Jharkhand High Court
Against The Judgment And Order Of ... vs State Of Bihar (Now Jharkhand) on 14 January, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Criminal Appeal (D.B.) No. 261 of 1997 (R)
Against the judgment and order of conviction and sentence dated
25.06.1993 (sentence passed on 28.06.1993) passed by Sri Krishna Murari,
learned 6th Additional Judicial Commissioner, Ranchi in S. T. No. 620 of
1989. ---
Siman Nag s/o Naveen Nag, resident of Jatra Bera, PS Silli, District
Ranchi ... ... Appellant
Versus
State of Bihar (now Jharkhand) ... ... Respondent
---
For the Appellant : Mr. Nitish Krishna, Amicus Curiae
For the Respondent : Mr. Abhay Kumar Tiwari, A.P.P.
---
Present:
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
---
C.A.V. on - 27.11.2024 Pronounced on - 14.01.2025
Per, R. Mukhopadhyay, J.
Heard Mr. Nitish Krishna, learned Amicus Curiae for the appellant and Mr. Abhay Kumar Tiwari, learned A.P.P. for the State.
2. This appeal is directed against the judgment and order of conviction and sentence dated 25.06.1993 (sentence passed on 28.06.1993) passed by Sri Krishna Murari, learned 6th Additional Judicial Commissioner, Ranchi in S. T. No. 620 of 1989 whereby and whereunder the appellant has been convicted for the offence under Section 302 I.P.C. and has been sentenced to undergo imprisonment for life.
3. The prosecution case arises out of the fard beyan of Navin Nag recorded on 06.10.1988 in which it has been stated that on the previous day, there was a quarrel between the wives of his sons - Simon Nag and Lucas Nag on account of mud falling in the house of Lucas Nag. The incident in the day time, led to a quarrel between Simon Nag and Lucas Nag in the courtyard of the informant. The accused Simon Nag had brought a Tanga from his house and struck Lucas Nag by giving him three Tanga blows which resulted in his death. The incident of assault was also witnessed by the wife of Lucas Nag and others.
Based on the aforesaid allegations, Silli P. S. Case No. 72 of 1988 was instituted against Simon Nag under Section 302 I.P.C. On completion of investigation, charge-sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions where it was registered as S. T. No. 620 of 1989. Charge was framed under Section 302 I.P.C. which was read over and explained to the accused to which he pleaded not guilty and claimed to be tried.
4. The prosecution has examined as many as 10 witnesses in support of its case.
5. P.W. 1 - Murlidhar Bari has stated that on 06.10.1988 he had gone to the place of occurrence along with the Officer Incharge of Silli Police Station, where he saw the dead body of Lucas Nag. As per the instruction of the Officer Incharge, he had taken the dead body to RMCH for post mortem and after handing over the dead body to the Doctor, he had returned back to police station. He had deposited the blood-stained wearing apparels of the deceased in the Malkhana of Silli Police Station.
In cross-examination, he has deposed that there were 6-7 injuries upon the dead body.
6. P.W. 2 - Kumari Tuti has stated that in the afternoon, the wife of Simon Nag was putting mud on the wall of her house when some mud fell in the house of Lucas Nag which resulted in a quarrel between the wives of Simon Nag and Lucas Nag. On the same day, at 8:00 P.M., there was a quarrel between Simon Nag and Lucas Nag and thereafter Simon Nag gave 10-15 Tanga blows upon Lucas Nag. She along with Navin Nag, Juliani Nag, Beronica Nag and the sister of Lucas Nag managed to snatch the Tanga from Simon Nag. Lucas had died on account of the assault.
In cross-examination, she has deposed that Lucas and Simon were not present when their wives were quarrelling. Lucas had returned home at 7:00 P.M. while Simon had returned at 7:15 P.M. When both the brothers were quarrelling, she had come out with a Dhibri. When she 2 came out, Lucas had fallen after being subjected to assault. Simon had assaulted Lucas in her presence.
7. P.W. 3 - Beronica Nag has stated that on 05.10.1988, there was a hot talk between the wives of Lucas Nag and Simon Nag on account of falling of some mud in the portion of the house of Lucas Nag. At around 8:00 P.M., there was a quarrel between Lucas and Simon and Simon had brought a Tanga from inside the house and started making indiscriminate assault upon Lucas Nag. When Lucas raised a cry of alarm, she and her parents came out of the house. She has stated that Simon had assaulted Lucas with Tanga in their presence. Lucas had succumbed to his injuries.
In cross-examination, she has deposed that she was inside the house when the wives of Simon Nag and Lucas Nag were quarrelling. She and the others had come to the courtyard on hearing the quarrel. They had come after about half an hour after the quarrel started. Kumari Tuti is the first person to arrive at the courtyard. When she had come out from inside the house, Lucas was already dead by then.
