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2016 DIGILAW 402 (JHR)

Ganga Singh v. State of Jharkhand

2016-03-02

D.N.UPADHYAY, RATNAKER BHENGRA

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JUDGMENT : 1. By Court : These Criminal Appeals have been directed against the judgment of conviction and order of sentence dated 25th February, 2004 and 26th February, 2004 respectively, passed by 5th Additional Sessions Judge, Fast Track Court No.2 Godda in connection with Sessions Case nos. 46 of 2002/78 of 2002 corresponding to G.R. Case no. 1115 of 2001, arising out of Poraiyahat P.S. Case no. 154 of 2001, whereby the appellants namely Jagdeo Singh, Badami Devi and Basuki Singh in Cr. Appeal No. 846 of 2004 have been held guilty for the offence punishable under section 302/34 and 201/34 Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 5,000/- each and in default of payment of fine further simple imprisonment for one year, u/s 201/34 IPC rigorous imprisonment for five years. Appellant namely Ganga Singh in Cr.Appeal No. 812 of 2004 has been held guilty for the offence punishable under section 201/34 IPC and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs. 1000/-and in default of payment of fine further sentenced to undergo simple imprisonment for six months. Appellant namely Mantu Singh @ Amrendra Kumar has been held guilty for the offence u/s 201/34 IPC and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 500/-and in case of default simple imprisonment for a period of 3 months. 2. The case of the prosecution as it appears from the written report lodged by Subhash Prasad Singh, in brief, is that on 5.11.2001 Sagar Singh eldest son of informant was taken by his maternal grand father Jagdeo Singh on the pretext that maternal grand mother of Sagar Singh (deceased) is willing to see him. On 11.11.2001 Mantu Singh brother-in-law (sala) of informant informed that Sagar Singh is missing from the house. Thereafter, Sujata Devi wife of informant along with Dinesh Prasad Singh younger brother of the informant went to village Khajurma and enquired the whereabouts of Sagar from her mother and father, but, they did not give satisfactory explanation. When they met with Bhagat Jee he told that boy is safe, nothing to worry. The wife and brother of the informant made a search, but, they could not succeed to find out Sagar and, therefore, they returned back to their village. On 16.11. When they met with Bhagat Jee he told that boy is safe, nothing to worry. The wife and brother of the informant made a search, but, they could not succeed to find out Sagar and, therefore, they returned back to their village. On 16.11. 2001 the appellant Jagdeo Singh made a telephonic call and said that dead body of Sagar, floating into a well has been noticed. It is also disclosed that one of the son of Jagdeo Singh was missing from last five years and he was suggested by the Bhagat Basuki Singh, if he would sacrifice a boy his son would return back. The informant went to the house of father-in-law Jagdeo Singh and enquired about Sagar,but, they said that dead body of Sagar has already been cremated. When pressure was created Jagdeo Singh took the informant and other witnesses to burning ghat where dead body of Sagar was buried. Jagdeo Singh dug out the dead body of Sagar thereafter the matter was brought to the notice of Police and written report was lodged. It is alleged that appellant Jagdeo Singh sacrificed Sagar under superstition. On the basis of written report lodged by Subhash Prasad Singh (PW-5) Poraiyahat P.S. Case No. 154 dated 16.11.2001 U/Ss. 302/201/34 IPC against all the appellants and one Baidya Nath Singh was registered. The Police after due investigation submitted charge sheet against all the six accused named in the F.I.R. And, accordingly, cognizance of the offence was taken and the case was committed to the Court of Sessions and registered as Sessions Case no. 46 of 2002/78 of 2002. 3. The charges U/Ss. 302, 201/34 Indian Penal Code against the appellants and co-convict Baidya Nath Singh were framed to which they pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether ten witnesses including informant, doctor, investigating officer and proved documents like post-mortem report, inquest report, written report, formal F.I.R. etc. The learned Additional Sessions Judge, Godda placing reliance on the evidence and documents available, held the appellants guilty for the offence punishable under sections 302/201/34 IPC and sentenced them as indicated above. 4. Mr.P.K.Deomani and Miss. Suchitra Pandey have been appointed as Amicus Curiae to assist the court in both Criminal Appeals. 5. The learned Additional Sessions Judge, Godda placing reliance on the evidence and documents available, held the appellants guilty for the offence punishable under sections 302/201/34 IPC and sentenced them as indicated above. 