Jharkhand High Court
Abilas Hansda vs The State Of Jharkhand on 3 April, 2018
Author: H.C. Mishra
Bench: H.C. Mishra, B.B. Mangalmurti
Cr. Appeal (D.B.) No. 1258 of 2006
With
Cr. Appeal (D.B.) No. 1033 of 2006
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No. 1258 of 2006
With
Cr. Appeal (D.B.) No. 1033 of 2006
(Against the Judgement of conviction dated 23.06.2006 and Order of
sentence dated 26.06.2006, passed by the 4th Addl. Sessions Judge, F.T.C.,
Dumka, in Sessions Case No.154 of 2005 / 42 of 2005.)
1. Abilas Hansda
@ Abilas Soren
2. Dinesh Hansda
3. Doctor Hansda
4. Durga Hansda ... ... Appellants
(In Cr. Appeal No. 1258 of 2006)
1. Fulmani Soren @ Smt. Panda
2. Patamuni Murmu @ Patiyoti ... ... Appellants
(In Cr. Appeal No. 1033 of 2006)
Versus
The State of Jharkhand ... ... Respondent
(In both the appeals)
----------
CORAM: HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE B.B. MANGALMURTI
-----------
For the Appellants : M/s. Satish Kumar Deo, Amicus Curiae
(In Cr. Appeal No. 1258 of 2006)
Durga Charan Mishra, Advocate
(In Cr. Appeal No. 1033 of 2006)
For the State : M/s. Satish Kumar Verma, A.P.P.
----------
By Court :- As both these appeals arise out of the common Judgement of
conviction and Order of sentence, they are heard together and are being disposed of by this common Judgement.
2. Heard learned amicus curiae appointed by the Court for the appellants in Cr. Appeal No. 1258 of 2006 and learned counsel for the appellants in Cr. Appeal No. 1033 of 2006, as also learned counsel for the State.
3. The appellants in both these appeals are aggrieved by the Judgement of conviction dated 23.06.2006 and Order of sentence dated 26.06.2006, passed by the learned 4th Addl. Sessions Judge, F.T.C., Dumka, in Sessions Case No.154 of 2005 / 42 of 2005, whereby all these appellants have been found guilty and convicted for the offences under Sections 302 / 149 and 148 of the Indian Penal Code & Sections 3, 4 of the Prevention of Witch (Daain) Practices Act, whereas the appellants in Cr. Appeal No. 1258 of 2006 have also been found guilty and convicted for the offence under Cr. Appeal (D.B.) No. 1258 of 2006 With Cr. Appeal (D.B.) No. 1033 of 2006 -2- Section 201 of the Indian Penal Code. It may be stated that one more accused who was facing the trial along with these appellants, namely, Bhutal Murmu @ Motilal Murmu, has been acquitted by the Trial Court below. Upon hearing on the point sentence, the appellants have been sentenced to undergo R.I. for life for the offence under Sections 302 / 149 of the Indian Penal Code, R.I. for two years for the offence under Section 148 of the Indian Penal Code, R.I. for three months each for the offence under Sections 3 / 4 of the Prevention of Witch (Daain) Practices Act and the appellants in Cr. Appeal No. 1258 of 2006 have been further sentenced to undergo R.I. for five years each for the offence under Section 201 of the Indian Penal Code, and all the sentences were directed to run concurrently.
