging to the house of Rapho Bibi @ Rakho where she told them that she is the woman who got Chanarik Paswan (father of the applleant-Ashok Paswan) killed by playing witch craft. Thereupon, they took the deceased to a lane where the appellant-Ashok Paswan slit the neck of the deceased whereas the other appellants had caught hold of the hands of the deceased. Other witnesses P.Ws. 2, 3, 5, 6, 7, 8 and 9 did not support the case and thereby they were declared hostile. After closure of the prosecution case when the appellants were questioned under Section 313 of the Cr. P.C. over the incriminating evidences appearing against them, they denied.
Thereupon, the court having placed its implicit reliance on the testimonies of P.Ws 1, 4 and 10 did find the appellants guilty for committing murder of the deceased whereas Rapho Bibi @ Rakho was found guilty only for the offence punishable under Section 3 of the Prevention of Witch (Dian) Practices Act, 1999. Accordingly, order of conviction and sentence as stated above was recorded.
(4) Mr. Mahesh Tewari, learned counsel appearing for the appellants submits that though the prosecution has come with the case that all the appellants in furtherance of their common intention did commit murder of the deceased but it is evident from the evidences of the eye witnesses that it was only the appellant- Ashok Paswan who slit the neck of the deceased whereas other appellants did 4. commit any overt act but it has come in the evidence of P.W.10 (Bhagal Ram) that the appellant- Ashok Paswan at the time of commission of the offence was under the influence of the liquor and thereby he may not be in his senses and hence he cannot be said to have committed offence of murder intentionally. Further, it was pointed out that though the witnesses P.Ws.1 and 4 have testified that the other appellants had caught hold of the hands at the time of commission of the offence but that does not find corroboration from the evidence of P.W.10 who have testified in his cross-examination at para-8 that they were simply present over there and under the circumstances, they cannot be said to have shared the common intention in committing murder of the deceased. Further, it was submitted that Investigating Officer has not been examined in this case and thereby on account of non-examination of the Investigating Officer, the place of occurrence cannot be said to have been proved but the trial court did not take all these aspects of the matter into account in right perspective and, therefore, it committed illegality in recording the judgment of conviction and order of sentence against the appellants.
(5) As against this, Mr. Amresh Kumar, learned counsel appearing for the State submits that evidences are there that all the appellants had come to the house of the informant and from there they took the deceased to the house of Rapho Bibi @ Rakho who told them that she (Jamuni Devi) got Chanarik Paswan (father of the applleant-Ashok Paswan) killed by playing witch craft and thereafter all the appellants took them to a lane where the appellant-Ashok Paswan slit the neck of the deceased and hence in the facts and circumstances it can easily be said that all the appellants were sharing common intention and thereby the trial court is absolutely testified in recording judgment of conviction and order of sentence which never warrants to be interfered with. 5. (6) Having heard learned counsel appearing for the parties and on perusal of the records, we do find that as per the testimonies of the eye witnesses P.W. 1- Nagia Devi, P.W.4-Manoj Ram and P.W.10- Bhagal Ram while they were in the house all the 4 appellants came to the house and took the deceased-Jamuni Devi with them forcibly to the house of Rapho Bibi @ Rakho who told them that she is the woman who got Chanarik Paswan (father of the applleant-Ashok Paswan) killed by playing witch craft and thereupon they took the deceased to a lane where the appellant-Ashok Paswan slit the neck and as per the evidences of P.Ws. 1 and 4 the other appellants had caught hold of her hands whereas P.W.10 in his cross-examination has testified that while the appellant-Ashok Paswan slit the neck, these appellants were standing there. Thus, we do find that the witnesses are consistent on the point that it was the appellant-Ashok Paswan who slit the neck of the deceased which fact gets corroboration from the medical evidence. Further, we do find that the place of occurrence as per the testimonies of all the three witnesses P.Ws. 1, 4 and 10 is the same and thereby it cannot be said that non-examination of the Investigating Officer the place of occurrence could not be proved.
So far submission advanced on behalf of the appellant relating to murder being not intentional on account of appellant being under the influence of liquor is concerned that is devoid of any merit. In this regard we may refer to Section 85 of Indian Penal Code which reads as follows:-
'Section 85':- Act of a person incapable of judgment by reason of intoxication caused against his will.- Nothing is an offence which is done by a person who, at the time of doing it, is, by reason of intoxication, incapable of knowing the nature of the act, or that he is doing what is either wrong, or contrary to law;
provided that the thing which intoxicated him was administered to him without his knowledge or against his will.6.
Section 85 extend such protection to a person who by reason of intoxication is incapable of knowing the nature of the act or that what he did was wrong or contrary to law but the clause 'without his knowledge' appearing in Section does indicate that such intoxication shall be involuntary one. Meaning thereby that if one consumes liquor voluntarily and then commits an act, then the protection is not available. Moreover where the accused pleads that intoxication was involuntary which made him incapable of knowing what he was doing or that what he was doing was wrong or contrary to law, the burden of proof is on him.
In the instant case the appellant has never come with the case that the intoxication was involuntary one and thereby this protection is not available to appellant-Ashok Paswan.
(7) Under the circumstances we do find that the prosecution has been able to establish its case beyond any reasonable doubt that appellant-Ashok Paswan by slitting the neck of the deceased got him killed.
Now the question does arise as to whether other three appellants were sharing the common intention?
(8) It is the case of the prosecution as has been testified by the P.Ws. 1,4, and 10 that all the appellants had come to the house of the informant and took the deceased to the house of Rapho Bibi @ Rakho where it was told by Rapho Bibi @ Rakho that she does play witch craft on account of which Chanarik Paswan (father of the applleant-Ashok Paswan) died.
(9) In that event, it is quite probable that by that time the three appellants may not have been sharing the common intention to kill the deceased. Only after being told by Rapho Bibi @ Rakho about the deceased practicing witch craft the deceased was brought to a place where neck of the deceased was slit 7. by Ashok Paswan whereas as per the P.Ws. 1 and 4 other appellants at that time had caught hold the deceased but that fact does not find corroboration from the testimony of P.W.10-Bhagal Ram as has been testified in cross-examination at para-8 wherein it has been testified that other appellants were present over there.
(10) Under the circumstances, we are of considered view that other three appellants namely Rita Devi, Yogendra Paswan and Ganesh Paswan were not sharing common intention for committing murder of the deceased. Accordingly, while confirming the judgment of conviction and order of sentence against the appellant-Ashok Paswan the same is set aside so far as the other appellants, namely, Rita Devi, Yogendra Paswan and Ganesh Paswan are concerned. Consequently, they are acquitted of all the charges and are discharged from the liabilities of their bail bond.
(11) In the result, this appeal stands allowed but in part.
(R.R. Prasad, J.) (Pramath Patnaik, J.) Jharkhand High Court, Ranchi Dated the 3rd August, 2015 RKM/N.A.F.R.