Jharkhand High Court

Ganga Bhuiya vs The State Of Jharkhand on 24 April, 2025

Author: Ananda Sen

Bench: Ananda Sen

                                                  2025:JHHC:12189-DB




          Criminal Appeal (D.B.) No. 901 of 2002

[Against the Judgment of conviction dated 12.12.2002 and Order of
sentence dated 13.12.2002 passed by learned Additional Sessions
Judge-III, Dhanbad, in Sessions Trial No. 140 of 1985 ]

1. Ganga Bhuiya, Son of Ramdas Bhuiya.
2. Jitan Handi, Son of Late Bhushan Hadi.
            Both residents of Bhalgarha, Police Station -
   Jharia, District - Dhanbad.
                                 ...   ...    Appellants
                       Versus
 The State of Jharkhand          ...   ... Respondent
                      P R E S E N T
                   SRI ANANDA SEN, J.
           SRI PRADEEP KUMAR SRIVASTAVA, J.
                             .....
     For the Appellants    : Mr. Sankalp Goswami, Advocate.
                             Mr. Amit Kumar Das, Advocate.
     For the Respondent    : Mr. Tarun Kumar, A.P.P.
                             Mrs. Nehala Sharmin, Spl.P.P.
                           .....
                          JUDGMENT

C.A.V. on 17.12.2024 Pronounced on 24.04.2025

Per Pradeep Kumar Srivastava, J.

1. Heard learned counsel for the parties.

2. The present criminal appeal is directed against the

judgment of conviction dated 12.12.2002 and order of

sentence dated 13.12.2002 passed by learned

Additional Sessions Judge-XIII, Dhanbad in Sessions

Trial No. 140 of 1985, whereby and whereunder, the

appellants have been convicted for the offence under

Section 302 read with Section 34 of the I.P.C. and

sentenced to undergo rigorous imprisonment for life.

3. The prosecution story as depicted in the FIR in

narrow compass is that on 31.01.1985 at about 10:00

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PM, the informant Anpi Devi was sleeping in her

house. Meanwhile, her son Rama Ram (deceased)

along with his friends Jitan Hari and Ganga Bhuiya

knocked the door and told that Jitan Hari and Ganga

Bhuiya are threatening him and took play cards and

tobacco ([kSuh) from the house and went along with

Jitan Hari and Gaga Bhuiya. The informant saw Jitan

Hari and Ganga Bhuiya were standing outside the

a saA"

house and saying that "lkys jkek tYnh pyks vkt rqedks ekjsx

The informant assumed that they are saying so under

influence of liquor and went to sleep. It is further

alleged that next day, in the morning at about 6 AM,

the informant went to discharge her duty at

Dhanuadih Colliery along with her another son

Krishan Ram, but after some time, her younger son

Mahendra Ram came to duty place and informed that

Ganga Bhuiya and Jitan Hari have killed Rama Ram

near Bhalgarha Project field. Then, she went to

Bhalgarha Project field and saw the dead body of

Rama Ram was lying in injured condition under pool

of blood. Injuries were caused by stones and playing

cards were also scattered there. The informant has

suspected that due to dispute in playing cards and

earlier threatening given by the accused persons

namely, Jitan Hari and Ganga Bhuiya, they have

killed her son by assaulting him with huge stones.

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4. On the basis of above information, FIR was registered

as Jharia P.S. Case No. 71 of 1985 dated 31.01.1985

for the offence under Sections 302 / 34 of the I.P.C.

Charge of investigation was undertaken by S.I.

Jagdish Prasad, who after completion of investigation,

submitted charge sheet against above named accused

persons under Sections 302 / 34 of the I.P.C.

5. After taking cognizance, case was committed to the

court of Sessions, where S.T. Case No. 140 of 1985

was registered and trial proceeded by framing charge

against the accused persons, to which, they pleaded

not guilty and claimed to be tried.

6. In course of trial, altogether 10 witnesses were

examined by the prosecution. Apart from oral

testimony of witnesses, following documentary

evidence have been exhibited:-

Exhibit-1 : Post-mortem.

Exhibit-2 : Formal F.I.R.

Exhibit-3 : Fardbeyan of the informant Anpi Devi.

7. The case of defence is denial from occurrence and

false implication. The defence has also examined two

witnesses:-

D.W.-1 : Satyanarayan Sahu.

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D.W.-2 : Sudamia Devi.

