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2019 DIGILAW 803 (JHR)

Jitan Gorain v. State of Bihar

2019-04-03

DEEPAK ROSHAN, SHREE CHANDRASHEKHAR

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ORDER : SHREE CHANDRASHEKHAR, J. 1. Initially, this criminal appeal was preferred by five appellants challenging the judgment of conviction under section 302 r/w section 34 IPC and under section 201 r/w section 34 IPC and the order of sentence, both dated 06.12.1993 passed by the 3rd Additional Sessions Judge, Dhanbad in Sessions Trial Case No. 5 of 1989, however, during pendency of this criminal appeal, appellant no. 1 namely, Bharat Chandra Gorain and the appellant no. 2 namely, Bhanumati Gorain passed away and, accordingly, the criminal appeal on their behalf has abated. 2. The appellant-Bharat Chandra Gorain was the father-in-law and the appellant-Bhanumati Gorain was the mother-in-law of the deceased namely, Mamta Gorain. 3. Now, this criminal appeal survives qua the appellant no. 3 namely, Jitan Gorain, appellant no. 4 namely, Chotu Gorain and appellant no. 5 namely, Noren @ Naresh Gorai. 4. By an order dated 24.01.1994, the appellant nos. 2, 3 and 4 were released on bail and by an order dated 29.04.1994, the appellant no. 1 was also admitted to bail. The appellant no. 5 namely, Noren @ Naresh Gorai has been released on bail by virtue of the order dated 29.09.1994 passed in Criminal Appeal (DB) No. 203 of 1993 (R). 5. On the basis of the fardbeyan of Bharat Mandal, father of the deceased-Mamta Gorain, a First Information Report vide Nirsa P.S. Case No. 177 of 1987 corresponding to G.R. Case No. 2506 of 1987 was registered against five persons namely, (i) Bharat Chandra Gorain, (ii) Bhanumati Gorain, (iii) Jitan Gorain, (iv) Chotu Gorain and (v) Noren @ Naresh Gorai for the offence under section 302 r/w section 34 IPC and 201 r/w section 34 IPC. Allegation against the accused persons is that they have killed Mamta Gorain and sent a false information to her parents that she has died due to diarrhea and spread a false rumour amongst the villagers that Mamta Gorain had died due to drowning. Mamta Gorain was married to Noren @ Naresh Gorai sometime in the year 1986 and the accused persons had demanded Rs. 5,000/-for repair of the Trekker. There is also an allegation of torture and harassment of Mamta Gorain by the accused persons. The deceased was examined by the Dr. Binod Kumar on 10.09.1987 at 2:00 p.m. and he has recorded his observations as follows : “Average built. Rigor Mortis absent all over the body. 5,000/-for repair of the Trekker. There is also an allegation of torture and harassment of Mamta Gorain by the accused persons. The deceased was examined by the Dr. Binod Kumar on 10.09.1987 at 2:00 p.m. and he has recorded his observations as follows : “Average built. Rigor Mortis absent all over the body. Face, Abdomen swollen. Fluid mixed frothy blood coming out of nostrils. 1/3'' tongue is protruding out of clinched teeth. Lips were swollen. Mucosa of lips and gums normal. Few bilibs (P.M. Blisters) are appearing on the upper part of front of chest and adjoining portion of neck. P.M. Lividily most marked and fixed on the back of frunk skin of hands and feet corrugated. Externally no injury was found. Discharge from the nose (fluid mixed frothy blood) was cleaned, no injury was seen as mentioned by the investigating officer in colomn 5 of inquest report. Internal findings On dissection – Both side chambers of the heart were empty. Heart was flabby. Both lungs were congested. Liver, spleen, kidney were all congested. Stomach was containing about 15 cc fluid only. Urinary bladder uterus empty. Skull-NAD. Menings and brain-NAD. Neck – No injury in the subcutaneous tissue seen. Hyoid bone, tracheal rings thyroid cartridge were all normal. The following viscera have been preserved in s.s. Common salt for chemical analysis at F.S.L, Patna. A portion of heart, lung, liver, spleen. One kidney and stomach with its contents. Opinion as to cause of death- Reserved pending chemical analysis of viscera. Time elapsed since death- Between 24 to 36 hrs. approx.” 6. Cause of death was not ascertained and finally it has not been brought on record how the deceased-Mamta Gorain has died. 7. Charges against all the accused persons under section 302 r/w section 34 IPC and under section 201 r/w section 34 IPC were framed, to which they pleaded not guilty and claimed trial. During the trial, 12 witnesses were examined by the prosecution; the informant-Bharat Prasad Mandal is P.W. 11 and his brother-Subal Mandal has been examined as P.W. 9. The investigating officer has examined himself as P.W. 12 and P.W. 7 is the inquest witness. During the trial, 12 witnesses were examined by the prosecution; the informant-Bharat Prasad Mandal is P.W. 11 and his brother-Subal Mandal has been examined as P.W. 9. The investigating officer has examined himself as P.W. 12 and P.W. 7 is the inquest witness. The learned Sessions Judge on the basis of the following circumstances has recorded a finding that the prosecution has been able to prove the charges