Hemant Sah Alias Hemant Saha vs The State Of Jharkhand
2022 Latest Caselaw 4246 Jhar

            Cr. Appeal (D.B.) No. 27 of 2012
[Against the judgment of conviction dated 19.12.2011 and the
order of sentence dated 22.12.2011 passed by Shri Brajendra
Kumar Sinha, learned Sessions Judge - I, Rajmahal in S. C. Case
No. 222 of 1998]
                            ...........

1. Hemant Sah alias Hemant Saha

2. Goverdhan Sah alias Gobardhan Saha ... ... Appellants Versus The State of Jharkhand ... ... Respondent ...........

For the Appellants     : Mr. R. S. Mazumdar, Sr. Advocate
For the State          : Ms. Priya Shrestha, Spl.P.P.

                     PRESENT
     HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
            HON'BLE MR. JUSTICE AMBUJ NATH
                        ...........
C.A.V. on 24.08.2022      Pronounced on 18.10.2022

Heard Mr. R. S. Mazumdar, learned senior counsel for the appellants and Ms. Priya Shrestha, learned Spl.P.P. for the State.

2. This appeal is directed against the judgment of conviction dated 19.12.2011 and the order of sentence dated 22.12.2011 passed by Shri Brajendra Kumar Sinha, learned Sessions Judge - I, Rajmahal in S. C. Case No. 222 of 1998 whereby and whereunder the appellants have been convicted for the offence punishable under Section 302/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- each and in default to undergo rigorous imprisonment for further one year.

3. The fardbeyan of Nagendra Nath Saha was recorded on 20.10.1996 in which it has been stated that a few days back Hemant Sah (appellant no. 1) had dug a ditch near the wall of the informant. Due to this act, an application was filed before the Sub Divisional Officer, Rajmahal. The enquiry was handed over to Barharwa Police Station and an enquiry was conducted on 20.10.1996 and when the authority left after the enquiry at about 5 p.m., the accused persons started abusing them and threatened the informant with dire consequences. In course of quarrel Hemant Saha, Baijnath Saha, Goverdhan Saha (appellant no. 2), Ramesh Saha, Dhaneshwar Saha and Rajesh Saha armed with

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lathi, danda, spear and sickle had come out and Hemant Saha had committed an assault on the head of the father of the informant Baldeo Saha who had come to pacify the matter as a result of which he fell down injured. Thereafter, Dhaneshwar Saha, Goverdhan Saha and Ramesh Saha had assaulted him with lathi. When the informant tried to save his father, Baijnath Saha and Rajesh Saha had assaulted him with spear while the others assaulted him with lathi. The sister of the informant Mina Devi was also subjected to assault by Hemant Saha and Goverdhan Saha. On hearing the cry of alarm, several villagers had assembled at which the accused persons went away. After the incident, the father of the informant was taken to Barharwa hospital but on the way he died.

Based on the aforesaid allegations Barharwa P.S. Case No. 127 of 1996 was instituted against four accused persons for the offence punishable under Section 302/34 of the Indian Penal Code. On conclusion of investigation, charge-sheet was submitted against all the named accused persons under Section 302/34 of the Indian Penal Code and after cognizance was taken, the case was committed to the Court of Sessions where it was registered as S. C. Case No. 222 of 1998. Charge was framed under Section 302/34 of the Indian Penal Code and which was read over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as seven witnesses in support of its case.

5. P.W.1 (Jaidev Rawani) has not supported the case of the prosecution and has been declared hostile.

6. P.W.2 (Tarawati Devi) has deposed that the incident is of 20.10.1996 at about 5 p.m. Hemant Saha had dug a ditch besides her shop which endangered the wall for which an enquiry was conducted by Barharwa Police. After the enquiry was over at about 5 p.m. Goverdhan Saha, Rameshwar Saha, Hemant Saha, Baijnath Saha, Munna Saha, Rajesh Saha, Nandu @ Nandlal Saha and Banku Saha had come near her house. She had gone to pick

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cow dung cakes when Goverdhan Saha had assaulted her with a lathi and when her husband came to save her, the accused persons had also assaulted her and Goverdhan Saha and Ramesh @ Rupesh had pushed him in the ditch. On hearing the commotion, her father-in-law Baldeo Saha came out at which the accused persons felled him and Hemant Saha had given a sickle blow on his head. He became unconscious. She has stated that when her husband went to save her father-in-law, he was once again assaulted. When the villagers came, the accused persons fled away. By hiring a van, her husband and father -in-law were taken to police station and on the way to the hospital her father-in-law died.