4. The prosecution case was instituted on basis of the fardbeyan of the informant, Mangal Tudu, who is the son of the deceased lady, recorded on 09.01.2005 at village Daldali (Dungridih), P.S. Shikaripara, District Dumka, wherein it is stated that the informant was four brothers and one sister, the youngest brother being Bulai Tudu. On the previous day, i.e., on 08.01.2005 at about 6:00-7:00 P.M. the informant came from his day's work and he slept in his house. At that time, his mother was talking with some persons at the village road. She had returned from market and she was also in a drunken state. When his mother entered the house, she rebuked her youngest son as he was not doing any household work, whereupon the younger two brothers of the informant went to sleep in another house. The mother came and slept with him. At about 9:00-10:00 P.M. in the night, the accused persons, namely, Akal Hansda, Abilash Hansda, Dinesh Hansda, Doctor Hansda, Dugra Hansda, his wife Patiyot, and the mother of the Abilas Hansda came variously armed and they were asking the mother of the informant to come out. It is alleged that they were branding the mother of the informant as Daain and they dragged the mother of the informant to the road, and near a cow-dung ditch she was assaulted by lathi due to which, she fell down. Thereafter, the accused persons assaulted her by tangi and stones, causing her death at the spot. When the informant and his brothers tried to save their mother, they were also threatened with the same consequence. It is stated that thereafter the informant with all his brothers went to the house of the village Pradhan at about 12:00 P.M in the night, who being a lady, did not come in the night. Thereafter, they also informed the Chowkidar and they also informed their uncle, Mistri Tudu, but as it was late night, no one came to the place of occurrence. At about 4:00 A.M in the morning, their uncle's son Sukul Tudu went out and returned back after 2-3 hours, and he informed that Cr. Appeal (D.B.) No. 1258 of 2006 With Cr. Appeal (D.B.) No. 1033 of 2006 -3- the accused persons were burning the dead body of her mother near a hill, where they were also taking liquor and they told him that his aunt had been killed and they had also performed her last rites. Sukul Tudu, came back due to fear. Thereafter, the informant alongwith other persons went to the place where his mother was killed and found the place to be smeared by cow-dung, but the blood stains and the blood stained stones were there. They also went to the place where the dead body of their mother was burnt and saw the drops of blood, flesh etc, along with the ashes and there was also the smell of burning of the flesh. On the basis of the fardbeyan of the informant, Shikaripara P.S. Case No. 05 of 2005, corresponding to G.R. No. 36 of 2005, was instituted for the offences under Sections 147, 148, 149, 364, 302 and 201 of the Indian Penal Code and Sections 3, 4 of the Prevention of Witch (Daain) Practices Act, against the named accused persons and investigation was taken up. After investigation the police submitted the charge-sheet in the case.
5. After commitment of the case to the Court of Session, charge was framed against all the accused persons for the offences under Sections 302 / 149, 364, 201 and 148 of the Indian Penal Code, and Sections 3, 4 of the Prevention of Witch (Daain) Practices Act, and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, ten witnesses were examined on behalf of the prosecution, including the Investigating Officer of the case.
6. P.W.-1 Mangal Tudu, the informant of the case, P.W.-3 Som Tudu and P.W.-4 Lukhiram Tudu, both the brothers of the informant, have supported the prosecution case, stating that in the night of the occurrence, the accused persons had dragged their mother from the house and had assaulted her by lathi, due to which, she fell down. Thereafter, she was assaulted by axe and stones causing her death, and her dead body was burnt. P.W.-1 Mangal Tudu has also proved his signature on the fardbeyan which was marked Exhibit-1. In his cross-examination, the informant has stated that the accused persons had dragged their mother to a distance of about 20 feet where she was assaulted and there was lot of blood. He has further stated that at the time of occurrence, he did not raise any alarm. P.W.-1 Mangal Tudu and P.W.-4 Lukhiram Tudu have also stated that from the place where the dead body was burnt, the burnt ashes and the burnt bones were recovered and seized by the police. P.W.-3 Som Tudu has however, stated in his cross- examination that he had not seen the accused persons assaulting his mother.
Cr. Appeal (D.B.) No. 1258 of 2006 With Cr. Appeal (D.B.) No. 1033 of 2006 -4-
7. P.W.-2 Chhabi Marandi, is the Gram Pradhan, who has stated that in the night of the occurrence, she was informed about the occurrence by the brothers of the informant and on the next day, she had informed the police. In her cross-examination, she has also stated that the police had seized the burnt bones from the place where the dead body was burnt.
8. P.W.-10 Sukul Tudu is the cousin of the informant and he has also supported the prosecution case as hearsay witness, stating that the informant and his brothers came to his house in the night and informed them about the occurrence. He has stated that in the morning, he had seen the accused persons burning the dead body.
