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2018 DIGILAW 1318 (JHR)

Devnish Dhan v. State of Jharkhand

2018-06-26

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : 1. Heard learned senior counsel for the appellant and learned counsel for the State. 2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 14th March, 2005 and Order of sentence dated 17th March, 2005, passed by the learned Additional Sessions Judge, FTC-I, Chaibasa, in S.T. No. 174 of 2004, whereby, the sole appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life with fine of Rs. 4,000/- for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Anju Rojlin Dhan, who is none else than the mother of the appellant, recorded on 25.12.2003, at about 07:00 A.M. at her house situated in village Nuiya, near forest check naka, P.S. Gua, District West Singhbhum. She has stated that on the previous day, i.e. on 24.12.2003 at about 11:45 P.M. in the night, when she returned from Church, she was informed by her daughter Lotika Dhan that her son Devnish Dhan, who is the present appellant, has committed the murder of his friend Harsh Nath Choudhary, whose dead body was lying near the forest check naka. Upon getting the information, the informant went to the place of occurrence and found the deceased dead with bleeding injuries in his leg. In the meantime, the accused also came there in a drunken condition and he tried to assault his mother also, whereupon, she confined herself in a nearby house. In the morning the police arrived when she gave her fardbeyan to the police. She has also stated that her son had committed murder earlier also, in which he was earlier jailed. On the basis of her fardbeyan, Gua P.S. Case No. 45 of 2003, corresponding to G.R. No. 533 of 2003, was instituted against the sole appellant for the offence under Section 302 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused appellant for the offence under Section 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 in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused appellant for the offence under Section 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, the prosecution has examined eight witnesses in the case, including the Doctors who had conducted the post-mortem examination on the dead body of the deceased and the I.O. of the case. No defence evidence was adduced in the case. 5. PW-1 Anju Rojlin is the informant of the case. She has stated that the appellant is her own son. The occurrence had taken place on 24th December, 2003 in the night. She had gone to Church and when she had returned from Church at about 11:00 P.M., she was informed by her daughter Lotika Dhan that Harsh Nath Choudhary, who had visited her house as a guest, had been murdered by Devnish Dhan by an iron sabbal. She was not informed about the motive of the occurrence. She was informed that when Harsh Nath Choudhary was sleeping in the house, he was assaulted on his shoulder and thereafter he tried to flee away on the road, when he was chased and again assaulted by the accused. She was also informed that her daughter tried to save him, but the accused threatened to assault her also, whereupon, she fled away. Upon getting the information, she went to the road and found the dead body of the deceased. The accused was also there and wanted to assault her also, but due to fear she did not go near him. The police was informed on the other day, upon which the police came and recorded her fardbeyan. She has proved her signature on the fardbeyan, which was marked Ext.1 and she has also proved her signature on the inquest-report, which was marked Ext. 1/1. She has identified the accused in the Court, stating that from the Jail also her son had sent a threatening letter which she has proved, which was marked as Ext.2 with objection. She has also stated that earlier also her son was sent to Jail in a murder case. This witness was put to extensive cross-examination, in which she has again stated that the accused is her elder son. She has also stated that earlier also her son was sent to Jail in a murder case. This witness was put to extensive cross-examination, in which she has again stated that the accused is her elder son. She has admitted that she has not seen the occurrence, rather she was informed about the occurrence by her daughter. A suggestion was given to her that there was some affair between the deceased and this witness, which has been denied by the witness. This witness has also stated that she had handed over the sabbal to the police. She has denied the suggestion that due to the affair between her and the deceased, she has falsely implicated her son. 6. PW-2 Lotika Dhan and PW-3 Sefali Dhan are the daughters of the informant and own sisters of the appellant. Both these witnesses were present in