Allowed

Rohit Nayak v. State of Jharkhand

Jharkhand HC14 Jan 2020Cr.A(DB)/273/2007

Case brief

AI extract

What is this about?

Criminal Appeal against conviction for murder and witchcraft practices. High Court analyzed solitary eye-witness testimony, forensic inconsistency, and procedural defects, finding prosecution failed to prove guilt beyond reasonable doubt. Appellant acquitted and set free.

What did the court decide?

Judgment of conviction and order of sentence dated 24.1.2007 and 25.1.2007 set aside; appellant acquitted and released forthwith.

Rohit Nayak Vs State of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No. 273 of 2007

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(Against the judgment of conviction dated 24^th January, 2007 and order of sentence dated 25^th January, 2007 passed by the learned 1^st Additional Sessions Judge, Chaibasa, Singhbhum West in Sessions Trial no. 54 of 2006)

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Rohit Nayak, son of Late Okhil Nayak, resident of village Udaypur, P.O. Nojo, P.S. Sonua, District-West Singhbhum ......Appellant

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Versus

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The State of Jharkhand ... Respondent CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR : HON’BLE MR. JUSTICE RATNAKER BHENGRA

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-----For the Appellant : Mr. Sheo Prasad Singh, Advocate For the State : Mr. V.K.Tiwary, A.P.P.

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JUDGEMENT Per, Shree Chandrashekhar,J. Dated: 14^th January, 2020 Oral Order

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The sole appellant, namely, Rohit Nayak has suffered conviction and sentence of R.I. for life under section 302 of the Indian Penal Code for committing murder of Bishari Nayak, who was aged about 35 years and R.I. for three months under section 3 & 4 of the Prevention of Witch (Daain) Practices Act.

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On the basis of the fardbeyan of Sanat Nayak @ Mantu Nayak which was recorded in the morning of 23^rd October, 2005 at about 5:30 a.m. at village Udaypur , Nichetola, Sonua P.S. Case no. 43 of 2005 was registered against the appellant under section 302 of the Indian Penal Code and under section ¾ of the Prevention of Witch (Daain) Practices Act, 1999 .

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In his fardbeyan, the informant has stated that at about 5:00 p.m. the previous evening, his elder sister-in-law told him that a crowd has gathered near the house of Golak Bihari Nayak. When he had gone there he has seen that his sister was lying and the appellant was pressing neck of his sister by sitting on her chest in a field situated on the northern side of the house of Golak Bihari Nayak. Finding him coming there the accused fled away and by that time his sister had died. After some time, brother of the informant also came there. They called the villagers and sent information to the police station through the chaukidar.

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During the trial, the prosecution has examined 13 witnesses. The informant, his mother, his brother and his sister-in-law have been

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examined during the trial.

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The informant is brother of Bishari Nayak. He has been examined in the court as PW-3. He has deposed that in the evening of 22^nd October, 2005 his sister-in-law asked him to find out why a crowd has gathered near the house of Golak Bihari Nayak. He has seen the appellant strangulating his sister with an iron chain. He has also stated about arrival of his brother and information sent by them to the police station through the chaukidar. He has stated that the appellant had a doubt that his sister was practicing Witch Craft and she had killed his brother Mangal Nayak.

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According to the prosecution, informant is the solitary eye-witness in this case and his evidence is corroborated by Sarita Devi-PW-1, who is sister-in-law of the informant, Basanti Devi-PW-2 who is his mother and Anadi Nayak- PW-4 who is his brother.

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The conviction of an accused can be recorded on the basis of testimony of a sole eye-witness if testimony of the solitary witness is found cogent, reliable and trustworthy. In “Bhimapa Chandappa Hosamani and others Vs. State of Karnataka” reported in “(2006)11 SCC 323”, the Supreme Court has however cautioned that before conviction of an accused is recorded on the basis of testimony of a single witness the court must satisfy itself that testimony of such witness is of such sterling quality that it leaves no doubt about the complicity and involvement of the accused in the crime. In “ Lallu Manjhi v. State of Jharkhand ” r eported in (2003) 2 SCC 401, the Supreme Court has observed as under:

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“ 10. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness.”

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To prove the charge against the appellant for committing murder of Bishari Nayak, the prosecution has relied on the medical

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evidence which according to the prosecution corroborates the eye-witness account of the informant.

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Dr. A.K.Mishra-PW-9 who has conducted the post-mortem examination on 23^rd October, 2005 at about 1:30 p.m. has found one brown depression of the size “ 1”x ½” ” on both wind pipes at upper neck and multiple interrupted ligature marks with abrasion of the size “ ½” x ¼” ” on the lower part of the neck of Bishari Nayak and the ligature marks were extending from left sternocleidomastoid to right sternocleidomastoid muscle. The doctor has found blood stains in the mouth of the deceased, trachea was intact but the subcutaneous tissues were depressed.

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During his examination, the doctor has opined that the death has been caused due to pressure over carotid area leading to cardiac arrest. In his opinion, the injury no.1 was caused by hard and blunt substance and the injury no.2 through ligature and the time elapsed since death was 6 to 36 hours.

