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2017 DIGILAW 892 (JHR)

Ramesh Thakur @ Bagula v. State Of Jharkhand

2017-06-07

ANANDA SEN, PRADIP KUMAR MOHANTY

body2017
JUDGMENT P.K. Mohanty, C.J. (C.A.V.) - The present appeal is directed against the judgment of conviction and order of sentence dated 11.05.2005 passed by the learned Sessions Judge, Sahibganj, in Sessions Case No. 144 of 2004, arising out of Borio P.S. (Mirza Chouki) Case no. 132 of 2003, corresponding to G.R. Case No. 366 of 2003, whereby and where-under the appellant was convicted under section 302 of the Indian Penal Code and sentenced to undergo R.I. for life. He was further convicted under section 498A of the Indian Penal Code and sentenced to undergo R.I. for three years. 2. The case of the prosecution, on the basis of the fardbeyan of Prem Thakur is that his sister Balika Devi (deceased) was married with Dinesh Thakur about 15 years ago. Out of the said wedlock one boy Birendra Thakur and one girl Shanti Kumari were born. After about 5-6 years of marriage, Dinesh Thakur died. Even after the death of Dinesh Thakur, Balika Devi stayed at her Sasural. During her stay at Sasural, the deceased became pregnant on which Heera Lal Thakur told that she has become pregnant from his younger son namely Bagula @ Ramesh Thakur (appellant). Heera Lal Thakur assured that the marriage between the deceased and appellant will be solemnized later on. Thereafter, the deceased and appellant started living as husband and wife. Out of the said relationship one daughter namely Baby Kumari was born. The father of the informant and after his death the informant himself made repeated requests to Bagula Thakur and his parents for marriage but they started delaying the matter. The mother-in-law of the deceased used to say that the appellant will not marry with the deceased as she has become old. Recently about four months before, Balram Thakur and Ganesh Thakur had come to talk for the marriage of the deceased and the appellant, but Bagula Thakur demanded Rs. 3,000/-, watch, cycle and further told that he will inform them after consulting with other family members. On 17.11.2003 Doman Thakur came to the house of the informant and told that the deceased was suffering from fever. The informant along with his family member went to see the deceased, but they found her dead lying on a cot. There were mark of injuries on the head, eye and neck of the deceased. 3. On 17.11.2003 Doman Thakur came to the house of the informant and told that the deceased was suffering from fever. The informant along with his family member went to see the deceased, but they found her dead lying on a cot. There were mark of injuries on the head, eye and neck of the deceased. 3. On the basis of the aforesaid fardbeyan, Borio (Mirza Chouki) P.S. Case no. 132 of 2003 was registered under sections 304(B)/34 of the Indian Penal Code. After investigation the police submitted charge sheet against the appellant and three other accused persons under sections 304(B)/34 of the Indian Penal Code. Thereafter, cognizance of the offence was taken and the case was committed to the Court of Sessions for trial, which was registered as Sessions Case No. 144 of 2004. 4. Charges were framed against the accused persons under section 302/34 of the Indian Penal Code and section 498A of the Indian Penal Code to which they did not plead guilty and claimed to be tried. 5. Altogether 11 witnesses have been examined on behalf of the prosecution in this case in order to substantiate the charges framed against the accused persons. 6. After closure of the prosecution witnesses, the appellant was examined under section 313 of the Code of Criminal Procedure. 7. The learned trial Court, after appreciating the evidences of the prosecution witnesses and the materials available on record, found the appellant guilty for the alleged offences and accordingly recorded the judgment of conviction and order of sentence dated 11.05.2005, which is under challenge here. However, the learned trial Court acquitted the remaining accused persons vide the same impugned judgment. 8. The learned counsel for the appellant has assailed the impugned judgment on the ground that there are several discrepancies and material contradictions in the statements of the prosecution witnesses. The independent witnesses, who have been examined by the prosecution, have not supported the case of the prosecution. He further submits that P.W.6, who is alleged to be the eye witness of the said occurrence, has not stated anything against the appellant. He further submits that the learned trial Court has failed to take into consideration that the interested witnesses have not deposed any overt act specific against the appellant. He further argues that the entire case hinges upon the evidence of P.W.6, who is a child witness, who cannot be relied upon. He further submits that the learned trial Court has failed to take into consideration that the interested witnesses have not deposed any overt act specific against the appellant. He further argues that the entire case hinges upon the evidence of P.W.6, who is a child witness, who cannot be relied upon. He submits that whether child was competent enough to testify or not has not been certified by the Magistrate and on that basis the entire evidence of P.W.6 is to be discarded. He further submits that after discarding the evidence of P.W.6 nothing remains in this case. Thus, this appeal is liable to be allowed. 