Jharkhand High Court
Kamleshwar Dehri vs The State Of Jharkhand on 21 September, 2022
Author: Navneet Kumar
Bench: Navneet Kumar
1 Cr. Appeal (SJ) No. 1196 of 2005
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1196 of 2005
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(Against the judgment of conviction and order of sentence dated 19.08.2005 passed by the learned 1st Additional Sessions Judge, Pakur in Sessions Case No. 145 of 2003, in connection with Pakuria P.S. Case No. 20 of 2003, corresponding to G.R. Case No. 224 of 2003 at Pakur, Jharkhand.)
1. Kamleshwar Dehri
2. Vijay Dehri ... ... Appellants Versus The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Ms. Saman Ahmad, Advocate For the Respondent : Mr. Prabir Chatterjee, Spl. P.P.
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HON'BLE MR. JUSTICE NAVNEET KUMAR Order No. 07: Dated: 21st September, 2022
1. This appeal is directed against the impugned judgment of conviction and order of sentence dated 19.08.2005 passed by the learned 1st Additional Sessions Judge, Pakur in Sessions Case No. 145 of 2003, in connection with Pakuria P.S. Case No. 20 of 2003, corresponding to G.R. Case No. 224 of 2003 at Pakur, Jharkhand, whereby and where under both the appellants were convicted for the offence punishable u/ss. 323 & 341 of the Indian Penal Code, 1860 (hereinafter referred to as the I.P.C.) and Section 4 of Prevention Of Witch (Daain) Practices Act, 1999 and in addition to the aforesaid conviction, the appellant no. 1 Kamleshwar Dehri was also convicted for the offence punishable u/s 354 of IPC. Further the learned court below sentenced both the convicts/appellants to undergo simple imprisonment (hereinafter referred to as the S.I.) for three months u/s 341 of I.P.C., S.I. for 3 (three) months for the offence punishable u/s 323 of I.P.C., and S.I. for 3 (three) months for the offence punishable u/s 4 of Prevention of Witch (Daain) 2 Cr. Appeal (SJ) No. 1196 of 2005 Practice Act, 1999. Further in addition to above the appellant Kamsleshwar Dehri was sentenced to undergo S.I. for 6 (six) months for the offence punishable u/s 354 of the I.P.C also. All the sentences were directed to run concurrently.
2. The prosecution story arose in the wake of written application of the victim (P.W. 8) addressed to the Officer in - Charge of Pakuria Police Station in the district of Pakur on 03.06.2003 alleging therein that that three accused persons namely Kamleshwar Dehri (appellant no. 1), Vijay Dehri (appellant no. 2) and Shivdhan Dehri (since deceased) were abusing the mother of the informant saying her to be daain (witch) and they were compelling her to leave the village because one of the children of Shivdhan Dehri was sick. It was further alleged that on 02.06.2003 at about 11.00 am the victim/ informant, Shukurmuni Dehri and mother Mangli Dehri were guarding the Mango fruits then all the three accused persons came there with lathi and knife in their hands. They started assaulting the mother of the informant saying her to be Daain. The informant went to save her, but Kamlesh Dehri caught her. He caught her breast and started dragging her and said that he would rape her. Her elder sister came to save her, but Vijay Dehri assaulted her by lathi. At that time, Kamslesh Dehri gave a knife blow on her (informant) head due to which her head got injured. Vijay Dehri assaulted her with lathi due to which she got injured. Thereafter, several people of the village assembled there and they protested but the accused persons were threatening that they would kill the entire three mother and daughters. On protest by the villagers the accused persons fled away. The mother and the sister of the informant were hiding themselves in the house due to fear of the accused persons and any how the informant came to the P.S. and gave a typed application before the Officer-in-Charge of Pakuria P.S. On the application of the victim/ informant a case was registered against 3 Cr. Appeal (SJ) No. 1196 of 2005 the accused persons at Pakuria P.S. vide Pakuria P.S. Case No. 20 of 2003, and after completing investigation, charge- sheet was submitted u/Ss. 323, 341, 325, 307, 354/ 34 of the I.P.C. and sections 3/4 of the Witch (Daain) Practices Act, 1999 against the accused persons. On the basis of such charge- sheet, the court of C.J.M. Pakur took cognizance of the offence and committed this case to the Court of Sessions. The Sessions Judge, Pakur transferred this case to the file of Ld. 1st Additional Sessions Judge, Pakur for disposal. The Ld. 1st Additional Sessions Judge, Pakur framed charges against both the appellants for the offences punishable under Sections 341, 307/34 of the I.P.C., and under Sections 3/4 of the Witch (Daain) Practices Act, 1999 and in addition to the above charges, the ld. Court also framed charge for the offence punishable u/S. 354 of the I.P.C. against appellant no. 1 Kamleshwar Dehri.
