Gopi Gope, son Of Gora Gope vs State Of Jharkhand

Heard, learned counsel for the appellant and learned A.P.P. for the State.

Sole appellant herein stood convicted vide impugned judgment dated 20.10.2005 rendered in Session Trial Case No.39 of 2005 by the court of learned Additional District & Sessions Judge, Fast Track Court-I at Chaibasa for the offence punishable under Section 302 of the IPC and has been sentenced to undergo rigorous imprisonment for life vide impugned order of sentence dated 21.10.2005. The appellant is in custody since 20.10.2004.

Prosecution was launched on the basis of fardbeyan of the Bua (aunt) of the appellant namely, Budhani Gawalin recorded at 17.00 hours on 20.10.2004 at the residence of the deceased. She alleged that on 20.10.2004 she had gone for work in the fields at 7.00 A.M. when at 10.00A.M., she came to know that her nephew accused Gopi Gope son of Gora Gope had killed his wife Palo Gope and hanged her from a Balli by means of rope.

She came back and saw the deadbody of her daughter-in-law Palo Gope hanging from the Balli (wooden log) with both her legs bent touching the ground. She informed the villagers and the Munda of the village. She further alleged that her nephew accused, Gopi Gope used to beat and abuse his wife regularly and whenever she used to ask for anything, he used to abuse her and beat her. She claimed that Gopi Gope always used to threaten his wife to kill her. For this reason accused Gopi Gope has killed his wife and caused her body to be hanged by a rope from the Balli(wooden log). Her nephew (the accused) was kept tied by the villagers and was handed over to the Sub-Inspector of Chakradharpur Police Station before whom the fardbeyan was recorded.

Upon conclusion of investigation, finding the case true, the sole accused was chargesheeted vide chargesheet bearing no. 02 of 2005 dated 14.01.2005 for the offence punishable under Section 302 of the IPC.

After cognizance the case was committed to the court of learned District & Sessions Judge, FTC-I, West Singhbhum at Chaibasa, where charge was framed under Section 302 of the IPC on 26.04.2005. Charge was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.

During the course of trial prosecution examined ten witnesses named as under:-

Ganga Ram Tanti has been examined as P.W.1, Sona Ram Gagrai has been examined as P.W.2, Hari Gope has been examined as P.W.3, Budhani Gawalin(Bua of the appellant and informant) has been examined as P.W.4, Dr. Balkrishna Sahani has been examined as P.W.5, Dr. Ashok Kr.

Mishra has been examined as P.W.6, Lakhan Hembram has been examined as P.W.7, Khudia Gagrai has been examined as P.W.8, Goma Samad has been examined as P.W.9 and K. K. Choudhary (Investigating Officer) has been examined as P.W.10.

The prosecution has adduced a number of documentary evidence up to exhibit five which are as under:-

Signature of Gangaram Tanti on fardbeyan has been proved and marked as exhibit-1, signature of Lakhan Hembram on fardbeyan has been proved and marked as exhibit-1/1, signature of Gangaram Tanti on inquest report has been proved and marked as exhibit-2, signature of Lakhan Hembram on inquest report has been proved and marked as exhibit-2/1, Postmortem report has been proved and marked as exhibit-3, signature of Dr. A. K. Mishra on postmortem report has been proved and marked as exhibit-3/1, fardbeyan has been proved and marked as exhibit-4 and endorsement on fardbeyan has been proved and marked as exhibit-4/1, F.I.R. has been proved and marked as exhibit-4/2 and inquest report has been proved and marked as exhibit-5. All without objection.

After conclusion of the prosecution evidence, statement of the accused was recorded under Section 313 of the Cr.P.C. where his case was of complete denial. He did not offer any explanation for the death of his wife in his own house nor the defence adduced any oral or documentary evidence in its support.

Learned trial court after consideration of the evidence on record and the submissions of the parties found the case of the prosecution proved beyond shadow of all reasonable doubt. It held that the case is of circumstantial evidence. According to the learned trial court the deceased was married to the accused and was living in the same house in possession of the appellant. He was apprehended by the villagers and kept tied till arrival of the police as he was trying to flee away. The feet of the deadbody was found to be bent and touching the ground. The medical evidence disproved the theory of suicide. P.W.4 informant is the own Bua (Aunt of the accused), who has narrated the true story before the police and the Court. Her statement did not suffer from contradiction nor any exaggeration or improvements. Other prosecution witnesses are independent and have supported the factum of the incidence. P.W.1 and P.W.7 the Munda and the Dakua do not have any animosity with the accused nor there is any reason for false implication.

