Jharkhand High Court
Firu ? Firnu Nagesia vs State Of Jharkhand on 27 August, 2015
Author: Virender Singh
Bench: Virender Singh, P.P. Bhatt
Cr.Appeal (DB) No.1294 of 2005
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[Against the judgment of conviction dated 13th
March, 2002 and Order of sentence dated 14th
March, 2002, passed by IInd Additional Sessions
Judge, Gumla, in Sessions Trial Case No.49 of
2000]
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Firu @ Firru Nagesia, son of late Chota Chaito Nagesia, resident of village- Bajra,
PS - Palkot, District-Gumla, Jharkhand ........... Appellant
-Versus-
The State of Jharkhand ............ Respondent
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For the Appellant : Mr. Ram Kishore Prasad, Advocate
Mr. Praful Jojo, Advocate
For the State : Mr. Pankaj Kumar, APP
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PRESENT
HON'BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE
HON'BLE MR. JUSTICE P.P. BHATT
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Dated, the 27th August, 2015
Per Virender Singh, C.J. (Oral):
In all, two accused namely Mahabir Bhagat, and Firu Nagesia-the appellant herein, faced trial for the charge of Section 302/34 IPC and Section 3/4 of Witch- craft Act. Mahabir Bhagat stands acquitted, whereas the appellant has been con- victed for the offence punishable under Section 302 IPC as well as 3/4 of Witch- craft Act vide impugned judgment of II nd Additional Sessions Judge, Gumla, dated 13th/14th March, 2002 and sentenced to undergo life imprisonment under Section 302 IPC. However, he has not been sentenced for charge of Sections 3/4 of Witch-
craft Act separately.
2. The appellant is stated to be in custody for the last fifteen years and nine months. Priority has been given to the instant appeal on account of long incarcera- tion of the appellant. The instant appeal was initially filed through jail. Mr. Ram Kishore Prasad, Advocate, now appears for the appellant.
3. The present case was registered on the statement of Pusha Nagesia (PW-5), the husband of the deceased-Sita Devi. He alleged that the appellant-Firu Nagesia (for short 'accused') was calling his wife (deceased) as witch (in common parlance 'Daain') as he was facing certain personal problems. In vernacular, it is said, "Wah Gharelu Samasya Se Pareshan Rahta Tha". In this connection, Ma- habir Bhagat, who is 'Ojha', was called in the village to remove the conception of witchcraft. It is further alleged that on that fateful day, at about 06:00 a.m. when the deceased came out of her house in order to clean the courtyard (in common par- lance 'aangan'), the accused armed with Farsa (a sharp edged weapon) reached there and caused injuries on the persons of the deceased with Farsa. It landed on her neck and left cheek near the pinna, resultantly she fell down and died at the spot itself. He further alleged that the occurrence was seen by some of the villagers, who happened to be there, however, he does not specifically named any of the villagers.
4. The investigation of the present case was carried out by Harinandan Singh (PW-7), who after recording the formal statement of the informant, got the first information report registered in the Police Station, went to the place of occurrence, recorded the statements of certain witnesses. During investigation, Bhim Ram (PW-1) and Chandeshwar Ram (PW-2) appeared before the investigating officer and stated that they had seen the accused causing injuries on the person of the deceased. Their statements were also recorded under Section 161 Cr.P.C.
5. In order to prove the charge, the prosecution has examined as many as seven witnesses including the investigating officer, but the case of the prosecution is primarily hinging upon the evidence of the first informant (husband of the de- ceased) and aforesaid two eye witnesses to the occurrence, namely, Bhim Ram (PW-1) and Chandeshwar Ram (PW-2). We, therefore, have rescanned their evi- dences very minutely with the assistance rendered by learned counsel for both the sides.
6. Mr. Ram Kishore Prasad, learned counsel, appearing on behalf of the accused submits that the accused, in fact, has falsely been implicated in this case and the suggestion given to the informant was that he himself had killed his wife as she was carrying on with someone else. Learned counsel further submits that oth- erwise the eye-version account, as brought forward, does not appear to be appeal- ing inasmuch as the conduct of the first informant, being the husband at the scene of occurrence, is not a natural conduct. Learned counsel submits that he (the infor - mant) did not make any attempt to save his wife when the accused had reached the place of occurrence armed with Farsa. According to learned counsel, this unnatural conduct creates lot of doubts about the presence of the first informant at the time of occurrence.