the house at the time of occurrence and they are the eye-witness to the occurrence. They have also fully supported the prosecution case stating that they were present in the house and the deceased Harsh Nath Choudhary was also in the house. They have stated that the deceased and their brother Devnish Dhan were taking liquor together in which there was some altercation between them. PW-2 Lotika Dhan has stated that upon the altercation accused assaulted Harsh Nath Choudhary by subbal, whereupon, he ran out of the house for saving himself, but he was chased and again assaulted by subbal due to which he fell down. Whereas PW-3 Sefali Dhan has stated that after taking liquor, the accused made the deceased to sleep and the sisters were asked to go out of the house, and after closing the room, he assaulted Harsh Nath Choudhary. PW-3 Sefali Dhan has also stated that upon getting the assault the deceased tried to flee from the house in injured condition, when he was chased and again assaulted by the accused by subbal due to which he fell down. Both these witnesses have stated that they tried to save the deceased, but they were also threatened by the accused, upon which they fled away. When their mother returned from Church, they informed her about the occurrence. In her cross-examination PW-2 Lotika Dhan has stated that she had seen the accused assaulting the deceased by subbal and the subbal was also handed over to the police. When their mother returned from Church, they informed her about the occurrence. In her cross-examination PW-2 Lotika Dhan has stated that she had seen the accused assaulting the deceased by subbal and the subbal was also handed over to the police. She has also denied any illicit affair between the deceased and her mother. PW-3 Sefali Dhan has stated in her cross-examination that she had not seen the assault made inside the house, but she had seen the assault made outside the house. She has also stated that the bottle of liquor, glass and subbal were handed over to the police. To the Courts question she has stated that she has deposed what she had seen. 7. PW-4 Songa Sidui is a witness to the inquest-report and he has proved his signature on the inquest-report, which was marked Ext.1/2. He has however, stated that he had put his signature on the inquest-report at the Police Station. 8. PW-5 Dr. Murli Manish, PW-6 Dr. Swapan Kr. Singh and PW-7 Dr. B.K. Singh are the Doctors who were the members of the Board of Doctors conducting the post-mortem examination on the dead body of the deceased. PW-5 Dr. Murli Manish has stated that post-mortem was conducted by the Board of three Doctors on 25.12.2003, and following injuries were found on the dead body: External:- 1. Bruise of size 1” x 1/2”on anterior aspect of both knees. 2. Fracture of right knee joint. 3. Compound fracture of right tibia and fibula just below knee joint. 4. Lacerated wound of size 2” x 1”x deep to bone narrow present on anterolateral aspects of right leg just below knee joint with blood clot. 5. Lacerated wound of size 1” x ½” x deep to bone narrow on anterolateral aspect of right leg medial to wound No. 4 with blood clot. 6. Lacerated wound of size 1” x ½” x deep bone on anterior aspect of right leg at about mid level with blood clot. 7. Fracture of left knee joint. 8. Compound fracture of left tibia and fibula just below knee joint. 9. Lacerated wound of size 3” x 1” x deep to bone narrow on the anterior aspect of left leg with blood clot. 10. Bruise of size 1” x 1” on posterior aspect of right shoulder. 11. Fracture of right shoulder joint. 7. Fracture of left knee joint. 8. Compound fracture of left tibia and fibula just below knee joint. 9. Lacerated wound of size 3” x 1” x deep to bone narrow on the anterior aspect of left leg with blood clot. 10. Bruise of size 1” x 1” on posterior aspect of right shoulder. 11. Fracture of right shoulder joint. On Dissection: Meninges: N.A.D. Thorax: Fracture of 2nd, 3rd, and 4th ribs of right side. Blood and blood clot were present in the chest cavity. Right lung was ruptured. Heart: Empty. Other viscera: N.A.D. Soft Tissues: and vessels were ruptured in the area near knee joint of both sides. He has stated that the cause of death was shock and haemorrhage due to the injuries caused by hard and blunt object. He has also stated that the post-mortem report was prepared by him and bears his signature which he has proved and the same was marked Ext.3. The other members of the Board, Dr. Swapan Kr. Singh and Dr. B.K. Singh, also put their signatures on the post-mortem report. PW-6 Dr. Swapan Kr. Singh and PW-7 Dr. B.K. Singh have also identified their signatures on the post-mortem report, which were marked Ext.3/1 and 3/2 respectively. All these three Doctors have stated that the injuries found on the dead body of the deceased were sufficient to cause the death of the deceased. 