Jharkhand High Court
Jiblal Sharma vs State Of Jharkhand on 14 August, 2018
Equivalent citations: AIRONLINE 2018 JHA 190
Author: B.B. Mangalmurti
Bench: B.B. Mangalmurti
Criminal Appeal (D.B.) No. 398 of 2009
With
Criminal Appeal (D.B.) No. 284 of 2010
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 398 of 2009
With
Criminal Appeal (D.B.) No. 284 of 2010
(Against the Judgment of conviction dated 13.02.2009 and Order of sentence dated
17.02.2009, passed by the Sessions Judge, Dumka, in Sessions Trial No. 224 of 2006).
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Jiblal Sharma .... .... Appellant (In Criminal Appeal (D.B.) No. 398 of 2009) Usha Devi @ Usha Sharma @ Usha Rani @ Usha Rani Sharma .... .... Appellant (In Criminal Appeal (D.B.) No. 284 of 2010) Versus State of Jharkhand .... .... Respondent
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For the Appellant : Mr. Chandra Shekhar Prasad, Advocate For the Respondent-State : Mr. Mukesh Kumar, A.P.P.
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PRESENT : HON'BLE MR. JUSTICE H. C. MISHRA
HON'BLE MR. JUSTICE B.B. MANGALMURTI
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C.A.V. ON: 25.07.2018 PRONOUNCED ON: 14.08.2018
B.B.Mangalmurti, J.:- As both the appeals arise out of the same Judgment, they are heard together and are being disposed of by this common Judgment.
2. Heard learned counsel for the appellants and learned counsel for the State.
3. The appellants are aggrieved by the Judgment of conviction dated 13.02.2009 and order of sentence dated 17.02.2009 passed the learned Sessions Judge, Dumka in Sessions Case No.224 of 2006 whereby the appellants have been found guilty for the offence under Sections 302/34 of the Indian Penal Code. On hearing on the point of sentence, both the appellants have been sentenced to undergo imprisonment for life and fine of Rs.5000/- for the said offence.
4. The case relates to death of murder of the daughter-in-law of the accused persons. The prosecution case was instituted on the basis of fardbeyan of Mantu Sen, the brother of the deceased, recorded by S.I., Vinod Kumar, Officer-in-Charge of Raneshwar P.S., Dumka at village Pathra on 22.11.2004 at 10.15 hours. According to the fardbeyan, his sister Seema Sen was having love affairs with his co-villager Rakesh Sharma, Criminal Appeal (D.B.) No. 398 of 2009 With Criminal Appeal (D.B.) No. 284 of 2010 -2- son of appellant Jiblal Sharma. As a result of which his sister became pregnant. His sister informed Rakesh about her pregnancy and requested for marriage, upon which Rakesh Sharma refused for the marriage. Deceased Seema Sen also narrated this fact before the mother of Rakesh Sharma being the other appellant Usha Rani Sharma. Usha Rani Sharma denied the request of marriage and said that as her son Rakesh Sharma cannot commit this, and false allegation is being levelled. Thereafter, informant and his family members got knowledge about it and then a panchayti was also held. According to the decision of the panchayti, the marriage of Seema Sen with Rakesh Sharma was held in the Shiv Mandir at Raneshwar (Dumka) about four months ago and his sister Seema Sen thereafter being called/addressed as Seema Sharma. Due to these reasons, the relationship between both the families became strained although both family were front door neighbors. The further case is that one month ago his sister Seema Sharma came in their house and stated that her husband, mother-in-law and father-in-law all the three are abusing and assaulting her and even they are not providing proper food as well as they are threatening that after killing her, they will perform another marriage of Rakesh Sharma. The further case is that on the last Sunday i.e. on 21.11.2004 at about 6.30 a.m. Rakesh Sharma along with his mother Usha Rani Sharma returned to their house from Dumka and thereafter since 7 a.m. they could hear the sound of quarrel from their own residence. The family members of informant came out of their house and heard the quarrel which was going on between his sister Seema Sharma, her husband, mother-in-law and father-in-law. All the three were using filthy languages and telling that she will be killed and they will perform another marriage of Rakesh Sharma. All the three were also telling Seema Sharma that your father and brother would also be killed. The quarrel continued for a longer time in the house of Rakesh Sharma but even after the hearing of all these quarrels, they became engaged in their own work. In the morning of 22.11.2004, they could know that his sister is dead in her house, then they went there and found that Seema Sharma was hanging with a rope tied with the ceiling of the house, but her both legs were half bent and touching the floor, and her mother-in-law and father-in-law and husband had fled away. It is apparent Criminal Appeal (D.B.) No. 398 of 2009 With Criminal Appeal (D.B.) No. 284 of 2010 -3- that Rakesh Sharma, Usha Rani Shama and Jiblal Sharma all in connivance had killed his sister Seema Sharma on 21.11.2004 in her house by pressing her neck from a rope and have hanged her body. Based on the above fardbeyan, Raneshwar P.S. Case No.86 of 2004 corresponding to G.R. No.1208 of 2004 was instituted for the offence under Sections 302/34 of the Indian Penal Code against accused Rakesh Sharma, Usha Rani Sharma and Jiblal Sharma and investigation was taken up. After investigation, the police submitted the charge-sheet against all the three accused persons for the offence under Sections 302/34 of the Indian Penal Code. As Rakesh Sharma was found juvenile, so his case was separated and was sent to the Juvenile Justice Board and the case of rest two accused namely Usha Rani Sharma and Jiblal Sharma were committed to the Court of Session.
