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2006 DIGILAW 1419 (JHR)

Nandu Routh v. State of Jharkhand

2006-12-18

D.G.R.PATNAIK, R.R.PRASAD

body2006
JUDGMENT D.G.R. Patnaik, J.- The appellant Nandu Routh was charged with and tried , for the offence under sections 302, 201 and 34 of the Indian Penal Code alongwith three others and he was convicted and sentenced to undergo imprisonment for life for the offence under section 302/34 of the Indian Penal Code, while other remaining three accused persons were acquitted from the charges. 2. Briefly stated, facts of the case, on the basis of which the instant case was registered, is that Ayna Routh, who was the wife of the appellant Nandu Routh, has suffered unnatural death while she was living at her matrimonial house alongwith her husband and in-laws. The deceased was strangulated to death in the afternoon on 22.6.1999. On receiving the information about the murder of his daughter from a street hawker at Jamtara market, her father (PW 6) who is the informant of this case, alongwith some members of his family and other acquaintances, went to the village of the appellant where he was informed that the husband and in-laws had proceeded to cremate the dead body of this daughter, but were intercepted by the village choukidar and others who brought the dead body to the police station where the father of the deceased saw the dead body and he observed marks of injury on the neck and left ear of the deceased. His statements' were recorded by the police officer as his fardbeyan, on the basis of which, the case was registered for the aforementioned offences against the husband (appellant), father-in-law and brothers-in-law of the deceased. It has been claimed that though the deceased was married to the appellant six years ago, but she was constantly tortured and ill-treated by her husband and the deceased, during her lifetime, used to complain about her ill-treatment to her father. 2. After preparing inquest in respect of the dead body, the investigating officer (PW 10) had forwarded the dead body of the deceased for post mortem examination. Dr. Sambhu Nath Singh (PW 9) had conducted the post mortem examination on the dead body of the deceased on 23.6.1999 at about 11.00 A.M. and had recorded his 'observations in the post mortem report. He had found tongue brushed, bitten by teeth and protruded. He had found injury on his face and chest caused due to hard and blunt substance and face and eyes bear multiple petechial Haemorrhages. He had found tongue brushed, bitten by teeth and protruded. He had found injury on his face and chest caused due to hard and blunt substance and face and eyes bear multiple petechial Haemorrhages. There was abrasion on right side of lower part of cheek. The neck was swollen. There were bruises and eechymosis on the front and sides of neck. In addition to the bruises, crescentic abrasion caused by finger nail was seen on the neck. On exposing neck, he found subcutaneous tissues of the neck shows exprarasation of blood beneath the injured area. He also found projection of the laryngeal cartilage and ends of hyoid bones were fractured at the region of great cernuae. There was bruises (Haemorrhage) found at the place of tongue. In the opinion of the doctor, the death was due to asphyxia on account of throttling. The time of death, in his opinion, was within 24 to 30 hours prior t9 the post mortem examination. 3. The trial court while placing reliance upon the testimony of the informant (PW 6) and that of the doctor (PW 9) who had conducted autopsy on the dead body and also on the evidence of the investigating officer (PW 10), had recorded its finding of guilt for the offences under sections 302 and 34 of the Indian Penal Code against the present appellant only. 4. The appellant has assailed the impugned judgment of his conviction and sentence primarily on the ground that since the other co-accused persons were acquitted from the charges for the offence under sections 302 and 34 of the Indian Penal Code, no conviction could have been sustained for the same offence against the present appellant. Referring to the judgment of the Supreme Court AIR 1996 SC 2727 , learned counsel for the appellant submits that apparently, the trial court did not find any direct evidence against the appellant and, therefore, the appellant was charged with and convicted for the offence under sections 302 and 34 of the Indian Penal Code and in absence of any specific evidence of overt act against the appellant and the case resting entirely on circumstantial evidence, conviction of the appellant for the offence under section 302 with the aid of Section 34 of the Indian Penal Code, is totally misconceived and is not sustainable. Learned counsel argues further that out of ten witnesses who were examined, PW 1, PW 2, PW 3, PW 7 and PW 8 were declared hostile, since they did not offer any support to the prosecution's case. PW 4 is a formal witness who had signed as a witness on the inquest report. PW 5 who is the cousin of the informant and PW 6, who is informant himself, are hearsay witnesses. While remaining are the doctor (PW 9) and the investigating officer (PW 10). Learned counsel argues that there is no eye witness account relating to the murder of the deceased and neither has the place of occurrence been specifically proved, since the dead body was found by the informant (PW 6) at the police station. No evidence has been led by the prosecution to infer as to how the dead body had reached at the police station. Learned counsel adds further that though, the prosecution has tried to project circumstantial evidence against the appellant, but the evidences do not form a complete chain, nor do the evidences lead to a conclusive inference of guilt of the appellant. 