Criminal Appeal No. 759 of 2007 · The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal No. 759 of 2007 Baleshwar Yadav --------- Versus ..… Appellant The State of Jharkhand ….. Respondent ---------- CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD For the Appellant For the State --------- : Mrs. Vani Kumari, Advocate : Mrs. Nehala Sharmin, Spl.P.P. --------- ORAL JUDGMENT IN COURT 11/21.02.2024 This Criminal Appeal has been filed on behalf of the appellant challenging the Judgment of conviction and sentence dated 07.6.2007 and 16.06.2007 respectively, passed by Mr. Mahesh Chander Verma, learned 5th Additional Sessions Judge (F.T.C.No. 2), Godda in Sessions Case No. 107/2004/19/2004, whereby the learned Additional Sessions Judge (F.T.C.2), Godda convicted the appellant for the offence under Section 306 I.P.C. and sentenced him to undergo R.I. for five years and to pay a fine of Rs.2,000/-, although the appellant was acquitted by the learned Court below for the offences under Section 302/34 and 201/34 of the I.P.C. 2. The prosecution case, in short, as per the Fardbayan made to the police on 09.03.2004, is that the daughter of the informant, namely Sikma Devi was married to accused Baleshwar Yadav in Falgun of previous year. Gauna was performed in Aghan Purnima and thereafter, Sikma Devi was living with her husband and in-laws at Dharmpur, the 2 matrimonial village of Sikma Devi is just adjacent to
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his village Firozpur Mal. He further stated that 8/10 days prior to Holi, Sikma Devi came to see her mother and sister, her husband at that time was not in the house and she arrived after taking permission from her parents-in-law and after staying for half an hour she returned back. However, her husband, Baleshwar Yadav was not liking that Sikma Devi meet with any person of her parental village, and when he came to know about her visit to her parental house, he became annoyed and assaulted her. He further stated that on the occasion of Holi he sent his son Niranjan Yadav to Dharmpur to bring Sikma Devi, but persons of her in- laws house did not send her. He also stated that on last Sunday there was a Satsang in village Dharmpur and ladies of his house, along with children went to attend that Satsang. That Sikma Devi, with her parent-in-laws also came in the said Satsang and Sikma Devi wanted to speak to her mother and sister but her parents-in-laws did not allow her to see her mother and sister and they loudly shouted, referring the ladies of his house asking them to take back Sikma Devi. He further stated that today (i.e. 09.03.2004) when they came to know that his daughter is not in her matrimonial house they started searching for her and meanwhile one villager gave a cue to trace her in pond or well and taking his cue they put anchor (Jhhagor) in well in Bahiyar behind the house of Mohan Yadav. That anchor fastened into 3 something and when it was taken out they saw that the thing fastened is the dead body. Thereafter, the dead body was taken out from the well and it was the dead body of her daughter Sikma Devi. A rope was found tied in the neck of the dead body, both hands of the dead body was also tied with a Gamcha and with the help of same Gamcha a heavy stone was also tied and a red colour cloth was found inserted in the mouth of the deceased. He claimed that when they went to the house of Mohan Yadav (Father-in-law of Sikma Devi), they found all the inmates of the house absconded. He claimed that his daughter Sikma Devi was murdered by Mohan Yadav, by Baleshwar Yadav and by wife of Mohan Yadav and after murder her neck was tied with rope and by tying a heavy stone with her body she was thrown into the well. 3. Heard Mrs. Vani Kumari, learned counsel for the appellant and Mrs. Nehala Sharmin, learned Spl.P.P. 4. Learned counsel for the appellant has submitted that the present appellant has been convicted for the offence under Section 306 of the I.P.C. and has remained in jail for around three years and four months and as such, she is not arguing the appeal on merit and confining her argument on modification of sentence to the period undergone by the appellant. It is submitted that this is a case of no evidence and the appellant has been convicted on the 4 basis of conjecture and surmises and hence, lenient view may be taken for the appellant. 