The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (D.B.) No. 1031 of 2015 ---------- (Against the judgment of conviction and order of sentence dated 18.02.2015 passed by the learned Principal Sessions Judge, Sahibganj in S.T.No.48 of 2013) ------------ Dhena Mohli, son of late Charan Mohli, Resident of village-Telo Mohli Tola, P.O. & P.S.-Borio, District-Sahibganj, Jharkhand The State of Jharkhand … … …Respondent … -Versus- … …Appellant --------- P R E S E N T SRI ANANDA SEN, J. SRI SUBHASH CHAND, J. For the Appellant For the State : Mr. Swami Nath Prasad Roy, Advocate : Mr. Bhola Nath Ojha, Spl. P.P. --------- Order No.13 /Dated: 23.04.2024 Per Ananda Sen, J: Heard the learned Counsel for the appellant and the learned A.P.P. on behalf of the State. 2. The appellant has preferred this appeal against the Judgment of Conviction and Order of Sentence dated 18.02.2015 passed by the Principal Sessions Judge, Sahibganj in Sessions Trial No.48 of 2013, arising out of Borio P.S. Case No.117 of 2012 whereby the appellant has been held guilty and convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and fine of Rs.1,000/- for the offence under Section 302 of the Indian Penal Code and in default of making payment of fine, the appellant has been ordered to serve further simple imprisonment of six months. 3. Vide order dated 23.07.2012 the cognizance has been taken against the accused persons Dhena Mohli and Lukas Mohli under Section 302/34 of the Indian Penal Code. Vide order dated 01.02.2013 the accused Lukas Mohli was found juvenile in conflict with law, therefore his case was separated and the split up record was sent to the Principal Magistrate, J.J.Board, Sahibganj. Vide order dated 13.02.2013 the case of the accused Dhena Mohli was committed to the court of Sessions for trial and disposal. 2.
Legal Reasoning
with the statement given by the Doctor, we find that the Doctor also found that the face of Sushila was distorted on the right side. He also found incised wound on the right side of the breast and neck. P.W.No.2-Somay Mohli said that he had also seen injury on the breast of deceased-Sushila. The Doctor also found that jaws were separated. So the injury as narrated by the witnesses as seen by them, matches with the medical evidence. Similar is the case in respect of injury of Bhattu Mohli as the Doctor found incised wound on the right temporal region of the deceased. The Doctor also opined that the injury can be caused by axe. So far as the P.W.No.3 is concerned, she stated that she had seen this appellant assaulting the deceased. These eye-witnesses who were P.W.1, P.W.3, P.W.4 and P.W.5 are reliable as statement of each of them corroborates 11 with the others. Their presence at the place of occurrence also is established from the statement of the witnesses. 20. So far as the motive is concerned, the witnesses have stated that the deceased-Sushila Mohli was sleeping with Bhattu. Even the daughter of Sushila i.e. P.W.7 has stated that her mother was having some illicit relationship with Bhattu. This gets strengthen from the fact that both Bhattu and Sushila were sleeping on the same bed where the occurrence had taken place. All of them had seen this appellant fleeing from the place of occurrence immediately. There is no doubt that P.W. 1, P.W.3, P.W.4 and P.W.5 are the eye-witnesses to the said occurrence. There is nothing in their evidence to disbelieve them. 21. So far as recovery of the weapon is concerned, when all the eye-witnesses have stated that the assault was by axe and the Doctor has also opined that the cause of death was due to shock and haemorrhage caused by hard heavy and sharp object, the weapon used may be Tangi (axe), it is not necessary to produce the said murder weapon since the case is based on direct occular evidence. 22. Considering the materials on record, we find that the appellant does not make out any ground for acquittal. The trial court has correctly convicted the appellant by the impugned Judgment, as the prosecution has been able to prove the guilt of the appellant beyond all reasonable doubts. 12 23. We do not find any merit in this appeal. Accordingly, the same is dismissed. 24. Let the Trial Court Record be sent back along with the copy of the Judgment. (Ananda Sen, J.) (Subhash Chand, J.) Jharkhand High Court, Ranchi Dated the 23.04.2024 P.K.S./N.A.F.R. 13
Arguments