In her cross-examination, she has deposed that towards the northern side of her house is situated the land of Hemant Saha. Hemant Saha used to protest if anyone used his land for ingress and egress. She has deposed that the police had come to enquire about the ditch dug in his land. Goverdhan Saha had assaulted her on her face with a lathi. In respect to this incident, Goverdhan Saha had also instituted a case against her husband. She has stated that the assault had taken place in front of her door. The victims were not having lathis in their possession. She has also stated that the female members from the family of the accused were pelting stones and bricks

7. P.W.3 (Mina Bewa) has deposed that the incident had occurred about five and half years back and it was 5 p.m. when she was standing in front of her door. Besides the house of her father, a ditch was dug by Hemant Saha for which an enquiry was done by Barharwa P.S. After the enquiry was completed Goverdhan Saha had come and had thrown the cow dung cakes which was collected by Tara Devi. She has stated that when Tara Devi protested, Goverdhan Saha and others started pelting stone and bricks. Hemant Saha, Nandu Saha, Baijnath Saha, Dhanno Saha, Ramesh Saha, Rajesh Saha, Banku Saha and Munna Saha started assaulting and pushed Nagendra Saha in the ditch. When Baldeo Saha requested them not to fight, Hemant Saha had

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assaulted him with a farsa on his head. Several others accused persons assaulted Baldeo Saha with lathi and farsa. When she tries to save her father, she was also assaulted. She has stated that Tara Devi was assaulted and when the villagers assembled, the accused persons had fled away. The injured persons were taken to Barharwa Police Station and then to the hospital but her father expired in the police station itself.

In cross-examination, she has stated that when the inspector had come for enquiry a crowd had gathered. When asked all had stated that the land in which the ditch is dug belongs to Hemant Saha. Hemant Saha had never forbade the use of his land for ingress and egress. She has further deposed that because of digging the ditch the same had endangered the wall. The quarrel had continued for long. The enquiry was conducted by the inspector for one hour. She has stated that in course of quarrel, the accused persons had started pelting stones. At that time, she and the others were in the house. When she rushed out she found her father Baldeo Saha lying near the door. When she tried to pull up her father, she was also subjected to assault. She has stated that the accused persons did not suffer any injury. She had not disclosed to the police that there was a dispute regarding digging of a ditch. She cannot say as to which accused had assaulted with what weapons.

8. P.W.4 (Behula Bewa) has deposed that after the police completed the enquiry Goverdhan Saha had thrown the cow dung cakes and started pushing Tara Devi. When Nagendra Saha protested, the accused persons assaulted him and pushed him in the ditch. When her father came, Hemant Saha had assaulted him on his head with a farsa while the others assaulted him with farsa, lathi and fists. When Nagendra Saha tried to save him, he was also assaulted with a sickle on his head. The tiles of the roof were damaged. Mina had also suffered injuries. When the villagers had assembled, the accused persons fled away. The injured persons were taken to the police station and thereafter to the hospital but her father died in the police station itself.

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In cross-examination, she has stated that there was a quarrel between Goverdhan Saha and Tara Devi and though Nagendra Saha had intervened but the intensity of the quarrel increased. The villagers had come after an hour. The assault had continued for 1-2 hours. She had disclosed the name of the persons who had resorted to assault. She has also deposed that due to the ditch the assault had taken place.

9. P.W.5 (Nagendra Nath Saha) is the informant who has stated that the incident is of six years back. It was a Sunday and the police had come for an enquiry since Hemant Saha had dug a ditch just besides the shop of this witness. When he returned after accompanying the police to some distance he had seen Goverdhan Saha throwing away the cow dung cakes which his wife Tarawati Devi had pasted on the wall. When this witness objected Rameshwar Saha and Goverdhan Saha had pushed him in the ditch. Thereafter Baijnath Saha, Hemant Saha, Dhaneshwar Saha, Nandlal Saha, Munna Saha, Rajesh Saha, Banku Saha armed with lathi, sickle, spear and Balua had come. He could get up from the ditch as his wife had pushed away Goverdhan Saha and Rameshwar. He went near the door of his shop and his wife also joined him. He has also stated that Goverdhan Saha had assaulted her on her cheek. His father had returned from the field and was going towards the room when Goverdhan Saha had assaulted him with a lathi on his back. His father entered into the house and changed his cloths and had come out to try and pacify the situation. Hemant Saha had silently come from behind and assaulted him from the back with a sickle. He has stated that brain matter had come out and his father had fell down unconscious and thereafter all the accused persons started assaulting his father with lathi. When this witness tried to intervene Baijnath Saha had assaulted him on his head with a lathi while Goverdhan Saha had struck a lathi blow on his back. His sister Mina Devi was also assaulted with lathi by the accused persons. When the villagers had assembled all the accused persons fled away. He had taken his father to the Barharwa Police

