India Devi vs The State Of Bihar (Now Jharkhand)
2025 Latest Caselaw 3138 Jhar

Jharkhand High Court

India Devi vs The State Of Bihar (Now Jharkhand) on 6 March, 2025

Author: Rongon Mukhopadhyay

Bench: Rongon Mukhopadhyay

                    Criminal Appeal (DB) No. 131 of 1997(R)
         (Against the judgment and order of conviction and sentence
         dated 28.05.1997 (sentence passed on 29.05.1997) passed by
         Sri Nirmalendu Kumar Kanth Niraj, learned 1st Additional
         Sessions Judge, Giridih in S.T. No. 140/1996.)

         1. India Devi, w/o Bihari Mistri.
         2. Panwa Devi, w/o Basudeo Mistri.
         3. Chandwa Devi, w/o Kedar Mistri.
         4. Babita Devi, w/o Govind Mistri.
            All residents of Vill- Pesratand, P.S.- Hirodih, Dist.-
            Giridih                               ...         Appellants
                                       Versus

         The State of Bihar (now Jharkhand)      ...    Respondent
                                     ----
                                  PRESENT
            HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
                  HON'BLE MR. JUSTICE ARUN KUMAR RAI
                                     ----
         For the Appellants    : Mr. Sahil, Adv.
         For the Respondent : Mr. Vineet Kr. Vashishtha, Spl. P.P.
                                     ----
                          Dated : 06/03/2025
Per Rongon Mukhopadhyay, J. :

1. Heard Mr. Sahil, learned counsel for the appellants and Mr. Vineet Kr. Vashishtha, learned Spl. P.P.

2. This appeal arises out of the judgment and order of conviction and sentence dated 28.05.1997 (sentence passed on 29.05.1997) passed by Nirmalendu Kumar Kanth Niraj, learned 1st Additional Sessions Judge, Giridih in S.T. No. 140/1996 whereby and whereunder the appellants have been convicted for the offence punishable under Section 302/34 IPC and have been sentenced to undergo imprisonment for life.

3. The prosecution case arises out of the fardbeyan of Yashoda Devi recorded on 21.12.1995 in which it has been stated that she has four brothers and a sister and the marriage of the informant was solemnized with Prayag Mistri at Bhagalpur but about four years back, the husband of the informant became traceless and since then she is staying with her mother at Chugalkhar. It has been stated that the mother of the informant had transferred two and half kathas of land by a registered deed to the informant for constructing a house thereupon for which the brothers and sisters-in-law of the informant used to quarrel and assault her mother. At the present moment, all the brothers of the informant had gone to Kolkata for earning their livelihood. It has been alleged that today, i.e., 21.12.1995 at 10:00AM, all the four sisters-in-law of the informant had entered into the house of her mother and assaulted and ousted the informant from her room and after committing the murder of the mother of the informant, they went away from the house. On raising an alarm, some of the villagers had assembled and the Chowkidar was also informed about the incident.

Based on the aforesaid allegations, Hirodih P.S. Case No. 58/95 was instituted for the offence punishable under Section 302/34 IPC. On conclusion 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. 140/1996. 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.

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

P.W.1 Madan Kumar Rai has proved the inquest report which has been marked as Exhibit-1. This witness was declared hostile by the prosecution.

P.W.2 Uday Rai has proved his signature on the inquest report which has been marked as Exhibit-2.

This witness has also been declared hostile by the prosecution. P.W.3 Anup Rout has stated that on 21.12.1995 at 10:00AM, he was digging out potatoes in the field when he heard a cry of alarm from Yashoda Devi at which he rushed to the door of Yashoda Devi where Yashoda Devi disclosed that her mother has been assaulted by her sisters-in-law. He had seen all the sisters-in-law of Yashoda Devi coming out from the room. When he went inside, he found Anita Devi dead with marks of injury on her body.

2|Page In cross-examination, he has deposed that the land in which the house of Yashoda Devi is situated was given to Anita Devi by her father. The plot consists of 72 decimals, out of which 4-5 decimals were given by his father to Anita Devi. When he was conversing with Yashoda, there were other persons present. When he had gone to the house of Yashoda, the accused persons were also present. Anita was inside the house and so was Yashoda and it was Yashoda, who came out first followed by the accused persons.

P.W.4 Lekho Badhai has not supported the case of the prosecution and has been declared hostile by the prosecution.

P.W.5 Mahaveer Rana alias Mahaveer Mistri has stated that he was in his field when on hearing a commotion, he had gone to the house of Bhiko Rana where he found the wives of Bihari Rana, Basudeo Rana, Kedar and Govind Rana standing near the door of the house. After they left, he went inside and found the dead body of Anita Devi lying in a cot with a sign of injury on her neck. Yashoda Devi had disclosed that all the accused persons had committed the murder of Anita Devi. The reason for the occurrence is of Anita Devi gifting ten decimals of land to Yashoda Devi due to which Anita Devi was regularly subjected to torture.