8. P.W. 4 - Navin Nag is the informant who has stated that there was a quarrel between the wives of Simon Nag and Lucas Nag due to some earth falling in the house of Lucas Nag. In the night of 8:00 P.M., when both the brothers returned home, the incident in the morning led to a quarrel between them and Simon brought a Tanga from inside the house and repeatedly committed assault upon Lucas Nag. He has stated that apart from him, his wife Juliani Nag and his daughters Beronica Nag and Kumari Tuti had managed to snatch the Tanga from the hands of Simon. Lucas due to the assault had died. The fard beyan was recorded by the police in which he has signed and the same has been proved and marked as Exhibit 1.
In cross-examination, he has deposed that he is the father of Simon Nag and Lucas Nag and they were quarrelling in the courtyard and he and others were inside the house. They had come outside on hearing Lucas shouting and in the courtyard, they found Lucas lying on the ground. When he had rushed to the said place, he found Lucas not being able to speak. No one from the locality had arrived by then.
39. P.W. 5 - Juliani Nag has stated about the quarrel between the wives of Simon Nag and Lucas Nag which occurred in the day time. At about 8:00 P.M., there was a quarrel between Lucas and Simon and when Lucas raised a cry of alarm, she came outside with a Dhibri and had found that Simon had assaulted Lucas with Tanga due to which he fell on the ground. She, her husband and two daughters managed to snatch the Tanga from Simon Nag.
In cross-examination, she has deposed that when Lucas shouted, she was the first person to come out from the house with Dhibri. She found Lucas on the ground who subsequently died.
10. P.W. 6 - Sunita Nag has stated about the quarrel between her and the wife of Lucas Nag which happened at day time followed by a quarrel between Simon and Lucas at 8:00 P.M., after they had returned home and when she came out of the house, she found Lucas lying on the ground in an injured condition. Beronica, Tuti, Juliani and Navin had also come out to the said place and all of them snatched the Tanga from Simon Nag. She had tried to make her husband drink some water, but he could not drink. He had suffered injuries on the various parts of body which were inflicted with Tanga by Simon Nag.
In cross-examination, she has deposed that Lucas and Simon were not present when she and Simon were quarrelling. Both Lucas and Simon had come after consuming liquor.
11. P.W. 7 - Patras Toppo had proved his signature in the inquest report which has been marked as Exhibit 1/1. He has identified his signature over the seizure list as well as the signature of Navin Nag and of Saroj Dhan which have been marked as Exhibits 1/2, 1/3 and 1/7 respectively.
12. P.W. 8 - Saroj Dhan had not stated anything about the incident.
13. P.W. 9 - Dr. Saroj Kumar was posted as a Medical Officer in the Department of Forensic Medicine in RMCH, Ranchi and on 06.10.1988, he had conducted autopsy on the dead body of Lucas Nag and had found the following:
4 A. Incised wounds -
(i) 4 cm x 2 cm x bone deep from left nostril to middle of upper
lip exposing nasal cavity and maxilla with upper teeth.
(ii) 9 cm x 2 cm x bone deep on top of right shoulder cutting right scapula partially.
(iii) 9 cm x 3 cm x soft tissue deep on inner wall left armpit.
(iv) 4 cm x 2 cm x bone deep on middle of lateral side of left arm.
(v) 4 cm x 1 ½ cm x soft tissue, 8 cm x 2 cm x bone deep on middle of front chest 2 cm left to mid line cutting 3 to 6 left ribs and right ventricle underneath partially.
(vi) 6 cm x 2 cm obliquely on the lower part of the left chest cutting 7th left rib.
(vii) 5 cm x 2 cm x bone deep on the root of left side of neck back cutting 1 to 2 left ribs posteriorly.
(ix) 4 cm x 2 cm x bone deep, 5 cm x 2 cm x bone deep on back of right chest upper part.
(x) 2 cm x 1 cm x soft tissue deep back of left chest lower part.
(xi) 5 cm x 3 cm x soft tissue deep on back of right chest lower part.
(xii) 6 cm x 1 ½ cm x soft tissue deep on back of left knee joint.
B. Stab wounds -
(i) 5 cm x 2 cm x 9 cm deep left side of neck entering chest
cavity lacerating the left lung upper part.
(ii) 2 cm x 1 cm x 3 cm lateral side left chest lower part cutting
9th rib posteriorly.
C. Abrasions -
(i) 3 cm x 1 cm of left forehead.
(ii) 6 cm x 2 cm left abdomen lower part.
(iii) 2 cm x 2 cm right iliac crest.
(iv) 1 cm x 1 cm right elbow back.
D. Internal injuries - Blood and blood clots were present in
chest cavity. Internal organs were pale. Heart was empty both chambers.
All the injuries were ante-mortem and incised wounds were caused by heavy sharp cutting weapon such as Tanga. Stab wounds were caused by sharp cum pointed weapon and abrasions were caused by hard and blunt substance. The cause of death was opined to be due to shock and bleeding. He has proved the post mortem report which has been marked as Exhibit 2.
