Jharkhand High Court
Mahadeo Oraon @ Nain vs The State Of Jharkhand on 3 February, 2022
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Sanjay Prasad
Cr. Appeal (DB) No. 834 of 2014
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Against the judgment of conviction and order of sentence dated 15.07.2014 and 19.7.2014 respectively, passed by Smt. Rita Mishra, learned Additional Judicial Commissioner, III cum F.T.C. (CAW), Ranchi in Sessions Trial No. 404 of 2011/T.R. No. 551 of 2013.
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Mahadeo Oraon @ Nain. .....Appellant
Versus
The State of Jharkhand. ....Respondent
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For the Appellant : Mr. Kumar Vaibhav, Amicus Curiae
For the State : Mrs. Nehala Sharmin, APP
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PRESENT
HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE SANJAY PRASAD
C.A.V. On 12.01.2022 Pronounced on 3/02/2022
R. Mukhopadhyay,J This appeal is directed against the judgment dated 15.7.2014, passed by Smt. Rita Mishra, learned Additional Judicial Commissioner, III cum F.T.C. (CAW), Ranchi in Sessions Trial No. 404 of 2011/T.R. No. 551 of 2013, by which the appellant has been convicted for the offence under section 302 of the Indian Penal Code and Section ¾ of the Prevention of Witch Craft Act and has been sentenced to undergo rigorous imprisonment for life along with a fine of Rs.2,000/- and in default of payment of fine he has been sentenced to undergo simple imprisonment for two months. The appellant has further been sentenced to undergo rigorous imprisonment for three months and is also liable to pay a fine of Rs.100/- and in default of payment of fine, he has been further sentenced to undergo simple imprisonment for ten days for the offence under section 3 of the Prevention of Witch Craft Practices Act. The appellant has also been sentenced to undergo rigorous imprisonment for six months and he is also liable to pay a fine of Rs.2,00/- and in default of payment of fine, he has been further sentenced to undergo simple imprisonment for fifteen days for the offence under section 4 of the Prevention of Witch Craft Practices Act. All the sentences imposed are to run concurrently.
2. The prosecution case arises out of the Fardbeyan given by Jiyura Oraon to the effect that on 8.4.2011, at about 6.30 A.M, the wife of the informant had gone to Jamuni river for washing her mouth as well as the utensils, at which point of time, Mahadeo Oraon @ Nain (appellant) came with a tangi and struck 2-3 times with the tangi on the head of the wife of the informant, which resulted in her becoming unconscious. In spite of the wife of the informant becoming unconscious, the appellant continued to assault her with kicks and slaps. When the informant who was nearby saw the incident he rushed to the place of -2- occurrence and the others who were nearby namely Bhagwat Bhagat, Gandri Orain and others also came and on seeing them the appellant fled away with the tangi towards Kakaria. The injured was taken to Bero hospital where she was being treated though her condition was stated to be serious. The reason for the occurrence as stated by the informant is that the brother of the appellant was suffering from mental illness for the last one year and the appellant used to say that the wife of the informant who practices witch craft had cast a spell of black magic over his brother. It has further been alleged that the appellant earlier used to issue threats of committing the murder of the wife of the informant.
3. Based on the aforesaid allegations, Lapung P.S. Case No. 16 of 2011 was instituted for the offences punishable under sections 341, 323, 307 of the Indian Penal Code and Section ¾ of the Prevention of Witch Craft Practices Act against the sole accused (appellant).
4. The wife of the informant was later on referred to RIMS, where in course of treatment, she died.
5. On conclusion of investigation, chargesheet was submitted for the offences punishable under sections 302 of the Indian Penal Code and Section ¾ of the Prevention of Witch Craft Practices Act against the sole appellant and after cognizance was taken, the case was committed to the Court of Sessions where it was numbered as S.T. No. 404 of 2011. Charges were framed under section 302 of the Indian Penal Code and Section ¾ of the Prevention of Witch Craft Practices Act, which was read over and explained to the accused in Hindi, to which he pleaded not guilty and claimed to be tried.
