) ------ Krishna Bodra, son of Marda Bodra, resident of village & PO- Chacha v. The State of Jharkhand
Case Details
-1- IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Cr. Appeal (DB) No. 228 of 2021 ------ (Arising out of the judgment of conviction and the order of sentence, both dated, 29.02.2020 passed by the learned Additional Sessions Judge-III, West Singhbhum at Chaibasa in Sessions Trial case no. 54 of 2013) ------ Krishna Bodra, son of Marda Bodra, resident of village & PO- Chacha, PS- Chaibasa (Muffasil), District- West Singhbhum (Jharkhand) … … Appellant Versus The State of Jharkhand … … Respondent ------- PRESENT HON’BLE MR. JUSTICE RATNAKER BHENGRA HON’BLE MR. JUSTICE AMBUJ NATH ------ For the Appellant For the State : Ms. Swati Shalini, Amicus : Mr. Saket Kumar, APP ------ Reserved on: 10.01.2024 Pronounced on 20.02.2024 ------ Heard learned counsel for the appellant and the learned counsel for the State. 2. The appellant has filed this appeal against the judgment of conviction and the order of sentence, both dated, 29.02.2020 passed by the learned Additional Sessions Judge-III, West Singhbhum at Chaibasa, in Sessions Trial No. 54 of 2013,
Legal Reasoning
arising out of Sadar (Chaibasa) PS Case No. 45 of 2012 (GR case No. 315 of 2012) holding the appellant guilty for the offence under section 302 of the Indian Penal Code and sentenced him to undergo RI for life and fine of Rs. 5000/- with default stipulation of SI for three months. 3. The prosecution case as per written report dated 11.07.2012 of the informant PW-2 Saket Bihari Singh, Jail Superintendent, Chaibasa, is that on 11.7.2012 at 09:40 a.m. at District Jail, Chaibasa, under-trial prisoner Ramai Dongo of village Kudabera, who was facing trial in ST No. 195 of 2011, GR No. 261 of 2011, Hatgamharia PS Case No. 16 of 2011 under section 376 IPC along with under trial-prisoners Vijay Bansingh, Lalban Singh and Tippu Dorai were sitting and eating in their separate plates in between Control Room and peepal tree. In the meantime appellant Krishna Bodra came from behind and attacked with a dry wood over Ramai Dongo.Vijay Bansingh also sustained minor injuries in course of intervention. Stampede took place and after blowing alarm, injured -2- Ramai Dongo was taken to Sadar Hospital, Chaibsa where he was declared dead. 4. On the basis of the written report, Sadar PS case no. 45 of 2012 dated 11.07.2012 was registered under section 302 IPC against the appellant. After investigation, charge-sheet was submitted and cognizance of the offence was taken and the case was committed to the Court of Sessions. Charge was framed against the appellant under section 302 IPC and trial was held. At the conclusion of trial, appellant was convicted and sentenced as aforesaid, hence, this appeal. 5. In order to prove its case, the prosecution had examined altogether five witnesses out of whom PW-1 is Tippu Dorai; PW-2 is Saket Bihari Singh, Superintendent of Jail, Chaibasa and the informant of the case; PW-3 is Bhagwan Ram; PW-4 is Dr. Md. Gheyasuddin and PW-5 is Vijay Bansingh. 6. P.W.1 Tippu Dorai, an under trial-prisoner has stated in his evidence that occurrence took place on 11th July, 2012 at 09:30 a.m., at that time he was strolling in the jail. Suddenly, occurrence took place and one under trial-prisoner Ramai Dongo died. PW-1 further stated that he did not see, who had killed him but he had heard that Krishna Bodra killed him. 7. PW-2 is Saket Bihari Singh, Superintendent of Jail, Chaibasa, and the informant of the case. Informant has stated in his evidence that on the day of occurrence on 11.07.2012, he was posted as Jailor at Chaibasa Jail. At about 9.40 a.m. in the morning all the prisoners were eating in the field out of which Ramai Dongo along with other prisoners Vijay Bansingh, Lalban Singh and Tippu Dorai were sitting and eating near Control Room under a peepal tree. In the meantime, accused Krishna Bodra, assaulted Ramai Dongo, with a stick from behind on his head. Vijay Bansingh intervened but, he also sustained injury and after the incident stampede had taken place. Injured Ramai Dongo was taken to Sadar Hospital Chaibasa, were he was declared dead. Informant has proved the written report which was marked as Ext.-1. 