Arun Nayak vs State Of Jharkhand on 14 January, 2016

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Jharkhand High Court

Arun Nayak vs State Of Jharkhand on 14 January, 2016

Cr. Appeal (DB) No.1286 of 2008
(Against the judgment of conviction and order of
sentence dated 8.5.2008 and 22.5.2008, respectively,
passed by the Learned Additional Sessions Judge, F.T.C,
Simdega, in Sessions Trial No. 74 of 2004,
corresponding to G.R. Case No. 115 of 2004 arising out
of Bolba P.S. Case No. 08 of 2004 )

Arun Nayak, Son of Wishvanath Nayak, resident of village-
Bhrinbasa Belda Toly, P.S. Bolwa, District-Simdega.
.... Appellant
Versus
The State of Jharkhand ..... Respondent
---
PRESENT :- HON'BLE MR. JUSTICE D. N. UPADHYAY
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant :- Ms. Alpana Verma, Advocate
For the State :- Mr. Anand Kumar Pandey, A.P.P.
---
By Court

1. This criminal appeal has been directed against the judgment
of conviction and order of sentence dated 8.5.2008 and 22.5.2008,
respectively, passed by the Learned Additional Sessions Judge, F.T.C.
Simdega, in connection with Sessions Trial No. 74 of 2004,
corresponding to G.R. Case No. 115 of 2004, arising out of Bolba P.S.
Case No. 08 of 2004 whereby the appellant has been held guilty for
the offences punishable under Section 302 I.P.C and 3/4 of the
Prevention of Witch (Dain)Practices Act and sentenced to undergo
rigorous imprisonment for life and also to pay a fine of Rs. 10,000/-,
in default of payment of fine, further imprisonment for three
months.
2. The fact, which appears from the Fradbeyan of Partima
Ekka (Informant) recorded on 19.4.2004 at 9.10 hours at Bolba
within district of Simdega, in brief, is that when the informant
reached home on 18.4.2004 at about 18.45 hours, she found her
mother lying dead having injuries on her person. She was
informed by Piter Ekka-(P.W.1) that Arun Nayak has killed Josfina
Ekka (mother of the informant) by means of Dawli (sharp
cutting weapon). The appellant was suspecting the deceased as
Witch (Daain) and that is why he has killed her. On the basis of
Fradbeyan of Pratima Ekka, Bolba P.S. Case No. 8 of 2004, under
Section 302 of the Indian Penal Code was registered, the
Investigating Officer after due investigation submitted charge-
sheet and accordingly cognizance of the offence was taken and
case was committed to the Court of sessions and it was
registered as S.T. No. 74 of 2004.
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3. The charge under section 302 of the Indian Penal Code and
section 3/4 of Prevention of Witch (Daain) Practices Act was framed
to which the appellant pleaded not guilty and claimed to be tried.
The prosecution has examined altogether ten witnesses to
substantiate the charges. No witness on behalf of accused has
been examined. The learned Additional Sessions judge placing
reliance on the evidence and the documents available on record
held the appellant guilty for the offence punishable under section
302 of the Indian Penal Code and section 3/ 4 of Prevention of Witch
(Daain) Practices Act and sentenced him, as indicated above.
4. The appellant has assailed the impugned judgment on the
ground that no one had seen the occurrence. When the informant
returned home, she found the dead body of her mother lying at the
door of the house. She had noticed injuries on the person of the
deceased. On the following day, Fardbeyan was recorded in which
she has stated that she could learn about the incident from Pitter
Ekka-(P.W.1). Pitter Ekka-(P.W.1) is the cousin brother of the
informant. He has tried to project himself as an eye witness but
from perusal of the deposition, it will reveal that he had not seen
the occurrence nor he had informed the informant about the
occurrence. The learned counsel by referring the evidence of P.W. 1
and Investigation Officer P.W.8 has submitted that, house of the
deceased is not surrounded by any other houses. On three sides,
there is vacant land. Only on one side house of Piter Ekka-P.W 1 is
situated but at a distance of 100 yards. The time of occurrence is
6.45 p.m. The contention of P.W 1 is that he reached to the place of
occurrence after hearing hulla raised by the deceased but it is not
acceptable. A person, who will remain present at a distance of 100
yards, normally could not be able to notice hulla, if raised from a
house. Furthermore, P.W. 1 has stated that after hearing hulla he
along with Khristopher Ekka-P.W 9 had gone to the house of the
deceased but Khristopher Ekka did not support aforesaid version of
P.W 9. Likewise, the informant, P.W 7 has stated that he heard about
the occurrence from Piter Ekka, but Piter Ekka did not corroborate
aforesaid facts in his deposition. Referring the cross-examination of
P.W1, it is submitted that he himself has admitted that he had not
seen appellant Arun Nayak inflicting blows on the deceased by
means of Dawli, rather he had seen the dead body when he