7. Learned counsel further submits that even otherwise the aforesaid two witnesses, namely, Bhim Ram (PW-1) and Chandeshwar Ram (PW-2) appears to have not seen the occurrence. He submits that when the informant lodged the report with the police, he does not specifically name these witnesses, although, it is stated that certain villagers had seen the occurrence along with him. In vernacular "Firu Nagesia Ko Farsa Se Meri Patni Ki Hatya Karte Maine Tatha Gaon Ke Anya Log Bhi Dekhe Hain". Learned counsel submits that they have been introduced subsequently as eye witnesses to the occurrence. Learned counsel submits that there appears to be no motive with the accused viz. to commit the murder of the deceased and it appears that if anything has happened, as unfolded by the prosecution, it all occurred all of a sudden, in which the accused gave one or two injuries on the person of the deceased, therefore, the present case, instead of falling within the mischief of Section 302 IPC, would attract Section 304-Part-I IPC or Section 304-Part-II IPC only. He submits that if the main charge is diluted accordingly, the incarceration period of the accused, which turns out to be more than fifteen years, would serve the ends of justice.
8. Learned counsel, thus, prays either for acquittal of the accused or in alternative diluting the main charge from 302 IPC to Section 304-Part-I IPC or Section 304-Part-II IPC.
9. Submissions advanced by the learned counsel for the accused are vehemently opposed by Mr. Pankaj Kumar, learned Additional Public Prosecutor stating that in the case on hand there appears to be strong motive in the bosom of the accused as he has dubbed the deceased as 'Daain' for which he had even called Mahabir Bhagat, the Ojha. Learned State counsel further submitted that the case of the prosecution not only gets the support from the independent eye- witness account, even otherwise, the statement of the first informant, being husband of the deceased, cannot be said to be untrue statement as the occurrence has taken place in the early hours of the day and the husband (first informant) at that time was with the wife only, who was cleaning the courtyard. Learned State counsel further submits that looking at the seat of injuries and repetition of blows by Farsa, the present case in any case would not fall in any of the exceptions to Section 302 IPC, rather it is culpable homicide amounting to murder. He submits that the conviction of the accused as already recorded by the learned trial court, thus, deserves to be upheld.
10. After rescanning the entire evidence in its right perspective, we are of the considered view that the accused has no escape from the charge of Section 302 IPC for which he already stands convicted and sentenced vide impugned judgment.
11. So far as the accused Mahabir Bhagat is concerned, there appears to be no evidence against him which could bind him with the main charge with the aid of Section 34 IPC. He is Ojha, who was called by the accused only for the purpose of removing the conception of witchcraft. Beyond that, there is no evidence against him. He, thus, has been rightly acquitted by the learned trial court.
12. So far as the case of the accused is concerned, there are three eye witnesses to the occurrence, namely, the first informant (husband of the deceased) and the aforesaid two witnesses, namely, Bhim Ram and Chandeshwar Ram. The presence of the first informant at the time of occurrence cannot be doubted at all. His presence is said to be very natural at the scene being husband of the deceased. He has categorically stated that the accused armed with Farsa reached the courtyard of his house at about 06:00 a.m. and immediately gave two blows on the vital part of the body of the deceased i.e. the neck and near the pinna. The injuries caused by the accused are reflected in the postmortem report. Injury No.2, which is landed on the neck, has been declared to be sufficient to cause death of the deceased. The arguments advanced by Mr. Ram Kishore Prasad, learned counsel for the accused, that the conduct of the first informant appears to be unnatural, thus, is not acceptable to us. The accused reached the place of occurrence armed with sharp edged weapon, caused two injuries and left the place. Everything happened in few minutes, and in this situation, there could not possibly be any attempt by the first informant to intervene.
13. We are conscious of the fact that Bhim Ram (PW-1) and Chandeshwar Ram (PW-2) are not figuring in the first information report but that fact by itself would not be a ground to discard their evidences. These two witnesses are not related to the first informant. They are the co-villagers and natural witnesses to the occurrence. We have very carefully seen their evidences and find no reason to disbelieve their version.
14. Once we have believed the eye-version account as brought forward by the prosecution in the shape of aforesaid three witnesses, we do not feel the necessity of entering into further details of the prosecution witnesses.
15. We have also examined the case, yet from another angle, whether it can be diluted from Section 302 IPC to Section 304-Part-I IPC or Section 304-Part-II IPC and the answer is 'NO'. The accused intended to cause two injuries on the person of the deceased. These injuries are by sharp edged weapon brought by the accused from his house early in the morning, knowing well that the ladies clean their courtyards normally at this time daily. This cannot be said to be an occurrence which had flared up all of a sudden. It appears to be a pre-meditated attack upon the deceased by the accused. The time chosen, the part of the body chosen and the arm chosen, are indicative of the fact that the accused had the intention to cause injury which ultimately proved to be sufficient to cause death in the ordinary course of nature. Being that the factual position in the case on hand, the accused has no escape from the charge of Section 302 IPC substantively and it would not fall either within the mischief of Section 304-Part-I IPC or Section 304- Part-II IPC.
16. The net result is that the instant appeal fails on all the counts. The conviction and the sentence of the accused as recorded by the learned trial court is accordingly upheld.
17. The appeal, on hand, stands dismissed.
( Virender Singh, C.J.) (P.P. Bhatt, J.) High Court of Jharkhand, Ranchi, Dated the 27th of August, 2015.
Anu/SI/LAK NAFR