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2019 DIGILAW 335 (JHR)

Mangru Nagesia v. State Of Jharkhand

2019-01-31

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT Kailash Prasad Deo, J. - Heard learned Amicus Curiae Mr. Arun Kumar and learned counsel for the State Mr. Shekhar Sinha, Additional Public Prosecutor. 2. The instant criminal appeal has been preferred against the judgment of conviction dated 18.07.2014 and order of sentence dated 19.07.2014 passed by learned Additional Sessions Judge-I, Lohardaga in Sessions Trial Case No.01/2012 whereby the learned trial court has held these three appellants namely Mangru Nagesia, Pancham Nagesia and Ramnath Nagesia guilty for the offence committed and punishable under Sections 302/34 of the Indian Penal Code and 3/4 of the Prevention of Witch (Daain) Practices Act-1999. The learned trial court has awarded rigorous imprisonment for life for the offence committed and punishable under Section 302 I.P.C. and rigorous imprisonment for three months with fine of Rs.1,000/- each for the offence committed and punishable under Section 3 of the Prevention of Witch (Daain) Practices Act and in default of payment of fine further simple imprisonment for 15 days and rigorous imprisonment for six months with fine of Rs.2,000/- each and in default in payment of fine, simple imprisonment for one month for the offence committed and punishable under Section 4 of the Prevention of Witch (Daain) Practices Act. All the sentences are directed to run concurrently. The sentence awarded in default of payment of fine shall be consecutive to the substantive offences. 3. The prosecution case is based upon the Fardbeyan of informant Shatru Nagesia (P.W.4) recorded by Officer-in-charge, Jobang Police Station Mr. Devendra Kumar Verma on 29.10.2011 at 7.45 A.M. at village Barpani. The informant has stated that today i.e. on 29.10.2011 (Saturday) at a distance of 300 Meters south of his house in the Jungle near the dead body of his wife his statement is being recorded. The informant has stated that yesterday i.e. on 28.10.2011 the co-villagers namely (1) Sukhnath Nagesia son of Karam Dev Nagesia (2) Ramnath Nagesia son of Sukhram Nagesia (3) Mangru Nagesia son of Sukhram Nagesia (4) Pancham Nagesia son of Sukhram Nagesia and (5) Anand Nagesia son of Dharam Dev Nagesia, all residents of village Barpani, P.S. Jobang, District Lohardaga came to his house at 8 a.m. with Lathi-danda and were searching his wife by calling her Daain. It is also alleged that the accused persons above named were alleging that wife of the informant has killed the brother of Sukhnath Nagesia and as such they will not leave her rather kill her. The informant has stated that at that time, his wife was not in the house rather had hidden herself, thereafter accused persons returned. It is further alleged that at around 10.30 A.M. all the five accused persons again came to his house with Lathi-danda. At that time the informant hide himself in the bushes near house and the accused persons caught hold of the wife of the informant Sundri Devi and took her towards south side of the jungle. The son of the informant Mangal Deo Nagesia aged about 12 years followed them and saw the occurrence by hiding himself in the mountain and subsequently came and informed that Sundri Devi (his mother) has been assaulted brutally by Sukhnath Nagesia, Ramnath Nagesia, Mangru Nagesia, Pancham Nagesia and Anand Nagesia by means of Lathi and Danda and also disrobed her while taking her towards the mountain. The informant has stated that under fear, the informant and his son both remained in the village and in the evening they started searching his wife in the mountain and found the dead body of his wife in injured condition. The informant has alleged that occurrence took place as 20 days ago, two years old brother of Sukhnath Nagesia had died and since then Sukhnath Nagesia and members of his family were calling the wife of informant as "Daain" and made responsible for the same and since then Sukhnath Nagesia and Ramnath Nagesia were in search of his wife for killing her. On 28.10.11 Sukhnath Nagesia, Ramnath Nagesia, Mangru Nagesia, Pancham Nagesia and Anand Nagesia with common intention assaulted his wife by means of Lathi and Danda and killed her. They have killed her by saying her Daain. 4. On the basis of the Fardbeyan of the informant, the Police has registered Jobang P.S. Case No.15/2011 dated 29.10.2011 under Sections 302/34 of the Indian Penal Code and 3/4 of the Prevention of Witch (Daain) Practices Act, 1999 (hereinafter to be referred as the Act of 1999) against five named accused persons. 5. 