Chattisgarh High Court
Bhola vs State Of Chhattisgarh on 15 February, 2024
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 181 of 2016
1. Bhola S/o Dewan Gond Aged About 34 Years Caste Gond, R/o
Village Goura, Thana And Tahsil - Pratappur, District - Surajpur
Chhattisgarh , Chhattisgarh
2. Rajni W/o Bhola Aged About 29 Years Caste Gond, R/o Village
Goura, Thana And Tahsil - Pratappur, District - Surajpur
Chhattisgarh , District : Surajpur, Chhattisgarh
---- Applicants
Versus
State Of Chhattisgarh Through Police Station Pratappur, District -
Surajpur Chhattisgarh , Chhattisgarh
---- Respondent
For Applicants : Mr. Shrawan Agrawal, Advocate For State : Ms. Nandkumari Kashyap, Panel Lawyer S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order 15/02/2024
1. Challenge in this revision is to the judgment dated 31 st December 2015 passed in Criminal Appeal No.09/2015 whereby learned Additional Sessions Judge, Pratappur, District- Surajpur (CG) partly allowed the criminal appeal of applicants, while affirming the judgment of conviction dated 26.03.2015 passed by the Judicial Magistrate First Class, Pratappur in Criminal Case No.675/2011 convicting applicants under Section 5 of the Chhattisgarh Tonahi Pratadna Nivaran Act, 2005, reduced the -2- imprisonment of each applicant from RI for 2 years to RI for 1 year and to pay fine of Rs.1000/-, and in default of payment of fine to further undergo SI for 3 months.
2. Case of the prosecution, in brief, is that on 18.03.2009 complainant- Bihani lodged a written complaint before Inspector General of Police, Sarguja Range, Ambikapur stating therein that she is 70 years old lady. She resides in the house constructed on the land of her husband Budhu at Village- Goura. On the date of incident i.e. 13.02.2009, when complainant was at her home, at that time accused persons Bhola, Ledho and wife of Bhola came to her house. Ledho, calling her in the name of Vksugh@Mk;u (witch) made an allegation that, complainant has killed her sister by practicing witchcraft, therefore, they will not leave her alive. Bhola assaulted the complainant by hands and fists and thrown her on ground saying that she practices witchcraft in the village. Ledho, sister of Bhola, mounted on her chest and also assaulted her by hands and fists, due to which, complainant suffered injuries on her stomach, chest, back as also on her hands. After hearing noises, when complainant's daughter Tilaso came out, accused Rajani (wife of Bhola) caught hold of Tilaso and assaulted her by hands and fists. Thereafter, second daughter of complainant namely Jhulmat also came at the spot hearing and she asked the accused persons not to call her mother 'tonhi' (witch), upon -3- which, all the three accused persons assaulted her also by hands and fists, due to which, Jhulmat sustained injury on her left elbow. At the time of incident, Lavango and Seeta were present at the spot and they saw the happening of incident. On the basis of written complaint, offence under Sections 4 & 5 of the Chhattisgarh Tonahi Pratadna Nivaran Act, 2005 (hereinafter referred to as the "Act of 2005") was registered against the accused persons and matter was investigated. After completion of investigation, charge-sheet was filed against the applicants for commission of offence under Sections 4 & 5 of the Act of 2005 and Section 323 of IPC.
3. Applicants were charged with Section 5 of the Act of 2005. Applicants denied the charge and prayed for trial. To prove its case, prosecution examined as many as 6 witnesses namely Complainant- Bihani (PW1), Jhulmat (PW2), Dr. Manju Ekka (PW3), Seeta (PW4), Lawango (PW5) and Tilaso Bai (PW6). Statement of applicants were recorded under Section 313 of Cr.P.C. in which they denied all incriminating evidence appearing against them and pleaded innocence and false implication. No witness was examined by the accused- applicants in his defence.
4. After conclusion of trial, learned trial Court, upon appreciation of documentary and oral evidence brought on record by the prosecution, convicted the applicants for offence under Sections -4- 5 of the Act of 2005 and sentenced each of them to undergo RI for 2 years and fine of Rs.500/- and in default of payment of fine, additional SI for 6 months. The appeal preferred by applicants has been partly allowed by the impugned order, while maintaining the conviction of the applicants, sentence part was modified and instead of RI for 2 years and fine of Rs.500/-, they have been sentenced to undergo RI for 1 year and fine of Rs.1000/- each, in default of payment of fine, to undergo additional SI for 3 months.