8. After conclusion of trial and hearing arguments of the

parties, learned trial court has observed that this case

is based upon circumstantial evidence and relied

upon following circumstances:-

(i) Accused persons along with deceased came to

the house of the deceased at night.

(ii) The deceased again went away with the playing

cards and tobacco along with accused persons.

(iii) The accused persons have also extended

threatening to kill deceased.

(iv) On the next day morning, the deceased was

found murdered through brutal assault by

stones.

(v) The playing cards were also found scattered at

the place of occurrence.

(vi) The accused persons have been put upon the

aforesaid circumstances in their statement under

Section 313 Cr.P.C., but failed to offer any

satisfactory explanation, as to what happened to

the deceased when he was along with them. The

accused persons have simply denied the

occurrence, but no plausible explanation has

been given as to when they parted with the

deceased.

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(vii) The non-explanation of the incriminating

circumstances appearing against the accused

persons also furnishes an additional link in the

chain of circumstantial evidence.

(viii) Under such circumstances, the principle under

Section 106 of the Evidence Act is to be invoked.

9. Learned trial court came to the conclusion that there

is no missing circumstances and the prosecution has

been able to prove the guilt of the accused persons

beyond all reasonable doubt. Accordingly, convicted

and sentenced them for the charges under Section

302 / 34 of the I.P.C.

10. Learned counsel for the appellants assailing the

impugned judgment of conviction and order of

sentence has vehemently argued that the learned trial

court has convicted the appellants solely on the basis

of circumstantial evidence, as per testimony of P.W.-3,

P.W.-4 and P.W.-5, who are closely related to each

other and mother and brother of the deceased. The

theory of last seen is the alone circumstance in this

case and apart from this, there is only suspicion and

doubt raised against the appellants without any

cogent and reliable evidence.

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11. It is further submitted that the suspicion raised by

the informant never culminated into legal proof.

Hence, the conviction of the appellants only on the

basis of suspicion cannot be sustained.

In this regard, learned counsel for the appellants

has placed reliance upon reported judgment of the

Hon'ble Apex Court passed in the case of

Narendrasinh Keshubhai Zala V. State of Gujarat,

reported in 2023 SCC OnLine SC 284 and Sharad

Birdhichand Sarda Vs. State of Maharastra

reported in (1984) 4 SCC 116.

12. Learned counsel for the appellants has laid much

emphasis upon unnatural conduct of the informant

and other witnesses, who happens to be mother and

brothers of the deceased, that in spite of knowing that

threating was being given by the accused to deceased

to kill him, they kept mum in allowing the appellants

to proceed with the deceased and did not search him

in the night.

13. It is further submitted that in the instance case, only

P.W.-5, Anpi Devi, who happens to be mother of the

deceased, has deposed regarding last seen of the

deceased with the appellants at about 10:00 PM on

30.01.1985 and she has seen the dead body of the

deceased at about 09-10AM in the next day morning

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of 31.01.1985. No concrete evidence about any prior

dispute between the deceased and the accused

persons have been brought on record. The conduct of

P.W.-5 for remaining silent in whole of the night when

she was allegedly aware of the threatening by the

appellants that her son shall be killed, she did not

forbid her son or protested with the accused persons

rather allowed the deceased to go with the accused

persons, cannot be believed by any stretch of

imagination. Admittedly, the deceased was drunker

and involved in gambling, he might have been killed

by any of his associates, but the appellants have been

falsely implicated in this case only on the basis of

suspicion.

14. It is settled law that suspicion howsoever strong, it

cannot take place of legal proof. Therefore, conviction

and sentence of the appellants solely on the basis of

evidence of P.W.-5 is absolutely illegal and liable to be

set aside by allowing this appeal.

15. Per contra : learned Special P.P. has opposed the

aforesaid contentions raised on behalf of appellants

and submitted that there are sufficient incriminating

circumstances proved by the prosecution, for which

no reasonable and valid explanation has been offered

by the defence. The theory of last seen and murder of

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deceased has close proximity of time, under such

circumstances, there is legal obligation on the part of

accused persons in view of provision of Section 106 of

Evidence Act to explain reasonably as to what

happened with the deceased when he was all along

with them in the night. The appellants have taken the

deceased for playing cards, which were also found

scattered near the dead body. It is not a case of mere

suspicion, but the foundational fact for raising

presumption under Section 106 of the Evidence Act

have been conclusively proved by the prosecution. The

defence has kept mum and failed to offer any

reasonable explanation regarding part with the

deceased at any point of time from the time they went

from the house of deceased and proceeded together

for playing cards. The learned trial court has very

wisely and aptly considered the incriminating

circumstances available on record against the

appellants. There is no infirmity in the impugned

judgment of conviction and order of sentence of the

appellants. This appeal has no merit and fit to be

dismissed.

