Jharkhand High Court

Sriram Bhagat vs The State Of Jharkhand on 9 September, 2024

Author: Rongon Mukhopadhyay

Bench: Rongon Mukhopadhyay

                 Cr. Appeal (DB) No. 169 of 2017
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                 Cr. Appeal (DB) No. 101 of 2017
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(Against the judgment and order of conviction and sentence dated 20.12.2016 (sentence passed on 23.12.2016) passed by Sri Pravas Kumar Singh, learned Sessions Judge, Lohardaga in S.T. Case No. 126 of 2015.

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Sriram Bhagat, S/o late Laxman Bhagat, Resident of Village-Chhechra Nawadih, P.O. & P.S. Kisko, District-Lohardaga (Jharkhand).

......Appellant (In Cr. Appeal (DB) No.169 of 2017)

Sanicharwa Nagesiya, S/o late Mangra Nagesiya, Resident of Village- Mouza Uper Kocha, P.O. & P.S. Kisko, District-Lohardaga (Jharkhand).

                                                      ......Appellant
                                   (In Cr. Appeal (DB) No.101 of 2017)

                         Versus
The State of Jharkhand                                .........Respondent
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CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY : HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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(in Cr. Appeal (DB) No. 169 of 2017 For the Appellant : Mr. Naresh Prasad Thakur, Advocate For the Respondent : Mr. Bhola Nath Ojha, Special P.P.

(in Cr. Appeal (DB) No. 101 of 2017):

For the Appellant : Mr. Naresh Prasad Thakur, Advocate For the Respondent : Mrs. Priya Shrestha, Special P.P.

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R. Mukhopadhyay, J. Heard Mr. Naresh Prasad Thakur, learned counsel appearing for the appellants and Mr. Bhola Nath Ojha as well as Mrs. Priya Shrestha, learned Special P.P. for the respondents.

2. Since both these appeals arise out of a common judgment, they are being disposed off by this common order.

3. These appeals are directed against the judgment and order of conviction and sentence dated 20.12.2016 (sentence passed on 23.12.2016) by Shri Pravas Kumar Singh, learned Sessions Judge, Lohardaga in connection with S.T. No. 126 of 2015, whereby and whereunder, the appellants have been convicted for the offence under Sections 302/34 IPC and have been sentenced to imprisonment for life along with a fine of Rs.10,000/- and in default in payment of fine to undergo simple imprisonment for three months.

4. The prosecution case arises out of the Fardbeyan of Kaushalya Devi

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recorded on 11.4.2015 in which it has been stated that her brother in law-

Jaleshwar Baitha was alleged to be involved in the sale of the daughter of Sanicharwa Nagesiya, for which he was in custody. The informant and her husband along with the accused persons had come to Civil Court, Lohardaga on 10.4.2015 for taking steps for his bail but the same could not be done as the lawyers had abstained from work. She, her husband, Sanicharwa Nagesiya and his wife Raj Kumari Devi returned back to Lohardaga at 3 P.M. While returning back home, Sanicharwa Nagesiya and his wife-Raj Kumari Devi were demanding Rs.50,000/- as wages in terms of the work their daughter had put in for 14 months in Delhi and in such case they will retract from their earlier statements which would facilitate the grant of bail to the brother in law of the informant. The husband of the informant expressed his inability to arrange for the said amount. In the meantime, Sriram Bhagat and his wife Sohbait Orain came to the house of the informant and started conversing with the husband of the informant. It has been stated that Sanicharwa Nagesiya, Sriram Bhagat and their wives decided to spent the night in the house of the informant. They had brought chicken which was prepared and liquor was also consumed. It has been alleged that a quarrel had ensued between the husband of the informant and others as a result of which her husband was dragged outside the house and was assaulted by the accused persons with 'tangi' and 'gaiti' as a result of which the husband of the informant died at the spot.

