The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.921 of 2022 AND CRLA No.1131 of 2022 In the matter of Appeals under section 374(2) of the Code of Criminal Procedure, 1973 and from the judgment of conviction and order of sentence dated 29th June, 2022 passed by the learned 1st Additional Sessions Judge, Baripada, Mayurbhanj, in S.T. Case No.154 of 2018. ---- Rame Murmu & Others (In CRLA No.921/2022) Kanda @ Narasingh Murmu (In CRLA No.1131/2022) -versus- …. Appellants State of Odisha (In both CRLAs) …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr.D. Nayak, Sr. Advocate (In CRLA No.921/2022) Mr.Niranjan Lenka, Advocate (In CRLA No.1131/2022) For Respondent - Mr.Sitikant Mishra, ASC (In both CRLAs) CORAM: MR. JUSTICE D.DASH DR. JUSTICE S.K.PANIGRAHI Date of Hearing : 17.05.2023 : Date of Judgment:21.06.2023 CRLA Nos.921 & 1131 of 2022 Page 1 of 14 {{ 2 }} D.Dash,J. Since in both the Appeals, the judgment of conviction and order of sentence dated 29th June, 2022 passed by the learned 1st Additional Sessions Judge, Baripada, Mayurbhanj, in S.T. Case No.154 of 2018 corresponding to G.R. Case No.344 of 2018 arising out of Kuliana P.S. Case No.35 of 2018 on the file of the learned Sub-Divisional Judicial Magistrate (S.D.J.M.), Baripada, has been called in question, those were heard together for being disposed of by common judgment. These Appellants (accused persons) faced the trial for commission of the offence under section 302/307/323/324/325/ 326/342/34 of the Indian Penal Code, 1860 (for short, 8the IPC9) read with section 5/6 of the Odisha Prevention of Witch Hunting
Legal Reasoning
Act (in short, 8the O.P.W.H. Act9). The Trial Court, has found the accused persons guilty of the offence under section 326/302/34 of the IPC read with section 6 of O.P.W.H. Act. Accordingly, each of them has been has been sentenced to undergo rigorous imprisonment for a term of ten (10) years with payment of fine of Rs.3,000/- (Rupees Three Thousand) in default, to undergo rigorous imprisonment for three (3) months for the offence under section 326 of the IPC; rigorous imprisonment for three (3) years with payment of fine of Rs.1,000/- (Rupees One Thousand) for the offence under section 6 of the O.P.W.H. Act; and imprisonment for life with payment of fine of Rs.5,000/- (Rupees Five CRLA Nos.921 & 1131 of 2022 Page 2 of 14 {{ 3 }} Thousand) in default to undergo rigorous imprisonment for five (5) months for the offence under section 302 of the IPC with stipulation that the substantive sentences would run concurrently. 2. Prosecution Case:- Accused Rame Murmu is said to be a witch doctor and used to treat patients for different ailments in his own style. One Bhaga Murmu, who is the mother of the informant, namely, Rama Murmu (P.W.7) was not well and, therefore, she had been taken to the house of accused Rame, who happens to be her brother. Accused Rame told that he would do <JHADA FUNKA99 in treating Bhaga and accordingly, he went ahead in treating Rame in his own style. On the relevant day, the sister of the informant, namely, Sombari Murmu had gone to the house of accused Rame to see the treatment of her mother as was going on there. This Sombari, having seen the manner of treatment, being frightened suddenly shouted. Therefore, accused Rame immediately expressed that Sombari had been captured by evil power and he then tied her hands and legs. The wife, sons and daughter-in-law of Rame, arraigned as accused persons, namely, Jitu @ Sukul Murmu, Kanda @ Narasing Murmu and Chhita Murmu @ Hansdah caught hold of Sombari and thereafter accused Rame started piercing a trident (Trishul) on her body and at that time, CRLA Nos.921 & 1131 of 2022 Page 3 of 14 {{ 4 }} other accused persons started piercing by means of Sabala (crow- bar) and gainti. Sombari started crying loudly. Hearing the same, the informant, namely, Rama, the brother of Sombari came to the house of accused Rame and saw her sister Sombari lying with injuries all over her body. Rama (Informant-P.W.7) along with accused Jitu @ Sukul Murmu and others rescued Sombari in a serious condition. Sombari while being shifted to Baripada Hospital in an ambulance, died on the way. It is stated that prior to the death of Sombari, accused Rame, as a witch doctor, had performed JHADA FUNKA upon Sita Murmu, who happens to be the daughrer-in-law of Dhuma Murmu and had put burnt charcoal on her hand and face causing burn injuries for which she too had been admitted into Hospital. It is further stated that on 25.04.2018 around 11.00 a.m., the accused persons had tied the legs and hands of Sombari and