Jharkhand High Court
Budheswar Gope vs State Of Jharkhand on 3 April, 2024
Author: Ananda Sen
Bench: Ananda Sen
1
Criminal Appeal (DB) No. 1184 of 2016
[AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 09.08.2016 PASSED BY SRI SUBHASH, THE
LEARNED ADDITIONAL SESSION JUDGE-V, JAMSHEDPUR IN SESSION
TRIAL NO. 134 OF 2014.]
Budheswar Gope. .........APPELLANT
-Versus-
State of Jharkhand ..........RESPONDENT
......
For the Appellant : Mr. Pawan Kumar Pathak, Sanjay Kr. Singh and
Virendra Kumar, Advocates.
For the State : Mrs. Priya Shrestha, A.P.P.
......
PRESENT
SRI ANANDA SEN, J.
SRI SUBHASH CHAND, J.
.........
C.A.V. On: 20.03.2024 Pronounced On: 03/ 04 /2024.
Ananda Sen, J: This criminal appeal is directed against the judgment of
conviction and order of sentence dated 09 th August 2016 passed by Sri
Subhash, the learned Addl. Sessions Judge-V, Jamshedpur, in Session Trial
No. 134 of 2014, arising out of Mango P.S. Case No. 557 of 2013, whereby
and whereunder, the appellant has been punished to undergo rigorous
imprisonment for life for committing the offence punishable under Section
302 IPC and further pay a fine of Rs.20,000/-. In default of payment of fine,
the appellant is liable to undergo imprisonment for further period of six
months.
2. The learned counsel for the sole appellant argued that as per the
FIR, it is the nephew of the appellant, who rushed to the informant and
informed that the appellant was assaulting the deceased, but surprisingly
the said nephew was not examined as a witness. He further argued that the
best witnesses, who, in fact, are two children of the deceased, who were
present at the place of occurrence, were not examined as witnesses and
withholding this material witnesses, according to him, is fatal for the
prosecution, benefit of which should go the appellant. He also argued that
no eye witness has been examined in this case. In fact, all witnesses, who
had deposed before the Court admittedly they had not seen the appellant
giving any fatal blow on the deceased. As per him, P.W.3 cannot be said to
be the eye witness, as he reached the place of occurrence after several
people have assembled. He argued that the entire case is based on
circumstances and since the chain has not been completed, the conviction
of the appellant is bad. He further argued that there is no evidence to
suggest that this appellant was in the same room where the deceased was
found dead. Since during evidence, it has come that there were other rooms
in the said house, it was the duty of the prosecution to establish and prove
that the appellant was in the same room. He also argued that the
confessional statement of the accused should not have been considered by
the Court and the same legally cannot be exhibited. So far as complete
chain is concerned, he submitted that the Forensic Science Laboratory
(FSL) has not mentioned that the blood stains found in the garments of the
appellant and also on the murder weapon of the deceased. The
Investigating Officer has stated that he recorded the information of murder
in the station diary, but surprisingly the station diary was not exhibited. He
lastly argued that the police has not investigated the case properly thus the
benefit of the same should be given to the appellant. On the aforesaid
ground, he prayed for acquittal of the appellant.
3. Learned A.P.P submitted that there are eye witnesses of the
occurrence and all the witnesses categorically stated that the appellant was
standing with the murder weapon beside the dead body of the deceased
and the appellant was apprehended by others. None of the witnesses have
stated that the deceased was not present, thus none of the witnesses can
be disbelieved. It has been argued that the blood stained weapon was sent
to Forensic Science Laboratory for examination along with vests and
underwear of the appellant, which were smeared with blood. As per the
report, the blood, which was found in the murder weapon and the garments
of the deceased has matched and as per the report the blood is of human.
When the circumstance was put to the appellant while examining him under
Section 313 Cr.P.C, he apparently has taken a false plea that he had
chopped chicken. Thus, thus these are all the materials against the
appellant. She further argued that Section 106 of the Evidence Act is
attracted in this case. On the aforesaid back ground, she submitted that the
appellant's conviction is sustainable.
4. Heard the learned counsel for the appellant and learned A.P.P for
the State and have gone through the impugned judgment, the evidence,
exhibits and the Trial Court Records.