5. Based on the aforesaid allegations, Kisko P.S. Case No. 22/15 was instituted under section 302/34 IPC against the accused persons. On completion of investigation, chargesheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions where it was registered as S.T. No. 126 of 2015. Charge was framed against the accused under section 302/34 IPC which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

6. The prosecution has examined as many as nine witnesses in support of its case.

P.W-1-Ravi Kumar Rajak has stated that the incident had taken place on 10.4.2015 at 10 P.M. and he was in his house and so was his mother Kaushalya Devi. The accused Raj Kumari Devi, Sanicharwa Nagesiya, Sriram Oraon and Sohbait Orain were having liquor and meat in his house.

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They had dragged out his mother and also assaulted him. He hid himself behind a bush. The accused persons thereafter started assaulting his father with tanga and after committing the assault they started looking for him and his mother and on being unsuccessful they left the place of occurrence. Due to the assault his father died.

In cross-examination, he has deposed that when his mother was being assaulted he had hid himself behind a bush. The entire night he and his mother spent near the bushes and came home at 5 A.M. where he saw his father lying dead in the courtyard. On the date of occurrence, his father had consumed liquor with the accused persons. The accused persons had assaulted his father in his presence. Sriram was assaulting his father with tanga while the rest accused persons were assaulting with sabal. The accused persons did not suffer any injury. There was no previous enmity between the accused and his father. He has further deposed that the quarrel had started because of consumption of liquor.

P.W-2-Kaushalya Devi is the informant and the wife of the deceased who has stated that on 10.4.2015 she had gone to the court along with her husband and son. Her brother in law Jaleshwar Baitha was in judicial custody and she had gone to the court to bail him out and along with them were Rajkumari Devi and her husband-Sanicharwa Nagesiya. Since the lawyers had abstained from work on that day, they all had returned back home. When she was in her house, Sriram, his wife- Sohbait Orain, Rajkumari Devi and Sanicharwa Nagesiya had come and had dinner. She was thereafter entangled in a quarrel and was chased by the accused persons with a purpose of committing assault upon her. She hid in the bushes along with her son. She saw all the accused persons assaulting her husband with a tangi and committing his murder. She had got her Fardbeyan recorded by the police. Her statement under section 164 Cr.P.C. was also recorded.

In cross-examination, she has deposed that Sanicharwa and Rajkumari had lodged a case against her brother in law for trafficking their minor daughter and her brother in law was sent to judicial custody. She had brought Sanicharwa and Rajkumari to the court for giving their evidence. She has deposed that Sanicharwa, Rajkumari and their daughter Baijanti had agreed for a compromise. She does not know the amount Jaleshwar

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was to give to them. Since the matter was compromised, the hatchet of enmity between them was buried. The accused persons after having food and drinks had started abusing and assaulting her husband. They had assaulted her husband even at 10 P.M. She had hid herself behind the bushes at 9.30 P.M. along with her son. She and her son had become unconscious after witnessing the incident and they regained consciousness at 5.30 A.M. She had seen the dead body of her husband in the morning. She and her son had hid themselves behind separate bushes. On the date of the incident, her husband and the accused persons had taken liquor.

P.W-3-Sarful Ansari did not support the case of the prosecution and was declared hostile.

P.W-4-Kuldeep Baitha is the nephew of the deceased-Dhaneshwar Rajak. He has stated that at the time of the incident, he was in his house. At 7 A.M. he came to know that his uncle has been murdered and on hearing such news he went to the place of occurrence where he saw his uncle lying dead with marks of injuries inflicted by tangi on his body. His aunt had disclosed that in the night, Sanicharwa Nagesiya, Sriram Nagesiya and their wives had come to the house, had food and on account of a quarrel committed the murder of her husband. She had not disclosed the cause of the quarrel.

In cross-examination he has deposed that whatever has been stated by him had been disclosed to him by his aunt.

P.W-5-Jaiyant Baitha has stated that he was in his house and on coming to know about the murder of his uncle-Dhaneshwar Rajak he had gone to Kisko and his cousin brother Ravi had disclosed that the accused persons had committed the murder of his father. He has identified the signature of the informant-Kaushalya Devi in the Fardbeyan, which has been marked as Ext-2. He has proved his signature in the seizure list, which has been marked as Ext-1/2.

