Jharkhand High Court
Selai Purti @ Deda Purti vs The State Of Jharkhand on 11 August, 2021
Cr. Appeal (DB) No. 128 of 2020
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Against the judgment of conviction dated 22.09.2016 and order of sentence dated
24.09.2016 passed by the learned Additional Sessions Judge-III, West Singhbhum at
Chaibasa in Sessions Trial No. 38 of 2009.
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Selai Purti @ Deda Purti --- --- Appellant
Versus
The State of Jharkhand --- --- Respondent
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For the Appellant: Dr. Hasnain Waris, Advocate
For the State: Mr. Abhay Kr. Tiwari, A.P.P.
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Present
Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
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By Court: Though prayer for suspension of sentence has been made by this
appellant through I.A. No. 1206/2020 taking a ground of custody of 12 years
and 10 months against the sentence of life imprisonment awarded upon him
along with three other convicts under sections 302/149 of the Indian Penal
Code, but with the consent of the parties, we have taken up this appeal for final
hearing today taking into account the judgment dated 11.02.2020 rendered by
the Coordinate Bench of this Court in Cr. Appeal (DB) No. 1327/2016 with Cr.
Appeal (DB) No. 124/2017 with Cr. Appeal (DB) No. 336/2018 preferred by
the three co-convicts and the period of custody undergone by the appellant.
2. This appellant along with three others namely Dulmu Tiu, Bikram
Samad and Motiram Bodara stand convicted for the offence punishable under
sections 302/149 of the Indian Penal Code by the impugned judgment dated
22.09.2016 passed in Sessions Trial No. 38/2009 by the Court of learned
Additional Sessions Judge-III, West Singhbhum at Chaibasa and all the convicts
had been sentenced to undergo life imprisonment with a fine of Rs. 10,000/-
and default sentence by the impugned order of sentence dated 24.09.2016.
3. As per the prosecution case, these accused persons committed murder of
Rai Muni Kui and Sumitra Biruli in furtherance of their common intention on
28.08.2008 at around 8.00 pm. The Informant (PW-2) Smt. Sona Muni Tiu
alleged in her fardbeyan that on the said date, while she was sitting at her door
along with her mother-in-law Rai Muni Tui (now deceased), sister-in-law
Dashmati Samad (PW-3) and Sumitra Biruli (now deceased), the accused
persons armed with lethal weapon 'Bhujali' and ' Dabiya' came and alleged that
Tunguni Tui is ill on account of witchcraft practiced by Rai Muni Kui.
Therefore, they would kill her mother-in-law. Thereafter, they caught hold of
her mother-in-law and put her on cot and Dulmu Tiu cut the neck of her mother-
in-law and other accused persons also gave blow with 'Dabiya' and 'Bhujali' on
different parts of her body. Her elder sister-in-law Sumitra Biruli rushed to save
her mother, then Bikram Samad caught hold of her and Modi Ram Bodra and
Patru Tiu thrashed her on the ground and Bikram Samad cut the neck of
Sumitra Biruli with 'Dabiya'. Thereafter, her sister-in-law Dashmati Samad
(PW-3) started crying and fled away to her in-laws house. On alarm of the
villagers, all the accused persons fled away.