5. Learned counsel for the applicants argues that learned trial Court and also the appellate Court have not correctly appreciated the evidence brought on record. It failed to appreciate the fact that prosecution has not proved the case beyond reasonable doubt. Complainant has falsely implicated the applicants. Applicants have been convicted solely on the evidence of interested witnesses who are relatives of the applicants. No independent witness has been examined to support the case of prosecution. In the absence of any independent witness, evidence of complainant Bihani (PW1) cannot be relied upon. There is no evidence to prove that the applicants physically or mentally harassed and identified the complainant as tonhi (witch). The injuries suffered by the injured persons are simple in nature. The investigating officer of the case has not been examined to prove the investigation and case of prosecution. Hence, this revision petition be allowed and the -5- conviction against the applicants be set-aside.
6. In alternate, learned counsel for the applicants submits that if this Court comes to conclusion that there is no perversity in the finding of guilt recorded by the trial Court and affirmed by the appellate Court, then considering that the applicants are the first offender, there is no previous antecedent of any nature, they are husband and wife and are villagers, the jail sentence of the applicants be reduced to the period of jail sentence already undergone by them.
7. On the other hand, learned counsel for the State opposes the grounds raised in revision and the submissions made on behalf of the applicants. It is submitted that the prosecution has proved its case beyond all reasonable doubts. Evidence of the complainant is corroborated from other witnesses of the prosecution. Therefore, no interference is called for against the judgment of conviction and order of sentence passed against the applicants.
8. I have given my anxious consideration to the submissions made by learned counsel for the respective parties and also perused the record of the trial Court as also appellate Court.
9. Complainant - Bihani is examined by the prosecution as PW1. In para-1 of her examination-in-chief, she stated that on the date of incident both the accused persons assaulted her by calling her tonhi (witch). One written complaint was submitted by her to -6- Inspector General of Police Sarguja Range. She narrated about the place of incident and police has prepared spot map and recorded her statement. In para-2 of her cross-examination she denied the suggestion that it is only accused- Ledho who called her tonhi and stated that accused - Bhola and Rajani also called her tonhi. In para-3, a suggestion that only accused- Ledho assaulted her and other accused persons had not assaulted, has been denied. Further, she denied the suggestion that she has lodged false report against the accused persons.
10. Jhulmat (PW2), daughter of the complainant in para-1 of her examination-in-chief stated that she was present at the place of incident. On the date of incident accused persons assaulted her mother calling her tonhi/dayan (witch). Her mother sustained injury on her stomach, chest, hand and legs. When she intervened, accused persons assaulted her also. In para-2 of her cross-examination, she denied the suggestion that she did not hear the accused person saying her mother as tonhi/dayan (witch). She also denied the suggestion that when accused - Ledho was assaulting her mother, she ran away from the spot to save herself and injuries which was caused to her were on account of falling.
11. Dr. Manju Ekka (PW3), who examined the complainant/injured, stated in para-1 of her examination-in-chief that on 13.02.2009, Jhulmat Bai was brought before her for medical examination. -7- During medical examination, she found that blood was oozing out from deep lacerated wound from backside of left elbow. Though there was no sign of injury on her back, but she was complaining of pain on it. In para-2 of examination, she stated that on the same date, Bihani Bai was also brought before her for medical examination and during examination she found that Bihani was complaining of pain on her chest, there was swelling on her stomach.
12. Lawango (PW5) daughter-in-law of complainant in her evidence- in-chief sated that on the date of incident, accused persons assaulted the complainant saying her dayan (witch).
13. Tilaso Bai (PW6) another daughter of complainant in para-1 of her examination-in-chief stated that at the time of incident accused persons assaulted her mother by saying that her mother killed child of accused persons. In para-2 of her cross- examination, she accepted the suggestion that when she was trying to intervene the dispute, she also sustained injury.
14. Minute scrutiny of the evidence available on record makes it clear that on the fateful day, accused/applicants came to the house of injured -complainant and assaulted the complainant and her daughters, charging the complainant to be a tonhi / dayan and having practiced witchcraft leading to the death of their sister. Injured (PW-1) gave a vivid description of the entire incident and disclosed as to how and under what circumstances -8- she was assaulted. She deposed in categorical terms that the assaults were made to her calling her 'witch / sorcerer', who practices witchcraft. Testimony of injured (PW-1) stands corroborated from the evidence of Jhulmat, daughter of complainant (PW-2) who came to rescue of mother and suffered injury. This witness stated in categorical terms that accused persons had addressed her mother as a 'witch/sorceress' and when she intervened to save her mother, she too was assaulted by accused persons causing injuries to her. Lawango (PW-5), daughter-in-law of injured (PW-1), has deposed that accused persons assaulted Bihani (PW-1) calling her 'witch'. The ocular evidence of the injured witnesses i.e. PW-1 & PW-2 regarding the injuries sustained by them gets corroborated by the medical evidence of Dr. Manju Ekka (PW-3), who upon examination noticed injuries as mentioned in Ex.P-4. In the cross- examination of the prosecution witnesses, the defence has not able to elicit anything which disturbs the genesis of incident. Thus, in the considered opinion, the prosecution has been able to establish the genesis of incident that applicants had suspicion that injured (PW-1) had practiced witchcraft on the sister of applicants which resulted into her death, therefore, branding the injured (PW-1) to be a 'witch', they assaulted her.
