). ……… Binod Munda @ Binod Kachhap, S/o Late Budhuwa Munda, R/o Village- Baram v. ……… …
Case Details
Cr. Appeal (D.B.) No. 744 of 2016 ….….. (Against the judgment of conviction and order of sentence both dated learned Additional Judicial Commissioner-VII, 19.05.2016 passed by Ranchi, in Session Trial No.161 of 2010). ……… Binod Munda @ Binod Kachhap, S/o Late Budhuwa Munda, R/o Village- Baram, P.O. & P.S.- Tatisilway, District- Ranchi ….. Appellant The State of Jharkhand Versus ……… …. Respondent For the Appellant For the State : Mr. Naveen Kumar Jaiswal, Advocate : Mr. Tarun Kumar, AddI. Public Prosecutor ----------- PRESENT Sri Ananda Sen, J. Sri Gautam Kumar Choudhary, J. J U D G M E N T 29.10.2024 By Court: Heard, learned counsel for the appellant, Mr. Naveen Kumar Jaiswal and learned counsel for the State, Mr. Tarun Kumar, Additional Public Prosecutor. 2. The instant criminal appeal is directed against the conviction of the sole appellant under Section 302 of the Indian Penal Code and Section 4 of Prevention of Witch (Daain) Practices Act vide judgment of conviction dated 19.05.2016 passed by learned Additional Judicial Commissioner-VII, Ranchi, in Session Trial No.161 of 2010 and order of sentence dated 19.05.2016, whereby he has been sentenced to undergo imprisonment for life and fine of Rs.5,000/- under Section 302 of IPC and further he has been sentence to undergo R.I for six months and fine of Rs.2,000/- for the offence under Section 4 of Prevention of Witch (Daain) Practices Act. 3. The learned counsel for the appellant submits that most of the witnesses are close relatives of the deceased, except one, who has been declared hostile and the place of occurrence is a very big village, but none of the independent witness came forward to support the prosecution case. He further submits that there are contradictions in 1 the version of the prosecution witness which make the entire prosecution case doubtful. He further submits that the Trial Court has not considered the doubt regarding recovery of farsa, which is alleged as the murder weapon, as to exactly from where it has been recovered. Hence, the learned counsel for the appellant prays for acquittal of the appellant. 4. The learned counsel for the State submits that the prosecution has fairly placed its case before the Trial Court. There are eye witnesses to the occurrence, who had categorically stated about the occurrence. The ocular evidence of the prosecution witness is supported by the medical evidence. He further submits that the Trial Court is correct in passing the judgment of conviction and order of sentence, which requires no interference. 5. The prosecution case based on the fardbeyan of Birsa Sanga (informant) is that on 19.10.2009 at about 06.00 P.M., he, his wife, his brother and his mother were present in their house, when the appellant- Binod Munda came to his house, armed with farsa and started searching the mother of the informant. The brother of the informant came out of his house and asked the appellant as to why he is searching his mother, to which the appellant replied that his mother is a witch. When the brother of the informant objected the appellant, he gave several blows of farsa upon him and committed his murder. On seeing that the informant along with his family members fled being afraid of the appellant. As the mother of the informant was old, she could not flee and when informant returned to his home, he could not find her there. She was also found dead.
