Devnish Dhan vs State of Jharkhand

Heard learned senior counsel for the appellant and learned counsel for the State.

The sole appellant is aggrieved by the impugned Judgment of conviction dated 14th March, 2005 and Order of sentence dated 17th March, 2005,

passed by the learned Additional Sessions Judge, FTC-I, Chaibasa, in S.T. No. 174 of 2004, whereby, the sole appellant has been found guilty and

convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to

undergo R.I. for life with fine of Rs. 4,000/- for the said offence.

The prosecution case was instituted on the basis of the fardbeyan of the informant Anju Rojlin Dhan, who is none else than the mother of the

appellant, recorded on 25.12.2003, at about 07:00 A.M., at her house situated in village Nuiya, near forest check naka, P.S. Gua, District West

Singhbhum. She has stated that on the previous day, i.e., on 24.12.2003 at about 11:45 P.M. in the night, when she returned from Church, she was

informed by her daughter Lotika Dhan that her son Devnish Dhan, who is the present appellant, has committed the murder of his friend Harsh Nath

Choudhary, whose dead body was lying near the forest check naka. Upon getting the information, the informant went to the place of occurrence and

found the deceased dead with bleeding injuries in his leg. In the meantime, the accused also came there in a drunken condition and he tried to assault

his mother also, whereupon, she confined herself in a nearby house. In the morning the police arrived when she gave her fardbeyan to the police. She

has also stated that her son had committed murder earlier also, in which he was earlier jailed. On the basis of her fardbeyan, Gua P.S. Case No. 45 of

2003, corresponding to G.R. No.533 of 2003, was instituted against the sole appellant for the offence under Section 302 of the Indian Penal Code, and

investigation was taken up. After investigation, the police submitted the charge-sheet in the case.

After commitment of the case to the Court of Session, charge was framed against the accused appellant for the offence under Section 302 of the

Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. In course of trial, the prosecution has

examined eight witnesses in the case, including the Doctors who had conducted the post-mortem examination on the dead body of the deceased, and

the I.O. of the case. No defence evidence was adduced in the case.Â

P.W.-1 Anju Rojlin is the informant of the case. She has stated that the appellant is her own son. The occurrence had taken place on 24th

December, 2003 in the night. She had gone to Church and when she had returned from Church at about 11:00 P.M., she was informed by her

daughter Lotika Dhan that Harsh Nath Choudhary, who had visited her house as a guest, had been murdered by Devnish Dhan by an iron sabbal. She

was not informed about the motive of the occurrence. She was informed that when Harsh Nath Choudhary was sleeping in the house, he was

assaulted on his shoulder and thereafter he tried to flee away on the road, when he was chased and again assaulted by the accused. She was also

informed that her daughter tried to save him, but the accused threatened to assault her also, whereupon, she fled away. Upon getting the information,

she went to the road and found the dead body of the deceased. The accused was also there and wanted to assault her also, but due to fear she did not

go near him. The police was informed on the other day, upon which the police came and recorded her fardbeyan. She has proved her signature on the

fardbeyan, which was marked Ext.1, and she has also proved her signature on the inquest-report, which was marked Ext. 1/1. She has identified the

accused in the Court, stating that from the Jail also her son had sent a threatening letter which she has proved, which was marked as Ext.2 with

objection. She has also stated that earlier also her son was sent to Jail in a murder case. This witness was put to extensive cross-examination, in which

she has again stated that the accused is her elder son. She has admitted that she has not seen the occurrence, rather she was informed about the

occurrence by her daughter. A suggestion was given to her that there was some affair between the deceased and this witness, which has been denied

by the witness. This witness has also stated that she had handed over the sabbal to the police. She has denied the suggestion that due to the affair

between her and the deceased, she has falsely implicated her son. Â

P.W.-2 Lotika Dhan and P.W.-3 Sefali Dhan are the daughters of the informant and own sisters of the appellant. Both these witnesses were

present in the house at the time of occurrence and they are the eye-witness to the occurrence. They have also fully supported the prosecution case

stating that they were present in the house and the deceased Harsh Nath Choudhary was also in the house. They have stated that the deceased and

their brother Devnish Dhan were taking liquor together in which there was some altercation between them. P.W.-2 Lotika Dhan has stated that upon

the altercation accused assaulted Harsh Nath Choudhary by subbal, whereupon, he ran out of the house for saving himself, but he was chased and

again assaulted by subbal due to which he fell down. Whereas P.W.-3 Sefali Dhan has stated that after taking liquor, the accused made the deceased

to sleep and the sisters were asked to go out of the house, and after closing the room, he assaulted Harsh Nath Choudhary. P.W.-3 Sefali Dhan has

also stated that upon getting the assault the deceased tried to flee from the house in injured condition, when he was chased and again assaulted by the

accused by subbal due to which he fell down. Both these witnesses have stated that they tried to save the deceased, but they were also threatened by

the accused, upon which they fled away. When their mother returned from Church, they informed her about the occurrence. In her cross-examination

P.W.-2 Lotika Dhan has stated that she had seen the accused assaulting the deceased by subbal and the subbal was also handed over to the police.

