Research › Search › Judgment

Jharkhand High Court · body

2007 DIGILAW 513 (JHR)

State of Jharkhand v. Baldeo Lakra

2007-06-27

AMARESHWAR SAHAY, D.P.SINGH

body2007
JUDGMENT By Court.-Death Reference NO.1 of 2007 under Section 366 of the Code of Criminal Procedure referred by the Sessions Judge, Hazaribagh and Cr. Appeal No. 455 of 2007 preferred by the appellants Baldeo Lakra and Chando Devi arise from the impugned judgment and order dated 16.3.2007 and 17.3.2007 respectively passed in Sessions Trial No. 276 of 1996 by Sri Amitabh Kumar, Sessions Judge, Hazaribagh, whereby and whereunder appellant no. 1 has been found guilty for the offence under sections 376, 302 and 2011 34 of the Indian Penal Code and appellant no. 2 has been found guilty for the offence under sections 302/34 and 201/34 of the Indian Penal Code and appellant no. 1 has been sentenced to undergo R.I. for life and a fine of Rs. 10,000/- under, section 376 I.P.C. and in default of fine further sentenced to undergo R.I. for one year and under section 302 I.P.C. he has been sentenced to death and a fine of Rs. 50,0001- and R.I. for seven years and fine of Rs. 5,000/- under section 201/34 I.R.C. and in default of fine further sentence for one year and appellant no. 2 has been sentenced to undergo R.I. for life and fine of Rs. 10,000/- under section 302/34 I.RC. and in default of Payment of fine further sentence to undergo R.I. for one year and for offence under section 201/34 I.P.C. sentenced to undergo R.I. for three years and fine of Rs. 1,000/- and in default of payment of fine further sentenced to undergo R.I. for one month and all the sentences to run concurrently. 2. Brief facts leading to the abovementioned Death Reference and Cr. Appeal preferred by the appellants are that in the evening of 26.8.1995 the son of the appellant Baldeo Lakra, namely, Jagdeo Lakra went to the house of the informant and invited her for dinner at their house. According to informant RW. 1, she alongwith her minor daughter Anita and son Birendra reached at the house of the appellant at about 8 p.m. She further asserted that after the children were fed, the appellant Chando Devi put Anita to sleep in another room. Thereafter she took the meal and she was about to leave the place, at this juncture of time Anita was searched and found missing from the room. Thereafter she took the meal and she was about to leave the place, at this juncture of time Anita was searched and found missing from the room. She made frantic search for her missing daughter alongwith witnesses but failed to locate Anita whole night. The dead body of Anita Lakra was found next day in the afternoon at a distance of about 500 yards in the fields of Bhuwan Bhuiyan situated in village Morangi alongwith injuries on various parts of her body. 3. The matter was reported to Mofassil Police Station, Hazaribagh immediately. The police arrived at the field, recorded the statement of P.W. 1, prepared inquest report and sent the dead body for post mortem. The police further investigated the case and finally submitted charge-sheet against the appellants for the offences mentioned above. The trial of the appellants was committed where it was taken up by the Sessions Judge, Hazaribagh after framing of charge on 27.7.2005. The appellants pleaded not guilty and claimed false prosecution. However the learned Sessions Judge, Hazaribagh by the impugned judgment of conviction and order dated 16.3.2007 and 17.3.2007 respectively convicted the appellants and sentenced them as mentioned above. 4. The learned Sessions Judge, Hazaribagh has referred this judgment in terms of Section 366 Cr.P.C. in the last weeks of March, 2007 for confirmation of the sentence passed against the appellant no. 1, Baldeo Lakra. At the same time Cr. Appeal (DB) No. 455 of 2007 was preferred by both the convicts in the last week of April, 2007. Since the matter was for confirmation of Death Sentence, the appeal alongwith the Death Reference has been taken up for hearing on priority basis. 