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2023 DIGILAW 1075 (JHR)

Dhaneshwar Gorai v. State of Jharkhand

2023-08-24

AMBUJ NATH, RONGON MUKHOPADHYAY

body2023
JUDGMENT : 1. Heard the parties. 2. This appeal is directed against the judgment of conviction and order of sentence dated 08.07.2016 (sentence passed on 11.07.2016) passed by Sri Diwakar Pandey, learned Additional Judicial Commissioner-XVIII, Ranchi in Sessions Trial No. 129/2012, arising out of Bundu P.S. Case No. 123/2011, corresponding to G.R. Case No.5169/2011, holding the appellant Dhaneshwar Gorai guilty of offence under Section 302 of the Indian Penal Code and thereby, sentencing him to undergo imprisonment for life along-with a fine of Rs. 10,000/-and in default of payment of fine, he was further directed to undergo R.I for one year. 3. The prosecution case was instituted on the basis of the Fardbeyan of the informant Tumpa Devi, alleging therein that on the intervening night of 14/15.10.2011, she was sleeping with her husband Amar Kumar Gorai in her bedroom. At about 2:00 A.M., on the cry of alarm of her husband, she woke up and found that the appellant Dhaneshwar Gorai, who is her brother-in-law was assaulting her husband by Axe. The informant tried to snatch the Axe from the appellant, in the scuffle, she also sustained injuries. The informant raised alarm, due to which her father and her sister came there and tried to apprehend the appellant but he manage to flee away, leaving the Axe behind. 4. After investigation, police found the occurrence to be true and submitted the charge-sheet against the appellant under Section 302 of the Indian Penal Code. After cognizance, this case was committed to the court of Sessions by Sri K.K. Shukla, learned Judicial Magistrate, 1st class, Ranchi on 30.01.2012 as it was exclusively triable by the Sessions Court. 5. The charge was framed against the appellant under Section 302 of the Indian Penal Code on 07.04.2012. The content of the charge was read over and explained to the appellant 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. Rumpa Kumari P.W.1 is the sister of the informant. She has supported the prosecution case. 8. Tumpa Devi P.W.2 is the informant. She is the wife of the deceased. She has also supported the prosecution case. She is an eyewitness of the occurrence. 9. Basant Gorai P.W.3 is the father of the informant. He has also supported the prosecution case. 10. She has supported the prosecution case. 8. Tumpa Devi P.W.2 is the informant. She is the wife of the deceased. She has also supported the prosecution case. She is an eyewitness of the occurrence. 9. Basant Gorai P.W.3 is the father of the informant. He has also supported the prosecution case. 10. Rajesh Gorai P.W.4 and Roshan Lal Gorai P.W.5 are the witnesses of inquest. 11. Sri Hon Haga P.W.6 is the Investigating Officer of this case. 12. Dr. H. K. Sinha P.W.7 is the Assistant Director of State Forensic Science Laboratory, Ranchi. He has proved the forensic report relating to the forensic examination of the bloodstained Axe and the bloodstained cloths. 13. Dr. Ranjna Sahay P.W.8 had examined the informant for treating her injuries. 14. Dr. A.K Choudhary P.W.9 had performed the postmortem on the dead body of the deceased. 15. Prosecution has also adduced the following documents in evidence. 16. The fardbeyan of the informant and the signature of Basant Gorai on the fardbeyan are Exhibit-1 series. 17. The signatures of the witnesses on the seizure list are Exhibit-2 series. 18. The endorsement on the F.I.R is Exhibit-3. 19. The signature of Arvind Kumar Singh on the F.I.R is Exhibit-3/A. 20. The formal F.I.R is Exhibit-4. 21. The seizure list relating to the seizure of bloodstained axe and bloodstained bed-sheet is Exhibit-5. 22. The injury report of the informant is Exhibit-6. 23. The F.S.L report is Exhibit-7 series. 24. The postmortem report of Amar Kumar Gorai is Exhibit-8. 25. The appellant has examined his wife Rina Gorai as D.W.1. 26. On the basis of both oral and documentary evidence on record, learned Trial Court held the appellant guilty and sentenced him accordingly. 27. Ms. Bakshi Vibha, learned counsel for the appellant has submitted that the appellant has become the victim of conspiracy and the family members of the informant have conspired to protect the informant who had herself murdered her husband as she was having adulterous relationship with her brother-in-law. It was further submitted that there are no independent witnesses of the occurrence and the prosecution witnesses are highly interested witnesses and as such, their evidence cannot be relied upon. Learned counsel for the petitioner has finally submitted that this appeal be allowed and the appellant be acquitted of the charge. 