The chain of circumstances were found to be fully completed leaving no doubt regarding the involvement and participation of the accused. Thus the learned trial Court found that the accused had no escape from the guilt.

Learned counsel for the appellant in order to question the findings of the leaned trial Court has inter-alia advanced the following submissions:

He submits that nobody has seen the occurrence and there are no eye witness to the occurrence. None of the circumstances have been conclusively proved and they taken together do not found a complete chain, which leads to the only hypothesis of the guilt of the accused and no other. The informant P.W.4 was not an eye witness as per her own statement. She claims to have learned about the occurrence from one Shibo Gope as per her testimony but Shibo Gope has not been examined. She has not named any other persons, who reached upon her brawl at the place of occurrence except stating that villagers came but she does not remember their name. No other ante-mortem injury has been found on the body of the deceased by the Doctors P.W.5 and P.W.6 (members of the Medical Board). As per the postmortem report (exhibit-3), death was caused due to asphyxia and shock, due to the above mentioned neck injuries caused by hanging. The nylon rope allegedly used for hanging has not been seized nor shown to the doctors nor produced during the trial. Other prosecution witnesses such as P.W.1- Ganga Ram Tanti, P.W.2- Sona Ram Gagrai, P.W.3- Hari Gope, P.W.7- Lakhan Hembram, P.W.8- Khudai Gagrai and P.W.9- Goma Samad all are hearsay witnesses. I. O. has been examined as P.W.10. I.O. has also stated during deposition that there is no eye witness to the case and that no blood was found lying at the place of occurrence. He has further stated that there were no signs of violence or injury on the body of the deceased nor he has found any sign of resistance at the place of occurrence.

The articles, utensils at the place of the occurrence were not found disturbed. As per his evidence also certain witnesses, whose statement were recorded have only seen the deadbody and nobody has seen the occurrence. As such without clinching evidence to prove all the circumstances pointing towards the guilt of the appellant/accused only, he has been convicted by the leaned trial Court. As such the impugned judgment suffers from perversity and is fit to be set aside. Appellant has already served the custody since 20.10.2004 till date.

Learned counsel for the State has argued in support of the findings. She submits that the prosecution case is based on circumstantial evidence.

Each of the circumstances have been conclusively proved by the prosecution through the evidence brought on record. The deceased was the legally wedded second wife of the appellant and was staying in the matrimonial home. She died in unnatural circumstances. The Inquest report and statement of Investigating Officer as well as other prosecution witnesses show that her feet was bent and touching the ground while her body was dangling from the wooden log. This clearly proves that it was not a case of suicide. The medical evidence also disproves the theory of suicide. Apart from that own aunt (bua of the appellant) has instituted the fardbeyan who used to live in a separate room of the same house. She was working in the fields and came to the place of occurrence on coming to know about the occurrence and found the deadbody hanging from the wooden log. Accused was trying to flee away and was tied by the villagers, this shows his unnatural conduct. The accused has in his statement made under section 313 of the Cr.P.C. failed to explain the circumstances within his special knowledge as to the cause of death since death occurred in the matrimonial house. Learned trial court has dealt with the evidence of the prosecution witnesses together with medical evidence and rightly came to the conclusion that the charges of murder has been proved beyond shadow of all reasonable doubt. The findings do not suffer from any perversity or misappreciation of the evidence which deserves interference in appeal. As such, there is no merit in the appeal and it is required to be dismissed.

