Jharkhand High Court
Gangiya Devi vs The State Of Jharkhand on 10 February, 2022
Author: Navneet Kumar
Bench: Navneet Kumar
1 Cr. Appeal (SJ) No. 1389 of 2004
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1389 of 2004
------
(Against the judgment of conviction and order of sentence dated 01.07.2004 passed by the learned 9th Additional Sessions Judge, Hazaribagh in Sessions Trial No. 261 of 2001 corresponding to G.R. Case No. 1743 of 2000, Barkatha P.S. Case No. 65 of 2000 Hazaribagh, Jharkhand.)
1. Gangiya Devi
2. Yuglal Yadav ... ... Appellants Versus The State of Jharkhand ... ... Respondent
-------
CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
-------
For the Appellants : Mr. Awnish Kumar, Advocate For the Respondent : Mr. Shiv Shankar Kumar, A.P.P.
-------
HON'BLE MR. JUSTICE NAVNEET KUMAR Order No. 05: Dated: 10th February, 2022
1. This appeal is directed against the judgment of conviction and order of sentence dated 01.07.2004 passed by the learned 9th Additional Sessions Judge, Hazaribagh in Sessions Trial No. 261 of 2001 whereby the learned trial court after finding the guilt of the accused persons for the offence punishable u/s 498-A of IPC, convicted and sentenced them to undergo S.I. for a period of one year and a fine of Rs. 100/- each and in default of payment of fine they were directed to undergo for SI for one month.
2. The prosecutions story arose in the wake of fardbeyan of one Sanichar Yadav (P.W.7), the father of the deceased. The statement was recorded by S.I. of Bakratha Police Station in the District of Hazaribagh on 13.08.2000 at 11.30 hours. The statement of Sanichar Yadav, the informant, is as follows:
That the daughter Suma Devi of the informant got married with Baijanath (not made accused) 9 yrs ago and thereafter she was kept two years properly in her matrimonial house, later on her in-
2 Cr. Appeal (SJ) No. 1389 of 2004 laws people Gangiya Devi (appellant no.1), Gobardhan (deceased appellant died during the pendency of the appeal and his name was deleted after abatement) and husband's younger brother Yuglal (Appellant no. 2) tortured her under the garb of accusing her that she has brought ghost (evil spirit) from her paternal house, due to which his family was being harassed and animals were dying and also the problem of child birth taking place in the family and one Kaila Rana (not as appellant before this Court although he was convicted and sentenced for the offence punishable under section 352 of IPC) of the said village was practicing exorcism i.e. to release the supposed evil spirit from her. The said informant's daughter was under the effect of evil spirit and that said ghost-evil spirit was belonging to her parental house and due to such impression of the said Kaila Rana, the members of her matrimonial house (appellants) were convinced about the presence of evil spirit in her and in the absence of her husband, who was living in Calcutta, the family members used to torture her, due to such torture she took shelter in her parental house but after being persuaded she was sent back to her matrimonial home (Sasural). It has further been stated by the informant that on 13.08.2000 one Horil Yadav who happened to be maternal grandson of informant reached to him and narrated that the dead body of Suma was lying inside the well. On getting this information, the informant went to village-'Barwan' and made query and came to know that in the preceding night the said ojha (evil spirit healing/witch doctor) Kaila Rana did the act of exorcism upon the deceased Suma in presence of her in-laws and husband's younger brother and when Suma protested, all of them tortured and assaulted her due to which she, under compulsion of such torture, jumped into the well and thereby committed suicide. The informant alleged that the in-laws people including mother-in-law, father-in- law and brother-in-law (dewar) under the garb of branding her as
3 Cr. Appeal (SJ) No. 1389 of 2004 ghost-evil/witch used to cause torture and harass her due to which she committed suicide by jumping into the well.
3. On the basis of the aforesaid fardbeyan, FIR was lodged, the case was registered under sections 306/34 of IPC against the accused and investigation was taken up. After investigation, the police submitted charge sheet in this case, on the basis of which, cognizance of the offence was taken and the case was committed to the Court of Sessions and after the conclusion of trial, learned trial court passed the impugned judgment of conviction and order of sentence, which is under challenge in this appeal.