5. The appellants have criticized the conviction mainly on the grounds that there was no direct evidence connecting the appellant Baldeo Lakra and Chando Devi with the charges framed against them. Mr. Anil Kumar learned counsel for the appellants submitted that conviction has been made on mere surmises and conjuctures because in absence of any direct evidence and circumstances indicating their involvement in the alleged offence, the conviction is liable to be set aside. Sri Anil Kumar, learned counsel for the appellants further stressed that in absence of any motive as well as immediate cause of action, the whole prosecution story deserves to be discarded. Sri Anil Kumar, learned counsel for the appellants further stressed that in absence of any motive as well as immediate cause of action, the whole prosecution story deserves to be discarded. It is also stressed that manner in which the informant was invited for dinner and thereafter her daughter found missing, creates a reasonable doubts upon the prosecution version. Sri Kumar further stressed that chain of circumstances are incomplete and have wrongly been used by the learned trial court against the appellants. According to Sri Kumar, when the appellant no. 1 had gone to bring the musical instrument there was no occasion to abduct the deceased and commit rape upon her. It is also submitted that the case does not come within the purview of rarest of rare case to award the sentence of death. 6. We have anxiously considered the submissions made on behalf of the appellants. It is admitted case of the prosecution that in the evening of 26.8.1995 the informant went alongwith her minor daughter and son to the house of the appellant to take dinner. The invitation was given by the son of the appellant but he has not been examined by the prosecution, the story of invitation is therefore confined to the evidence of P.W. 7 Rubain Devi and her daughter P.W. 2 Lalita Lakra. According to them the deceased was taken in the next room by the appellant Chando Devi after she took food where she was put to sleep. However, during this time younger brother of the deceased Birendra Lakra was sitting with his mother. P.W. 1 has added P.W. 7 as one of the person accompanying her at the time of dinner. She further admitted that when Baldeo Lakra returned. they took meal and became ready to move when Anita was found missing. She has been examined further on recall by the prosecution in which she asserted that the dead body of Anita was found in the field of Bhuwan Bhuiyan which apparently showed that she was subjected to rape. However she has admitted during cross-examination that she has got no enmity with the appellants and they treated her properly on the day of occurrence. He further asserted that P.W. 7 Jagdish Oraon was not her family member nor invited to the dinner. However she has admitted during cross-examination that she has got no enmity with the appellants and they treated her properly on the day of occurrence. He further asserted that P.W. 7 Jagdish Oraon was not her family member nor invited to the dinner. She further asserted that after coming back to her house she has informed neighbours regarding missing of Anita who tried to search her during the night. She further admitted that next morning she alongwith one Bindu has gone to Mofassil police station to inform the incident where P.W. 7 arrived and informed her that dead body of Anita has been located. 7. P.W. 2 Lalita Lakra elder daughter of the informant has supported her mother as hearsay witness of the occurrence. She admittedly has not gone to attend the dinner but participated in the search of her sister in the night. She asserted that Baldeo had fled when police arrived at the village. P.W. 3 Birsi Kachap is a neighbour of the informant who is also hearsay witness of the occurrence. P.W. 4 Fulmati Devi is another neighbour of the informant who has tried to search the deceased and admittedly an hearsay witness of the occurrence. P.W. 5, Sadhu Soren Orawn is another neighbour who stated that in the night when they were sleeping the informant arrived at the house and informed weeping that her daughter Anita has been missing. He further asserted that informant has strong doubts against the appellants. He admitted during cross-examination that he was not examined by the police neither he can say whether there was any dispute between the informant and the appellants. 8. Further the prosecution has examined P.W. 7 Jagdish Oraon, P.W. 8 Krishna Toppo husband of P.W. 3 Birsi Kachap and P.W. 9 Gopal Orawn. P.W. 7 Jagdish Oraon asserted that he has participated in the dinner. He further asserted that after food the appellant Baldeo Lakra went to bring musical instrument and returned after one and half hour. According to him, when they became ready to return, Anita was found missing from the house. He further asserted at about 12 noon next day Anita's dead body was found at a distance of 500 yards from Baldeo's house. This witness has for the first time asserted that just two days before this occurrence the appellant has exchange of hot words with the informant. He further asserted at about 12 noon next day Anita's dead body was found at a distance of 500 yards from Baldeo's house. This witness has for the first time asserted that just two days before this occurrence the appellant has exchange of hot words with the informant. He admitted vide para 3 of his