SUKHLAL SIRKA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present appeal has been preferred by the appellant-accused against the judgment of conviction and order of sentence both dated 21 July, 2003 passed by the Additional Sessions Judge, Fast Track Court-III, Chaibasa in Sessions Trial No. 24 of 2003 whereby the present appellant-accused has been mainly punished for an offence under Section 302 of the Indian Penal Code for life imprisonment and is also punished for rigorous imprisonment for three months under section 3 of the Prevention of Witchcraft (Daain) Practices Act, 1999 and is further rigorous imprisonment for six months under Section 4 thereof. However, all the sentences were ordered to run concurrently. Against this judgment of conviction and order of sentence, the present appeal has been preferred. Case of the prosecution is that on 1.8.2002 at 15.00 hours (i.e. 3.00 p.m.), the informant Munni Sirka (P.W. 2) gave fardbeyan to police at Rajkiya Hospital, Kumardugi that on 1.8.2002 at 8.00 a.m., the informant with her mother Chandu Kui Sirka (deceased) had gone to her paddy field for weeding grass, which was situated under village-Jaldiha at Matkamdipa. Then, at about 11.00 a.m. the appellant-accused Sukhlal Sirka alias Lusa came there and asked the deceased as to why she killed the mother of the accused by practising witchcraft and he further told her that he will not spare her and saying so, he started assaulting the informant's mother with Lathi on the back of head and another blow was given on right temporal region due to which she fell and died there. Thereafter, the informant, due to fear, started fleeing from there and accused assaulted her also on her right temporal region due to which she got cut injury and she fell down on the ground and thereafter accused fled away from there. After some time when the informant regained her senses, her father also arrived there and she narrated the entire occurrence to her father. Thereafter, she was taken to Primary Health Centre, Kumardungi, where she was being treated.

(2.) It is submitted by the counsel for the appellant that the prosecution has failed to prove the offence of murder allegedly committed by the present appellant beyond all reasonable doubts. The so-called P.W. 2 is not an eye-witness and there are major omissions and contradictions in the deposition of this P.W. 2. This aspect of the matter has not been properly appreciated by the learned trial Court. Counsel for the appellant has pointed out the deposition given by P.W. 2 in detail and it is submitted that she is daughter of the deceased; she knows only 'Ho' language; the person who translated the fardbeyan in Hindi language has not been examined as a witness; moreover, looking to her deposition, P.W. 2 has stated that the fardbeyan was not read over before her and she has simply put her thumb impression. Thus, the so-called eye-witness is, in fact, not an eye-witness at all. The prosecution has failed to prove the fardbeyan as well as the F.I.R. and the person who has translated the language of 'Ho' of the informant into Hindi language, has not been examined and this aspect of the matter has not been properly appreciated by the learned trial Court.

(3.) It is further submitted by the counsel for the appellant that there was no charge for any injury caused to the injured witness upon the appellant, nor, there is any conviction thereof. Moreover, P.W. 2 was unconscious for a week as per deposition given by P.W. 3, who is father of P.W. 3 and therefore also, the so-called fardbeyan reduced in writing by the Investigating Officer is incorrect and cannot be given exhibit number at all. It is also submitted by the counsel for the appellant that there are various major contradictions and omissions in the evidence of the eye-witness P.W. 2 as well as the deceased had started from residence after taking some snacks, but, looking to the post-mortem report, her stomach was empty. Thus, the whole narration given by P.W. 2 about the incidence is false and, therefore, P.W. 2 is an untrustworthy and unreliable witness. Similarly, when the statement of co-accused was recorded under Section 313, Cr.P.C., no question was put about to him about the murder caused using the word "Daain". Alternatively, it is submitted that looking to the period of custody which is approximately 11 years and six months, let the conviction be converted into under Section 304(ii) of the Indian Penal Code and the sentence undergone may be inflicted upon the appellant as a punishment. It is also submitted by the counsel for the appellant that P.W. 3 is also not trustworthy because he had also stated that he also put his signature on the fardbeyan, but, there was no such signature of P.W. 3 upon the fardbeyan given by P.W. 2. This aspect of the matter has not been properly appreciated by the learned trial Court and hence, the judgment of conviction and order of sentence passed by the learned trial Court deserves to be quashed and set aside.