In cross examination, he has deposed that several persons were working in the field in the vicinity of where he was working. He had not seen anyone else going to the house of Yashoda Devi on hearing the cry of alarm. The first person to enter into the room where the body of Anita Devi was lying was the Sarpanch Anup Rout and he had entered thereafter. Several other persons had followed them.

P.W.6 Yashoda Devi is the informant, who has stated that she was with her mother when India, Panwa, Chandwa and Babita came and started assaulting her mother. They wringed the neck of her mother and broke her ribs. Her mother died and she started wailing and shouting, at which all the accused persons started assaulting her. When the Sarpanch and others came, all the accused persons came out of the house. The reason for the assault is that the deceased had transferred two and a half katthas of land to her. When the Police

3|Page came, her fardbeyan was recorded in which she had put her thumb impression.

In cross examination, she has deposed that she was staying with her mother for the last one and a half years since her husband Prayag became traceless. The land belonged to her parents. Her husband did not have a house of his own. When the accused persons started assaulting her mother, they had bricks and stones in their hands. After entering the room, the accused persons had closed the door and started committing assault upon her mother. She was also assaulted with fists and slaps. Her entire body was scratched by the accused persons.

P.W.7 Dr Bhupendra Prasad Singh was posted as a Civil Assistant Surgeon in Sadar Hospital, Giridih and on 22.12.1995, he had conducted autopsy upon the dead body of Mosomat Anita Devi and had recorded the following findings:

(i) Rigor mortis was present. Conjunctive-

congested, eyes prominent, face- swollen and cyanosed. Bloody foam from mouth and nostril. Tongue- portended.

(ii) Three finger marks on left side of wind pipe and the thumb mark on upper side of wind pipe were found. Thumb mark was higher and wider. Mark looked brown, dry and parchment like. Linear scratch on right side neck. Ante mortem by nature caused by finger nails.

(iii) On dissection- Subcutaneous tissues in neck under the marks was ecchymosed.

Larynx and trachea- congested. These were fracture of right corner of hyoid bone.

Fracture of multiple ribs on side chest.

Lungs- lacerated. Chest cavity contained blood and clot. Heart contained blood right side and left side empty. Liver, spleen and kidneys- congested. Stomach empty and its mucus membrane normal. Pecilocin smell. Urinary bladder- empty. Uterus-

normal size. Skull- NAD, Brain- congested.

Finger marks and chest injury were ante mortem in nature. Chest injury might be

4|Page caused by kneeling on chest.

The cause of death was opined to be asphyxia as a result of throttling. He has proved the post-mortem report which has been marked as Exhibit-3. He has stated that if hit by brick bats, there shall be external injury and the ribs may be fractured.

In cross examination, he has deposed that he did not find any external injury over the ribs. It can be said that there was no injury caused by brick bats and by hard and blunt substance.

P.W.8 Gautam Prasad was Officer-in-Charge of Hirodih P.S. and on 21.121995, the Chowkidar Daso Rai informed him that in village Chugalkhar Tola, Pesratand, the wife of Bhikho Mistri has been murdered by her daughter-in-law. After making a station diary entry, he along with other police personnel reached the place of occurrence where the Fardbeyan of Yashoda Devi was recorded and he started investigation thereafter. He had inspected the place of occurrence and had prepared the inquest report. The place of occurrence is the mud house of Anita Devi which consists of three rooms which is occupied by India Devi and Babita Devi while the middle room was occupied by the deceased Anita Devi and her daughter Yashoda Devi. This was the room where the dead body of Anita Devi was found. He had sent the body for post-mortem examination. He had recorded the re-statement of the informant as well as the statement of the other witnesses. He has proved the formal FIR which has been marked as Exhibit-5. On completion of investigation, he had submitted charge sheet.

In cross-examination, he has deposed that he had not found any incriminating articles at the place of occurrence. The witness Anup Rout had stated about a black mark found on the neck of the deceased and he had not stated of any other injury. The witness Yashoda Devi had stated about her four sisters-in-law coming inside her room and after assaulting her, forced her outside and closed the door from inside. She had not stated about crying and the accused wringing the neck of her mother and assaulting and causing fracture on her ribs. In her re-statement also, she had stated the same thing. He had not seized any bricks or stone at the place of occurrence. He had not seen the saree of Yashoda Devi torn or scratches in her body.

5|Page

5. The statements of the accused were recorded under Section 313 Cr.P.C. in which they have denied their complicity in the murder of Anita Devi.

