Ram Tirkey Vs State of Jharkhand

Criminal Appeal (D.B.) No. 910 of 2012

[ Arising out of judgment of conviction dated 07.08.2012 and order of sentence dated 09.08.2012 passed by learned Additional Sessions Judge-II, Chaibasa in Sessions Trial No. 102 of 2010]

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Ram Tirkey 2. Jambu Tirkey 3. Bandhna Tirkey .... .... …. Appellants --Versus-The State of Jharkhand …. …. …. Respondent

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For the Appellant : Mr. Subham Mishra, Advocate For the State : Mr. Vishwanath Roy, A.P.P.

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PRESENT: SRI ANANDA SEN, J.

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SRI GAUTAM KUMAR CHOUDHARY, J.

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JUDGMENT

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Reserved on: 07.08.2024 Pronounced On: 19.08.2024

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Per Gautam Kumar Choudhary, J . This appeal is against the judgment passed in Sessions Trial No.102 of 2010 by which the appellants have been convicted and sentenced under Section 302/34 of the Indian Penal Code and Section 4 of Prevention of Witch (Daain) Practices Act.

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2. As per the FIR, on 02.03.2010, it was Sarhul Festival and informant – Etwa Tirkey had retired to his bed at night after taking his dinner. At around 8.00 p.m., all the three appellants came inside the house by pushing the door made of Tin, as it was not locked from inside. Ram Tirkey identified the deceased who happened to be the wife of the informant as a witch, and responsible for the death of his wife by practicing black magic about 15 days before the said incidence. The accused persons conjointly assaulted the deceased resulting in her death.

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3. On the basis of the statement of the informant, Manoharpur P.S. Case No.4 of 2010 was registered under Sections 452 and 302/34 of the IPC and Sections 3/4 of the Prevention of Witch (Daain) Practices Act. Police on investigation found the case true and submitted charge sheet. After cognizance and commitment, accused persons were put on trial under these Sections.

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4. Altogether eight witnesses have been examined on behalf of prosecution and relevant documents have been adduced into evidence and marked as

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1

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Exhibits 1 – 6 which include post-mortem examination report, FIR, inquest report etc.

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5. Judgment of conviction and sentence has been assailed on the ground that as per post-mortem examination report, Exhibit 1, only one lacerated wound on the right leg below, the knee joint was found which was not on the vital part of the body. It is argued that, even if the incidence is assumed to be true, offence under Section 302 of the IPC will not be made out. Oral evidence of assault by all, is not corroborated by medical evidence. In the absence of any injury on the vital part of the body, appellants cannot be imputed with requisite intention to cause death.

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6. Statement of the informant – P.W. 2 in FIR that his two sons were present, is falsified by the evidence of P.W. 5 in para 2, wherein he has admitted that he had not seen the occurrence. P.W. 2 was also not an eye witness, which will be evident from para 9 of his cross-examination wherein it has been stated by him that Chereya Tirkey (deceased) lived with her son Butru Tirkey in the newly constructed house which was half Km. from his own house.

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7. Learned counsel on behalf of the State has defended the judgment of conviction and sentence. It is argued that the prosecution case is fully supported by direct eye witness account. There is bound to be minor inconsistencies in deposition of witnesses as the capacity of observation, retention and reproduction varies from person to person. The inconsistencies which have been pointed out, are not vital enough to be fatal to the prosecution case.

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8. Having considered the submissions advanced on behalf of both sides and the materials on record, it is evident that FIR was lodged without any delay. The incidence took place on 02.03.2010 and the FIR was lodged on 03.03.2010 by the husband of the deceased. Post mortem examination of the dead body was conducted on 04.03.2010 and as per the post mortem examination report following injuries were found on the dead body:-

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External

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i. Lacerated wound right leg below knee joint. 1” x ¼” skin deep.

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ii. Abrasion – 3” X ¼” on the same leg.

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iii. Multiple abrasions over right side of the chest 2” x ¼”

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On dissection – Thorax – rib fracture on right side thorax cavity full of blood. Lungs – right side ruptured and left intact. Heart – both

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2

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chamber empty.

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Per abdomen – Liver, Spleen – NAD, Stomach – digested liquid food. Time since death – 6 to 48 hours.

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Cause of death – Hemorrhage and shock due to above injuries caused by hard and blunt object.

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9. From the post-mortem report, it is evident that death was homicidal in nature. Informant (P.W. 2), who happens to be husband of the deceased, has specifically deposed in para 9 of the cross-examination that deceased Chereya Tirkey used to live with her son Butru Tirkey. New house in which the informant lived, constructed this year, was at a distance of half Km. from the house where his wife lived. This gives credence to the argument on behalf of the appellants that P.W. 2 was not a direct eye witness to the incidence. The house in which the incidence took place, appears to be different from the one, where the informant resided. From this deposition, it appears that it was Butru Trikey who should have been present at the time of incidence with the deceased, but he has not been examined.

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10. P.W. 3 – Etwari Tirkey (wife of P.W. 5 – Lalu Tirkey) has also deposed that she was living with the informant, her husband and Bhuglu Tirkey (P.W. 4). P.W. 3 has further deposed in para 3 that none of her family members rushed to rescue her mother-in-law when she was being assaulted. This gives strength to the argument on behalf of the appellants that neither the informant nor his sons P.W. 4 and P.W. 5 were present in the house where the incidence took place. Had they been present there, in normal course of human conduct, they must have taken some steps to rescue the deceased. Confusion regarding the place of occurrence and the presence of the eye witnesses there, is further confounded by the testimony of P.W. 4 – Bhuglu Tirkey, who has deposed that his younger sister – Chandu Barwa (P.W. 6) was also present in the house when the accused persons barged into there. This is however falsified by P.W. 6 in para 1 of her testimony wherein she has deposed that at the time of incidence she was in her matrimonial home. In para 1, she has claimed to have been eye witness to the incidence, but in para 4, she has deposed that when she arrived there, she found her mother to be in unconscious state.

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11. In view of these conflicting and contradictory account given by the prosecution witnesses, it is difficult to rely on the testimony of the witnesses to hold the appellants guilty of the offence charged with. Although on the basis of medical evidence there can be no doubt that deceased died a homicidal death. But beyond this, prosecution has failed to prove its case that appellants were author of crime. Appellants are entitled to benefit of doubt. Judgment of conviction and sentence passed by the learned trial court is set aside.

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Appeal is allowed.

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Appellants are in Jail. They shall be released forthwith if not warranted

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other case.

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Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.

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(Gautam Kumar Choudhary, J . )

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Per Ananda Sen, J. I agree.