Jharkhand High Court

Sakindra Singh vs The State Of Jharkhand on 17 August, 2023

  IN THE HIGH COURT OF JHARKHAND AT RANCHI
              Cr. Appeal (S.J.) No. 220 of 2011
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(Against the Judgment of conviction and order of sentence dated 13.01.2011 passed by the Additional Sessions Judge, F.T.C.I, Palamau at Daltonganj in S.T.No.208 of 2007)

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1. Sakindra Singh.

2. Devendra Singh (both sons of Rajeshwar Singh).

3. Savanat Singh @ Savant Singh son of Lalu Singh All resident of village-Konwai, P.O.& P.S.-Panki, District-

   Palamau                             ...         ...Appellants
                        -Versus-
The State of Jharkhand ...               ...         ...Respondent
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                        PRESENT
    HON'BLE MR. JUSTICE SUBHASH CHAND

For the Appellants : Mr. Arbind Kumar Sinha, Advocate.

Mr. Mel Prakash Tirkey, Amicus Curiae For the State : Mr. P.D. Agrawal, Spl.P.P.

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C.A.V. on 07.08.2023 : Pronounced on 17.08.2023

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The instant Criminal Appeal is directed against the

Judgment of conviction and order of sentence dated 13.01.2011

passed by the Additional Sessions Judge, F.T.C.-I, Palamau at

Daltonganj in S.T.No.208 of 2007, arising out of Panki P.S. Case

No.05 of 2006 whereby and whereunder the learned trial court

has convicted the appellants for six months R.I. Under Section

323 and 34 of the Indian Penal Code and the learned trial court

has further directed the appellant No.2 to pay fine of Rs. 1,000/-

as he is found guilty under Section 4 of the Prevention of Witch

craft Practice Act, failing which serve further R.I. for a period of

three months.

2. The brief facts of the prosecution version are that the

F.I.R. was lodged by the informant Belas Singh with these

allegations that on 22.01.2006 on Sunday his wife Veena Devi

along with Devendra Singh, Ajanti Devi, Usha Devi, Sakinder

Singh, Lalita Devi and Sawanat Singh had gone to the Jungle to

bring the firewood. Till evening his wife did not come back. No

whereabout was told by those persons who had accompanied her.

When the informant asked them since they had accompanied his

wife why they were not telling in regard to her whereabouts. At

this all these accused began to hurl abuse. The son of informant

Amit Kumar and America Singh, Bharat Singh all made search

and reached to the Jungle and found his wife in injured condition.

Blood was oozing from her mouth. They brought her to his house

in injured condition and took to the Sadar Hospital. From there

she was referred to Ranchi Hospital. On having regained senses

she told the name of all the six named accused in the F.I.R. They

also branded her as Daain and on account this very reason they

had assaulted the wife of informant with Tangi and knife as well

living in her unconscious condition. On this written information,

case crime No. 05 of 2006 was registered against all the six named

accused under Section 323/324/341/307 read with 34 of I.P.C.

and under Section 4/5/6 of Witch Craft Act.

3. The I.O. after having completed the investigation filed

charge-sheet against all the six named accused.

4. The concerned Magistrate took cognizance on the

charge-sheet and committed the case for trial to the court of

sessions.

5. The learned trial court framed charge against all the

accused under Sections 341/323/324/307/34 I.P.C. and also

under Section 4/5/6 of Prevention of Wtich craft (Daain) Practices

Act.

6. All the accused persons denied the charge which was

read over and explained to them and all the accused persons

demanded to face the trial.

7. On behalf of prosecution to prove the charge framed

against all the accused persons in oral evidence examined P.W.1

America Singh, P.W.2 Veena Devi, P.W.3 Amit Kumar Singh,

P.W.4 Bharat Singh, P.W.5 Bailash Singh, P.W.6 Basudeo Sah,

P.W.7 Dr. Anil Kumar.

8. On behalf of prosecution in documentary evidence filed

injury report Ext.2, F.I.R. Ext.1.

9. The statement of the accused person under Section

313 of Cr.P.C. was recorded. All the accused persons denied the

incriminating circumstances in evidence against them and told

themselves to be innocent.

10. On behalf of accused person, no evidence was adduced

in defence.

11. The learned trial court after hearing the rival

submission of the learned Counsel of parties passed the

Judgment of conviction and sentence of the accused under

Sections 323/34 I.P.C. and inflicted imprisonment as stated

hereinabove.

