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Judgment
This Criminal Appeal is preferred on behalf of the appellant, being aggrieved by the judgment of conviction dated 30.06.2018 and order of sentence dated 03.07.2018 passed by learned District & Additional Sessions Judge-I, Khunti, in Sessions Trial Case No.893 of 2012, whereby and wherein the appellant had been convicted for offence under Section 302 IPC and Sections 3 & 4 of the Prevention of Witch (Daain) Practices Act. He was sentenced to undergo Rigorous Imprisonment for life with a fine of Rs.5,000/-, under Section 302 IPC, and in default of payment of fine, to further undergo Simple Imprisonment for six months. No separate sentence had been awarded under Sections 3 & 4 of the Prevention of Witch (Daain) Practices Act.
We have heard learned counsel representing the appellant and learned A.P.P. representing the State, at length, and have gone through the materials available on record.
Learned counsel representing the appellant submitted that the impugned judgment of conviction and order of sentence are liable to be set at naught, as the Trial Court had failed to take into consideration that the prosecution has miserably failed to establish the guilt of the appellant and only on the basis of conjectures and surmises the appellant is facing incarceration since long without any rhyme or reason; thus he deserves to be released from custody. He submitted that the child witness (P.W.-1), who allegedly saw the occurrence, is not a reliable witness.
Learned A.P.P. representing the State, opposed the aforesaid prayer and submitted that the appellant had rightly been convicted in this case, as he had committed murder of the deceased, which was witnessed by P.W.-1 i.e., niece of the deceased, and the appellant also accused the deceased of practicing witchcraft; thus the impugned judgment of conviction and order of sentence does not call for any interference.
The case of the prosecution on the basis of fardbeyan dated 10.07.2012 at 12:30 P.M., given by the informant – Mago Munda, (cousin brother of the deceased), is that on 08.07.2012 at about 01:30 P.M., an 8-9 years’ daughter of his cousin sister-in-law, came to his home and informed that Rana Munda (appellant herein) has killed her aunt (bua) – Pandi Kumari (deceased), who was also the cousin sister of this informant. Upon receiving the said information, when the informant, along with the other villagers, arrived at the house of his cousin brother – Gangaram Munda, he saw his cousin sister lying dead under the Tamarind tree in the courtyard, with a lot of blood oozing out from her left temple. Then the informant, along with others, started searching for Rana Munda, but they did not find him. Thereafter, on 09.07.2012, a meeting was convened in the village, but the appellant did not attend the meeting and remained absconding. On 10.07.2012, villagers caught the appellant and also gave information about the incident at the Police Station. The reason for the alleged incident was said to have stemmed up from the fact that two sons of the appellant had died of illness, for which the deceased was being made accused of practicing witchcraft, and there was also a land dispute. The informant claims that due to the said reasons, the appellant killed his cousin sister with a piece of wood.
On the basis of the aforesaid fardbeyan, F.I.R. being Arki P.S. Case No.26 of 2012, was registered under Section 302 IPC and Sections 3 & 4 of the Prevention of Witch (Daain) Practices Act, and after investigation, a charge-sheet was submitted against the appellant under Section 302 IPC and Sections 3 & 4 of the Prevention of Witch (Daain) Practices Act. After taking cognizance, the case was committed to the Court of Sessions, where the Court framed charges under Section 302 IPC and Sections 3 & 4 of the Prevention of Witch (Daain) Practices Act, and the trial proceeded.
To prove the prosecution case, the prosecution has examined following 07 witnesses:-
P.W.-1 Usha Rani Purti
P.W.-2 Nandi Mundain
P.W.-3 Jitan Munda
P.W.-4 Dhirju Munda
P.W.-5 Budhu Munda @ Mago Munda (informant)
P.W.-6 Dr. Binay Mishra (Doctor)
P.W.-7 Suresh Prasad (I.O.)
Several documentary evidences and material exhibits were also produced, which are as follows:-
Ext.-1 Signature of Jitan Munda on the fardbeyan
Ext.1/1 Signature of Dhirju Munda on the fardbeyan
Ext.1/2 Signature of Budhu Munda @ Mago Munda, on the fardbeyan
Ext.-2 Entire post-mortem report
Ext.-3 Entire fardbeyan
Ext.-3/1 Endorsement over the fardbeyan
Ext.-4 Formal F.I.R.