28. It was further submitted that there are no independent witnesses of the occurrence and the prosecution witnesses are highly interested witnesses and as such, their evidence cannot be relied upon. Learned counsel for the petitioner has finally submitted that this appeal be allowed and the appellant be acquitted of the charge. 28. Learned A.P.P has submitted that the informant and the other witnesses are consistent in their evidence that the appellant had murdered the deceased. The fact that the informant had also sustained injuries further lends credibility to the prosecution case. On this ground, it was prayed that this appeal be dismissed. 29. Now, it has to be ascertained whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts. 30. In order to come to the aforesaid finding, it has to be decided :- (i) whether the deceased Amar Kumar Gorai died homicidal death, (ii) whether the appellant Dhaneshwar Gorai had caused homicidal death of the deceased Amar Kumar Gorai, and (iii) whether the defence of the plea of alibi taken by the appellant is sustainable. 31. It is the case of the prosecution that the deceased Amar Kumar Gorai had died homicidal death. 32. Tumpa Devi P.W.2 is the informant of this case. She has stated that on the intervening night of 14/15.10.2011, she was sleeping with her husband in her bedroom, when the appellant Daneshwar Gorai assaulted him by an Axe, causing injuries on his neck, her husband Amar Kumar Gorai succumbed to his injuries. 33. Rumpa Kumari P.W.1 and Basant Gorai P.W.3 both have stated that on the night of 14.10.2011, they were sleeping in their room. When they heard alarm of Tumpa Devi P.W.2, they reached her bedroom and saw Amar Kumar Gorai lying in a pool of blood. There were injuries on his neck. Both these witnesses have stated that the deceased succumbed to his injuries. 34. Rajesh Gorai P.W.4 and Roshan Lal Gorai P.W.5 are the witnesses of the inquest. Roshan Lal Gorai P.W.5 had stated that the deceased Amar Kumar Gorai was his brother and his death was due to injuries inflicted by Axe. He had seen the dead body of the deceased. He was lying in a pool of blood. 35. Prosecution has not proved the inquest report. 36. Dr. Ajeet Kumar Choudhary P.W.9 had performed postmortem on the dead body of the deceased. He had seen the dead body of the deceased. He was lying in a pool of blood. 35. Prosecution has not proved the inquest report. 36. Dr. Ajeet Kumar Choudhary P.W.9 had performed postmortem on the dead body of the deceased. According to his witness, the following injuries were found on the person of the deceased: Incised wound (I) 5 cm x 1 cm x bone deep over right side of nose adjacent to right medial candhus directed obliquely downwards and towards right cutting the skin, soft tissue, frontal bone, nasal bone and upper part of right maxilla. (ii) 7 cm x 1 cm x bone deep over right upper part of cheek directed obliquely towards right cutting skin, soft tissue and right maxillary bone. (iii) 5 cm x 1 cm x bone deep over right cheek lower part directed obliquely right and downwards cutting the skin, soft tissue and right mandibular bone. Internal (I) Diffuse contusion of left temporo-parietal part of scalp. (ii) There is a crack fracture, 4 cm long on left frontal bone. There is diffuse contusion of left side of brain and blood and blood clot present in brain. 37. According to this witness, the aforesaid injuries were caused by hard and heavy sharp cutting weapon and the deceased died due to the aforesaid injuries. 38. He has been cross-examined at length. In his cross-examination, he has stated that the deceased did not die due to heart attack. 39. This witness has proved the postmortem report which is Exhibit-8. 40. From the perusal of the postmortem report, it is evident that the ocular account of Dr. Ajeet Kumar Choudhary P.W.9 is corroborated by the findings in the postmortem report regarding the injury sustained by the deceased Amar Kumar Gorai and cause of his death. 41. On the basis of the aforesaid oral and documentary evidence, it is evident that the deceased Amar Kumar Gorai died due to the injuries sustained by him which were caused by hard and heavy sharp cutting weapon and the aforesaid injuries cannot be said to be accidental or self-inflicted. Accordingly, we come to the finding that the deceased Amar Kumar Gorai died homicidal death. 