12. Aggrieved from the impugned order of conviction and

sentence, this Cr. Appeal has been preferred on behalf of the

appellants on the ground that the impugned Judgment passed by

the court-below is based on the wrong appreciation of the

evidence. The evidence has not been appraised in a proper

perspective.

13. The learned trial court has relied the hearsay evidence

which is not admissible. So far as the testimony of victim herself

is concerned, the same is not corroborated with medical evidence.

The learned trial court has passed the impugned Judgment of

conviction and sentence based on a surmises and conjectures and

prayed to allow this appeal and to quash the Judgment of

conviction and sentence and to acquit the appellants.

14. I have heard the learned Counsel for the Amicus Curiae

on behalf of the appellant and learned Spl.P.P. on behalf of the

State and perused the material on record.

15. In order to decide the legality and propriety of the

impugned Judgment of conviction and sentence passed by the

court-below, the evidence oral and documentary adduced on

behalf of the prosecution is to be reappreciated.

16. On behalf of prosecution to prove the case examined

altogether 7 witnesses.

17. P.W.1 America Singh in his Examination-in-chief says

that the occurrence is of 05.01.2006. It was 9 O'clock of day time.

His mother had gone to Jungle along with Devendra Singh,

Sakinder Singh, Ajanti Devi, Babita Devi, Usha Devi and Sawanat

Singh to bring the firewood. At 2 O'clock all the persons came

back to the house but his mother did not come back. He asked to

Devendra Singh and others. They told nothing in regard to the

whereabouts of his mother. He along with his father, with one

Bharat Singh, Girja Singh made search of his mother and reached

to the Jungle where they found his mother in injured condition.

She was unconscious. There were injuries on her head, mouth,

stomach back and the whole body was stabbed with the knife at

several places. His mother was lying in pool of blood. She was

taken to the Hospital. They brought her to house by cycle. On

regaining senses she told that Sakinder Singh had assaulted with

knife, Devendra Singh with Tangi, Ajanti Devi, Usha Devi, Babita

Devi, Sawanat Singh all had caught hold of her and Sakinder was

speaking that she had killed his son on account of witch craft so

he would finish her life. His mother was taken to Hospital.

Thereafter referred to Ranchi and the F.I.R. was lodged. He

recognized all the accused in dock.

This witness in cross-examination says that his mother

had told in regard to the occurrence after having regained senses.

18. P.W.2 Veena Devi is the victim injured. She in her

Examination-in-chief stated that the occurrence was of two years

ago at 9 a.m. on Sunday. The Accused Devendra Singh came to

her house and asked to bring the firewood. She along with

Devendra Singh, Ajanti Devi, Usha Devi, Sakinder Singh, Lalita

Devi and Sawanat Singh all went to the Jungle to bring the

firewood. Devendra Singh told her that she had killed the son of

Sakinder Singh by practicing witch craft so they would kill her.

Devendra Singh assaulted with Tangi which hit to her finger.

Sakinder gave several blow with knife on several part of her body.

Ajanti, Usha, Lalita Devi and Sawanat Singh all got hold of her.

She became unconscious and all the accused persons had fled

away.

In cross examination this witness says that she is not

aware how many assault were given with the Tangi and the knife

but same were numerous which she did not count. There were 4

to 5 injuries of Tangi and several injuries were caused by the

knife.

19. P.W.3 Amit Kumar Singh in his Examination-in-chief

says that the occurrence is of 2006 it was Sunday. Time was in

between 8 to 9 O'clock. Devendra Singh, Sakinder Singh, Ajanti

Devi, Usha Devi, Anita Devi and Sawanat Singh all came to his

house and asked his mother Veena Devi to accompany them to

bring the firewood. Her mother also accompanied them but she

did not come back. On being asked about the whereabouts no one

told in regard to the whereabouts of his mother so they made

search of his mother and went to the Jungle and found the mother

in injured condition and the mother has told how the accused

persons had assaulted her after having regained senses.

In cross examination this witness says that in the

Jungle his mother was lying unconscious. She was brought to

house and after having sprinkled water on her face, she became

conscious and his mother told in regard to the occurrence.

20. P.W.4 Bharat Singh has stated that on 22.01.2006 at

4 O'clock in the evening he was at his house and saw that Bailas

Singh, America Singh, Amit Kumar were going to the Jungle in

search of Veena Devi. He also went with them and found Veena

Devi in injured condition. There were several injuries on her body

parts and Veena Devi injured had told in regard to the occurrence

after having regained senses.

