Bail granted in case of murder by means of witchcraft due to lack of proper evidences: High Court of Jharkhand

Criminal AppealNo. 10115 Against the judgment and order of conviction and sentence dated 27.07.2015 by the learned Sessions Judge Lohardaga in Sessions Trial No. 413. 1.Arti @ Aarti @ Sukar Kumari 2.Jama @ Sushil Munda 3.Birsa Munda @ Runka Munda 4.Boda Munda @ Suman Munda … … Appellants The State of Jharkhand For the Appellant For the Respondent Mr. Birendra Kumar Advocate Mr. Vijay Kumar Sinha Advocate Mr. Shekhar Sinha P.P. Present: HON BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE RAJESH KUMAR Heard Mr. Birendra Kumar learned counsel for the appellants and Mr. Shekhar Sinha learned P.P. for the State. This appeal is directed against the judgment and order of conviction and sentence dated 27.07.2015passed by the learned Sessions Judge Lohardaga in Sessions Trial No. 44 of 2013 whereby and whereunder the appellants have been convicted for the offences punishable under Sections 302 34 and 201 34 of I.P.C. and have been sentenced to undergo S.I. for life and a fine of Rs. 10 000 for the offence under Section 302 34 of I.P.C. No separate sentence has been passed for the offence under Section 201 34 of I.P.C. The prosecution story arising out of an FIR instituted by Jairam Munda is to the effect that the son of the informant had gone to his in laws’ place on 05.02.2013 at village Panchpadwa in the district of Lohardaga. On 06.02.2013 at about 8 AM he came to know that his son has been murdered by Boda Munda @ Suman Munda Birsa Munda @ Runka Munda Jama Munda @ Sushil Munda and Arti Kumari @ Sukar Kumari. At this he along with his another son reached Panchpadwa where he found his son having been murdered and thrown at Panchpadwa Tongri. The reason for the occurrence is that the son of the 2 informant Mansukh Munda used to remain sick and in spite of being treated at various places he was not getting well. It has been alleged that the informant and his family members were thinking of taking Mansukh Munda to Devas for treatment and this intention was disclosed to his brother Hadu Munda and on this issue there appeared a fissure in the relationship between the families of the informant and Hadu Munda. It has been alleged that the family of Hadu Munda left for Panchpadwa. The informant had sent his son to bring them back but they did not return. On 28.01.2013 the son of the informant Markas Munda had died and there was friction between both the sides for practicing witchcraft which resulted in the occurrence. The informant could came to know that his son Markas Munda had gone to the house of Bauda Munda on 05.02.2013 and near the door stop Arti Kumari had started assaulting him with fists slaps and danda. It has been alleged that all the accused persons had dragged Markas Munda towards the jungle and assaulted him on his head with lathi and stones which resulted in his death. It has also been stated that his relation Baura Munda has seen the occurrence. Based on the aforesaid allegations Jobang P. S. Case No. 2 of 2013 was instituted under Section 302 & 201 34 of I.P.C. in which after investigation charge sheet was submitted leading to taking of cognizance and after the case was committed to the court of Sessions charge was framed for the offences punishable under Sections 302 34 & 201 34 of I.P.C. and under Section 3 of the Prevention of Witch Practices Act 1999 to which the accused pleaded not guilty and claimed to be tried. In course of trial 7 witnesses were examined by the prosecution. P.W. 1 Boda Munda @ Bauda Munda has stated that the incident is of 6 months back. He had gone to Kisko to prepare his Aadhar Card and he returned back to his house from Kisko at about 8 PM. He has stated that while returning home he has seen his son in law Markas Munda being assaulted with lathi and danda by 4 5 persons. He has further stated that after assaulting him he was dragged towards the forest where he was hit by a big stone leading to his death. He has further stated that the persons involved are Birsa Munda @ Runka Munda Bora Munda @ Suman Munda Jama Munda @ Sushil Munda P.W. 2 Sohrai Munda has stated that on the date of occurrence 3 and Aarti Kumari @ Sukar Kumari. He has stated that thereafter on account of fear he had gone to his residence. In cross examination this witness has stated that it was dark when the incident had taken place. He has further deposed that due to darkness persons who were standing at a distance could not be recognized. He has also stated that he does not know as to when his son in law had come to his house. After coming from Kisko he had straightway gone to his house. He has further stated that all the accused are from his village with whom this witness is not on very friendly terms. Replying to a court question this witness has stated that he was at a distance of 150 yards from the place of occurrence. he along with P.W. 1 was returning from Kisko to their respective homes. On reaching the village they heard the sound of shouting and when they reached near the house of P.W. 1 they had seen Markas Munda being assaulted by the accused persons. He has further stated that the accused persons took Markas Munda towards Tongri and thereafter Markas Munda was assaulted on his head with a big stone and he and P.W. 1 fled away from the place of