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2022 DIGILAW 1191 (JHR)

Rajan Bouri v. State of Jharkhand

2022-09-21

AMBUJ NATH, RONGON MUKHOPADHYAY

body2022
JUDGMENT : 1. Heard Mr. Arwind Kumar, learned counsel appearing for the appellant and Mrs. Priya Shrestha, learned Spl.P.P. 2. This appeal is directed against the Judgment of conviction and order of sentence dated 24.02.2011 (sentence passed on 26.02.2011), passed by Shri Kumar Kamal, learned Additional Sessions Judge, F.T.C.-III, Dhanbad, in connection with Sessions Trial No. 220 of 2009, arising out of Chirkunda P.S. Case No.138 of 2008, corresponding to G.R. No.2956 of 2008, whereby and wherein, the learned Additional Sessions Judge, F.T.C.-III, Dhanbad held the appellant, Rajan Bouri, guilty of the offence under Section 302 of the Indian Penal Code, for committing murder of the deceased Rinku Bauri and thereby, sentenced him to undergo imprisonment for life alongwith a fine of Rs.5,000/- and in default of payment of fine, he was further directed to undergo rigorous imprisonment for a period of six months. 3. Brief fact of prosecution case is that on the intervening night of 24/25.07.2008, Rinku Bauri, wife of the appellant Rajan Bauri, was found murdered in their house. The appellant was found standing beside the dead body of his wife with an axe at the place of occurrence by the informant Nilmani Bauri, the village “Chowkidar”. 4. After investigation, police found the occurrence to be true and submitted charge-sheet against the appellant for the offence under section 302 of the Indian Penal Code. After cognizance, Sri S. N. Mishra, learned Judicial Magistrate, 1st Class, Dhanbad, committed the case to the Court of Sessions on 19.03.2009, as it was exclusively triable by the Sessions Court. 5. Charge was framed against the appellant on 04.11.2009 for the offence under Section 302 of the Indian Penal Code. The content of the charge was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 6. In order to prove its case, the prosecution has adduced both oral and documentary evidence. 7. Sagar Bauri (P.W.1) is a hearsay witness. Mangal Bauri (P.W.2) is a witness of seizure relating to recovery of the axe used in commission of murder of the deceased and blood stained soil from the place of occurrence. He has proved his signature on the seizure list, which is Ext.-1. Santosh Dhibar (P.W.3) is a hearsay witness. Dilip Bauri (P.W.4) is also a hearsay witness. Nilmani Bauri (P.W.5) is the informant of this case. He has supported the prosecution case. He has proved his signature on the seizure list, which is Ext.-1. Santosh Dhibar (P.W.3) is a hearsay witness. Dilip Bauri (P.W.4) is also a hearsay witness. Nilmani Bauri (P.W.5) is the informant of this case. He has supported the prosecution case. He has proved his signature on the fardbeyan, which is Ext.-5. He has further proved his signature on the inquest report, which is Ext.-4/1. He has also proved his signature on the seizure list, which is Ext.-1/1. Dr. S. K. Sarak (P.W.6) has conducted the postmortem on the dead body of the deceased Rinku Bauri. He has proved the postmortem report, which is Ext.-6. 8. Statement of the appellant was recorded under Section 313 Cr.P.C. Defence is general denial of the occurrence and false implication 9. On the basis of the evidence, both oral and documentary, learned court below has held the appellant guilty and sentenced him accordingly. 10. Mr. Arwind Kumar, learned counsel for the appellant has submitted that there is no eye witness to the occurrence. It was further submitted that prosecution has not examined the Investigating Officer, which has caused great prejudice to the case of the appellant. On these grounds, it was prayed that the Judgment of conviction and order of sentence passed by the learned Court below be set aside. 11. Mrs. Priya Shrestha, learned counsel for the State has submitted that the deceased Rinku Bauri was murdered inside her matrimonial home and as such onus was upon the appellant to explain her homicidal death. She has further submitted that the appellant was apprehended at the place of occurrence with the murder weapon just after the occurrence. On these grounds, it was prayed that this appeal be dismissed. 12. Now, it has to be seen whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts. 13. In order to come to the aforesaid finding, it has to be ascertained:- (i) Whether the deceased died a homicidal death? (ii) Whether the deceased died inside the house of the appellant? (iii) If so, whether the appellant has discharged the onus laid upon him under the provisions of Section 106 of the Evidence Act? 14. It is the case of the prosecution that deceased Rinku Bauri died a homicidal death. Nilmani Bauri (P.W.-5) has stated that, occurrence took place about one and half years ago. (iii) If so, whether the appellant has discharged the onus laid upon him under the provisions of Section 106 of the Evidence Act? 14. It is the case of the prosecution that deceased Rinku Bauri died a homicidal death. Nilmani Bauri (P.W.-5) has stated that, occurrence took place about one and half years ago. On hulla he went to the house of the appellant, Rajan Bouri and saw Rinku Bauri, wife of the appellant lying on a floor in a pool of blood. There was injury on her neck and blood was oozing from her injury. Dr. Swapan Kumar Sarak (P.W.-6) has stated that, the following antemortem injuries were found on the person of the deceased:- (i) Incised chopped wound 2 ¾” x ½ x 1” cavity deep with fracture of left clavicle. Margins found showing signs of contusion and bevelling on lower margins and spindle in shape. (ii) Stab wound ¾” x 1/4” x muscle deep. Margins found clear cut and spindle shaped over right middle and flank of neck. (iii) Stab wound ¾” x 1/4” margins clear cut and spindle shaped muscle deep over top of right shoulder. (iv) Chopped incised wound 2 ½” x ¾” bone deep with cutting of 2nd cervical vertebrae with margins contused and bevelled over middle back of neck. (v) Chopped incised wound 1 ½” x ¾” bone deep over lower part of left back and flank of neck. (vi) Chopped wound 3 ½” x 1 ½” bone deep with cutting of 5th cervical vertebrae. (vii) Chopped wound 3” x 1” bone deep with cutting of upper part of left scapula and was over upper part and back of left chest. (viii) Chopped wound incised 1 ¾” x ¾” bone deep over top of left shoulder. According to this witness, death was due to haemorrhage and shock as a result above mentioned injuries. Injury No. (ii) and (iii) was caused by sharp cutting and penetrating weapon and other caused by heavy sharp cutting weapon. From perusal of postmortem report, which is Ext.