In cross-examination, he has deposed that he had not witnessed the incident.

P.W-6-Dr. Kaushal Kumar Singh was posted as a Medical Officer at Sadar Hospital, Lohardaga and on 11.4.2015 he had conducted autopsy on the dead body of Dhaneshwar Rajak and had found the following:-

"2. External Injuries:-Clot of blood(black colour) on face, head neck

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and chest were present.

Head and Neck:-eye half open, mouth half open.

Sharp cut on left side of occipital area of size 5"x1/2" x brain deep.

Brain matter coming out.

Sharp cut on left side of parietal area of size 5"x1/2" x brain deep, brain matter coming out. Sharp cut on left frontal area of size 2"x1/2"x brain deep.

Sharp cut on left side below and transverse of size 1 and ½"x1"

x bone deep.

Left side of chin of size 3"x1"x bone deep sharp cut left side on neck 3"x1" x muscle deep sharp cut.

Left side of neck above clavical lateral side of size 1"x1/2"x1/2"

lacerated injury.

Chest and Abdomen-fracture of right side of rib in front 3rd and 4th with echimosis in front. Left side of rib in front 3rd and 4th and 5th fracture.

Limbs-Lacerated injury above left shoulder of size 2"x1/2"x1/2"

Abrasion on left side of shoulder of size 2"x1/4". Sharp cut on lateral side of left wrist joint of size 2"x1" x bone deep, with cut of 5th carpol bone.

Lacerated injury over lateral side of left thigh of size 5"x1/2"x muscle deep with fracture of femure bone is above knee. Body pale,

3. Internal Injury:-

Head and Neck:-brain cavity full of blood. Other injury confront on dissection.

Chest and Abdomen: punctured left and right lungs. Cardiac chamber both empty. Stomach contain semi liquid material, Liver Splen and both kidneys all pale".

The cause of death was opined to be due to haemorrhage and shock leading to cardiorespiratory failure. He has proved the postmortem report, which has been marked as Ext-3.

In cross-examination, he has deposed that he had not found traces of alcohol during the autopsy.

P.W-7-Siban Devi @ Budhan Devi has stated that the Choukidar had informed her over phone that her brother in law has been murdered. At this information, she had gone to the house of her brother in law where she found her brother in law lying dead with marks of injuries on his body.

In cross-examination, she has deposed that there was no enmity with her and the accused persons. He does not have any information about any enmity between the accused persons and her brother in law.

P.W-8-Shiv Oraon did not support the case of the prosecution and was declared hostile by the prosecution.

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P.W-9-Anil Kumar Mishra was posted as an Officer in Charge in Kisko P.S. and on 11.4.2015 he had recorded the Fardbeyan of Kaushalya Devi. He has proved the Fardbeyan, which has been marked as Ext-4. He has proved the forwarding report, which has been marked as Ext-2/1. He has also proved the seizure list, which has been marked as Ext-3. The seizure list of bloodstained tangi recovered from the house of the accused has been marked as Ext-6. The seizure list of the cycle of Sriram Bhagat and the articles kept in a bag has been marked as Ext-7. The forensic science laboratory reports have been marked as Exts-8 and 9. He had recorded the restatement of the informant as well as the statement of Ravi Kumar, the son of the informant. The place of occurrence was inspected by him, which is on the eastern side of the house of the informant and 30 ft. from Hondaga More. He has proved the inquest report which has been marked as Ext-10. He had recorded the statements of Kuldeep Baitha, Jayant Baitha, Budhan Devi and Sarful. Sarful in his statement had stated that he had gone to the house of the deceased where the dead body was found lying outside the house and Kaushalya Devi had disclosed to him that Sriram Bhagat with a tangi and Sanicharwa Nagesiya with a rod had dragged out her husband from inside the house and committed his murder. He had recorded the statements of Sahid Ansari, Rajan Baitha and Udip Baitha. He had arrested Sriram Bhagat and Sanicharwa Nagesiya and their confessional statements were recorded which have been proved and marked as Ext-12 and 11 respectively. On the basis of the confessional statements, a bloodstained tangi was recovered. On finding the allegations to be true, he has submitted chargesheet against the accused persons.