4. Mr.P.K.Deomani and Miss. Suchitra Pandey have been appointed as Amicus Curiae to assist the court in both Criminal Appeals. 5. Appellants namely Ganga Singh and Mantu Singh have assailed the impugned judgment on the ground that prosecution has miserably failed to prove the charge framed against them u/s 201/34 IPC. There is no evidence on record that these two appellants in any manner assisted other accused persons in disposal of dead body of Sagar Singh. The dead body of Sagar Singh was not even detected on the pointing out of these two appellants. Practically, there is no evidence against these two appellants to hold them guilty U/s 201/34 IPC. So far 302/34 IPC, they have been acquitted by the trial court itself. 6. The appellants in Cr.Appeal no. 846 of 2004 have challenged the findings of the trial court on the ground that prosecution has not produced any eye witness before the court. The prosecution case is mainly based on circumstantial evidence and the circumstances brought on record did not point out towards guilt of any of the appellant. Deceased Sagar Singh was none else but grand son of appellant Jagdeo Singh. Sujata Devi PW-9 is the mother of Sagar Singh and she is the daughter of appellant Jagdeo Singh. Visit of Jagdeo Singh to the house of his daughter Sujata Devi could not be considered an incriminating circumstance. Sagar Singh was brought to his maternal grand father's house as because his maternal grand mother was willing to see him, is also not incriminating circumstance. Unfortunately, Sagar Singh was found missing from his maternal grand father's house and information regarding missing of Sagar was duly communicated to Sujata by Mantu Singh who is none else but the maternal uncle of Sagar. In course of search, dead body of Sagar floating into a well was noticed by Jagdeo Singh and other villagers and that fact find support from the statement of PW-7. Thereafter, dead body of Sagar was taken out from the well and it was duly buried in the Burning ghat. This information is also given to informant by the witnesses. The conduct of any of the appellant was not unnatural. Thereafter, dead body of Sagar was taken out from the well and it was duly buried in the Burning ghat. This information is also given to informant by the witnesses. The conduct of any of the appellant was not unnatural. It is also submitted that informant was employed at Gujrat and at the time of occurrence he was not available in the village and he returned home only on 15th November,2001 and prior to that dead body of Sagar was detected and taken out from the well and it was duly cremated. So far Badami and Basuki are concerned the prosecution has not led any evidence against them to justify their detention u/s 302/34 IPC. First of all, it is to be taken note of that death of Sagar was an accident and for that nobody can be held liable. The appellants Badami and Basuki have not assisted in any manner to any of the appellant in committing any offence. No evidence has been brought on record that they had even assisted appellant Jagdeo Singh in disposal of the dead body. 7. The information that deceased boy Sagar Singh has fallen into a well was duly communicated to mother Sujata and other family members. The doctor PW-6 in his cross examination has admitted that injuries nos. 1 and 2 appearing on the person of the deceased Sagar may be caused by dashing with wall. In an accidental fall into a well, Sagar might have sustained those injuries and, therefore, the appellants have wrongly been held guilty for the offence of murder and they are liable to be acquitted. 8. The learned A.P.P. has opposed the arguments and submitted that the maternal grand father under superstition has killed his grand son. He was suggested by Bhagat Basuki Singh, if he would sacrifice a boy, his missing son would return back. Few days prior to the occurrence Mantu Singh S/o appellant Jagdeo Singh who was missing since five years had returned back to the village. Even then appellant Basuki Singh suggested to sacrifice a boy. Under that superstition Jagdeo Singh went to the house of his daughter Sujata and on false pretext brought his grand son Sagar aged about nine years to his house situated at village Khajurma. Even then appellant Basuki Singh suggested to sacrifice a boy. Under that superstition Jagdeo Singh went to the house of his daughter Sujata and on false pretext brought his grand son Sagar aged about nine years to his house situated at village Khajurma. According to prosecution case, Sagar Singh was sacrificed before goddess Kali and place of goddess Kali was situated within the campus of Bhagat Basuki Singh. Thereafter, the appellants cooked up the story of accidental fall of Sagar Singh into a well and buried the dead body in burning