High Court
Case Details
CRIMINAL APPEAL (DB) NO. 52 OF 2017 ---- AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 4TH OCTOBER, 2016 PASSED BY SESSIONS JUDGE, WEST SINGHBHUM, CHAIBASA IN SESSIONS TRIAL NO. 120 OF 2014. ---- Gonga @ Dongo Kerai son of Late Mango Kerai, resident of Nandpur Mundatoli, PO PS Manoharpur, District West Singhbhum (Jharkhand). -versus- … Appellant The State of Jharkhand … Respondent For the Appellant : For the Respondent : Mr. Saket Kumar, A.P.P. ---- ---- Mr. Awanish Ranjan Mishra, Advocate PRESENT: SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. ---- J U D G M E N T By Court Heard learned counsel for the appellant and learned counsel for the State. The appellant has preferred this appeal against the judgment of 2. conviction and order of sentence dated 4th October, 2016 passed by the Sessions Judge, West Singhbhum, Chaibasa in Sessions Trial No. 120 of 2014, arising out of Manoharpur Police Station Case No.104 of 2013 corresponding to G.R. No.472 of 2013, whereby and whereunder, the appellant has been convicted for offences under Sections 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life and fine of Rs.10,000/- for committing the offence punishable under Sections 302 of the Indian Penal Code and in default of payment of fine, he has been sentenced to undergo further rigorous imprisonment for one year. 3.
Legal Reasoning
After going through the evidences of this case, we find that the prosecution witnesses are not the eye witnesses. Informant has also stated that it is the son of the deceased, who came and informed that this appellant has committed murder. Appellant is none other but father. The fact that this Court Witness No.1 has made the aforesaid statement has been admitted by the informant and the fardbeyan was marked as Exhibit 1. 12. Thus, this case is based only on the circumstances. The Court Witness No.1 and Court Witness No.2 are the son and daughter of the deceased and the appellant. They stated that the mother and father were in the house and they were also present. In the evening at about 03.00 – 03.30 p.m. when they went to play, the father (appellant) and the mother were present at the house. When they returned, they found that their mother was lying dead and father was missing. Court Witness No.1 immediately rushed and informed P.W.3 and P.W.4. In the First Information Report, it has been stated that the assault was by fists, slaps and kicks, thus, as per the doctor, the injuries were caused by hard and blunt substances. Doctor also opined that the injuries are sufficient to cause death. Thus, homicide is proved. Circumstances clearly suggest that it is none but the appellant, who would have committed the murder. Appellant was at home with the deceased at 03.00 – 03.30 p.m. when the Court Witness No.1 and Court Witness No.2 left for playing. When they returned, they did not find their father (appellant) and found their mother dead. In fact, it has come in evidence that father did not return home thereafter. It is, thus, clear that the appellant knew that the deceased had died because of his assault, thus, he fled from the place of occurrence. 13. In the statement under Section 313 of the Code of Criminal Procedure, the appellant had not explained how the deceased died. Further, in his statement, he has stated that he himself had gone to the police station when the police had arrested him. This fact is not corroborated from the evidence of the investigating officer, inasmuch the investigating officer has stated that the appellant was arrested near Nandpur Block at night at about 23.00 hours. Further, the appellant has stated that he had returned home at about 05.00 p.m. and saw his wife dead. This statement of the appellant is also not corroborated from the evidence of Court Witness No.1 and Court 6 Cr. Appeal (DB) 52 of 2017 Witness No.2, as they have stated that the appellant did not even return to the home, which is established from the statement of the investigating officer also as he has stated that the appellant was arrested near Nandpur Block. 14. We find from the evidences and the circumstances that it is none but this appellant, who has committed murder of the deceased, inasmuch as except the appellant and the deceased, there was no one in the house. 15. In this case Section 106 of the Evidence Act can be applied. The Hon’ble Supreme Court in the case of Anees versus State Govt. of NCT reported in 2024 SCC OnLine 757 at paragraph 54 and 55, has observed that when an offence takes place inside the four walls of the house, the accused has all the opportunity to plan and commit the offence, and it is extremely difficult for the prosecution to lead direct evidence to establish the guilt of the accused. To resolve such a situation, Section 106 of the Evidence Act exists in the statute Book. 16. From what has been held and discussed above, we find no merit in this appeal. The impugned judgment of conviction and sentence passed in Sessions Trial No.120 of 2014 needs no interference. This appeal is, accordingly, dismissed.
