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2019 Supreme(Jhk) 558
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Aparesh Kumar Singh, Kailash Prasad Deo, JJ.
Firu Kachuwa, S/o Late Sanni Kachuwa - Appellant
Versus
The State of Jharkhand - Respondent
Cr. (Jail) Appeal (D.B.) No. 1090 of 2012
Decided On : 21-01-2019
For the Appellant : Mr. Ashish Verma, Amicus Curiae
For the Respondent: Mr. Satish Kumar Keshri, Additional Public Prosecutor
Headnote:
Criminal Procedure Code,1973 - Section 313 - Prevention of Witch Craft (Daain) Practices Act, 1999 - Section 3 - Evidence Act - section 27 - Punishment - Injury - Case is based recorded by Assistant Sub Inspector of Police station informant has alleged that co-villager used call mother of informant as and since last has alleged that she has performed black magic upon his son aged eight years due to which son of informant remains ill- informant has stated that his mother is an innocent lady and not a informant has further stated that yesterday my mother had gone towards field for grazing goat- Informant’s mother along with his cousin and aged about were also grazing animals at same place- It is alleged that at accused came there having in his hand and asked mother of informant Devi to make his son well and assaulted her by means due to which mother of informant Devi has died at spot- It has been stated by informant that yesterday due to rainy night he could not come to police station and today informant has come along with give information –Held, Permitted such information to be used as evidence by restricting admissible portion to minimum- It is now well settled that recovery of an object is not discovery of a fact as envisaged in section- decision of Privy Council in v- King Emperor most quoted authority for supporting interpretation that ‘fact discovered’ envisaged in section embraces place from which object was produced knowledge of accused as to but information given must relate distinctly to that effect portion of information which ‘distinctly relates to thereby discovered’- But information to get admissibility need not be so truncated as to make insensible or incomprehensible extent of information admitted should be consistent with understandability- In case fact discovered had carried dead body spot on motorcycle dead body from same canal was antecedent to information which obtained- If nothing more was recovered pursuant to and subsequent to obtaining information from accused there would not have been any discovery of any at all- But when broken glass piece was recovered from that spot and that piece was found to be part of tail lamp of motorcycle it can safely be held that Investigating Officer discovered fact had carried dead body on that particular motorcycle up to spot recovery is concerned it was not within knowledge of police officer or any prosecution witnesses rather as per confessional statement of accused same has been recovered which directly - Appeal disposal
JUDGMENT :
Kailash Prasad Deo, J.
Heard, learned Amicus Curiae, Mr. Ashish Verma and learned counsel for the State, Mr. Satish Kumar Keshri, learned Additional Public Prosecutor.
2. The instant criminal appeal is directed against the judgment of conviction and order of sentence, both dated 06.10.2012, passed by learned Principal Sessions Judge, Simdega, in Sessions Trial No.144 of 2007, whereby the sole appellant has been convicted for the offence committed and punishable under Section 302 of the Indian Penal Code and also under Section 3 of Prevention of Witch Craft (Daain) Practices Act, 1999. The learned trial court has awarded rigorous imprisonment for life for the offence committed punishable under Section 302 of the Indian Penal Code and also awarded simple imprisonment for three months for the offence committed and punishable under Section 3 of the Prevention of Witch Craft (Daain) Practices Act, 1999. Both the sentences are directed to run concurrently.
3. The prosecution case is based upon the fardbayen of Ropna Kachuwa (P.W.-5), recorded by Assistant Sub Inspector of Police, B.N. Singh of Belgarh police station on 30.07.2007 at 10:15 Hours. The informant has alleged that co-villager Firu Kachuwa used to call the mother of informant as ‘daain’ and since last Holi, Firu Kachuwa has alleged that she has performed black magic upon his son Rahul, aged eight years, due to which, son of the informant remains ill. The informant has stated, that his mother is an innocent lady and not a daain. The informant has further stated that yesterday, my mother had gone towards the Tand field for grazing goat. Informant’s mother alongwith his cousin Asmani Kumari (P.W. 2) aged about 12 years and Sukra Kachuwa aged about 14 years were also grazing animals at the same place. It is alleged that at about 4.00 P.M., the accused Firu Kachuwa came there having tangi in his hand and asked the mother of informant Sulo Devi to make his son well and assaulted her by means of tangi, due to which the mother of the informant Sulo Devi has died at the spot. It has been stated by the informant, that yesterday due to rainy night, he could not come to the police station, and today informant has come along with the chowkidar to give information. The informant has further stated that, the dead body of his mother Sulo Devi is still lying at the same place in the Tand. The informant has further stated that eye-witnesses to the occurrence will narrate the things on being asked. The accused used to call his mother as ‘daain’ will be substantiated by other persons of the village. The informant has alleged that his mother Sulo Devi has been killed by co-villager Firu Kachuwa on 29.07.2007 at 4.00-5.00 P.M. by means of tangi.
4. On the basis of fardbeyan of the informant, police has registered Simdega P.S. Case No. 120 of 2007, dated 30.07.2007, under Section 302 of the Indian Penal Code and Section 3/4 of the Prevention of Witch Craft (Daain) Practices Act against the sole accused Firu Kachuwa.
5. After completion of investigation, the police has submitted final form vide charge sheet no. 151/07 dated 17.09.2007, under Section 302 of the Indian Penal Code and Section 3/4 of the Prevention of Witch Craft (Daain) Practices Act against the sole accused Firu Kachuwa.
6. The cognizance of the offence has been taken vide order dated 10.10.2007 and the case has been committed to the court of sessions vide order dated 30.11.2007.
7. The charge has been framed against the sole accused/appellant under Section 3 of the Witch Craft Act and under Section 302 of the Indian Penal Code, on 09.01.2008, to which the accused/appellant has pleaded his innocence and thus, he was put under trial.
8. The prosecution, to prove its case, has examined altogether five witnesses and also exhibited a number of documentary evidence up to exhibit-7.
Sukra Kachuwa, has been examined as P.W.-1, Asmani Kumari, has been examined as P.W.-2, Baidynath Singh, investigating officer of the case, has been examin