9. PW-8. Akshay Kumar Ram is the I.O. of the case. He has stated that on 25.12.2003 he was posted as the Officer-In-charge of the Gua Police Station. At 06:30 A.M., he got the information that in village Nuiya one person had been murdered. He made sanha entry of the information and proceeded towards the place of occurrence. He reached near the forest check naka in village Nuiya, where he recorded the fardbeyan of Anju Rojlin, which he has proved and the same was marked Ext.4. He has also proved the inquest-report of the dead body and the same was marked Ext.5. Thereafter the dead body was sent for post-mortem examination. He has stated that he recorded the statements of the witnesses and he also inspected the place of occurrence, which is a road near Nuiya forest check naka, where the dead body was lying. The house of the accused was situated nearby in the Western side. He arrested the accused and submitted the charge-sheet. He has stated that he recorded the statements of the witnesses and he also inspected the place of occurrence, which is a road near Nuiya forest check naka, where the dead body was lying. The house of the accused was situated nearby in the Western side. He arrested the accused and submitted the charge-sheet. In his cross-examination, this witness has stated that he had not seized anything from the place of occurrence and he has also not seized the blood stained soil. No employee of the check naka was present there. He has denied the suggestion of making faulty investigation. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C. wherein he has denied the evidence against him. No defence evidence was adduced in the case. On the basis of the evidence on record, the accused appellant has been convicted and sentenced by the Trial Court below, as aforesaid. 11. Learned senior counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, in as much as, the prosecution has failed to bring home the charge against the accused beyond all reasonable doubts. It is submitted that PW-1 Anju Rojlin is not the eye witness to the occurrence. She is only a hearsay witness and there are contradictory statements in the evidence of the two eye witnesses, who are PW-2 Lotika Dhan and PW-3 Sefali Dhan, the daughters of the informant. Learned senior counsel pointed out that according to the evidence of PW-2 Lotika Dhan, the occurrence had taken place while both the deceased and the appellant were taking liquor together, in course of which there was a quarrel and the deceased was first assaulted by her brother in the house and when he tried to flee away, he was chased to the road and again assaulted by the accused causing his death at the spot, whereas, according to the evidence of PW-3 Sefali Dhan, after taking the liquor, the deceased was made to sleep in the house by the accused, and when he slept, he was assaulted and when he tried to flee away, he was chased and again assaulted on the road. Learned senior counsel further submitted that the evidence of both these eye witnesses would show that the occurrence had taken place due to some sudden provocation, while both the deceased and the accused were taking liquor together, and accordingly, the case is covered by Exception 4 to Section 300 of the Indian Penal Code and this homicide shall not amount to murder. Learned Senior counsel further submitted that the post-mortem report, as proved by PW-5 Dr. Murli Manish, would show that all the injuries on the dead body were on the non-vital parts of the body and according to the medical evidence also, the case would not come within the purview of Section 302 of the Indian Penal Code, rather, the offence, if any, would be made out only under Section 304 of the Indian Penal Code. In support of his contention, learned Senior counsel has placed reliance upon the decision of the Hon’ble Supreme Court in Molu and Others vs. State of Haryana, AIR 1976 SC 2499 , wherein where, even though several injuries were found on the deceased, the Hon’ble Apex Court has held as follows:- "12. The next point that falls for consideration is what is the nature of the offences that the accused have committed on the evidence led before the Trial Court. To begin with, as pointed out above, multiple injuries were received by the deceased persons which were caused by blunt weapons like lathis and are of minor character. Furthermore, the injuries are not on any vital parts of the body and even those which are on the scalp portion appear to be very superficial. There is nothing to show that the accused intended to cause the deliberate murder of the two deceased persons. There is no evidence to show that any of the accused ordered the killing of the deceased persons or incited or in any way