We have considered the submission of learned counsel for the appellant and State. Perused the materials brought on record which includes the fardbeyan, framing of charge, statement of ten prosecution witnesses and five prosecution exhibits, statement of the accused under section 313 of the CrPC and also gone through the impugned judgment of conviction and order of sentence. On careful analysis of the evidence on record, we find that the law was set in motion on the basis of the fardbeyan of the informant P.W.4 Budhani Gawalin who is the own bua (aunt of the appellant) and used to stay in the same house in a different room. In her deposition, she has supported the allegations made in the fardbeyan about the regular beating and abuse to victim Palo Gope by her husband (appellant) on any pretext. On the fateful day, she had gone out in the field for work at 7.00 A.M. and on being informed at around 10.00 A.M., she came back and saw the deadbody of Palo Gope (wife of this appellant) hanging from the wooden log in the house by means of a rope. She has stated that this incidence was narrated to Munda and Dakua and her fardbeyan was recorded by the police. The deadbody was brought down by the police. She has further stated that her nephew (the accused) used to consume liquor regularly and beat his wife everyday after drinking. On the fateful morning her nephew (the accused) was playing cards with someone. He used to drink country made liquor and thereafter play card. When brawl was raised he started running away. She also asked him as to where are you going, your wife has died but he came and did not say anything. At para-5, she has categorically stated that on the fateful day also he had beaten up his wife. The Inquest Report (Exhibit-5) proved by the prosecution witnesses shows that the body was hanging from a wooden log from the ceiling by means of a rope and both the legs were bent touching the ground. Signature of the Inquest witnesses are Exhibits- 2 and 2/1 respectively. The inquest report further describes the deadbody as mouth open, sign of saliva coming out of the mouth on the right side of the cheek and an abrasion on the neck. The post mortem on the dead body was conducted on 21.10.2004 by Medical Board comprising of P.W.5 Dr. Balkrisna Sahni and P.W.6 Dr. Ashok Kumar Mishra at 11.50 A.M. who have proved the same marked as Exhibit-3 and the signature of Dr. A.K. Mishra (P.W.6) as Exhibit-3/1. The post-mortem report shows the following injury as also the opinion on the cause of death:

“ On External Examination- Both eyes close, mouth slight open, rigor mortis present in legs and hands, streaks of dry saliva seen down from right angle of mouth on chin.

Injury No. 1- A ligature mark present at upper part of neck with ecomoris above and below ligature mark and knot mark present on left side of higher

neck. A ligature mark was present on left side of higher neck. Ligature mark was dark, reddish brown color of skin and skin of ligature mark dry, hard and a leathery feel with abrasion in course of ligature mark present.

No other external injuries was present on other parts of body.

Internal Examination- Head NAD, Neck- Fracture of 2nd cervical vertebra present, mucous membrane of larynx and trachea congested with fine stained blood froth inside, soft tissues ruptured at site of ligature mark. Lungs congested eschewed dark frothy flew blood from lungs.

Heart- Right chamber contained blood, left empty.

Stomach- contains some semi-digested food.

Bladder- contains some urine.

Uterus- Small in size.

Opinion:- Death was due to Asphyxia and shock due to above mentioned neck injuries caused by hanging.

Time since death- From 24-48 hrs from the time of post mortem examination.”

During cross-examination, P.W.5 stated that no rope was shown to him and he has not stated whether the tongue was protruded or not. He further stated that tongue may or may not protrude in cases of hanging. No other external injury was found. The fact that the appellant was married to the victim has been proved by the evidence of prosecution witnesses such as P.W.1, P.W.2 and P.W.3 (own brother of the appellant) though P.W.3 has been declared hostile P.W.4 as stated above is informant and bua of the appellant who has fully supported the case of the prosecution, with regard to the place of occurrence, the relationship of the deceased and appellant as wife and husband, the time of occurrence and other relevant facts as to the manner of occurrence. The occurrence is also supported by P.W.7 Munda before whom the fardbeyan was recorded who has proved his signature where upon as Exhibit-1/1 and also on the Inquest Report (Exhibit-2/1). P.W.8 has stated that the accused was kept tied. Appellant was examined under section 313 of the CrPC. However, he has not been able to explain the circumstances as to the cause of death though death of his wife occurred in her own matrimonial house. There is an onus cast upon a person under section 106 of the Indian Evidence Act. The appellant was required to prove the fact especially within his knowledge i.e. as to the circumstances in which death occurred in the matrimonial house which he has failed to explain. In his statement under section 313 of the CrPC also, appellant has failed to explain the circumstances of death or anything in his defence. In this regard reliance is placed on the case of State of Rajasthan Vs. Kashi Ram as reported in (2006) 12 SCC 25,4 para 23, quoted hereunder:

“23. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain.”

It would also be appropriate to refer to the judgment rendered by the Hon'ble Apex Court in the case of Anjan Kumar Sarma & Ors. vs. State of Assam [(2017) 14 SCC 359] wherein it has been held that failure to explain the circumstances, on the part of the accused under section 313 of the Cr.P.C. apart from other circumstantial evidence, provides one more link in the chain of circumstances to be proved.

On due analysis of the evidence on record, in the light of settled principles of law, we find that the case of the prosecution has been duly proved beyond shadow of all reasonable doubt.

We therefore do not find any infirmity in the findings of the learned trial court. They are based on proper appreciation of the evidence. As such, the appeal is without merit and it is fit to be dismissed.

Accordingly, the appeal is hereby dismissed.

The appellant is already in custody.

Let the lower court record be sent down to the court concerned along with a copy of this judgment.