Jharkhand High Court
Dharm Singh Gundua vs The State Of Jharkhand on 26 September, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.19 of 2016
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(Against the judgment of conviction dated 08.12.2015 and order of sentence
dated 10.12.2015 passed by learned Sessions Judge, West Singhbhum at
Chaibasa in Sessions Trial No. 24 of 2015)
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Dharm Singh Gundua, son of Bono Singh Gundua, resident of village
Bhaliakudar, PO and PS Chakardharpur, West Singhbhum
... Appellant(s).
Versus
The State of Jharkhand ... Respondent(s).
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PRESENT
SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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For the Appellant(s) : Mr. Gautam Kumar, Advocate
Mr. Birat Kumar, Advocate
For the Respondent(s) : Mrs. Vandana Bharti, APP
.........
JUDGMENT
26th September 2024
Per Ananda Sen, J.: We have heard the learned counsel appearing for the
appellant and the learned counsel for the State at length.
2. This Criminal Appeal arises out of the judgment of
conviction dated 08.12.2015 and order of sentence dated
10.12.2015 passed in Sessions Trial No. 24 of 2015 whereby and
whereunder learned Sessions Judge, West Singhbhum at
Chaibasa convicted the appellant under Sections 302 of the
Indian Penal Code and sentenced him to undergo RI for life with
a fine of Rs. 10,000/-.
3. The learned counsel appearing on behalf of the appellant
submits that all the material witnesses in this case have been
declared hostile, thus there was no scope for the trial Court to
convict the appellant for committing the offence under section
302 of the Indian Penal Code. He submits that the facts stated in
the FIR have not been proved by the prosecution. Further he
submits that the witnesses who have turned hostile have stated
that they do not known as to how the deceased died. He refers to
one of the paragraph of the statement of father of the deceased
wherein he says that the relationship of the appellant with the
deceased was cordial. By no stretch of imagination it can be
concluded that due to matrimonial discord the appellant has
committed murder of the deceased. The appellant in his
statement under section 313 of the Cr.PC has stated that he was
working as a labour at that time in the Chakradharpur Block. In
view of the fact that the prosecution prima facie not been able to
prove the guilt of the appellant, section 106 of the Evidence Act
cannot be applied in this case. On this score he submits that the
conviction be set-aside and this appeal be allowed.
4. The learned counsel for the State argues that even if the
witnesses have been declared hostile but there credible statement
which supports the prosecution case can be considered while
convicting the appellant. He submits that there is consistent
evidence that there was a matrimonial discord between the
appellant and the deceased and admittedly the deceased died in
the matrimonial home and the death is unnatural as per the
postmortem report. The deceased died because of throttling and
the appellant has failed to explain the circumstances which led to
the death of the deceased in his house.
5. The prosecution case is on the behest of Shanti Samad who
is the mother of the deceased. She stated that on the fateful day
this deceased along with her another daughter Sombari Samad
and other village girls Poonam Samad and Shuru Samad went to
Chakradharpur to work. She further stated that at 10:00 AM
these two girls along with Sombari Samad returned and
informed the informant that on the way the deceased met her
husband i.e. the appellant and all of them went to the house of
the appellant. Sombari Samad and Poonam Samad were kept
outside the house whereas the deceased was taken in by the
husband. She was also informed by the Sombari Samad and
Poonam Samda that after taking the deceased inside the house
this appellant had throttled her to death. On this basis
Chakradharpur PS Case No. 64 of 2014 was registered under
section 302 of the Indian Penal Code against the appellant.
6. After investigation, the Investigating Officer submitted
chargesheet against the appellant for the offence punishable
under Section 302 of the Indian Penal and was put on trial.
7. On the basis of chargesheet and materials available on
record cognizance was taken and case was committed to Court
of Session where charges were framed and trial proceeded.