expressed a desire to kill the deceased persons at the spot. In these circumstances we are satisfied that there is no legal evidence in this case that the accused intended to cause the murder of the deceased. The fact, however, remains that the accused have caused multiple injuries on both the deceased persons on various parts of their bodies and, therefore, they undoubtedly had the knowledge that the cumulative effect of the injuries would result in the death of the deceased. The fact, however, remains that the accused have caused multiple injuries on both the deceased persons on various parts of their bodies and, therefore, they undoubtedly had the knowledge that the cumulative effect of the injuries would result in the death of the deceased. As all the accused appear to have acted together and under a preconceived plan which developed at the spot and which is clear from the fact that they suddenly pounced on the deceased and went away together they must be deemed to have possessed a common intention to assault the deceased with the knowledge that the injuries caused by them were likely to cause the death of the deceased. In these circumstances, the accused have committed an offence under Section 304 Part II of the Indian Penal Code and not one under Section 302, I.P.C." Learned Senior counsel has also placed reliance upon a decision of the Hon’ble Apex Court in Dinesh and Another vs. State of Haryana, 2002 Cri. L.J. 2970. It is further submitted by learned senior counsel that though all the witnesses have stated that the subbal was produced before the police, but the I.O. has clearly stated that he had seized nothing from the place of occurrence. Learned senior counsel also pointed out that though the I.O. has deposed about the second place of occurrence, where the dead body of the deceased was found, but there was no mention by the I.O. about the first place of occurrence, where the deceased was allegedly first assaulted. Learned senior counsel accordingly, submitted that due to these infirmities, the prosecution has not been able to bring home the charge against the accused beyond all reasonable doubts and it is a fit case in which the accused ought to have been given at least the benefits of doubt. 12. Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution has been able to establish the charge against the accused beyond all reasonable doubts, in as much as, the case is fully supported by the two eye witnesses, PW-2 Lotika Dhan and PW-3 Sefali Dhan, who are none else but the own sisters of the appellant and they have fully supported the case as eye witness to the occurrence. They have stated that it was this accused who had assaulted the deceased by subbal in the house and when he fled away from the house to save himself, he was chased and assaulted on the road where the deceased died due to assaults made by the accused. Learned counsel submitted that even PW-1 Anju Rojlin, who is the mother of the appellant, has also fully supported the prosecution case as a hearsay witness, as informed to her by her daughters. She has also stated that when she went near the dead body upon getting the information, she was also threatened by the accused, who was there in a drunken condition. Learned counsel further submitted that several injuries were found on the dead body of the deceased and all the three Doctors, who had conducted the post-mortem examination, have stated that the injuries on the deceased were sufficient to cause death. It is submitted by learned counsel that the evidence of eye witnesses is fully corroborated by the evidence of PW-5 Dr. Murli Manish, PW-6 Dr. Swapan Kr. Singh and PW-7 Dr. B.K. Singh and the post-mortem report proved by them as Ext.-3. It is submitted by learned counsel that the injuries on the deceased would show that some of them were on the vital part of the body, as three ribs of the deceased were found fractured, rupturing the lung, and the whole chest cavity was full of blood and blood clots. Learned counsel submitted that the manner of assault made on the deceased clearly shows that the deceased was assaulted with the intention to cause his death and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 13. Having heard learned counsels for both the sides and upon going through the record, we find that minor contradictions apart, which is only natural in the criminal cases, the case is fully supported by the two eye witnesses PW-2 Lotika Dhan and PW-3 Sefali Dhan, who are none else than the own sisters of the appellant. 