ghat. The prosecution witnesses namely Dinesh Prasad Singh PW-2, Sanjay Kumar Singh PW-3, Shiv Nandan Prasad Singh PW-4, Subhash Prasad Singh PW-5 (informant), Sujata Devi PW-9 have fully supported the prosecution case. They all have deposed before the court that appellant Jagdeo Singh had come to the house of Sujata and from there he brought Sagar Singh to village Khajurma and then informed that Sagar Singh is missing from his house. This information was given by Mantu Singh to the parents of Sagar on 11.11.2001 and on the same day Dinesh Singh with his bhabhi Sujata rushed to the house of the appellant Jagdeo Singh at village Khajurma and enquired about Sagar and this appellant Jagdeo Singh is none else but the father of PW-9 Sujata Devi. He did not give satisfactory explanation regarding missing of Sagar Singh. Thereafter, they made enquiry from Tantrik Basuki Singh who assured that the boy is safe. Thereafter, they returned back to their village. On 16.11.2001 Jagdeo Singh informed that dead body of Sagar has been found floating into a well. By that time the informant had also come back home from Gujrat and he told to Jagdeo Singh, wait for them. Thereafter, Subhash, Dinesh, Sanjay, Shiv Nandan went to village to see the dead body of Sagar but again it was informed by the appellant Jagdeo that they have buried the dead body. Thereafter, Jagdeo Singh took them to the house of Basuki Singh and from there he took them to burning ghat. Jagdeo Singh himself dug out the body of Sagar. The witnesses have explained the injuries appearing on the dead body of deceased Sagar which also find support from the post mortem report proved by Dr. Pradeep Kumar Singh, PW-6. The injuries noticed by the doctor during post mortem examination would not be possible due to fall into a well. Jagdeo Singh himself dug out the body of Sagar. The witnesses have explained the injuries appearing on the dead body of deceased Sagar which also find support from the post mortem report proved by Dr. Pradeep Kumar Singh, PW-6. The injuries noticed by the doctor during post mortem examination would not be possible due to fall into a well. The face of the boy was crushed by any hard and blunt substance causing fracture of upper left incisors and two premolar teeth. Fracture of mandible was also noticed. Therefore, according to doctor those injuries were not possible due to fall into well. The prosecution has well proved its case and there is no merits in these appeals. 9. Heard rival submissions and perused the case records. So far Criminal Appeal no. 812 of 2004 preferred by Ganga and Mantu is concerned, we do not find any evidence on record that any of them in any manner had assisted other accused in disposal of dead body of Sagar Singh. Neither they confessed their guilt nor helped in digging out the dead body. We do not find that finding of the trial judge for holding these appellants guilty for the offence punishable u/s 201/34 IPC is based on any evidence available on record. Only on presumption that they had assisted in disposal of the dead body of Sagar, they have been held guilty for the offence punishable u/s 201/34 IPC and inflicted with sentence. We feel no hesitation to hold that prosecution has failed to prove the charges framed against them and therefore, Criminal Appeal No. 812 of 2004 is hereby allowed and judgment of conviction and order of sentence recorded as against appellant Ganga Singh and Mantu Singh is hereby set-aside. 10. Now coming to Criminal Appeal no. 846 of 2004 again we find that the witnesses have not described role played by Badami and Basuki in the alleged murder of Sagar Singh. Badami Devi has been implicated only because she happens to be the maternal grand mother of deceased Sagar and deceased Sagar was brought to her house by her husband Jagdeo Singh on the pretext that she wanted to see her grand son Sagar. So far Basuki Singh is concerned, he is a Tantrik. According to prosecution, Basuki Singh had suggested the appellant Jagdeo Singh to sacrifice a boy and then his missing son would return back. So far Basuki Singh is concerned, he is a Tantrik. According to prosecution, Basuki Singh had suggested the appellant Jagdeo Singh to sacrifice a boy and then his missing son would return back. The prosecution witnesses Pw-2 to PW-5 and PW-9 have raised suspicion against Basuki Singh that he had suggested Jagdo Singh to sacrifice a boy. Under influence of Basuki Singh, Jagdeo Singh had sacrificed Sagar Singh. We have carefully gone through the evidence of aforesaid witnesses PW-2 to PW-5 and PW-9 but we do not find that they had any occasion to hear any such conversation held between Basuki Singh and Jagdeo Singh. No witness of village Khajurma has come forward to say that Basuki Singh had suggested Jagdeo to sacrifice a boy. The investigating officer did not