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In Medical Jurisprudence, specific characteristics of death by strangulation have been described. Death by strangulation can happen in two ways; strangulation by ligature or by pressure on the neck through fingers. In the Textbook of Medical Jurisprudence and Toxicology by Modi, 26^th edition, at page-516, it is observed that if fingers are used (throttling) marks of pressure by the thumb and the fingertips are usually found on either side of the windpipe but in homicidal strangulation ligature mark would be horizontal or transverse, continuous, round the neck and low down the neck below the thyroid. It is also common that in a case of homicidal strangulation abrasions and ecchymoses round the ligature mark are found and carotid arteries’ internal coats are raptured, larynx trachea and hyoid bone are fractured. Parikh’s Textbook of Medical Jurisprudence Forensic Medicine and Toxicology, Sixth Edition, also refers to ligature mark which usually would encircle neck horizontally below thyroid cartilage. It says that abrasions and bruises around the ligature mark are common in a case of homicidal death by strangulation. According to Parikh, similar hypothesis such as fracture of hyoid bone, laryngeal cartilages, tracheal rings and carotid arteries are common.

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The observation of PW-9 has disclosed that Bishari Nayak has suffered a homicidal death, but the question is whether death has been caused by the appellant.

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In paragraph no.3 of his examination-in-chief, the informant has stated that he has seen the appellant pressing the neck of his sister by an iron chain but after saying so he stops. He says that seeing this he became afraid and came back home and informed his brother. His brother who has been examined as PW-4 has admitted that he has not seen the appellant murdering his sister by strangulation. The informant and PW-4 both have admitted that the information about the occurrence was sent to the police station the same evening. In his cross-examination, the informant has admitted that along with the chaukidar and other family members they had gone to the police station at about 8 p.m. in the same evening and informed the Darogaji about the incident, however, his statement was not recorded at the police station and the police arrived in the village the next day. The informant has further stated that the place of occurrence is at a distance of about 120 meters-125 meters from the house of Golak Bihari Nayak and when he reached at the place of occurrence he has not found crowd of villagers there. The admission of the informant that when he arrived at the place of occurrence he has not found anyone else there; his house is at a distance of 125 meters from the place of occurrence, is highly unlikely and unbelievable. His sister-inlaw had asked him to find out why a crowd had gathered near the home of Golak Bihari Nayak. His brother has stated that by the time his wife saw a crowd he had come back home from work. However, he is not the one who has gone to the place of occurrence before the informant informed him about the assault by the appellant upon Bishari Nayak. On such evidence, foundation of the prosecution’s case that when sister-inlaw of the informant asked him to find out what is happening near the house of Golak Bihari Nayak and on her asking he had gone there is not proved.

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There are other circumstances in the case which also create a doubt on the prosecution’s case. The Investigating Officer who has been examined in the court as PW-10 has stated in the court that the appellant has surrendered in the court. He has further stated that in his statement

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before him the chaukidar did not reveal anything. But, the chaukidar who has been examined in the court as PW-8 has said that the Darogaji had taken the accused to the police station and he had also accompanied them to the police station. The investigating officer admits that an information was received in the police station in respect of which Sanha no. 384 was registered, but it was not produced during the trial. The informant and his family members have spoken about animosity between the appellant and Bishari Nayak. They have deposed in the court that the appellant was nurturing a doubt that by practicing witch craft Bishari Nayak has killed his brother.

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If the delay is satisfactorily explained by the prosecution then such delay does not count against the prosecution story. Therefore, it depends on the facts and circumstances of the case whether the delay in lodging the First Information Report would be relevant or not. It is also well-settled that minor inconsistencies, exaggerations, embellishment, improvements etc. in the testimony of a witness are bound to happen in every case and on minor inconsistency or exaggeration or embellishment or improvement, the prosecution’s case cannot be rejected altogether. But then, the inconsistencies which at the first blush may seem minor and the other attending circumstances in the case when considered together may prove fatal for the prosecution. This is one such case. The delay in lodging the first information report which of course was registered within 17 hours of the occurrence has become relevant in this case for the reason that the prosecution witnesses as well as the investigating officer have admitted in the court that an information about the incident was given in the police station the same evening at about 8 p.m., but the information received in the police station has not been brought on record. The evidence of the informant under which he has stated that he has not found any other person at the place of occurrence and his brother not accompanied him to the place of occurrence in the first instance are such facts which would shake the foundation of the prosecution’s case. 17. In the aforesaid state of evidence, we are of the opinion that the appellant is entitled for the benefit of doubt. It is a cardinal principle in criminal jurisprudence that the prosecution must establish its case beyond all shadows of reasonable doubt and at the end of the trial if it

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is found that there are serious infirmities in the prosecution case benefit of doubt must be given to the accused. In “Ashish Batham Vs. State of M.P.” reported in (2002) 7 SCC 317 , the Hon'ble Supreme Court has observed thus;

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8. “Realities or truth apart, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between “may be true” and “must be true” and this basic and golden rule only helps to maintain the vital distinction between “conjectures” and “sure conclusions” to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record.”

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In view of the above discussions, we hold that the prosecution has failed to prove the charge under section 302 of the Indian Penal Code against the appellant.

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Accordingly, the judgment of conviction under section 302 of the Indian Penal Code and under section ¾ of the Prevention of Witch (Daain) Practices Act, 1999 dated 24.1.2007 and the order of sentence of R.I. for life under section 302 of the Indian Penal Code and R.I. for three months under section ¾ of the Prevention of Witch (Daain) Practices Act, 1999 dated 25.1.2007 passed against the appellant, namely, Rohit Nayak by the learned 1^st Additional Sessions Judge, Chaibasa, Singhbhum West in Sessions Trial no. 54 of 2006 are set-aside.

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The appellant, namely, Rohit Nayak is acquitted of the criminal charge framed against him in Sessions Trial no. 54 of 2006. 21. The appellant, above-named, who is in custody, shall be set free forthwith, if not wanted in connection to any other case. 22. In the result, Criminal Appeal (D.B.) No. 273 of 2007 is allowed.

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