occurrence and reached their respective homes. He has stated that on the next date the father of Markas Munda was informed. In cross examination this witness has stated that it was total darkness at the time of returning home from Kisko Block. He has admitted that there is no electricity in his village. He has further stated that while entering his village his house is situated before the house of P.W. 1. He has further stated that the incident was never disclosed by them to the villagers. He has also deposed that he had not seen any person in the place of occurrence. occurrence he was in the house and on next date Sohrai Munda informed on phone that his elder brother has been done to death. He has also stated that on hearing such information he had gone to village Panchpadwa and had seen the dead body of his brother. Sohrai had disclosed to him about the accused persons committing the murder of his brother. He has also stated that the reason for the occurrence is that Devas had told him that it was on account of his uncle Hadu Munda that his brother Mansukh Munda was sick. P.W. 3 Ram Nath Munda has stated that on the date of 4 P.W. 4 Dr. Pranav Kumar was posted as a Medical Officer on 07.02.2013 in the Department of Leprosy where he conducted autopsy on the dead body of Markas Munda. This witness has found the following External Injuries: Lacerated wound on left side of forehead size 2 inch x 1 inch x up to bone deep. Fracture of left mandible. iii) Extraction of upper four teeth. iv) Blood stain on nose and ear. Internal Injuries: A. Head and Neck: Brain matter lacerated and pale on section. B. Thoracic cavity: Lungs intact and pale on section heart Intact right chamber full and left chamber empty. C. Abdominal cavity: Liver spleen and kidneys were intact and pale on cut section Stomach contains semi digested food particle and gas large intestine contains faecal matter. All above injuries were ante morten in nature and time elapsed since death 6 to 36 hours." The cause of death according to this witness was due to Haemorrhage and shock caused by hard and blunt substance. This witness has proved the post mortem report which has been marked as Exhibit 1. P.W. 5 Dedo Munda is a hearsay witness. P.W. 6 Jairam Munda is the informant who has stated that on the date of occurrence he was at his home and his son Markas Munda had gone to his in laws’ place at village Panchpadwa. He has also stated that his son had gone to call the brother of the informant namely Hadu Munda. He has also stated that his son was assaulted and done to death by the accused persons. The reasons for the occurrence according to this witness was that he and his brother were not on good terms. In cross examination it has been stated that there was no enmity with the accused Bora Munda Jama Munda and Birsa Munda and they were on friendly terms with him. 5 It has been stated by the learned counsel for the appellants that the 11. P.W. 7 Supa Kongari has deposed that on 06.02.2013 he was posted as Sub Inspector on Jobang Police Station. He has recorded the Fard Beyan of Jairam Munda which has been proved and marked as Exhibit 2. The formal FIR is in his hand writing and signature which has been marked as Exhibit 3. He has further stated that after taking over investigation he had recorded the re statement of the informant and had thereafter taken the statement of Baura Munda Sohrai Munda Dedo Munda and Ram Nath Munda. This witness has inspected the place of occurrence which is at village Panchpadwa Tongri which is an isolated place surrounded by jungle and bushes. On 17.02.2013 he had obtained the post mortem report and on direction of his superior officials he had submitted charge sheet. In cross examination this witness has stated that he had not seized any article during investigation. He has also stated that the house of Bauda Munda is at a distance of half km. from the place of occurrence. On a court question he has stated that inquest report has been misplaced and he also could not recover the big stone which was used in the commission of the murder. prosecution has miserably failed to prove its case beyond all reasonable doubt. Learned counsel submits that save and except P.W. 1 and 2 there are no eye witnesses to the occurrence and the evidence of P.W. 1 and P.W. 2 suffers from major discrepancies which itself makes the identification of the appellants as the perpetrators of the offence doubtful. Learned counsel submits that the P.W. 1 and P.W. 2 had stated that it was a dark night and there is no electricity in the village and as such it would have been absolutely impossible to have identified the assailants. Learned counsel further while referring to the evidence of P.W. 1 submits that the conduct of P.W. 1 is improbable and unbelievable if his version is taken to be true to the effect that he claims to have seen the accused persons committing the murder of his son in law but neither had he tried to save him nor did he inform this matter to any of the villagers immediately. Learned counsel also submits that as per P.W. 2 the incident is said to have taken place near the house of P.W. 1 but the I.O. has disclosed that the distance between the place of occurrence and the house of P.W. 1 is about half a km. He further submits that nothing 6 has been stated as to whether P.W. 1 and P.W. 2 had followed them which further nullifies the story created by P.W. 1 and P.W. 2 to implicate the appellants. Learned counsel submits that as per P.W. 1 both the sides were on inimical terms and hence the false implication of the appellant cannot be ruled out. On such parameters learned counsel for the appellants has stated that the present appeal be allowed. 