The Counsel for the appellant submits that on 28.05.2012 at night the incident occurred and it has been claimed by the prosecution witness-informant that with the help of torch he could identify the appellants, which is unbelievable. It has further submitted that false motive has been assigned in this case. It has been alleged that since the deceased Sushila Mohli was the wife of this appellant and she was having some illicit relationship with deceased-Bara Bhattu Mohli and they resided together, the appellant had committed the murder of the deceased. He submits that this motive is absolutely not trustworthy. He further submits that on the fact, if evidences of the witnesses are scrutinized properly, the only inevitable conclusion is that the appellant is innocent as none of the witness can be said to be eye-witness to the occurrence. Neither the murder weapon nor the torch was seized. On this ground the Counsel for the appellant prays that the appellant may be acquitted. 2 4. The Counsel appearing on behalf of the State submits that the evidence is consistent and there is no material to disbelieve the witnesses. He submits that statement of witness corroborates with each other. So far as the assault is concerned, he submits that informant and the other P.W.s are eye-witness who had seen the occurrence. Further the occurrence had taken place in the house of the informant where this appellant and his son entered and committed the murder of both the deceased. So far as the motive is concerned, the daughter of this appellant had stated that there was some illicit relationship between the deceased-Bara Bhattu Mohli and her mother Sushila Mohli and admittedly both of them were found sleeping together in the house of the informant which strengthens the motive which has been attributed. The medical evidence also corroborates the statement of the ocular witness. Thus, this appeal should be dismissed. 5. The informant is Royo Mohli. He stated that on 28.05.2012, after having dinner he was sleeping outside his house. He suddenly heard screaming from inside his house. With the help of torch, he could see this appellant with an axe in his hand and his son Lukas, aged about 16 years was fleeing away from the place of occurrence. Inside the room he saw Bhattu and Sushila lying dead in seriously injured condition on the same cot smeared with blood. He raised alarm then the villagers reached but by that time both the injured died. He states in the F.I.R. that Sushila is the wife of this appellant and she was having illicit relationship with Bhattu. She was residing 3 with Bhattu since a week as a result of this a grievance was raised by this appellant before the Pradhan of the village but due to some marriage ceremony in the village the matter could not be taken up. Thus, with the help of axe he had committed the murder of both the deceased. 6. On the basis of the aforesaid fardbayan Borio P.S. Case No. 117 of 2012 was instituted under Section 302/34 of I.P.C. The Police investigated the case and submitted charge-sheet under the aforesaid section. The appellant claimed not guilty, thus he was tried. 7. On behalf of the prosecution eight witnesses were examined. They are P.W.1-Royo Mohli, P.W.2-Somay Mohli, P.W.3-Manisha Mohli, P.W.4-Merang Muni Mohli, P.W.5-Pargana Mohli, P.W.6- Dr. Vijay Kumar, P.W.7-Sumita Mohli and P.W. 8-Vinodanand Singh. Some documents were also exhibited. Ext.1-Postmortem report of Sushila Mohli dated 29.5.2012, Ext.2- Postmortem report of Bada Bhattu Mohli dated 29.5.2012, Ext.3-Fardbayan of Royo Mohli, Ext.4-F.I.R. Further inquest report of both the deceased was marked as X and X/1. 8. After closure of prosecution witness, the statement of appellant was recorded under Section 313 of Cr.P.C. The defence also examined one witness namely Tala Soren D.W.1. 9. The trial court thereafter considering the evidence of the parties and the materials on record convicted and sentenced the appellant to undergo rigorous imprisonment for life and to pay fine 4 of Rs.1,000/- for the offence under Section 302 of I.P.C. In case of non-payment of fine he shall further to undergo simple imprisonment for six months. 10. After hearing the Counsel for the parties, we have gone through the trial court records including the evidence, exhibits and other documents. 