Jharkhand High Court

Santu Nagesia vs The State Of Bihar (Now Jharkhand) on 14 January, 2025

Author: Rongon Mukhopadhyay

Bench: Rongon Mukhopadhyay

                    Criminal Appeal (DB) No. 97 of 1997 (R)
         [Against the judgment and order of conviction and sentence dated
         30.04.1997 passed by Sri Gangadhar, learned 1st Additional Sessions
         Judge, Gumla in S.T. No. 218 of 1988]
                                     ---------
       Santu Nagesia, S/o Chaitu Nagesia, R/o Village Bajra Dawna
       Pani, P.S. Palkot, District- Gumla        .... .... Appellants
                                   Versus
       The State of Bihar (now Jharkhand)        .... .... Respondent
                                   ---------
     CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
                   HON'BLE MR. JUSTICE ARUN KUMAR RAI
                                   ---------
       For the Appellant         : Mr. Pradip Kumar, Advocate
       For the State             : Mr. Tarun Kumar, A.P.P.
                                   ---------
C.A.V. on 17/12/2024                        Pronounced on 14/01/2025
Per Rongon Mukhopadhyay, J.

Heard Mr. Pradip Kumar, learned counsel for the appellant and Mr. Tarun Kumar, learned A.P.P. for the State.

2. This appeal is directed against the judgment and order of conviction and sentence dated 30.04.1997 passed by Sri Gangadhar, learned 1st Additional Sessions Judge, Gumla in S.T. No. 218 of 1988, whereby and whereunder, the appellant has been convicted for the offence punishable u/s 302 of the Indian Penal Code and has been sentenced to undergo R.I. for life.

3. The prosecution case arises out the fardbeyan of Jagbandhu Ram recorded on 16.11.1987, in which, it has been stated that Harihar Mishra of Kansari Mohalla has lands at Bajratola Dobnapani and for harvesting of the crops the informant had gone with Harihar Mishra to the said place. After the crops were cut they were kept in the khalihan. It has been stated that today i.e. 16.11.1987 he and Harihar Mishra had gone to catch fish when they saw Chhotku Kharia already catching fish and he was asked to bring two fishing rods. The fishing rods were immediately brought by Chhotku Kharia after which the informant and Harihar Mishra got busy catching fish. The shepherd of Ram Prasad Ram namely, Santu Nagesia (appellant) was grazing cattle nearby and Radha Ram, the son of Baldeo Ram was also grazing cattle. It has been alleged that Harihar Mishra started making small talks with Santu Nagesia. Since darkness was descending the informant asked Harihar Mishra to return to the village. Harihar Mishra after handing over the fishing rod to Chhotku Kharia started washing his hands and the informant in the meantime had seen a signal from Radha Ram to Santu Nagesia and Santu Nagesia committed an assault upon Harihar Mishra with a Tabla after which he fled away towards the jungle. The incident was also witnessed by Tulsi Bhagat who was grazing cattle nearby. The informant had brought the injured Harihar Mishra to the house of Bhadwa Nagesia and while he was going to Palkot to call a Doctor he had seen Ram Prasad Ram fleeing away towards the forest. After about one hour of the incident Harihar Mishra died in the house of Bhadwa Nagesia.

Based on the aforesaid allegations Palkot P.S. Case No. 72 of 1987 was instituted u/s 302/120B of the IPC. On completion of investigation charge sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 218 of 1988. Charge was framed against the accused u/s 302/34 of the IPC which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

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

5. P.W.1 (Chhotku Kharia) has stated that he was catching fish when Jagbandhu and Harihar came and they wanted fishing rods as they also expressed their desire to catch fish. He went and brought two fishing rods from his house. Thereafter all three got themselves engaged in catching fish when Santu Nagesia came and started conversing with Harihar Mishra. When Jagbandhu and Harihar started washing their hands Santu Nagesia assaulted Harihar Mishra with a Tabla. The assault was

committed on a signal given by Radha who was standing nearby. Santu and Radha thereafter fled away towards the direction where Ramprasad and Baldeo were present. Harihar Mishra was taken to the house of Bhadwa Nagesia where after one hour he died. There was a land dispute between Harihar Mishra and the Nagesias. A meeting was held a day prior to the incident in the house of Baldeo where the murder of Harihar Mishra was planned.