6. The prosecution in course of trial has examined as many as six witnesses in support of its case.
P.W-1-Yogendra Singh has stated that on 8.4.2011, he was posted at Kakaria Picket. In the morning, a person was seen standing near the gate with a tangi. When enquired, he disclosed that he had committed the murder of an old woman with the tangi. He had also disclosed that he had committed the murder since the old woman had done black magic upon his brother. This witness had called the officer in charge and briefed him about the incident. The officer in charge had come and they had gone to the place of occurrence, where seizure list was prepared. This witness has proved the seizure list, which bears his signature and which has been marked as Ext-1. He has further stated that in the place of occurrence, he had found an old woman lying on the ground, who was barely breathing. She was taken on a police vehicle to the hospital.
In cross-examination, he has stated that the person was having a tangi. He had not seen as to whether the tangi was blood stained or not.
-3-P.W-2-Raj Kishore Mishra was handed over the investigation by the officer in charge-Rajdeo Singh. He has stated that he had gone to the place of occurrence, which is situated in the southern part of Tetra village, Simartoli and in the northern part of Jamuni river. Towards the north east of the river is the agricultural field of Gandri Orain and in the north west is situated the agricultural field of Jiyura Oraon (informant) where he used to sprinkle water in the vegetables. In the south of the river is a sandy land and thereafter a small room for keeping the water pump. He had taken the statement of Gandri Orain at the place of occurrence and thereafter the statement of Bandhana Oraon was recorded. He had also recorded the restatement of the informant and had further taken the statement of Etwa Oraon. When he reached Kakaria Police Picket, he arrested the appellant, who was having a 'tangi' with him. He had prepared the seizure list in Kakaria Picket and had also recorded the statement of the seizure list witnesses namely Robert Barla and Yogendra Singh. The injured was already taken by the villagers to Bero Health centre, from where she was referred to RIMS, wherein in course of treatment, she died. This witness had also obtained the postmortem report.
In course of investigation, he had taken the statement of independent witnesses-Sukra Oraon and Jharia Oraon. He has identified the fardbeyan, which is in the handwriting of Rajdeo Singh and which bears his signature and which has been marked as Ext-2. The pagination in the fardbeyan is of Rajdeo Singh, which has been proved and marked as Ext-2/A. The formal FIR has been proved as Ext-2/B. On completion of investigation and on the orders of the superior authority, chargesheet was submitted under section 302 of the Indian Penal Code and Section ¾ of the Prevention of Witch Craft Practices Act.
In cross-examination, this witness has stated that the fardbeyan was recorded on 9.4.2011 at RIMS. Apart from this fardbeyan, the officer incharge of Lapung P.S. had recorded another fardbeyan on 8.4.2011 at 11.30 A.M. at Bero Primary Health Centre. He had taken the statement of Bhagwat Bhagat and Gandri Orain and after perusing the case diary he has stated that he had not taken their statements. The iron tangi was brought by the appellant and it was seized at Kakaria Picket. He has further stated that he had not taken the statements of Kauleshwar Bhagat and Bhagwat Bhagat, whose signature finds place in the second fardbeyan.
P.W-3-Gandur Oraon has stated that at around 6 A.M. when his sister in law Jago Orain was hacked to death by the appellant with tangi near Jamuni river, he was at his house and rushed to the place of occurrence on hearing a cry of alarm from his brother. She was taken to Bero hospital and thereafter to -4- Bariatu and at Bariatu she breathed her last. His sister in law was killed by branding her as a witch. He has stated that when he had reached the place of occurrence, the accused had already fled away towards Kakaria.
In cross-examination, this witness has stated that he had seen the appellant fleeing away.
P.W-4-Bandhana Oraon has stated that the incident had occurred about two years back. It was around 6 A.M. and he was at his house when on hearing some commotion he had reached the bank of Jamuni river. He had seen Jago Orain with the injuries on her head and blood coming out of her wounds. She was taken to Bariatu, where she died. She was assaulted with a tangi by the appellant by calling her a witch.
In cross examination, he has stated that he had not seen as to who had assaulted Jago Orain. He had reached the place of occurrence after 30 minutes. He has further stated that there was no one present at the place of occurrence except Jiyura and Gandur Oraon. He was told by Mahadeo (appellant) that he had murdered Jago since she practiced witch craft.
P.W-5-Jiyura Oraon is the informant of the case, who has stated that the incident had occurred about two years back in the month of Chait. It was around 6 A.M. when he was sprinkling water near Jamuni river and his wife Jago was washing her mouth in the river. Suddenly, there was a cry of alarm of his wife and he had seen the appellant striking three tangi blows on the head of his wife and thereafter fleeing away. He brought his wife to his house and she was thereafter taken to Bero hospital and then to RIMS where after one hour, she died. The appellant had murdered his wife by calling her a witch.
