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2012 DIGILAW 1203 (PAT)

Amarnath Jha v. State of Bihar

2012-08-28

SHEEMA ALI KHAN

body2012
JUDGMENT (ORAL) S.A. Khan, J. The appellants have been held guilty for an offence under Section 304, Part-II/34 of the Indian Penal Code and convicted to undergo R.I. for 10 years by the 3rd Additional Sessions Judge, Darbhanga in Sessions Trial No. 95 of 1990. 2. The prosecution case has been instituted on a written report of Sitaram Jha, father of the deceased Jitendra Jha at about 9.30 p.m. for an occurrence which took place at 7 a.m. in the morning. According to the narration in the First Information Report it is said that Jitendra Jha suffered from epilepsy and was treated by several persons. His cousin Amarnath Jha who was a Pandit and alleged exorcist undertook to treat him and for that purpose took him to his house and kept him for three months. It is alleged that about 7 a.m. on 2.5.1990 Amarnath Jha was treating him by putting his feet on the neck of Jitendra Jha whereas appellant Sripati Jha was holding his hands. He was reciting a prayer (jaap) while treating him. It is also alleged that Jitendra Jha was only allowed to have one meal a day as a result of which he became weak although the food was provided by the mother of the deceased. Finally when Amarnath Jha removed his feet from the neck of the informant he died. Thereafter he told the informant that he would revive him within 24 hours. The informant came to learn about the occurrence through Mahavir Yadav, a co-villager who was sent to Motihari to call the informant after which he has lodged the First Information Report. 3. The defence version as suggested and narrated by the independent witnesses i.e. PWs 2 and 3 is that Jitendra Jha was suffering from epilepsy since the age of 14. Whenever he got an attack the villagers would use home remedies such as making him smell shoes to revive him. It is said that on the date of occurrence Jitendra Jha got an attack. The villagers tried to handle him and caught hold of his hand feet and head to make him steady and revive him but could not succeed finally they took him to the house of Amarnath Jha. It is said that on the date of occurrence Jitendra Jha got an attack. The villagers tried to handle him and caught hold of his hand feet and head to make him steady and revive him but could not succeed finally they took him to the house of Amarnath Jha. It is specifically stated that when he was brought to the house of Amarnath Jha he refused to interfere and told him that Jitendra Jha had already died and as such the defence case is that he was brought dead to the house of Amarnath Jha and no such occurrence took place in the house of Amarnath Jha. 4. Altogether 9 witnesses have been examined in this case. PW 1 has been declared hostile. PW 9 is the doctor and PW 10 is the Investigating Officer of this case. I may mention here that although the trial Court has recorded in the judgment that PWs 2 and 3 are hostile the records do not indicate that they were declared hostile by the prosecution. Two eye-witnesses are the mother and the brother of the deceased who were supposedly present at the time Jitendra was receiving treatment from Amarnath Jha. 5. The points raised in this case are that the whole case is false and fabricated and Jitendra Jha was not living with Amarnath Jha for the past 3 months and that he was brought dead to the house of Amarnath Jha for treatment. It is argued that even if the case of the appellants is accepted as sacrosanct the circumstances surrounding the facts would indicate that the appellants had no intention or knowledge that Jitendra Jha would die because of some Mantras recited by Amarnah Jha. 6. PW 2 is the witness to the inquest report and has proved the inquest. In his cross-examination he has stated that he was taking tea on the morning of the occurrence in a tea shop when he heard sound of voices saying that Jitendra Jha has got an attack of epilepsy. When he reached the spot he found that several persons were present and they were trying to control Jitendra Jha. They tried to make him steady and held his head in the process. He was resisting and throwing/jerking his head due to the attack. Finally they took him to the house of Amarnath Jha. When they reached the house of Amarnath Jha. They tried to make him steady and held his head in the process. He was resisting and throwing/jerking his head due to the attack. Finally they took him to the house of Amarnath Jha. When they reached the house of Amarnath Jha. Amarnath Jha told them that they had come too late as Jitendra Jha has already died. When the villagers wanted to remove the dead body from the house of Amarnath Jha then it is said that he stated that the body should be removed after his cousin Sitaram Jha arrives. Learned counsel for the appellants submits that PW 2 has given the true version of the occurrence and as such this Court should reject the version which has come after a delay of more than 12 hours. 