5. After commitment of the case to the Court of Session, charge was framed against both the appellants for the offence under Sections 302/34 of the Indian Penal Code, and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, the prosecution has examined altogether eleven witnesses including the Investigating Officer and the Doctor who was one of the member of the Medical Board of doctors conducting post-mortem examination on the dead body of the deceased. No evidence was adduced by the side of defence in the case.
6. P.W.9 Mantu Sen is the informant of this case. This witness has supported prosecution case and has stated that the occurrence is of the year 2004. On 22.11.2004 at around 6 a.m., he heard that his sister Seema Sen has died due to hanging and saw the Chowkidar visiting the house of Jiblal. Then he also went to the house of Jiblal and found that the deceased is hanging after death but her legs were touching the ground. He further stated that Jiblal is his front door neighbor. He further deposed that Rakesh Sharma son of Jiblal Sharma was having love affairs with Seema Sen which was not known to him. The deceased had told the mother of Rakesh Sharma about her pregnancy and requested for its solution then mother of Rakesh abused her thereafter he could know all these incidents. Thereafter, a panchayti was arranged where it was decided that Rakesh will marry Seema Sen. Marriage was held in Shiv Mandir and after marriage Rakesh Criminal Appeal (D.B.) No. 398 of 2009 With Criminal Appeal (D.B.) No. 284 of 2010 -4- Sharma took the deceased to her house where they lived peacefully for about one month as husband and wife. The quarrel cropped up between them and after four months of the marriage the occurrence took place. He further stated that after the marriage Rakesh had went somewhere and was visiting his house only after 15/20 days. On 21.11.2004 at around 6.30 a.m., Rakesh Sharma and his mother returned from outside and both started quarrelling with the deceased. The sound of quarrel was coming outside which one could also hear and in the morning of 22.11.2004 we could know that deceased had died due to hanging. When he visited the place of occurrence, he could not find Jiblal Sharma, Rakesh Sharma and Usha Rani Sharma. The police recorded his fardbeyan on which he had signed. He recognized the signature which was marked as Ext.2/4. He recognized Jiblal Sharma present in the court and claimed to recognize another absentee accused. During cross-examination, he stated that he is eldest among the ten brothers and sisters. He is engaged in cultivation and all brothers and sisters along with their father were living in one house, but his mother is no more. In reply, he stated that he was not knowing that the deceased was having love affairs. He could not remember the date and time when it could be known that the deceased became pregnant. No medical examination was done. All the family members could know only after the deceased disclosed about her pregnancy to the mother of Rakesh then a panchayti was called which was attended by Uma Shankar Chatterjee, Shiv Shankar Chatterjee, Uttam Ghosh, Raghu Mazumdar and others and they decided that Rakesh would marry Seema. Accused Jiblal Sharma had attended the panchayti where firstly he refused the solemnization of the marriage but in the second panchayti he accepted and on same day marriage between Rakesh and deceased was solemnized in the Shiv Temple. On the day of marriage, his uncle Chandi Charan Sen died and due to this Chhutka (untouchability) only he attended the marriage. After marriage she went to her matrimonial house. They were not invited to her residence even on Ashtamangala. He further stated that they were not in visiting terms, so he had not gone to matrimonial house of deceased. Deceased was suffering from the skin disease causing white spot. He had not complained to the police about the quarrel going in the matrimonial Criminal Appeal (D.B.) No. 398 of 2009 With Criminal Appeal (D.B.) No. 284 of 2010 -5- house of the deceased. On 21.11.2004 when he heard quarrel, even then he did not intervene in the matter nor the matter was reported to the police nor took any information about her. He denied the suggestions that Seema herself hanged to death and there was no quarrel between the deceased with their in-laws and accused persons have been falsely implicated in this case for which a false story has been created.