In cross-examination, he has deposed that Kaushalya Devi in her statement had not disclosed that all the four accused persons were assaulting the deceased with tangi. She had also not stated that she was chased by the accused persons. The witness-Ravi had not stated that the accused persons had initiated the assault with stones. The seizure list did not mention that the tangi was bloodstained.

7. The statements of the accused were recorded under section 313 Cr.P.C. in which they have denied their complicity in the incident of murder.

8. It has been submitted by Mr. Naresh Prasad Thakur, learned counsel for the appellants, that the conviction is based upon the evidence of P.W-1

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and P.W-2 but by no stretch of imagination these witnesses can be said to be the eye witnesses because of the inherent contradictions in their evidence. The incident had occurred at night and it was witnessed by P.W-1 and P.W-2 from behind the bushes but nothing has been stated regarding any source of light which had enabled them to identify the assailants. As per P.W-2, the assault was committed at 10 P.M. but she had already hid behind the bushes at 9.30 P.M. as if being aware about the impending assault upon her husband. There are no independent witnesses to support the case of the prosecution and P.W-1and P.W-2 being related to the deceased are interested witnesses and coupled with the fact that there was a previous enmity occasioned by the allegation of human trafficking against the brother in law of the informant makes the insinuation cast upon the appellants doubtful.

9. Mr. Bhola Nath Ojha, learned Special P.P., has submitted that both the appellants were seen committing the murder and on their confession, bloodstained tangi was recovered and the FSL report further enhances the involvement of the appellants in the murder.

10. We have heard the learned counsel for the respective sides and have also perused the Trial Court Records.

11. The taking away of the minor girl of the appellant in Cr. Appeal (DB) No. 101 of 2017 to Delhi by the brother in law of the informant triggered the institution of a criminal case and the brother in law of the informant being taken into custody. The matter was compromised between the parties but no further steps could be taken in Court as the lawyers had abstained from work on 10.4.2015. All came to the house of the informant, had chicken and liquor and subsequent thereto the appellants had committed the murder of the husband of the informant. The fire of hatred, which appeared to have been doused by the compromise was infact a misnomer as embers were still burning and which flared up in the house of the informant resulting in the murder of her husband.

12. P.W-1 and P.W-2 are the eye witnesses to the occurrence who have vividly stated about the prelude to the incident as well as the brutal assault committed subsequently from behind the bushes. It is true that there are no independent witnesses but it seems quite natural considering the time when the incident had taken place as also the fact that initiation of the quarrel and

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abuses were from inside the house and later on it spilled outside as the appellants had dragged the deceased out of the room before the murderous assault was committed upon him. There were no other persons present except P.W-1 and P.W-2 and the same explains the absence of any independent eye witnesses. Moreover, barring a few minor contradictions the evidence of P.W-1 and P.W-2 are reliable and trustworthy. The defence has failed to elicit any contradiction in their evidence which could foist the case of the prosecution into the realm of doubt. The other factor of the case is the recovery of a bloodstained tangi from the house of the appellants on their confessional statements. The FSL report marked as Ext-9 reveals that the DNA profile generated from bloodstained earth and bloodstained hair filaments matched with the DNA profile generated from the bloodstained tangi. The FSL report therefore leaves no room for doubt about the appellants being actively involved in the commission of murder of the husband of the informant.

13. Mr. Thakur, learned counsel for the appellants, has submitted that the incident occurred at the spur of the moment and the appellants did not have any intention to commit the murder.

14. The facts of the case do not support such submission. Infact the brutality of the assault can be gauged from the postmortem report which reveals that hardly any part of the body of the deceased was left untouched from the assault which sets out the intention of the appellants. The learned trial court was therefore correct in convicting the appellants under section 302/34 IPC and we having found no materials to conclude otherwise dismiss both these appeals.