3. The learned trial court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence which is under challenge in this appeal.
4. Heard Ms. Saman Ahmad, the learned counsel for the appellants and Mr. Prabeer Chatterjee, learned Spl. P.P. for the State.
Arguments advanced on behalf of the appellants
5. Assailing the impugned judgment of conviction and order of sentence, the learned counsel appearing on behalf of the appellants submitted that the learned trial court did not consider that the witnesses who have been examined on behalf of the prosecution are interested witnesses and no other eye witness or independent witness has been examined. Further, it also ignored the fact that both the parties were on inimical terms and enmity was admitted between both the parties due to a landed property dispute and therefore these appellants have been falsely implicated in this case. The learned defence counsel appearing for the appellants stated that 4 Cr. Appeal (SJ) No. 1196 of 2005 there is no cogent evidence with respect to the offence punishable u/s 354 of the I.P.C. against the appellant for outraging the modesty of the informant P.W. 8 and relied upon the ruling of Hon'ble Supreme Court as reported in (2007) 11 Supreme Court Cases 265 in the case of Ramkripal Vs. State of M.P. She further submitted that the learned trial court has also ignored the testimony of the P.W. 2 who is said to be the Adhyaksh, who had deposed that there had been a landed property dispute between the accused persons and the informant's people and for which a proceeding was initiated u/ss. 144 and 145 of the Cr.P.C., 1973 and a decree was passed in favour of Kamleshwar Dehri (appellant no. 1) and therefore in view of the fact of the enmity between both the parties they (the appellants) have been falsely implicated in this case and therefore the impugned judgment of conviction and order of sentence is bad in law and fit to be set aside.
Arguments advanced on behalf of the State
6. On the other hand, learned Spl.P.P. appearing on behalf of the State opposed the contentions raised on behalf of the appellants and submitted that learned trial court has rightly appreciated the evidences and deposition of the witnesses adduced on behalf of the prosecution, particularly of the Doctor and of the victims viz. P.Ws. 6, 7 and 8 supported by that of P.Ws. 2, P.W. 3, P.W. 5 and P.W. 9. It is further submitted that P.W. 9- the Investigating Officer (hereinafter referred to as the I.O.) was examined on behalf of the prosecution has duly proved the place, time and manner of occurrence as disclosed in the FIR and therefore the learned trial court has rightly relied upon the testimonies of the witnesses and passed the impugned judgment of conviction and order of sentence and this appeal is fit to be dismissed being devoid of merit.
Appraisal and Findings
7. Having heard the parties, perused the record of this case 5 Cr. Appeal (SJ) No. 1196 of 2005 including Lower Court Record.
8. It is well settled principle of law that enmity is a double edged weapon and defence taken on behalf of the appellants for their false implication due to enmity the defence cannot ipso facto be discarded. The only requirement for appreciating the inimical evidences is to evaluate the same carefully and cautiously. In the present case the defence has been taken on behalf of the appellant that the enmity is the admitted fact and they have been falsely implicated, but such defence taken on behalf of the appellants cannot be a ground in itself to disbelieve the evidences adduced by the prosecution. In this background this court proceeds to examine at first the testimonies of the 9 witnesses who have been examined on behalf of the prosecution as under:
1. P.W. 1 - Dr. Arvind Kumar Singh (the Medical Officer),
2. P.W. 2 - Suresh Prasad Dehri,
3. P.W. 3 - Lakhan Dehri,
4. P.W. 4 - Nandu Dehri,
5. P.W. 5 - Chhotu Basu Dehri,
6. P.W. 6 - Shukurmuni Dehri @ Kamli Dehri (victim/ sister of the informant)
7. P.W. 7 - Mangli Dehri, (the victim/ mother)
8. P.W.8 - the informat/ victim, and
9. P.W. 9 - Medi Das (the I.O.).
Apart from the above oral evidences, the prosecution has been able to adduce following documentary evidences:
1. Ext. 1- Medical Examination Report of P.W. 8 (the victim/ informant),
2. Ext. 1/1- Medical Examination Report of Mangli Devi (P.W. 7),
3. Ext. 1/2- Medical Examination Report of Sukurmuni Dehri @ Kamli Dehri (P.W. 6), 6 Cr. Appeal (SJ) No. 1196 of 2005
4. Ext. 1/3- Supplementary injury report of Mangli Devi.
Also, the defence has been able to adduce following documentary evidences to substantiate their defence of enmity:
1. Ext. A- Carbon Copy of Notice in Cr. Msc. No. 538 of 2003 of the Court of S.D.M., Pakur.
2. Ext. B- Carbon Copy of order sheet dated 27.07.2001 of R.M. No. 45 of 2000- 2001 of the Court of S.D.M., Pakur.
9. P.W. 1 - Dr. Arvind Kumar Singh had medically examined all the three injured witnesses viz. P.W. 6- Shukurmuni Dehri @ Kamli Dehri, P.W. 7- Mangli Devi and P.W. 8- the informant/ victim. On examining P.W.-8 on 03.06.2003, he has found the following injuries on her person:
I.) "lacerated wound on the head, II.) tenderness and swelling of left side of thigh." According to the doctor, the age of injuries was within 48 hours.
Mark of Identification: one black mole on the left side of face by the side of angle of mouth. According to the Doctor, the injuries were simple in nature caused by hard and blunt substance.
The doctor has further examined P.W.-7 on 05.06.2003 and found the following injuries on her person:
I.) "Two linear abrasion on back measuring about 21 m.m. each X ¼ m.m.
II.) Two abrasion on shoulder- (a) 1 c.m. X ¼ c.m., and
(b) 1.5 c.m X ¼ c.m., III.) Tenderness and swelling of right hand- 4 c.m. X 3 c.m.
IV.) Tenderness and swelling of right side of head- 2.5 c.m. X 1 c.m."
Mark of Identification- black mole of the face. Age of Injury- within 4 days.
The opinion about the injuries no. III was kept pending till X- Ray plate is available. The injuries were simple in nature caused by hard and blunt substance. No X-ray plate was produced by the injured person and therefore the Doctor has opined that the injuries 7 Cr. Appeal (SJ) No. 1196 of 2005 were simple in nature.
Further, the Doctor has medically examined P.W. 6 and found the following injuries on her person:
I.) "Tenderness and swelling on right hand of 4 c.m. X 3 c.m., II.) One abrasion over lateral aspect of right hand of 1 c.m. X ½ c.m. in diameter, and III.) One bruise below wrist anteriority of 3 c.m. X 2 c.m. in diameter."
Age of the injuries- within 4 days. According to the Doctor the injuries were simple in nature caused by hard and blunt substance. In cross examination he has said that the injured persons were not known to him from before and all such injuries were possible by fall on the ground. Having taken into consideration of the deposition of P.W. 1 and injury reports of the injured persons namely P.Ws. 6, 7 and 8 which have been proved by P.W. 1 and marked as Exts. 1, 1/1, 1/2 and 1/3, it is found that all the three witnesses viz. P.Ws. 6, 7 and 8 had sustained injuries although the injuries are simple in nature. Therefore, the prosecution has successfully established the injuries were inflicted upon the injured person.
10. P.W. 2- Suresh Prasad Dehri, the Adhyaksh (Chairperson) of Gram Sabha, stated that P.W. 6 (informant) had told him about the occurrence and thereafter a panchayati was convened in which the accused persons have confessed their guilt. He also deposed that a direction as given in the panchayati to pay a sum of Rs. 15,000/-
(Rupees Fifteen Thousand Only) to the victim but they paid nothing and in the panchayati, all the accused persons had branded P.W. 6, P.W. 7 and P.W. 8 as Daain. He has further deposed that the brother of the appellant no. 1 Kamleswhar was suffering from fever because of the dog biting 8-10 months back and jharphunk (exorcism) was done in order to cure him, but he died and therefore, under the impression that his brother died due to practice of witchcrafting and therefore the accused persons assaulted the victims. In the cross examination, this witness admitted that there was a landed property 8 Cr. Appeal (SJ) No. 1196 of 2005 dispute between the accused persons and this witness but denied the fact that they have been falsely implicated. In view of the deposition of P.W. 2 the enmity could not be a ground to discard the version of this witness, further no material has been brought forth in the cross examination to disbelieve the version of P.W. 2.
11. P.W. 3- Lakha Dehri, P.W. 4 - Nandu Dehri, P.W. 5 - Chhota Basu Dehri were the hearsay witnesses but all of them have consistently supported the incident under which the appellants had assaulted the three injured persons i.e., P.Ws. 6, 7 and 8 by branding P.W. 7 Mangri Dehri as daain who was the mother of P.W. 6 and P.W. 8. And in the cross- examination, the defence did not bring out the material to disbelieve the version of the prosecution as set out in the FIR and subsequently in the depositions of the witnesses examined on behalf of the prosecution.