take effort to find out any such witness. Besides the above, no witness has come forward to say that at any point of time prior to the occurrence deceased Sagar was seen in the company of Basuki Singh or he was seen at the place of KALIGHAT situated within the land of Basuki Singh. We have carefully read out the evidence of material prosecution witnesses, but, we do not find that except suspicion raised against Badami and Basuki, they have said anything incriminating against them. 11. The clinching evidence on record against Jagdeo Singh is that he had gone to the house of his daughter Sujata on 4.11.2001 and spent night in the house of his daughter. On the following morning i.e. on 5.11.2001 he told that his wife Badami (grand mother of deceased) is willing to see Sagar and requested Sujata to allow the boy to go with him. Since, Sagar has to go to his maternal grand mother's house, Sujata PW-9 who is mother of Sagar, gladly accepted the request made by her father Jagdeo Singh. Thereafter, Jagdeo Singh brought deceased Sagar to his house situated at village Khajurma. Suddenly on 11.11.2001 Mantu Singh son of Jagdeo Singh came to the house of his sister Sujata (PW-9) and informed that Sagar Singh is missing from his house. It is further disclosed by the witnesses that Mantu Singh hurriedly left the house of Sujata without answering the enquiry made by them. On 11.11.2001 PW-2 to PW-5 and Pw-9 went to village to know the whereabout of Sagar but appellants failed to give satisfactory explanation. It is further disclosed by the witnesses that Mantu Singh hurriedly left the house of Sujata without answering the enquiry made by them. On 11.11.2001 PW-2 to PW-5 and Pw-9 went to village to know the whereabout of Sagar but appellants failed to give satisfactory explanation. On the next day Sujata and Dinesh returned back to their village. According to statement of informant PW-5 after receiving such information regarding missing of his son Sagar he returned to his house from Gujrat on 15.11.2001.On 16.11.2001 Jagdeo Sisngh made a phone call and informed that dead body of Sagar has been found floating into a well. The appellants were asked to wait for arrival of parents of Sagar and thereafter, informant with his wife and brothers went to village Khajurma, but, they did not find dead body of Sagar. When they inquired, Jagdeo Singh told that they have buried the dead body in the burning ghat. After the pressure created, Jagdeo Singh took the witnesses including informant to the place where dead body of Sagar was buried. Jagdeo Singh himself dug out the dead body in presence of informant and other witnesses. The informant and other witnesses got surprised to see the injuries appearing on the face and mouth of deceased Sagar. Head was saved and eyes were bulged out. Immediately, the matter was informed to the Police and investigation was carried out. Jagdeo Singh in his statement recorded u/s 313 Cr.P.C. admitted that he had brought Sagar Singh with him to village Khajurma. He further admits that dead body of Sagar was buried by him. It is to be noted that after missing of Sagar the appellant did not inform Police. The evidence available on record further indicates that Jagdeo without waiting arrival of the parents of deceased Sagar, had cremated the dead body. All the circumstances brought on record unerringly point towards the guilt of Jagdeo Singh that he brought Sagar Singh from his house with an intention to sacrifice him and after committing murder of Sagar he had tried to give it a colour of accidental death. The gist of the evidence available on record is that a body aged about 9 years was sacrificed under superstition by none else but by his maternal grand father. 12. The gist of the evidence available on record is that a body aged about 9 years was sacrificed under superstition by none else but by his maternal grand father. 12. Considering the evidence and documents discussed above, we do not feel inclined to spare Jagdeo Singh @ Jaideo Singh hence the judgment of conviction and order of sentence recorded by the trial court as against Jagdeo Singh @ Jaideo Singh is hereby upheld. So far Badami devi and Basuki Singh are concerned, they are entitled to be given benefit of doubt and accordingly, they are acquitted from the charge of Section 302/34 IPC. 13. In the result, the judgment of conviction and order of sentence recorded against Badami Devi and Basuki Singh u/s 302 /34 IPC is hereby set-aside. The appeal as against them stands allowed. Appellants Badami Devi, Basuki Singh and Mantu Singh are on bail and therefore, they are discharged from the liabilities of their bail bonds and set at liberty. 14. So far appellant Ganga Singh is concerned, it appears from Letter No. 988 dated 02.03.2016 that he has been released from custody after serving out the sentence.