In cross-examination this witness says that Veena Devi

regained senses after having sprinkled water on her face and told

in regard to the occurrence.

21. P.W.5 is Bailap Singh. This witness in his

Examination-in-chief says that he is informant of this case.

Occurrence is of the year 2006. It was Sunday. Time 9 O'clock of

day time. Devendra Singh, Sakinder Singh, Babita Devi, Usha

Devi, Ajanti Devi and Sawanat Singh all had called his wife Veena

Devi to bring the firewood and till 5 O' clock when all accused

persons came back, his wife did not come back. He asked to the

accused persons in regard to the whereabouts but they told

nothing then the search was made by him and his son America

Singh and his neighbour Girja Singh and Bharat Singh as well

and found his wife in injured condition. There were several

injuries on her body parts caused by Tangi and knife and his wife

after having regained senses told that the accused persons had

assaulted with Tangi and knife and on the issue she had practiced

witch craft on the son of Sakinder Singh and had killed him. He

gave written information of the occurrence on which he verified

his signature marked Ext.1.

In cross examination this witness says that the

occurrence did not take place in his presence. Whatever the

injured had told to him he gave the written information of the

same.

22. P.W.6 Basudeo Sah is the I.O. He has stated that on

22.01.2006 he was posted at Police Station Manjhi. On

29.01.2006 Bilas Singh has given written information on which

case crime No.05 of 2006 was registered under Sections

324/341/323/307/34 of the Indian Penal Code and 4/5/6 of

Witch Craft Act against the accused Devendra Singh, Ajanti Devi,

Usha Devi, Sakinder Singh, Lalita Devi and Sawanat Singh. He

recorded the statement of the witnesses during investigation and

on the pointing of the son of informant, he prepared the site plan

of the place of occurrence. After having recorded the statement of

all witnesses, he filed charge-sheet.

In cross examination this witness says that he did not

recover any weapon from any of the accused. He did not take in

custody the blood stained soil from the place of occurrence.

23. P.W.7 is the Doctor Anil Kumar. This witness in his

Examination-in-chief stated that Veena Devi was admitted in the

Hospital on 21.01.2006 on reference from the Sadar Hospital and

was discharged on 02.02.2006 from the Hospital. The C.T. scan

was conducted of the brain; but it was normal. No fracture

was found in X'ray of chest and stomach. There were old

scratch marks over the left knee on the latral aspect side. He

marked the injury report as Ext.1.

In cross examination this witness says that the C.T.

scan was conducted of her brain and X'ray was taken over chest

and stomach but no injury was found but everything was normal.

After first aid from the Sadar Hospital she was brought to RIMS

Hospital.

24. The conviction of the appellants is based on the

testimony of the injured victim P.W.2 Veena Devi who had told in

regard to the occurrence to P.W.1 America Singh, P.W.3 Amit

Kumar, P.W.4 Bharat Singh and P.W.5 Bailash Singh.

25. P.W.2 Veena Devi is the victim and the injured eye-

witness of the occurrence. In her Examination-in-chief she has

stated that all the accused persons came to her house on

05.01.2006 to accompany them to bring the firewood. She went

to the Jungle to bring the firewood with them. On reaching there

Devendra Singh assaulted with Tangi and Sakinder Singh

assaulted with knife while the other accused had caught hold of

her. They had given several blow with Tangi and the knife as well.

She sustained numerous injuries on her body and became

unconscious. When her husband and son and other persons of

the village brought her to house she got senses and told them in

regard to the occurrence.

26. P.W.1 America Singh is the son of victim, P.W.3 Amit

Kumar is also the son of injured victim. P.W.4 Bharat Singh is

the independent witness who had reached to the Jungle for search

of Veena Devi and found her in injured condition. P.W.5 Bailash

Singh is the husband of victim injured. All these witnesses have

stated in regard to the occurrence what was told to them by

the injured P.W.2 Veena Devi after having regained senses.

Therefore, the testimony of these witnesses also became

admissible in evidence since they came to know in regard to the

occurrence from Veena Devi and Veena Devi injured eye-witness

had been examined. As such the testimony of these witnesses

also became admissible under Section 6 of the Evidence Act

as res gestae evidence.