Facts
6. On the basis of the aforesaid fardbeyan, FIR was registered being Tatisilwai P.S. Case No.60 of 2009 under Section 302 of the Indian Penal Code and under Sections 4 and 5 of Prevention of Witch (Daain) Practices Act. The police after investigation filed chargesheet against the sole appellant to which the Court took cognizance and committed the case to the Court of Sessions. As the appellant pleaded not guilty, charge was framed under Section 302 of IPC and Section 4 2 and 5 of Prevention of Witch (Daain) Practices Act and he was put on trial. Altogether ten witnesses have been examined in this case by the prosecution, who are as follows:- P.W.1- Suresh Nayak is the seizure list witness. He identified his signature in the seizure list of farsa, which was marked as Exhibit-1. He also signed the seizure list of blood stained soil, which was marked as Exhibit-1/1. P.W.2- Ravindra Mahto has been declared hostile. P.W.3-Dr. Hridayesh Kumar Sinha conducted the Forensic Science Examination on the Material Exhibit received which were one plastic vial, one polythene packet and one farsi and few blackish filaments (hairs) adhering with the blade and the same were marked as A, B, C/1 and C/2 respectively. From the examination, he concluded that the contributor of the blood found on the exhibit marked -A and C/1 are from one and the same source of human male origin. P.W.4-Mohan Mahto has been declared hostile. P.W.5-Sushama Sanga (wife of Butaru Sanga) stated that the occurrence took place five years ago. At about 6.30 P.M., the appellant came to her house and started creating commotion. When her husband came out of the house, the appellant assaulted him on the chest and neck by farsi. On seeing that she started crying and fled from there. Her mother-in-law could not flee whereupon the appellant pressed her neck as he used to call her witch. When they returned, they found the appellant had already fled from there. P.W.6-Boncho Sanga stated that at the time of occurrence, she was at her home. When the appellant came and started abusing them, her mother. Her brother came out of her house and on seeing them the appellant gave farsa blow on the chest and neck of Butaru. On seeing that, they fled from there and as her mother could not flee, the appellant pressed her neck and killed her also. She stated that the dispute arose out of allegation of witch craft. 3 P.W.7-Birsa Sanga (informant) stated that the occurrence took place about 06.00 P.M. when he was present in his house. The appellant came there and stated that due to witch craft of informant’s mother, his development has been stalled. When his brother Butaru came out of the house, the appellant assaulted him with farsi upon his chest and upper part of the body due to which he died. He stated that at that time, his wife, his brother, wife of Butaru who were also present in the house, fled away. His mother was also there who kept herself hidden in a room. After half an hour when he returned, he saw the dead body of his brother. The police came at 7.30 P.M. to whom he gave his fardbeyan, which was marked as Exhibit-3. P.W.-8 Mangu Sanga is a hearsay witness. P.W.-9 Bipin Kumar Singh, Investigating Officer stated that on 19.10.2009, he heard rumor about the occurrence and entered the matter in Police Station Diary bearing No.364 and proceeded to the place of the occurrence with police force. When he reached the place of occurrence, he recorded the fardbeyan and the endorsement was also written by him which was marked as Exhibits-4 and 4/1. He also exhibited the formal F.I.R., which was marked as Exhibit-5. After taking charge of the investigation, he recorded the re- statement of the informant and prepared the seizure list of the blood collected from the place of occurrence, which was marked as Exhibit-6. He also prepared the inquest report of both the deceased. When the appellant was arrested, his confessional statement was also recorded by him and the murder weapon was also recovered upon his confessional statement which was seized and the seizure list was also prepared by him, marked as Exhibit-7. P.W.-10 Dr. Binay Kumar, conducted the postmortem of Butaru Sanga and found the following injuries:- Incised wound:- (i) 9 cm. x 1cm. bone deep over fronts- lateral aspect of right side of forehead cutting the underlying bone partial. (ii) 5 cm. x 1 cm. soft tissue deep over fronto-lateral aspect of right side of neck in middle part placed horizontally. 4
Legal Reasoning
11. After analyzing the evidence of the witnesses, we find that P.W.- 5, P.W.-6 and P.W.-7 are the three eye witnesses of the occurrence. P.W.-7, who is the informant of this case has categorically stated as to how his mother was branded as witch and how the appellant has committed the murder of his brother. The deposition of P.W.-5 and P.W.-6 corroborates with his version. They also deposed as to how her mother- Birsi Sanga was murdered. Further, the evidence of the Doctor also corroborates with their ocular evidence as he found injuries upon the neck and chest of the deceased- Butaru Sanga which were caused by heavy sharp cutting weapons. Further, the Doctor also found injuries upon the neck and chest of the deceased- Birsi Sanga and found that her death has been caused by asphyxia and hemorrhagic shock. Further, we find from the FSL report that the blood found on the farsi and the blood collected from the dead body were from same source of human origin. The said farsi was recovered by the police on the confessional statement of the appellant. 