5. Learned counsel for the State, on the other hand, while defending the impugned judgment of conviction and sentence, argues that though in this case, there is no direct evidence on the point of murder, but circumstance which has been brought on record through the evidence of the informant and that of PW 4, PW 5, PW 7 and PW 8 do confirm that the deceased being the wife of the appellant, used to live at her matrimonial house in the company of her husband (appellant) and his family members. The evidence of the informant (PW 6) confirms that the deceased used to be ill-treated, assaulted and abused by the appellant and the deceased used to complain about her ill treatment to her father namely, PW 6. Learned counsel adds that the deceased had suffered unnatural death and was in fact murdered by way of strangulation, as confirmed by the doctor who had conducted the post mortem examination. Learned counsel adds that the deceased had suffered unnatural death and was in fact murdered by way of strangulation, as confirmed by the doctor who had conducted the post mortem examination. Murder was committed in the house of the appellant and there is evidence to indicate that despite the fact that the deceased had suffered unnatural death, the appellant instead of promptly informing the police, had proceeded to cremate the dead body and it was on their way to cremation that they were intercepted by the village choukidar and the dead body was brought to the police station. Learned counsel submits that these are the strong circumstances which when read together, point out that the appellant had committed murder of the deceased. Refuting arguments of the learned counsel for the appellant that no conviction for the offence under sections 302/34 of the Indian Penal Code could be sustained against the appellant, learned counsel for the State submits that the trial court has though refused to acknowledge the evidences as sufficient evidence by way of any specific overt act against the other co-accused who were put at the trial, but the circumstance as brought on record, clearly indicate that there was definite motive on the part of this appellant who was found to be alcoholic and in the habit of assaulting and subjecting the deceased to cruelty and in such view of the matter, evidence clearly point out that this appellant was entirely responsible for the murder of the deceased and therefore, even if the co-accused persons were acquitted though they were also put on trial along-with the present appellant for the offence under sections 302/34 of the Indian Penal Code, yet conviction can be sustained against the present appellant only for the offence under section 302 of the Indian Penal Code on the basis of the evidences on record. 6. Issues which arise for determination are:- 1. Whether in the present case, evidences brought on record by the prosecution, do constitute sufficient evidence in proof of the charge for the offences under sections 302/34 of the Indian Penal Code against the accused persons including the appellant who were put on trial? 2. 6. Issues which arise for determination are:- 1. Whether in the present case, evidences brought on record by the prosecution, do constitute sufficient evidence in proof of the charge for the offences under sections 302/34 of the Indian Penal Code against the accused persons including the appellant who were put on trial? 2. Whether conviction of the appellant alone can be sustained for the offence under sections 302/34 of the Indian Penal Code, even in the face of acquittal of other co-accused persons for the same charges or for the offence under section 302 of the Indian Penal Code simplicitor? 7. While reading the evidences, learned counsel for the appellant has elaborated that the prosecution has not adduced any direct evidence against the accused persons and the purported circumstantial evidence on the basis of which the prosecution has sought to secure conviction of the accused persons, is the evidence of PW 6, who is the informant and of PW 5, who is the cousin of the informant, while most of the material witnesses including PW 1, PW 2, PW 3, PW 7 and PW 8 have failed to offer any support to the prosecution's case. Yet, it is on the basis of these evidences that the trial court has recorded its finding of guilt against the appellant, though extending benefit of doubt in favour of the other co accused persons who were also put on trial along-with the appellant. 7. The case relates to the unnatural death of 18 years old young girl within less than 7 years of her marriage at the time when she was living at her matrimonial house in the company of her husband and her in-laws. The father of the deceased (PW 6), who is the informant, has sought legal action against the husband and in-laws of her deceased daughter, whom he believes to be the perpetrators of the murder of his daughter. In his written report (F.I.R.), lodged at the police station on 23.6.1999, he narrates that his daughter Ayna Routh (deceased) aged 18 years, was married to Nandu Routh (appellant) six years ago. He had to sell away his paddy field in order to arrange a sum of Rs. 25,000/- which he had given to his son-in-law at the time of his daughter's marriage. Contrary to his expectations, he found his son-in-law to be drunkard, who used to assault the helpless girl regularly. He had to sell away his paddy field in order to arrange a sum of Rs. 25,000/- which he had given to his son-in-law at the time of his daughter's marriage. Contrary to his expectations, he found his son-in-law to be drunkard, who used to assault the helpless girl regularly. About one year prior to the death of the deceased, on learning about the plight of his daughter, he had gone to her matrimonial house and had pleaded to the members of the family not to ill-treat her. 15 days prior to the death, he had again visited his daughter at her matrimonial house, intending to take her to his own house. At that time, his daughter cried and narrated her plight, stating that she was assaulted. His son-in-law and his parents refused to send his daughter on vidal and the informant had to return his home alone. 