under section 302 r/w section 34 IPC and under section 201 r/w section 34 IPC successfully against all the accused persons : (i) About 1 and ¼ years back deceased was married to accused Naresh Gorai @ Naren and one month before the alleged occurrence there was demand of Rs. 5,000/-by the accused persons from the informant for repair of the Trekker which was refused by the informant. (ii) A week before the alleged murder deceased Mamta Gorai reported to P.W. 9 when he went to see her that she was subjected to torture at the hands of the accused persons for extracting her ornaments. (iii) The deceased died and her dead body was lying at the house of accused and according to accused persons she had died due to drowning the well. (iv) The accused persons sent a false information through P.W. 6 to the informant that the deceased was suffering from diarrhoea and called the informant at once to see her. (v) The accused persons remain silent and refrained from informing the police about the alleged death of deceased by drowning. (vi) The medical witness p.w. 10 did not found any evidence of death of deceased by drowning. (vii) The accused persons absconded from their house after death of deceased when the prosecution party and police came in the village. (viii) The accused persons did not participate in the cremation of the dead body of the deceased. 8. The co-villagers of the accused persons who have been examined as P.W. nos. 3, 4, 5 and 8 have not supported the prosecution's case. The witness-Golok Behari Gorai (P.W. 3) has stated that the wife of the accused-Noren @ Naresh Gorai has died due to drowning in the well. P.W. 4 has also spoken on the similar lines. Other witnesses: P.W 5, P.W. 6, P.W. 7 and P.W. 8 are hearsay witnesses. 3, 4, 5 and 8 have not supported the prosecution's case. The witness-Golok Behari Gorai (P.W. 3) has stated that the wife of the accused-Noren @ Naresh Gorai has died due to drowning in the well. P.W. 4 has also spoken on the similar lines. Other witnesses: P.W 5, P.W. 6, P.W. 7 and P.W. 8 are hearsay witnesses. They have also stated that they have learnt that wife of the accused-Noren @ Naresh Gorai has died due to drowning in the well. 9. Material witnesses for the prosecution are P.W. 9 and P.W. 11. It is the prosecution's own case that an information was sent by the accused persons through P.W. 6 namely, Tara Pada Gorai about death of Mamta Gorain and when the informant-P.W. 11 visited the house of his daughter he found the dead body of his daughter in the house of the accused persons. The accused persons were not present in the house and they did not receive the dead body of the deceased for performing her last rites. Uncle of the deceased who has been examined as P.W. 9 has spoken about demand of Rs. 5,000/-for repair of Trekker and torture to the deceased by the accused persons. Admittedly, there is no eye-witness to the actual occurrence. How Mamta Gorain has died, there is no report on the cause of death and the prosecution has not established that it was a homicidal death. The learned Sessions Judge has taken pains to find out whether the defence taken by the accused persons is true or not. In paragraph no. 12 of the judgment in Session Trial Case No. 5 of 1989, the learned Sessions Judge has taken note of the evidence of Dr. Binod Kumar-P.W. 10 who has stated that he did not find any evidence of drowning, however, frothy fluid mixed with blood was seen coming out from the nostril of the dead body. He has also not found decomposition in which case there may be chance of blood coming out from the nostril of the deceased. Stomach of the deceased was also found almost empty. Only 15 cc fluid was observed in the stomach. The doctor has opined that water would not travel to the stomach of a dead person. On the basis of these observations of Dr. Stomach of the deceased was also found almost empty. Only 15 cc fluid was observed in the stomach. The doctor has opined that water would not travel to the stomach of a dead person. On the basis of these observations of Dr. Binod Kumar-P.W. 10, the learned Sessions Judge has held that the prosecution's case that the accused persons have killed Mamta Gorain and then threw her dead body in the well is strengthened. 10. Before proceeding further, we intend to record that there is no evidence brought on record how the dead body of Mamta Gorain was recovered from the well. It is the defence story that Mamta Gorain has died due to drowning in the well. Prosecution's specific case is that the accused persons after killing Mamta Gorain have sent a false information to her father that she has died due to diarrhea. 11. Mr. Satish Kumar Keshri, the learned APP has referred to the decisions in Trimukh Maroti Kirkan Vs. State of Maharashtra” reported in (2006) 10 SCC 681 and “Neel Kumar @ Anil Kumar Vs. the State of Haryana” reported in 2012 (3) JLJR (SC) 135, to contend that falsity of the defence would provide an additional link in the chain of circumstances and then the chain of circumstances would be so complete that it would establish that it was the accused who has committed the crime. 