In cross-examination, he has deposed that he had gone to the place of occurrence to catch fish. He had never witnessed any quarrel or scuffle between the accused and Harihar Mishra. Before Jagdambu and Harihar Mishra came he was catching fish alone. Harihar was catching fish since 3:00 P.M. Santu had a conversation with Harihar after which he left to graze the cattle. Harihar and Santu had conversed for one hour though he does not know the topic of their conversation. When the assault was committed Radha was standing at a distance of hundred yards.

6. P.W.2 (Tulsi Bhagat) has stated that he was grazing cattle when he saw Santu Nagesia assaulting Harihar Mishra with a tangi. Harihar was washing his hands and feet and Santu, Jagbandhu and Chhotku were present. Due to the assault Harihar fell down on the earth. The place where he was grazing the cattle Radha was also present. After the assault was committed Santu and Radha fled away towards the forest. Santu was pursued by Jagbandhu. He has stated that Harihar Mishra was brought to the house of Badhwa Nagesia.

In cross-examination, he has deposed that no one from the village were present at the time of the incident. He was aware about the fact that Harihar Mishra will be murdered. At the place of occurrence Harihar Mishra had a conversation for 12-15 minutes with Santu Nagesia. He has deposed that Santu and Radha were with him.

7. P.W.3 (Dr. Yogendra Prasad Sinha) was posted as a Civil Assistant Surgeon at Sadar Hospital, Gumla and on 17.11.1987 he had conducted autopsy on the dead body of Harihar Mishra and had found the following:

(i) Incised wound over occipital region from above downwards of the size 6" x 1"x 4".

The injury was grievous in nature sufficient to cause death and it was caused by sharp cutting weapon like tangi. He has proved the post-mortem report which has been marked as Exhibit-1.

8. P.W.4 (Bhadwa Nagesia) has stated that the incident is of two years four months back and he had brought Harihar Mishra in an injured condition to his house. There was an injury on the back of the head. Harihar Mishra was washing his hands and feet when Santu Nagesia assaulted him with a Tabla. Harihar Mishra had his raiyati land at Bazra Domnapani which was a cause of dispute with Chhaili and Baldeo.

In cross-examination, he has deposed that for the last three years there was a dispute between Chhaili and Harihar Mishra. Santu Nagesia is the servant of Baldeo. Before his evidence in Court his statement was never recorded earlier.

9. P.W.5 (Bandhu Bhagat), has been tendered by the prosecution.

10. P.W.6 (Jagbandhu Ram) is the informant who has stated that he and Harihar Mishra were catching fish and the fishing rods was provided by Chhotku Kharia. Santu Nagesia, Tulsi Bhagat and Radha Nagesia were grazing cattle nearby. Santu Nagesia had come to the place where they were catching fish and he had a conversation with Harihar Mishra. When he and Harihar Mishra were washing their hands and feet before proceeding to their respective houses Santu Nagesia assaulted Harihar Mishra on the back portion of his head with a Tabla. He had carried Harihar Mishra to the house of Bhadwa Nagesia and he had thereafter left for calling a Doctor and informing the Police about the incident.

When he had returned back Harihar Mishra was dead by then. His fardbeyan was recorded by the Police at the Police Station which has been proved and marked as Exhibit-2. There was a land dispute going on between the accused and Harihar Mishra.

In cross-examination, he has deposed that the house of Chhotku Kharia is at a distance of 20-22 feet from the place of occurrence. He has also deposed that Radha Nagesia and Tulsi Bhagat were also present at the place of occurrence.