12. We find that the witnesses have stated that the appellant was in search of Birsi Sanga, who the appellant branded as a witch and as Butru Sanga caused hindrance, he was also killed by the appellant, so was Birsi Sanga. Though there is no eye witness to the murder of Birsi Sanga, but, there is clear motive of the appellant of committing murder of Birsi Sanga. She was branded as witch. Witness while fleeing saw this appellant catching her by neck after committing murder of Butru 6 Sanga. Thus, there are clear evidences in support of prosecution that the appellant has murdered Birsi Sanga. So far as murder of Butru is concerned, there are eye witnesses to his murder, who are reliable. 13. The plea of alibi taken by the defence is of no relevance and is not trustworthy. They could not say even the date of the fair. The witnesses produced by the defence appears to be unreliable. 14. Further, the plea of the appellant that most of the witnesses are interested witnesses cannot be taken in account as these witnesses are found to be reliable, corroborates each other and proves the prosecution version. They are natural witness. Their evidence is clear and unambiguous and the defence could not be able to shake their credibility. 15. Thus, we find that prosecution has been able to prove the guilt of the appellant beyond shadow of all reasonable doubts and the Trial Court has correctly appreciated all the evidence and convicted the appellant under Section 302 of the Indian Penal Code and Section 4 of Prevention of Witch (Daain) Practices Act. 16. We find no merit in this appeal. Accordingly, the instant Criminal Appeal stands dismissed. The judgment of conviction and order of sentence both dated 19.05.2016, passed by learned Additional Judicial Commissioner-VII, Ranchi, in Session Trial No.161 of 2010, needs no interference. 17. Let Trial Court Records along with a copy of this judgment be sent to the concerned trial court forthwith. (Ananda Sen, J.) (Gautam Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated 29/10/2024 NAFR /R.S./ Cp 03. 7
Arguments
(iii) 3 cm. x 1 cm x soft tissue deep over right side of lateral aspect of neck lower part. Cutting toe right carotid artery and other surrounding blood vessels. (iv) 5 cm. x 1 cm. x bone deep over line toe right clavicle in medical part cutting toe underline clavicle 1st rib and right lung in upper part. (v) 9 cm. x 1 cm. x soft tissue deep, over right occipital region lower part and directed tangentially from upward to downward. (vi) 7 cm. x 1 cm. x bone deep over left side of lateral aspect of neck, lower part cutting the soft tissues, blood vessels and 6th cervical vertebra partially and lacerating toe underneath spinal cord. (vii) 10 cm. x 1 cm. x bone deep over line left clavicle and cutting underline clavicle. (viii) 10 cm. x 1 cm. x bone deep over left scapular region and cutting the underneath bone. Right chest cavity is filled with blood and blood clot, stomach contains semi digested food material in pest form 300 grams. He opined that the injuries are antemortem in nature caused by heavy sharp cutting weapon and the death is due to combined effect of spinal cord injury and hemorrhagic shock. His postmortem report was marked as Exhibit-8. Further, the Doctor also conducted the postmortem examination of the deceased- Birsi Sanga and found the following injuries:- Abrasion (i) ‰ cm. x … cm., ‰ cm. x … cm. over front of right side of neck, upper most part. (ii) 3 cm. x … cm. x … cm. over front of right side of neck in medical side, middle part situated transversely and obliquely and parallel to each other. (iii) 1 cm. x … cm. over front of left side of neck upper most part. The soft tissues of front of chest and neck are contused. The fracture of sternum at 2nd and 4th rib level. There is bilateral fracture of 2nd to 10th rib in mid midclavicular line lacerating both lungs, liver spleen and heart. Both chest, abdominal and pericardial cavities are filled with blood and blood clots. He opined that the injuries are antemortem in nature caused by hard and blunt substance and the death is due to combined effect of asphyxia and hemorrhagic shock due to above noted injury. Her postmortem report was marked as Exhibit-8/1. 7. The following documents were also exhibited by the prosecution:- Exhibit-1 and 1/1: Signature on seizure List. Exhibit-2 and 2/1: Signature of Director SFSL on report No.994/ 2009 Exhibit-3: Signature on F.I.R. Exhibit-4 Entire Fardbeyan Exhibit-4/1: Registration of F.I.R. Exhibit-5: formal F.I.R. Exhibit-6 and 7: Seizure List Exhibit- 8 and 8/1 Postmortem Report 5 8. The Trial Court after completion of the prosecution evidence examined this appellant under Section 313 of Cr.P.C. 9. The defence has also examined five witnesses, who are (i) Mahabir Nayak, (ii) Anil Tirkey, (iii) Budhram Kachhap, (iv) Sukara Nayak and (v) Biradhan Lohara. They only stated that on 19.10.2009 there was fair (Jatra Mela) in their village and informant and appellant were present in the said fair from morning till 09.00 P.M. 10. After hearing the parties, the Trial Court convicted the appellant under Section 302 of the Indian Penal Code and Section 4 of Prevention of Witch (Daain) Practices Act and sentenced him as aforesaid.