12. In Trimukh Maroti Kirkan's case the Supreme Court has held as under : “23. In the earlier part of the judgment we have given a resume of the evidence which is available on record. The appellant was plying a tempo in order to earn his livelihood. It is fully established that the deceased Revata was being ill-treated and harassed on account of non-fulfilment of demand of Rs 25,000 which the appellant wanted for purchasing a tempo. The deceased Revata was often beaten and was sometimes not given food. After Revata had been murdered, information was sent to her parents that she had died on account of snakebite, which was reiterated when they reached the house of the appellant in Village Kikki. In fact, everyone in the village had been told that Revata had died on account of snakebite and the Police Patil, believing the said information to be true, had lodged an accidental death report at the police station. In fact, everyone in the village had been told that Revata had died on account of snakebite and the Police Patil, believing the said information to be true, had lodged an accidental death report at the police station. The medical evidence, however, showed that she had died on account of asphyxia due to strangulation. The body of the deceased was purposely placed in a sitting posture with her back taking support of the wall so that no one may suspect that she had actually been killed as a result of strangulation and may believe the version of snakebite given by the appellant and his parents. The appellant in his statement under Section 313 CrPC did not offer any explanation as to how she received the injuries which were found on her body. Recovery of some articles of the deceased was made at the pointing out of the appellant. The circumstances enumerated above unerringly point to the guilt of the accused and they are inconsistent with his innocence.” 13. The false explanation or non-explanation of an incriminating circumstance or even evasive reply by the accused of an incriminating circumstance which would have a vital bearing on his defence may provide an additional link to the chain of circumstances, but that itself is not a ground to hold an accused guilty for the charge of murder. The circumstances referred to by the learned Sessions Judge in paragraph no. 14 of the judgment; demand of Rs. 5,000/-, torture of the deceased, recovery of dead body in the house of the accused, false information by the accused about cause of death by the deceased, not participating in the last rites of the deceased, not informing the police and fleeing from their house, are the circumstances which may point out an accusing finger to the accused persons, but on that basis alone, more particularly, when all the aforesaid circumstances have not been proved by the prosecution, are not sufficient to convict the accused appellants for the offence under section 302 r/w section 34 IPC and section 201 r/w section 34 IPC. The circumstance no. (iv) that the accused persons gave false information about death of the deceased that she was suffering from diarrhea has not been proved by the prosecution; there is no report on the cause of death of the deceased. Similarly, the circumstance no. The circumstance no. (iv) that the accused persons gave false information about death of the deceased that she was suffering from diarrhea has not been proved by the prosecution; there is no report on the cause of death of the deceased. Similarly, the circumstance no. (v) that the accused persons did not inform the police may not be an incriminating circumstance particularly in view of the defence taken by them and absence of a report on the cause of death. Since they had sent an information through P.W. 6 to the father of the deceased that Mamta Gorain has died due to diarrhea, that may be a reason for the accused persons not to inform the police. And, an accused may flew away from the place of occurrence or abscond out of fear and also out of an apprehension of false implication [refer: “Sk. Yusuf Vs. State of West Bengal” reported in (2011) 11 SCC 754 ]. 14. On the basis of the aforesaid unsubstantiated circumstances; many of these have not been proved by the prosecution, we are of the opinion that the learned Sessions Judge has erroneously held the accused persons guilty for the charge framed under section 302 r/w section 34 IPC and section 201 r/w section 34 IPC. 15. Having examined the records of the case and finding serious infirmities in the prosecution's case, we find the judgment of conviction dated 06.12.1993 in Sessions Trial Case No. 5 of 1989 unsustainable. Accordingly, judgment of conviction under section 302 r/w section 34 IPC and section 201 r/w section 34 IPC and order of sentence, both dated 06.12.1993 passed in Sessions Trial Case No. 5 of 1989 are set-aside. 16. The appellant nos. 3, 4 and 5 are discharged of liability of the bail bonds furnished by them. 17. In the result, Criminal Appeal (D.B.) No. 203 of 1993 (R) is allowed, in the aforesaid terms. 18. Let the lower-court records be transmitted to the court concerned, forthwith.