7. PW 3. Mukesh Pandey has stated that he was not present in the village when the occurrence took place. He accepts the fact that Jitendra Jha suffered from epilepsy and that each time at least four persons were required to control him and he would only recover after home remedies were applied to revive him. 8. PW 4 is a witness on the limited point that he was the person who informed Sitaram Jha the father of the deceased regarding the occurrence. He has stated that Sitaram Jha's wife asked him to inform her husband at Motihari that his son had died. Learned counsel points out that the statement of this witness is important to indicate, that at the time when she sent the information to her husband, she had not stated that the son had been killed, rather she had stated that he had died which indicates that infact no untoward occurrence had taken place which had caused the death of Jitendra Jha. 9. PW 5 is a formal witness who has proved the handwriting of the Officer Incharge of the Police Station. 10. PW 6, Bindeshwari Devi is the mother of the deceased. In her chief she has supported the case of the prosecution by stating that her son Jitendra Jha was under treatment of Amarnath Jha since three months. After three months when she went to bring her son back. Amarnath Jha refused to allow her to take her son back on the ground that Jitendra was not fully cured and he required nine days more to complete his treatment. After three months when she went to bring her son back. Amarnath Jha refused to allow her to take her son back on the ground that Jitendra was not fully cured and he required nine days more to complete his treatment. On the date of occurrence, according to this witness the appellant No. 1 has put his leg on the neck ^^mlds xnZu ij ykr j[kdj vejukFk cSBs FksA^^ and the appellant No. 2 had caught hold pf his hands while sitting by his side. As soon as he removed his leg, Jitendra Jha died. Thereafter, PW 6 asked Amarnath Jha to release the body. Amarnath Jha is said to have told her that the boy had not died rather he would revive by the evening. The highlights of the cross-examination are that according to her she used to visit her son every day during the period that he was supposedly living with Amarnath Jha. She has stated that her son had epilepsy since the age of 14. She has also stated that a number of persons had gathered there. She clearly states that she did not inform the daroga regarding the occurrence and it was only when the daroga came to her house that her' husband instituted the case. She has further stated that none of the villagers had come to her house after the death of her son nor had she asked anyone to remain with the body of the deceased during the entire day. I will comment on the evidence of PW 6 after discussing the evidence of PW 7. 11. PW 7, the father of the deceased Sitaram Jha has stated that he came to know that his son had died through PW 4. He has admitted that he is a teacher and is posted in difference place. He used to visit his family once a month and he last visited his son at Amarnath Jha's house on 24.4.1990. According to this witness, Amarnath Jha had refused to release his son as his treatment was not complete. He is a hearsay witness with respect to the occurrence. However, he supports the case made out in the First Information Report in his chief. According to this witness he went to ask for the body of his son which Amarnath Jha refused to release and thereafter he went to the police station to give his written statement. He is a hearsay witness with respect to the occurrence. However, he supports the case made out in the First Information Report in his chief. According to this witness he went to ask for the body of his son which Amarnath Jha refused to release and thereafter he went to the police station to give his written statement. At paragraph 18 PW 7 has disclosed that he was treating his son for epilepsy since 1989 and had visited several doctors in course of his treatment. Attention of this witness was drawn to the statement made under Section 161 of the Code of Criminal Procedure and the First Information Report. He claims that he does not remember whether he had stated that his son suffers from epilepsy or not. He has also declared that Amarnath Jha had told him that he is not suffering from any sort of physical ailment rather the boy is possessed by an unclean spirit and that is why he behaves in such a manner. This statement is said to have been made in the First Information Report. 