42. Now, it has to be ascertained whether the appellant Dhaneshwar Gorai had caused homicidal death of the deceased. Accordingly, we come to the finding that the deceased Amar Kumar Gorai died homicidal death. 42. Now, it has to be ascertained whether the appellant Dhaneshwar Gorai had caused homicidal death of the deceased. The case of the prosecution is that on the night of 14.10.2011 at about 2:00 A.M, the appellant Dhaneshwar Gorai had inflicted several Axe blows on the person of the deceased Amar Kumar Gorai due to which he succumbed to his injuries. The appellant has taken the plea of alibi. He has examined his wife Rina Gorai as D.W.1, who has stated that at the time of occurrence, the appellant was not present at the place of occurrence. It is further case of the defence that the informant Tumpa Devi (P.W.2) had murdered her husband. 43. Tumpa Devi P.W.2 is the sole eyewitness of this case. She has stated that on 14.10.2011 at about 2:00 A.M, she woke up on the cry of alarm of her husband. She saw that the appellant Dhaneshwar Gorai had inflicted Axe blow on her husband, who was sleeping with her in the same room. She tried to snatch the Axe from the appellant, on which, the appellant also assaulted her. On her alarm, her father and sister reached there. They attempted to apprehend the appellant, but he fled away after throwing Axe at the place of occurrence. She has been cross-examined at length. In her cross-examination, she has stated that she along-with her husband used to reside in her father’s house. The appellant was apprehensive that this witness and her husband will influence his father-in-law to give all his properties to this witness, due to which, this occurrence had taken place. She has denied that she was not having good relationship with her husband. She has further denied that she was having illicit relationship with his brother-in-law. She has further stated that there was sufficient light in the room as she was in the habits of sleeping with the light on in her bedroom. 44. Rumpa Kumari P.W.1 and Basant Gorai P.W.3 have stated that on the date of occurrence, on hearing Hulla coming from the bed room of the informant, they reached there and saw the deceased Amar Kumar Gorai lying in a pool of blood and the appellant Dhaneshwar Gorai was coming out of the room with an Axe in his hand. 44. Rumpa Kumari P.W.1 and Basant Gorai P.W.3 have stated that on the date of occurrence, on hearing Hulla coming from the bed room of the informant, they reached there and saw the deceased Amar Kumar Gorai lying in a pool of blood and the appellant Dhaneshwar Gorai was coming out of the room with an Axe in his hand. He threw the Axe at the place of occurrence. They tried to apprehend him but he managed to escape. 45. Rumpa Kumari P.W.1 has stated that the appellant Dhaneshwar Gorai is his brother-in-law. Basant Gorai P.W.3 has stated that the appellant Dhaneshwar Gorai is his son-in-law. Both these witnesses have corroborated each other on the point that they had seen the appellant Dhaneshwar Gorai coming outside the bedroom of the informant just after the occurrence, when they reached there on Hulla. The informant Tumpa Devi P.W.2 has stated that the appellant Dhaneshwar Gorai had also assaulted her when she tried to intervene, due to which, she sustained injuries on her hand. 46. Dr. Ranjana Sahay P.W.8 had examined Tumpa Devi on 15.10.2011 and found the following injuries on her person: (i) Lacerated wound over left wrist - .5” x 2.5” x .5” (ii) Lacerated wound about .5” x 2.5” over the left wrist itself. 47. According to the aforesaid, injuries were caused within 24 hours and were simple in nature. 48. The injury report has been marked as Exhibit-6 series. 49. From perusal of the injury report, it appears that the oral testimony of the witness Dr. Ranjana Sahay P.W.8 fully corroborates her findings regarding the injury sustained by the informant Tumpa Devi as stated in the injury report Exhibit-6 series. 