- (1.) This appeal has been directed against the judgment of conviction and sentence dated 31.1.2005 passed by learned District and Sessions Judge, Latehar in connection with Sessions Trial No. 91 of 2004 corresponding to G.R. No. 127 of 2004 arising out of Chandwa P.S. Case No. 30 of 2004 whereby the appellants have been held guilty for the offence punishable under Sec. 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life and to pay fine of Rs. 500/ - each and in default of making payment of fine, further imprisonment for two months. The appellants have also been held guilty for the offence punishable under Sec. 3 of the Prevention of Witch (Daain) Practices Act, 1999 (for short hereinafter referred to as "Witchcraft Act") and sentenced to undergo imprisonment for three months. Prosecution case, in brief, is that on 5.4.2004 at about 10.00 p.m. the appellants namely Tiju Bhuian, Sitan Bhuian, Sulo Devi and Taro Devi entered into the house of informant and dragged out Dhiru Bhuian (husband of the informant) from the house. When the informant made protest, she was caught hold by Sulo Devi and Taro Devi. It is alleged that Tiju Bhuian and Sitan Bhuian caused assault to Dhiru Bhuian (deceased) by means of tangi and killed him. The reason behind the occurrence as assigned by the informant is that minor son of Sitan Bhuian in course of playing fell down from the verandah and sustained injury on his leg and this incident had taken place 34 days prior to the date of occurrence. It is disclosed that the accused persons called a Ojha from Barwadih and said Ojha had made the accused persons convinced that the injury sustained to the son of Sitan Bhuian is the result of witch practice done by Dhiru Bhuian. On being convinced from the disclosure made by Ojha, the accused persons committed murder of Dhiru Bhuian. On the basis of written report lodged by Rijha Devi Latehar, Chandwa P.S. Case No. 30 of 2004 dated 6.2.2004 u/ss. 452, 302/34, 120 -B of the Indian Penal Code and Sec. 3/4 of the Witchcraft Act was registered. The police after due investigation submitted charge -sheet and accordingly cognizance was taken. Since the occurrence u/s. 302 of the Indian Penal Code is triable by the Court of Sessions, the case of appellants -accused was committed to the Court of Sessions and registered as Sessions Trial No. 91 of 2004. The appellants were charged for the offence punishable under Sec. 302/34 of the Indian Penal Code and Sec. 3/4 of the Witchcraft Act. The prosecution has examined altogether seven witnesses to substantiate the charges whereas the appellants have examined four witnesses in their defence. The learned Sessions Judge, after considering the evidence and documents on record has held the appellants guilty for the offence punishable u/s. 302/34 of the Indian Penal Code and Sec. 3 of the Witchcraft Act and they were inflicted sentence, as indicated above.
(2.) The appellants have assailed the impugned judgment on the ground that all the four eye witnesses i.e. P.Ws. 1 to 4 are close relatives of the deceased and they are highly interested witnesses. P.W. 1 in para 5 of his deposition has disclosed name of independent witnesses but they have not come forward to support the prosecution case. In such case, non -examination of independent witness is fatal to the prosecution. The informant could not be examined because she died sometimes after the incident due to illness. Non -examination of informant has caused prejudice to the appellants. The informant in her written report has stated that the deceased was assaulted by means of blunt portion of the tangi but the post mortem report indicates two incised wound caused by sharp cutting weapon and therefore, the ocular version of the informant does not find support from the post mortem report. P.W. 1 Sahdeo Bhuian and P.W. 4 Baneshwar Bhuian are nephew of the deceased whereas P.W. 2 Chalitar Bhuian and P.W. 3 Bijan Ram are grandsons. There are contradictions in their statement regarding manner of occurrence. They all are related to each other but they have not disclosed presence of each other in their statement. The learned counsel has further argued that charges framed by the trial court is also defective. Sec. 3 and Sec. 4 of the Witchcraft Act are two distinct offences and the charge framed under those Ss. are vague and that has caused prejudice to the appellants. It is contended that appellant Rameshar Mochi was not at all present at the time of occurrence which is apparent from the written report and also from the evidence of witnesses examined. Appellants Sulo Devi and Taro Devi had not participated in any manner in the assault caused to the deceased. The allegation against them is that they were catching hold of the informant at the time of occurrence. This evidence is not sufficient for holding them guilty for the offence punishable under Sec. 302/34 of the Indian Penal Code. Learned counsel has placed reliance on the judgment reported in, 2003 (3) East. Criminal Cases 136 (SC) (Surendra Singh v/s. State of Punjab) and : 2007 (3) East. Criminal Cases 3 (Jhar.) [: : 2007 (3) JLJR 204] (Mangal Tudu v/s. State of Bihar, now Jharkhand). It is further submitted that conviction recorded and sentence inflicted against appellant Rameshar Mochi, Taro Devi and Sulo Devi are liable to be set aside. The learned Sessions Judge has held the appellants guilty for the offence punishable under Sec. 3 of the Witchcraft Act but that is also illegal and unwarranted. No witness has come forward to say that he ever heard Rameshar Mochi branding Dhiru Bhuian as a witch. If this part of evidence goes away, the motive behind the occurrence, as. assigned by the witnesses shall also disappear. The impugned judgment of conviction and sentence is highly erroneous and is liable to be set aside.
(3.) Learned A.P.P. appearing for the State has opposed the argument and submitted that all the eye witnesses are natural witnesses. They are having their houses near the place of occurrence. They reached to the scene of occurrence after hearing hulla raised by informant and they had witnessed the assault caused to deceased Dhiru Bhuian. Only because they are related to the deceased, their testimony cannot be discharged. It is not possible for the witnesses to identify as to which of the injury was caused from the blunt portion of the tangi and which injury was caused by sharp portion of the tangi. It always depend upon the perception of the witnesses as to from which angle they had been seeing the occurrence and that also depends upon the manner of assault and the weapon used. The evidence of all the four witnesses is consistent and reliable and that find support from the post mortem report and therefore, the learned Sessions Judge has rightly recorded the judgment of conviction.;