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2017 DIGILAW 1471 (JHR)

Gola Gagrai v. State of Jharkhand

2017-08-18

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : Heard learned amicus curiae appointed by this Court for the appellant, and learned counsel for the State. 2. This appeal has been filed by the appellant, being aggrieved by the Judgment of conviction dated 10.01.2006 and Order of sentence dated 16.01.2006, passed by the learned Additional Sessions Judge, F.T.C.-V, Chaibasa, in Sessions Trial No. 121 of 2004 / S.T.R. No. 42 of 2004, whereby, the sole appellant has been found guilty and convicted for the offence under Sections 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant, Lakhan Hembrom (the Munda of the Village), recorded by the S.I. of Chakardharpur Police Station, on 13.2.2004 at 11.00 A.M., wherein he had stated that in the previous night at about 01.00 A.M., Khudia Gagrai of his village came and informed that his brother Gola Gagrai had committed the murder of his wife and the dead body was in the house. On the said information, the informant went to the place of occurrence and found the dead body of the lady in the house. Her husband Gola Gagrai (the accused) was also present in the house and several other persons of the village were also there. He asked the accused Gola Gagrai, whereupon he stated that he had some quarrel with his wife, in which he had assaulted his wife, due to which she died. The informant stated that from the dead body it appeared that the deceased was murdered by using sharp cutting weapon and lathi-danda. The accused Gola Gagrai was kept in the house and he was produced before the police. On the basis of the fardbeyan, Chakardharpur P.S. Case No. 15 of 2004, was instituted for the offence under Section 302 of the Indian Penal Code, against the accused Gola Gagrai, and investigation was taken up. After investigation, the police submitted the charge sheet against the accused. 4. Upon commitment of the case to the Court of Session, charge was framed against the accused for the offence under Sections 302 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. After investigation, the police submitted the charge sheet against the accused. 4. Upon commitment of the case to the Court of Session, charge was framed against the accused for the offence under Sections 302 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, seven witnesses were examined on behalf of the prosecution, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. The Investigating Officer of the case has not been examined. 5. P.W.-4 Lakhan Hembrom is the informant in the case. He has stated that he is the Munda of the village and the occurrence had taken place in the night of 13.02.2004. He was informed about 12.30 A.M. by Budhiya Gagrai that Gola Gagrai had committed the murder of his wife. This witness asked him to keep Gola Gagrai confined and the matter would be looked into in the morning. In the night the accused was kept confined and in the morning this witness went to the place of occurrence and he asked the accused, who confessed his guilt before him, stating that he had assaulted the deceased in the state of drunkenness. No weapon was seized from the place of occurrence. There were injuries on the head of the deceased, which appeared to be caused by sharp cutting weapon. He informed the police that the accused had committed the murder of his wife in the state of drunkenness. He has stated that earlier also quarrel used to take place between the husband and the wife. He has identified the accused in the Court. In his cross-examination, this witness has admitted that the village Munda also exercises the police power. He has admitted that he was informed about the occurrence in the night, but he came to the place of occurrence in the next morning. His attention was drawn towards his statements made before the police, and he stated that he had given the statement before the police that he had asked the brother of the accused to keep the accused confined and he had also given statement before the police that the accused had confessed his guilt before him. He had denied the suggestion to have given false evidence. He had denied the suggestion to have given false evidence. This witness was again recalled and he has identified his signature on the fardbeyan, which was marked Ext.-1, but he has stated that it was a written report, which was written by the Manki of the village, namely, Krishna Samad, upon which he had put his signature. 6. P.W.-1 Makardhwaj Pradhan and P.W.-3 Gangaram Tanti, have stated that they were informed about the occurrence by the Munda, whereupon they went and saw the dead body. P.W.-1 has stated that he was informed that Gola Gagrai had committed the murder of his wife, whereas P.W.-3 Gangaram Tanti has stated that he has no knowledge as to who had committed the murder of the deceased. 7. P.W.-5 Madhusudan Hembrom and P.W.-6 Ashok Gagrai have stated that they were informed that the accused had committed the murder of his wife and they had seen the dead body of the deceased in the house. P.W.-5 Madhusudan Hembrom has stated that he had not seen the occurrence, and P.W.