Jharkhand High Court
Sakindra Singh vs The State Of Jharkhand on 17 August, 2023
Author: Subhash Chand
Bench: Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 220 of 2011
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(Against the Judgment of conviction and order of sentence dated 13.01.2011 passed by the Additional Sessions Judge, F.T.C.I, Palamau at Daltonganj in S.T.No.208 of 2007)
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1. Sakindra Singh.
2. Devendra Singh (both sons of Rajeshwar Singh).
3. Savanat Singh @ Savant Singh son of Lalu Singh All resident of village-Konwai, P.O.& P.S.-Panki, District-
Palamau ... ...Appellants
-Versus-
The State of Jharkhand ... ... ...Respondent
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PRESENT
HON'BLE MR. JUSTICE SUBHASH CHAND
For the Appellants : Mr. Arbind Kumar Sinha, Advocate.
Mr. Mel Prakash Tirkey, Amicus Curiae For the State : Mr. P.D. Agrawal, Spl.P.P.
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C.A.V. on 07.08.2023 : Pronounced on 17.08.2023
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The instant Criminal Appeal is directed against the Judgment of conviction and order of sentence dated 13.01.2011 passed by the Additional Sessions Judge, F.T.C.-I, Palamau at Daltonganj in S.T.No.208 of 2007, arising out of Panki P.S. Case No.05 of 2006 whereby and whereunder the learned trial court has convicted the appellants for six months R.I. Under Section 323 and 34 of the Indian Penal Code and the learned trial court has further directed the appellant No.2 to pay fine of Rs. 1,000/- as he is found guilty under Section 4 of the Prevention of Witch craft Practice Act, failing which serve further R.I. for a period of three months.
2. The brief facts of the prosecution version are that the F.I.R. was lodged by the informant Belas Singh with these 2 allegations that on 22.01.2006 on Sunday his wife Veena Devi along with Devendra Singh, Ajanti Devi, Usha Devi, Sakinder Singh, Lalita Devi and Sawanat Singh had gone to the Jungle to bring the firewood. Till evening his wife did not come back. No whereabout was told by those persons who had accompanied her. When the informant asked them since they had accompanied his wife why they were not telling in regard to her whereabouts. At this all these accused began to hurl abuse. The son of informant Amit Kumar and America Singh, Bharat Singh all made search and reached to the Jungle and found his wife in injured condition. Blood was oozing from her mouth. They brought her to his house in injured condition and took to the Sadar Hospital. From there she was referred to Ranchi Hospital. On having regained senses she told the name of all the six named accused in the F.I.R. They also branded her as Daain and on account this very reason they had assaulted the wife of informant with Tangi and knife as well living in her unconscious condition. On this written information, case crime No. 05 of 2006 was registered against all the six named accused under Section 323/324/341/307 read with 34 of I.P.C. and under Section 4/5/6 of Witch Craft Act.
3. The I.O. after having completed the investigation filed charge-sheet against all the six named accused.
4. The concerned Magistrate took cognizance on the charge-sheet and committed the case for trial to the court of sessions.
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5. The learned trial court framed charge against all the accused under Sections 341/323/324/307/34 I.P.C. and also under Section 4/5/6 of Prevention of Wtich craft (Daain) Practices Act.
6. All the accused persons denied the charge which was read over and explained to them and all the accused persons demanded to face the trial.
7. On behalf of prosecution to prove the charge framed against all the accused persons in oral evidence examined P.W.1 America Singh, P.W.2 Veena Devi, P.W.3 Amit Kumar Singh, P.W.4 Bharat Singh, P.W.5 Bailash Singh, P.W.6 Basudeo Sah, P.W.7 Dr. Anil Kumar.
8. On behalf of prosecution in documentary evidence filed injury report Ext.2, F.I.R. Ext.1.
9. The statement of the accused person under Section 313 of Cr.P.C. was recorded. All the accused persons denied the incriminating circumstances in evidence against them and told themselves to be innocent.
10. On behalf of accused person, no evidence was adduced in defence.
11. The learned trial court after hearing the rival submission of the learned Counsel of parties passed the Judgment of conviction and sentence of the accused under Sections 323/34 I.P.C. and inflicted imprisonment as stated hereinabove.
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12. Aggrieved from the impugned order of conviction and sentence, this Cr. Appeal has been preferred on behalf of the appellants on the ground that the impugned Judgment passed by the court-below is based on the wrong appreciation of the evidence. The evidence has not been appraised in a proper perspective.