13. Mr. Shekhar Sinha learned P.P. for the State on the other hand while relying on the evidence of P.W. 1 and P.W. 2 has stated that they are the eye witnesses of the occurrence and their evidence is cogent convincing and believable and therefore conviction of the appellants under Section 302 34 and 201 34 of I.P.C. has rightly been done. He therefore prays that the present appeal be dismissed. 14. We have heard the rival submissions and have also gone through the Lower Court Records. The prosecution has tried to build an edifice based on the evidence of P.W. 1 and P.W. 2 who have stated to have seen the occurrence relating to the son of the informant namely Markas Munda being subjected to assault by the appellants with stone and tangi. However the edifice crumbles once the cross examination of P.W. 1 and P.W. 2 is taken into consideration. P.W. 1 in very categorical terms has stated in his cross examination that it was difficult for the persons to be recognized who were standing at a distance on account of the darkness. He has further admitted that it was a dark night. According to the evidence of P.W. 1 he out of fear had returned back to his residence which conduct appears to be totally contrary to what one would expect in such a situation when the son in law of the P.W. 1 is being done to death and he neither informs the villagers nor raises any alarm but rushes to his house and stays put. On a court question he has stated that from the place of occurrence he was at a distance of 150 feet and considering the darkness which had engulfed the area and the distance from where the incident is said to have been seen by P.W. 1 it totally nullifies the prosecution case with respect to the identification of the appellants being the assailants. Similarly the evidence of P.W. 2 is fraught with major discrepancies as he has stated that he had not seen any 7 person in the place of occurrence and that he had never disclosed the incident to the villagers. This witness has also admitted that there is no electricity in the village. He has also stated about total darkness when he was returning home from Kisko Block. The identification of the appellants by P.W. 1 also is nullified if the distance between the place of occurrence and the house of P.W. 1 is taken into consideration as disclosed by P.W. 7 the Investigating Officer which is about a half km and coupled with the darkness the identification of the appellants by P.W. 2 therefore seems to be an absurd story created by P.W. 2. It is to be noted herein that P.W. 1 has stated about he being on inimical terms with the appellants and therefore the false implication of the appellants also cannot be ruled out. The Investigating Officer has failed to seize the weapon of assault or the stone with which the deceased was purportedly done to death. The evidence of the other witnesses do not energise the prosecution case and the falsity of the allegations levelled against the appellants lie threadbare on a dissection of the evidence of the so called eye witnesses P.W. 1 and P.W. 2 as has been taken note of earlier. The prosecution therefore having miserably failed to prove its case beyond all reasonable doubt the appellants deserves to be acquitted from the charges against them. In such circumstances this appeal stands allowed and the impugned judgment and order of conviction and sentence dated 27.07.2015 and 31.07.2015 respectively passed by the learned Sessions Judge Lohardaga in Sessions Trial No. 413 are hereby set aside. Since the appellant no. 1 is on bail she is discharged from the liability of her bail bonds. As regards appellant nos. 2 to 4 are concerned they are directed to be released immediately and forthwith if not wanted in any other case. This appeal stands allowed. Rongon Mukhopadhyay J.) Rajesh Kumar J.) Jharkhand High Court at Ranchi The 28th day of July 2021 R.Shekhar NAFR Cp.3 

Summary: In the present case, an appeal is preferred against the order of conviction and sentence dated 27.07.2015 whereunder the appellants have been convicted for the offences punishable under Sections 302/34 and 201/34 of I.P.C. and have been sentenced to undergo S.I. for life and a fine of Rs. 10,000/- for the offence under Section 302/34 of I.P.C. No separate sentence has been passed for the offence under Section 201/34 of I.P.C. A division bench comprising of Justice Rongon Mukhopadhyay and  Justice Rajesh Kumar adjudicating the matter of Arti v. The State of Jharkhand(Criminal Appeal (D.B.) No. 1013 of 2015) dealt with the issue of whether to grant bail to the accused or not. According to the prosecution, an FIR was filed by Jairam Munda stating that the son of the informant had gone to his inlaws’ place on 05.02.2013 at village Panchpadwa in the district of Lohardaga. On 06.02.2013 at about 8 AM, he came to know that his son has been murdered by Boda Munda @ Suman Munda, Birsa Munda @ Runka Munda, Jama Munda @ Sushil Munda and Arti Kumari @ Sukar Kumari. At this, he along with his another son reached Panchpadwa, where