-6 Ashok Gagrai has stated that he went to the place of occurrence only after the police arrived. 8. P.W.-2 Khudia Gagrai is the brother of the accused Gola Gagrai. He has stated that on the next day in the morning when he woke up, he was informed about the occurrence, and he informed the Munda. When Munda came, the accused confessed before him that there was some quarrel between them in which he assaulted his wife due to which she died. 9. It is thus apparent that all the aforesaid prosecution witnesses are not the eyewitnesses to the occurrence, rather they are only the hearsay witnesses. None of them have stated that they found any blood, or any mark of violence at the place of occurrence. 10. P.W.-7 Dr. Suresh Chandra Arun, is the Medeical Officer, who had conducted the post-mortem examination on the dead body of deceased on 13.02.2004 at 02.15 P.M., and had found the following ante-mortem injuries on the dead body: - (1) Lacerated wound on forehead on right side 3” x 2” x deep to bone. (2) Abrasion left cheek 1 1/4” x 1 1/4”. (3) Punctured wound 1/8” in diameter skin deep on right forehead lateral right eyebrow. (4) Abrasion on right elbow 1/2” x 1/2”. (5) Abrasion on left elbow 1/2” x 1/2”. (2) Abrasion left cheek 1 1/4” x 1 1/4”. (3) Punctured wound 1/8” in diameter skin deep on right forehead lateral right eyebrow. (4) Abrasion on right elbow 1/2” x 1/2”. (5) Abrasion on left elbow 1/2” x 1/2”. (6) Abrasion 3” x 2 1/2” left hip near anterior iliac spine. On internal examination -brain lacerated at injury No. 1 with blood clot in cranial cavity. Chest, lungs-NAD. Heart empty. Stomach contained partially digested food. Bladder-empty. Uterus-small, other visceras intact. This witness has stated that the cause of death was injury to brain at injury No. 1. Injury No. 3 was caused by some penetrating substance. All other injuries were caused by hard and blunt substance. This witness has identified the post-mortem report to be his pen and signature, which was marked as Ext-2. 11. As stated earlier, the Investigating Officer has not been examined in the case and only on the basis of the aforementioned evidence on record, the accused has been convicted and sentenced for the offence as aforesaid, by the Trial Court below. 12. Learned amicus curiae appearing for the appellant submitted that the impugned Judgment of conviction and Order of sentence, passed by the Trial Court below are absolutely illegal and cannot be sustained in the eyes of law, in as much as, there is no eyewitness to the occurrence and the case rests only on the evidence of the hearsay witnesses, which again, are full of contradictions. According to the FIR lodged by the Munda, he was informed by the accused that he had some quarrel with his wife due to which he had assaulted her and she had died, whereas in his evidence the Munda, who is the informant P.W.-4 Lakhan Hembrom, has stated that he was informed by the accused that he had assaulted the deceased in the state of drunkenness. It is also pointed out by the learned amicus curiae that when the Munda was informed about the occurrence in the night itself, at about 12.30 to 01.00 A.M., there was no occasion for him to have visited the place of occurrence in the morning. It is also pointed out by the learned amicus curiae that when the Munda was informed about the occurrence in the night itself, at about 12.30 to 01.00 A.M., there was no occasion for him to have visited the place of occurrence in the morning. It is also pointed out that though the Munda, P.W.-4 Lakhan Hembrom has stated that the was informed about the occurrence in the night itself by the brother of the accused, but P.W.-2 Khudiya Gagrai, who is the brother of the accused, has stated that he himself learnt about the occurrence in the morning when he woke up and, thereafter, he went to inform the Munda of the village. Learned amicus curiae has also pointed out that though P.W.-4 Lakhan Hembrom has identified his signature stating that he had put the signature on the written report, which was written by the Manki of the village namely, Krishna Samad, which was marked Ext.-1, but Ext.-1 is the signature on the fardbeyan, which was recorded by the S.I. of the Police and this also makes the prosecution case doubtful. Learned amicus curiae lastly, submitted that though the witnesses have stated that the accused was also present in the house, but there is no recovery of any weapon either from the possession of the accused or from the house, even though it is clearly alleged that the deceased was assaulted by sharp cutting weapon and also by hard and blunt substance. Learned amicus curiae accordingly, submitted that the impugned Judgment of conviction and Order of sentence cannot be sustained in the eyes of law and it is a fit case where the appellant ought to have been given the benefits of doubt. 13. Learned counsel appearing for the State, on the other hand, has opposed the submissions made by the learned amicus curiae and submitted that the witnesses have stated that the accused was also present in the house. He was also kept confined and was later on produced before the police. It is submitted that the accused made the extra judicial confession before the Munda, Lakhan Hembrom (P.W.