4. It appears from the record that the appellant no.1- Gowardhan Yadav died during pendency of this appeal and none of his close relative came forward to continue this appeal and hence this appeal was abated with respect to this appellant and his name has been deleted from the cause title of memo of appeal.
5. Heard Mr. Awnish Kumar, learned counsel for the appellants and Mr. Shiv Shankar Kumar, learned A.P.P. for the State.
Arguments on behalf of the appellants.
6. Assailing the impugned judgment of conviction and order of sentence, the learned defense counsel for the appellants submitted that the judgment of conviction and order of sentence is bad in law and is not sustainable. The learned trial Court has not considered the defence of the appellants and also the material contradictions in the statement of the witnesses, even the statement of the accused persons u/s 313 of Cr.P.C. has not been recorded properly and the learned trial Court has failed to appreciate the deposition of the partisan witnesses including P.W. 1, P.W. 2, P.W. 3, P.W. 4 & P.W. 5.
It has also been pointed out that the non-examination of the I.O. has caused serious prejudice to the defence case. They have been debarred form bringing contradictions in the earlier statement 4 Cr. Appeal (SJ) No. 1389 of 2004 of the prosecution witnesses recorded by the I.O. during the course of the investigation in order to appreciate the truthfulness and veracity of their testimonies.
Further, it has also been pointed out that during the post mortem the doctor P.W. 6, has also not found any external injury in order to substantiate the allegations that the deceased was assaulted by these appellants in the preceding night and, therefore, there was no question of causing torture and cruelty within the meaning of section 498-A of IPC and therefore, the impugned judgment of conviction and order of sentence deserves to be set aside.
Arguments on behalf of the learned A.P.P.
7. The learned A.P.P. appearing for the State opposed the contentions raised on behalf of the appellants and submitted that the learned trial court has rightly convicted the accused appellants for the offence punishable u/s 498-A of IPC because all the witnesses have supported the charges that the appellants were causing torture and ill-treating the deceased by branding her as Ghost and one ojha (supposedly evil spirit healer) Kaila Rana was practicing black magic upon her to treat her from the evil spirit and the appellants with the help of co-accused Kaila Rana were causing torture and cruelty upon her and, therefore, the learned trial Court has rightly held the appellants guilty for the offence punishable u/s. 498-A of IPC and this appeal is fit to be dismissed for want of merit.
Appraisal & Findings
8. Having heard the parties, perused the materials available on record including the Lower Court Records.
9. Both the appellants along with co-accused, Kaila Rana who is not the appellant before this Court, who used to ill-treat the deceased Suma Devi under the pretext of branding her as 5 Cr. Appeal (SJ) No. 1389 of 2004 witch/ghost/evil spirit and have been convicted for the offence punishable under section 498-A of the Indian Penal Code although they were charged under section 306 of the IPC also but they have been acquitted under section 306 of the IPC as the offence of abetment to commit suicide could not be proved by the prosecution.
10. Accordingly, this court confines its analysis and re- appreciation of evidences only to the allegations of torture and cruelty by the appellants to the victim Suma Devi within the meaning of section 498-A of IPC.
11. P.W. 2- Punwa Devi, who is said to be the cousin sister of the deceased, categorically stated in her cross examination that Suma was having a good relationship with her father-in-law (since deceased), mother-in-law, Gangiya Devi (Appellant no.1) and brother-in-law, Yuglal Yadav (Appellant no.2), who are the appellants. She stated in her cross examination that the deceased appellant Gobardhan Yadav (father-in-law), the appellant no. 1 Gangiya Devi (Mother-in-law) and appellant no. 2-Yuglal Yadav (brother-in-law) was having a good relationship with her. She further stated in a very lucid language that the deceased was under
the depression and trauma for want of child and one co-accused Kaila Rana being Ojha was practicing exorcism with her (jharfunk) for bearing child. She also stated in her cross examination that the deceased appellant father-in-law, was having a good relationship with the father of the deceased namely Sanichar Yadav.
