Rajendra Prasad Sah vs The State Of Jharkhand
2022 Latest Caselaw 4251 Jhar

              Cr. Appeal (D.B.) No. 256 of 1993
[Against the judgment of conviction dated 20.04.1993 and the order
of sentence dated 24.04.1993 passed by Shri Ajay Kumar Sriva-
satava, learned Additional District and Sessions Judge -II, Godda
in Sessions Trial No. 95 of 1992]
                            ...........

Rajendra Prasad Sah                      ... ... Appellant
                          Versus
The State of Jharkhand                   ... ... Respondent
                            ...........
For the Appellant             : Mr. B.M. Tripathy, Sr. Advocate
For the State                 : Mr. Bhola Nath Ojha, A.P.P.

                       PRESENT
      HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
              HON'BLE MR. JUSTICE AMBUJ NATH
                          ...........
C.A.V. On 10.08.2022                Pronounced on 18.10.2022

Heard Mr. B.M. Tripathy, learned senior counsel for the appellant and Mr. Bhola Nath Ojha, learned A.P.P. for the State.

2. This appeal is directed against the judgment of conviction dated 20.04.1993 and the order of sentence dated 24.04.1993 passed by Shri Ajay Kumar Srivastava, learned Additional District and Sessions Judge -II, Godda in Sessions Trial No. 95 of 1992 whereby and whereunder the appellant has been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life.

3. The case of the prosecution is based upon the fardbeyan of Badri Prasad Sah recorded on 08.07.1988 at 11:00 a.m. in which it has been stated that the brother-in-law of the informant, Mahendra Kumar Bhagat had informed him on 08.07.1988 that Rajendra Prasad Sah (appellant) who is the son-in-law of the informant had committed the murder of the daughter of the informant namely Kiran @ Prem Lata. On receiving such information, the informant along with his son and brother-in-law had proceeded for Village - Banjhi and when they reached the house of Rajendra Prasad Sah he found the dead body of Kiran @ Prem Lata on the verandah in the first floor. When they came down stairs Shiv Narayan Sah had disclosed that he had heard the shouting of the deceased at the middle of night. When the

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daughter of the informant was being assaulted Jagdish Sah, Patel Sah, wife of Jagdish Sah, the wife of Laxmi Sah and Balram Sah as well as Krishna Prasad Sah were present and in their presence Rajendra Prasad Sah had strangulated the daughter of the informant. The reason for the occurrence is that Rajendra Prasad Sah had an illicit affair with the sister-in-law which resulted in a strained relationship between his daughter and son-in-law.

Based on the aforesaid allegations Poraiyahat (Deotand) P.S. Case No. 60 of 1988 was instituted under Section 302/120B/34 of the Indian Penal Code against Rajendra Prasad Sah, Jagdish Sah, Krishna Prasad Sah, Patel Sah, wife of Jagdish Sah, wife of Laxmi Sah and wife of Balram Sah. On completion of investigation charge-sheet was submitted against Rajendra Prasad Sah and Manorma Devi and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 95 of 1992. The accused Manorma Devi died before commitment of the case and accordingly her name was struck out. Charge was framed against the accused Rajendra Prasad Sah for the offence punishable under Section 302 of the Indian Penal Code and the contents of the charge was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.

4. In course of trial the prosecution has examined as many as fourteen witnesses in support of its case.

5. P.W.1 (Badri Prasad Sah) is the informant and the father of the deceased. He has stated that he had married his daughter to Rajendra Prasad Sah about two years prior to the incident. The information regarding the death of his daughter was given to him on 08.07.1988 at 09:00 am by his brother-in-law Mahendra Prasad Bhagat. He thereafter along with his son had gone to the matrimonial house of his daughter at Village - Banjhi and though police had come but none else from the family of the accused were present. One Shiv Narayan Bhagat had disclosed to him that in the previous night he had heard some commotions. His fardbeyan was recorded in the police station which has been proved and

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marked as exhibit - 1. He has proved his signature in the inquest report which has been marked as Exhibit - 2. He has stated that about one month prior to the incident he had come to know about a domestic quarrel between his daughter and son-in-law and he had gone to the matrimonial house of his daughter and pacified them. The reason for the quarrel was the illicit relationship his son-in-law was having with his sister-in-law and this was also precisely the reason why the murder was committed.