11. P.W.No.1 is Royo Mohli, the informant. He stated that on the date of occurrence he was sleeping in the courtyard. His son Bada Bhattu Mohli (deceased) and his wife Suhila Mohli were sleeping inside the house in the Varandah in the same cot then this appellant along with Lukas with the help of an axe assaulted both Bhattu and Sushila as a result of the said assault they died. He stated that after hearing the scream, he woke up and with the help of torch light he saw that these two appellants were assaulting the deceased. He also says that after the assault he had seen them fleeing from the place of occurrence. He stated that the assault was on the neck. He stated that he does not know why they had murdered the deceased. He admits that he had given the statement before the Police and is the informant of this case. He also admits that he had put his thumb impression. He identified the appellants in Court and states that Lukas is not present but he also can identify him. In cross- examination he states that it was summer time and there are some houses next to his house but they are in dilapidated condition where no one resides. He stated that Bara Bhattu Mohli was married but he could not say the name of his wife. In cross-examination he 5 states that Sushila is the wife of this appellant. He narrates that the distance of his house from the house of appellant is 100 yards and there are no other house in between. At the time of occurrence his son and his wife were inside the house. He stated that he was sleeping close to Bhattu. He stated that there was no enmity between appellant and Bhattu. He stated that this appellant and Lukas were holding axe in their hand. He stated that he was present at the place of occurrence where the incident had taken place and he had seen the incident. He further narrated that the appellant had given 3 to 4 blows on the neck upon Bhattu and Sushila as well. He raised alarm then villagers reached. Police came in the morning at about 8 a.m. and enquired. He stated that he narrated before the Police that both the accused were carrying axe. 12. P.W.2 is Somay Mohli another son of informant. He stated that he was sleeping at that night when the incident had occurred. He was 100 metres away from the place of occurrence. He further stated that Pargana Mohli, the son of the deceased came to his house and narrated the story. He stated that he was informed that Dhena Mohli and Lukas had committed the murder. On receiving such information, he went to the place of occurrence and saw the dead-body. He saw that both the dead-body were lying in the same cot. There was injury on the neck of Bhattu and on the chest and neck of Sushila. There was mark of injury on the face also of Sushila. He admitted that this appellant had left after committing the offence before the police came. In cross examination he could 6 not say the name of wife of Bhattu but said that Bhattu was already married. He states that Police had also enquired from him. Nothing more could be extracted from him. 13. P.W.3 is Manisha Mohli who is the wife of Babloo Mohli. She states that she was sleeping in the courtyard and on hearing noise she woke up and saw Dhena Mohli and Lukas assaulting Sushila with the Tangi. Bhattu and Sushila were sleeping there on the same cot when the incident had occurred. She states that there was mark of injury on the neck of Bhattu and on the face of Sushila. Blood was oozing out. Both died there. She identified the accused in the dock. She states that Bhattu was his uncle-in-law. They resided in the same place. There were two houses in the same compound. It was summer time 5 to 6 persons were sleeping in the courtyard who were Royo Mohli, Pargana Mohli, Madan Mohli, Bablu Mohli and Marangmai Mohli. She states that after hearing the alarm she woke up and saw this appellant fleeing. She states that she was already awake. She states that Sushila is the wife of Dhena Mohli who is the accused. Nothing more could be extracted from the cross examination.. 14. P.W.4 is Merang Muni Mohali wife of Madan Mohali. She narrates that this appellant committed the murder of the deceased. Both of them were murdered. She had seen the dead-body. There was mark of assault on the neck of Bhattu Mohli and on the face of Sushila Mohli and on other parts of body also. She stated that Sushila and Bhattu were sleeping on the same cot. She admits that 7 she had not seen the appellant committing the murder of the deceased, but on alarm raised, she woke up and saw this appellant fleeing from the place of occurrence. This appellant and Lukas were carrying torch which was switched on and on the basis of the light of the torch she could identify them. She was also having a torch with her and she also identified them from the light of her torch. She identified the accused who was present in the Court. She admits that she was interrogated by the Police. She states that she had narrated all the facts to the Police also. She states that 5 to 6 persons were sleeping in the courtyard and names them as Rayat Mohli, Madan Mohli, Pargana Mohli, Bablu Mohli, Manisha. She states that the courtyard was open. She states that Bhattu Mohli is the brother-in-law and she woke up hearing the noise of scuffle. She had seen the dead-body and found blood oozing from them. She states that she had seen Dhena Mohli and Lukas fleeing from the place of occurrence. She denies false implication of this appellant. 