8. To prove the prosecution case, altogether 9 witnesses were
examined by the prosecution, who are :-
i. PW1 :- Sombari Samad
ii. PW2 :- Shuru Samad
iii. PW3 :- Shanti Samad
iv. PW4 :- Ganesh Samad
v. PW5 :- Poonam Samad
vi. PW6 :- Dr. B. K. Pandey
vii. PW7 :- Chitranjan Hembrom
viii. PW8:- Selay Bodra
ix. PW9 :- Laliteshwar Choudhary
9. Some documents were exhibited which are :
i. Ext.1 - Signature of Ganesh Samad (PW-4) on Fardbeyan
ii. Ext.2 - Postmortem report of deceased
iii. Ext.3 - Signature of witnesses on Inquest Report.
iv. Ext.4 - Fardbeyan.
v. Ext.5 - Endorsement on Fardbeyan
vi. Ext.6 - Formal FIR
vii. Ext.7 - Inquest Report of deceased.
10. The Trial Court after considering the evidence of the
prosecution, convicted the appellant for committing the offence
punishable under section 302 of the Indian Penal Code.
11. After hearing the learned counsel for the parties, we have
gone through the entire records. PW1, PW2, PW3 and PW5 have
been declared hostile. They are none but the informant and the
witnesses of facts. The Hon'ble Supreme Court in "Ramesh
Harijan vs. State of UP" reported in (2012) 5 SCC 777 has held
that the evidence of the prosecution witness cannot be rejected in
toto merely because the prosecution choose to treat him as
hostile in the cross examination. We are not referring to any
other judgments as the aforesaid proposition of law still hold
good.
Thus the proposition of law which is established is that
evidence of the hostile witness cannot be discarded as a whole
and relevant parts thereof which are admissible in law can be
used by the prosecution and the defence.
12. Considering the aforesaid proposition of law, we examine
the statement of the hostile witnesses. PW1 in her examination-
in-chief admitted that the deceased died in the house of this
appellant. She also admitted that since last one year deceased
was residing in her matrimonial home. She stated that the
deceased went to work and she also went. She stated in
examination-in-chief that she does not know when deceased's
husband i.e. the appellant had taken her with him. Since she had
not stated that she had seen the occurrence, which was her
earlier statement, she has been declared hostile. But the fact that
what has been noted above by us is admitted by her. In the
aforesaid statement the fact which has been established is that
since last one year she was residing in her paternal home and the
death had occurred in the house of the appellant. Though she
says that she does not know when her husband had taken her,
yet from the aforesaid statement we could understand the fact
that her husband had taken her, is admitted. Further the defence
has not cross examined the said witness on these points.
PW2 is another sister of the deceased. She admits that the
deceased was married with this appellant and the deceased died
in the house of this appellant. She stated that PW1-Sombari
Samad, the deceased and Poonam Samad went together for
work. On her way deceased got herself separated from the
others. On this point there is no cross examination, though she
was declared hostile. From the aforesaid statement it is quite
clear that the deceased had gone for work with PW1 and others.
Thus the statement made in the FIR to that extent is corroborated
by this evidence.
PW3 also stated that the deceased had gone to
Chakradharpur but did not return and the dead body was found
in her matrimonial home. There is no cross examination on this
point. PW4 is the father of the deceased. He stated that when the
deceased was alive she used to complain that she was tortured in
her in-law's house, she was often assaulted there. He further
stated that the deceased went from her house to her in-law's
house. He also stated that the deceased was not happy with her
husband as the husband used to torture and assault her. He had
seen the dead body of the deceased in the police station and felt
that she was throttled to death. He admits that he had signed the
F.I.R but what was written, the police had not informed him. He
had not witnessed any fight between the husband and wife. In
paragraph no. 13 he makes a very important statement. He says
that at present (at the time of deposition) there is good
relationship between the family of this appellant with his family.
We do not need to comment on this statement probably this is
the reason why all the witnesses have turned hostile.
The other important witness is the doctor (PW6) who has
conducted the postmortem of the dead body of the deceased. He
found the following injuries on the dead body:-
External findings :
i. Eye and mouth closed on turning of body, clotted
black blood came out from nostril 5 to 7 drops only.
No other detectable finding all over the body.