5. On the other hand, the learned Spl.P.P. has opposed and submitted that the impugned judgment of conviction and sentence passed by the learned Court below do not require interference any interference from they learned Court below as the appellant is the husband of the deceased and information has not been given to the Informant about she being missing and hence, conviction and sentence may be upheld. It is submitted that all the prosecution witnesses had fully supported the prosecution case. The Doctor, who conducted post mortem examination of the deceased, has proved the post mortem report. This, this Criminal Appeal may be dismissed. 6. Perused the Lower Court Record of this Case and considered the submission of both sides. 7. It transpires that F.I.R. was lodged on 09.03.2004 under Section 302/201/34 I.P.C. against the appellant and two others. 8. The police has submitted chargesheet against the appellant under Section 306 of the I.P.C. on 14.06.2004 against the appellant before the learned C.J.M., Godda, while the investigation remained pending against other persons. Learned C.J.M., Godda had taken cognizance under Section 5 306 I.P.C. against the appellant and the case was committed to the Court of Sessions on 06.7.2004. 9. It transpires that the charges were framed for the offences under Section 302, 201/34 and 306 of the I.P.C. against the appellant on 10.9.2004 to which he pleaded not guilty and claimed to be tried. 10. During trial the prosecution has got examined 14 witnesses, who are as follows:- (i) (ii) P.W.1 is Shankar Prasad Yadav, P.W.2 is Jaldhar Yadav, (iii) P.W.3 is Basudeo Yadav, (iv) P.W.4 is Sheru Yadav, (v) P.W.5 is Shambhu Yadav, (vi) P.W.6 is Anirudh Yadav, (vii) P.W.7 is Umesh Yadav, (viii) P.W.8 is Sahab Yadav, (ix) P.W.9 is Robin Sah, (x) P.W.10 is Dr. Bandevi Jha, (xi) P.W. 11 is Dr. Pradeep Kr. Sinha, (xii) P.W.12 is Dr. Soban Murmu, (xiii) P.W.13 is Prakash Yadav, i.e. the Child witness. (xiv) P.W. 14 is one Vinod Kumar, Officer-in-Charge, Mahagama Police Station, who has identified the handwriting and signature of S.I. Imanuel Hembrom. 11. The prosecution got following documents as exhibits, which are as follows:- (i) Ext. 1-Signature of witness Shankar Yadav on the inquest report, (ii)Ext. 2 is Signature of Shambhu Yadav on the Fardbayan, (iii)Ext.3 is the signature of the Doctor on the P. M. report, (iv)Ext. 4 is the Post Mortem report, (v) Ext. 5 is the Fardbayan, (vi)Ext. 6 is the endorsement on F.I.R., 6 (vii)Ext.7 is the Formal F.I.R., (viii)Ext. 8 is Carbon Copy of Inquest Report. 12. Thereafter, the appellant was examined under Section 313 Cr.P.C. on 04.05.2006 by the learned Court below and he denied the circumstances put forth before him. 13. Thereafter, the appellant was convicted for the offence under Section 306 of the I.P.C. by the learned 5th Additional Sessions Judge (F.T.C. No.2), Godda although the learned Additional Sessions Judge has acquitted the appellant for the offences under Section 302/34 and 201/34 of the I.P.C. 14. It transpires that during examination of the appellant under Section 313 Cr.P.C. under Section 20.04.2006, he has taken the specific defence that the marriage of deceased Sikma Devi was earlier settled with his elder brother but before solemnization of his marriage, his brother died and hence the deceases Sikma Devi was married to him, but deceased Sikma did not want to live with him. 15. He was further examined under Section 313 Cr.P.C. itself on 04.5.2006 on Ext.5, Ext.6, Ext.7, Ext.8, to which he denied the circumstances put forth before him. 16. It transpires that neither any stone nor any other object was seized as no Seizure report was prepared with regard to the said stone. Thus, the allegation of tying the deceased with the stone or with any other object is not proved and thus, the story of 7 tying the body with stone and rope appears to be an exaggerated one, which is not considered by the learned Court below while convicting the appellant under Section 306 of the I.P.C. 17. P.W.1, who is the Uncle of the deceased lady namely Shankar Prasad Yadav has failed to say the name of the person, who informed him to search the body in the well. 18. P.W.2 is Jaldhar Yadav, who claimed during his evidence that he had accompanied the Informant and others at the time of recovery of dead body. During cross-examination, he stated that no signature of any witness was taken on the place of occurrence. However, police had seized the Gamcha, Rassi etc. 19. P.W.3 is Basudeo Yadav, who is a Hear- say witness and had seen the dead body of the deceased. However, during cross-examination he admitted that he had not seen the rope and clothes tied on the necks and mouth of the deceased. 