In cross-examination, he has stated that at the time of the incident, Bhagwat Bhagat and Gandri Orain were also present with him. The appellant had himself told his wife that she is a witch. This witness has stated that he had reached the place of occurrence immediately after the incident and thereafter Gandri reached who gave the victim water and subsequent thereto, Bhagwat and brother of this witness reached at the place of occurrence. He has stated that his statement was taken by the police at Bero hospital as well as at RIMS.
P.W-6-Dr. Binay Kumar was posted as a tutor in the Department of Forensic Medicine and Toxicology, RIMS, Ranchi on 9.4.2011, on which date, he had conducted autopsy on the dead body of Jago Orain and had found the following injuries.
Injuries:-
Lacerated wound:-5 cm x 2cm x bone deep over the left parietal eminence. Incised wound:5 cm x 1 ½ cm x subcutameous tissue deep over fronto--5-
lateral aspect of left thigh lower part directed tangentially forward, downward and medially.
There is fracture of lower part of left femur. There is diffuse contusion of posterior part of left temporo-parietal scalp and left temporalis muscle.
Depressed fracture:- (i) 5 cm x 4 cm over left parietal eminence lacerating underneath brain substance. (ii) 6 cm x 6 cm over left temporal bone lacerating underneath brain substance.
There is linear fracture 4 cm long joining the depressed fracture no. 1 and upper end of left lamboid suture.
Both sides of the brain are diffusely contused with presence of subdural blood and blood clot diffusely".
He has given the following opinion:-
Opinion:1. Above noted injuries are ante-mortem in nature. (2) Caused by hard and blunt substance except the incised wound, which is caused by sharp cutting weapon. (3) Death is due to combined effect of head injury and hemorrhagic shock. (4) Time elapsed since death is 24 hours(+)(-)06 hours from the time of postmortem examination.
He has proved the postmortem report, which has been prepared by him and which bears his signature and seal as well as the countersignature of the head of the department Professor A.K. Choudhary and which has been marked as Ext-3.
In cross-examination, he has stated that the injuries sustained could also happen by falling on a stony surface several times.
7. The appellant was examined under section 313 Cr.P.C. to which he has simply denied of having committed the offence.
8. Mr. Kumar Vaibhav, learned Amicus Curiae, has submitted that the evidence of the witnesses suffers from contradictions and infirmities. It has been submitted that P.W-3, P.W-4 and P.W-5 have consistently stated that the time of occurrence is 6 A.M. but in the First Information Report, the same has been mentioned as 6. 30 A.M. While referring to the evidence of P.W-4-Bandhana Oraon, learned counsel submits that though in the chief, he had disclosed that Jago Orain was murdered by the appellant with a tangi but in his cross- examination, he has stated that he had not seen as to who had committed the murder and infact he had reached the place of occurrence after 30 minutes. Learned counsel has submitted that though Mahadeo (appellant) had stated about the disclosure of the murder committed by him by calling the deceased a witch but the same is contradicted by his own statement that only Jiyura (informant) and Gandura Oraon were present. Learned counsel further submits -6- that there are varied contradictions with respect to the manner, in which the victim reached the health centre at Bero. P.W-1 has deposed that the victim was taken to the health centre in a police vehicle while P.W-2 (I.O.) has stated about she being taken to the health centre by the villagers. Further contradictions according to the learned Amicus Curiae has emanated from the evidence of P.W- 5, who has stated that he had brought his wife to the house and thereafter had taken her to the health centre. While referring to the evidence of P.W-5, Mr. Vaibhav has stated that the same is not credible and trustworthy and undue reliance has been placed on his evidence though it is a settled principle of law that the evidence of a closely related witness has to be scrutinized by the Court more vigorously. He has submitted that in his evidence P.W-5 has stated about the appellant fleeing away after striking three tangi blows upon the victim which contradicts his fardbeyan which narrates that the victim was assaulted on her head by the appellant with the blunt portion of the tangi 2-3 times and when she became unconscious, the appellant had continued to assault her with legs and fists. Learned counsel submits that P.W-3 is also an interested witness since he is related to P.W-5 and therefore his evidence is also not trustworthy. The version of the informant (P.W-5) with respect to the manner of assault is not corroborated by the medical evidence. Several witnesses had reached the place of occurrence immediately after the incident had taken place including Bhagwat Bhagat and Ganduri Orain but these independent witnesses were not examined. He adds that neither the seized tangi was produced before the Court as material exhibit nor is there any serological report with respect to the said tangi. It has been submitted that the learned trial Court has come to the conclusion only on the basis of surmises and conjectures and had not taken into consideration the various contradictions and infirmities appearing in the same. Learned counsel adds that P.W-2 in his evidence has not stated about the reason for the occurrence in the second fardbeyan.