In cross-examination, he has stated that he knew that his daughter was carrying a pregnancy of four months. His daughter had disclosed to him about the illicit relationship his son-in-law was having and which was the reason for the dispute.

6. P.W.2 (Usha Devi) is the sister-in-law of the deceased Kiran Devi @ Prem Lata. She has deposed that the marriage of Kiran Devi was solemnized with Rajendra Prasad Sah in the year 1987. When she went to the matrimonial house a demand was made of a motorcycle etc. The accused Rajendra Prasad Sah used to quarrel with the deceased since he was having an illicit relationship with his sister-in-law. In 1988 during the monsoon her sister in law was murdered. She has not gone to the place of occurrence.

In cross -examination, she has deposed that in June she had received a letter which was later on torn by one of her children. The letter was received by the other members of his family. The issue of demand of a motorcycle and VIP came to their knowledge through the letter. The letter indicated that the deceased wanted to come home. Her father-in-law was going to bring her back but in the meantime the news regarding her death was received.

7. P.W.3 (Waris Tudu) has stated that on an information that the villagers were trying to prise open the door of the house of Rajendra Prasad Sah, he had gone to the place of occurrence and found the door locked from inside. Rajendra was also standing outside the house. The door was broken open and everyone went inside. On going inside he found the wife of Rajendra hanging from a wooden horse shaped hook with the help of her saree.

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This witness was declared hostile by the prosecution.

8. P.W.4 (Radhey Shyam Sah) is the brother of the deceased Kiran Devi. He has stated that she was not properly treated at her matrimonial house and accused Rajendra used to assault her since he was having an illicit affair with his sister-in-law. The wife of this witness had received a letter from the deceased stating the demand of a motorcycle and the VIP. On 08.07.1988 his maternal uncle Mahendra Prasad had informed that his sister has been murdered by her in-laws. He reached the place of occurrence where he found the dead body of his sister in the upper floor of the house lying on the bed and there were marks of injuries on her body.

In his cross-examination, he has deposed that he had not handed over any letter written by the deceased to the police. His statement was recorded by the Dy.S.P. He had disclosed to the Dy.S.P. the demands made and the illicit relationship of Rajendra Prasad Sah.

9. P.W.5 (Sheo Narayan Sah) has deposed that the incident is of 4-4 and 1/ 2 years back. When the children of Rajendra Sah asked why the door was not being opened he came running and opened the door at which everyone went inside and found the wife of Rajendra Prasad Sah hanging. All of them had therefore brought down the dead body.

This witness was declared hostile by the prosecution. On a court question he has deposed that the deceased was hanging about 3-4 feet above the ground and there was no article in between her feet and the ground. The bed was at a distance from the place where she was hanging. The deceased was hanging with the help of the saree she was wearing.

10. P.W.6 (Ali Hassan) did not support the case of the prosecution and was declared hostile by the prosecution.

11. P.W. 7 (Ram Jeewan Sah) has stated that the wife of Rajendra Prasad Sah had hanged herself. He has stated that the door did not open and this witness and others along with the Chowkidar had climbed on the roof. They had broken the door and found the

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wife of Rajendra Prasad Sah hanging. The police was handed over the bolt of the door and the saree and with respect to the bolt, a seizure list was prepared which has been proved and marked as exhibit - 3. The seizure list with respect to the seizure of a yellow colored terecotton saree was prepared which has been marked as Exhibit - 3/1.

12. P.W. 8 (Abdul Aziz Ansari) had put his signature in the seizure lists which has already been marked as Exhibit - 3 and 3/1.

13. P.W. 9 (Gayatri Devi) is the mother of the deceased Kiran Devi. She has stated that since her son-in-law was having an illicit affair with his sister-in-law the same prompted him to commit the murder of her daughter.

In cross-examination she has deposed that at the time of incident she was carrying a pregnancy of five months. He has stated that Rajendra Prasad Sah is financially sound. Her daughter had written a letter to her daughter-in-law regarding the illicit affair Rajendra was having with his sister-in-law which was received a day prior to the occurrence and which was torn up by the children.