he found his son having been murdered and thrown at Panchpadwa Tongri. The reason for the occurrence is that the son of the -2- informant – Mansukh Munda used to remain sick and in spite of being treated at various places, he was not getting well. It has been alleged that the informant and his family members were thinking of taking Mansukh Munda to Devas for treatment and this intention was disclosed to his brother Hadu Munda and on this issue there appeared a fissure in the relationship between the families of the informant and Hadu Munda. It has been alleged that the family of Hadu Munda left for Panchpadwa. The informant had sent his son to bring them back, but they did not return. On 28.01.2013, the son of the informant Markas Munda had died and there was friction between both sides for practicing witchcraft which resulted in the occurrence. The informant could come to know that his son Markas Munda had gone to the house of Bauda Munda on 05.02.2013 and near the doorstop, Arti Kumari had started assaulting him with fists, slaps, and danda. It has been alleged that all the accused persons had dragged Markas Munda towards the jungle and assaulted him on his head with lathi and stones which resulted in his death. It has also been stated that his relation Baura Munda has seen the occurrence. Based on the facts, a police institute the case under Section 302 &amp; 201/34 of I.P.C. in which after investigation charge-sheet was submitted leading to the taking of cognizance and after the case was committed to the court of Sessions, the charge was framed for the offences punishable under Sections 302/34 &amp; 201/34 of I.P.C. and under Section 3 of the Prevention of Witch (Daain) Practices Act, 1999, to which the accused pleaded not guilty and claimed to be tried. The appellant stated that the prosecution has miserably failed to prove its case beyond all reasonable doubt. It is submitted that except PW1 and 2 there is no eyewitnesses to the occurrence and their testimony suffers major discrepancies. According to PW1 &amp; 2 stated that it was a dark night and there is no electricity in the village and as such it would have been absolutely impossible to have identified the assailants. The claims of PW1 and 2 are is improbable and unbelievable if his version is taken to be true to the effect that he claims to have seen the accused persons committing the murder of his son-in-law, but neither had he tried to save him nor did he inform this matter to any of the villagers immediately. Learned counsel also submits that as per P.W. 2, the incident is said to have taken place near the house of P.W. 1, but the I.O. has disclosed that the distance between the place of occurrence and the house of P.W. 1 is about half a km. He further submits that nothing -6- has been stated as to whether P.W. 1 and P.W. 2 had followed them which further nullifies the story created by P.W. 1 and P.W. 2 to implicate the appellants. Learned counsel submits that as per P.W. 1, both the sides were on inimical terms and hence the false implication of the appellant cannot be ruled out. On such parameters, learned counsel for the appellants has stated that the present appeal is allowed. The Opposite part submitted that the eye-witnesses of the occurrence and their evidence are cogent, convincing, and believable, and therefore, conviction of the appellants under Section 302/34 and 201/34 of I.P.C. has rightly been done. The Court held that” The prosecution has tried to build an edifice based on the evidence of P.W. 1 and P.W. 2 who have started to have seen the occurrence relating to the son of the informant namely, Markas Munda being subjected to assault by the appellants with stone and tangi. However, the edifice crumbles once the cross-examination of P.W. 1 and P.W. 2 is taken into consideration. P.W. 1 in very categorical terms has stated in his cross-examination that it was difficult for the persons to be recognized who was standing at a distance on account of the darkness. He has further admitted that it was a dark night. According to the evidence of P.W. 1, he out of fear had returned back to his residence which conduct appears to be totally contrary to what one would expect in such a situation when the son-in-law of the P.W. 1 is being done to death and he neither informs the villagers nor raises any alarm, but rushes to his house and stays put. On a court question, he has stated that from the place of occurrence, he was at a distance of 150 feet and considering the darkness which had engulfed the area and the distance from where the incident is said to have been seen by P.W. 1, it totally nullifies the prosecution case with respect to the identification of the appellants being the assailants. Similarly, the evidence of P.W. 2 is fraught with major discrepancies as he has stated that he had not seen any person in the place of occurrence and that he had never disclosed the incident to the villagers. This witness has also admitted that there is no electricity in the village. He has also stated about total darkness The evidence of the other witnesses do not energise the prosecution case and the falsity of the allegations levelled against the appellants lie threadbare on a dissection of the evidence of the so-called eye-witnesses P.W. 1 and P.W. 2 as has been taken note of earlier. Click here for the Judgement