9. In support of his various contentions, learned Amicus Curiae has referred to the cases of State of Rajasthan Vs. Madan, reported in (2019) 13 SCC 653; Ram Swaroop and others Vs. State of Rajasthan, reported in (2004) 13 SCC 134; Joseph Vs. State of Kerala, reported in (2003) 1 SCC 465; Yogesh Singh Vs. Mahabeer Singh and others reported in (2017) 11 SCC 195; Abdul Sayeed Vs. State of Madhya Pradesh reported in (2010) 10 SCC 259; Harjinder Singh @ Bhola Vs. State of Punjab reported in (2004) 11 SCC 253; Niranjan Panja Vs. State of West Bengal reported in (2010) 6 SCC 525; Kartare and others vs. State of U.P. reported in (1976) 1 SCC 172; Ganesh Datt Vs. State of Utrakhand reported in (2014) 12 SCC 389; Mukhtiar Singh and Another Vs. -7- State of Punjab reported in (1995) 1 SCC 760 and Nachhittar Singh Vs. State of Punjab reported in (1975) 3 SCC 266.
10. Per Contra, Mrs. Nehala Sharmin, learned A.P.P., submits that the allegation of the appellant assaulting the wife of the informant on head with a tangi is corroborated by the medical evidence as depressed fracture was detected over left parietal eminence lacerating underneath brain substance and over left temporal bone lacerating underneath brain substance. She submits that the lacerated wound over the left parietal region was caused by hard and blunt substance, which commensurates the evidence of P.W-5 who has stated that the wife of the informant was assaulted by the appellant with the back portion of the tangi. Mrs. Sharmin, learned A.P.P., has also drawn the attention of the Court to the evidence of P.W-2 who has stated that the appellant was assaulted with a tangi. The version of P.W-2 finds support from the evidence of P.W-1 whose evidence indicates that the appellant was standing outside the picket with a tangi and he had disclosed about committing the murder of an old woman with a tangi. Learned A.P.P. has also submitted that the evidence of P.W-5 does not arouse suspicion and infact though he is the solitary eye witness, the presence of the appellant at the place of occurrence seems to gain credence by virtue of the deposition of P.W-3 who had seen the appellant fleeing away from the place of occurrence.
11. Learned counsel for the appellant has tried to dispute and discard the evidence of P.W-5 referring to the various contradictions in his evidence which according to him would demolish the edifice built by the prosecution, which primarily revolves around the evidence of P.W-5.
12. We are conscious of the fact that P.W-5 according to the prosecution is the sole eye witness and he is also the husband of the deceased and therefore abundant caution has to be adopted while scrutinizing his evidence. In this context, we may refer to the judgement of the Hon'ble Supreme Court in the case of Joseph Vs. State of Kerala (supra) which was preferred against an order of the High Court, which had set aside the order of acquittal of the trial court and convicted the appellant. The conviction was based on the evidence of a sole eye witness and while allowing the judgement, it was held as follows:-
" 12. In a case of this nature when there is a sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. What is urged before the Court is that FIR Exhibit P-1 contained signature of a doubtful character which PW 1 himself admitted as having been different from the one given by him on the acknowledgement of having received the summons. How far reliance can be placed upon his evidence when PW 1 stated that he had rushed to the junction to inform PWs 2 to 4 and thereafter rushed back to the place of the incident, while the deceased also ran to the western side of the place of incident -8- though he was profusely bleeding and he got hold of his wound by his hand and ran. If that is so, there would have been blood all over the place and not at one particular point. The abrasion on the neck of PW 1 could have been caused by a nail scratch and not by a weapon and was not a bleeding injury will clearly belie the statement made by him that he was profusely bleeding. If really the witness (PW 1) was wearing bloodstained clothes the same would have been certainly seized by the police for appropriate investigation of the same. Particularly, when the trial court had given cogent reasons to acquit the accused, the High Court ought not to have interfered with the same merely because another opinion is possible and not that the finding concluded by the trial court was impossible.