reached there. This statement of P.W. 1 clearly goes to show that he
was not at all present at the time of assault. The confession of the
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accused leading to the discovery of weapon of the crime does not
finds support from the statement of P.W.1. He did not say that the
Investigating Officer has recovered the blood stained Dawli on the
basis of confession made by the accused rather he says that one
dawli, knife, axe and cloths had been seized by the police and for
that seizure list was prepared. Khristopher Ekka- P.W.9 has not
supported the prosecution case. Saroj Ekka-P.W 2 and Bipin Ekka-
P.W 3 are daughter and son of deceased respectively and they are
hearsay witnesses. Jirom Khesh-P.W.5 is the witness to the seizure
lists. Pratima Ekka-P.W.7 happens to be the informant but she is
hearsay witness, according to her statement, she received
information from Pitter Ekka. Dr. Anil Kumar-P.W 4 had conducted
postmortem examination on the dead body of Josphina Ekka
(deceased) whereas Binay Kumar-P.W.8 happens to be the
Investigating Officer. Shiv Kumar Singh-P.W.10, is the formal
witness, who has proved the report received from State Forensic
Science Laboratory. Since, the statement of P.W 1 is not consistent
and reliable, impugned judgment of conviction and sentenced can
not be upheld.
5. The learned A.P.P. has opposed the arguments and submitted
that minor contradiction are appearing in the statement of P.W.1
who is a rustic tribal. He has clearly stated that he had seen the
appellant moving in the village armed with Dawli. When he heard
Hulla, he rushed to the house of the deceased and saw the
appellant causing assault to the deceased by means of Dawli.
Pitter Ekka informed the villagers about the occurrence. P.Ws. 2,3
and 7 are the children of deceased. Since P.Ws. 2 and 3, who are
living out from the village, they had reached after receiving
information regarding murder of their mother. Pitter Ekka, who is
the informant has supported the prosecution case. The ocular
version of P.W.1 finds support from postmortem report proved by
P.W. 4. It is submitted that the appellant after his arrest had
voluntarily confessed his guilt and gave his confessional
statement. On the basis of confession made by the appellant, the
weapon used for commission of the murder and the blood stained
cloth of the appellant were seized. Those blood stained articles
were sent for its chemical examination which find support from the
report received from S.F.S.L. The Investigating Officer has
supported the investigation done by him. There is no merit in this
appeal and the same is liable to be dismissed.
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6. Heard learned counsel appearing from both sides and
perused the records. Admittedly, the trial judge has mainly relied on
the statement of P.W.1, who is the sole eye witness. We have
carefully examined the evidence of P.W.1 which is not consistent
rather contradictions appearing are vital. P.W.1 happens to be the
cousin of the informant and the deceased was his aunt. He did not
take effort to save his aunt nor he chased the appellant to
apprehend him. In his examination-in-chief, he says that he reached
to the place of occurrence after hearing hulla of the deceased and
he had seen the assault but in his cross-examination he says that
he has not said like that before the police. In cross-examination he
admits that he had gone to the place of occurrence along with
Khristopher Ekka-P.W.9, but P.W.-9 did not support this version of the
P.W.1 . Not only that P.W 1 says that he had seen the dead body
when he reached to the place of occurrence. Besides the above,
according to the informant, she received information from P.W1 but
P.W 1 has not corroborated the same. Only because of the fact that
blood stained Dawli and cloths stained with blood have been
recovered. The conviction of the appellant cannot be upheld.
7. Since the evidence of sole eye-witness is wholly not reliable
and not inspiring confidence, we do not feel inclined to uphold the
judgment of conviction and order of sentence passed by the
Learned Additional Sessions Judge, F.T.C., Simdega. The impugned
judgment of conviction and order of sentence dated 8.5.2008 and
22.05.2008

respectively, passed by Learned Additional Sessions Judge, F.T.C., Simdega, in Sessions Trial No. 74 of 2004 is set aside and the appeal is allowed. Accordingly, the appellant Arun Nayak is acquitted from the charges levelled against him and directed to be released forthwith from jail custody, if not wanted in any other case(s) and for that appropriate direction may be issued, if necessary, by the convicting/successor Court.

(D. N. Upadhyay, J.) (Ratnaker Bhengra, J.) High Court of Jharkhand at Ranchi, Dated, the14th day of January, 2016, SD/Amar/ N.A.F.R.

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