8. PW-3 is Bhagwan Ram, then Uchch Kachhpal of the District Jail, Chaibasa. PW-3 has stated in his evidence that occurrence took place on 11.7.2013 at 9:40 a.m. in between control room and peepal tree where under trial-prisoners Ramai Dongo , Vijay Bansingh, Lalban Singh and Tippu Dorai were eating in their separate plates. Suddenly the accused-appellant came there from behind and attacked with dry wood on the head of Ramai Dongo, as a result of which Ramai Dongo was injured, and was brought to Sadar Hospital, Chaibasa where he was declared dead. Police had seized crust of the blood-stained earth and two pieces of blood-stained wood branch from the place of occurrence in presence of him and -3- prepared seizure list upon which he had put his signature, marked as Ext. 2/1. In his cross-examination PW-3 deposed that he had not seen the occurrence. 9. PW-4 is Dr. Md.Ghayasuddin and he had conducted postmortem on the the dead body of the deceased. Doctor had found the following injuries on the person of Ramai Dongo: External Injuries: (i) Lacerated wound at forehand 3” x 1” x deep bone, bone fractured, blood clot present. (ii) Lacerated wound at the back of neck 6” below occipital point horizontal 2 and ½” x 1” x 1” x deep bone, blood clot present, (iii) lacerated wound at right shoulder 2 and ½” x 1”x deep to bone, bone fractured, (iv) lacerated wound at right angle of mouth and lower lip1” x ½ “x deep to muscle. Internal Finding: On dissection: Brain matter haemorrhagic spot present, Heart: both chambers empty, Lung pale, Liver spleen and Kidney pale and intact, Stomach contained undigested food about 203 bladder empty. Cause of death: Haemorrhage and shock due to above injuries caused by hard and blunt substances having edge. Doctor has proved the Postmortem report which was marked as Ext.-3. 10. PW-5 Vijay Bansingh is an another under-trial prisoner. PW-5 in his evidence has stated that on the date of occurrence on 11.7.2012 in the morning, he along with Ramai Dongo, Lal Bansingh and Tippu Dorai were eating near the peepal tree. In the meantime, Krishna Bodra came and attacked heavily upon Ramai Dongo from the dry wood branch of pomegranate tree. Ramai Dongo fell down, thereafter, again Krishna Bodra assaulted him on his forehead and again third time he assaulted him under the forehead as a result Ramai Dongo became fainted and stampede took place. Thereafter, Jail Superintendent came there and sent Ramai Dongo for treatment to Sadar Hospital, Chaibasa and during course of treatment, he died. In his cross-examination, PW-5 stated that on the date of occurrence other persons were also eating including him. At the time of occurrence, he along with Ramai Dongo, Lal Bansingh and Tippu Dorai etc. were present. When occurrence took place, meal was being distributed and there was crowd. He had seen the act of assault and when he intervened, he also sustained injury. 11. The learned amicus has submitted that the learned court below has failed to take into consideration that all the witnesses except PW-5 have fairly stated in their cross-examination that they have not seen the occurrence. The learned court below has also failed to take into consideration that PW-1 Tippu -4- Dorai, an under-trial prisoner, has stated that he was strolling in the jail and he did not see the appellant assaulting the deceased. The learned court below has also failed to consider that PW-5 Vijay Bansingh has stated that he and others were eating and Ramai Dongo and Lal Bansingh and Tippu Dorai etc. were present on the place of occurrence and at the time of occurrence meal was being distributed, therefore, there was a crowd. Hence, PW-5 might have also not seen the occurrence of alleged assault. Amicus further submitted that death cannot be caused by beating with a branch of pomegranate tree, since branches are not tough and sturdy and is doubtful that it will be found in prison campus. Even so, learned trial court has failed to take into consideration that from the S.F.S.L report it has been found that there is blood found on the earth and pomegranate branch is the same, however, it has not been corroborated that the blood present on the branch of the pomegranate tree and on the earth is of the deceased. The doctor has clearly opined that the said injuries might be caused due to fall from height and there was contradictions in the medical and ocular evidences. Amicus has further submitted that seized articles have not been produced before the learned Court for identification and the prosecution witnesses have stated that the seized articles were not present before the learned Court. The Investigating Officer of the case has not been examined who could have given a true light on the entire prosecution story, as a result of which, the case of the defence has been prejudicially affected. Learned amicus has relied on the judgment of Shishpal alias Shishu versus State (NCT of Delhi) reported in (2022)9 SCC 782, delivered by the Hon’ble Apex Court and referred to paragraph-8 of this judgment. Amicus lastly submitted that the learned court below has convicted the appellant on the ground of presumption which is not sustainable under the law and therefore the entire conviction of the appellant is ill-founded. 