Saljiya Devi Wife Of Late Chandashwar ... vs The State Of Jharkhand
2024 Latest Caselaw 9658 Jhar

Jharkhand High Court

Saljiya Devi Wife Of Late Chandashwar ... vs The State Of Jharkhand on 26 September, 2024

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

                      Criminal Appeal (D.B.) No. 1877 of 2017
         [Arising out of judgment of conviction dated 15.09.2017 and order of
         sentence dated 16.09.2017 passed by learned District & Additional Sessions
         Judge-II, Dumka in Sessions Trial No. 65 of 2011]
         1. Saljiya Devi wife of Late Chandashwar Yadav
         2. Sabnam Devi wife of Arun Yadav
         3. Samar Yadav son of Late Hemlal Yadav
            All are residents of Village & P.O. Dhanwe, P.S. Hansdiha, District Dumka
                                                 .... .... .... Appellants
                                       --Versus--
         The State of Jharkhand                   .... .... .... Respondent


         For the Appellants          : Mr. R.S. Mazumdar, Sr. Advocate
                                       Mr. Rohan Mazumdar, Advocate
                                       Mr. Nishant Roy, Advocate
         For the State               : Ms. Nehala Sharmin, Special P.P.
                                       Ms. Priya Shrestha, Special P.P.

                          -----
         PRESENT: SRI ANANDA SEN, J.
                      SRI GAUTAM KUMAR CHOUDHARY, J.
                              -----
                              JUDGMENT

Reserved on: 23.09.2024 Pronounced On: 26.09.2024

Per Gautam Kumar Choudhary, J. The appellants are before this Court in appeal against the judgment of conviction and sentence under Sections 302 read with Section 34 of the IPC.

2. The prosecution case is about killing of the son of the informant aged 11 years by the appellants when he opposed the grazing of crop in the field by the cattle of the appellants.

3. Informant of the case is the father of the deceased. As per the FIR on 23.12.2010, at 9 O' clock he had gone for harvesting his Arhar crop. After completing part of his work, he and his daughter returned home, leaving his younger son Niranjan Kumar Mandal @ Chhotu to look after the field. At around 11 O'clock, co-villager- Ghanshyam Baitha came to his house and informed that his son had been stabbed by a sickle. At this, he along with his family members and villagers went to the place of occurrence. They saw, Saljiya Devi, Sabnam Devi, Kishore Yadav, Samar Yadav were conjointly assaulting his son, and on their approach, they fled away from the place of

occurrence. When they arrived there, they saw that the boy had been stabbed with a sickle and he was drenched in blood. He could not speak out anything and instantly died there. The genesis of the offence is stated that appellants used to get the crop of the informant grazed and on being objected to, earlier also they had extended life threat.

4. On the basis of the fardbeyan, Saraiyahat Hansdiha P.S. Case No.274/10 was registered under Section 302/34 of the IPC against the appellants. Police on investigation, found the case true and submitted charge sheet and they were put on trial. Altogether 16 witnesses have been examined on behalf of the prosecution and the relevant documents including post mortem examination report, FIR, seizure list, have been adduced into evidence and marked as Exhibit 1-7.

5. Judgment of conviction and sentence has been assailed on the ground that out of 16 prosecution witnesses, P.W. 4, P.W. 6, P.W. 7, P.W. 10, P.W. 15 and P.W. 16 have not at all supported the prosecution case and were declared hostile. P.W. 9 and P.W. 11 have admitted in their cross examination to be not eye witness to the occurrence. There is no direct eye witness to the incidence which shall be evident from the FIR itself.

6. Informant (P.W. 12) and P.W. 2, the mother of deceased, claim that an oral dying declaration was made by the deceased that the appellants had caused his death. This part of their testimony runs counter to the FIR, wherein it has been specifically stated that the deceased succumbed to his injury when they reached the place of occurrence and could not say anything.

7. It is further argued that P.W. 1 claims to be the direct eye witness to the incidence, but this part of his testimony was in contradiction to the statement given to police wherein he had specifically stated that he was a hearsay witness.

8. Learned A.P.P. has defended the judgment of conviction and sentence.

9. Deceased died a homicidal death, has been objectively established by P.W. 8 who conducted post mortem examination on the dead body and found a penetrating wound 1" x ¼" with one sickle was inserted inside in both the lungs. The death was on account of this injury.

10. The place of occurrence has been established by the Investigating Officer (P.W. 13) in para 3 of the examination in chief, an agricultural field.

11. On the factum of incidence, I find force in the argument advanced on behalf of the appellants that P.W. 1 has not stated himself to be the direct eye witness to the incidence in his statement given to the police. Therefore, his claim to be the direct eye witness to the incidence, cannot be accepted.

