Jharkhand High Court
Nirmal Bhengra Son Of Late Yakub Bhengra vs The State Of Jharkhand -----Respondent on 18 July, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay, Rajesh Kumar
2025:JHHC:19752-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B.) No.691 of 2013
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Nirmal Bhengra son of Late Yakub Bhengra,
resident of village Gurgurchuwan, P.O. and
P.S. Torpa, District Khunti. ----- Appellant
Versus
The State of Jharkhand -----Respondent
------
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Yogesh Modhi, Amicus Curiae
For the State : Mr. Bhola Nath Ojha, A.P.P.
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CAV JUDGMENT
Dated: 18th July 2025
R.Mukhopadhyay,J. Heard Mr. Yogesh Modi, learned Amicus Curiae and
Mr. Bhola Nath Ojha, learned APP.
2. This appeal is directed against the judgment and
order of conviction and sentence dated 23-05-2013 (sentence
passed on 28-05-2013), passed by Sri Vidhan Chandra
Choudhury, learned Judicial Commissioner-II, Khunti in
connection with S.T. No.433 of 2008, whereby and whereunder
the appellant has been convicted for the offences punishable
under Sections 364, 376, 302 and 201 IPC and has been
sentenced to undergo R.I. for 10 years along with a fine of Rs.
5,000/- for the offence under Section 364 IPC, R.I. for 10 years
and a fine of Rs. 5,000/- for the offence under Section 376
IPC, R.I. for life and a fine of Rs.10,000/- for the offence under
Section 302 IPC and R.I. for 7 years for the offence under
Section 201 IPC. In case of default of the total fine amount of
Rs. 20,000/-, the appellant was directed to undergo further
rigorous imprisonment for 2 years.
3. The prosecution case arises out of the Fardbayan of
Radsi Guria recorded on 25-06-2008 in which it has been
stated that the daughter of the informant victim 'X' was
playing in front of his house at around 10.00 AM. The wife of
the informant Biswasi Guria was inside the house. The
neighbour of the informant had a guest namely Nirmal
Bhengra (appellant) who came in front of the house of the
informant and started playing with his daughter. After some
time, Nirmal Bhengra offered to take the child towards the
road and when after expiry of a considerable length of time,
the daughter of the informant did not return, the informant
and his wife started searching for her. The shopkeeper of the
grocery shop had disclosed that the guest of Raghu Guria had
purchased biscuits and had given it to the child and had
thereafter gone towards the jungle. The informant became
suspicious and informed the villagers, but despite a search
conducted, the daughter of the informant could not be traced
out.
Based on the aforesaid allegations, Torpa P.S. Case
No. 22 of 2008 was instituted for the offence under Section
364 IPC. On completion of investigation, charge sheet was
submitted under Sections 364, 302, 376 and 201 IPC. After
cognizance was taken, the case was committed to the court of
sessions where it was registered as S.T. No. 433 of 2008.
Charge was framed against the accused under Sections 302,
201, 376 and 364 IPC, which was read over and explained to
him to which he pleaded not guilty and claimed to be tried.
4. The prosecution has examined as many as 9
witnesses in support of its case.
5. P.W.1 Dr. Rajeshwar Prasad was posted as a
Medical Officer in Sub-Divisional Hospital, Khunti and on
26.06.2006 he had conducted autopsy on the dead body of
victim 'X' and had found the following injuries:
(i) Multiple bruises auteriorly as the neck one on right
side and three comparatively smaller on left side.
Size right side ½"x ¼". Left side ¼" x ¼" each. The
bruises are faint and defuse. Subcutaneous tissues
under the bruise show ecchymosis. Tracheal rings
are lacerated.
(ii) Examination of valve and vagina shores blood
stained on valve, separation of labia, labia major
and minors were both congested, vaginal walls
show laceration with presence of hemorrhage.
Vaginal swab taken and sent for microscopic
examination for presence of spermatozoa. Report of
vaginal swab did not show presence of sperm. The
above injuries are antimortem in nature, caused by
hard and blunt object. Though the vaginal swab did
not show any spermatozoa the injuries on valve and
vagina suggest that the person had been subjected
to sexual assault and there is possibility of rape.
The cause of death has been opined to be asphyxia
due to throttling. The post-mortem report has been proved and
marked as Exhibit-1.
In cross examination, he has deposed that he
cannot say with certainty that rape was committed.