20. P.W. 4 is Sheru Yadav, who is a hear-say witness and had seen the dead body of the deceased. However, During cross-examination, he stated that at the time of recovery of the dead body of the deceased from the well, no member from the family of the deceased Sikma Devi had arrived and 8 that he had not stated before the Police that both the hands of Sikma Devi were tied and had not stated that neck was tied with rope. he had also not given anything in writing. 21. P.W.5 is Shambhu Yadav, who is the Informant and had supported the prosecution case during his evidence. However, during cross-examination, he claimed that a stone of 40-50 Kg was tied in the neck of the deceased and the mouth was gagged with cloth and hands were tied with Gamcha and a stone was also attached and neck was tied with plastic rope. However,he had denied the suggestion that the deceased did not like the appellant. However, nothing was shown during trial regarding seizure of 40-50 Kg Stone, Plastic Rope-Nylon Rope/Gamcha and Cloth. Thus, the evidence of P.W.5 appears to be exaggerated one. 22. P.W.6 is Anirudh Yadav, who is a hear- say witness and had stated during his cross- examination that he had not seen the occurrence and that he had also not seen that the neck was tied with rope and hands were tied with Gamcha. 23. P.W.7 is Umesh Yadav, who had merely stated about the recovery of dead body of deceased Sikma Devi from the well but had not stated anything against the appellant. However, he admitted during his evidence that the deceased was to be married with the elder brother of Baleshwar Yadav, but later on deceased Sikma Devi was married with Baleshwar 9 Yadav, but she did not like the appellant Baleshwar Yadav. Even during cross-examination, he admitted that although earlier deceased Sikma Devi was to be married with the elder brother of the appellant-Baleshwar Yadav, however, the brother of the appellant-Baleshwar Yadav died before the marriage and later on deceased Sikma Devi was married with appellant Baleshwar and she was not happy with the marriage. He stated that he had also not seen the tied hands and the stone affixed with the body, thus, P.W. 7 has not supported the prosecution case. 24. P.W.8 is Sahab Yadav is also a hear-say witness. He also admitted during his cross- examination that he had not seen the mouth tied with cloth and body tied with stone. He also admitted that marriage of Sikma Devi was earlier fixed with Mukesh, i.e. the elder brother of the Baleshwar Yadav, who had died and thereafter, the deceased was married with the appellant Baleshwar Yadav and hence, she was not happy with the marriage. Thus, P.W.8 has also not supported the prosecution case. 25. P.W. 10 is Doctor Bandevi Jha, who has proved his signature marked as Ext. 3 on the Post Mortem Report. She had not found any abnormality in genitalia and internal genital organs of deceased Sikma Devi. 26. P.W.11 is another Doctor, i.e. Dr. Pradip Kumar Sinha, who was also part of the Medical 10 Board and conducted Post Mortem examination. He proved the Post Mortem report marked as Ext. 4. The cause of death as reported by him was due to Asphyxia. During cross-examination, he stated that no cloth was seen inside the mouth of the deceased and no rope was seen in the neck of the deceased. Both hands were not seen to be tied with any material. There was no injury in the mouth, but froth was coming out of the mouth of the Victim. He also stated that no ligature mark was seen on the neck and no sign of tied hands were found. 27. Thus, from scrutinizing the evidence of P.W.11, it transpires that the prosecution case on the point of tying the body with Stone of 40-50 kg or with 10 kg and hands tied with cloth, mouth gaged with cloth and neck tied with rope were not found. 28. P.W.12 is another Doctor, namely Dr. Soban Murmu, who conducted the post mortem examination of the deceased. She also stated that cause of death is Asphyxia due to drowning. 