16. For better appreciation of the points of argument

raised on behalf of the parties, we have to take brief

resume of the testimony of witnesses examined in this

case.

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The most important witness in this case is the

informant, who happens to be fateful mother of the

deceased and examined as P.W.-5 (Anpi Devi). She

has categorically deposed that on 30.01.1985 in the

night at about 10:00 PM, she along with her two other

sons namely, Krishna Ram and Mahendra Ram after

taking dinner were sleeping in the house. Meanwhile,

someone knocked the door, then she opened the door

and saw that Jitan Hari and Ganga Bhuiya (present

appellants) along with her son Rama Ram were

present. Ganga Bhuiya and Jitan Hari told to Rama

Ram to bring playing cards and tobacco, otherwise he

will be killed. Thereafter, Rama Ram came into the

house, took tobacco and playing cards and told to this

witness that Ganga Bhuiya and Jitan Hari will kill

him today. Inspite of that, he went out from the house

by taking tobacco and playing cards along with

appellants. This witness thought that Jitan and

Ganga used to live together with her son and not so

much serious that his son might be killed by the

appellants. She has further deposed that in the next

date morning at 6:00 AM, she went to discharge her

duty at Dhanuadih Colliery along with her another

son Krishna Ram and at about 9:00 AM her another

son Mahendra Ram rushed to her and told that

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Ganga and Jitan had killed Rama Ram by giving

crush injury by stones, then she along with her son

went to the place of occurrence at Bhalgarha Project

field and saw the dead body of her son Rama Ram.

His mouth was crushed by stone and playing cards

were scattered near the dead body. She has further

deposed that Officer-in-Charge of Jharia Police

Station arrived at the place of occurrence, then she

disclosed about all the events, which was reduced into

writing by him and read over and explained to her, to

which, she has put her thumb impression. She has

also disclosed that about one month prior to the

occurrence, a scuffle had taken place between

deceased and accused persons while gambling with

playing cards and Ganga and Jitan warned the

deceased to teach a lesson. Jitan and Ganga alone

have killed her son in the night of incident and

identified them behind the dock.

This witness has been cross-examined at length

wherein she admits that she has not seen the accused

persons while assaulting to her son. She also admits

that the deceased was not doing any job, but indulged

in gambling with the accused persons and his other

friends also. There is nothing in her cross-

examination to disbelieve her testimony as to the facts

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as deposed by her in her examination-in-chief. Even

by way of suggestion, the defence has not elicited that

the appellants had not gone to the house of this

witness in the fateful night and there was no previous

dispute of any kind.

17. P.W.-10 : Dr. D.K. Dhiraj has conducted autopsy on

the dead body of the deceased on 31.01.1985 at about

1:30 PM and found following ante-mortem injuries:-

(i) Abrasion 6" x 2½" on both sides of forehead

2"x2" over right cheek.

(ii) Abrasion 2"x1" over right side of chin and 1" x ¼"

on right under surface of chin.

(iii) Lacerated wound 1½" x ½" x cavity deep on left

eyebrow and forehead.

(iv) Lacerated wound 1/6" x 1/6" x 1/6" bone skin

deep on the middle of forehead.

(v) Lacerated wound ½" x ½" x cavity deep over

forehead ½" above middle of right eyebrow.

(vi) Lacerated wound 1/6" x 1/6" x bone deep over

right cheek near nose.

(vii) Lacerated wound ¼" x 1/6" x bone deep on right

side of lower jaw.

(viii) Brain was seen coming out through left ear.

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On dissection, hematoma was found under

scalp all over. All the clavical bones were found

fractured. Meninges were torn and brain

lacerated. Intracerebral hemorrhage was found in

both hemispheres. Viscera were found pale. Both

sides of the heart and stomach were empty. The

urinary bladder was partially full.

In the opinion of the doctor, death resulted

from shock due to hard and blunt force causing

cerebral injuries. Time of the death 12±6 hours.

The doctor has proved the post-mortem report

(Exhibit-1). In the opinion of the doctor the above

injuries can be caused, if repeated blow of heavy

stone is given. In the cross-examination, this

witness has stated that multiple injuries cannot

be possible by fall on the ground.