She has also denied any illicit affair between the deceased and her mother. P.W.-3 Sefali Dhan has stated in her cross-examination that she had not

seen the assault made inside the house, but she had seen the assault made outside the house. She has also stated that the bottle of liquor, glass and

subbal were handed over to the police. To the Court’s question she has stated that she has deposed what she had seen.Â

P.W.-4 Songa Sidui is a witness to the inquest-report and he has proved his signature on the inquest-report, which was marked Ext. 1/2. He has

however, stated that he had put his signature on the inquest-report at the Police Station. Â

P.W.-5 Dr. Murli Manish, P.W.-6 Dr. Swapan Kr. Singh and P.W.-7 Dr. B.K. Singh are the Doctors who were the members of the Board of

Doctors conducting the post-mortem examination on the dead body of the deceased. P.W.-5 Dr. Murli Manish has stated that post-mortem was

conducted by the Board of three Doctors on 25.12.2003, and following injuries were found on the dead body :-Â External:-

Bruise of size 1â€​ x 1/2â€​on anterior aspect of both knees.

Fracture of right knee joint.

Compound fracture of right tibia and fibula just below knee joint.

Lacerated wound of size 2â€​ x 1â€​x deep to bone narrow present on anterolateral aspects of right leg just below knee joint with blood clot.

Lacerated wound of size 1â€​ x ½â€​ x deep to bone narrow on anterolateral aspect of right leg medial to wound No.4 with blood clot.

Lacerated wound of size 1â€​ x ½â€​ x deep bone on anterior aspect of right leg at about mid level with blood clot.

Fracture of left knee joint.

Compound fracture of left tibia and fibula just below knee joint.Â

Lacerated wound of size 3â€​ x 1â€​ x deep to bone narrow on the anterior aspect of left leg with blood clot.

Bruise of size 1â€​ x 1â€​ on posterior aspect of right shoulder.

Fracture of right shoulder joint. On Dissection :-

  Meninges: N.A.D.Â

 Thorax: Fracture of 2nd, 3rd, and 4th ribs of right side. Blood and blood clot were present in the chest cavity. Right lung was ruptured.

  Heart: Empty.

  Other viscera: N.A.D.

 Soft Tissues: and vessels were ruptured in the area near knee joint of both sides.Â

 He has stated that the cause of death was shock and haemorrhage due to the injuries caused by hard and blunt object. He has also stated that the

post-mortem report was prepared by him and bears his signature which he has proved and the same was marked Ext.3. The other members of the

Board, Dr. Swapan Kr. Singh and Dr. B.K. Singh, also put their signatures on the post-mortem report. P.W.-6 Dr. Swapan Kr. Singh and P.W.-

7Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Dr. B.K. Singh have also identified their signatures on the post-mortem report, which were marked Ext.

3/1 and 3/2 respectively. All these three Doctors have stated that the injuries found on the dead body of the deceased were sufficient to cause the

death of the deceased.Â

P.W.-8. Akshay Kumar Ram is the I.O. of the case. He has stated that on 25.12.2003 he was posted as the Officer-Incharge of the Gua Police

Station. At 06:30 A.M., he got the information that in village Nuiya one person had been murdered. He made sanha entry of the information and

proceeded towards the place of occurrence. He reached near the forest              check naka in village Nuiya, where he

recorded the fardbeyan of                    Anju Rojlin, which he has proved and the same was marked Ext.4. He

has also proved the inquest-report of the dead body and the same was marked Ext.5. Thereafter the dead body was sent for post-mortem

examination. He has stated that he recorded the statements of the witnesses and he also inspected the place of occurrence, which is a road near

Nuiya forest           check naka, where the dead body was lying. The house of the accused was situated nearby in the Western

side. He arrested the accused and submitted the charge-sheet. In his cross-examination, this witness has stated that he had not seized anything from

the place of occurrence and he has also not seized the blood stained soil. No employee of the check naka was present there. He has denied the

suggestion of making faulty investigation.  10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has

denied the evidence against him. No defence evidence was adduced in the case. On the basis of the evidence on record, the accused appellant has

been convicted and sentenced by the Trial Court below, as aforesaid.