13. Having heard learned counsels for both the sides and upon going through the record, we find that minor contradictions apart, which is only natural in the criminal cases, the case is fully supported by the two eye witnesses PW-2 Lotika Dhan and PW-3 Sefali Dhan, who are none else than the own sisters of the appellant. Both these witnesses were present in the house and have stated that while taking liquor there was some quarrel due to which the accused assaulted the deceased by subbal on his shoulder, thereafter, when he tried to flee away from the house, he was chased by the accused appellant and again assaulted by subbal causing his death at the spot. PW-1 Anju Rojlin, the mother of the appellant, has also fully supported the prosecution case as hearsay witness to the occurrence, as informed to her by her daughters. There appears to be absolutely no reason as to why the own sisters and the mother shall try to falsely implicate the accused. Though a suggestion was given about some illicit affair between the mother of the appellant and the deceased, which has been denied by the witnesses, but the defence has not adduced any evidence to prove any such affair. This also shows the conduct of the accused appellant, who has made such a nasty suggestion against his own mother, without there being any proof about the same. The medical evidence of PW-5 Dr. Murli Manish shows that there were several injuries on the dead body of the deceased. Though most of them were on the legs, i.e., the non-vital part of the body, but there were other injuries also on the deceased which were on the vital parts of the body, as three ribs of the deceased were found fractured causing puncture in the lung. The manner of assault made in the present case clearly shows that the deceased was assaulted by this accused by iron sabbal and the repeated assaults made by subbal resulted in fracture of three ribs, puncturing the right lung and several fractures were caused in both the legs and the shoulder of the deceased, which clearly indicate that the assaults were made with the intention to cause the death of the deceased. The facts of this case and the injuries on the deceased are quite different from the one, in the case relied upon by learned senior counsel in Molu’s case (supra), wherein there were only superficial injuries on both the deceased and grievous injuries, if any, were not on the vital parts of the body. In the present case grievous injuries were found on the vital parts of the body as well. All the three Doctors, namely, PW-5 Dr. Murli Manish, PW-6 Dr. Swapan Kr. Singh and PW-7 Dr. B.K. Singh have clearly stated that the injuries on the deceased were sufficient to cause the death. The evidence that the deceased was first assaulted in the house and when he tried to flee away to save himself, he was again chased and assaulted causing his death at the spot, clearly indicates that the case is not at all covered by Exception 4 to Section 300 of the Indian Penal Code. We are of the considered opinion that in view of the unimpeachable evidence of the mother and sisters of the appellant, that this appellant had assaulted the deceased by subbal, non-seizure of subbal or the blood stained soil by the police officer shall not be fatal to the prosecution case. Though non-seizure of the subbal and the blood stained soil from the place of occurrence, and non-examination of the first place of occurrence, where the deceased was allegedly assaulted first, may be serious faults on part of the I.O. but we are of the considered view that in the present case, which is fully supported by the witnesses, who are the own sisters and mother of the appellant, the prosecution case must not suffer only due to the faulty investigation made by the I.O. particularly in view of the fact that there is nothing on the record to suggest that the own sisters and the mother shall try to falsely implicate the accused. 14. For the foregoing reasons we do not find any illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below worth interference by this Court. 14. For the foregoing reasons we do not find any illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below worth interference by this Court. Accordingly, the impugned Judgment of conviction dated 14th March, 2005 and Order of sentence dated 14th March, 2005, passed by the learned Additional Sessions Judge, FTC-I, Chaibasa, in S.T. No. 174 of 2004, convicting and sentencing the appellant Devnish Dhan, for the offence under Section 302 of the Indian Penal Code, are hereby, affirmed. The appellant is already in custody undergoing the sentence. 15. We do not find any merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment. 16. We are informed that the appellant is in custody for more than fourteen years and his matter has not been referred to the State Sentence Remission Board for consideration of remission in sentence. It would be open for the authorities concerned to refer the case of the appellant to the State Sentence Remission Board for consideration of remission in sentence, in due course.