15 days after his return, he received the information at the market place that his daughter has died. Accompanied by some members of his family and other acquaintances, he went to the house of his son-in-law on 23.6.1999 and learnt from the neighbors of his son-in-law that on previous day i.e. on 22.6.1999, the appellant and his parents killed the informant's daughter and even without informing the parents of the deceased, they proceeded to cremate the dead body at the river bank, but the villagers and choukidar of the village had intercepted and restrained them from cremating the dead body and had informed the police. The informant went to the police station where he found the dead body of his daughter and also saw injuries on the neck and side of left ear. In his deposition, he reiterated the same statement, as contained in his written report. In his cross-examination, he affirms that at the police station, he saw his son-in-law (appellant) who was trying to plead with him. He explains that there was a persistent strain in the relations between his daughter and her husband and that her daughter used to remain pensive, since she did not have any issue. He has denied the suggestion that his daughter had committed suicide. He explains that there was a persistent strain in the relations between his daughter and her husband and that her daughter used to remain pensive, since she did not have any issue. He has denied the suggestion that his daughter had committed suicide. PW 5, PW 7 and PW 8, who are cousin brothers of the informant, have corroborated the statement of the informant to the extent that on receiving the information regarding the death of the informant's daughter, they alongwith the informant and four other persons of the village had proceeded to the village of the informant's son-in-law. They went to the police station where they saw the dead body of the informant's daughter Ayna Routh with injuries on her neck. PW 1 is the choukidar, to whom the informant has referred in his written report, as the person who had intercepted the accused persons on the way when they were proceeding to cremate the dead body of the deceased at the river bank. This witness has bluntly refused to knowledge about the occurrence. The prosecution while declaring him hostile, had invited his attention to his previous statement made by him before the investigating officer wherein he had purportedly stated that on the night of 22.6.1999 while he was on night patrolling duty alongwith his companions, he saw four persons carrying a dead body of a female on a cot towards the river side and on seeing him and his companions in uniform, those persons fled away leaving the dead body on the ground. The investigating officer has affirmed that this witness had given the aforesaid statement before him. The witness has, however, chosen to not to speak on the issue. The same is the- attitude of the other witnesses whom the prosecution had earlier relied upon as material witnesses but who had eventually failed to support the prosecution case. The consistent evidence of these witnesses namely, PW 6, PW 5 and PW 8 is that the deceased daughter of the informant, after her marriage with the present appellant about six years ago, used to live at her matrimonial house in the company of her husband and her in-laws. On 22.6.2006, the informant received the information from a hawker at Jamtara market about the death of his daughter at her matrimonial house. On 22.6.2006, the informant received the information from a hawker at Jamtara market about the death of his daughter at her matrimonial house. The informant alongwith PW 1, PW 7 and PW 9 had proceeded to the village of his son-in-law where they reached in the hours of night. In the next morning, they went to the police station where they saw the dead body of the deceased. They also found marks of violence and injury on the neck and by the side of left ear of the deceased. PW 10, who is the investigating officer of the case, affirms that on receiving the charge of the investigation of the case at about 5.30 in the morning of 23.6.1999, he prepared the inquest report on the dead body of the deceased at the police station in the presence of witnesses. He explains that the dead body was brought to the police station at about 10.30 PM of the previous night by the village choukidar and the sardar. He had mentioned this fact in the case diary and also made entry of the same in the police station diary vide S.D. No. 550. He has described the place of occurrence being the house of the accused persons consisting of two rooms out of which, one was in the exclusive use and occupation of the deceased and her husband (appellant). He admits that he did not inspect the place from where the choukidar had brought the dead body to the police station. On his inspection of the house of the accused persons, he had found that the floor of the room and courtyard was freshly smeared with cow dung. He affirms that after conducting the inquest on the dead body of the deceased, he had forwarded the dead body to the hospital for post mortem examination. From the inquest report (Ext. 6), it appears that the police officer, who had conducted the inquest, had observed two injuries, one on the left side of the neck and the other, below the left ear. Both were bleeding injuries. 8. As per the statement of the witnesses as well as the inquest report, it appears that there was definite mark of injury on the neck and by the side of the left ear of the deceased. Both were bleeding injuries. 