Learned senior counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court

below cannot be sustained in the eyes of law, in as much as, the prosecution has failed to bring home the charge against the accused beyond all

reasonable doubts. It is submitted that P.W.-1 Anju Rojlin is not the eye witness to the occurrence. She is only a hearsay witness and there are

contradictory statements in the evidence of the two eye witnesses, who are P.W.-2 Lotika Dhan and P.W.-3 Sefali Dhan, the daughters of the

informant. Learned senior counsel pointed out that according to the evidence of P.W.-2 Lotika Dhan, the occurrence had taken place while both the

deceased and the appellant were taking liquor together, in course of which there was a quarrel and the deceased was first assaulted by her brother in

the house and when he tried to flee away, he was chased to the road and again assaulted by the accused causing his death at the spot, whereas,

according to the evidence of P.W.-3 Sefali Dhan, after taking the liquor, the deceased was made to sleep in the house by the accused, and when he

slept, he was assaulted and when he tried to flee away, he was chased and again assaulted on the road. Learned senior counsel further submitted that

the evidence of both these eye witnesses would show that the occurrence had taken place due to some sudden provocation, while both the deceased

and the accused were taking liquor together, and accordingly, the case is covered by Exception 4 to Section 300 of the Indian Penal Code and this

homicide shall not amount to murder. Learned Senior counsel further submitted that the post-mortem report, as proved by P.W.-5 Dr. Murli Manish,

would show that all the injuries on the dead body were on the non-vital parts of the body and according to the medical evidence also, the case would

not come within the purview of Section 302 of the Indian Penal Code, rather, the offence, if any, would be made out only under Section 304 of the

Indian Penal Code. In support of his contention, learned Senior counsel has placed reliance upon the decision of the Hon’ble Supreme Court in

Molu and Others Vs. State of Haryana, reported in AIR 1976 SC 2499, wherein where, even though several injuries were found on the deceased, the

Hon’ble Apex Court has held as follows :-

The next point that falls for consideration is what is the nature of the offences that the accused have committed on the evidence led before the

Trial Court. To begin with, as pointed out above, multiple injuries were received by the deceased persons which were caused by blunt weapons like

lathis and are of minor character. Furthermore, the injuries are not on any vital parts of the body and even those which are on the scalp portion appear

to be very superficial. There is nothing to show that the accused intended to cause the deliberate murder of the two deceased persons. There is no

evidence to show that any of the accused ordered the killing of the deceased persons or incited or in any way expressed a desire to kill the deceased

persons at the spot. In these circumstances we are satisfied that there is no legal evidence in this case that the accused intended to cause the murder

of the deceased. The fact, however, remains that the accused have caused multiple injuries on both the deceased persons on various parts of their

bodies and, therefore, they undoubtedly had the knowledge that the cumulative effect of the injuries would result in the death of the deceased. As all

the accused appear to have acted together and under a preconceived plan which developed at the spot and which is clear from the fact that they

suddenly pounced on the deceased and went away together they must be deemed to have possessed a common intention to assault the deceased with

the knowledge that the injuries caused by them were likely to cause the death of the deceased. In these circumstances, the accused have committed

an offence under Section 304 Part II of the Indian Penal Code and not one under Section 302, I.P.C. -----------.

  Learned Senior counsel has also placed reliance upon a decision of the Hon’ble Apex Court in Dinesh and Another Vs. State of Haryana,

reported in 2002 CRI. L.J. 2970. It is further submitted by learned senior counsel that though all the witnesses have stated that the subbal was

produced before the police, but the I.O. has clearly stated that he had seized nothing from the place of occurrence. Learned senior counsel also

pointed out that though the I.O. has deposed about the second place of occurrence, where the dead body of the deceased was found, but there was no

mention by the I.O. about the first place of occurrence, where the deceased was allegedly first assaulted. Learned senior counsel accordingly,

submitted that due to these infirmities, the prosecution has not been able to bring home the charge against the accused beyond all reasonable doubts

and it is a fit case in which the accused ought to have been given at least the benefits of doubt.

Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution has been able to establish the

charge against the accused beyond all reasonable doubts, in as much as, the case is fully supported by the two eye witnesses, P.W.-2 Lotika Dhan

and P.W.-3 Sefali Dhan, who are none else but the own sisters of the appellant and they have fully supported the case as eye witness to the

occurrence. They have stated that it was this accused who had assaulted the deceased by subbal in the house and when he fled away from the house

to save himself, he was chased and assaulted on the road where the deceased died due to assaults made by the accused. Learned counsel submitted

that even P.W.-1 Anju Rojlin, who is the mother of the appellant, has also fully supported the prosecution case as a hearsay witness, as informed to

her by her daughters. She has also stated that when she went near the dead body upon getting the information, she was also threatened by the

accused, who was there in a drunken condition. Learned counsel further submitted that several injuries were found on the dead body of the deceased

and all the three Doctors, who had conducted the post-mortem examination, have stated that the injuries on the deceased were sufficient to cause

death. It is submitted by learned counsel that the evidence of eye witnesses is fully corroborated by the evidence of P.W.-5 Dr. Murli Manish, P.W.-6

Dr. Swapan Kr. Singh and P.W.-7 Dr. B.K. Singh and the post-mortem report proved by them as Ext.-3. It is submitted by learned counsel that the

injuries on the deceased would show that some of them were on the vital part of the body, as three ribs of the deceased were found fractured,

rupturing the lung, and the whole chest cavity was full of blood and blood clots. Learned counsel submitted that the manner of assault made on the

deceased clearly shows that the deceased was assaulted with the intention to cause his death and there is no illegality in the impugned Judgment of

conviction and Order of sentence passed by the Trial Court below.