7. P.W.2 is Mahadev Sen, father of deceased who has stated that he was present on the day of occurrence. His daughter was having love affairs with Rakesh Sharma because of which she became pregnant and this news was communicated to him by his daughter-in-law. The villagers advised to solemnize their marriage then marriage between them were held at Raneshwar Shiv Mandir but due to his illness, he had not attended the marriage rather his son and other villagers had attended it. He further stated that after the marriage his daughter went with Rakesh Sharma and started residing in his house which is situated in front of his house. About 2/3 months his daughter was being kept properly but thereafter assaults started by Jiblal, Usha Sharma and Rakesh Sharma. On 21.11.2004, the quarrel continued for long time. As his house is in front of the house of accused persons, he was hearing the same but on 22.11.2004 he heard that his daughter had committed suicide. When the police arrived, he went there and saw a rope around the neck of his daughter and the same was tied with the ceiling but he found that the legs were touching the floor. The fardbeyan of Mantu Sen was recorded by the police on which he had also signed. He recognized his signature which was marked as Ext.2/3. He recognized both the accused persons. During cross-examination, he stated that at the time of death Seema was aged about 18 years. She was suffering with the disease of white spot. He also replied that the quarrel was also held before 21.11.2004 but no information was given to the police station as they were not interfering with their affairs after this marriage. He denied all the suggestion that was put to him.
8. P.W.3 Mrityunjay Sen and P.W.5 Pintu Sen are brother of deceased who also supported the prosecution version and deposed that since their sister became pregnant due to love affairs with Rakesh Sharma Criminal Appeal (D.B.) No. 398 of 2009 With Criminal Appeal (D.B.) No. 284 of 2010 -6- but the Usha Rani was not ready for their marriage. The villagers decided that when both are having love affairs then marriage should be solemnized even then Usha Rani was not ready for this marriage. P.W. 5 Pintu Sen has also deposed that when the father of Rakesh did not agree for the marriage then he approached the police station but the Officer-in-Charge was not present. While he was returning from the police station then the villagers asked whether he is ready for the marriage of his sister or interested in lodging case, then he replied that when they are in love then we are also ready to solemnize their marriage. The marriage of his sister was held in Raneshwar Shiv Mandir where parents of Rakesh Sharma and villagers had also attended. After marriage about 1½ months, she remained peacefully in the matrimonial house. After this marriage both families were not in visiting term although they were hearing the sound coming from her matrimonial house. These witnesses have also stated that the dead body was in hanging position but the legs were touching the floor and knee was in bend position. He was put to extensive cross-examination but nothing adverse could be taken.
9. P.W.4 Archita Sen is Bhabhi of the deceased and wife of informant Mantu Sen. She stated that Seema was her Nanad who was having love affairs with Rakesh and due to this relationship, she became pregnant. Seema approached mother of Rakesh and requested for its solution, but mother of Rakesh abused her then Seema returned to her home weeping and disclosed this fact to her. Thereafter, she informed the brother of Seema who happens to be her husband who in turn talked to the father of Rakesh and also talked to other co-villagers. Her husband went to police station and gave it in writing, but father of Rakesh pressurized to withdrew it assuring that he will solemnize the marriage of Rakesh with Seema. Thereafter, with the consent of villagers the marriage was settled, and father of Rakesh demanded money. Rupees eighteen thousand was given and Rupees seven thousand remained due. The marriage was held in the Shiv Mandir, and Nanad Seema went and stayed in her matrimonial house. After some time, quarrel and abuse were going on in the matrimonial home of Seema. She heard on 22.11.2004 that Seema died and on arrival of police, the police called them, then she also visited the Sasural Criminal Appeal (D.B.) No. 398 of 2009 With Criminal Appeal (D.B.) No. 284 of 2010 -7- of Seema where she saw Seema was hanging with a loose rope around her neck and her legs were touching ground/floor. Nobody was present at that time in the house. She recognized both the accused in court. This witness was also put to extensive cross-examination but she stood the test of cross- examination.