15. P.W.5 is Paragana Mohli who is the son of the deceased. He stated that his father Bara Bhattu Mohli and one lady Sushila were sleeping in the same cot. He heard some noise from the room where they were sleeping. He woke up and saw Lukas Mohli and Dhena Mohli. Dhena Mohli was having axe in his hand and one torch. The axe was blood stained. He thereafter ran and informed Somay Mohli. He saw the dead-body of Bara Bhattu Mohli and Sushila Mohli smeared with blood. He informed his uncle. In the morning Police came and took the photographs, then he went to the Police Station. 8 Thereafter his statement was recorded. He stated that at the time of occurrence he was sleeping outside. He further stated that he went inside the room and saw the watch it was 2 O’ clock at night and thereafter he went to inform his uncle. He stated that he had not seen anyone committing the murder. He stated that his mother was living separately in Chasgama as she was not interested in residing with his father but he could not narrate the reason. He stated that Sushila (deceased) was residing in the house since 3 to 4 days from the date of incident. He showed his ignorance about the fact as to whether Sushila had married his father or not. He said that he was unhappy about the fact that Sushila was residing together with his father. He stated that he came to known from the maternal side of Sushila that Sushila and Dhena (appellant) was divorced. 16. P.W.6 is the Doctor who conducted the postmortem of both the deceased. He found the following antemortem injuries on the body of deceased-Sushila: 1. External The face was found distorted Rt. Sides. i. Incised wound measuring about 1 ½” x 1 ½” x skin deep on right side breast. ii. Incised wound measuring about 2 ½” x 1 ½” x bone deep on Rt. side of neck. iii. All teeth were found distorted jaws were found separated from the tempato mandibular joint 2. External On dissection- on opening the skull the brain and brain matter found pale. On opening the neck all the structure beneath the neck was found congested. On opening thorase all the thorasic visceral were found pale. On opening the abdominal cavity all the abdominal visscarae were found pale. 3. Time elapsed since death- 6 to 36 hours. 9 In my opinion the cause of death was due to shock and haemorrhage caused by hard heavy and sharp object. The weapon used may be a Tangi. The P.M. report is in his writing and bears his signature. The postmortem report is marked Ext.1. Further he found the following antemortem injury on the dead-body of deceased- Bado Bhattu Mohli: 1. External i. ii. Incised wound measuring about 2” x 1 ½” x bone deep on right temporal region. Incised wound measuring about 2 ½” x 1 ½”x bone deep on right eye-brow. Right eye ball was also found crushed. 2. External On dissection on opening skull, the cranial cavity was found full of blood and blood products on opening the thorax all the thorassic viseerae were found pale. On opening the abdomen all the abdominal viscerae were found pale. 3. Time elapsed since death 6 to 36 hours Opinion the cause of death was due to shock and haemorrhage caused by hard heavy and sharp object. The weapon may be a Tangi. The P.M.R. is his writing and bears his signature marked Ext.2. 17. P.W.7 is Sumita Mohli, who is daughter of Dhena Mohli. Though she was declared hostile yet she stated that her mother Sushila Mohli was having illicit relationship with the deceased-Bara Bhattu Mohli. She had seen them together also. 18. P.W.8 is the Investigating Officer who investigated the case. The F.I.R. was exhibited which was in his handwriting. He identified the fardbayan and also the fingerprint of the informant. He stated that he recorded the fardbayan. He prepared the inquest report and Royo Mohli and Somay Mohli were the witness of the said report. He admits that he has not submitted the inquest report. He recorded the restatement of the witnesses. In cross-examination nothing 10 material was extracted from him which can have any impact on this case. 19. From the evidence, we find that the deceased Bhattu Mohli and Sushila Mohli were sleeping together on the same cot has been proved from the evidence of P.W.1, P.W.3, P.W.4 and P.W.5 who were residing there. These witnesses stated that they had seen this appellant fleeing from the room, where the deceased was sleeping, with torch in one hand and axe was blood stained. They immediately had entered the room and saw both the deceased there dead. These witnesses had stated that there was assault made on the face and other part of the body of Sushila. When we read this statement along