Having heard learned counsels for both the sides and upon going through the record, we find that minor contradictions apart, which is only natural

in the criminal cases, the case is fully supported by the two eye witnesses P.W.-2 Lotika Dhan and P.W.-3 Sefali Dhan, who are none else than the

own sisters of the appellant. Both these witnesses were present in the house and have stated that while taking liquor there was some quarrel due to

which the accused assaulted the deceased by subbal on his shoulder, thereafter, when he tried to flee away from the house, he was chased by the

accused appellant and again assaulted by subbal causing his death at the spot. P.W.-1 Anju Rojlin, the mother of the appellant, has also fully supported

the prosecution case as hearsay witness to the occurrence, as informed to her by her daughters. There appears to be absolutely no reason as to why

the own sisters and the mother shall try to falsely implicate the accused. Though a suggestion was given about some illicit affair between the mother

of the appellant and the deceased, which has been denied by the witnesses, but the defence has not adduced any evidence to prove any such affair.

This also shows the conduct of the accused appellant, who has made such a nasty suggestion against his own mother, without there being any proof

about the same. The medical evidence of P.W.-5 Dr. Murli Manish shows that there were several injuries on the dead body of the deceased. Though

most of them were on the legs, i.e., the non-vital part of the body, but there were other injuries also on the deceased which were on the vital parts of

the body, as three ribs of the deceased were found fractured causing puncture in the lung. The manner of assault made in the present case clearly

shows that the deceased was assaulted by this accused by iron sabbal, and the repeated assaults made by subbal resulted in fracture of three ribs,

puncturing the right lung and several fractures were caused in both the legs and the shoulder of the deceased, which clearly indicate that the assaults

were made with the intention to cause the death of the deceased. The facts of this case and the injuries on the deceased are quite different from the

one, in the case relied upon by learned senior counsel in Molu’s case (supra), wherein there were only superficial injuries on both the deceased

and grievous injuries, if any, were not on the vital parts of the body. In the present case grievous injuries were found on the vital parts of the body as

well. All the three Doctors, namely, P.W-5 Dr. Murli Manish, P.W.-6 Â Dr. Swapan Kr. Singh and P.W.-7 Dr. B.K. Singh have clearly stated that

the injuries on the deceased were sufficient to cause the death. The evidence that the deceased was first assaulted in the house and when he tried to

flee away to save himself, he was again chased and assaulted causing his death at the spot, clearly indicates that the case is not at all covered by

Exception 4 to Section 300 of the Indian Penal Code. We are of the considered opinion that in view of the unimpeachable evidence of the mother and

sisters of the appellant, that this appellant had assaulted the deceased by subbal, non-seizure of subbal or the blood stained soil by the police officer

shall not be fatal to the prosecution case. Though non-seizure of the subbal and the blood stained soil from the place of occurrence, and non-

examination of the  first place of occurrence, where the deceased was allegedly assaulted first, may be serious faults on part of the I.O., but we are

of the considered view that in the present case, which is fully supported by the witnesses, who are the own sisters and mother of the appellant, the

prosecution case must not suffer only due to the faulty investigation made by the I.O., particularly in view of the fact that there is nothing on the

record to suggest that the own sisters and the mother shall try to falsely implicate the accused.

For the foregoing reasons we do not find any illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court

below worth interference by this Court. Accordingly, the impugned Judgment of conviction dated 14th March, 2005 and Order of sentence dated 17th

March, 2005, passed by the learned Additional Sessions Judge, FTC-I, Chaibasa, in S.T. No. 174 of 2004, convicting and sentencing the appellant

Devnish Dhan, for the offence under Section 302 of the Indian Penal Code, are hereby, affirmed. The appellant is already in custody undergoing the

sentence.Â

We do not find any merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned

forthwith, along with a copy of this Judgment.Â

We are informed that the appellant is in custody for more than fourteen years and his matter has not been referred to the State Sentence

Remission Board for consideration of remission in sentence. It would be open for the authorities concerned to refer the case of the appellant to the

State Sentence Remission Board for consideration of remission in sentence, in due course.

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