10. P.W.7 Subodh Sen is cousin of deceased who also deposed that Seema Sharma was married with Rakesh Sharma and she died in the house of Rakesh Sharma. He visited the place. He found that the deceased was hanging but her legs were near the floor. During cross-examination, he stated that accused Jiblal Sharma is running a furniture shop in the Raneshwar Market and used to go the shop in the morning and used to return at around noon for taking lunch and thereafter he again used to go to his shop from where he normally returned in the night. He also stated that the wife of Jiblal is also working in Bharat Sewa Sangh in Raghunathpur which is at a distance of about one Kilometer. He also claimed to hear the sound of quarrel coming from the house of accused persons but he had not gone to their house. On 22.11.2004, when the police came then he could know about the death of the deceased. When he reached, he saw Mantu, Pintu, Mrityunjay were already there at the place of occurrence. He also stated that police have not recorded his statement and for the first time he is deposing before the court. He denied the suggestion as deposing false.
11. P.W.6 Vijay Kumar Chandra is maternal uncle of deceased and also of informant. He is also witness to the inquest report which has been marked Ext.3.
12. P.W.8 Muni Ram Mistree and P.W.11 Sapan Rout both were declared hostile as they did not support the prosecution version.
13. P.W.1 Dr. Vinod Kumar Sinha is one of the doctors who had conducted post-mortem examination on the dead body of deceased Seema Sharma wife of Rakesh Sharma aged about 18 years and a Medical Board was constituted by Civil Surgeon, Dumka in which Dr. C.P. Sinha, Dr. S.R. Sah and this witness were the members. They found following ante mortem injuries over the dead body over the deceased : -
Criminal Appeal (D.B.) No. 398 of 2009 With Criminal Appeal (D.B.) No. 284 of 2010 -8-
1. There were two ligature marks around whole neck in upper part of the neck. The width of ligature marks was ¾" each and were one inch apart with each other. The edges of the ligature mark were ecchymosed. On dissection subcutaneous tissue under the mark was ecchymosed. On further dissection larynx and trachea found congested.
2. On dissection of uterus a dead male foetus found and was 17" long. Hair was present over scalp, both testicles present in scrotum, vernix caseosa present. Age of the foetus was about 37 week.
In his opinion, death was due to Asphyxia as a result of strangulation. The post-mortem report is marked as Ext.1 and the signature of doctor as Ext.2 and signature of other two doctors of the board Dr. C.P. Sinha and Dr. S.R. Sah were marked as Ext.2/1 and 2/2 respectively. During cross-examination, he replied he did not mention in the post- mortem report that tongue was protrude.
14. P.W.10 Vinod Kumar is I.O. of this case. This witness has stated that he got rumor at about 10 a.m. that murder of a lady has been committed in village Pathra Tola. For verification, he went there and recorded the fardbeyan of Mantu Sen and proved this in his handwriting and signature and the same was marked as Ext.4. Thereafter, he prepared inquest report which is marked as Ext.5. He sent the dead body for post- mortem and inspected the place of occurrence and found that the house of Jiblal Sharma @ Shani Bhushan Sharma is situated at Uttar Tola of village Pathra. He found the dead body hanging in one of the rooms of the house. He recorded the statement of witnesses and after obtaining the report of post-mortem submitted charge-sheet in the court. In the cross-examination, he stated that it is not mentioned in the diary that Sanha was lodged about the rumour of murder of a lady. He also stated that the distance between place of occurrence and the police station is about 2 Km. He stated that he has not mentioned about the pregnancy of deceased in inquest report. He had also not made any seizure from the place of occurrence or the cloth by which the deceased was found hanging was also not seized. He has denied the suggestion that he had made faulty investigation.
15. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein the accused has denied the Criminal Appeal (D.B.) No. 398 of 2009 With Criminal Appeal (D.B.) No. 284 of 2010 -9- evidence against them. On the basis of evidence on record both the accused were found guilty, convicted and sentenced by the trial court below, as aforesaid.
16. Learned counsel for the appellants has submitted that impugned Judgment cannot sustain in the eye of law as in absence of any eye witness to the occurrence of murder, the case mainly based on the circumstantial evidence. He further submitted that the chain of circumstances in this case is not complete as the prosecution witnesses are mainly relatives of the deceased and are highly interested witnesses. No independent witness was examined by the prosecution. He relied on a decision of Sharad Birdhichand Versus State of Maharashtra reported in (1984) 4 SCC 116. Lastly, the counsel for the appellants submitted that the prosecution has failed in proving charge beyond all reasonable doubt and the accused-appellants ought to have been given the benefit of doubt as it is not specific that who had committed the murder of the deceased.