14. P.W. 10 (Pramod Kumar Sah) is the brother of the deceased who has stated that the news of her death was given to him by his maternal uncle Mahendra Bhagat and when he went to the matrimonial house of his sister he had seen her body lying on the cot and her in-laws were not present in the house. The villagers had stated that the niece of the accused Rajendra Prasad Sah had disclosed about the accused persons committing the murder.

No new facts of consequence have emerged in his cross- examination.

15. P.W. - 11 (Dr. Ajay Kumar Jha) was posted at Sadar Hospital, Godda and on 08.07.1988 he had conducted autopsy on the dead body of Kiran Devi @ Prem Lata Devi and had found following injuries:-

"(i)Ante mortem injuries were (i) bruise 2"X1" over forehead on right side 2" above right eye brow over a

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(ii) Bruise 1"X1" over left eye brow on lateral half over a swelling blue in colour.

(iii) Bruise 2 ½"X2" over left parotid area that is in from of left ear over diffused swelling extending upto uppe prt of neck.

(iv) Four trousuersed bruises parallel to each other on th right side of neck brown in cloour dry and parchment life size of bruises varied from 2 ½" to 3 ½" single bruise on upper part of left side of neck 2" in length brown in colour dry and parchment like.

(v) Bruise 3 ½"X 2 ½" over a swelling on front of right side of chest above nipple brown in colour and parchment like.

(vi) Bruise 2 ½"X 1 ½" on middle of front of right leg over a swelling blue in colour.

(vii) Bruise 1 ½"X3/4" on upper lip over swelling."

All ante-mortem injuries except the injury no. (iv) were caused by hard and blunt substance. Injury no. (iv) was caused by violent compressive force applied by hand. The cause of death was opined to the asphyxia as a result of throttling. He has proved the postmortem report which has been marked as Exhibit - 4.

In cross-examination, he has deposed that in cases of throttling fracture of cervical vertebrate is extremely rare. He had not mentioned that the tongue was protruded and swollen.

16. P.W. - 12 (Mahendra Kumar Bhagat) has been tendered by the prosecution.

17. P.W. - 13 ( Mahendra Yadav) has deposed that on 08.07.1988 he was posted as Officer In-charge at Deotand Police Station. Since he was on leave on 08.07.1988, A.S.I. Ramjapu Pandey had recorded the fardbeyan which has already been marked as Exhibit

- 1. He has identified the hand writing and signature of Kailash Prasad Yadav and the formal FIR which has been marked as Exhibit- 5. On 12.07.1988 he had taken over investigation from Ramjapu Pandey. On 13.07.1988 he had inspected the place of

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occurrence and the details have been mentioned at para 56 of the case dairy. He had recorded the statement of Chowkidar Waris Tudu and the villagers. The statements of Badri Prasad Sah was recorded on 10.09.1988. He had also recorded the statements of Usha Devi, Radhey Shyam Sah, Pramod Kumar and Gayatri Devi. On completion of investigation he had submitted charge sheet.

In cross-examination, he has deposed that he had inspected the place of occurrence and the bolt of the door was found broken from inside. He had demanded the letter of the deceased from Badri Sah but it was not given to him. His query to Badri Sah as to why in spite of knowing Rajendra Prasad Sah was having an illicit affair with his sister-in-law he had solemnized the marriage of his daughter to Rajendra Prasad Sah failed to evoke any response. Badri Sah had disclosed to him that due to suspicion he had lodged the case.

18. P.W. - 14 Anirudh Prasad Singh has deposed that a Sanha was entered on 08.07.1988 on a rumor regarding the death of a member of the Sah family and of making preparation to cremate the dead body. He has proved Sanha No. 95 and Sanha no. 108 which has been marked as Exhibit - 7 and 7/1 respectively. He has also proved Sanha no. 120 which has also been marked as an exhibit.