4. On the basis of the Fardbeyan of the informant, the Police has registered Jobang P.S. Case No.15/2011 dated 29.10.2011 under Sections 302/34 of the Indian Penal Code and 3/4 of the Prevention of Witch (Daain) Practices Act, 1999 (hereinafter to be referred as the Act of 1999) against five named accused persons. 5. On completion of investigation, Police has submitted chargesheet vide no.19/2011 dated 30.11.2011 against all the five named accused persons under Sections 302/34 I.P.C and 3/4 of Act of 1999. 6. The cognizance of the offence has been taken vide order dated 13.12.2011 and the case has been committed to the Court of Sessions vide order dated 17.12.2011. 7. Out of five named accused persons, two have been found to be juvenile namely Anand Nagesia and Sukhnath Nagesia and as such their cases have been separated vide order dated 20.02.2013 to be tried under the provisions of Juvenile Justice (Care and Protection of Children) Act. 8. The charge has been framed against three accused persons namely Mangru Nagesia, Pancham Nagesia and Ramnath Nagesia under Sections 302/34, I.P.C. and Sections 3/4 of the Act of 1999 vide order dated 15.04.2013. The charge has been explained to the accused persons in Hindi to which they have pleaded not guilty and claimed to be tried. 9. In order to prove the case, the prosecution has examined altogether eight prosecution witnesses and also exhibited a number of documentary evidence up to Ext. 4. Dagan Nagesia has been examined as P.W.1. Birawa Nagesia has been examined as P.W.2, Rambriksh Nagesia has been examined as P.W.3 and all these three prosecution witnesses have been declared hostile by the prosecution. Shatru Nagesia informant and husband of the deceased has been examined as P.W.4. As per evidence of the informant he was informed about the occurrence from his son Mangal Deo Nagesia, a child aged about 12 years who has been examined in this case as P.W.8. Dr. Dinanath Singh, Medical Officer has been examined as P.W.5, who has conducted post-mortem of the deceased on 29.10.2011 at 2.30 P.M. and proved the post-mortem report as Ext.1. Dr. Dinanath Singh, Medical Officer has been examined as P.W.5, who has conducted post-mortem of the deceased on 29.10.2011 at 2.30 P.M. and proved the post-mortem report as Ext.1. Supa Kongari Investigating Officer of the case has been examined as P.W.6, who has investigated of the case, as case has been handed over to him from Devendra Kumar Verma, Officer-incharge, Jobang Police Station, who has been examined as P.W.7 and has recorded the Fardbeyan, prepared the inquest report and sent the dead body for post-mortem. Devendra Kumar Verma has also endorsed Ext.2, 3 and 4 which have already been marked as Exhibits on the basis of evidence of P.W.6 Supa Kongari. Mangal Deo Nagesia, son of informant and deceased has been examined as P.W.8. Post-mortem report has been proved by P.W.5 Dr. Dinanath Singh which has been marked as Ext.1. The Fardbeyan has been proved and marked as Ext.2. The formal F.I.R. and inquest report have been proved and marked Ext.3 and 4 by Supa Kongari, the Investigating Officer (P.W.6). 10. After closure of the prosecution evidence, the accused persons have been examined under Section 313 Cr.P.C. on 26.5.2014, where they have denied about their involvement in the occurrence and have claimed themselves to be innocent. The Defence has also examined one defence witness Phuleshwar Nagesia as D.W.1 but no documentary evidence has been brought on record on behalf of the defence. 11. After hearing learned counsel for the parties and on the basis of materials available on record, learned Trial Court has convicted the accused persons under Sections 302/34, I.P.C. and Sections 3/4 of the Act of 1999. 12. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred this Criminal Appeal, which is being heard. 13. Heard learned Amicus Curiae, Mr. Arun Kumar and learned counsel for the State, Mr. Shekhar Sinha, Additional Public Prosecutor. 14. Learned Amicus Curiae has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. 13. Heard learned Amicus Curiae, Mr. Arun Kumar and learned counsel for the State, Mr. Shekhar Sinha, Additional Public Prosecutor. 