assaulted her by means of an trident (Trishul) for which she lost her life. On 26.04.2018, the informant Rama lodged a written report with the Officer-in-Charge (O.I.C.), Kuliana Police Station. The O.I.C., receiving the said written report, registered the case and took up investigation. She, in course of investigation, examined the informant (P.W.7) and other witnesses, visited the spot, seized the incriminating articles from the spot. She also held inquest over the dead body of the deceased (Sombari) and then CRLA Nos.921 & 1131 of 2022 Page 4 of 14 {{ 5 }} sent the same for post mortem examination by issuing necessary requisition. The accused Rame was then arrested and he, having given the statement as to have kept the trident (Trishul) and ropes in the place known to him, led the I.O. (P.W.33) and others to that place and gave recovery of those articles, which were seized. The incriminating articles then being sent for chemical examination through Court, the report to that effect has been received. On completion of the investigation, the I.O. (P.W.33) submitted the Final Form placing the accused persons to face the trial for commission of offence under section 302/307/323/324/325/ 326/342/34 of the IPC read with section 5/6 of the O.P.W.H. Act. 3. Learned S.D.J.M., Baripada, having received the Final Form, as above, took cognizance of the said offences and after observing the formalities, committed the case to the Court of Sessions. That is how the Trial commenced by framing the charges for the above offences against these accused persons. 4. In the Trial, the prosecution in total has examined thirty- three (33) witnesses. The informant is P.W.7 whereas the mother and nephew of the Informant (P.W.7) are P.Ws.6 & 12 respectively. Injured Sita Murmu, her mother-in-law and her husband have been examined as P.Ws.9, 8 & 19 respectively. The witnesses to the seizure of weapon on production of accused CRLA Nos.921 & 1131 of 2022 Page 5 of 14 {{ 6 }} Rame from his house are P.Ws.17, 18 & 21 respectively. The Doctor, who had examined accused Chhita is P.W.26 whereas the Doctor, who had examined accused Rame is P.W.28. P.W.26 is the Doctor, who conducted the autopsy over the dead body of Sombari (deceased) and the I.O. is P.W.33 whereas the others are the seizure and inquest witnesses. Besides leading the evidence by examining the above witnesses (P.Ws.1 to 33); the prosecution has proved several documents, which have been admitted in evidence and marked Exts.1 to 39. Out of those, the important are the FIR (Ext.10) whereas the inquest report is Ext.11/1 and the post mortem report is Ext.27. The spot map has been admitted in evidence and marked Ext.30 and the statement of accused Rame, has been admitted in evidence and marked Ext.20/1. During Trial, crow- bars (Sabala) and trident (Trishul), gainti and rope etc. have also been produced as Material Objects (M.O.I to M.O.XVI). 5. The plea of the accused persons is that of complete denial and false implication. However, they have not led any evidence in support of their defence. 6. The Trial Court, on examination of evidence, both oral and documentary on record, has found the accused persons to be guilty of commission of the aforesaid offences. CRLA Nos.921 & 1131 of 2022 Page 6 of 14 {{ 7 }} 7. Learned Counsels for the Appellants (accused persons) submitted that the finding of guilt as against the accused persons, which has been recorded by the Trial Court, is based on no evidence. According to them, when all most all the prosecution witnesses have not stated about the incident and even the post occurrence witnesses have not supported the prosecution case and they, having been cross-examined by the prosecution, no such material to the aid of the case of the prosecution has been elicited, the Trial Court ought not to have found the accused persons guilty of all the above offences. They further submitted that when one witness, i.e., Sita (P.W.9) has stated as to how she received the burn injury on her hand, chest and tongue and was bitten on her knee and head attributing the accused persons including accused Rame, the same cannot be believed if her evidence during cross-examination is seen when she has clearly stated that she could not know as to who inflicted burn injuries on her hands, chest and tongue as it was then dark. They, therefore, submitted that even the conviction for the offence under section 326 of the I.P.C. as against any of the accused persons including accused Rame with the evidence on record as stand cannot be sustained. 