Hemanand Baraik vs State Of Jharkhand

Chandrashekhar, J

The sole appellant has challenged the judgment of conviction under section 302 IPC and section ¾ of the Prevention of Witch (DAAIN)

Practices Act, and the order of sentence of R.I. for life under section 302 IPC and R.I. for three months under section ¾ of the Prevention of Witch

(DAAIN) Practices Act, both dated 14.6.2012, passed by the Principal District Judge, Simdega in S.T. No. 35 of 2007.

The prosecution’s case is that in the morning of 21.12.2006, at about 7:00 a.m., the informant, namely, Raju Baraik was sitting along with

Suresh Baraik and Bandhani Devi when the appellant Hemanand Baraik came there and called her witch (daain) and asked her to leave the village.

When Bandhani told him that she is earning her livelihood on her own, the appellant Hemanand Baraik picked up a wooden log and gave 2-3 blows on

her head. On the basis of the fardbeyan of Raju Baraik, Bolba P.S. Case No. 24 of 2006 was registered under section 302 IPC and section ¾ of the

Prevention of Witch (DAAIN) Practices Act, against the appellant.

After the investigation, charge sheet was submitted against the appellant and he has faced the trial for murder of Bandhani Devi in S.T. No. 35 of

2007.

During the trial, prosecution has examined ten witnesses; PW-1, PW-6, PW-8 and PW-9 are eye witnesses. The doctor Raj Kumar Choudhary-

PW-10 has found the following injuries on Bandhani Devi:

“External Injuries:

(i) Lacerated wound on size about ½â€​ x ¼â€​x howle thickness of pinna with fracture of mastoid bone.

(ii) Lacerated wound of size about 3â€​x1/2â€​ x bone deep over left of parietal bone.

Internal Examination: Spleen congested. All the viscera were pale. Both chambers of heart were empty. Parts of brain corresponding injury No.2 was

found lacerated. Meninges were also lacerated with blood clot.â€​

On the basis of the evidences laid before him, the learned Principal District Judge, Simdega has held that the prosecution has proved the charge

under section 302 IPC and under section ¾ of the Prevention of Witch (Daain) Practices Act.

The informant has reiterated his fardbeyan when he was examined in the court. He has stated that on 21.12.2006, at about 7 a.m., he along with

Bandhani Devi were sitting near the fire at the house of Raju Baraik. At that time the appellant came there and assaulted Bandhani Devi with a

wooden log. The other eye witnesses have also spoken on the similar lines. They have also deposed about the presence of the appellant and assault by

him on Bandhani Devi.

The learned counsel for the appellant has tried to demonstrate that the contradictions in the evidences of the eye witnesses have substantially

eroded the prosecution’s case, however, in view of the consistent evidence of PW-1, PW-6, PW-8 and PW-9 we hold that assault by the

appellant upon Bandhani Devi has been established.

Now the question is whether the appellant has been rightly convicted under section 302 IPC.

Section 300 IPC provides that except in the circumstances provided thereunder culpable homicide is murder. The circumstances which have been

provided under section 300 IPC carve out exceptions to section 300 IPC. Exception- 4 to Section 300 IPC provides that culpable homicide is not

murder if the act alleged has been committed upon a sudden quarrel without premeditation. To bring home a case under Exception-4, it must be found

that the accused has not acted in a cruel or unusual manner and he has not taken undue advantage.

The evidences laid by the prosecution through PW-1, PW-6, PW-8 and PW-9 would disclose that assault by the appellant was not premeditated.

He came unarmed near the house of Raju Baraik where Bandhani Devi and other prosecution witnesses were sitting near the fire. On the appellant

calling the deceased witch (daain) when she replied that she is earning her livelihood by her own, the appellant got infuriated and picked up a wooden-

log from there and assaulted the deceased. The assault by the appellant upon the deceased was upon a sudden quarrel.

The medical evidence laid through PW-10 would disclose only two injuries on Bandhani Devi; injury No.2 has been found fatal. Assault on the

head by a wooden log, in our opinion, would impute requisite intention to the appellant to cause such injury to Bandhani Devi which has been found

sufficient to cause her death.

In the above state of evidences, we hold that the appellant is entitled for the benefit under Exception-4 to Section 300 IPC and, accordingly, his

conviction under section 302 IPC and order of sentence of R.I. for life dated 14.6.2012 passed by the Principal District Judge, Simdega in Sessions

Trial Case No.35 of 2007 are setaside, however, his conviction under section ¾ of the Prevention of Witch (DAAIN) Practices Act is affirmed.

The appellant is convicted under section 304 Part-1 IPC and he is sentenced to undergo R.I. for 10 years.

The report produced by the learned APP would disclose that the appellant is in judicial custody for more than 12 years.

Accordingly, the appellant, namely, Hemanand Baraik shall be set free forthwith, if not wanted in connection with any other case.

In the result, Cr. Appeal (D.B.) No. 830 of 2012 is partly allowed.

Let the lower court record be transmitted to the court concerned, forthwith.