6. P.W.2 Lambra Guria is the cousin brother of victim
'X' who has stated that victim 'X' was playing in the courtyard
when Nirmal Bhengra came and took her away by giving her
biscuits. Neither Nirmal Bhengra returned nor the victim 'X'. A
search was conducted, but the victim 'X' could not be traced
out. Later on, the dead body of victim 'X' was recovered from
the jungle. He has proved his signature on the inquest report,
which has been marked as Exhibit-2.
In cross-examination, he has deposed that he had
seen Nirmal Bhengra taking away the child.
7. P.W.3 Biswasi Guria is the mother of victim 'X' who
has stated that at 10.00 am, her daughter was playing in front
of the house and the guest, who had come, had taken her
away. Her daughter did not return. The persons of the locality
had disclosed that she was given biscuits and was taken
towards the jungle. When she had disclosed the incident to her
husband, they started searching for victim 'X' along with the
villagers but she could not be traced out. Some school going
children had disclosed that the dead body of her daughter is
lying in the jungle. She had seen the dead body of her
daughter. After the police had come, her statement was
recorded.
In cross-examination, she has deposed that she had
not witnessed the incident. She does not know the name of the
children who had made such disclosure about seeing the dead
body of her daughter. She has deposed that the house of
Budhwa, Raghu, Langda and Biram are situated adjacent to
her house.
8. P.W.4 Budhwa Guria has stated that on
25-06-2008, Raghu Guria had a guest who was named Nirmal
Bhengra. Nirmal Bhengra had purchased biscuits and
thereafter the victim 'X' was taken away by Nirmal Bhengra.
Both could not be traced out. The children returning from the
school had disclosed that the dead body of victim 'X' is lying in
the jungle. Several villagers had gone to the jungle to bring the
dead body, but he had not gone there. Nirmal Bhengra was
later on apprehended by the police.
In cross-examination, he has deposed that when
Nirmal Bhengra had purchased biscuits, only he and his wife
were present. The police station is at a distance of 3 kilometers
from the village.
9. P.W.5 Raghu Guria has stated that the incident had
taken place on 25th of the month. Nirmal Guria had come as a
guest at the house of Haku Guria who had taken away victim
'X' on the pretext of giving biscuits which was purchased from
the shop of Budhwa (P.W.4). He had taken away the victim 'X'
from the house. Both could not be traced out despite a search
conducted. When the children were returning from the school,
they had seen the dead body after which he and the villagers
had gone to the jungle where the dead body was lying. Nirmal
Bhengra had already fled away by then.
In cross-examination, he has deposed that the
police had recorded his statement. He has further stated that
he does not have any knowledge about the person who had
committed the murder of victim 'X'. He has also feigned
ignorance about the name of the children who had disclosed
about the dead body lying in the jungle.
10. P.W.6 Juyel Dahanga has stated that on
25-06-2008 Nirmal Bhengra had come to visit the house of
Raghu Guria. He has stated that on the temptation of
purchasing sweets Nirmal Bhengra had taken away victim 'X'.
Nirmal Bhengra had also purchased biscuits from the shop of
Bhudwa Guria (P.W.4) and had taken away victim 'X' at
around 2.00-2.30 pm. He was informed by the mother of
victim 'X' about she not being found anywhere after which a
search was conducted wherein the children returning from the
school had informed about the dead body of victim 'X' lying in
the jungle. The police had subsequently come and had
recovered the dead body.
In cross-examination, he has stated that he had not
witnessed the incident and therefore he cannot say as to who
had committed the murder of victim 'X'.
11. P.W.7 Birsa Guria has stated that the incident is of
25-06-2008 at around 12.00 noon and he was in the village.
The guest of Raghu Guria namely Nirmal Bhengra was playing
with victim 'X' and thereafter on the pretext of providing
sweets, he had taken away victim 'X' after purchasing biscuits
from the shop of Bhudwa. A search was conducted in the
village but the victim could not be traced out. He has stated
that at 4.00 pm the children, who were coming back from the
school, had informed the villagers that the dead body of victim
'X' is lying in the jungle. The police was thereafter informed by
the mother of victim 'X' who had come and had taken away the
dead body to the police station. His statement was recorded by
the police.
In cross-examination, he has deposed that the
distance between his house and that of Raghu is about 20 feet.
12. P.W.8 Radsi Guria is the father of the victim 'X' and
the informant who has stated that when he returned home
after ploughing his field, his daughter victim 'X' was playing in
front of the house. Nirmal Bhengra who was a guest of Raghu
Guria was also playing with his daughter and thereafter on the
pretext of purchasing biscuits, Nirmal Bhengra had taken
away his daughter. When his daughter did not return after a
considerable length of time, a search was conducted and in
course of search some children returning from the school had
disclosed about the dead body of victim 'X' lying in the jungle.