50. Rina Gorai who has been examined as D.W.1 has stated that on the date of occurrence, she was present at her father’s house. She heard the cry of alarm of her sister Tumpa. When she reached there, she saw Tumpa holding Axe in her hand. She did not see anyone else there. She has stated that Tumpa was having illicit relationship with her brother-in-law. She was not happy with her husband. In her cross-examination, she has stated that her husband has been falsely implicated in this case. 51. The Investigating Officer has seized the bloodstained Axe and bloodstained bed-sheet and the same were sent for forensic examination. Dr. She has stated that Tumpa was having illicit relationship with her brother-in-law. She was not happy with her husband. In her cross-examination, she has stated that her husband has been falsely implicated in this case. 51. The Investigating Officer has seized the bloodstained Axe and bloodstained bed-sheet and the same were sent for forensic examination. Dr. H. K. Sinha P.W.7 has proved the Forensic Reports which are Exhibit-7 series. According to this witness, blood found on the Axe and the bed-sheet were of human origin. 52. In his cross-examination, he has admitted that he had not performed the D.N.A test to ascertain that blood found on the Axe and bed-sheet were of the same blood group as that of the deceased. 53. From perusal of the forensic report which is Exhibit-7, it appears that the findings in the forensic examination corroborates oral testimony of witness Dr. H. K. Sinha P.W.7 that the blood on the Axe and bed-sheets were of human origin. 54. From the aforesaid oral and documentary evidence, it is apparent that Tumpa Devi has stated that on 14.10.2011 at about 2:00 A.M, she was sleeping in her bedroom with her husband. On his alarm, she woke up and saw the appellant Dhaneshwar Gorai inflicting Axe blows on her husband. She tried to intervene on which the appellant also assaulted her. She has sustained injuries. 55. Dr. Ranjana Sahay P.W.8 had found injuries on the person of the informant, which according to her was sustained within 24 hours. Both Rumpa Kumari P.W.1 and Basant Gorai P.W.3 have corroborated each other on the point that just after the occurrence, on Hulla when they reached the bedroom of the informant Tumpa Devi P.W.2, they saw the appellant Dhaneshwar Gorai coming out of the room with an Axe in his hand. Both these witnesses have corroborated the statement of the informant Tumpa Devi P.W.2 to the effect that they had seen the appellant Dhaneshwar Gorai coming out of the bedroom of the informant just after the occurrence with the bloodstained Axe. The Axe in question along-with the bed-sheet were seized by the police and on forensic examination, it was found that the bloods found on them were of human origin. 56. The Axe in question along-with the bed-sheet were seized by the police and on forensic examination, it was found that the bloods found on them were of human origin. 56. Rina Gorai D.W.1 has stated that when she went to the bedroom of the informant Tumpa Devi P.W.2, she saw Tumpa Devi was standing there, the appellant was not present there. 57. Now, the question is, who is to be believed the defence witness who is the wife of the appellant Dhaneshwar Gorai or the witnesses Rumpa Kumari P.W.1 and Basant Gorai P.W.3 who are the sister and father of the informant Tumpa Devi P.W.2 and also the sister and father of the defence witness (D.W.1) and sister-in-law and father-in-law of the appellant Dhaneshwar Gorai. 58. It is very difficult to conjure that Rumpa Kumari P.W.1 and Basant Gorai P.W.3 will protect the prosecutrix Tumpa Devi and charge the appellant Dhaneshwar Gorai for murder of Amar Kumar Gorai and thus, jeopardize the entire life of Rina Gorai who is also their sister and daughter respectively. 59. From the entire facts and circumstances, it transpires that both Rumpa Kumari P.W.1 and Basant Gorai P.W.3 have stated what they saw at the place of occurrence. Rina Gorai D.W.1 is a highly interested witness and it is apparent that she had tried to implicate her sister Tumpa Devi, in order to protect her husband. The plea of alibi of the appellant is not sustainable. 60. From the aforesaid facts and circumstances, we are of the opinion that the evidence of Rina Gorai D.W.1 cannot be believed. 61. Accordingly, we come to the finding that the prosecution has been able to prove that Dhaneshwar Gorai had committed murder of the deceased Amar Kumar Gorai and the learned Trial Court has rightly held the appellant Dhaneshwar Gorai guilty of offence under Section 302 of the Indian Penal Code. 62. The judgment of conviction and order of sentence passed by the learned Trial Court is hereby, affirmed. 63. This appeal is dismissed. 64. Pending I.A, if any, also stands disposed of.