13. To our mind, it appears that the High Court did not follow the aforesaid standard but went on to analyse evidence as if the material before them was given for the first time and not in appeal. Section 134 of the Indian Evidence Act provides that no particular number of witnesses shall in any case be required for the proof of any fact and, therefore, it is permissible for a court to record and sustain a conviction on the evidence of a solitary eyewitness. But, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. By this standard, when the prosecution case rests mainly on the sole testimony of an eyewitness, it should be wholly reliable. Even though such witness is an injured witness and his presence may not be seriously doubted, when his evidence is in conflict with other evidence, the view taken by the trial court that it would be unsafe to convict the accused on his sole testimony cannot be stated to be unreasonable."
13. In the case of Yogesh Singh Vs. Mahaveer Singh and others (supra), it was held thus:-
"28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witness is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai v. State of Bihar, State of U.P. v. Jagdeo, Bhagaloo Lodh v. State of U.P, Dahari v. State of U.P., Raju v. State of T.N, Gangabhavani v. Rayapati Venkat Reddy and Jodhan v. State of M.P).
14. Equipped with the aforesaid principles regarding a solitary eye witness and a related witness, we shall now scrutinize the evidence of P.W-5 who has both the features, as stated above. P.W-5 in his examination in chief has deposed that when his wife cried in alarm while she was washing her mouth in the river, he rushed to the place of occurrence and saw the appellant giving three tangi blows on the head and thereafter fleeing away. This witness was sprinkling water near Jamuni river which is near the place where his wife was washing her mouth. The reasons for presence of P.W-5 at the place of occurrence is enhanced by the evidence of the Investigating Officer (P.W-2) who while describing the place of occurrence has stated that in the north west side of the river is situated the farm land of Jura Oraon ( P.W.-5) where onion and other green vegetables were planted and water was being sprinkled upon them by P.W-5. It has been deposed by P.W-5, that his brother- Gandura was also with him and his wife was brought to the house and thereafter to Bero hospital. P.W-
-9-3 Gandura Oraon has stated about reaching the place of occurrence on hearing the cry of alarm from P.W-5. In his cross-examination, he has stated of having seen the appellant fleeing away. The presence of the appellant in the place of occurrence as stated by P.W-5 seems to have been bolstered by the evidence of P.W-3. Another noticeable feature, which can be culled out from the evidence of P.W-3 and P.W-5 is that both have stated that the appellant had fled away towards Kakaria and the evidence of P.W-1 indicates that the appellant was found standing with a tangi in the morning in front of Kakaria Picket.
15. Learned counsel for the appellant has stated about non examination of material witnesses and in such contention, reference has been made to the case of Harjinder Singh @ Bhola Vs. State of Punjab (supra), wherein it was held as follows:-
"11. Another important factor is that Chowkidar Nahar Singh and PW 3's servant Pritam Singh who gathered on the spot allegedly after the incident and were put on guard of the dead body were not examined. Though one of them was cited as witness, he was given up by the Public Prosecutor as being unnecessary. The evidence of the persons who gathered immediately after the occurrence on hearing the alleged cries of PWs 3 and 4 would have been a valuable piece of evidence to serve as corroboration of the account given by the direct witnesses, especially when the presence of the alleged eyewitnesses at the spot was too much of a coincidence. No reason is forthcoming for not examining them. This is another serious lapse which casts a doubt on the prosecution case".
16. In the case under reference, P.Ws. 3 and 4 apart from being the close relatives of the deceased were chance witnesses as well and their eye witness account was doubted and therefore the cause arose of non-examination of the persons who had supposedly gathered at the place of occurrence on the cries of alarm of P.W-3 and P.W-4. It was essential under the circumstances for the prosecution to examine such independent witnesses as corroborative evidence.