The police had come and had recorded his statement.
In cross-examination he has deposed that at the
time of the occurrence he was inside the house. He came to
know about the incident in the evening. He had not witnessed
the commission of murder of his daughter.
13. P.W.9 Gopal Krishna Yadav was posted as the In-
charge of Tapkara O.P and on 25-06-2008 he received a secret
information that the daughter of Radsi Guria has been
kidnapped. He had thereafter made a station diary entry and
for verification of the information he had proceeded towards
village Semertoli and thereafter had recorded the Fardbayan of
Radsi Guria. The Fardbayan has been proved and marked as
Exhibit-3. He has further identified the forwarding in the
Fardbayan which has been marked as Exhibit-3/1. The
endorsement in the Fardbayan has been marked as Exhibit-
3/2. After taking over investigation he had proceeded to the
place of occurrence which is the house of the informant and
had recorded the restatement of the informant. The first place
of occurrence is the house of the informant at village Semertoli
and on the eastern side of the house is an open space whereas
on the western side there is a vacant land of Moso Guria. On
the northern side of the house is the house of Raghu Guria
whereas on the southern side there is a vacant land of Soma
Guria. He had recorded the statements of Biswasi Guria, Juyel
Dahanga, Langda Guria, Raghu Guria, Budhwa Guria and
Birsa Guria. He had arrested the accused Nirmal Bhengra who
had confessed of committing rape upon Victim 'X' and
thereafter strangulating her to death and hiding the dead body
in Kamda jungle. On the basis of the confessional statement of
the accused the dead body of Victim 'X' was recovered. An
inquest report was prepared which has been proved and
marked as Exhibit 2/1. The second place of occurrence was
inspected which is at Kamda jungle near Kamda village from
where Semertoli village is at a distance of 1 km. After recovery
of the dead body he had again recorded the statement of Juyel
Guria, Langda Guria as well as that of the informant. The dead
body was sent for the purposes of conducting an autopsy. The
post-mortem report was obtained and after completion of
investigation he had submitted charge sheet.
In cross-examination he has deposed that he had
not mentioned the name of the police personnel who had
accompanied him.
14. The statement of the accused was recorded under
Section 313 Cr.P.C in which he has denied his complicity in
the commission of the murder.
15. It has been submitted by Mr. Yogesh Modi, learned
Amicus Curiae that admittedly there are no eyewitnesses to
the occurrence. It has been submitted that only on the basis of
circumstantial evidence the appellant has been convicted.
Learned counsel further submits that as per some of the
witnesses the victim 'X' was last seen with the appellant but
that by itself would not be a strong circumstance in coming to
a conclusion that it was the appellant who had committed
such heinous offence.
16. Mr. Bhola Nath Ojha, learned APP has submitted
that apart from the victim 'X' being last seen in the company of
the appellant, the other circumstance demarcates that it was
on the confession of the appellant that the dead body of the
victim 'X' was recovered from Kamda jungle. Such strong
circumstantial evidence against the appellant has
appropriately been considered by the learned trial court while
convicting the appellant.
17. We have heard the learned counsel for the
respective sides and have also perused the trial court record.
18. There is admittedly not a single eyewitness to the
actual incident of commission of rape and murder. The
prosecution has primarily relied upon two circumstances in
order to prove the guilt of the appellant. The first circumstance
is of the victim 'X' having been last seen in the company of the
appellant going towards the jungle and the other circumstance
is the confessional statement of the appellant leading to
recovery of the dead body of victim 'X' from the jungle. So far
as the second circumstance is concerned, there appears to be
some ambiguity with respect to the recovery of the dead body
of victim 'X' on the confession of the appellant. The Fardbayan
of P.W. 8 merely states about the suspicion upon the appellant
of having abducted his daughter. This suspicion soon turned
into a reality as apart from taking away the daughter of the
informant, she was subjected to rape and was throttled to
death.
19. So far as the investigating officer is concerned who
has been examined as P.W.9, he has categorically stated that
on apprehending the appellant, he had made a confession
based upon which the dead body of victim 'X' was recovered
from Kamda jungle. However, the evidence of the other
witnesses does not suggest or support the said fact. P.W.2 has
merely stated that the dead body of victim 'X' was found in the
jungle. However, so far as P.W.3, P.W.4, P.W.5, P.W.6, P.W.7
and P.W.8 are concerned, they have consistently stated that
some children returning from the school had seen the dead
body of victim 'X' lying in the jungle and on their disclosure
made the dead body of victim 'X' was recovered. None of the
children have been examined by the prosecution nor any of the
said witnesses have disclosed about the name of any of the
children.