8. As per the statement of the witnesses as well as the inquest report, it appears that there was definite mark of injury on the neck and by the side of the left ear of the deceased. The doctor (PW 9) had found the tongue protruding bitten by the teeth and there was bruise found on the base of the tongue. The neck was swollen. There was mark of violence on the cheek and bruises and crescentic abrasion caused by finger nails seen on the neck and also on the cheek. The ends of thyroid bone was found fractured. The doctor had found sufficient basis to opine that the death of the deceased was on account of asphyxia due to throttling and the injuries which had caused the death were ante mortem. 9. On careful analysis of the entire evidences and statements of the witnesses, the circumstance which surface are that; 1. the deceased was the wife of the appellant with whom she was married six years prior to her death. 2. before her death, she used to live at her matrimonial house in the company of her husband and her in laws. 3. the conduct and behaviour of her husband towards her was never congenial or cordial. Rather, as informed to her father (PW 6) by the deceased herself, she used to suffer ill-treatment besides physical assault and mental cruelty at the hands of her husband who was an alcoholic. 4. there was occasions in the past when the father of the deceased had to plead with his son-in-law and his parents not to ill-treat the deceased. 5. the deceased while living at the house of her husband, had suffered unnatural death, which in the opinion of the doctor was on account of throttling. 6. the appellant and members of his family, instead of promptly informing the parents of the deceased and to the police, had proceeded to hurriedly cremate the dead body on the same night. 7. their attempt to cremate the dead body was foiled when they Were intercepted mid-way to the river bank and the dead body was brought to the police station. 8. though choukidar (PW 1) has refrained to speak on this Issue, but the evidence of the investigating officer (PW 10) is sufficiently indicative. 10. 7. their attempt to cremate the dead body was foiled when they Were intercepted mid-way to the river bank and the dead body was brought to the police station. 8. though choukidar (PW 1) has refrained to speak on this Issue, but the evidence of the investigating officer (PW 10) is sufficiently indicative. 10. These are the circumstances, each of which are linked together and lead to the question as to what were the circumstances, in which the deceased suffered homicidal death while she was living at her matrimonial house in the company of her husband and in-laws. The answer to this question lies exclusively within the knowledge of the accused persons, particularly the husband of the deceased. The circumstances eloquently proclaim that it was the husband namely the present appellant who used to share exclusive company with the deceased in his room. His past conduct, as stated by the informant, does suggest that assaulting his wife and that too in the state of inebriation, was his regular habit. The possibility of the deceased committing suicide has been ruled out absolutely by the doctor, who on the basis of the ante mortem injury found on the body of the deceased, had arrived at definite and conclusive opinion that it was a case of homicide by throttling. Each of the foregoing circumstances appears to have been put to the appellant by the trial court while recording his statements under section 313 Cr. P. C. and except denying and expressing ignorance, the appellant does not come out with any specific answer. The circumstances, in which the deceased had died, clearly indicate that it was within the exclusive knowledge of the appellant as also the other members of his family as to how and under what circumstances, did the deceased suffer fatal injuries. It was the appellant and the members of his family to explain as to why despite the unnatural death of the deceased, they did not promptly inform either to the parents of the deceased or to the police. It was for the appellant and other co-accused persons to explain as to how the dead body of the deceased had reached the police station. The above circumstance constitutes facts are reasonably expected to be exclusively within the knowledge of the co-accused persons. It was for the appellant and other co-accused persons to explain as to how the dead body of the deceased had reached the police station. The above circumstance constitutes facts are reasonably expected to be exclusively within the knowledge of the co-accused persons. The failure of the accused persons to offer any reasonable answer to the question regarding the circumstance in which the deceased had suffered the fatal injuries leading to her death while she was living in their house, inevitably leads to draw adverse inference against the accused persons and this in itself, does constitute another circumstance in the chain already linked by the prosecution and it also completes the chain and thereby leaving no doubt to draw the inference and record a finding that the appellant was the author of the fatal injuries caused to the deceased and in this, he was aided and abetted by the members of his family who include the other co-accused persons who were also put on trial. It is another thing that from the evidences on record, the degree of participation of other co-accused persons may not be assessed and because of which, they may derive benefit of doubt, but the evidences are sufficient enough to prove charge for the offence under section 302 of the Indian Penal Code against the present appellant. 11. We find that the trial court has assigned adequate reasons for the findings of guilt arrived at against the present appellant. We do not find any merit in this appeal. Accordingly, this appeal is dismissed. Judgment of conviction and sentence, as imposed by the trial court against the appellant, is hereby confirmed. R.R. Prasad, J.-I agree.