14. Learned Amicus Curiae has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned Amicus Curiae has submitted that the entire case is a cooked up case, as the wife of the informant has died in lonely place and nobody has seen the occurrence but the informant (P.W.4) has set up himself and his son Mangal Deo Nagesia (P.W8) as eye witnesses to the occurrence, though there are vital major contradictions in the evidence of these two prosecution witnesses. Learned Amicus Curiae has submitted that as per First Information Report, the informant, Shatru Nagesia (P.W.4) has claimed himself to be an eye witness to the part of occurrence where it has been alleged that five accused persons have taken away his wife Sundri Devi from his house towards the forest situated on the south of his house, though the contradiction has come in the evidence from the Fardbeyan of the informant. This witness has categorically stated that at that time, he was hiding himself in the bushes and his son Mangal Deo Nagesia was present in the house, but when the evidence of P.W.8, son of the informant and the deceased Mangal Deo Nagesia is taken into account, it appears that this P.W.8 has stated that he was grazing his she-goat in the forest when he saw five accused persons taking away his mother. He has hidden himself under fear and from a distance he has seen the occurrence, where the accused persons have assaulted his mother by wood and due to which his mother has died at the spot. This witness has further stated that he has returned to his village at 12 P.M after grazing she-goat but did not inform anybody. This witness has stated that he has disclosed the occurrence to his father after a week, but subsequently this witness has stated that he has informed his father after he met his father about the occurrence. Learned Amicus Curiae has submitted that these are vital contradictions and shows the concoction in the prosecution case. This witness has stated that he has disclosed the occurrence to his father after a week, but subsequently this witness has stated that he has informed his father after he met his father about the occurrence. Learned Amicus Curiae has submitted that these are vital contradictions and shows the concoction in the prosecution case. Learned Amicus Curiae has submitted that even if these contradictions are ignored, then also the conduct of the P.W.8 Mangal Deo Nagesia does not seem to be a natural conduct of a person, whose mother has been killed by the accused persons and has witnessed the same. Learned Amicus Curiae has submitted that even after disclosure of occurrence by the son Mangal Deo Nagesia (P.W.8) to his father Shatru Nagesia (P.W.4) they did not inform the Police, rather as per the statement of P.W.4 Shatru Nagesia they have started searching the victim and in the search they could get the dead body of the victim Sundri Devi inside the Jungle which was surrounded by bushes from all side. Learned Amicus Curiae has submitted that the place of occurrence as described by P.W.8 Mangal Deo Nagesia and P.W.4 Shatru Nagesia are different. As per the evidence of P.W.8 Mangal Deo Nagesia at Paragraph-10 the place of occurrence is described in the forest but there was a way (passage) and one drain (Nala), but the informant (P.W.4) has described the place of occurrence in paragraph-15 where he has described the same as a place surrounded by bushes and forest from all sides and as such Learned Amicus Curiae has submitted that the place of occurrence as described by P.W.8 and P.W.4 are not one and same. Learned Amicus Curiae has submitted that from perusal of the inquest report, it appears that the dead body was found at a distance of 300 meter south in the forest-mountain. Learned Amicus Curiae has further submitted that from the post-mortem report of the deceased which was conducted by Dr. Dinanath Singh (P.W.5) on 29.10.2011 at 2:30 P.M. the time since death is between 24 Hrs. to 36 Hrs. Learned Amicus Curiae has further submitted that from the post-mortem report of the deceased which was conducted by Dr. Dinanath Singh (P.W.5) on 29.10.2011 at 2:30 P.M. the time since death is between 24 Hrs. to 36 Hrs. and as such, as per the Fardbeyan, inquest report and post-mortem report, the time of occurrence is also not established by the prosecution, coupled with the fact that the place of occurrence has not been established by the prosecution and the evidence of both the eye witnesses P.W.4 and P.W.8 are contradictory to each other. The Doctor (P.W.5) has stated during his cross-examination that injuries found on the dead body may occur by sudden fall of big stem of tree under which any person is standing. Doctor has opined that death is due to hypovolemic shock and haemorrhage and hypovolemic shock may occur from stem of any tree which falls upon a person. Learned Amicus Curiae on such basis has submitted that the prosecution has failed to prove these appellants guilty of the offence alleged under Sections 302/34 I.P.C. Learned Amicus Curiae has submitted that to establish the charge under Sections 3/4 of the Prevention of Witch (Daain) Practices Act, 1999, no evidence has been brought on record nor any co-villager has been examined in this case to substantiate the same. Learned Amicus Curiae has submitted that neither the witnesses have stated that 20 days ago two years old brother of Sukhnath Nagesia has died nor any co-villagers have been examined in this case who has substantiated that these accused persons have called the wife of the informant as Daain. Learned Amicus Curiae has thus submitted that in absence of any material evidence on these points when the evidence of P.W.8 Mangal Deo Nagesia and P.W.4 Shatru Nagesia are not reliable, the conviction of the appellants under Section 3/4 of the Act of 1999 is fallacious. Learned Amicus Curiae has thus submitted that the appellants deserve to be acquitted from the charges and conviction under Section 302/34 IPC and 3/4 of the Act of 1999 by extending benefit of doubt. 