12. There is a positive statement in the FIR that by the time the family members of the deceased arrived at the place of occurrence, deceased was taking his last breath and was not in position to talk. Therefore, claim of the witnesses that the deceased made dying declaration and stated about the complicity of the appellants in the offence, cannot be accepted.

13. There are however other witnesses who have deposed that they saw the accused persons fleeing from the place of occurrence immediately after the incidence.

P.W. 3 - Nagendra Mandal is the brother of the deceased. He has deposed that he was at home when they received information that his brother had been stabbed by the appellants. As soon as he reached at the place of occurrence, all the four accused persons fled away from the place of occurrence. Defence has failed to prove that this was stated by him in statement under Section 161 of the Cr.P.C. Although there are some variation in the statement of this witness vis-à-vis his statement given to the I.O. (P.W.

13), but this part of his testimony that he saw the accused persons fleeing from the place of occurrence remains un-demolished.

P.W. 5- Lalita Kumari, who is the sister of the deceased also claims to see the accused persons fleeing from the place of occurrence. This part of her testimony has remained un-demolished, as neither any question was put regarding it, nor she was confronted with her statement given to the police regarding it.

P.W. 12 is the informant who deposed in para-2 that he saw the appellants fleeing from the place of occurrence, when he arrived there. Part of his testimony that he was witness to the accused persons fleeing from the place of occurrence, has not been controverted in the cross-examination. He has also not been confronted with his statement given under Section 161 of the Cr.P.C to elicit any contradiction on this count.

14. It has been held in State of U.P. Vs. Anil Singh, 1988 (Supp) SCC 686 that where a witness has not been specially cross-examined on a particular

question, court can not presume something adverse to the witness in relation to that question unless his attention is specially drawn. Under the circumstance, prosecution has succeeded to prove that appellants were seen fleeing from the place of occurrence immediately after the incidence.

15. In view of the above discussion, there is no reason to disbelieve the part of the testimony of these witnesses P.W. 3, P.W. 5 and P.W. 12, that when on information regarding the incidence they arrived at the place of occurrence, they saw the appellants fleeing from there.

16. As discussed above, it has been established that homicidal death of the deceased was caused by a sickle when he was looking after the crop. It has also come in evidence that on earlier instances also, there had been altercation between both sides when cattle grazed their crops. Being seen fleeing from the place of occurrence immediately after the incidence, will form part of the same transaction of commission of offence and shall be relevant under Section 6 of the Evidence Act. The illustration (a) to Section 6 of the Evidence Act is instructive which reads as under: -

"A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact."

17. The testimony of these witnesses cannot be said to be hearsay as they had themselves seen the appellants fleeing from the place of occurrence. It is the consistent case of the prosecution that it was appellant no.1 who had given the fatal sickle blow which is in accord with the medical evidence of death being caused by sickle which got embedded in the body of the deceased. From these evidences, irresistible conclusion that follows is that the deceased was given sickle blow by appellant no.1 resulting in his instantaneous death. Although the other accused persons were seen fleeing, but in the absence of any evidence of prior concert of mind, they cannot be vicariously liable with the aid of Section 34 of the IPC for committing murderous assault. Mere presence at the place of occurrence, is not sufficient to attract Section 34 of the IPC, unless there is an element of participation in furtherance of common intention.

18. I find force in the argument advanced on behalf of the appellant that a sudden fight ensued and only one single blow by sickle was inflicted. The

weapon of offence was not brought for committing the offence, but can be said to being used for cutting of grasses. Absence of premeditation and prior concert with the incidence taking place in the spur of moment, will bring the offence under Section 304 Part II of the IPC. Hon'ble Supreme Court has held in Rambir Vs. State of NCT Delhi, (2019) 6 SCC 122 that where the incidence takes place on the spur of moment in a sudden fight, therefore, conviction under Section 304 Part II of the IPC will be justified..

19. Under the circumstance, appellant no.1- Saljiya Devi is convicted under Section 304 Part II of the IPC. Considering the fact that this appellant caused culpable homicide not amounting to murder of a minor boy aged 11 years, who was looking after his crop, she is sentenced to a term of imprisonment for ten years and with a fine of Rs.10,000/-. In default of payment of fine, SI of three months.

20. The other appellants namely Sabnam Devi and Samar Yadav are given benefit of doubt and they are acquitted of the charges leveled against them.

With this modification in finding and sentence, the Criminal Appeal is partly allowed.

Pending Interlocutory Application, if any, is disposed of. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.

(Gautam Kumar Choudhary, J.)

Ananda Sen, J. I agree.

(Ananda Sen, J.) High Court of Jharkhand, Ranchi

Dated, 26th September, 2024

AFR/Anit