12. P.W. 6 Shukurmuni Dehri @ Kamli Dehri she stated that on the date of occurrence she had gone to guard the mango fruits with her mother P.W. 7 and sister (P.W. 8) where all the three accused persons (including these 2 appellants and one deceased co-accused) came there with lathi and knife and the accused persons branded the old lady(her mother- P.W. 7) as Daain who had caused the death of his brother and thereafter all the accused persons started assaulting her mother (P.W. 7) upon which P.W. 8 went there to rescue her and then appellant no. 1 Kamleshwar caught her and outraged her modesty and started dragging her hither and thither . This witness also went to rescue her, but then appellant no. 2 Vijay Dehri assaulted her. She has categorically stated that the appellant no. 1 Kamleshwar Dehri had given knife blow on the back side of her sister's head and in result blood started oozing out. In her cross- examination, nothing has come out except that there was enmity between the parties with respect to the landed property.
13. P.W. 7 - Kamli Dehri, an another eye witness who was the 9 Cr. Appeal (SJ) No. 1196 of 2005 mother of the informant and she was branded as a witch by the accused persons and she has supported the case of the prosecution in a very cogent and convincing manner. In her cross- examination also, nothing has come out to disbelieve her version.
14. P.W. 8- the informant of the case, who was a victim of the assault as well as her modesty was outraged by the appellant no. 1. She fully supported the case of the prosecution in her examination- in-chief stating that she was already at the place of occurrence along with her mother P.W. 7 and P.W. 6, when the appellants came carrying weapons including knife and lathi and started abusing her mother stating that she was involved in the witch practice, she (P.W.
8) went to rescue her, but then the appellant Kamleswar caught her and started dragging by outraging her modesty and was thretening her that he would commit rape with her. When her sister (P.W. 6) came to rescue her, she was also assaulted by the appellants. This witness categorically stated that she was assaulted by knife by which the blood started professing and on raising alarm, co- villagers came and thereafter the accused persons fled away from the place of occurrence. In the cross examination, the defence could not bring out any material to discard her version except the enmity due to landed property dispute between them.
15. P.W. 9 Medi Das, I.O. of this case, had narrated about the mode and manner of the investigation and proved the formal F.I.R. which has been marked as Ext. 3. In the cross examination, he stated that the distance of place of occurrence is about 22-24 km from the Police Station and he had inspected the place of occurrence and explained the boundaries. The time, date and mode of occurrence have been proved by this witness and after completing investigation he submitted the charge-sheet.
16. It appears that some documents brought on record are documentary evidences adduced by the defence which are marked 10 Cr. Appeal (SJ) No. 1196 of 2005 as Exts. A and B. From the perusal of the Exts. A & B, it appears that the documents are order sheet of the proceeding before the revenue court. All the documents brought on record on behalf of the accused appellants are to take the defence that there was a dispute due to landed property and the appellants have been falsely implicated in this case.
17. In view of the evidences adduced one behalf of the prosecution and on its elaborate evaluation as above, particularly of the testimonies of all the three victims P.Ws. 6, 7 and 8, it is well founded that the accused appellants reached the place of occurrence and after branding P.W. 7 as Daain, they assaulted her including her two daughters P.W. 6 and P.W. 8 and injured them and it has been corroborated by the Medical examination conducted by the Dr. Arvind Kumar Singh who had medically examined the injured persons and the injury reports have been duly proved by the said Doctor and marked as Exts. 1, 1/1, 1/2 and 1/3. All these three witnesses have consistently also supported that the modesty of P.W.8 has been outraged by the appellant Kamleshwar.
18. In the backdrop, this Court finds that the learned trial court has rightly appreciated the evidences and came to the conclusion and passed the impugned judgment of conviction which is based on cogent and reliable evidences as discussed in the above paragraphs.
19. Accordingly, this court upholds impugned judgment of conviction dated 19.08.2005 passed against the appellants by the learned 1st Additional Sessions Judge, Pakur in Sessions Case No. 145 of 2003, in connection with Pakuria P.S. Case No. 20 of 2003, corresponding to G.R. Case No. 224 of 2003 at Pakur, Jharkhand.
20. So far as the sentence is concerned the learned counsel appearing for the appellants has pointed out that the occurrence had taken place in the year 2003 and one of the accused namely Shibdhan Dehri had already died during the trial and only rest of 11 Cr. Appeal (SJ) No. 1196 of 2005 the two appellants are before this Court. It has further been pointed out that at the time of the trial the appellant no. 2 Vijay Dehri was about 30 years and the appellant no. 1 was about 25 years of age and over a period of time they have reached to their middle age. Further there is nothing on record to show about their criminal history. It has also been pointed out that they have also remained in jail during the course of the present criminal proceeding and therefore a lenient view may be taken by modifying the order of sentence as awarded by the learned trial court.