She also stated that she has not seen that the deceased Suma was jumping into the well and she categorically stated that she did not know about the act of exorcism (jharfunk) and thus she has not supported the case of the prosecution that any kind of torture or cruelty caused by the appellants with the deceased or the act of exorcism (jharfuk) done by these appellants to bring their act within the meaning of cruelty or willful conduct in order to invoke the 6 Cr. Appeal (SJ) No. 1389 of 2004 offence punishable under section 498-A of the IPC.
12. P.W. 1- Degan Mahto is a co-villager and in his examination in chief he did not depose about any kind of cruelty or torture by any of the appellant and he sweepingly stated that the appellants and co-accused Kaila Rana were practicing exorcism (jhar funk) with the deceased accusing her that she had come from her parents house with evil spirits (Ghosts). There is neither any specific allegation against any one of the appellants either against the mother-in-law, appellant no. 1 or against the brother-in-law appellant no. 2. Further in the cross examination, this witness stated that he did not see any kind of injury on the body of the deceased and in the cross examination he categorically stated that it was the co-accused Kaila Rana who was practicing exorcism (jharfunk) with the deceased and none of the appellants. This witness has also stated that the husband of the deceased was having cordial and happy relationship with the deceased and the husband used to send money also to his wife (deceased). There is only blanket and exaggerated statement by this witness about the assault and no specific allegation against any of the appellant and this witness P.W.1 is a hearsay witness. The attention of this witness was drawn on his earlier statement given by this witness before the police as to whether the act of exorcism had taken place at the residence of the deceased appellant Gobardhan Yadav, but, since the I.O. in this case has not been examined and, therefore, the defense has been debarred form bringing any contradiction in order to appreciate the truthfulness and credibility of this witness and, thus, it has caused serious prejudice to the defence.
13. P.W. 3- Loknath Yadav is uncle of the deceased. He is also not the eye witness and did not state pointedly beyond doubt about the practicing of exorcism by these appellants. This witness did not see the act of exorcism. There is only a sweeping and general statement 7 Cr. Appeal (SJ) No. 1389 of 2004 in the examination-in-chief that she was subjected to torture and cruelty under the pretext of practicing exorcism because she was not bearing child even after the 7 years of marriage. This witness further stated, being the uncle and being the brother of the father of the informant of the deceased, that the husband Baijnath of the deceased was having a good relationship with the in-laws and, therefore, the charge of causing torture and cruelty under the pretext of exorcism is not substantiate in view of the admitted fact that the husband was having a good relationship with his wife and in-laws people. This witness clearly stated that the deceased was getting proper food and money at her in-laws place, meaning thereby there was no question of any willful act or harassment by the appellants. This witness also stated that he never saw that appellants had assaulted the deceased. The attention of this witness has also been drawn about his earlier statement before the police during the course of investigation as to whether he had seen the dead body or not, but since the I.O. in this case has not been examined and, therefore, no effective cross examination has taken place by the defense in order to appreciate the veracity and truthfulness of this witness also and such the charges of cruelty and tortured could not be substantiated by this witness P.W.3 who is the uncle of the deceased as seen above.
14. P.W. 4- Gauri Devi, who is said to be the mother of the deceased and stated in her examination-in-chief that she got information from Horil Yadav that her daughter (deceased) was killed by the in-laws people (without disclosing the specific name of any of the appellant under the pretext that she was subjected to the practice of exorcism - jharfunk by these appellants) but it is found that the said Horil Yadav has not been examined by the prosecution and thus the case of the prosecution has not been substantiated. This witness clearly stated that the deceased was never assaulted by the appellants.