4. Prosecution examined eight witnesses in support of their case which are
as under:
PW-1 Rai Singh Samad
PW-2 Smt. Sona Muni Tiu (Informant)
PW-3 Dasamati Samad
PW-4 Roop Singh Munda
PW-5 Subedar Chatar
PW-6 Bamiya Samad
PW-7 Dr. Ramji Bhagat
PW-8 Ranjit Minz
Following documentary evidence were exhibited:
Ext. 1 Signature of PW-1 Rai Singh Samad on fardbeyan
Ext.1/1 Registration of the case
Ext. 1/2 Fardbeyan
Ext. 1/3 Forwarding of the fardbeyan
Ext. 2 & 2/1 Postmortem reports of the deceased Sumitra Biruli and Rai
Muni Kui
Ext. 3 Inquest report of Rai Muni Kui
Ext. 4 Inquest report of Sumitra Biruli
Ext. 5 Seizure list
Ext. 6 Formal F.I.R
5. During trial, PWs-2 & 3 were projected as eyewitnesses by the
prosecution, but PWs- 1, 4, 5 and 6 who are co-villagers were declared hostile
at the instance of the prosecution. PW-8 is the doctor who prepared the autopsy
report of both the deceased. PWs-2 & 3 corroborated the evidence. PW-1 has
also stated that on the next date of occurrence, Dashrathi Tiou informed him
about the murder of the two victims and he had seen their dead bodies and a
'Bhujali' was also lying there. He had informed the police and identified his
signature on the fardbeyan. On the point of fleeing away of the accused persons
from the house of Rai Muni Kui, he has been declared hostile. PWs- 4, 5 and 6
have also seen the dead bodies of the deceased. The postmortem reports of the
two deceased persons adduced by the doctor (PW-7) shows that they suffered
injury by sharp cutting weapon. Postmortem report of the deceased Rai Muni
Kui shows the following ante mortem injuries.
"(i) Incised wound over neck anterioraly midway 6"x 3" x 4"
cutting all vessels. Muscles, wind pipe, food pipe and cervical IIIrd
and IV vertebrae attached posteriorly with muscle and skin.
(ii) Incised wound over left cheek 3" x 1" x deep to vuccal cavity.
(iii) Incised wound over right shoulder 3" x 1" x muscle deep."
As per the postmortem report of the deceased Sumitra Biruli, one incised
wound on her neck of 6"x4"x4" were found. All the vessels, muscles, wind
pipe, food pipe and cervical IIIrd and IVth vertebrae were completely severed.
Medical evidence shows one incised wound on the neck of Sumitra Biruli and
Rai Muni Kui; injury no. 1 is an incised wound over the neck of Rai Muni Kui.
6. Learned counsel for the appellant has, in the wake of these materials on
record, submitted that there is considerable doubt on the role played by the
appellants in the occurrence as to who inflicted blow on the neck of Sumitra
Biruli and Rai Muni Kui. There were five accused persons but the prosecution
has failed to establish as to who amongst them inflicted particular injury on the
two deceased. In her fardbeyan, the Informant (PW-2) has named Dulmu Tiu
who has cut the neck of Rai Muni Kui, but in the court, she has deposed that the
accused persons armed with 'Bhujali' forcibly entered in her house and started
assaulting her mother-in-law. In para-2 of her examination-in-chief, she has
stated that Selai Purti (appellant) caught hold of her mother-in-law and other
accused persons have started assaulting her. But at the same time, in para-13 of
her cross-examination, she stated that Selai Purti (appellant) caught hold of her
mother-in-law and Dulmu Tiu has killed her with 'Bhujali'. PW-3, daughter of
the deceased Rai Muni Kui has deposed that the accused persons caught hold of
neck of her mother and thrashed her on the cot and on exhortation of Selai Purty
(appellant), four of them caught hold of her neck and Dulmu Tiu gave one
'Bhujali' blow on her neck. It is submitted that as per the prosecution case,
Sumitra Biruli tried to intervene, Bikram Samad caught hold caught hold of her
and Moti Ram Bodara and Patru Tiu thrashed her on the ground and thereafter
Bikram Samad assaulted her with 'Dabia' on her neck. But during deposition,
she has stated that Moti Ram Bodara and Birkram Samad has severed her neck.