5. The FIR of this case is based on statement of the informant Rohit
Gour. He stated that on 1.10.2013 in the morning he was in his house when
the nephew of the appellant came to him and informed that this appellant is
assaulting his wife, who happens to be the sister of the informant. Receiving
the said information, he reached at the house of the appellant where he saw
the dead body of the deceased on cot in the room. The head was severed
from the body and was placed on the chest of the body. The nephew and
niece who are aged about 6 and 4 years respectively were crying. The
informant thereafter immediately rushed out and informed others. He
started making enquiry and he came to know that a day prior, this appellant
sold some land with his brothers in Mango, which led a dispute between the
husband and wife. He also stated that the appellant used to assault the
deceased earlier, thus this murder has been committed by him.
On the basis of the aforesaid Fardbeyan, Mango P.S. Case No.
557 of 2013 was registered under Section 302 of the Indian Penal Code.
6. The police submitted chargesheet under Section 302 IPC after
conclusion of investigation. After taking cognizance, the case was committed
to the Court of Sessions. As the appellant pleaded not guilty, the charge was
explained and he was put on trial. The prosecution has examined ten
witnesses and some documentary evidences were also produced. After
closure of evidences, the accused was examined under Section 313 Cr.P.C.
and he did not choose to lead any evidence in defence. The Trial Court,
thereafter convicted the appellant for life for committing the offence under
Section 302 IPC and sentenced him as aforesaid.
7. In this case, we find that ten witnesses were examined, which are
as follows:-
P.W.1 Naren Singh has deposed that he went to the house of Budheshwar
and saw the dead body of the deceased whose head was severed. The
police came and prepared the inquest report. He signed on the inquest
report. He further stated that on 30.9.2013 the appellant sold some land to
his brother, resulting in quarreling between the husband and wife resulting in
the aforesaid incident. He categorically stated that the appellant was present
there and he was arrested.
P.W.2- Sukumar Mohanty has deposed that on hearing hue and cry, he
reached the house of the appellant where some persons were also present.
He saw the dead body of the deceased. The head was severed from the
body of the deceased and was kept on the chest. The appellant-
Budheshwar was standing with the murder weapon, which is 'bathi/sickle
(sharp cutting weapon to cut vegetable and others). The said weapon was
smeared with blood. He deposed that he informed the police. The children of
Budheshwar were also present there, who are minor, aged about 3 and 5
years. He stated that there was quarrel between the appellant and the
deceased on the previous night. The police seized the murder weapon in his
presence and he signed the seizure list. He admitted that he had not seen
the Budheshwar murdering the deceased.
P.W.3-Amulya Gope stated that upon hearing hue and cry, he rushed to the
house of Budheshwar Gope when he saw the appellant murdering the
deceased, who was his wife by 'baithi'. He stated that Rohit Gaur (informant)
also reached there and this witness by catching hand of Budheshwar Gope
forbade him from assaulting Rohit also. After some time, the villagers
reached including Sukumar Mohanty, Laxman, Ratan, Subhash etc. He
stated that the police prepared the inquest report and he has put his
signature therein which was marked as Ext.-'X'.
In cross-examination, he stated that he reached the place of
occurrence within fifteen minutes after hearing the hue and cry. He stated
that before he reached there, children were also present. Laxman and his
wife were also present there. He also stated that he had seen Budheshwar
giving fatal blow upon the deceased. He stated that he firstly gave a blow
and thereafter severed the head from the neck, but he admitted that he did
not stop the appellant. He stated that Budheshwar kept the head of the
deceased on the chest of the dead body. He also admitted that he did not try
to snatch the 'bathi'.
On this point, the Court noted that the witness was getting agitated
time to time and was speaking at high speech. The Court also recorded the
following:-
"On the prayer of the prosecution witness is recalled and
examined by the prosecution and he is declared hostile."
We failed to understand on what point and why, the aforesaid
noting was made at the instance of the prosecution when he has supported
the prosecution case.
P.W.4- Laxman Gaur deposed that after hearing hue and cry, he reached
the place of occurrence. He had seen the dead body and head was severed
with the body of the deceased. The police came and recovered the murder
weapon from the hand of the appellant.
In cross-examination, he stated that he saw the dead body in the first room
after entering the house. He denied the suggestion of false implication of the
appellant.
P.W.5-Ratan Gope, who deposed that on hue and cry, he reached the place
of occurrence and when he entered the room, he saw the dead body of
Asha Devi. The head was severed and kept on the chest of the dead body
and the appellant was standing with the murder weapon and the children
were crying. He stated that the police seized the blood stained cloths and
prepared the seizure list, which he signed. He also identified the seizure list
and marked as Ext.-4. He admitted that the informant gave his statement
before him. He also singed the fardbeyan, which is marked as Ext.-5.
In cross-examination, he stated that the murder weapon was seized in
his presence. He further stated that he had given statement before the
police that the accused was standing with murder weapon in his hand.