14. P.W. 10 - Nawal Kishore Singh was posted as an Officer Incharge of Silli Police Station and on 06.10.1988, he had recorded the fard beyan of Navin Nag. He had proved the fard beyan which has been marked as Exhibit 3. He has proved the formal FIR which was marked 5 as Exhibit 4. After taking over the investigation, he had recorded the re- statement of Navin Nag as well as the statement of Patras Toppo. On reaching village Jatra, he had recorded the statement of Tuti and inspected the place of occurrence which was a mud tiled house in which on the southern side Simon Nag lives while on the eastern side, the family of Lucas Nag stays. He had prepared a sketch map which has been proved and marked as Exhibit 5. He has also proved the inquest report which has been marked as Exhibit 6. He has proved the seizure list of blood-stained soil on the iron Tanga which has been marked as Exhibit 7. He has proved the requisition by which the dead body was sent for post mortem examination which has been marked as Exhibit 8. He has also proved his signature and hand-writing on the requisition which has been marked as Exhibit 9. He had recorded the statements of the witnesses, obtained the post mortem report, sent the blood-stained soil and Tanga to F.S.L. and on completion of investigation submitted the charge-sheet.
15. The statement of the accused was recorded under Section 313 Cr.P.C. in which he has denied his complicity in the murder.
16. It has been submitted by Mr. Nitish Krishna, learned Amicus Curiae that the prosecution has miserably failed to prove that it was the appellant who was the assailant leading to the death of Lucas Nag. It has been submitted that the witnesses had appeared in the courtyard when the assault had already taken place and Lucas Nag was lying on the ground in an injured state and therefore it cannot be ascertained that it was the appellant who had committed the murder. An alternative argument has been advanced to the effect that incident had occurred at the spur of the moment on account of the quarrel and therefore, at best it can be said to be a case under Section 304 Part II of I.P.C.
17. Mr. Abhay Kumar Tiwari, learned A.P.P. has submitted that there are several eye-witnesses to the occurrence and the assault committed by the appellant on Lucas Nag has been proved beyond any reasonable doubt.
18. We have heard the learned counsels for the respective sides and have also perused the trial court records.
619. The pre-cursor to the ultimate act of assault and murder was the quarrel which had ensued between the wives of the appellant and the deceased during day time which spilled over in the night when the protagonists - Simon Nag and Lucas Nag returned home. P.W. 2, P.W. 3, P.W. 4, P.W. 5 and P.W. 6 are the family members of the appellant and the deceased and their evidences reveals about the quarrel between them and the subsequent assault committed by the appellant with a Tanga which he brought from inside the house. Admittedly, no outsider was present when the incident had taken place. Though, Mr. Krishna, learned Amicus Curiae had tried to highlight the contradictions emanating from the evidences of the eye-witnesses, especially with respect to some of them arriving in the courtyard when the assault had already taken place, but the said submission would hardly be of any consequence since only the appellant and the deceased were present in the courtyard quarrelling when the assault had taken place and there is absolutely no feature in the case which would point towards the involvement of some person other than the appellant in committing such assault.
20. Mr. Krishna, in course of his submission has referred to the case of "Murlidhar Shivram Patekar & another Vs. State of Maharashtra" reported in (2015) 1 SCC 694 to enhance his submission that at best a case under Section 304 Part II I.P.C. is made out against the appellant as it falls under Exception 4 to Section 300 of I.P.C.
The relevant paragraph referred to by him reads as follows:
28. The question however still remains as to the nature of the offence committed by the accused and whether it falls under Exception 4 to Section 300 IPC. In Surinder Kumar, this Court has held as under: (SCC p. 220, para 7) "7. To invoke this Exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, 7 a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly."
(emphasis supplied)
21. In the backdrop of such submission, we have perused the post mortem report which reveals 12 incised wounds, 2 stabbed wounds and four abrasions mostly spread over the vital parts of the body of Lucas Nag. The injuries sustained by Lucas Nag would also highlight the brutality and ferocious nature of assault committed by the appellant. The cruel nature of the assault could also be fathomed from the post mortem report and taking a cue from the judgment referred to above, such benefit cannot be extended to the appellant. The submission of the learned Amicus Curiae so far as Section 304 Part II of I.P.C. is concerned is therefore negated.
22. We therefore on the basis of the discussions made hereinabove affirm the judgment and order of conviction and sentence dated 25.06.1993 (sentence passed on 28.06.1993) passed by Sri Krishna Murari, learned 6th Additional Judicial Commissioner, Ranchi in S. T. No. 620 of 1989 and consequently we dismiss this appeal.
23. The appellant is directed to surrender before the learned trial court immediately and forthwith to serve out his remaining sentence.
24. Pending I.A., if any stands closed.
(Rongon Mukhopadhyay, J.) (Arun Kumar Rai, J.) Jharkhand High Court at Ranchi The 14th day of January,2025 R.Shekhar/NAFR/Cp.3 8