13. The learned trial court has relied the hearsay evidence which is not admissible. So far as the testimony of victim herself is concerned, the same is not corroborated with medical evidence. The learned trial court has passed the impugned Judgment of conviction and sentence based on a surmises and conjectures and prayed to allow this appeal and to quash the Judgment of conviction and sentence and to acquit the appellants.
14. I have heard the learned Counsel for the Amicus Curiae on behalf of the appellant and learned Spl.P.P. on behalf of the State and perused the material on record.
15. In order to decide the legality and propriety of the impugned Judgment of conviction and sentence passed by the court-below, the evidence oral and documentary adduced on behalf of the prosecution is to be reappreciated.
16. On behalf of prosecution to prove the case examined altogether 7 witnesses.
17. P.W.1 America Singh in his Examination-in-chief says that the occurrence is of 05.01.2006. It was 9 O'clock of day time. His mother had gone to Jungle along with Devendra Singh, Sakinder Singh, Ajanti Devi, Babita Devi, Usha Devi and Sawanat 5 Singh to bring the firewood. At 2 O'clock all the persons came back to the house but his mother did not come back. He asked to Devendra Singh and others. They told nothing in regard to the whereabouts of his mother. He along with his father, with one Bharat Singh, Girja Singh made search of his mother and reached to the Jungle where they found his mother in injured condition. She was unconscious. There were injuries on her head, mouth, stomach back and the whole body was stabbed with the knife at several places. His mother was lying in pool of blood. She was taken to the Hospital. They brought her to house by cycle. On regaining senses she told that Sakinder Singh had assaulted with knife, Devendra Singh with Tangi, Ajanti Devi, Usha Devi, Babita Devi, Sawanat Singh all had caught hold of her and Sakinder was speaking that she had killed his son on account of witch craft so he would finish her life. His mother was taken to Hospital. Thereafter referred to Ranchi and the F.I.R. was lodged. He recognized all the accused in dock.
This witness in cross-examination says that his mother had told in regard to the occurrence after having regained senses.
18. P.W.2 Veena Devi is the victim injured. She in her Examination-in-chief stated that the occurrence was of two years ago at 9 a.m. on Sunday. The Accused Devendra Singh came to her house and asked to bring the firewood. She along with Devendra Singh, Ajanti Devi, Usha Devi, Sakinder Singh, Lalita Devi and Sawanat Singh all went to the Jungle to bring the firewood. Devendra Singh told her that she had killed the son of 6 Sakinder Singh by practicing witch craft so they would kill her. Devendra Singh assaulted with Tangi which hit to her finger. Sakinder gave several blow with knife on several part of her body. Ajanti, Usha, Lalita Devi and Sawanat Singh all got hold of her. She became unconscious and all the accused persons had fled away.
In cross examination this witness says that she is not aware how many assault were given with the Tangi and the knife but same were numerous which she did not count. There were 4 to 5 injuries of Tangi and several injuries were caused by the knife.
19. P.W.3 Amit Kumar Singh in his Examination-in-chief says that the occurrence is of 2006 it was Sunday. Time was in between 8 to 9 O'clock. Devendra Singh, Sakinder Singh, Ajanti Devi, Usha Devi, Anita Devi and Sawanat Singh all came to his house and asked his mother Veena Devi to accompany them to bring the firewood. Her mother also accompanied them but she did not come back. On being asked about the whereabouts no one told in regard to the whereabouts of his mother so they made search of his mother and went to the Jungle and found the mother in injured condition and the mother has told how the accused persons had assaulted her after having regained senses.
In cross examination this witness says that in the Jungle his mother was lying unconscious. She was brought to house and after having sprinkled water on her face, she became conscious and his mother told in regard to the occurrence. 7
20. P.W.4 Bharat Singh has stated that on 22.01.2006 at 4 O'clock in the evening he was at his house and saw that Bailas Singh, America Singh, Amit Kumar were going to the Jungle in search of Veena Devi. He also went with them and found Veena Devi in injured condition. There were several injuries on her body parts and Veena Devi injured had told in regard to the occurrence after having regained senses.
In cross-examination this witness says that Veena Devi regained senses after having sprinkled water on her face and told in regard to the occurrence.