8. Learned Counsel for the Respondent-State submitted that although most of the prosecution witnesses have resiled form Page 7 of 14 CRLA Nos.921 & 1131 of 2022 {{ 8 }} their previous versions, yet on the basis of the evidence on record, the Trial Court, keeping in view the surrounding circumstances as to the happenings in the house of the accused Rame where Sombari died and Sita sustained injuries, when the accused persons have not provided any explanation, the conviction, as has been ordered by the Trial Court, cannot be unsettled. 9. Keeping in view the submissions made, we have carefully read the entire judgment passed by the Trial Court. We have also gone through the deposition of all the witnesses (P.W.1 to P.W.33) and have travelled perused the documents admitted in evidence and marked Exts.1 to 39. 10. Rama Murmu (P.W.7) has lodged the FIR, which has been admitted in evidence and marked Ext.10. The FIR has been lodged on 26.04.2018. It is indicated that Bhaga, the mother of the informant was not keeping good health for last two days and, therefore, his sister Sombari had taken Bhaga to the house of their maternal uncle, accused Rame, who used to perform <GUNI GAREDI= and was known to be a witch doctor. It has further been stated that accused Rame then told that if Guni Garedi Puja would be performed, Bhaga would be right and so saying, he started doing puja. It is said that seeing the manner of treatment CRLA Nos.921 & 1131 of 2022 Page 8 of 14 {{ 9 }} when Sombari raised shout, accused Rame told that Sombari came under the control of evil power and so saying, her hands and legs were tied and thereafter accused Rame and his other family members (accused persons) pierces her with sharp and pointed weapons, which ultimately led to her death. It was also stated that the daughter-in-law of one Dhuma, namely, Sita Murmu had been treated in that way by accused Rame and she having received several injuries on her person including burn injuries was under treatment in the Hospital. All these having been narrated in the F.I.R. (Ext.10), P.W.7, who is the author of the said FIR, has, however, resiled not only from the FIR version, but also from the statement, which he had given before the I.O (P.W.33). during investigation. He has stated that he did not enquire as to how her sister sustained the injury marks. Although he has stated to have lodged the FIR, which has been proved by him as Ext.10, yet he has not stated anything in support of the contents. The prosecution has cross-examined the witnesses with the permission of the Court. But then the prosecution has simply remained satisfied by throwing some suggestions. But no other material has been elicited from him to provide any aid to their case. During cross-examination, she has further shown her strong disinclination towards the prosecution and inclination towards the defence in saying that when he CRLA Nos.921 & 1131 of 2022 Page 9 of 14 {{ 10 }} arrived, the dead body of her sister was covered by a white cloth and he had not even removed that and saw the dead body. It is also stated that he did not know as to how his sister Sombari died. Ganesh Hansdah (P.W.1), who has been projected as a witness in support of the prosecution case, has also not supported while deposing in Court and this is also the situation in case of Sauna Hembram (P.W.2) and P.W.6, is the mother of the informant (P.W.7) when the fact remains that she was first taken to the house of accused Rame for treatment of her ailments by her daughter Sombari (deceased), but she too has not supported the prosecution case and the cross-examination from the side of the prosecution, with the permission of the Court, has not yielded any result in their favour. She, having also been examined in course of investigation by the I.O. (P.W.33) and having given her statement, which was recorded by the learned Magistrate under section 164 of the Code of Criminal Procedure, 1973 (in short, 8the Cr.P.C9), has simply asserted to have never stated so. The statement of this witness recorded under section 164 Cr.P.C. thus is of no help as that is not the substantive evidence when the maker herself has not so deposed. The father-in-law of the injured, namely, Sita Murmu, has been examined as P.W.9. He, however, has stated that his daughter-in-law (Sita Murmu) was CRLA Nos.921 & 1131 of 2022 Page 10 of 14 {{ 11 }} taken to the house of accused Rame, who to practised sorcery on her in order to cure her ailments and in that process, burn injuries had appeared on her both hands, chest and tongue and for that, she was taken to the District Headquarters Hospital, Mayurbhanj at Baripada and