-4), stating that he had committed the murder of the deceased and this also finds support from the medical evidence of P.W.-7 Dr. Suresh Chandra Arun and the post-mortem report proved by him as Ext.-2. It is submitted that the accused made the extra judicial confession before the Munda, Lakhan Hembrom (P.W.-4), stating that he had committed the murder of the deceased and this also finds support from the medical evidence of P.W.-7 Dr. Suresh Chandra Arun and the post-mortem report proved by him as Ext.-2. Learned counsel accordingly, submitted that the prosecution has been able to prove the charge against the accused appellant beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed against the appellant by the Trial Court below. 14. Having heard learned counsels for both the sides and upon going through the record, we find that there are many contradictions in the prosecution case. Admittedly, there is no eyewitness to the occurrence and the case rests only on the evidence of the hearsay witnesses. Though in the F.I.R it has been stated by the informant that the accused had made an extra judicial confession before him that there was some quarrel between them and he had assaulted his wife due to which she died, but in his evidence he has stated that the accused made the extra judicial confession that he had assaulted his wife in the state of drunkenness. This witness has clearly stated that he had given the written report, which was written by the Manki of the village namely, Krishna Samad, on which he had put his signature, but the present case was instituted on the basis of the fardbeyan, which was recorded by the S.I. of Police, on which he has identified his signature and the same was marked as Ext.-1. It also appears from the post-mortem report proved as Exhibit 2 and the evidence of P.W.-7 Dr. Suresh Chandra Arun, that there were bleeding injuries on the deceased caused by hard and blunt substance, as also injury caused by penetrating weapon, but there is no recovery of any weapon from the house, even though the accused was kept confined in the house itself where the dead body was found. None of witnesses have stated that they found any blood, or any mark of violence at the place of occurrence. 15. Since the Investigating Officer has not been examined in this case, we have also looked into the case diary. None of witnesses have stated that they found any blood, or any mark of violence at the place of occurrence. 15. Since the Investigating Officer has not been examined in this case, we have also looked into the case diary. The description of the place of occurrence given in the case diary shows that there is no mention of any mark of violence found in the house and there is no mention even of the presence of blood or blood stains in the house, even though there was bleeding injury on the dead body of the deceased. The Investigating Officer has only stated that the dead body was found lying on the cot and there is no mention of any presence of blood even on the cot. As such there is possibility that the deceased might have been murdered somewhere else and the dead body was brought later in the house. We also find that the non-examination of the I.O., has vitally prejudiced the defence, in as much as, necessary contradictions in the evidence of the informant P.W.-4 Lakhan Hembrom, could not be from the I.O. This apart, had the I.O. been examined in the case, he could have thrown some light on the missing links in the case also, i.e., non-mentioning of the presence of any incriminating circumstance, such as the absence or presence of blood or blood stains, or the absence or presence of any mark of violence at the place of occurrence. In the facts of this case, though the witnesses have stated that they were informed that the accused had committed the murder of his wife, and the accused was present in the house, but we are of the considered view that on the basis of the evidence on record, the prosecution has not been able to bring home the charge against the accused appellant beyond all reasonable doubts, and in the facts and circumstances of this case, the appellant was entitled to the benefits of doubt. 16. For the foregoing reasons, the impugned Judgment of conviction dated 10.01.2006 and Order of sentence dated 16.01.2006, passed by the learned Additional Sessions Judge. F.T.C.-V, Chaibasa, in S.T. No. 121 of 2004 / S.T.R. No. 42 of 2004, are hereby, set aside. The appellant Gola Gagrai is given the benefits of doubt and he is acquitted of the charge. The appellant is in custody. F.T.C.-V, Chaibasa, in S.T. No. 121 of 2004 / S.T.R. No. 42 of 2004, are hereby, set aside. The appellant Gola Gagrai is given the benefits of doubt and he is acquitted of the charge. The appellant is in custody. Let him be released and set at liberty forthwith, if his detention is not required in any other case. 17. Before parting with the Judgment, we must record that we got very able assistance in this case from Ms. Suchitra Pandey, learned amicus curiae. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to the learned amicus curiae. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful. 18. This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.