12. PW 8 who has disclosed his age as 28 years on 19.9.1997 is the brother of the deceased. He supports the version of the occurrence as made out in the First Information Report. This witness states that he has passed Master of Arts in Sanskrit in the year 1990-92. According to him Amarnath Jha has cured a few persons by doing ^^tki^^ although he does not recall the names of the persons that were cured. In his cross-examination he says that he had not left anybody to take care of the body in the house of Amarnath Jha and that the Investigating Officer did not come to see the body of Jitendra Jha before lodging of the First Information Report. Attention of this witness has been drawn to the statement made under Section 161 of the Code of Criminal Procedure. According to this witness he had stated that Amarnath Jha told him that Jitendra did not suffer from any physical ailment rather he was "possessed" and as such he should be cured by performing "puja". Surprisingly this witness states that the body was taken to the police station by appellant No. 2 and two other persons. At the time when the body was being taken to the police station, both these appellants were present in their house. 13. Surprisingly this witness states that the body was taken to the police station by appellant No. 2 and two other persons. At the time when the body was being taken to the police station, both these appellants were present in their house. 13. PW 10 is the Investigating Officer of this case. According to the Investigating Officer he had arrested the accused on 3.5.1990 i.e. on the date of the occurrence. When he visited the place of occurrence he did not find any sign of struggle nor did he see any clothes hanging at the place of occurrence. Attention of the Investigating Officer has been drawn to the statement of Bindeshwari Devi under Section 161 of the Code of Criminal Procedure. She has supposedly stated before the Investigating Officer that her son was being treated by Amarnath Jha 2-3 months prior to the occurrence. According to the Investigating Officer this witness had not stated before him that after the period of 90 days was over, Amamath Jha had asked her to let Jitendra Jha remain with him for another 9 days, Sitaram Jha had stated before him that his son was suffering from epilepsy and had not stated that he was suffering from shivers ^^FkjFkjkgV** Similarly it is said that Ramanath Jha had not stated before him that the deceased was being treated for epilepsy nor had he stated that Amarnath Jha had said that he did not suffer from epilepsy rather he was possessed by a bad spirit. Ramanath Jha, the brother of the deceased had also not disclosed before the Investigating Officer that Jitendra Jha was living with Amarnath Jha for the past few months nor had he stated that Amarnath Jha had undertaken to treat Jitendra Jha. 14. Lastly the Court will refer to the evidence of the doctor PW 9. The doctor has found two bruises on the right side of the neck just below the thyroid cartilage. The vein of the neck was standing out and the muces of larynx and trachea was congested and contained frothy blood. The cause of death has been recorded as asphyxia and shock as a result of throttling. In his cross-examination the doctor states that "such bruises are normally simple in nature. In some cases of epilepsy the patient may die of asphyxia irrespective of any external injury. The cause of death has been recorded as asphyxia and shock as a result of throttling. In his cross-examination the doctor states that "such bruises are normally simple in nature. In some cases of epilepsy the patient may die of asphyxia irrespective of any external injury. I cannot say whether the bruises found by him over the neck can be produced by maneuvering in the case of epilepsy by the hands of an untrained person. There was no injury on the other side of the neck". The doctor has not given the distance between the two bruises that he found on the same side of the neck. 15. On perusal of the evidence aforesaid it would appear that the prosecution version of the case is that Jitendra Jha was receiving treatment for the past 90 days and was living in the house of Amarnath Jha. On date of occurrence Amamath Jha was supposedly treating him by putting his leg on the neck of the deceased and the deceased died as soon as the leg was removed. The words used are that he has put his ^^ykr^^ . In a case where the person is sitting and he puts his leg over the neck it would mean that the weight of the leg would be on other parts of the body as well. It cannot be said that there would be no other injury on the body of the deceased if the weight of the leg is on the body of a person. The said bruises on the neck are on the one of the side of the neck which indicates that the death obviously has not taken place by throttling or strangulation. In a case of strangulation the bruise would normally be found on both sides of the neck. The medical evidence• indicating a bruise on one side of the neck does not lead this Court to conclude that a pressure on the neck at a single place would lead to strangulation. It may be noted that the mother and brother were both present when this exercise was taking place. It cannot be believed that they would allow Jitendra Jha to be subjected to this manner of cruelty. No resistance was made by both the mother and son. It may be noted that the mother and brother were both present when this exercise was taking place. It cannot be