The Hon'ble Apex Court held in Krishan Kumar Malik

vs. State of Haryana 2011 (3) SCC Cr. at 61:

33. As per the FIR lodged by the prosecutrix, she first met her mother Narayani and sister at the bus-stop at Kurukshetra but they have also not been examined, even though their evidence would have been vital as contemplated under Section 6 of the Evidence Act, 1872 (for short "the Act") as they would have been res gestae witnesses. The purpose of incorporating Section 6 in the Act is to complete the missing links in the chain of evidence of the solitary witness. There is no dispute that she had given full and vivid description of the sequence of events leading to the commission of the alleged offences by the appellant and others upon her. In that narrative, it is amply clear that Bimla Devi and Ritu were stated to be at the scene of alleged abduction. Even though Bimla Devi may have later turned hostile, Ritu could still have been examined, or at the very least, her statement recorded. Likewise, her mother could have been similarly examined regarding the chain of events after the prosecutrix had arrived back at Kurukshetra. Thus, they would have been the best persons to lend support to the prosecution story invoking Section 6 of the Act.

27. On behalf of prosecution P.W.7 Dr. Anil Kumar has

been examined. This witness has proved the injury report of

injured Veena Devi. In this injury report (Ext.1) there is no

external injury on the body of the injured. This witness has

stated that the injured was admitted in Department of

Neurology RIMS, Ranchi who was referred by the Sadar

Hospital and discharged on 02.02.2006. The C.T. scan report

of the brain was shown as normal. X' ray of the chest and

abdomen was also done and everything was normal. There is

no injury report on record of the Sadar Hospital of the victim

Veena Devi. The occurrence is of 22.01.2006 and she was

admitted to the Hospital on 23.01.2006 and was discharged

from Hospital on 02.02.2006. As such from this deposition

made by the Doctor P.W.7 who has proved the medical

examination of injured Ext.2, there being no external or

internal injury to the injured. The ocular evidence of the

injured victim Veena Devi is totally overruled.

28. The I.O. P.W.6 Basudeo Sah was also examined. The

I.O. has stated that during investigation he did not collect the

bloodstained soil from the place of occurrence. No weapon

was recovered used in the commission of the offence while as

per the statement of the witnesses P.W.1 America Singh,

P.W.3 Amit Kumar, P.W.4 Bharat Singh, P.W.5 Bailash Singh

that he found the injured in Jungle who had sustained several

injuries on her body part caused by Tangi and knife as well.

The injured was lying in a pool of blood. The testimony of these

witnesses is also belied that the I.O. nowhere has stated in his

statement that he found blood at the place of occurrence. The I.O.

did not take even the blood stained soil from the place of

occurrence though he had prepared the site plan on the

indication of the son of the informant.

29. It is the settled law that the ocular evidence is to prevail

over the medical evidence but if from the medical evidence the

ocular evidence and the prosecution case is totally ruled out in

such a case the medical evidence shall prevail upon the ocular

evidence. Herein the injured P.W.2 and other prosecution

witnesses P.W.1 America Singh, P.W.3 Amit Kumar, P.W.4 Bharat

Singh and P.W.5 Bailash Singh all have stated that there were

several injuries caused by Tangi and the knife on the body of

victim Veena Devi while as per medical examination report, which

has been proved by P.W.7 Dr. Anil Kumar there was no external

or internal injury, therefore, the whole of the ocular evidence

is not found trustworthy which is altogether contrary to the

medical evidence and totally belies the ocular evidence.

The Hon'ble Apex Court held in Bhajan Singh vs.

State of Haryana A.I.R. 2011 SC 2552:

38. Thus, the position of law in such a case of contradiction between medical 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.

(Vide Abdul Sayeed [(2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262] .)

30. Here in this case the occurrence is of 22.01.2006 while

all these witnesses P.W.1 America Singh, P.W.3 Amit Kumar,

P.W.4 Bharat Singh and P.W.5 Bailash Singh had reached to the

Jungle making search of the injured Veena Devi and found her in

injured and unconscious condition and brought her back to the

house and after having sprinkled water on her face, the injured

regained senses and she told that it was the accused Devendra

Singh who had assaulted with Tangi and Sakinder Singh had

assaulted with knife and had given several blow on various parts

of her body and after having come to know in regard to the

occurrence from the victim all these witnesses have deposed

before the trial court in regard to the occurrence committed by the

accused, who are appellants herein but the F.I.R. of this case

was lodged on 29.01.2006 which was 7 days belated. There is

no cogent explanation of this delay in lodging the F.I.R. The

statement of the witnesses were also recorded under Section 161

of Cr.P.C. who were examined before the trial court after lodging

the F.I.R. The inordinate delay in lodging the F.I.R. of which there

is no explanation makes the prosecution case doubtful and the

testimony of the witnesses P.W.1 America Singh, P.W.3 Amit

Kumar, P.W.4 Bharat Singh and P.W.5 Bailash Singh cannot

be admissible in evidence as res gestae, because the time gap

between the occurrence and the statement given by these

witnesses is more than 7 days.