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Station and thereafter to the hospital where the doctor had declared him dead. He had identified his signature in the fardbeyan which has been marked as Exhibit - 1.

In cross-examination, he has deposed that all the accused are his gotias. He had given the names of all the accused persons in his complaint made regarding the digging of a ditch. When the police had come for inspection, all the accused were present and all were saying that the ditch has been dug in their own land. When the police went away, the accused persons started abusing them. He has stated that the cow dung cakes were thrown away and when he protested, he was pushed in the ditch filled with water but he somehow managed to come out when his wife had pushed away Goverdhan Saha and Rameshwar. When the quarrel was going on, nobody from the village had come to pacify the situation. When his father returned from his field, he was given one lathi blow. Baijnath Saha had spear, Hemant Saha had a sickle and lathi while the rest were armed with lathis. He had not seen any injuries on the persons of Goverdhan Saha and Rameshwar Saha. When his father came out from the house after changing his clothes, the accused persons had surrounded him. He has stated that there is no litigation between both the sides with respect to a land. It is false to say that his father was drunk and had fallen down in the ditch and suffered injuries. He has admitted that there was no previous enmity with the accused persons.

10. P.W.6 (Kushi Lal Rawani) did not support the case of the prosecution and was accordingly declared hostile by the prosecution.

11. P.W. 7 (Dr. Ashok Kumar Pandey) was posted as a Medical Officer in Primary Health Center, Rajmahal. On 21.10.1996 he had conducted autopsy on the dead body of Baldeo Saha and had found the following ante-mortem injury:-

"(i) A bit haematoma measuring 3cmX2cmX1.1cm over right temporal low of brain above meninges.

(ii) Sharp cut over left temporal region of head 1.5cmX5cmX bone deep up to meningges.

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(iii) Meninges was ruptured and its above surface was full of blood.

(iv) The whole of the abdomen and thorax contain bruises all most all caused by a blunt cylindrical weapon. Size of the most bruises was 1.4 cm in breath.

(v) Sharp cut over right upper lip including left ala of nose, 5.2cmX through and through.

(vi) Sharp cut over right pinna of ear 1.3 cmX through an through."

The cause of death was due to hemorrhage and shock due to the above injuries leading to cardio respiratory failure. He has proved the postmortem report which has been marked as Exhibit

- 2."

12. The statement of the accused were recorded under Section 313 Cr.P.C. in which they have denied their involvement in the commission of the murder.

13. Mr. R. S. Mazumdar, learned senior counsel for the appellants has submitted that P.W.s - 2, 3, 4 and 5 are all related to the deceased Baldeo Saha and are, therefore, highly interested witnesses and the learned trial court should have scrutinized such evidence with more diligence. It has been submitted that P.W. - 1 and P.W. - 6 are the only independent witnesses but they have not supported the case of the prosecution. There are contradictions in the evidence of P.W.s 2 to 5 with respect to the weapons of assault as attributed to the appellant no. 1. Learned senior counsel has also drawn the attention of the Court to the evidence led in the trial conducted in the case of Rajesh Saha who was declared a juvenile and in such context has strenuously referred to their evidence which has been marked as Exhibit Nos. C to C/3. He has further submitted that the occurrence of assault was not premeditated but had happened on account of a complaint made to the Sub Divisional Officer, Rajmahal with respect to digging of a ditch and that too in the land of the appellant. He has stated that the Investigating Officer has not been examined and the same has caused prejudice to the defence.

14. Ms. Priya Shrestha, learned Spl.P.P. has submitted that there is a direct evidence against the appellants for committing

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assault upon Baldeo Saha leading to his death. She has referred to the evidence of P.W.s - 2 to 5 as well as the medical evidence which according to her corroborates the ocular evidence.