Arguments
Learned counsel appearing on behalf of the appellant submitted that there is no material and evidence to convict the appellant. It is his contention that there is no eye witness to the occurrence and the prosecution has miserably failed to bring home the charges against the appellant. He submits that the case of the prosecution is based on circumstances and the prosecution has failed to prove the chain of circumstances so as to hold the appellant guilty of the offence. He submits that the prosecution has also failed to prove the motive behind the offence. 1 Cr. Appeal (DB) 52 of 2017 He submits that the learned Trial Court has heavily relied upon the deposition of C.W.1 and C.W.2, both of whom are minor, who also are not the eye witness to the occurrence, rather their evidence is only to the extent that when they left home to go for playing, the appellant and the deceased were at home. Nothing has come in the prosecution evidence that there was any quarrel or hot talk between the appellant and the deceased. He contends that the prosecution has miserably failed to prove its case beyond all reasonable doubts. Thus, he prays that it is a fit case for acquittal of the appellant. 4. Learned counsel appearing for the State submits that the Trial Court has rightly convicted the appellant on the basis of the evidence available on record, especially the evidence of C.W.1 and C.W.2, both of whom have stated that at the time when they left for playing, appellant and the deceased were at home and when they returned home at about 05.00 p.m., they saw the dead body of the deceased lying in the house and the appellant was not present. They also stated that since thereafter the appellant did not return to home. Learned counsel for the State submits that the defence has not been able to put forth any rebuttal to the prosecution evidence, thus, the learned Trial Court has rightly convicted the appellant. 5. The appellant has been charged and convicted under Section 302 of the Indian Penal Code. The prosecution case is based on the fardbeyan dated 21.12.2013 at 21.00 Hrs. of the informant- Niraso Tigga wife of Shri Birsa Tigga, resident of Nandpur, Tola Burahari, PS Manoharpur, District West Singhbhum, Chaibasa, wherein it has been narrated that on that day at about 05.00 p.m., when she was at her home, her nephew Vijay Kerai aged about 12 years son of Gonga Kerai (appellant) came to her home and told that his father (appellant) has killed his mother by assaulting her with fists and kicks. She immediately rushed to the house of her sister-in-law (Nanad) Salmi Kerai along with her nephew and saw that the deceased Salmi Kerai was lying dead in the verandah of the house and blood was oozing from mouth and nose. She searched for the appellant in and around the house, but he had fled. When she inquired about the incidence from the people in the vicinity, they told that a week ago the appellant had assaulted the deceased to such extent that she was not able to walk, only with the help of a stick she walked. It is alleged that at about 2 Cr. Appeal (DB) 52 of 2017 04.00 p.m. on that day the appellant was searching for the deceased and was hurling abuses. The deceased out of fear was fleeing towards her paternal home, but the appellant caught her midway, brought her to home and assaulted her with fists, slaps and kicks till she died. It has been stated that the deceased was married 14 years ago to the appellant and out of their wedlock they have five young children. She claimed that the deceased died due to assault of fists, slaps and kicks made by the appellant. 6. On the basis of the aforesaid fardbeyan of the informant, Manoharpur P.S. Case No. 104 of 2013 was registered as against the appellant for the offence under Section 302 of the Indian Penal Code. Police, after completion of investigation, submitted charge sheet against the appellant and, accordingly, cognizance of the offence was taken and the case was committed to the Court of Sessions for trial. 7. To prove the prosecution case, the prosecution had examined 7 (seven) witnesses, namely P.W.1 Soma Kerai, P.W.2 Chono Kerai, P.W.3 Niraso Tigga (informant), P.W.4 Dhan Singh Kerai, P.W.5 Dr. Dilip Kumar Sinha, P.W.6 Palo Melgandi and P.W.7 Mahendra Kumar. Two witnesses were examined at the instance of the Court, namely, Court Witness No.1 Bijay Kerai (Minor) and Court Witness No.2 Mariyam Kerai (Minor). The prosecution also produced following documents to substantiate its case, which were marked exhibits:- Ext.1 Ext. 2 Signature of P.W.3 Niraso Tigga on the Fardbeyan Signature of P.W.4 Dhan Singh Kerai on the Inquest Report Postmortem Report of deceased Fardbeyan Ext. 3 Ext. 4 Ext. 4/1 Endorsement on fardbeyan Ext. 5 Ext. 6 Formal F.I.R. Inquest Report (carbon copy) 8. hostile. P.W.1 Soma Kerai and P.W.2 Chono Kerai were declared P.W.3 Niraso Tigga is the informant of this case and deceased was her sister-in-law (nanad). She has proved her signature on the fardbeyan, which was marked as