The Hon'ble Apex Court held in Jafarudheen & Ors.

vs. State of Kerala 2022 Live Law S.C. 403:

28. The Investigating Officer is expected to kick start his investigation immediately after registration of a cognizable offense. An inordinate and unexplained delay may be fatal to the prosecution's case but only to be considered by the Court, on the facts of each case. There may be adequate circumstances for not examining a witness at an appropriate time. However, non-examination of the witness despite being available may call for an explanation from the Investigating Officer. It only causes doubt in the mind of the Court, which is required to be cleared.

The Hon'ble Apex Court held in Shankarlal vs. State

of Rajasthan A.I.R. 2004 S.C. 3559:

5. Even according to the prosecution the only witness to the incident in question is PW 6, therefore, as contended by learned counsel for the appellant, we will have to examine his evidence carefully. If we do so then we notice that on the date of incident he had gone to Village Upli for some work. From there he came back by bus at about 11 o'clock. He then allegedly went to the village to meet Ram Rakh where he was told by his wife that the latter had gone to the field. It is the prosecution case itself that the distance between the field of Ram Rakh and the village is about 4-5 miles and PW 6 covered that distance on foot and when he reached near the field of Ram Rakh he heard a quarrel and when he went towards the place of quarrel he saw the appellant attack the deceased with an axe. It is his further case that when he reached near the deceased, the appellant ran away. It is at this point of time he states that he got scared and he took a different route than the one he took on the way and reached the village at about 4 or 4.15 p.m. It is his case that when he went to the house of Ram Rakh he could not find him, therefore, he came near the village square where he met PW 2 Khyali Ram. From the above evidence of PW 6 it is apparent that though there were persons available on his way back, he did not inform anybody about the incident. Even when he

reached the village and met Ram Rakh's wife he did not inform her about the incident and it was for the first time he informed about this incident to PW 2 at the village square at about 4.15 p.m. Contrary to what he stated in the examination- in-chief that he saw only one assault on the deceased, in the cross-examination he stated that he saw the appellant attack the deceased twice and both the injuries were caused in his presence. It is also to be noticed from his cross- examination that when he met PW 2 Khyali Ram and told him about the incident in question, PW 2 supposedly told him that he had already come to know of the incident from PW 14. The prosecution has not found how PW 14 came to know of the incident. In this background if we appreciate the evidence of PW 6 we notice the fact that he is purely a chance witness whose presence at the place of the incident is highly doubtful. His conduct too seems to be unnatural in not informing anyone else in the village until he met Khyali Ram at the village square. We also notice that there is unexplained delay in filing the complaint inasmuch as according to the prosecution the incident in question took place at about 1.30 p.m. and a complaint was lodged only at 3.15 a.m. on 5-4-1980. Though the distance is about 30 miles from the place of incident, the complainant had the facility of using the tractors available in the village and they did use the same for travelling to the police station. In such circumstances this unexplained long delay also creates a doubt in our mind as to the genuineness of the prosecution case. Once we are not convinced with the evidence of PW 6 then there is no other material to base a conviction on the appellant, hence we are of the opinion that the appellant is entitled to the benefit of doubt, therefore, this appeal succeeds and is allowed. The judgment and order of conviction of the two courts below are set aside. The appellant is acquitted of the charge framed against him. From the records we notice that the appellant is on bail. If so, his bail bonds shall stand discharged.

31. In view of the appreciation of evidence given here-in-

above, it is found that the prosecution has failed to prove its case

beyond all shadow of doubt. The whole of the ocular evidence is

ruled out from the medical evidence where the two views are

possible the view which is reasonable and plausible should be

adopted.

32. Herein the whole of the ocular evidence being belied

from the medical evidence the reasonable and plausible view is to

give the benefit of doubt to the accused appellants herein.

33. In view of the analysis of the own the prosecution has

failed to prove the case beyond reasonable doubt. Therefore, the

impugned Judgment of conviction and sentence passed by the