cross-examination that police has not recorded his statement. He has not gone to see the dead body. According to him, informant was related with him as sister. P.W. 8 Krishna Toppo is neighbour of the informant and he has found the informant weeping in the night as her daughter was missing. He has supported the informant in details as hearsay witness of the occurrence. He is another brother of the informant who joined in search of the deceased. According to him, the dead body was found in the paddy field with all the injuries. He further admitted during cross-examination that his brother Bindu has gone to police station with the informant and he has given the information to the police. He also admitted vide para 7 that before this occurrence there was no dispute between the parties. He even stated, during the night they have gone to the house of the appellants to enquire about Anita and they continued to search her in the morning. P.W. 9 Gopal Orawn gave another story in his examination-in-chief. According to him, the appellants have requested the informant to help them in paddy planting and she has gone to the house of the appellant with her minor daughter and son. He has stated, in the morning the informant was found weeping and she informed him regarding the incident and missing of Anita whose dead body was recovered from the paddy fields in the afternoon. His statement has been recorded by the police. 9. P.W. 6 Dr. Mahendra Prasad Choudhary has conducted the post mortem on the dead body of Anita and opined that she died because of throttling resulting in asphyxia. He has further confirmed that the child was subjected to rape keeping in view the ruptured vegirial wall and hymen. During cross-examination this witness has been examined at length but nothing has come on record to suggest contrary to his opinion regarding death of the deceased. He has further confirmed that the child was subjected to rape keeping in view the ruptured vegirial wall and hymen. During cross-examination this witness has been examined at length but nothing has come on record to suggest contrary to his opinion regarding death of the deceased. P.W. 10, I.O. Shailendra Mohan Singh has stated that the statement of the informant was recorded at 3.15 p.m. on 27.8.1995 vide Exts.-2 and FIR vide Ext.- 2 and 3. He has proceeded for investigation and arrived at the place of occurrence, the paddy field of Bhuwan Bhuiyan, he prepared the inquest report vide Ext.-5 giving the details of injuries on dead body. He has arrested the appellants same day who were waiting for a Bus on Ranchi-Patna Road. During cross-examination this witness has admitted that he did not record the statement of Bhuwan Bhuiyan, he further admitted that P.W. 5 has asserted that he has seen the appellant throwing the dead body. He did not care to examine the first place of occurrence, house of the appellant in this context neither tried to ascertain whether any dinner has taken place previous evening. According to him P.W. 7 Jagdish Orawn has stated before him that there was some hot exchange of words between the informant and the appellants on dispute for Kara to help in ploughing the fields. He further admitted vide para 32 that at the time when he went to the house of the appellant both of them were present. He has not cared to examine Dilchand Lakra, the husband of the informant. 10. The learned counsel for the appellant, accordingly, submitted that from the evidence available on record it is not clear whether the informant was invited for dinner in the evening of 26.8.1995. It is also submitted that in case the appellants have invited the informant for dinner the question of any dispute between the informant and the appellants does not arise. Mr. Kumar, learned counsel for the appellants further stressed that in case there was any dispute on the question of ploughing of the fields, the informant might not be agreeing for visiting the house of the appellants. Mr. Kumar further submitted that whole prosecution story suffers from incredibility as the informant has stated after food taken by the children, the appellant Chando Devi took the girl in another room and made her to sleep. Mr. Kumar further submitted that whole prosecution story suffers from incredibility as the informant has stated after food taken by the children, the appellant Chando Devi took the girl in another room and made her to sleep. It is submitted that at this juncture no witness has said that the appellant Baldeo was also available in the house. However it has come on record that Baldeo asked the informant and Jagdish to take meal after which he left for bringing musical instrument and returned after one and half hour. Therefore, during this period Anita might be sleeping in the house but no witness has said that they saw her sleeping in the house. Mr. Kumar further submitted that during this period of one and half hour carrying the child away, committing rape upon her and then throwing the dead body in the paddy field is not possible. 