15. Learned counsel for the State, Mr. Shekhar Sinha, Additional Public Prosecutor has vehemently argued the case and has submitted that the impugned judgment of conviction and order of sentence has been passed by learned Trial Court on the basis of materials available on record. 15. Learned counsel for the State, Mr. Shekhar Sinha, Additional Public Prosecutor has vehemently argued the case and has submitted that the impugned judgment of conviction and order of sentence has been passed by learned Trial Court on the basis of materials available on record. Learned counsel for the State has submitted that Shatru Nagesia, informant of the case has been examined as P.W.4 and he is an eye witness to the occurrence to the effect that these accused persons came to his house in the morning and were in search of the wife of the informant Sundri Devi. At that time she was not present in the house but subsequently the accused persons again came and caught hold of his wife, took her towards the forest-mountain situated on the south of his house. The informant under fear has witnessed this part of the occurrence by hiding himself. Part of the occurrence was witnessed by his son, who was grazing his she-goat near the place of occurrence where the informant''s wife Sundri Devi has been killed by these accused persons because of assault made by Lathi, which they were carrying in their hands while they were taking the wife of the informant towards the Junglemountain. Learned counsel for the State has submitted that deceased died because of the lacerated wound as pointed out by the Medical Officer Dr. Dinanath Singh who has been examined in this case as P.W.5 and proved the post-mortem report as Ext.-1. Learned counsel for the State has submitted that after investigation the Police has submitted the charge-sheet against the accused persons, two of the accused were found to be juvenile and as such their cases were separated for trial under the Special Act of Juvenile Justice (Care and Protection of Children) Act, 2000 and these three accused persons have been sent up for trial by the Police and they have been charged under Sections 302/34 IPC and 3/4 of the Act of 1999, they have been found guilty of the charges and thus the learned Trial Court on the basis of materials available on record has convicted these three accused persons. Learned counsel for the State has submitted that co-villagers, Degan Nagesia, Birawa Nagesia and Rambriksh Nagesia are examined as P.W.1, 2 and 3 respectively, but they have been declared hostile by the prosecution as no independent witnesses are coming forward to support the case because of their own fear and reservation. Learned counsel for the State has thus submitted that under the aforesaid circumstances, considering the evidence of two eye witnesses coupled with the fact that medical evidence also shows the injuries as laceration, the conviction of the appellants does not warrant any interference by this Court. 16. Heard learned Amicus Curiae Mr. Arun Kumar, learned counsel for the State Mr. Shekhar Sinha, learned Additional Public Prosecutor and perused the materials available on record including the First Information Report, framing of charge, evidence of 8 prosecution witnesses, 4 prosecution exhibits, statement of the accused persons recorded under Section 313 Cr.P.C., the defence witness D.W.1 Phuleshwar Nagesia and the impugned judgment of conviction and order of sentence. 