P.W.6- Subhash Gope deposed that on hearing hue and cry he went to the
place of occurrence i.e. house of the appellant where he found that this
appellant was standing with murder weapon in his hand and the dead body
was there and head was severed and kept on the chest of the body. He
stated that the police came and seized the blood stained garments of the
appellant which he was wearing and Rohit's statement was recorded in his
presence. He identified his signature in the fardbeyan. He also identified his
signature in the seizure list. He stated that the distance between his house
and house of the appellant is 300 feet. He also stated that he had informed
the police that he had seen the appellant standing with the murder weapon
in his hand.
P.W. 7- Doctor Akhilesh Kr. Choudhary conducted the postmortem
examination over the dead boy and found the following injuries:-
(i) Head separated form trunk, through upper most neck
by a sharp cut injury measuring 9 cm x 8 cm x through and
through with head line separating with trunk and all the
tissues in the line of wound cleanly severed.
(ii) 2-1/2 cm x 1 cm x muscle and bone deep, sharp cut
over center of chin with sharp cut mark over bone would
horizontal.
(iii) 4.5 cm x 1-1/4 cm x muscle and bone deep, sharp cut
along left eyebrow with sharp cut mark over bone.
(iv) 5 cm x 1/1/2 cm x muscle deep antero posterior along
right parietal scalp.
The opinion of the Doctor is as follows:
(i) Injuries noted above were antimortem and caused by
sharp cutting weapon moderately heavy.
(ii) Death was due to severance of head from trunk
through neck.
(iii) Time lapsed since death within 6-12 hours
approximately.
In cross-examination, he stated that he had ascertained that both part of
the body i.e. head and rest body is of the same person. He had aligned the
head with the neck to confirm such fact though he had not mentioned the
said fact in the postmortem report.
P.W.8-Rohit Gaur, who is the informant of this case, has deposed that in the
morning Ajay came to his house and told that the appellant is assaulting his
sister. When he went to the house of Budheshwar, he saw his sister lying
dead and head head was severed and was kept on the chest of the body.
The appellant was standing with vegetable cutter (sickle). The vest of the
appellant was fully smeared with blood. This witness went to the house and
informed their family members and the police. He stated that he had
received information that the entire occurrence had taken place as the
appellant had sold land in Mango. He has proved the fardbeyan, which was
marked as Ext.-7. He also stated that the police came and arrested this
appellant and seized the murder weapon.
P.W.9- S.I. Dilip Gagrai has deposed that he received information that a
lady has been murdered in the village Pokhari. He recorded Sanha and
proceeded thereafter. He reached the place of occurrence and recorded the
fardbeyan of Rohit Gaur. He also prepared the inquest report. He also
recorded the confessional statement of accused and as per disclosure of the
appellant, the murder weapon was recovered from the place of occurrence.
The dead body was sent for postmortem. He recorded the statement of
witnesses. He had also sent the murder weapon and the garments of the
appellant for examination to the FSL.
In cross-examination, he stated that Sukumar Mohanty, Amulya Gope and
Laxman Gope had not stated before him that the deceased was standing
with murder weapon. The murder weapon was recovered from the room
itself. Even the said statement was given by witness- Ratan Gope.
P.W.-10: Arun Kr. Tiwari produced the murder weapon in Court, which was
marked as material exhibit-I.
8. From the evidence we find that the deceased is the wife of
this appellant. The homicidal death is proved by the Doctor and the
Postmortem report. The place of occurrence is the first room after entering
in the house of the appellant. The place of occurrence has been proved by
the witnesses P.Ws. 4 and 5 who stated that the dead body was in the first
room. All witnesses have stated that the head of the deceased was severed
from the neck and was kept near the chest. P.W-. 5 has deposed that this
appellant, who is the husband of the deceased was standing beside the
dead body and his vest was smeared with blood. The garments and murder
weapon were seized. Though, in this case, the Investigating Officer has
stated that these witnesses have never stated before him that they have
seen the appellant committing the murder, but this is not a fatal contradiction
to affect the merit of this case, when there is consistent evidence that this
appellant was seen standing beside the dead body. The murder weapon
was also recovered from the house where the dead body and this appellant
were present.