17. The appeal we are dealing with does not present such scenario. It is no doubt true that P.W-5 in his deposition has stated about the presence of Bhagwat Bhagat and Gandura Orain at the place of occurrence. P.W-4 has also noted the presence of Gandura Orain as well as the informant (P.W-5) in the place of occurrence. The non examination of Bhagwat Bhagat and Gandura Orain would have jeopardized the evidence of P.W-5 if the other circumstances did not warrant supportive evidence to P.W-5. The evidence of P.W-5 appears to be wholly reliable and has gathered support from the evidence of P.W-3. The evidence of P.W-5 instils confidence and as we would hold later overwhelms the minor contradictions which has been highlighted by the defence. The non examination of the witnesses who had come to the place of occurrence at the time of the incident would have no bearing in the prosecution case if considered in the backdrop of the evidence of P.W-5 and P.W-3. Certain contradictions have -10- been stressed upon by the learned Amicus Curiae with respect to preparation of seizure list of the seized tangi, the place where the deceased was immediately taken after the incident and the means through which she was taken, the time of the incident mentioned in the FIR and the time of occurrence as stated by P.W- 3, P.W-4 and P.W-5. These contradictions are not of such a nature to disrupt the prosecution case. In every trial, contradictions appear and for a witness, whose evidence is natural and bereft of any major additions or subtractions such minor discrepancies would not render such evidence fallible. As has been held in the case of State of Rajasthan Vs. Madan (supra) "it is the duty of the Court to separate the grains from the chaff and to extract the truth from the mass of evidence".
18. Therefore the plea raised by the learned Amicus Curiae does not make a dent in the prosecution case.
19. Another contention raised by the learned Amicus Curiae is the inconsistency in the First Information Report if correlated with the evidence of the informant (P.W-5). In this connection, he has referred to the case of Ram Swaroop and Others Vs. State of Rajasthan (supra) wherein it was held as follows:-
"22. We cannot approve of this approach of the High Court because the version disclosed in the first information report is so different from the version disclosed in the course of deposition of PW 8 that it cannot be said to be merely clarificatory".
20. Referring to the medical evidence, learned counsel has submitted that no incised wound was found on the head of the deceased though she was assaulted with a tangi. The incised wound found on the thigh does not match with the version of the informant in the First Information Report as well as in his evidence as P.W-5. The case of Abdul Syeed Vs State of Madhya Pradesh (supra) has been cited by him to drive home his point and the relevant reads thus:-
"39. Thus, the position of law in cases where there is a contradiction between medical evidence 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".
21. The version of the informant in the First Information Report as well as in his evidence as P.W-5 appears to be consistent and does not waver except with respect to the time of the incident and the difference of thirty minutes appears to be quite probable considering the fact that the evidence of the informant was recorded after almost two years from the date of the incident. There has been -11- no exaggeration in his evidence as P.W-5 as he seems to have more or less stuck to his version given in the First Information Report. Therefore the judgments cited by the learned Amicus Curiae in the case of Ram Swarup and others Vs. State of Rajasthan (supra) is not at all applicable in the facts and circumstances of the present case.
22. So far as the medical evidence is concerned, it was opined by P.W-6 that the head injuries were caused by hard and blunt substance. In the FIR, the informant had stated about the assault committed on the head of his wife with the back portion of the tangi, though in his evidence, he has stated about the appellant giving three tangi blows. As P.W-5, he has not specifically stated as to whether the assault was committed with sharp or blunt portion of the tangi but absence of such specifications would not be of any advantage to the case of the defence primarily because the medical evidence supports the version given in the FIR.
23. As regards the incised wound found on the thigh is concerned, we must bear in mind that it was an indiscriminate assault with a tangi and non-description of such injury by the informant would not discredit the prosecution case. By no stretch of imagination, it can be concluded that the medical evidence has made the ocular evidence improbable, rather, on the contrary the medical evidence has made the ocular evidence all the more probable.