17. This Court has scrutinized the evidence of informant Shatru Nagesia P.W.4 and Mangal Deo Nagesia son of the informant (P.W.8) as both of them have claimed themselves to be an eye witness to the occurrence. This Court has taken note of the fact that the evidence of Shatru Nagesia is not consistent with the evidence of his son Mangal Deo Nagesia. Shatru Nagesia has been examined as P.W.4 and has stated that at 10:30 when the accused persons again came to his house in search of his wife Sundri Devi, under fear he has hidden himself. The accused persons who were armed with lathi and danda took his wife towards the Jungle-mountain situated south of his house and at that time his son Mangal Deo Nagesia was present in the house, but the son Mangal Deo Nagesia who has been examined as P.W.8 has not supported this version of the informant P.W.4, rather he has claimed himself to be an eye witness by stating that while he was grazing his she-goat in the forest, he saw the accused persons were taking his mother towards Jungle and assaulted her near a place surrounded by bushes having a passage and one drainage. Subsequently P.W. 8 has stated that at 12.30 he returned to his house. Subsequently P.W. 8 has stated that at 12.30 he returned to his house. He did not inform anybody for a week but subsequently he has stated that he has informed his father immediately thereupon and thereafter both father and son together started searching the dead body of his mother. This Court has taken note of the fact that the conduct of P.W.8 is not a natural conduct of a child as this witness who has seen the occurrence, did not come after seeing the occurrence to inform the villager or his father rather as per his statement, he did not disclose the fact for a week, subsequently he has stated that he has disclosed the occurrence to his father. The most doubtful evidence which has been brought on record is that both father and son started searching the dead body of Sundri Devi. This Court has taken note of the fact that father was knowing this fact that the accused persons have taken the victim towards the Jungle at 10:30 and instead of informing the Police or the village Chowkidar or co-villagers for rescue of the life of his wife, he kept mum till the information was disclosed by his son. If these acts are done under the fear of death or assault by the informant, then the informant and his son ought not to have gone to search the dead body after hearing about the occurrence rather the natural conduct would have been that they would have informed the Police that my wife or mother has been killed by the accused persons in the Jungle and along with the Police they would have gone there as the place of occurrence was known to the son but this fact has not been brought on record, rather the conduct of father and son seems to be doubtful. Both were in search of the dead body and the dead body was found 300 meters from their house surrounded by bushes/jungle. As per P.W.8 Mangal Deo Nagesia, the place of occurrence is near the way (passage) and Nala (drainage) but this has not been found by the informant (P.W.4) Shatru Nagesia. As such their evidence suffers from vital major contradiction. 18. As per P.W.8 Mangal Deo Nagesia, the place of occurrence is near the way (passage) and Nala (drainage) but this has not been found by the informant (P.W.4) Shatru Nagesia. As such their evidence suffers from vital major contradiction. 18. Under the aforesaid circumstances, the evidence of P.W.8 Mangal Deo Nagesia and P.W.4 Shatru Nagesia being contradictory in nature cannot be relied upon for holding the accused persons guilty in such heinous crime where the prosecution has not been able to prove its case beyond shadow of all reasonable doubts P.W.5 Dr. Dinanath Singh has admitted during cross-examination that such injury may cause because of fall of stem of tree over a person who is standing under it and the death is because of hypovolemic shock which can also occur from stem of any tree which falls upon a person. 19. Under the aforesaid circumstances as discussed above, the prosecution has not been able to prove its case beyond all shadow of reasonable doubts against these three accused persons, as the place of occurrence, time of occurrence, manner of occurrence are not consistent as per evidence of P.W.4 Shatru Nagesia and P.W.8 Mangal Deo Nagesia. Accordingly, The impugned judgment of conviction dated 18.07.2014 and order of sentence dated 19.07.2014 passed by learned Additional Sessions Judge-I, Lohardaga in Sessions Trial No.01/2012 is fit to be set aside. Accordingly, Cr. Appeal (DB) No. 673 of 2014 is allowed. The accused persons, who are in custody, are directed to be released forthwith, if not wanted in connection with any other case. Let a copy of this order along with the Lower Court Records be sent down to court below. 20. Before parting the judgment, we appreciate the assistance provided by the learned Amicus Curiae Mr. Arun Kumar in assisting the Court during hearing of the case. The Member Secretary, High Court Legal Services Committee is directed to release admissible fee/legal remuneration of the learned Amicus Curiae within a period of four weeks from the date of receipt of an application accompanied with a certified copy of this judgment.