15. It is true that eyewitnesses of the incident i.e. PW-2 & PW-5, are daughter and daughter-in-law of injured (PW-1) respectively. Out of these two eyewitnesses, PW-2 is an injured eyewitness. -9- Nothing has been brought on record by applicants as to why these two witnesses were not stating truth and trying to falsely implicate them. No evidence was led of having any animosity between them prior to incident. Most importantly, the applicants in their statement recorded under Section 313 CrPC have simply stated that they were falsely implicated, but they have not disclosed the reason for their false implication. The credibility of an injured related witness was considered in case of Shyam Babu vs. State of Bihar, reported in (2012) 8 SCC 651 observing as follows :-
"22. This Court has repeatedly held that the version of an eyewitness cannot be discarded by the court merely on the ground that such eyewitness happened to be a relative or friend of the deceased. It is also stated that where the presence of the eyewitnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence, it will not be permissible for the court to discard the statement of such related or friendly witnesses. To put it clear, there is no bar in law on examining family members or any other person as witnesses. In fact, in cases involving family members of both sides, it is a member of the family or a friend who comes to rescue the injured. If the statement of witnesses, who are relatives or known to the parties affected is credible, reliable, trustworthy and corroborated by other witnesses, there would hardly be any reason for the court to reject such evidence merely on the ground that -10- the witness was a family member or an interested witness or a person known to the affected party or friend, etc".....
16. In the case at hand also, presence of PW-2 who came for rescue of mother PW-1 is natural as the place of incident is their house, there is no defence of the accused/applicants that there was any animosity between accused/applicants and the complainant from before, therefore, question of false implication does not arise at all. Therefore, in the considered opinion of this Court, the testimonies of PW-2 & PW-5, in particular of injured witness PW-2 whose testimony stands corroborated from medical evidence, are credible and trustworthy. The Courts below have rightly relied upon their testimonies to base conviction.
17. True it is that the investigating officer of the case has not been examined by the prosecution to support its case, however, from perusal of the un-rebutted and un-controverted evidence of complainant Bihani Bai (PW1) supported by eyewitness Jhulmat Bai (PW2) and Lawango (PW5), it is proved that the accused persons have called the complainant a witch and identified her as Tonhi which could not be rebutted by the applicant/accused. Accused persons were mentally harassing the complainant by identifying her as a witch. Nothing adverse has been elicited so as to disbelieve the version of prosecution witnesses. -11-
18. Even, the High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate court and the scope of interference in revision is extremely narrow. Section 397 CrPC vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law.
19. Learned counsel for applicants has not been able to bring to notice of this Court any circumstance indicating that concurrent findings of the Courts below are perverse or incorrect in any manner. Rather, in light of the evidence of Bihani (PW-1), which gets corroboration from ocular and medical evidence as well, the Courts below appear to have been fully justified in holding accused/applicants guilty of causing physical and mental harassment to injured complainant (PW-1) by casting accusation that she is a witch and assaulting her.
20. So far as the second limb of argument of the counsel for applicants on sentence is concerned, it is not in dispute that applicants have so far undergone more than 2 months of jail sentence, out of total sentence of 1 year awarded by the learned appellate Court, so also suffered the agony and trauma of pending criminal case against them for last about -12- 14 years, as the occurrence relates back to the year 2009; applicants are villagers; there is no material on record to show that there is any previous antecedent of applicants.
21. Considering the aforementioned facts of the case, I am of the opinion that ends of justice would be met if the jail sentence awarded to applicants is reduced to the period already undergone by them.
22. In the result, the revision petition is partly allowed. While maintaining conviction of the applicants under Section 5 of the Act of 2005, they are sentenced to the rigorous imprisonment for the period already undergone by them. Sentence of fine is, however, maintained along with its default clause.
Sd/-/---/---/-/---/-/-
(Parth Prateem Sahu) Judge Praveen