believed that they would allow Jitendra Jha to be subjected to this manner of cruelty. No resistance was made by both the mother and son. Infact according to them other people were also present who did not raise any sort of resistance to this alleged behaviour of Amarnath Jha. 16. The case that Jitendra Jha was living with Amarnath Jha is not supported by any independent witnesses. Infact the son of the informant PW 8 has not stated before the Investigating Officer that Jitendra Jha was living with the appellant No. 1 for the past 90 days. It is specific case that 50 or 100 persons were present at the place of occurrence and no one of them raised a protest or tried to save the deceased. The fact that the appellant No. 1 did not allow the body of Jitendra Jha to be removed from his house and has stated that it could be received after his cousin comes to the village indicates that there could not have been any foul play as nobody in their right senses would insist that body should remain in the house if they had committed any act which would raise a suspicion against them. The evidence of the mother that she allowed the body to remain there and that she did not leave anybody during that period of time with the body or that she did not inform the daroga regarding the manner of the death indicates that there was no foul play involved in the death of Jitendra Jha. According to this witness not a single person came to her house from 7 to 9.30 in the evening although she had lost her son and it is a normal behaviour in a village that everybody comes to commensurate with the bereaved family. Another factor which goes in favour of the appellants is that the mother and brother did not take any steps to inform the police station regarding the occurrence, so much so that even the villagers did not think it necessary to inform the daroga regarding the occurrence. The Investigating Officer did not find anything untoward at the place of occurrence. Another factor which goes in favour of the appellants is that the mother and brother did not take any steps to inform the police station regarding the occurrence, so much so that even the villagers did not think it necessary to inform the daroga regarding the occurrence. The Investigating Officer did not find anything untoward at the place of occurrence. He did not find any sign of struggles or any sign which would indicate that Jitendra Jha was living in the house of Amarnath Jha. His clothes were not found at the place of occurrence nor were any wet clothes found at the place of occurrence as it is specific case of the prosecution that Jitendra Jha was given a bath before the so called treatment commenced. All these facts together create a doubt regarding the version of the prosecution case. It has been submitted on behalf of the counsel for the appellants that the prosecution version has not been able to show that there was any intention or knowledge that the so called treatment meted out to the deceased would cause his death and as such Section 304, Part-II would not be applicable in this case. In order to prove an offence under Section 304, Part-II it should be shown that even though there was no intention to cause the death, there should be a knowledge that the act would likely to cause the death. The prosecution has not been able to show that the appellants had knowledge the treatment which was reciting "Mantras' would cause the death of Jitendra Jha. It has also been argued that the defence version is more probable version of the occurrence. According to the defence when the deceased had and epilepsy attack he was being handled by several persons who were trying to control him and in that process he may have received bruises on his neck as the villagers were trying to hold his head at the time when he got the attack. After they had failed they carried him to the house of Amarnath Jha who declared him dead on arrival. This Court finds that perhaps it would not be possible to accept the defence version completely but it does seem probable that Jitendra Jha was taken for treatment to the house of Amarnath Jha and he died before he could be treated. This Court finds that perhaps it would not be possible to accept the defence version completely but it does seem probable that Jitendra Jha was taken for treatment to the house of Amarnath Jha and he died before he could be treated. The delay in lodging the First Information Report creates a doubt as if the death was abnormal the first reaction of the mother and brother who were major would be to inform the police regarding the occurrence. 17. For the reasons aforesaid the judgment of conviction dated 19.2.2000 and order of sentence dated 21.2.2000 passed in Sessions Trial No. 95 of 1990 by the 3rd Additional Sessions Judge. Darbhanga is set aside. The appellants are acquitted of the charges levelled against them and they are also discharged from the liabilities of their bail bonds furnished earlier in this case. 18. This appeal is allowed. Appeal allowed.