-6, it is evident that the oral testimony of Dr. Swapan Kumar Sarak (P.W.-6) is substantiated by his findings in the postmortem report. From the aforesaid oral and documentary evidence, it is evident that the oral testimony of Nilmani Bauri (P.W.-5) on the point of injuries sustained by the deceased Rinku Bauri is corroborated by the findings of Dr. Swapan Kumar Sarak (P.W.-6) is substantiated by his findings in the postmortem report. From the aforesaid oral and documentary evidence, it is evident that the oral testimony of Nilmani Bauri (P.W.-5) on the point of injuries sustained by the deceased Rinku Bauri is corroborated by the findings of Dr. Swapan Kumar Sarak (P.W.-6) during the postmortem examination. Accordingly, we come to a finding that deceased Rinku Bauri died a homicidal death. 15. It is further case of the prosecution that deceased was murdered at her matrimonial home, where she resided with the appellant. Dilip Bauri (P.W.-4) has stated that deceased was murdered in her house. Nilmani Bauri (P.W.-5) has stated that on the date of occurrence about one and half years ago at about 02:00 A.M., he was sleeping on the roof of his house, on hulla he went to the house of the appellant and found the deceased Rinku Bauri lying in a pool of blood. There was injury on her neck and blood was oozing from her injury. He reported the matter to the police. He has further stated that on the date of occurrence, both the deceased and the appellant were present in the house. Prosecution has not examined the Investigating Officer, however both the aforesaid witnesses have corroborated each other on the point that the occurrence has taken place inside the house of the deceased, Rinku Bauri and the appellant Rajan Bauri, both the aforesaid witnesses have not been cross-examined on the point of place of occurrence. Accordingly, we come to a finding that the prosecution has been able to show that deceased had died in her matrimonial home. 16. It is further case of the prosecution that the appellant was apprehended at the place of occurrence, just after the occurrence with an axe, which was the murder weapon. Mangal Bauri (P.W.-2) has stated that he is the witness of seizure of the axe. He has identified his signature on the seizure list, which is Ext.-1. He has stated that Rajan Bauri was apprehended and was taken to police station, where he confessed his guilt. Nilmani Bauri (P.W.-5) has stated that when he reached at the place of occurrence, he saw the appellant with an axe near the dead body of the deceased Rinku Bauri. The appellant was apprehended at the place of occurrence and the axe was seized. 17. Nilmani Bauri (P.W.-5) has stated that when he reached at the place of occurrence, he saw the appellant with an axe near the dead body of the deceased Rinku Bauri. The appellant was apprehended at the place of occurrence and the axe was seized. 17. Prosecution has not proved the seizure list, however Nilmani Bauri (P.W.5) has been consistent on the point that the appellant was standing near the dead body of the deceased with an axe used in commission of her murder. 18. From the aforesaid discussion, the circumstances which emerge are that the deceased Rinku Bauri was murdered at her matrimonial home and the appellant Rajan Bauri was apprehended just after the occurrence from there. It is evident that the appellant was present at the place of occurrence alone with the deceased at the time of occurrence. Accordingly he had special knowledge as to how deceased Rinku Bouri died. The deceased was murdered in the dead of the night, inside her house. Prosecution cannot be expected to produce eye witnesses to prove its case. Prosecution is only required to prove that the deceased had died a homicidal death inside her house. Now the onus shifts on the appellant to show as to how the deceased had died. 19. In Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681 , The Hon'ble Supreme Court has observed:- “15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.” 20. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.” 20. We have already come to a finding that the prosecution has been able to establish that deceased Rinku Bouri had died at her matrimonial home, due to injuries caused by sharp cutting weapon. Prosecution has also established that the appellant was present with the deceased when she was murdered. The axe used in commission of the occurrence was recovered from there. In view of the Provision of Section 106 of the Indian Evidence Act, the burden of explaining the murder of his wife was upon the appellant. It was incumbent upon the appellant to discharge this onus by eliciting answers from the witnesses or adduce further evidence in his defence. The appellant has only pleaded innocence and has denied the circumstances against him, in his statement under Section 313 Cr. P.C. Accordingly we come to a finding that the appellant has failed to explain the circumstances relating to the homicidal death of his wife Rinku Bouri, which is the final link in the chain of circumstances against him. 21. The learned trial court has discussed all the evidence and circumstances, which the prosecution has been able to bring on record against the appellant to come to the finding of guilt of the appellant. Accordingly, we do not find any infirmity in the judgment of the learned court below. 22. The Judgment of Conviction and order of sentence does not require any interference. 23. This appeal is hereby dismissed. 24. Pending I.A., if any, also stands disposed of.