9. The vest smeared with blood and under garments of this
appellant along with blood stained murder weapon were sent for forensic
examination. The report was received and marked as Ext.- 18/1. As per
report, the blood which was found in the murder weapon, on vest and on
underwear of accused are human blood. The appellant failed to explain the
human blood properly rather in his statement under Section 313 Cr.P.C, he
has stated that he had cut chickens which statement is contradictory to the
scientific evidence, as it was clear that blood was not of chicken but that of a
human being. Thus, deliberately the appellant had given a false statement
under Section 313 Cr.P.C with intention to mislead. Except P.W. 3, none had
seen this appellant giving the fatal blow. So far as P.W. 3 is concerned, we
hold that he is not fully reliable witness as he has stated that he has seen
the appellant chopping the head of the deceased, but he did not forbid him.
He also stated that he held the hand of the appellant and kept him away
from the informant otherwise the appellant would have killed him. This fact
has not been mentioned in the FIR by the informant but that statement that
the appellant was present next to the dead body and the dead body was
lying in a cot and her head was severed cannot be doubted as all other
witnesses i.e. P.Ws. 2, 4, 5 and 6 and the informant have stated in the
similar manner. Even P.W. 1 also stated that the appellant was present at
the place of occurrence. In statement under Section 313 Cr.P.C, he also
stated that he was present in the house of the deceased. All these clearly
lead to only one inevitable conclusion that the appellant was present with
the deceased and the blood stained garments of the deceased along with
FSL report clearly suggest the guilt of the appellant. The entire chain is
complete without any break and there is no doubt that the prosecution has
been able to prove beyond all reasonable doubt that the appellant is guilty
of the offence, as alleged. It is also not the case of the defence that any
other person had committed the murder of the deceased. In fact, it is no
once case that there were other person present. There is no scope of doubt
in this case.
10. Section 106 of the Evidence Act reads as under;
106. Burden of proving fact especially within
knowledge. -- When any fact is especially within the
knowledge of any person, the burden of proving that fact is
upon him.
Illustrations
(a) When a person does an act with some intention other
than that which the character and circumstances of the act
suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a
ticket. The burden of proving that he had a ticket is on him.
It is true that if the prosecution has discharged the initial burden of
establishing, prima facie, the guilt of the accused, beyond all reasonable
doubt then only Section 106 of the Evidence Act is attracted. Section 106 of
the Evidence Act is exception to Section 101 of the Evidence Act and
Section 106 cannot be attracted unless the burden is proved by the
prosecution.
To discharge the initial burden with certainty, it must be proved that the
accused is guilty of the offence. There is no question of 'may' or 'may be'. All
possibility and hypothesis should be excluded and the chain must be
complete. The five golden principles are laid down by the Hon'ble Supreme
Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra
reported in (1984) 4 SCC 116, which in para 153 of the judgment. The
Hon'ble Supreme Court has laid down the rules. It is necessary to quote the
paragraph 153 as under;
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt
is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned "must or should" and not "may
be" established. There is not only a grammatical but a legal
distinction between "may be proved" and "must be or
should be proved" as was held by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra [(1973) 2
SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783]
where the observations were made: [SCC para 19, p. 807:
SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict
and the mental distance between 'may be' and 'must be' is
long and divides vague conjectures from sure
conclusions."
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is to
say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have been
done by the accused.
11. These golden principles are the basic principles of proving a case
based on circumstantial principles. In this case, the appellant has failed to
discharge the burden of proving the fact, which was upon him in terms of
Section 106 of the Evidence Act as the prosecution has proved the guilt of
the appellant beyond all reasonable doubt. He was standing next to the
dead body of his wife with blood smeared garments and he did not even
whisper nor gave statement under Section 313 Cr.P.C as to how she died.
The fact that he tried to mislead the Court, is apparent from the statement
recorded under Section 313 Cr.P.C as he had stated that he had chopped
chicken when admittedly from the scientific examination, the blood which
was found in his garments and the murder weapon was detected as of
human blood.
12. We also hold that non examination of the child witness and the
nephew of the accused, who came and informed the informant about the
assault upon the deceased is not fatal, as with the help of other witnesses,
who immediately rushed to the place of occurrence, the prosecution has
established its case beyond all reasonable doubt against the appellant.
13. Thus on overall consideration, we find that there is no merit in
this appeal and the same is thus liable to be dismissed and the judgment of
conviction and order of sentence dated 09.08.2016 passed in S.T. No.
134/2014 is confirmed.
14. In the result, this appeal is dismissed. Let the Trial Court
Records be sent back to the Court concerned forthwith, along with a copy
of this judgment.
(ANANDA SEN, J.)
SUBHASH CHAND, J.
(SUBHASH CHAND, J.)
Jharkhand High Court, Ranchi.
Dated: the 03 April, 2024.
NAFR/Anu/Cp.-3.