9. P.W.-5 Badka Tudu, P.W.-6 Jothu Hembram, P.W.-8 Sujit Tudu and P.W.-9 Vinod Mirdha are the seizure list witnesses who have only proved their signatures on the two seizure lists, which were marked Exhibits-2, 3, 3/1 and 2/1 respectively.
10. P.W.-7 Shivnath Prasad is the Investigating Officer of the case. This witness has stated that on 09.01.2005, he was posted as Officer-Incharge of Shikaripara Police Station and on that day, he got the rumour about the occurrence in the village, whereupon, he came to the village of occurrence, where he recorded the fardbeyan of Mangal Tudu, which was read over to the informant, upon which the informant put his signature, and the witnesses put their thumb impressions. He has identified the fardbeyan to be in his pen and signature which was marked Exhibit-4. He has also proved the formal FIR which was marked Exhibit-5. He has stated that he took up the charge of investigation and he inspected the place of occurrence. He has given the details of the house from where the deceased was dragged to the first place of occurrence, where she was assaulted to death. The place was found to be smeared by cow-dung, but there were bloodstains therein. Three to four stones were also found there with bloodstains. At the distance of about half kilometer from that place, he found the freshly burnt ashes from which the smell of burnt flesh was also coming and some half burnt woods were also found. He seized the bloodstained soil mixed with cow-dung, the bloodstained stones and prepared the seizure list which he has proved and the same was marked Exhibit-6. He also seized the ashes and the half burnt woods and prepared the seizure list which he has proved and the same was marked Exhibit -6/1. He has stated that after completing the investigation, he submitted the charge-sheet. In his cross-examination, this witness has stated that he was not informed about the occurrence by anyone, not even by Chhabi Marandi, the Pradhan of the village, rather he had only heard the Cr. Appeal (D.B.) No. 1258 of 2006 With Cr. Appeal (D.B.) No. 1033 of 2006 -5- rumour, upon which he reached the place of occurrence. He has stated that he did not send the bloodstained soil or the stones for chemical examination and from the place where the dead body was burnt, he had not recovered even a single piece of bone. He has also stated that there was no remains of dead body in the ashes. He has denied the suggestion of making faulty investigation.
11. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused have denied the evidence against them. No defence witness was, however, adduced in the case.
12. Learned amicus curiae for the appellants in Criminal Appeal No.1258 of 2006 and the learned counsel for the appellants in Criminal Appeal No.1033 of 2006 have submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as, even the death of the deceased is not proved in the case. It is submitted by the learned counsels that the case is supported only by only P.W.-1 Mangal Tudu and his brothers, P.W.-3 Som Tudu and P.W.-4 Lukhiram Tudu, but in his cross-examination, P.W.-3 Som Tudu has clearly stated that he had not seen the occurrence. It is further submitted by the learned counsels that the dead body had not been found, as it is alleged to be burnt by the accused persons, but the I.O., P.W.-7 Shivnath Prasad has clearly stated that he did not find even a single piece of burnt bone or the remnant of the dead body in the ashes, even though, the other witnesses have clearly stated that the burnt bones were also seized by the I.O. It is further submitted by the learned counsels that though the bloodstains were found in the soil and the stones but the same were not sent for chemical examination which is fatal to the prosecution case, as the dead body was not found by the I.O. Learned counsels accordingly, submitted that even the very death of the deceased is very doubtful in the case. It is further submitted by the learned counsels that in the F.I.R., it is stated that the deceased mother of the informant was in a drunken state at the time of occurrence, and she had a quarrel with her youngest son, namely, Bulai Tudu. It is also stated in the FIR that at the time of occurrence, he was present, and all the brothers had gone to the house of the village Pradhan, but this witness was neither examined by the prosecution nor any witness has stated anything about him. Learned counsels accordingly, submitted that in the facts of this case, it cannot be ruled out the mother might have been killed by her youngest son during the quarrel, and the appellants have been falsely implicated in the Cr. Appeal (D.B.) No. 1258 of 2006 With Cr. Appeal (D.B.) No. 1033 of 2006 -6- case. Learned counsels accordingly, submitted that in the facts of the case, the appellants were entitled to the benefits of doubt.