Exhibit 1. She has stated that the son of deceased Bijay Kerai had informed this witness that the appellant has killed his mother. On this, the P.W.3 went to see her. The dead body of the 3 Cr. Appeal (DB) 52 of 2017 deceased was at her home. Appellant had fled. Blood was oozing from the mouth of the deceased. She identified the appellant in Court. In her cross examination, she has admitted that she has not seen the occurrence. P.W.4 Dhan Singh Kerai is the nephew of the appellant. He has stated that his uncle (appellant) has killed the deceased on an evening about 2 years 5 months ago. Appellant had killed the deceased in his home itself. He had seen the dead body of the deceased and had seen injuries on her cheek, temple etc. When he had gone to see the dead body the appellant had fled from home. He has proved his signature on the Inquest Report, which was marked as Exhibit 2. P.W.5 Dr. Dilip Kumar Sinha is the doctor, who had conducted postmortem on the dead body of the deceased and had found the following:- External finding Injuries: (i) Bleeding from mouth and nose, (ii) Multiple abrasion present on left side of face of different size, (iii) Black colour skin on both side of face near ear, (iv) Abrasion on chest wall 4 inches x 2 inches (v) Black mark present on front and back of neck, (vi) Abrasion on abdominal wall left size 3” x 2”. On dissection:- Scalp-NAD Neck dissection shows black colour blood beneath the skin, Trachea and larynx congest. Thor-ex: No rib fracture, lungs intact heart-right chamber full of blood left empty. Per Abdomen:- Abdominal cavity full of blood and blood clots spleen ruptured liver intact. Other Visera NAD. Stomach Un-digested rice present. Time since Death: 6 to 36 hours because rigor mortis present both limb. Cause of Death: Haemorrhage and shock due to above mention injuries caused by hard and blunt substance cumulative effect of above mention injuries are sufficient to cause death in ordinary course of nature. He proved the Postmortem Report, which was marked as 4 Cr. Appeal (DB) 52 of 2017 Exhibit 3. P.W.6 Palo Melgandi has stated that the deceased is her paternal aunt (phuphi). She was killed in her house about 2 ½ years ago at around 04.00 p.m. in the evening. She identified the appellant in Court. P.W.7 Mahendra Kumar is the investigating officer of this case. He proved the fardbeyan bearing signatures and handwritings of Bechan Ram, Police Sub Inspector; Niraso Tigga (informant) and Maheshwar Melgandi, which was marked as Exhibit 4. He also proved the endorsement regarding registration of case on the fardbeyan, which was marked as Exhibit 4/1. He proved the formal FIR which was marked as Exhibit 5. He proved the Inquest Report of the deceased (carbon copy) which was marked as Exhibit 6. He has given the description of the place of occurrence and its boundaries. Court Witness No.1 Vijay Kerai is the son of the deceased and the appellant. He stated that his mother was killed about 2 ½ years ago. He stated that at 03.00 p.m. he along with his siblings had left for playing. When they returned at 05.00 p.m., they saw that their mother is lying dead and their father was not there at home. He informed about the occurrence to his aunt (informant-P.W.3) and cousin Dhan Singh Kerai (P.W.4). He identified the appellant who was present in Court. Court Witness No.2 Mariam Kerai is the daughter of the deceased and the appellant. She also stated in the same manner as Court Witness No.1. She further stated that since after the occurrence her father did not return. She identified the appellant who was present in Court. 9. After closure of prosecution evidence, and evidence of Court Witnesses, the statement of the appellant was recorded under Section 313 Cr.P.C wherein he claimed to be innocent. The appellant had stated that he had returned home at about 05.00 p.m. and saw his wife dead. 10. The Trial Court, after hearing the arguments and appreciating the evidences on record, by the judgment of conviction and order of sentence dated 4th October, 2016 passed in Sessions Trial No. 120 of 2014, has convicted the appellant for offences under Sections 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life and fine of Rs.10,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one year. 5 Cr. Appeal (DB) 52 of 2017 11.
Decision
Pending interlocutory applications, if any, stand disposed of. 17. Let the Trial Court Records be sent back to the Court concerned forthwith along with a copy of this judgment. 18. Before parting with, we wish to record that we have ably been assisted by the learned counsel engaged by the High Court Legal Services Committee. Considering the able assistance and effort put by the learned counsel, we direct the Jharkhand High Court Legal Services Committee to pay a remuneration of Rs.7,500/- to the learned counsel Mr. Awanish Ranjan Mishra. High Court of Jharkhand, Ranchi Dated, the 5th September, 2024 NAFR/Kumar/Cp-03 (Ananda Sen, J.) (Gautam Kumar Choudhary, J.) 7 Cr. Appeal (DB) 52 of 2017