11. We have gone through the impugned judgment; the learned trial court has considered these contradictions in the statement of the witnesses discussed above vide paras 23 and 24 of the judgment. The learned trial court has relied upon the statement of P.W. 1 and 2 that in the evening of 26.8.1995 she went there on being invited to participate in the dinner where her daughter deceased Anita was taken to sleep in another room after the food. According to learned trial court the evidence brought before it was that thereafter when P.W.,1 prepared to return back Anita was found missing and the appellants could not explain under what circumstances she was not found in the room. The learned trial court has further accepted the prosecution versions that during this time the appellant Baldeo has gone out of the house for more than one hour supported by P.W. 8. He further re lied upon P.W 7 that he alongwith PW 1 has gone to the house of the appellants to take dinner. The learned court below has further relied upon the assertions of PWs. 7, 8 and 9 who have participated in the search of the deceased in the night and on the version of P.W 10 that he was informed by PW 5 that he has seen the appellant throwing the dead body of the deceased. The learned court below has further relied upon the assertions of PWs. 7, 8 and 9 who have participated in the search of the deceased in the night and on the version of P.W 10 that he was informed by PW 5 that he has seen the appellant throwing the dead body of the deceased. P.W 5 Sadhu Soren Orawn has not asserted this fact before the trial court in his evidence rather he asserted that he was not examined by the police. We further found that learned trial court has relied upon the assertions that two days prior to this occurrence there was some dispute regarding taking help of Kara between the informant and the appellants and he has threatened her. Further, we do not find any whisper of such exchange of hot words by the informant rather she admitted that the relation was cordial and she has accepted the invitation for taking food on being extended by the son of the appellant in the evening. 12. We further find that 1.0. of this case has not conducted the investigation properly, his statement discussed by the learned trial court in para 24 mentions that though he found the dead body lying in the paddy field he did not try to ascertain actual place of occurrence where the offence has been committed. The observation of the I.O. that the paddy field has got trampled in a open field but the dead body remain unnoticed for more than six hours after the sunrise while the prosecution witnesses asserted that they were searching her. This place of occurrence is admittedly within 500 meters from the house of the appellant and in a village situated near the house of the informant. If the prosecution is totally believed, nearly 20 persons were searching the girl but no one could locate her body till noon of 26.8.1995. The I.O. has not taken care to examine the field owner Bhuwan Bhuiyan nor he asserted as to whether any foot mark or dragging mark were available from the house of the appellant to the field. The post mortem report proved as Ext.-1 mentions that time elapsed since death within 72 hours. PW 6 has stated before the trial court time elapsed since death in between 36 hours to 72 hours. The post mortem report proved as Ext.-1 mentions that time elapsed since death within 72 hours. PW 6 has stated before the trial court time elapsed since death in between 36 hours to 72 hours. However when we go through the post mortem report minutely it appears that post mortem was conducted at about 2 p.m. on 28.8.1995, the alleged offence as brought before the trial court is that Anita was found missing after 8 p.m. in the evening of 26.8.1995. The rigor mortis were absent and several ante mortem injuries available on the dead body. If the prosecution story is accepted the death might have occurred between 8 to 10 p.m. in the night of 26.8.1995. If we further believe the prosecution story that search was being made throughout the night in the village and nearby but surprisingly nobody could locate the dead body till 12 noon next day. This fact does not appear to be probable. All the circumstances have not been explained by the prosecution nor interlinked with the missing of Anita from the house of the appellant. P.W 5 Sadhu Soren has not been found trustworthy as he has changed his versions before the trial court. He specifically admitted during cross-examination that he has no idea what facts were reported by P.W 1 to the police. He specifically admitted in para 7 that his statement was not recorded by the I.O. at the spot nor at the police station. In para 8 he stated that he was on leave and he did not visit the place of occurrence from where the dead body was recovered. 