9. The learned Addl. P.P. opposed the arguments advanced by the learned counsel for the appellant and submitted that the star witness of the case i.e. P.W.6 has in clear term stated before the Court that he had seen Bagula Thakur (appellant) killing the deceased. The motive behind the murder has also been well proved as all the witnesses have stated that Bagula Thakur was demanding Rs. 3,000/-, watch and cycle for solemnizing marriage, which was not fulfilled. He further submitted that the doctor, who conducted postmortem, has also opined that the death has been caused due to throttling and as such it is well proved that the death has not been caused under normal circumstance. He further submitted that it was the duty of the accused persons to give cogent explanation regarding the death of the deceased which they failed to narrate, thus, it gives adverse inference against them. 10. I have heard learned counsel for the respective parties and have gone through the entire records of this case including the entire lower Court records. 11. P.W.1 Deepak Kumar is the Medical Officer, who had conducted the postmortem on the dead body of the deceased. He proved the P.M. report as Ext.1. He opined that the death was caused due to asphyxia as a result of throttling. He found the following injuries on the dead body of the deceased: I. Bruise on forehead 1" x 1" II. Bruise mark are present on either side of neck left side 1 " x ", right side " x ". P.W.2 is Sheopujan Thakur. He deposed that when he returned home he saw the dead body of the deceased lying on the cot. Bruise mark are present on either side of neck left side 1 " x ", right side " x ". P.W.2 is Sheopujan Thakur. He deposed that when he returned home he saw the dead body of the deceased lying on the cot. He further deposed that the deceased was the wife of Dinaram and after his death the deceased was living with Bagula as husband and wife and out of their relationship one female child was born. P.W.3 is Badka Kisku, who deposed that he saw the dead body of the deceased lying on the cot. He further deposed that the deceased was the wife of Dinaram and after his death the deceased was living with Bagula and out of their relationship one female child was born. P.W.4 is Detu Tudu, who has been declared hostile. P.W.5 Sunita Mossomat. She is the mother of the deceased. She deposed that the marriage of the deceased was solemnized with Dinaram Thakur and after his death Bagula made sexual relationship with the deceased on pretext of marriage. When the deceased became pregnant, Bagula was asked to solemnize marriage but he demanded Rs. 3,000/- and watch and in failure to give, she was beaten. During her cross-examination, she deposed that she had gone to the house of Bagula about one year ago and a quarrel was going on for cycle, watch and money. P.W.6 Birendra Kumar Thakur, is the son of the deceased. He claimed to have seen the occurrence. He deposed that in the night of incident he was sleeping outside of the room and the deceased and Bagula were sleeping in the room. He further deposed that Bagula, Hero Devi, Hira and Doman Devi killed the deceased by throttling. He further deposed that he had seen the occurrence. During cross-examination, he deposed that before the police he had told the name of only Bagula as the assailant. P.W.7 Bishwanath Thakur, is the cousin brother of the deceased. He deposed that after the death of Dinaram, Bagula cohabited with the deceased on the pretext of marriage and she became pregnant. He further deposed that Bagula started demanding cycle, watch and Rs. 3,000/- for solemnizing marriage and started beating the deceased. The present witness went there to make him understand. P.W.8 Ramnath Thakur is the cousin brother of the deceased. He further deposed that Bagula started demanding cycle, watch and Rs. 3,000/- for solemnizing marriage and started beating the deceased. The present witness went there to make him understand. P.W.8 Ramnath Thakur is the cousin brother of the deceased. He deposed that after the death of Dinaram, Bagula cohabited with the deceased on the pretext of marriage and she became pregnant. He further deposed that Bagula started demanding cycle, watch and Rs. 3,000/- for solemnizing marriage and started torturing the deceased. P.W.9 Baliram Thakur, is the brother of the deceased. He deposed that after the death of Dinaram, the deceased started living with Bagula and she became pregnant. Bagula started demanding Rs. 3,000/-, cycle and watch for solemnizing marriage and on failure to give the same, he used to