PW-3 has spoken about Bikram Samad only and has not imputed any overt act
by other accused persons in assaulting Sumitra Biruli. Informant also admitted
during cross-examination that she is not in a position to say as to how many
accused have inflicted how many injuries. As per PW-3, it was a dark night and
there was no electricity in the village. It has also come in the prosecution
evidence that the accused persons including this appellant had grudge against
Rai Muni Kui as they suspected her of practicing witchcraft on Tunguni Tui, but
they had no intention to assault Sumitra Biruli and only when she tried to
intervene, she was assaulted by one of the accused persons. It is submitted that
taking into account these flimsy evidence in the prosecution case, the
Coordinate Bench of this Court while hearing the appeals of co-convicts, has
been pleased to set aside the conviction of three accused / appellants namely,
Moti Ram Bodara, Dulmu Tiu and Bikram Samad under sections 302/149 of the
Indian Penal Code. However, they have been convicted and sentenced to
undergo R.I for ten years under sections 326 read with section 149 of the Indian
Penal Code. These three appellants were set free since they had remained in
custody for more than 11 years. Their appeals were partly allowed. It is
submitted that the case of the present appellant stands on same and similar
footing as that of other three appellants. Conviction of the appellant cannot be
sustained under sections 302/149 of the Indian Penal Code on the weight of
such unreliable and conflicting statement of the prosecution witnesses i.e. PWs-
2 & 3 alone when prosecution witnesses such as PWs-1, 4, 5 and 6 have been
declared hostile. Therefore, appellant who has remained in custody for about 12
years and 10 months, may be set free by setting aside the impugned judgment of
conviction under section 302/149 of the Indian Penal Code and reducing his
sentence to one under section 326/149 of the Indian Penal Code, as has been
held by the Coordinate Bench of this Court in the case of Moti Ram Bodara in
Cr. Appeal (DB) No. 1327/2016, Dulmu Tiu in Cr. Appeal (DB) No. 124/2017
and Bikram Samad in Cr. Appeal (DB) No. 336/2018 vide judgment dated
11.02.2020.
7. Learned A.P.P has opposed the submissions. He submits that the
prosecution witnesses i.e. PWs-2 & 3 have sufficiently corroborated the case
made out in the fardbeyan of PW-2 Informant, though other four prosecution
witnesses may have turned hostile. Learned A.P.P Mr. Abhay Kumar Tiwari has
however not been able to show from the evidence of PWs-1, 3 and 8 as to the
specific over-act committed by this appellant in inflicting injury on the two
deceased Rai Muni Kui and Sumitra Biruli. Learned counsel for the State has
not been able to distinguish the case of the present appellant from that of the
three co-convicts namely, Moti Ram Bodara, Dulmu Tiu and Bikram Samad
whose conviction under sections 302/149 of the Indian Penal Code have been
set aside by the Coordinate Bench of this Court and reduced to one under
section 326/149 of the Indian Penal Code. These three appellants have been
sentenced to undergo R.I for ten years under section 326 read with section 149
of the Indian Penal Code.
8. We have considered the submissions of learned counsel for the parties
and taken note of the relevant material evidence relied upon by them from the
lower court records. On perusal of the materials on record and analysis of the
prosecution evidence, we find that the case of the appellant herein stands on
similar footing as that of the other three co-convicts namely, Moti Ram Bodara,
Dulmu Tiu and Bikram Samad against whom the Coordinate Bench of this
Court has been pleased to hold that the charge under sections 302/149 of the
Indian Penal Code were not fully established by the prosecution on the basis of
the evidence of PWs-2 & 3. The prosecution evidence suffers from infirmity as
regards the role of this appellant in inflicting injury on the body of the two
victims. This appellant has also remained in custody for 12 years and 10
months, whereas three co-convicts / appellants in Cr. Appeal (DB) Nos.
1327/2016, 124/2017 and 336/2018 had remained in custody for more than 11
years. Accordingly, we are inclined to set aside the impugned judgment of
conviction of this appellant under section 302 read with section 149 of the
Indian Penal Code and convict him for the offence punishable under section
326 read with section 149 of the Indian Penal Code and sentence him to
undergo R.I. for ten years. Since appellant has remained in custody for more
than 12 years and 10 months by now, he shall be set free forthwith from
custody, if not wanted in connection with any other case. In the result, this
appeal is partly allowed in the aforesaid terms.
I.A. No. 1206/2020 has been rendered infructuous in view of the
judgment passed today.
(Aparesh Kumar Singh, J)
(Anubha Rawat Choudhary, J)
High Court of Jharkhand, Ranchi
Dated 11th August 2021
Ranjeet/