13. Thus, we find that the prosecution depends upon the sole statement of P.W 1 but she has admitted in her cross-examination that she was not able to see the door of the room where Anita was sleeping. She has not asserted anywhere before the police or at the time of trial that Baldeo was seen going inside the room or leaving the room before her departure. The conduct of the informant by not informing her husband immediately afterwards regarding the missing of Anita has remained unexplained. P.W.. 5 Sadhu Soren Orawn, P.W. 7 Jagdish Orawn, P.W. 8 Krishna Toppo and pw. 9 Gopal Orawn have given different versions. The conduct of the informant by not informing her husband immediately afterwards regarding the missing of Anita has remained unexplained. P.W.. 5 Sadhu Soren Orawn, P.W. 7 Jagdish Orawn, P.W. 8 Krishna Toppo and pw. 9 Gopal Orawn have given different versions. Except P.W. 7 they are admittedly hearsay witness of the occurrence but they are inconsistent regarding search of Anita in the night and later on during the morning of 27.8.1995. It is true that the dead body of Anita was found in paddy field in the noon of 27.8.1995 and she has got ante mortem injuries suggesting sexual assault etc. but still the prosecution has to prove the circumstances in which Baldeo Lakra may be held responsible for these offence. The evidence of PWs. that during the night Baldeo Lakra was found by them inside the house and during the morning also he was present when search was going on for the deceased. The I.O. of this case has admitted vide para 32 that he went in the village and arrived at the house of the appellants where both of them were present. The story of dispute regarding "Kara" for ploughing has been brought on record not by the informant but by P.W. 7 who in cross-examination he said that he was not even examined by the police. Furthermore even if there was any dispute regarding Kara etc. two days prior to this occurrence it may not be sufficient to cause death of the daughter of the informant. It is doubtful in such circumstance where hot exchange of words taken place only two days before the occurrence she might be ready to go to the house of the appellant with her minor daughter and son to participate in the dinner. 14. When we went through the statement of the appellant recorded by the trial court under section 313 Cr.PC., we find that those facts and circumstances have not been put to the appellants by the trial court. 14. When we went through the statement of the appellant recorded by the trial court under section 313 Cr.PC., we find that those facts and circumstances have not been put to the appellants by the trial court. The genesis of the occurrence that there was some dispute and exchange of hot words two days prior to the occurrence and further that in the evening of 26.8.1995 the informant has gone to the house of the appellant to participate in a dinner where her daughter was put to sleep in another room after which she was missing till her dead body was found next day has not been put to the appellants. This is a vital lacuna in conducting the trial by the learned trial court. In view of the facts that the appellants were not put all these relevant facts under section 313 Cr.PC. the trial suffers from serious lacuna. We further find that no circumstance except the visit of the informant for dinner in the night of 26.8.1995 has been brought on record to connect the appellants with the alleged offence. 15. In the facts and circumstances discussed above, we find that the prosecution in the present case has not been able to prove beyond reasonable doubts the guilt of the appellants in committing the offence charged against them. Accordingly, we find that the present appeal has got merit in it and deserves to be allowed. Cr. Appeal No. 455 of 2007 is accordingly allowed. 16. The conviction and sentence passed by the Sessions Judge, Hazaribagh against convict-appellant (Baldeo Lakra) for the offences under sections 376, 302 and 201/34 I.PC. and appellant Chando Devi for the offence under, sections 302/34 and 201/34 I.PC. in S.T. No. 276 of 1996 are hereby set aside. In the result, Death Reference No.1 of 2007 is answered in negative. The appellants are in custody. They are released forthwith if not wanted in any other case.