13. Learned counsel for the State on the other hand, has opposed the prayer and has submitted that the prosecution case is fully supported by P.W.-1 Mangal Tudu, P.W.-3 Som Tudu and P.W.-4 Lukhiram Tudu and they have stated that at the time of occurrence, all the accused persons forming an unlawful assembly, variously armed with deadly weapons had come and dragged their mother from the house, assaulted her to death and thereafter, they burnt the dead body. There is nothing in their cross-examinations to discredit their testimonies and accordingly, the prosecution has been able to prove the charges against all the appellants beyond all reasonable doubts.
14. Having heard learned counsels for both sides and upon going through the record, we find that even though P.W.-1 Mangal Tudu, P.W.-3 Som Tudu and P.W.-4 Lukhiram Tudu, who are full brothers and sons of the deceased, have supported the prosecution case, but the fact remains that they are highly interested witnesses. Though it is a fact that the time of occurrence being dead night in the village, there was no possibility of other person to have witnessed the occurrence, but the fact remains that in the present case, even the dead body has not been found as it is alleged to be burnt by the accused persons. Since the dead body has not been found in the case, it was absolutely necessary and important to get the bloodstained soil and stones which were recovered by the police, and the burnt ashes, forensically examined, to establish that they were the human remnants, but in the case, this has not been done as is evident from the evidence of P.W.-7 Shivnath Prasad, the I.O. of the case. Even though the witnesses have stated that the I.O had recovered the burnt pieces of bones from the place where the dead body was burnt, but the evidence of I.O is quite contrary. He has stated that except ashes, he did not find any bone or any remnant of the dead body. As such, this is a case in which the death of the deceased has not been proved beyond all reasonable doubts. We also find some force in the submission of the learned counsels for the appellants that according to the FIR, the deceased was in a drunken state and she had rebuked her youngest son, Bulai Tudu, whose presence has been shown in the FIR, at the place of occurrence also, stating that all the four brothers had seen the occurrence and all of them had gone to inform the village Pradhan, but in the evidence, all the witnesses are absolutely silent about him, and he has not been examined by the prosecution. This also casts some doubt on the prosecution case. The Cr. Appeal (D.B.) No. 1258 of 2006 With Cr. Appeal (D.B.) No. 1033 of 2006 -7- deceased was allegedly assaulted to death on the village road, where according to the FIR, she was talking to some persons in a drunken state. There may be possibility of her being killed by those persons also. We are of the considered view that since the death of the deceased could not be established in the present case beyond all reasonable doubts, and the possibility of the deceased being killed by others cannot be not ruled out, the appellants were entitled at least to the benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law.
15. For the foregoing reasons, the impugned Judgement of conviction dated 23.06.2006 and Order of sentence dated 26.06.2006, passed by the learned 4th Addl. Sessions Judge, F.T.C., Dumka, in Sessions Case No.154 of 2005 / 42 of 2005, convicting and sentencing the appellants for the offences under Sections 302 / 149, 201 and 148 of the Indian Penal Code & Sections 3, 4 of the Prevention of Witch (Daain) Practices Act, are hereby, set aside. Consequently, all the appellants are given the benefits of doubt and they are acquitted of the charge. The appellants Abilas Hansda @ Abilas Soren, Dinesh Hansda, Doctor Hansda and Durga Hansda are in custody, undergoing the sentence. They are directed to be released and set at liberty forthwith, if their detention is not required in any other case. The appellants, Fulmani Soren @ Smt. Panda and Patamuni Murmu @ Patiyoti, are on bail, and they are discharged from the liabilities of their respective bail bonds.
16. Before parting with this Judgment, we must record that we have been given able assistance by the learned amicus curiae, Mr. Satish Kumar Deo. We accordingly, direct the Secretary, Jharkhand High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned amicus curiae. Let a copy of this Judgement be sent to the Secretary, Jharkhand High Court Legal Services Committee, Ranchi, for the needful.
17. Both these appeals are accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgement.
(H.C. Mishra, J.) (B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi.
Dated the 3rd of April, 2018.
D.S-.B.S/ N.A.F.R.