8 Cr. Appeal (SJ) No. 1389 of 2004 Since the I.O. in this case has not been examined and therefore appellants did not get the meaningful opportunity form this witness to bring the contradictions about the statement of Horil Yadav from whom this witness and the entire members of the prosecution party came to know about the alleged occurrence. In his cross examination this witness has candidly stated that the appellants have never assaulted to the deceased. Further, P.W. 4 stated that her (deceased) husband Baijnath had assaulted the deceased but her version is wholly falsified by the testimonies of P.W. 1, P.W. 2 and P.W. 3 who all consistently and uniformly deposed that her husband Baijnath (husband of deceased) was having a good relationship with the deceased and also with the members of in-laws people and, therefore, a major contradictions are found in the testimonies of this witness examined on behalf of the prosecution and this witness has lost her credibility inasmuch as her version has been totally discarded by the prosecution themselves vide the testimonies of P.W. 1, P.W. 2 and P.W. 3 and further the husband Baijnath was not arrayed as an accused at all. In the cross examination, she has categorically stated that she did not know as to whether Suma had committed suicide or she had been pushed into the well by the accused persons and, therefore, her such statement is pointing to the fact that this witnesses is completely ignorant about the occurrence and her testimonies are not definite and pointed to the charges purported against the appellants and as such this witness is not trustworthy of credit at all.
15. P.W. 5 Baldev Yadav is related to the informant Sanichar Mahto who was cousin father-in-law of this witness. He stated in the examination in chief that he came to know about the incident from the deceased appellant Gobardhan Yadav. This shows the innocence of the appellant people corroborating evidences that the deceased was living with them in a congenial atmosphere and there 9 Cr. Appeal (SJ) No. 1389 of 2004 was no trace of any willful conduct or alleged torture by the appellants to the deceased. He stated in the cross-examination very categorically that he had said to the police that the deceased was not having any child and that's why the deceased was under depression and trauma. This witness also stated that there had been good relationship between the Gobardhan and Sanichar. The husband of the deceased was working in Calcutta and he used to send maintenance also.
In the backdrop, the depositions of this witness taken in a holistic manner it is founded that the charges of cruelty attributed to the appellants get mitigated particularly in the cross examination when he categorically stated about the good relationship with the families and also the husband of the deceased who was working in Calcutta and sending the money to meet her expenses and also when this witness stated very categorically to the police that the deceased was under the depression because she was issueless. But, the accused-appellants did not get opportunity to cross-examine the I.O. as the I.O. has not been examined on this vital point that the deceased was seized with persistent feeling of sadness because admittedly she was not bearing child-birth for a long period of time and therefore it is not safe to come to conclusion that she was subjected to torture and cruelty in view of admitted fact that she was being given proper food and maintenance in her matrimonial house.
16. P.W. 6 - Dr. Chandra Prakash Choudhary, who conducted the postmortem examination of the dead body of the deceased Suma Devi and he found the following injuries:
(i) Abrasion 1/4" x1/4" Rt. Elbow/posteromedial.
(ii) Bruise 1/4" x 1/4" near inner canthus of left eye.
(iii) There small abrasions 3 ml. x 1 ml near inner canthos of left eye. On dissection lungs intact and congested.
10 Cr. Appea Heart- left ventrical empty right ventrical contains blood.
Liver- intact and congested, spleen intact and congested.
Kidneys-intact and congested.
Opinion:- This witness P.W.-6 opined that the cause of death was asphyxia due to smothering.
P.W. 6- doctor, categorically stated that no external injuries over the neck, throat and forehead and, therefore, the deposition of P.W.6 falsify the case of the prosecution that she was being assaulted by the accused persons.
The post mortem report has been marked as Ext. 2. From the perusal of the post mortem report, it is found that the cause of death was drowning due to asphyxia and not by any kind of assault.