18. P.W.-7 Ramdeo Tanti, P.W.-8 Munshi Bhuia and

P.W.-9 Janki Das have been turned hostile and not

supported the prosecution story. P.W.-2 Doma Bhuia

is a tendered witness.

19. P.W.-1 Rajkumar Ravidas is a chance witness, who

was proceeding towards Bhalgarha field at about 6:00

AM then he saw the dead body of Rama Ram was

lying in the field. His cheeks and mouth were

crushed, then he informed to the brother of Rama

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Ram namely, Mahendra Ram, who came to the spot

along with his mother Anpi Devi, where police also

arrived and statement of mother of the deceased was

recorded. He was also interrogated by the police.

Inquest report was prepared in his presence, which

was witnessed by him and put his thumb impression.

He has also disclosed the facts, which was come to his

knowledge through the informant.

20. P.W.-3 Mahendra Ram is the brother of the deceased.

According to his evidence in the night on 30.01.1985,

he along with his brother Suresh Ram and Krishna

Ram and mother was sleeping. Meanwhile, door was

knocked then he saw his brother Rama Ram along

with Ganga Bhuiya and Jitan Hari. He has reiterated

the statement of informant that accused persons were

threatening to the deceased to come with playing

cards and tobacco. Thereafter, his brother proceeded

with them and in the next day morning, his mother

and brother Krishna Ram went to discharge their duty

at Dhanuadih Colliery. He heard hulla about murder

of his brother and went to Bhalgarha Project field

where he saw the dead body of his brother Rama

Ram. He informed to his mother and again proceeded

to place of occurrence. He has further deposed that

prior to 10 days of the occurrence, a scuffle took place

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between deceased and the accused persons. He has

stated that Jitan had taken Rs. 350/- from his

deceased brother and not was returning the same and

was giving threatening to him. He clearly admits that

the incident of threatening 10 days prior to

occurrence was not communicated before the police or

any other authority. There is nothing else in his cross-

examination to disbelieve his above testimony.

21. P.W.-4 Suresh Ram is also the brother of deceased.

He has also deposed in the same line of P.W.-3 and

P.W.-5. According to him, prior to one month of the

occurrence, there was scuffle between the deceased

and the accused persons wherein accused persons

have given threatening to kill the deceased.

In his cross-examination, he has stated that when

the accused persons were going with the deceased

and also threatening him to kill, then his mother,

brother and he himself asked the accused persons

that why you people are saying to kill him, then they

said that we are mocking and cannot commit such

scene.

22. P.W.-6 Krishna Ram is also brother of the deceased.

According to his evidence also on 30.01.1985, they

were sleeping in the night, then his deceased brother

Rama Ram along with the appellants Jitan and Ganga

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came to his house and knock the door. They were

threatening to kill the deceased and saying him to

bring tobacco and playing cards. Thereafter, all the

three went together. He also stated that his mother

asked the accused persons that why they will kill him,

then they replied that they are making fun and will

not commit such scene, but next day morning at

about 09:00 AM, while he was working in the

Dhanuadih Colliery along with his mother, then his

brother Mahendra came and informed that Rama Ram

has been murdered by the accused persons. He along

with mother and brother came to the place of

occurrence and saw the dead body of his brother and

his mouth was crushed by stones and near him

stones and playing cards were also scattered. Police

arrived and recorded the statement of his mother.

In his cross-examination, he admits that accused

persons belong to his own village. He also admits that

they were not so much serious that the accused

persons will commit murder of his brother. Hence,

they allowed to go him with the accused persons.

There is nothing else in his cross-examination to

disbelieve the aforesaid destiny.

23. The Investigating Officer of the case has not been

examined by the prosecution.

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24. From the aforesaid discussion of prosecution

evidence, it is apparent from the post-mortem report

(Ext-1) that the death of the deceased is homicidal

and caused by crush injuries on vital part of the body

by use of stone. It is also apparent that the deceased

proceeded from his house, along with the appellants

at 10:00 to 10:30 PM on 30.01.1985 and the post-

mortem report of the deceased reveals that time

elapsed since death 12±6 hours, that is to say there

may be margin of 6 hours since the time of death.

This finding in the factual aspects of the case clearly

indicates that the deceased was murdered just after

proceeding from the house of the deceased in the

night at about 10:30 PM and within a gap of 6 hours.