15. We have heard the learned counsels for the respective sides and have also gone through the Lower Court Records.

16. The genesis of the occurrence is the digging of a ditch by the accused persons which endangered the wall of the shop of the informant and which led to registration of a complaint before the Sub Divisional Officer, Rajmahal. An enquiry was conducted by the police and after the police left mayhem started as it is alleged that the accused persons variously armed had committed assault upon the informant and his family members which resulted in the death of the father of the informant namely Baldeo Saha.

17. The incident has been witnessed by P.W.s - 2, 3, 4 and 5. Their evidence has to be considered with circumspection since they all are closely related to the deceased Baldeo Saha being the son, daughters and daughter-in-law of the deceased.

All these witnesses have been consistent with respect to the precursor of the actual assault regarding digging of a ditch and the complaint made and the enquiry conducted thereupon.

18. After the enquiry was completed, the quarrel and assault was initiated by the appellant no. 2 who had thrown the cow dung cakes pasted by P.W. - 2 on the wall and was also instrumental in pushing the informant in the ditch. So far as the assault upon the deceased is concerned, P.W.s 2, 3, 4 and 5 have been categorical in their evidence that it was the appellant no. 1 who had assaulted him on his head with a sharp cutting weapon. P.W.

- 2 and P.W. - 5 have stated about the assault being committed with sickle. P.W. - 3 and P.W. - 4 have stated about a Farsa being used by appellant no. 1 to cause assault. There are some inconsistencies with respect to the weapon used but such inconsistencies would not dent the case of the prosecution since the manner of assault upon the deceased has been corroborated by the medical report. No doubt, the incident had flared up after the enquiry was conducted by the police but the manner in which

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the appellant no. 1 was armed and the way he committed the assault leaves no room for doubt that it was a preplanned exercise drawn up by him. Though, learned senior counsel for the appellant has referred to exhibit - C to Exhibit - C/3 but no contradictions could be taken from P.W. - 2 to P.W. - 5 since they were examined prior to their examination in the trial conducted by the Juvenile Justices Board and, therefore, no benefit can accrue in favour of the appellants.

19. So far as the appellant no. 2 is concerned, his case appears to be similar to the other accused persons who have been acquitted by the learned trial court but the learned trial court on the ground that it was the appellant no. 2 who has been instrumental in starting the feud and he had also given a lathi blow on the back of the deceased has distinguished his case and had also convicted him under Section 302/34 of the Indian Penal Code. The appellant no. 2 is said to have thrown the cow dung cakes and had also assaulted P.W. - 2 with a lathi. However, no injury report has been produced by the prosecution to energize such claim of injury. P.W. - 5 was pushed in the ditch by the appellant no. 2 and Rameshwar Sah. All the other allegations are general and omnibus in nature. So far as the act of assault on the back of the deceased by the appellant no. 2 is concerned, the same has been deposed by P.W. - 5 and has not been corroborated by any of the other witnesses. The postmortem report does not divulge any injury found upon the person of the deceased which can be specifically attributed to the appellant no. 2. Moreover, the act of the deceased after being give a lathi blow does appear to be strange as it is said by P.W. - 5 that after the appellant no. 2 had assaulted him with a lathi on his back, he had nonchalantly gone to his room, changed his cloths and had come out and thereafter he was assaulted by the appellant no. 1 on his head with a sharp cutting weapon. After the assault was committed by the appellant no. 1 upon the deceased, the same was followed by indiscriminate assault by the other accused persons who all have been acquitted by the learned trial court. The case of the appellant no. 2,

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therefore, comes within the ambit of those co-accused who have been acquitted and the benefit of doubt on such parameters should also be extended to the appellant no. 2.

20. Consequent to the discussions made hereinabove, we dismiss the appeal so far as the appellant no. 1 is concerned, while setting aside the judgment of conviction dated 19.12.2011 and order of sentence dated 22.12.2011 passed by Shri Brajendra Kumar Sinha, learned Sessions Judge - I, Rajmahal in S. C. Case No. 222 of 1998 whereby and whereunder the appellant no. 2 has been convicted for the offence punishable under Section 302/34 of the Indian Penal Code and he has been sentenced to rigorous imprisonment for life, so far as the appellant no. 2 is concerned.

21. This appeal stands partly allowed.

22. Since the appellant no. 2 is in custody he is directed to be released forthwith if not wanted in any other case.

23. Pending I.A., if any, stands disposed of.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

High Court of Jharkhand at Ranchi Dated, 18.10.2022.

Umesh/NAFR