Internal findings:
i. On dissection : soft tissue on the lower part of the
neck on the interior side showing hematoma at
multiple sites in both side of neck and discoloured
black spots on tissue planes in muscles.
ii. Bones of the survical spines and cartilage of the
corresponding parts. No detectable abnormality.
The doctor opined that the death is caused due to
Asphyxia caused by throttling and also opined that the time of
death is between 6 hours to 12 hours from the time of conducting
the postmortem. In the cross-examination, the doctor has stated
that the aforesaid injuries are sufficient to cause death in
ordinary course of nature. This witness clearly proves the fact
that the deceased died homicidal death which definitely is
murder.
The inquest report has been proved by PW7 and PW8 as
the same was marked as Exhibit-A. He also admitted that the
dead body was found in the house of this appellant.
13. The I.O. exhibited the fardbeyan, the formal FIR and the
inquest report. He also stated that he had recorded the statement
of the witnesses during investigation and after closure of the
same filed the chargesheet under section 302 of the Indian Penal
Code. From his statement it is clear that the dead body was
found in the house of the appellant.
14. From the aforesaid evidence the fact which has been
established by the prosecution is that the deceased along with
her sister and another villager girls were going together to
Chakradharpur for work. On midway the deceased was
separated. The deceased since last one year was residing in her
paternal house. There was matrimonial discord between the
appellant and the deceased as the deceased was often tortured
and assaulted by this appellant. The deceased went to the house
of this appellant and she died in the house of the appellant and
the death is homicidal and murder. All this circumstances goes
against the appellant.
15. Section 106 of the Evidence Act reads as follows:
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.
The Hon'ble Supreme Court in the case of "Anees vs. State
Government of NCT" reported in 2024 SCC OnLine (SC) 757
has held that section 106 of the Evidence Act is attracted and the
onus shifted upon the appellant when the prosecution succeeded
to establish prima facie case against the appellant. In this case
section 106 of the Evidence Act is attracted as the murder had
taken place within the four corners of the wall. In cases based on
circumstances, when no eye-witness is available, when the
offence is committed within the closed door, which is the case
here, there is application of section 106 of the Evidence Act.
Admittedly the house belongs to this appellant and this
appellant is residing in the house and the deceased is none but
the wife and there is consistent evidence of matrimonial discord.
The deceased died an unnatural death in the house of this
appellant as she was throttled. At this stage, it was the duty of
this appellant to state the reasons of her death and how the
deceased died in his house. The fact that the deceased came to
his house cannot be doubted. It was for the appellant to disclose
the aforesaid fact. He has taken a plea in his statement under
section 313 of the Cr.P.C, that at that point of time he was
working as a labour in Chakradharpur Block. That is a vague
and bald statement without any supportive evidence. There is no
evidence to this effect. Once the appellant is taking some alibi
that he was not present in the place of occurrence and was at
some other place, he has to prove the same. If he fails to prove
the same, it is an additional circumstance which goes against the
appellant. In this case he has taken the defence of alibi but he has
failed to prove the same. Thus there is an additional
circumstance against the appellant also.
16. Considering all these aforesaid facts, we find that there is
no doubt that it is this appellant who had committed the offence.
The trial Court has appreciated all these aspects and had
correctly convicted the appellant under section 302 of the Indian
Penal Code. We do not find any illegality in the impugned
judgment, accordingly, Criminal Appeal (DB) No. 19 of 2016 is
dismissed.
17. Judgment of conviction dated 08.12.2015 and the order of
sentence dated 10.12.2015 passed by the learned Sessions Judge,
West Singhbhum at Chaibasa in Sessions Trial No. 24 of 2015 are
affirmed.
18. I.A. No. 7749 of 2024 has been filed to suspend the sentence
and release this appellant on bail on the ground of custody. Since
we have already dismissed this appeal on merit itself, I.A.
No. 7749 of 2024 is dismissed as infructuous.
19. Let a copy of the judgment along with the Trial Court
Records be sent back to the Court concerned forthwith.
(ANANDA SEN, J.)
(GAUTAM KUMAR CHOUDHARY, J.)
High Court of Jharkhand, Ranchi
Dated : 26/09/2024
Tanuj/
.A.F.R.