Therefore, there is close proximity of time between the

last seen theory of this case and the alleged murder of

deceased.

25. Now we have to proceed marshalling the chain of

circumstances conclusively proved by the

prosecution.

(i) Deceased came to his house in the night at about

10:00 to 10:30 along with the appellants.

(ii) Deceased was threatened by the appellants to be

killed in connection with gambling and money

dispute.

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(iii) The deceased and appellants proceeded together

from the house of the deceased.

(iv) The deceased died homicidal death by giving

brutal assault and crush injury through stones.

(v) The appellants were all along present with the

deceased.

(vi) Dead body of the deceased was recovered on the

next day from open place of Bhalgardha Project

field.

(vii) The post-mortem report of the deceased also

shows time gap between death and post-mortem

report within 12 ±6 hours. In this view of matter

also just 15 hours prior to the time of conducting

post-mortem of the dead body,the appellants and

deceased were proceeded together and seen live.

26. The defence witness D.W.-1 and D.W.-2 have simply

stated that they have not seen committing of murder

by the accused persons and the deceased was

indulged in gambling with several persons including

the appellants. The facts deposed by defence

witnesses do not affect the prosecution case.

27. In the aforementioned proved foundational facts, the

principle of Section 106 of the Evidence Act deserves

to be quoted here.

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106. Burden of proving fact especially

within knowledge - When any fact is

especially within the knowledge of any person,

the burden of proving that fact is upon him.

28. Section 106 of the Evidence Act states that the

burden of proof of fact is on the person who has

specific knowledge of that fact. This is an exception to

the general rule that the burden of proving a fact is on

the person, who claims the existence of a particular

fact.

29. In the instant case, both the deceased and appellants

were seen together at the house of the deceased from

where they proceeded with playing cards to play with

each other. They were involved in gambling.

30. As per post-mortem report of the deceased, which was

conducted at about 01:30 PM i.e. within 15 hours

from the last seen, which clearly stated that time

since death elapsed 12±6 hours, clearly suggests that

just within 6 hours from proceeding from the house of

the deceased, he was given brutal assault and killed.

The appellants have not offered any explanation as to

what happened with the deceased while he was with

them. They have also not put forward any

circumstances, at any point of time between the last

seen with the deceased and murder, they parted with

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him and went anywhere else or any other person has

killed the deceased. None offering of any explanation

by the defence provides and additional link to chain of

circumstances of this case.

31. So far the submission made on behalf of the learned

counsel for the appellants about the unnatural

conduct of the informant and other witnesses, who

happens to be mother and brother of the deceased

that in spite of knowing that threating was being

given by the accused to deceased to kill him, they

kept mum in allowing the appellants to proceed with

the deceased and did not search him in the night is

concerned, this aspect of the matter is not so much

relevant in this case, as the same has been explained

by the witnesses that they were not so much serious

that the accused persons who frequently used to

accompany with the deceased might have killed him.

This fact is also not sufficient to absolve the

appellants from their own burden to reasonably

explain the incriminating circumstances appearing

against them particularly, where there was close

proximity of time in murder of the deceased when he

proceeded with these appellants from his house.

32. The citation relied upon by the learned counsel for the

appellants in Narendrasinh Keshubhai Zala (Supra),

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it was held by Hon'ble Apex Court as under:

8. It is a settled principle of law that doubt

cannot replace proof. Suspicion, howsoever great it

may be, is no substitute of proof in criminal

jurisprudence. Only such evidence is admissible

and acceptable as is permissible in accordance

with law. In the case of a sole eye witness, the

witness has to be reliable, trustworthy, his

testimony worthy of credence and the case

proven beyond reasonable doubt. Unnatural

conduct and unexplained circumstances can be

a ground for disbelieving the witness.

33. In the case of Sharad Birdhichand Sarda (Supra)

relied upon by learned counsel for the appellants,

following principles were propounded by the Hon'ble

Apex Court upon proof of which conviction can be

sustained on the basis of circumstantial evidence.

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji

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Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

34. We have gone through entire evidence available on

record and the circumstances conclusively proved by

the prosecution in this case in the light of the

principles propounded by Honb'le Apex Court in the

aforesaid cases, as relied by the learned counsel for

the appellants and find that the prosecution has

succinctly proved the foundational facts and

circumstances, unerringly leading to the conclusion of

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guilt of the appellants. The defence has not even

offered any valid explanation against the

incriminating circumstances proved against them,