21. P.W.5 is Bailap Singh. This witness in his Examination-in-chief says that he is informant of this case. Occurrence is of the year 2006. It was Sunday. Time 9 O'clock of day time. Devendra Singh, Sakinder Singh, Babita Devi, Usha Devi, Ajanti Devi and Sawanat Singh all had called his wife Veena Devi to bring the firewood and till 5 O' clock when all accused persons came back, his wife did not come back. He asked to the accused persons in regard to the whereabouts but they told nothing then the search was made by him and his son America Singh and his neighbour Girja Singh and Bharat Singh as well and found his wife in injured condition. There were several injuries on her body parts caused by Tangi and knife and his wife after having regained senses told that the accused persons had assaulted with Tangi and knife and on the issue she had practiced witch craft on the son of Sakinder Singh and had killed him. He 8 gave written information of the occurrence on which he verified his signature marked Ext.1.
In cross examination this witness says that the occurrence did not take place in his presence. Whatever the injured had told to him he gave the written information of the same.
22. P.W.6 Basudeo Sah is the I.O. He has stated that on 22.01.2006 he was posted at Police Station Manjhi. On 29.01.2006 Bilas Singh has given written information on which case crime No.05 of 2006 was registered under Sections 324/341/323/307/34 of the Indian Penal Code and 4/5/6 of Witch Craft Act against the accused Devendra Singh, Ajanti Devi, Usha Devi, Sakinder Singh, Lalita Devi and Sawanat Singh. He recorded the statement of the witnesses during investigation and on the pointing of the son of informant, he prepared the site plan of the place of occurrence. After having recorded the statement of all witnesses, he filed charge-sheet.
In cross examination this witness says that he did not recover any weapon from any of the accused. He did not take in custody the blood stained soil from the place of occurrence.
23. P.W.7 is the Doctor Anil Kumar. This witness in his Examination-in-chief stated that Veena Devi was admitted in the Hospital on 21.01.2006 on reference from the Sadar Hospital and was discharged on 02.02.2006 from the Hospital. The C.T. scan was conducted of the brain; but it was normal. No fracture was found in X'ray of chest and stomach. There were old 9 scratch marks over the left knee on the latral aspect side. He marked the injury report as Ext.1.
In cross examination this witness says that the C.T. scan was conducted of her brain and X'ray was taken over chest and stomach but no injury was found but everything was normal. After first aid from the Sadar Hospital she was brought to RIMS Hospital.
24. The conviction of the appellants is based on the testimony of the injured victim P.W.2 Veena Devi who had told in regard to the occurrence to P.W.1 America Singh, P.W.3 Amit Kumar, P.W.4 Bharat Singh and P.W.5 Bailash Singh.
25. P.W.2 Veena Devi is the victim and the injured eye- witness of the occurrence. In her Examination-in-chief she has stated that all the accused persons came to her house on 05.01.2006 to accompany them to bring the firewood. She went to the Jungle to bring the firewood with them. On reaching there Devendra Singh assaulted with Tangi and Sakinder Singh assaulted with knife while the other accused had caught hold of her. They had given several blow with Tangi and the knife as well. She sustained numerous injuries on her body and became unconscious. When her husband and son and other persons of the village brought her to house she got senses and told them in regard to the occurrence.
26. P.W.1 America Singh is the son of victim, P.W.3 Amit Kumar is also the son of injured victim. P.W.4 Bharat Singh is the independent witness who had reached to the Jungle for search 10 of Veena Devi and found her in injured condition. P.W.5 Bailash Singh is the husband of victim injured. All these witnesses have stated in regard to the occurrence what was told to them by the injured P.W.2 Veena Devi after having regained senses. Therefore, the testimony of these witnesses also became admissible in evidence since they came to know in regard to the occurrence from Veena Devi and Veena Devi injured eye-witness had been examined. As such the testimony of these witnesses also became admissible under Section 6 of the Evidence Act as res gestae evidence.
The Hon'ble Apex Court held in Krishan Kumar Malik vs. State of Haryana 2011 (3) SCC Cr. at 61:
33. As per the FIR lodged by the prosecutrix, she first met her mother Narayani and sister at the bus-stop at Kurukshetra but they have also not been examined, even though their evidence would have been vital as contemplated under Section 6 of the Evidence Act, 1872 (for short "the Act") as they would have been res gestae witnesses. The purpose of incorporating Section 6 in the Act is to complete the missing links in the chain of evidence of the solitary witness.