17. P.W. 7- Sanichar Yadav is the informant of this case he is the father of the deceased Suma Devi. The version of this witness is only based on disclosure statement of one Horil Yadav who has not been examined on behalf of the prosecution and as such the veracity of the testimonies of this witness remained unsubstantiated. He is not the eye witness. This witness stated in a sweeping manner that on the preceding night there was a quarrel under the pretext of practicing exorcism (jharfunk) as she was ill treated by the accused persons and therefore on the next morning she committed suicide but the learned trial Court did not find guilt of any of the accused persons for abetment of committing suicide for the offence punishable u/s 306 IPC although charge was framed for the offence punishable under section 306 of IPC and, therefore, the version of this witness as she has committed suicide because of the torture and cruelty committed by the accused appellants on the preceding night is not related with the commission of the suicide inasmuch as the offence of abetment of suicide has not been proved and since there 11 Cr. Appea was no abetment for committing the suicide as held by the learned trial Court on the basis of the evidences of the prosecution and, therefore, the charge of causing ill treatment or willful conduct or any kind of cruelty in the preceding night or before the date of committing suicide is also not corroborated as appraised by this Court in the testimonies of the witnesses who has been examined on behalf of the prosecution in the foregoing paragraphs and it is found that the deceased was getting proper food and maintenance at her in-laws' place and her husband used to meet all her expenses by sending money to her regularly. This witness P.W. 7 also stated that her daughter was never assaulted before him and it has come into the evidences of P.Ws. that the deceased was having a good relationship with her husband and also with in-laws people and she was under depression and anguish for want of child since long time after the marriage.
The attention of this witness has categorically been drawn by the defence in the cross examination about his earlier statement before police during course of investigation where he stated that he did not tell to the police that the neck of the deceased was roped but all these earlier statements could not be verified due to non- examination of I.O. Therefore, a prejudice has caused to the appellants and truthfulness and veracity of this witness could not be tested by appellants in the cross-examination because of non- examination of the I.O.
18. The learned trial court has observed categorically in para 24 of the impugned judgment that there are major flaws in the evidences adduced on behalf of the prosecution. Such as fardbeyan and inquest report have not been proved because of the non- examination of the I.O. in this case. Further, that there had not been any complain about the torture and cruelty attributed against the appellants except on the date of occurrence which could not be 12 Cr. Appea substantiated because it was co-accused Kaila Rana who was practicing exorcism upon the deceased and not these appellants. The fact of Panchayti being held for the alleged torture and cruelty has also been denied by P.W.5. Further, almost all the witnesses have stated that there had been a good relationship between the deceased and the in-laws people as emanating from the testimonies of the witnesses as appraised above.
19. On the other hand, two witnesses have been examined on behalf of the defence D.W.1- Arjun Mahto and D.W. 2- Mathura Mahto, but, the learned trial Court did not discuss the depositions of either of D.W.1 or D.W. 2 and had indicated that there was a complete non-application of judicial mind in appreciation of the evidence of the witnesses.
20. From the testimonies of both the defence witnesses, it is found that both D.W.1 and D.W.2 have been examined by the defence in order to corroborate the fact that the deceased Suma was not bearing any child-birth even after long period of marriage and therefore, she was harbouring with depression and trauma and, therefore, out of anguish she had committed suicide. The testimonies of these two defence witnesses get corroboration from the testimonies of P.Ws. also as founded in the foregoing paragraphs where it is established that the deceased was under
severe mental trauma because of being issueless even after a long period of marriage as she was not bearing child and before the date of occurrence there had not been any complaint about any kind of torture or cruelty ever committed by the appellants. Rather it has come into the evidences categorically in unequivocal words that the deceased was being treated properly. Further, consistently the witnesses examined on behalf of the prosecution have stated that it was the co-accused Kaila Rana, who was practicing exorcism (JharFunk) with the deceased Suma Devi. There is no allegation of 13 Cr. Appea any kind of practicing exorcism by anyone of the appellants resulting that the charges of torture and cruelty are not substantiated against the appellants.
21. Having taken into consideration the appraisal of the testimonies of all the witnesses as discussed elaborately in the foregoing paragraphs, it is found that the learned trial Court has committed gross error in appreciation of the evidences in the light of the aforesaid findings and accordingly, the impugned judgment of conviction and order of sentence dated 01.07.2004 passed by 9th Additional Sessions Judge, Hazaribagh in Sessions Trial No. 261 of 2001 is set aside and the appellant nos. 1 and 2 are acquitted from the conviction for the offence punishable under section 498-A of IPC.
22. The appellants are on bail, they are discharged from the liabilities of bail bond.
23. In the result, the appeal is allowed.
24. Let a copy of this judgment be sent to the learned court below along with the LCR.
(Navneet Kumar, J.) Jharkhand High Court, Ranchi, Dated the 10.02.2022/NAFR MM/-