beat her. Doman Thakur had intimated about the death of the deceased on which he along with others went there and saw the dead body. There were mark of injuries on the neck, head and face of the deceased. P.W.10 Prem Thakur, is the informant and brother of the deceased. He supported his statement made in the fardbeyan. He deposed that the marriage of the deceased was solemnized with Dinesh Thakur and out of the said wedlock there were two children and the name of the son was Birendra Kumar Thakur. When Dinesh Thakur died, Bagula Thakur cohabited with the deceased on the pretext of marriage and she became pregnant. The father and mother of Bagula Thakur assured that Bagula will marry with the deceased but Bagula was demanding Rs. 3,000/- for marriage which was not fulfilled. About one year ago, Doman informed him that the deceased has died and thereafter the present witness along with Balram Thakur, Ramnath Thakur, Bishwanath Thakur went at the house of Bagula and saw the dead body of the deceased. There were mark of injuries on the neck, forehead and hand of the deceased. He further deposed that Birendra Thakur told him that Bagula has killed the deceased. Hira Devi, Hiralal Thakur and Doman also killed the deceased. The accused persons were not at home. He proved his fardbeyan as Exhibit-2/2. P.W.11 Lalan Kumar is the investigating officer of the case. He proved the fardbeyan and formal F.I.R. which are marked as Exhibit 3 and 4 respectively. He further proved the inquest report which is marked as Exhibit-5. Hira Devi, Hiralal Thakur and Doman also killed the deceased. The accused persons were not at home. He proved his fardbeyan as Exhibit-2/2. P.W.11 Lalan Kumar is the investigating officer of the case. He proved the fardbeyan and formal F.I.R. which are marked as Exhibit 3 and 4 respectively. He further proved the inquest report which is marked as Exhibit-5. He deposed that there were mark of injuries on the forehead, left eye and neck. He further deposed that there was no mark of fighting either at the room or at courtyard. During his cross-examination he deposed that Birendra Thakur had told him that he had seen the deceased coming out from the room of Bagula Thakur. 12. As per the evidence, after the death of the first husband, deceased started living with this appellant. They lived as husband and wife. The other accused persons were agreed to solemnize marriage of the deceased with this appellant, but this appellant did not agree to marry her without dowry. As the amount was not paid to him, he committed murder of the deceased. It is the consistent case of the prosecution that the deceased and this appellant were living together as the husband and wife for a long period. Birth of a daughter from this long standing relationship also suggests that the appellant and the accused lived like husband and wife. 13. From the evidence of P.Ws. 7,8,9 and 10, it is quite clear that the deceased and this appellant were living together as the husband and wife and even cohabited, resulting in pregnancy of the deceased. P.W.6 is the sole ocular witness, who had seen the entire occurrence. In his evidence he has categorically stated that he had seen the appellant assaulting his mother and this appellant has committed murder of the deceased. He stated that this appellant along with others strangulated the deceased. In his cross-examination he stated that before police he had only took the name of this appellant as the assailant. This clearly suggests that this boy had taken the name of this appellant as the assailant. He says that his mother was throttled to death. Doctor (P.W.1), who had conducted the postmortem of the deceased and was examined as P.W.1. The postmortem report is marked as Exhibit-1. Doctor opined that the death of the deceased was caused due to asphyxia as a result of throttling. He says that his mother was throttled to death. Doctor (P.W.1), who had conducted the postmortem of the deceased and was examined as P.W.1. The postmortem report is marked as Exhibit-1. Doctor opined that the death of the deceased was caused due to asphyxia as a result of throttling. Thus, Medical evidence also corroborates the evidence of P.W.6. The defence has not been able to bring anything on records to disbelieve the statement of this witness (P.W.6). The judgment cited by the learned counsel for the appellant rendered in the case of Radhey Shyam v. State of Rajasthan, reported in (2014) Supreme Court Cases, 389 , is also not applicable in this case. 14. Thus from analyzing the entire evidence available on record and going through the facts of this case including the Lower Courts record, I find that the prosecution has been able to prove its case beyond all reasonable doubt against this appellant. 15. That, I find no merit in this appeal, the same is accordingly dismissed and the judgment of conviction and order of sentence dated 11.05.2005 passed by the learned Sessions Judge, Sahibganj, in Sessions Case No. 144 of 2004 is hereby affirmed. Anand Sen, J. - I agree.