There is no dispute that she had given full and vivid description of the sequence of events leading to the commission of the alleged offences by the appellant and others upon her. In that narrative, it is amply clear that Bimla Devi and Ritu were stated to be at the scene of alleged abduction. Even though Bimla Devi may have later turned hostile, Ritu could still have been examined, or at the very least, her statement recorded. Likewise, her mother could have been similarly examined regarding the chain of events after the prosecutrix had arrived back at Kurukshetra. Thus, they would have been the best persons to lend support to the prosecution story invoking Section 6 of the Act.
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27. On behalf of prosecution P.W.7 Dr. Anil Kumar has been examined. This witness has proved the injury report of injured Veena Devi. In this injury report (Ext.1) there is no external injury on the body of the injured. This witness has stated that the injured was admitted in Department of Neurology RIMS, Ranchi who was referred by the Sadar Hospital and discharged on 02.02.2006. The C.T. scan report of the brain was shown as normal. X' ray of the chest and abdomen was also done and everything was normal. There is no injury report on record of the Sadar Hospital of the victim Veena Devi. The occurrence is of 22.01.2006 and she was admitted to the Hospital on 23.01.2006 and was discharged from Hospital on 02.02.2006. As such from this deposition made by the Doctor P.W.7 who has proved the medical examination of injured Ext.2, there being no external or internal injury to the injured. The ocular evidence of the injured victim Veena Devi is totally overruled.
28. The I.O. P.W.6 Basudeo Sah was also examined. The I.O. has stated that during investigation he did not collect the bloodstained soil from the place of occurrence. No weapon was recovered used in the commission of the offence while as per the statement of the witnesses P.W.1 America Singh, P.W.3 Amit Kumar, P.W.4 Bharat Singh, P.W.5 Bailash Singh that he found the injured in Jungle who had sustained several injuries on her body part caused by Tangi and knife as well. The injured was lying in a pool of blood. The testimony of these 12 witnesses is also belied that the I.O. nowhere has stated in his statement that he found blood at the place of occurrence. The I.O. did not take even the blood stained soil from the place of occurrence though he had prepared the site plan on the indication of the son of the informant.
29. It is the settled law that the ocular evidence is to prevail over the medical evidence but if from the medical evidence the ocular evidence and the prosecution case is totally ruled out in such a case the medical evidence shall prevail upon the ocular evidence. Herein the injured P.W.2 and other prosecution witnesses P.W.1 America Singh, P.W.3 Amit Kumar, P.W.4 Bharat Singh and P.W.5 Bailash Singh all have stated that there were several injuries caused by Tangi and the knife on the body of victim Veena Devi while as per medical examination report, which has been proved by P.W.7 Dr. Anil Kumar there was no external or internal injury, therefore, the whole of the ocular evidence is not found trustworthy which is altogether contrary to the medical evidence and totally belies the ocular evidence.
The Hon'ble Apex Court held in Bhajan Singh vs. State of Haryana A.I.R. 2011 SC 2552:
38. Thus, the position of law in such a case of contradiction between medical and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.13
(Vide Abdul Sayeed [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] .)
30. Here in this case the occurrence is of 22.01.2006 while all these witnesses P.W.1 America Singh, P.W.3 Amit Kumar, P.W.4 Bharat Singh and P.W.5 Bailash Singh had reached to the Jungle making search of the injured Veena Devi and found her in injured and unconscious condition and brought her back to the house and after having sprinkled water on her face, the injured regained senses and she told that it was the accused Devendra Singh who had assaulted with Tangi and Sakinder Singh had assaulted with knife and had given several blow on various parts of her body and after having come to know in regard to the occurrence from the victim all these witnesses have deposed before the trial court in regard to the occurrence committed by the accused, who are appellants herein but the F.I.R. of this case was lodged on 29.01.2006 which was 7 days belated. There is no cogent explanation of this delay in lodging the F.I.R. The statement of the witnesses were also recorded under Section 161 of Cr.P.C. who were examined before the trial court after lodging the F.I.R. The inordinate delay in lodging the F.I.R. of which there is no explanation makes the prosecution case doubtful and the testimony of the witnesses P.W.1 America Singh, P.W.3 Amit Kumar, P.W.4 Bharat Singh and P.W.5 Bailash Singh cannot be admissible in evidence as res gestae, because the time gap between the occurrence and the statement given by these witnesses is more than 7 days.