6. It has been submitted by Mr. Sahil, learned counsel for the appellants that though P.W.8 claims himself to be an eyewitness, but there are so many incongruities and contradictions in her evidence that it is impossible to rely on the same. The manner of assault, as depicted by P.W.6 in her fardbeyan, seems to have undergone a considerable change in her evidence as P.W.6 and such development in her evidence and absence of any corroborative evidence would render the testimony of P.W.6 inconsequential. The evidence of the doctor that no external injuries were found on the person of the deceased further erodes the case of the prosecution.

7. Mr. Vineet Kumar Vasishtha, learned Spl. P.P. has submitted that the evidence of P.W.6 reveals about the concerted assault committed by the appellant upon Anita Devi inside her room and which fact has been corroborated by P.W.3 and P.W.5.

8. We have heard the learned counsel for the respective sides and have also perused the trial court records.

9. The Fardbeyan of Yashoda Devi reveals about the appellants entering into the room of her mother Anita Devi after assaulting and forcing her outside, the appellants had closed the door and committed assault upon Anita Devi leading to her death.

10. On her raising an alarm Lekho Mistri and Mahaveer Mistri had arrived at the place of occurrence. Incidentally, Lekho Mistri, who has been examined as P.W.4, has been declared hostile by the prosecution. The fardbeyan of Yashoda Devi does not record the presence of the Sarpanch of the village Anup Rout, though as per Mahaveer Mistri, who has been examined as P.W.5, it was Anup Rout who had first entered the house on hearing the cry of distress of Yashoda Devi followed by P.W.5 and though, there were several persons working in the field near the place where P.W.5 was wailing but it seems that none had come to the house of Yashoda Devi even on her raising a cry of alarm. Reverting back to the fardbeyan what

6|Page would transpire is that the informant had not witnessed the assault as the door was closed from inside by the appellants after forcing out the informant from the room. The evidence of the informant examined as P.W.6 seems to have projected a different narrative as she had elevated her status to be that of an eyewitness to the incident of assault. As per P.W.8, the appellants had wringed the neck of her mother and had broken her ribs and she had also stated about the appellants being in possession of bricks and stones. The improvement in her story seems to be in order to make it tailor-made to the post- mortem report where the doctor has given a finding of fracture of multiple ribs and throttling. P.W.8 has stated about the appellants being armed with bricks and stones to perhaps explain the reason for multiple rib fracture but neither did the Investigating Officer (P.W.8) found such materials at the place of occurrence, nor P.W.7 has stated about any external injury found over the ribs of the deceased. In fact, P.W.7, in his cross-examination, has categorically deposed that there was no injury caused by brick bats or hard and blunt substance and it was not also a case of squeezing of neck or twisting of neck. It has also to be borne in mind that the appellants had come from outside thereby casting suspicion about their presence but two of the appellants resided in either side of the room of the deceased in the same premises. As per P.W.3 and P.W.5, the appellants were standing at the door of the deceased in a nonchalant fashion contrary to the general conduct of a person who is instrumental in committing a murder. It also seems that P.W.6 was not vociferous in her seeking help when the appellants had closed the door from inside and if she had resorted to such reaction, others working in the field nearby would have rushed to the place of occurrence but it was only P.W.4 and P.W.5, as per P.W.6, who had come to the place of occurrence on hearing her cry of alarm. Moreover, P.W.6 seems to have been subjected to assault and scratches but the evidence of P.W.8 is contrary to such assertion as neither he had found any scratches nor had found the saree of P.W.8 torn. There is also no injury report available on record to sustain the assertion of P.W.8. The transferring

7|Page of some land to P.W.6 by the deceased seems to be the reason for the incident as projected by the prosecution and it would have gravitated to a serious matter had it not been the fact as depicted in the fardbeyan that the rest land was equally distributed to the four sons by the deceased. Even otherwise, presence of a motive has to be quantified with other corroborative circumstances, but as we have noted above, the evidence of P.W.6 is tainted with contradiction and ambiguities and no reliance can be placed on the same for convicting the appellant.

11. The learned trial court having not properly discussed the evidence of P.W.6 in the backdrop of the other evidence and on consideration of the entire facets of the case, we have no hesitation, but in setting aside the judgment and order of conviction and sentence dated 28.05.1996 (sentence passed on 29.05.1996) passed by Sri Nirmalendu Kumar Kanth Niraj, learned 1st Additional Sessions Judge, Giridih in S.T. No. 140/1996.

12. This appeal is allowed.

13. Since the appellants are on bail, they are discharged from the liability of their bail bonds.

14. Pending I.A.s, if any, stands closed.

(RONGON MUKHOPADHYAY, J.)

(ARUN KUMAR RAI, J.)

Jharkhand High Court, Ranchi Dated the 6th Day of March, 2025 Preet/N.A.F.R.

8|Page