12. The learned counsel for the State has opposed the appeal and submitted that PW-5 has fully supported the prosecution case and nothing has come in his cross-examination by which it can be presumed that he had not seen the occurrence. Moreover, the crust and branch of pomegranate tree have been seized by the I.O. and had been sent to SFSL for test and in the report it has come that the blood which has been found on the earth and on the branch of pomegranate tree are same. Hence, the question of falling from height does not arise and PW-5 has fully supported the prosecution case and there is no question arising about his veracity. Moreover, PW-2 who is the informant of this case has indicated the motive behind the murder of Ramai Dongo by the appellant Krishna Bodra in para- -5- 3 of his evidence that the appellant is the accused for murder of the friend of Ramai Dongo and he has apprehension that after releasing from jail Ramai Dongo will take revenge and will finish his family. Hence, the appellant does not deserve to be acquitted. 13.
Legal Reasoning
We have heard learned counsel for the appellant and learned counsel for the state and also gone through the facts and evidences of the case. The prosecution case is that the appellant Krishna Bodra and the deceased Ramai Dongo, were under trial-prisoners and appellant Krishna Bodra had killed the deceased in the jail premise itself by assaulting the deceased by a wooden stick. In this case PW-5 Vijay Ban singh, who is also an under trial prisoner, is a material witness. PW-5 has stated in his evidence that on 11.7.2012 in the morning, he along with Ramai Dongo (deceased), Lal Bansingh and Tippu Dorai were sitting near the peepal tree and eating. In the meantime, appellant Krishna Bodra came there and attacked heavily upon Ramai Dongo with the dry wood branch of pomegranate tree as a result of which Ramai Dongo fell down. Thereafter, again appellant Krishna Bodra assaulted Ramai Dongo on his forehead and again third time appellant assaulted him under the forehead as a result Ramai Dongo became unconscious. 14. Doctor PW-4 had found external injuries on the person of the deceased-(i) Lacerated wound at forehand 3” x 1” x deep bone, bone fractured, blood clot present. (ii) Lacerated wound at the back of neck 6” below occipital point horizontal 2 and ½” x 1” x 1” x deep bone, blood clot present, (iii) lacerated wound at right shoulder 2 and ½” x 1”x deep to bone, bone fractured, (iv) lacerated wound at right angle of mouth and lower lip1” x ½ “x deep to muscle. Hence, the accounts of ocular evidence given by the eyewitness PW-5 Vijay Bansingh is corroborated by the medical evidence of the doctor. Three repeated stick blows were given on the person of the deceased, by the appellant, one after the other, leading to the death of the deceased, so, appellant had clear cut intention to kill the deceased. The judgement of Shishpal (supra), relied on by the learned amicus is not applicable in the facts and circumstances of the case in hand due to the concrete ocular evidence of the eye witness of the case PW-5 Vijay Bansingh .The defence of the appellant that appellant was prejudiced due to the non-examination of the investigating officer is not tenable due to the concrete evidence of the eye witness PW-5 and the medical evidence of the doctor PW-4. Hence, charge against the appellant under section 302 of IPC is proved. 15. Accordingly, the impugned judgment of conviction and the order of -6- sentence, both dated 29.02.2020 passed by the learned Additional Sessions Judge- III, West Singhbhum at Chaibasa, in Sessions Trial No. 54 of 2013, arising out of Sadar (Chaibasa) PS Case No. 45 of 2012 (GR case No. 315 of 2012) are hereby sustained and upheld. 16. 17. Pending Interlocutory Application, if any, stands disposed. We appreciate the services rendered by Ms. Swati Shalini, the learned Amicus. The Member Secretary, JHALSA, shall pay the remuneration to the Amicus Mrs. Swati Shalini, as per rules. 18. Accordingly, this criminal appeal is dismissed. KNR/- (Ratnaker Bhengra, J.) (Ambuj Nath, J.)