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The Hon'ble Apex Court held in Jafarudheen & Ors. vs. State of Kerala 2022 Live Law S.C. 403:
28. The Investigating Officer is expected to kick start his investigation immediately after registration of a cognizable offense. An inordinate and unexplained delay may be fatal to the prosecution's case but only to be considered by the Court, on the facts of each case. There may be adequate circumstances for not examining a witness at an appropriate time.
However, non-examination of the witness despite being available may call for an explanation from the Investigating Officer. It only causes doubt in the mind of the Court, which is required to be cleared.
The Hon'ble Apex Court held in Shankarlal vs. State of Rajasthan A.I.R. 2004 S.C. 3559:
5. Even according to the prosecution the only witness to the incident in question is PW 6, therefore, as contended by learned counsel for the appellant, we will have to examine his evidence carefully. If we do so then we notice that on the date of incident he had gone to Village Upli for some work. From there he came back by bus at about 11 o'clock. He then allegedly went to the village to meet Ram Rakh where he was told by his wife that the latter had gone to the field. It is the prosecution case itself that the distance between the field of Ram Rakh and the village is about 4-5 miles and PW 6 covered that distance on foot and when he reached near the field of Ram Rakh he heard a quarrel and when he went towards the place of quarrel he saw the appellant attack the deceased with an axe. It is his further case that when he reached near the deceased, the appellant ran away. It is at this point of time he states that he got scared and he took a different route than the one he took on the way and reached the village at about 4 or 4.15 p.m. It is his case that when he went to the house of Ram Rakh he could not find him, therefore, he came near the village square where he met PW 2 Khyali Ram. From the above evidence of PW 6 it is apparent that though there were persons available on his way back, he did not inform anybody about the incident. Even when he 15 reached the village and met Ram Rakh's wife he did not inform her about the incident and it was for the first time he informed about this incident to PW 2 at the village square at about 4.15 p.m. Contrary to what he stated in the examination-
in-chief that he saw only one assault on the deceased, in the cross-examination he stated that he saw the appellant attack the deceased twice and both the injuries were caused in his presence. It is also to be noticed from his cross- examination that when he met PW 2 Khyali Ram and told him about the incident in question, PW 2 supposedly told him that he had already come to know of the incident from PW 14. The prosecution has not found how PW 14 came to know of the incident. In this background if we appreciate the evidence of PW 6 we notice the fact that he is purely a chance witness whose presence at the place of the incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Khyali Ram at the village square. We also notice that there is unexplained delay in filing the complaint inasmuch as according to the prosecution the incident in question took place at about 1.30 p.m. and a complaint was lodged only at 3.15 a.m. on 5-4-1980. Though the distance is about 30 miles from the place of incident, the complainant had the facility of using the tractors available in the village and they did use the same for travelling to the police station. In such circumstances this unexplained long delay also creates a doubt in our mind as to the genuineness of the prosecution case. Once we are not convinced with the evidence of PW 6 then there is no other material to base a conviction on the appellant, hence we are of the opinion that the appellant is entitled to the benefit of doubt, therefore, this appeal succeeds and is allowed. The judgment and order of conviction of the two courts below are set aside. The appellant is acquitted of the charge framed against him. From the records we notice that the appellant is on bail. If so, his bail bonds shall stand discharged.
31. In view of the appreciation of evidence given here-in- above, it is found that the prosecution has failed to prove its case beyond all shadow of doubt. The whole of the ocular evidence is 16 ruled out from the medical evidence where the two views are possible the view which is reasonable and plausible should be adopted.
32. Herein the whole of the ocular evidence being belied from the medical evidence the reasonable and plausible view is to give the benefit of doubt to the accused appellants herein.
33. In view of the analysis of the own the prosecution has failed to prove the case beyond reasonable doubt. Therefore, the impugned Judgment of conviction and sentence passed by the court-below is based on perverse finding and same needs interference. Accordingly, this Cr. Appeal deserves to be allowed.
34. This Cr. Appeal is hereby allowed.
35. The impugned Judgment of conviction and sentence passed by the court-below is hereby set aside and the appellants are acquitted from the charge framed against them.
36. The appellants/convicts are on bail. Their bail bonds are cancelled and sureties are discharged from their liabilities.
37. Let the record of learned lower court be sent back along with the copy of the Judgment.
(Subhash Chand, J.) Jharkhand High Court, Ranchi Dated the 17.08.2023 P.K.S./A.F.R.