17. Learned counsel for the State on the other hand has opposed the prayer and submitted that the prosecution witnesses have fully supported the case. P.W.9 Mantu Sen brother as well as informant of this case has supported the prosecution story and in the similar manner father and other brothers and Bhabhi of deceased have supported the prosecution version. He further submitted that there was love affairs between the deceased and son of the appellants and the marriage was solemnized as the deceased became pregnant. Due to this reason, both families could not remain on visiting terms and became non-interfering in the affairs of the deceased. The cause of death has been found by the Medical Board as strangulation. The dead body was also found in the house of the appellants which clearly indicate the commission of crime by these appellants only. Therefore, the oral evidence supported with the medical evidence have completed the chain of circumstances.
18. Having heard the learned counsels for both the sides and upon going through the record, we find that the case is mainly based upon the circumstantial evidence although the family of informant and the matrimonial home of deceased were situated in front of each other. Since Criminal Appeal (D.B.) No. 398 of 2009 With Criminal Appeal (D.B.) No. 284 of 2010
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the marriage of deceased was solemnized in a peculiar situation as the deceased became pregnant through son of appellant. Initially the appellants were not in a mood to solemnize the marriage of their son with the deceased but under the pressure of either of the lodgment of the case or from the pressurization of the village panchayat, the appellants agreed to solemnize the marriage. When the marriage was settled then appellant Jiblal demanded some money and the informant's family gave Rs.18,000/- at the time of marriage although Rs.7000/- remained due as would appear from the evidence of P.W.4 Archita Sen. During cross-examination, she has stated that on 31.07.2007 Rs.18,000/- was given to the father of Rakesh by husband of this witness at Shiv Mandir. This amount was withdrawn from the bank account of the father of the deceased. It also appears from the evidences of the informant as well as other witnesses that after few month quarrel started in the matrimonial house of the deceased but since the strained relationship between the two families, the informant did not chose to intervene in the matter with a hope that the matter would settle down during course of time. The deceased once visited secretly and disclosed the informant's family that their husband and in-laws is planning to kill her so that they could perform another marriage of Rakesh. The circumstances which has been proved by the prosecution that the marriage of deceased with Rakesh was solemnized under the pressurization of the society and after some time the quarrel started which was being heard by family members of informant. When in the morning the knowledge of death of Seema Sharma was known on 22.11.2004, the quarrel in the matrimonial home of the deceased on the previous day were heard by the villagers as well as the family members. The death occurred in the matrimonial home and the deceased was living with the appellants continuously after the performance of her marriage. The dead body was found hanging but the family members of appellant had fled away. The oral evidence suggest that the death was not suicidal rather after committing murder the body was hanged with the ceiling which was touching with the floor of the house. The medical evidence supports and corroborates the prosecution story about the pregnancy of the deceased as a male foetus of about 37 weeks was found in the uterus of deceased. The medical board came to the Criminal Appeal (D.B.) No. 398 of 2009 With Criminal Appeal (D.B.) No. 284 of 2010
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conclusion that the death was due to Asphyxia as a result of strangulation. When the deceased was continuously living with the appellants that points out towards the guilt of the appellants that after strangulating Seema Sharma, her body was hanged to give it a colour of suicide. Presence of other persons apart from the appellants and the juvenile accused in that house have not been proved therefore, the chain of circumstances have been proved as complete, by the prosecution.
19. After careful scrutiny of the evidences brought on record, we are convinced that the prosecution has been able to bring home the charge against the accused beyond all reasonable doubt and there is no infirmity in the impugned judgment of conviction and order of sentence passed by the trial court below. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 13.02.2009 and order of sentence dated 17.02.2009 passed by the learned Sessions Judge, Dumka in Sessions Case No.224 of 2006 convicting the appellants under Sections 302/34 of the Indian Penal Code which we hereby, affirm. The appellants are already in custody undergoing the sentence.
20. There is no merit in both these appeals and the same are accordingly, dismissed. Let the Lower Court Record be sent back to the court concerned forthwith along with the copy of this Judgment.
( B.B. Mangalmurti, J.) H.C. Mishra, J:-
( H.C. Mishra, J.) Jharkhand High Court, Ranchi Dated, 14th August, 2018 Anit/A.F.R.