29. P.W.13 is Prakash Yadav, i.e. a child witness of seven years, who was tested appropriately by the Court before commencing of his evidence as to whether he could answer the questions put to him rationally, however, he had stated whatever stated by P.W. 1 to P.W.4, but his evidence could not be relied upon as he may be tutored and his evidence was 11 contradicted by P.W.7, P.W.8 and P.W.9 and no abnormality has been found during Post Mortem. 30. P.W. 14 is one Vinod Kumar, Officer-in- Charge (S.I), Mahagama Police Station, who has merely proved the Ext.5, Ext.6, Ext.7 and Ext.8 respectively, which were prepared by the Investigating Officer, namely Imanwel Hembrom, Sub-Inspector. During Cross-examination, he admitted that he had not investigated this case at any stage. 31. From scrutinizing the evidence of P.W.14, it is evident that is a formal witness, though he is a police personnel, but was examined only to prove Ext.5, Ext.6, Ext.7 and Ext. 8 respectively. 32. It transpires that the Investigating Officer of this case was not examined and due to which defence could not cross-examine on the point of recovery of materials and also on the point of investigation of this case. 33. It transpires that the deceased committed suicide while she was in her matrimonial home and as such no illegality was committed by the learned Court below while convicting the appellant under Section 306 I.P.C. 34. It transpires from record that the appellant was in jail for a period of 3 years 4 months and 10 days out of the sentence of R.I. for five years imposed upon the appellant by the learned Court below. 12 35. It also appears that the dead body of the deceased was found in a well and there is no eye witness to the occurrence. 36. It appears that P.W.3, P.W.4, P.W.6 and P.W.8, namely Basudeo Yadav, Sheru Yadav, Anirudh Yadav and Sahab Yadav respectively are hearsay witnesses. 37. It appears from the evidence of P.W.5 that her deceased daughter was subjected to abuse in the Satsang and on the very next day the dead body of the deceased was found in a well. P.W. 7 is declared hostile. P.W. 9, namely Robin Sah has also been declared hostile. P.W.10, P.W. 11 and P.W. 12 are Doctors, namely, Dr. Bandevi Jha, Dr. Pradeep Kr. Sinha and Dr. Soban Murmu, who proved post mortem report of the deceased, had stated that no sign of injury was found and viscera was also not preserved for chemical analysis. 38. P.W.13 is one Prakash Yadav, who is a Child witness of 7-8 years and the learned Court below tested him before commencement of his evidence as to whether he could answer rationally the questions put to him. However, the Child witness had stated what had been stated by P.W. 1, P.W.2, P.W.4 and his evidence could not be relied upon as he may be tutored and his evidence was contradicted by P.W.7, P.W.8 and P.W.9 and further the Post Mortem Report also negates the sign of any injury due to torture. 13 39. P.W.14 is Vinod Kumar, S.I.-Officer-in- Charge, Mahgama P.S., who is not the Investigating Officer of this case, but he has proved Ext. 5, i.e. the Fardbayan, Ext. 6, i.e. the endorsement and Ext.7, i.e. the formal F.I.R. and Ext. 8, i.e. Inquest Report, which was in writing and signature of S.I. Immanuel Hembrom. 40. It further transpires that the Investigating Officer of the case has not been examined by the prosecution before the trial Court below. 41. Under the circumstances, conviction of the appellant, namely Baleshwar Yadav, dated 07.6.2007,
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passed by Mr. Mahesh Chander Verma, learned 5th Additional Sessions Judge (F.T.C.No. 2), Godda in Sessions Case No. 107/2004/19/2004 for the offence under Section 306 I.P.C. is upheld, however, the sentence awarded to the appellant, namely Baleshwar Yadav by the learned Court below is modified to the extent that the period undergone by the appellant, namely Baleshwar Yadav in custody shall be the period of sentence. 42. Thus, this Criminal Appeal No. 759 of 2007 is dismissed with the above modification in sentence and the appellant, namely Baleshwar Yadav is discharged from the liability of his bail bonds. 43. Let a copy of this judgment be sent to the Lower Court below and the entire Original Lower Court Record be sent to the learned Court below at once. (Sanjay Prasad, J.) Jharkhand High Court, Ranchi Judgment dated 21st February, 2024 N.A.F.R./s.m.