19. The statement of the accused was recorded u/s 313 Cr.P.C. in which he has denied any role in the murder.

20. Mr. B. M. Tripathy, learned senior counsel appearing for the appellant has submitted that admittedly there are no eye- witnesses to the occurrence. It has been submitted that the circumstances also do not complete the chain so as to indicate the involvement of the appellant in committing the murder. It has further been submitted that the room in which the deceased was found to be hanging was locked from inside as such there was no question of the appellant committing the murder of his wife and bolting the door from outside.

21. Mr. Bhola Nath Ojha, learned A.P.P. has submitted that the appellant is the husband of the deceased and he has been unable

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to explain the circumstances which has led to the deceased suffering several injuries as well as the fact that she was throttled to death.

22. We have heard the learned counsel for the respective sides and have also perused the Lower Court Records.

23. The allegation against the appellant is of strangulating his wife to death and as per the autopsy report she was carrying a pregnancy of four months. The motive for the murder has been disclosed by P.W.s - 1, 2, 4 and 9 to the effect that the appellant was having an illicit affair with his sister-in-law and which prompted the appellant to remove his wife from his path.

So far as the contention of the leaned senior counsel for the appellant that the door was locked from inside which rules out the involvement of the appellant is concerned, there seems to be major contradiction regarding such aspect. P.W. - 13 has stated that the door was broken open and everyone went inside the room and found the deceased hanging. P.W. - 5 has stated about the door being opened after which everyone went inside and witnessed the deceased hanging with the help of a saree. Both P.W. - 3 and P.W.

- 5 have been declared hostile by the prosecution. P.W. - 7 who is an independent witness has, on the other hand, stated about entering the room through the roof along with the Chowkidar and of breaking the door. He has also stated about bolt of the door being handed over to the police. P.W. -13 is the Investigating Officer who is in his cross-examination has deposed that the bolt of the door was found broken from inside. The evidence of P.W. 7 has not been corroborated by any witness as even the Chowkidar who is said to have accompanied him in making an access inside the room has been declared hostile. P.W. - 13 has not stated about witnessing any broken tiles or seizure of broken tiles. If ingress into the room was possible by removing the tiles egress from the room would also have remained within the realm of possibility.

24. The other and most incriminating fact is the inability of the appellant to explain the circumstance which led to several injuries suffered by his wife including an act of throttling. The deceased

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died in her matrimonial house and the autopsy report is replete with the injuries she had sustained which all were anti-mortem in nature before she was throttled to death. The appellant who is the husband of the deceased and who was in the house has remained silent even in his 313 CrpC statement by simply denying his involvement. The prosecution has been able to prove the allegation and the burden has shifted to the appellant but he has not been able to discharge such burden in terms of Section 106 Evidence Act. In such context reference may be made to the case of Sabitri Samantaray v. State of Odisha reported in 2022 SCC online SC 673 it has been held as follows:-

"18. Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an indi- vidual is on that individual. Although the Section in no way exoner- ates the prosecution from discharging its burden of proof beyond reasonable doubt, it merely prescribes that when an individual has done an act, with an intention other than that which the circum- stances indicate, the onus of proving that specific intention falls onto the individual and not on the prosecution. If the accused had a dif- ferent intention than the facts are specially within his knowledge which he must prove.

19. Thus, although Section 106 is in no way aimed at relieving the prosecution from its burden to establish the guilt of an accused, it applies to cases where chain of events has been successfully es- tablished by the prosecution, from which a reasonable inference is made out against the accused. Moreover, in a case based on circum- stantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or offers a re- sponse which is not true, then such a response in itself becomes an additional link in the chain of events. [See Trimukh Maroti Kir- kan v. State of Maharashtra, (2006) 10 SCC 681]"

25. Consequent to the discussions made hereinabove, we do not find any reasons to cause interference in the judgment of conviction dated 20.04.1993 and the order of sentence dated 24.04.1993 passed by Shri Ajay Kumar Srivastava, learned Additional District and Sessions Judge -II, Godda in Sessions Trial No. 95 of 1992 and this appeal accordingly fails and is dismissed.

26. Since the appellant is on bail, he is directed to surrender immediately and forthwith before the learned trial court to serve out his sentence.

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27. Pending I.A.s, if any, also stands disposed of.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

High Court of Jharkhand at Ranchi Dated 18.10.2022.

Umesh/NAFR