21. Having taken into considerations aforesaid submissions it is found that in the aforesaid facts and circumstances of this case that both the appellants have reached at their middle age and there is nothing on record to show their criminal history and they have been suffering from the misery and hardships of the criminal prosecution for a long period of time since last 20 years and therefore in view of these mitigating factors, no useful purpose would be served by sending them in jail again. The purpose of justice would be meted out if the appellants were sentenced to imprisonment for a term of the period already undergone by him but it would be just and fair to impose sentence of fine under the facts and circumstances of the case by way of compensation to be paid to three victims P.Ws. 6, 7 and 8 i.e., Shukurmuni Dehri @ Kamli Dehri, Mangli Dehri and the informant respectively.
22. Accordingly, the order of sentence passed by the learned court below against both the appellants is set aside and this Court alters the sentence by awarding sentence of imprisonment for a term of the period already undergone by them and further a sentence of fine is imposed to both the appellants. Appellant no. 1 Kamleshwar Dehri has been found guilty for the offence punishable u/ss. 323, 341 & 354 of the I.P.C. and Section 4 of Prevention Of Witch (Daain) Practices Act, 1999 and is awarded sentence of fine by way of 12 Cr. Appeal (SJ) No. 1196 of 2005 compensation in a composite manner under all the heads/counts to a sum of Rs. 6000/- (Rupees six Thousand only) by way of compensation to be distributed equally amongst all the three victims, namely, P.Ws. 6, 7 and 8 to a sum of Rs. 2000/- each (Rupees Two Thousands only- each). Further the appellant no. 2 has been found guilty for the offence punishable u/ss. 323 & 341 of the I.P.C. and Section 4 of Prevention of Witch (Daain) Practices Act, 1999 and is awarded sentence of fine by way of compensation in a composite manner under all the heads/counts to a sum of Rs. 3000/- (Rupees Three Thousand only) by way of compensation to be distributed equally amongst all the three victims, namely, P.Ws. 6, 7 and 8 to a sum of Rs. 1000/- each (Rupees One Thousand only- each). Since both the appellants are on bail they are given a time of 4 (four) months from the date of this judgment to deposit the fine amount by way of compensation as awarded to them as above.
23. In case of default of payment of fine amount of Rs. 6000/- (Rs. Six Thousands only) and of Rs. 3000/- (Rs. Three Thousands only) by way compensation in order to give it to victims so awarded by this Court within the stipulated period of time, appellant no. 1 Kamleshwar Dehri shall undergo rigorous imprisonment for a period of 2 (Two) years collectively under all the counts and appellant no. 1 Bijay Dehri for 1 (one) years under all the counts. The learned trial court is directed to ensure that the said fine amount is deposited within the stipulated period of time and if the same is not deposited by the appellants, they will serve the sentence as awarded in case of default of payment of fine so awarded, and the learned trial court is directed to ensure that each of the appellants serves the sentence of imprisonment in case of default of payment of fine by taking all necessary measures as per the provisions of law.
24. The appellants may be allowed to deposit the said fine 13 Cr. Appeal (SJ) No. 1196 of 2005 amount through the Nazarat of the concerned Civil Court. At the moment they deposit the fine amount, they (the appellants) shall be released forthwith on deposit of the said fine amount and they shall be discharged from the liabilities of bail bonds accordingly.
25. The learned court below is also directed that on deposit of the said fine amount by the appellants, the notices shall be sent to the victims, namely, P.Ws. 6, 7 and 8 i.e., Shukurmuni Dehri @ Kamli Dehri, Mangli Dehri and the informant respectively and on their appearance the said fine amount, if so deposited by the appellants, shall be disbursed to them accordingly as directed above. In case, if either of the said victims is not traceable or not available or not found at the given address, the same shall be disbursed either to the close or near relatives or kith and kin of either P.W. 6, P.W.7 or P.W. 8 i.e., of Shukurmuni Dehri @ Kamli Dehri, Mangli Dehri and the informant respectively as the case may be of the said victims or as the concerned learned trial court may deem fit and proper.
26. Accordingly, the appeal is dismissed with modification in order of sentence as above.
27. Let the copy of the judgment be sent to the learned court below along with the Lower Court Records to do needful and for its compliance in letter and spirit in this regard.
(Navneet Kumar, J.) Jharkhand High Court, Ranchi, Dated the 21.09.2022/NAFR MM/-