11. P.W.7 (Ashok Kumar Gupta) had taken over the investigation from Arvind Kumar Ram who had recorded the statement of the witnesses. After perusal of the case diary he had submitted charge-sheet. He has proved the formal FIR which has been marked as Exhibit-3.

12. P.W.8 (Sukra Kharia) has stated that the murder of Harihar Mishra was disclosed to him by Bhadwa Nagesia.

13. P.W.9 (Arvind Kumar Rai) was posted as an Officer- Incharge of Palkot P.S. and on 16.11.1987 he had heard a rumour that at Bazratola Dobnapani Harihar Mishra has been murdered. He had made a station diary entry and thereafter had left for the place of occurrence. He had recorded the fardbeyan of Jagbandhu Ram which has already been proved and marked as Exhibit-2. He had prepared the inquest report and sent the body for post- mortem. He had inspected the place of occurrence which is at village Bazratola Dobnapani in a rocky place. He had recorded the statements of the witnesses. On 18.04.1988 he had handed over the investigation to Sub Inspector Ashok Kumar Gupta on account of his transfer. He has proved the station diary entry which has been marked as Exhibit-4 with objection.

In cross-examination, he has deposed that in course of investigation it came to light that accused Radha ram was grazing cattle near the place of occurrence. Chhotku Kharia had not stated that Ram Prasad had a gun in his possession.

14. The statement of the accused was recorded u/s 313 Cr.P.C., in which, he has denied his complicity in the murder of Harihar Mishra.

15. It has been submitted by Mr. Pradip Kumar, learned counsel for the appellant that the prosecution has failed to prove that it was the appellant who had committed the murder of Harihar Mishra. It has been submitted that at best it can be a case u/s 304 Part-II of the IPC as the incident had occurred at the spur of the moment and on account of grave provocation given by the deceased Harihar Mishra.

16. Mr. Tarun Kumar, learned A.P.P. for the State has submitted that there are overwhelming materials in the form of P.W.1, P.W.2 and P.W.6 which clearly points to the role of the appellant in committing the murder of Harihar Mishra with a Tabla.

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

18. The obsession of Harihar Mishra in catching fish in the pond turned fatal on account of he being assaulted with a Tabla on the back portion of his head. The prime witnesses of the prosecution are P.W.1, P.W.2 and P.W.6. P.W.1 and P.W.6 were also catching fish in close proximity to Harihar Mishra. P.W.2 is another eye-witness who was grazing cattle nearby. While the deceased was catching fish he had a conversation with the appellant who was also grazing cattle nearby and as P.W.6 and the deceased started making preparations to go home the appellant assaulted Harihar Mishra from the back side and Harihar Mishra who was taken to the house of P.W.4 succumbed to his injuries. The evidence of P.W.1 and P.W.6 do not at all indicate that there was an exchange of hot talks between the deceased and the appellant and in fact P.W.1 has categorically stated in his cross- examination that he had never witnessed any quarrel or scuffle between the appellant and the deceased. The normal conversation

which ensued between the deceased and the appellant negates the submission propounded by the learned counsel for the appellant that the assault had taken place at the spur of the moment. It would rather seem that it was a well thought out plan and the appellant was also armed with a Tabla in order to execute such plan. The defense has failed to elicit any contradiction in the evidence of P.W.1, P.W.2 and P.W.6 who have been consistent in their evidence regarding the manner of assault and the aftermath of the assault when the deceased was taken to the house of P.W.4 and the evidence of P.W.4 corroborates such fact. Even the autopsy report corroborates the manner of assault as stated by P.W.1, P.W.2 and P.W.6. The learned trial court had correctly appreciated the evidence of the witnesses while recording a finding of guilt against the appellant. We do not find any reason to differ with such finding and consequently we dismiss this appeal.

19. The appellant is directed to surrender before the learned trial court immediately and forthwith to serve out the rest part of his sentence.

(Rongon Mukhopadhyay, J.)

(Arun Kumar Rai, J.)

High Court of Jharkhand at Ranchi Dated, the 14th day of January, 2025.

A. Sanga /-