20. It would, therefore, seem that on the one hand the
investigating officer states about recovery of the dead body
from the jungle on the confession of the appellant while on the
other hand the dead body of victim 'X' seems to have been
traced out on account of the disclosure made by the children
returning from the school. Such circumstance does not speak
with certainty that it was the appellant on whose confession
the dead body was recovered. The second circumstance
pointed out by us, therefore, cannot be a guiding factor in
proving the guilt or otherwise of the appellant. However, with
respect to the first circumstance there has been consistent
evidence on record that the appellant had enticed the victim 'X'
towards the jungle by giving her biscuits and such biscuits
were purchased from the shop of P.W.4. Apart from P.W.4,
P.W.5, P.W.6 as well as P.W.7 had stated about the said fact. It
would be abundantly clear, therefore, that it was the appellant
who had on the pretext of giving biscuits to the victim 'X' had
taken him towards the jungle and subsequently after a few
hours the dead body of victim 'X' was recovered from the
jungle. The last scene theory as promulgated by the
prosecution gains strength from the fact that there was a close
proximity between the deceased victim 'X' having been seen
with the appellant and the recovery of the dead body from the
jungle. In the case of Karakkattu Muhammed Basheer v.
State of Kerala, reported in (2024) 10 SCC 813 the last
scene theory has been considered and it has been held as
follows:
14. This Court in Ramreddy Rajesh Khanna Reddy v. State
of A.P. while referring to the various earlier judgments which
have been passed by this Court from time to time, summarised
key principles which act as a guide for the courts to come to a
conclusion with regard to the guilt of an accused in cases which
are solely dependent on the circumstantial evidence. The same
have been referred to as the "panchsheel principles" and are
discussed
ussed in paras 26 to 28 of the said judgment, which read
as follows : (SCC p. 181)
"26.. It is now well settled that with a view to base a
conviction on circumstantial evidence, the prosecution must
establish all the pieces of incriminating circumstances by
reliable and clinching evidence and the circumstances so
proved must form such a chain of events as would permit no
conclusion other than one of guilt of the accused. The
circumstances cannot be on any other hypothesis. It is also
well settled that suspicion,
suspic however grave it may be, cannot
be a substitute for a proof and the courts shall take utmost
precaution in finding an accused guilty only on the basis of
the circumstantial evidence. (See Anil Kumar Singh v. State
of Bihar and Reddy Sampath Kumar v. State of A.P.)
27.. The last seen theory, furthermore, comes into play
where the time-gap
time gap between the point of time when the
accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any
person other than the accused being the author of the crime
becomes impossible. Even in such a case the courts should
look for some corroboration.
28. In State of U.P. v. Satish this Court observed : (SCC p.
123, para 22)
'22.. The last seen theory comes into play where the
time-gap
gap between the point of time when the accused and
the deceased were last seen alive and when the deceased
is found dead is so small that possibility of any person
other than the accused being the author of the crime
becomes impossible. It would be di difficult
fficult in some cases to
positively establish that the deceased was last seen with
the accused when there is a long gap and possibility of
other persons coming in between exists. In the absence of
any other positive evidence to conclude that the accused
andd the deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in those cases.
In this case there is positive evidence that the deceased
and the accused were seen together by witnesses PWs 3
and 5, in addition to the evidenc
evidence of PW 2.'
(See also Bodhraj v. State of J&K.)"
21. As we have noticed above that there was a close
proximity with respect to recovery of the dead body of the
victim 'X' from the time she was last seen with the appellant
and this circumstance has not been able to be discarded by
the defence. We, therefore, come to a conclusion based on the
reasoning as aforesaid that it was the appellant who had taken
away victim 'X' to the jungle and had initially subjected the 6
year old girl to a brutal rape and thereafter had throttled her to
death. The involvement of the appellant in the commission of
rape and murder of victim 'X' being apparent, we do not find
any reason to interfere in the impugned judgment of conviction
and sentence dated 23-05-2013 (sentence passed on 28-05-
2013) passed by Sri Vidhan Chandra Choudhury, learned
Judicial Commissioner-II, Khunti in connection with S.T.
No.433 of 2008 and consequently we dismiss this appeal.
22. Pending interlocutory application(s), if any, stand(s)
closed.
(Rongon Mukhopadhyay, J.)
(Rajesh Kumar, J.)
Shamim/-