The appellant in his statement under Section 313 Cr.P.C. had not pleaded guilty.
The Trial Court, after hearing both the parties, vide its judgment of conviction and order of sentence, convicted the appellant and sentenced him, as delineated in the opening paragraph of this judgment, which has been challenged in this Criminal Appeal.
After hearing the parties and going through the evidence, F.I.R. and other materials available on record, we find that the entire case revolves around the evidence of a child witness (P.W.-1), who was aged about 10 years, at the time of giving depositions. It is the case of the prosecution that she was the only eyewitness and had seen the commission of murder.
After going through the evidence of P.W.-1, we find that she stated that she had seen this appellant hitting the deceased with a wooden stick, as a result of which the deceased sustained injury and succumbed to death. In cross-examination, she stated that, at that time, apart from her, her mother and two uncles were present in the house.
P.W.-2 is the mother of P.W.-1. She stated that on the date of occurrence, she had gone to the house of her daughter in a marriage and in para-4, she stated that she got information about the said incident from the villagers, upon which she went to the place of occurrence and saw the corpse, which had an injury on the head.
The informant is P.W.-5, who in his fardbeyan had categorically taken the name of child witness, i.e. P.W.-1, and stated that he had received information about the incident from her; but surprisingly, at para-21 of his cross-examination, he stated to have learned about the incident from the children, and he did not take any name, much less the name of P.W.-1.
Another aspect in this case is that the informant-Mago Munda, while he was being examined as P.W.-5, had deposed in his mother tongue, i.e., Mundari. The Court, while recording his depositions, had certified that a Translator, having knowledge of the Mundari language, was appointed to translate the deposition given by this witness, as he does not know the Hindi language and only speaks the Mundari language, but while going through the evidence of the Investigating Officer (I.O.) [P.W.-7], we find that the I.O. in para-17 of his cross-examination admitted that the statement of the Mago Munda (informant) and others were recorded in Hindi. This fact raises a doubt in the mind of this Court: if these witnesses, especially the informant, are not conversant with Hindi and gave their statements only in Mundari, how did the I.O. record the informant's statement in Hindi?
So far as the child witness (P.W.-1) is concerned, based on whose testimony, the appellant had been convicted, we are of the opinion that she was not a reliable witness, as she stated that her mother and other uncles were in the house but surprisingly, she did not disclose the fact of this assault to them; and the fact that her mother was not present in the house is supported by her mother herself (P.W.-2), who in her deposition stated that she could come to know about the incident from the villagers and she had gone to her daughter’s house in a marriage.
The Hon’ble Supreme Court in the case of State of M.P. v. Balveer Singh reported in (2025) 8 SCC 545, at para-43, held as hereunder:-
“43.From the above exposition of law, it is clear that the evidence of a child witness for all purposes is deemed to be on the same footing as any other witness as long as the child is found to be competent to testify. The only precaution which the court should take while assessing the evidence of a child witness is that such witness must be a reliable one due to the susceptibility of children by their falling prey to tutoring. However, this in no manner means that the evidence of a child must be rejected outrightly at the slightest of discrepancy, rather what is required is that the same is evaluated with great circumspection. While appreciating the testimony of a child witness the courts are required to assess whether the evidence of such witness is its voluntary expression and not borne out of the influence of others and whether the testimony inspires confidence. At the same time, one must be mindful that there is no rule requiring corroboration to the testimony of a child witness before any reliance is placed on it. The insistence of corroboration is only a measure of caution and prudence that the courts may exercise if deemed necessary in the peculiar facts and circumstances of the case.”
Taking into consideration the deposition given by P.W.-1 and the judgment cited hereinabove, since we find that the statement given by the P.W.-1 is not reliable and her statements are doubtful, there is no other statement to implicate the appellant in this case. Thus, by giving benefit of doubt to the appellant, we are inclined to acquit the appellant, as we find merit in this Criminal Appeal.
The impugned judgment of conviction dated 30.06.2018 and order of sentence dated 03.07.2018 passed by learned District & Additional Sessions Judge-I, Khunti, in Sessions Trial Case No.893 of 2012, are hereby set aside. The appellant is acquitted of the charge; thus, he is directed to be released from custody, if not required in any other case.
Accordingly, this Criminal Appeal stands allowed.
Pending interlocutory application, if any, stands disposed of.
Trial Court Records be transmitted back to the Court concerned.