24. The non-seizure of the tangi, absence of forensic examination and non- production of the tangi before the Court, are some of the other submissions made by the learned Amicus Curiae. For these, he has placed reliance in the case of Niranjan Panja Vs. State of West Bengal (supra) as well as Kartare and others vs. State of U.P.(supra). Admittedly, there is no report of the Forensic Science Laboratory on the record. The seizure list also does not seem to bear the signature of the appellant. These circumstances could have been a vital cog in the wheel of the defence had the entire case been based on circumstantial evidence. The role of the Investigating Officer also leaves much to be desired. His evidence as P.W-2 does not speak of sending the tangi to the Forensic Science Laboratory. The tangi, which was a material exhibit, was not produced before the Court. Regarding lapses in conducting the investigation, we may quote from the judgement rendered by the Hon'ble Supreme Court in the case of Sunil Kundu and others Vs. State of Jharkhand, reported in (2013) 4 SCC 422, which reads thus:-
"29. We began by commenting on the unhappy conduct of the investigating agency. We conclude by reaffirming our view. We are distressed at the way in which the investigation of this case was carried out. It is true that acquitting the accused merely on the ground of lapses or irregularities in the investigation of a case would amount to putting premium on the deprecable conduct of an -12- incompetent investigating agency at the cost of the victims which may lead to encouraging perpetrators of crimes. This Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored. In this case, the lapses are very serious. PW 5 Jaldhari Yadav is a pancha to the seizure panchnama under which weapons and other articles were seized from the scene of offence and also to the inquest panchnama. Independent panchas have not been examined. The investigating officer has stated in his evidence that the seized articles were not sent to the court along with the charge-sheet. They were kept in the malkhana of the police station. He has admitted that the seized articles were not sent to the forensic science laboratory. No explanation is offered by him about the missing sanha entries. His evidence on that aspect is evasive. Clothes of the deceased were not sent to the forensic science laboratory. The investigating officer admitted that no seizure list of the clothes of the deceased was made. Blood group of the deceased was not ascertained. No link is established between the blood found on the seized articles and the blood of the deceased. It is difficult to make allowance for such gross lapses. Besides, the evidence of eyewitnesses does not inspire confidence. Undoubtedly, a grave suspicion is created about the involvement of the accused in the offence of murder. It is well settled that suspicion, however strong, cannot take the place of proof. In such a case, benefit of doubt must go to the accused. In the circumstances, we quash and set aside the impugned judgment and order1. The appellant-accused are in jail. We direct that the appellants A-1 Sunil Kundu, A-2 Bablu Kundu, A-3 Nageshwar Prasad Sah and A-4 Hira Lal Yadav be released forthwith unless otherwise required in any other case".
25. Despite the existence of such lapses, the evidence put forward by the prosecution is of immaculate quality and which has been discussed in the preceding paragraphs and therefore such incongruities as stated by the learned Amicus Curiae would not dislodge the case of the prosecution.
26. So far as the motive is concerned, reliance has been placed in the case of Nachitar Singh Vs. State of Punjab (supra) wherein it has been held thus:-
"10. Be that as it may, the failure of the prosecution to establish the motive for the crime does not mean that the entire prosecution case has to be thrown over- board. It only casts a duty on the Court to scrutinise the other evidence, particularly of the eyewitnesses, with greater care. The High Court was fully conscious of the need for such caution, and rightly observed: "The absence of proof of motive has this effect only that the other evidence bearing on the guilt of the accused has to be very carefully examined". Indeed, the High Court did so. The conviction of the appellant mainly rests on the evidence of Bhagwan Kaur, PW 2 which had been corroborated in material particulars by independent evidence, including that of the Ballistic Expert, Mr J.K. Sinha".
27. The motive attributed to the appellant appears to be the mental illness suffered by the brother of the appellant due to witch craft practiced by the deceased. The motive has been stated in the FIR. P.W-1 has stated about the disclosure made by the appellant that he had committed the murder due to the witchcraft practiced upon his brother. P.W-2 in his Examination in Chief has stated about the murder committed by the appellant as the deceased was practicing witchcraft. P.W-4 had appeared later on at the place of occurrence but -13- in his cross-examination he has stated about the threats of murder given earlier by the appellant. P.W-5 in his cross-examination has stated that it was not because the appellant called his wife a witch which resulted in institution of the case but at the same time he has also stated that no one except the appellant used to call the deceased a witch. The aforesaid circumstances therefore clearly indicates existence of a motive.
28. In view of the discussions made hereinabove, we find and hold that the learned trial court had rightly convicted the appellant for the offence under sections 302 of the Indian Penal Code and Section ¾ of the Prevention of Witch Craft Practices Act and sentenced him to undergo rigorous imprisonment for life along with a fine of Rs.2,000/-, rigorous imprisonment for three months and for the offence under section 3 of the Prevention of Witch Craft Practices Act and rigorous imprisonment for six months and fine of Rs.2,00/- for the offence under section 4 of the Prevention of Witch Craft Practices Act.
29. This appeal accordingly stands dismissed.
(Rongon Mukhopadhyay,J) (Sanjay Prasad, J) Jharkhand High Court, Ranchi Dated_3rd February, 2022 Rakesh/NAFR