remained under treatment for eleven (11) days. The evidence of P.W.9 is to the effect that she was taken to the house of accused Rame, who is practicing sorcery on her to cure her ailments and then burn injuries were caused on her hands and tongue and also injuries had been caused on her knee and head. She has stated that for treatment of such injuries, she was taken to the Hospital. During cross-examination, this witness has, however, stated that since it was dark, she could not know as to who caused burn injuries on her hands and tongue. This is given much of emphasis by the learned counsel for the accused Rame that the evidence of this P.W.9 is not running against the accused persons and is not believable. In this way, the evidence of P.W.8 is adversely commented upon when he says to have not reported the matter to the police. It be stated at this stage that this P.W.9 having received the burn injuries in the house of accused Rame where Rame, with his family members, used to reside and when evidence of P.Ws,8 & 9 stand clear on the score that P.W.9 had been taken to the house of accused Rame, the non-explanation as regards such injuries appearing on the person of P.W.9 by CRLA Nos.921 & 1131 of 2022 Page 11 of 14 {{ 12 }} accused Rame, who as per the evidence of these two witnesses was a witch doctor and when support is derived form the evidence of P.Ws.17, 18 & 19 as well as the evidence of P.Ws.20, who is the husband of P.W.19 lead to presume that it is the accused Rame, who is the author of such injuries upon P.W.9. We, however, find that the evidence of the above prosecution witnesses as to be reliable to the extent that Sita while being under the treatment of witch doctor (accused-Rame) had received burn and other injuries on her person which receive the support on that score from the evidence of P.W.26, who had examined Sita (P.W.9) and had noted second degree burn over both hands with impending gangrene of right hand AND cellulitis upto right elbow and patchy gangrene of fourth, finger and thumb of left hand as well as another ulcer of size 2 cm X 2 cm over sternum. 11. On the conspectus of the analysis of the evidence let in by prosecution, we are of the considered view that the prosecution has failed to establish the charges against accused persons, namely, Mahi Murmu, Chhita Murmu @ Hansdah @ Sita Murmu and Jitu @ Sukul Murmu (Appellants in CRLA No.921 of 2022) and Kanda @ Narasingh Murmu (Appellant in CRLA No.1131 of 2022) under section 326/302/34 of the I.P.C. read with section 6 of O.P.W.H. Act beyond reasonable doubt by leading clear, cogent and acceptable evidence. Therefore, the judgment of conviction Page 12 of 14 CRLA Nos.921 & 1131 of 2022 {{ 13 }} and order of sentence impugned in these Appeals, in so far as the above accused persons are concerned, are liable to be set aside. In so far as accused Rame Murmu (one of the Appellants in CRLA No.921 of 2022) is concerned, this Court, while setting aside the judgment of conviction and order of sentence passed against him under section 302/34 of the I.P.C., confirms the same passed against him under section 326 of the I.P.C. read with section 6 of O.P.W.H. Act. 12. In the result, the Appeal, i.e., CRLA No.921 of 2022 is allowed in part with the above modification as to judgment of conviction and order of sentence. The accused persons, namely, Mahi Murmu, Chhita Murmu @ Hansdah @ Sita Murmu and Jitu @ Sukul Murmu (Appellants in CRLA No.921 of 2022) and the accused, namely, Kanda @ Narasingh Murmu (Appellant in CRLA No.1131 of 2022) be set at liberty forthwith, if their detention is not wanted in any other case. In so far as accused Rame Murmu (one of the Appellants in CRLA No.921 of 2022) is concerned, he is sentenced to undergo rigorous imprisonment for a term of eight (8) years with payment of fine of Rs.3,000/- (Rupees Three Thousand) in default, to undergo rigorous imprisonment for three (3) months for the offence under section 326 of the IPC; and rigorous imprisonment Page 13 of 14 CRLA Nos.921 & 1131 of 2022 {{ 14 }} for two (2) years with payment of fine of Rs.1,000/- (Rupees One Thousand) in default to undergo rigorous imprisonment for one (1) month for the offence under section 6 of the O.P.W.H. Act with the stipulation that the sentences would run concurrently. Accordingly, CRLA Nos.921 and 1131 of 2022 stand
Decision
disposed of accordingly. Dr.S.K.Panigrahi, J I agree. (D. Dash) Judge (Dr.S.K.Panigrahi) Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Reason: Authentication Location: OHC Date: 22-Jun-2023 16:09:08 CRLA Nos.921 & 1131 of 2022 Page 14 of 14