Rituraj Oraon @ Chhatrapal Oraon vs The State Of Jharkhand

We have heard learned counsel appearing on behalf of the appellant as well as learned A.P.P. appearing on behalf of the State.

The appellant in this appeal has challenged the judgment by which he has been convicted for committing the offence under Section 302 of the I.P.C. vide judgment of conviction dated 14.06.2019 passed by the learned Sessions Judge, Gumla in Sessions Trial Case No. 71 of 2015 arising out of Gurdari P.S. Case No. 14 of 2014 corresponding to G.R. No. 947 of 2014 and has been sentenced to undergo R.I. for life alongwith the fine of Rs. 25,000/- with default stipulation, vide order of sentence dated 15.06.2019.

The appellant is none but the husband of the deceased.

The F.I.R. is at the instance of PW-4, who is the brother of the deceased. The fardbeyan is recorded on 03.09.2014 at about 9:25 A.M. In the fardbeyan, the informant states that the marriage of his sister was solemnized 12 years ago with this appellant. He further states that the deceased was para-teacher and this appellant was also a teacher in private school. The deceased used to complain that the appellant always used to demand money and also used to assault her. It has also been mentioned in the F.I.R. that in intoxicating state, assault used to take place for non-fulfillment of money, which the appellant was trying to get form the deceased. On the date of occurrence, i.e., 01.09.2014 at 7:00 P.M. in the evening, it is alleged that the appellant in a drunken condition came to the house and demanded money from his wife. As the deceased did not exceed to the request, she was brutally assaulted and as a result of which, she became injured. The father-in-law of the deceased brought her to one Rohini Mohini clinic at Kanke Road but, she died on the way to the clinic. The informant further states that before her death, she disclosed to him and to his father that the appellant has assaulted her.

On the basis of above fardbeyan, F.I.R. (Gurdari P.S. Case No. 14 of 2014) was instituted on 04.09.2014 for the offence under Section 302 of the I.P.C.

The police, after investigation, filed charge-sheet against the accused for committing the offence under Section 302 of the I.P.C. on 23.12.2014.

As the appellant pleaded not guilty and claimed to be tried, the charge was framed under Section 302 of the I.P.C. and the case was committed to the court of sessions, where Sessions Trial Case No. 71 of 2015 was registered.

After the appellant was put on trial, altogether 9 witnesses were examined on behalf prosecution, who are as follows:-

Apart from above oral testimony of the witnesses, prosecution has also exhibited following documentary evidence:-

After closure of the evidence, the statement of the appellant was recorded under Section 313 of the Cr.P.C. but thereafter the appellant did not produce any witness in defence.

The learned Trial Court, after evaluating oral as well as documentary evidence, found the appellant guilty for the offence punishable under Section 302 of the I.P.C. and sentenced him accordingly as stated above.

The learned counsel appearing on behalf of the appellant submits that the learned Trial Court has not properly appreciated the evidence available on record. The learned Trial Court has failed to appreciate that apart from independent witnesses, who have turned hostile, all the prosecution witnesses are either related or interest witnesses. He further submits that the prosecution witnesses are not the eye-witness of the occurrence. Learned counsel further submits that there is contradiction in the deposition of informant (PW-4) and father of the deceased (PW-5).

Learned A.P.P. appearing on behalf of the State defending the impugned judgment on merits submits that there is dying declaration of the deceased before the informant (PW-4) and her father (PW-5). It is further submitted that prosecution has been able to prove its case beyond all shadow of doubts. The learned Trial Court has properly appreciated the evidence available on record and has rightly convicted the appellant. The appellant has committed murder of his wife due to non-fulfillment of demand of money for consumption of liquor.

After going through the evidences available on record, we find that the doctor, who has conducted the postmortem of the deceased is PW-3. This witness has stated that there was fracture in 4^th, 5^th & 10^th ribs over right side of the chest at nipple line. He also found following injuries:-

He has further deposed that all the injuries may be caused, if any one put pressure on the chest. This type of fracture may cause and it may also be caused by strangulation.

Thus, from the statement of the doctor, we find that the prosecution has been able to prove the death of the deceased as homicidal death.

The main witnesses in this case are PW-4, who is the informant, PW-5 who is the father of the informant and deceased and the PW-2 who is the father of the accused and he had taken the deceased to the hospital.

PW-4 Somnath Tigga, the informant, has stated that after the marriage of his sister, she used to be assaulted and this appellant used to demand money from her and always used to spend the same for consuming liquor. He has further stated that in the evening of 01^st September, 2014, this appellant has also assaulted his sister for demanding money, as a result of the same assault, she became injured. On the next day, the father of the appellant had taken her to the hospital and thereafter, father of the appellant (PW-2) and his sister (deceased) reached Misir Gonda (Kanke Road) to their house, when they came out, saw his sister in injured condition and when they reached near the gate of Rohini Mohini Clinic, she died. He has further stated that before death of his sister, she disclosed that this appellant had assaulted her. He has also stated that the tongue and eyes of his sister were protruded and there was inflammation in whole of the body and there were blacken. He has identified his signature as Ext.-1/1 on the fardbeyan. He has also identified his signature in the inquest report as Ext.-3.

In his cross-examination, he has stated in his statement under Section 161 of the Cr.P.C., he told the police that he had seen the eyes and tongue of his sister were protruded and there were inflammation in the body. There were also marks of violence.

PW-5 Jay Prakash Tigga is the father of the deceased, who has also stated the fact that this appellant used to torture and assault the deceased and used to demand money for consuming liquor. He has further stated that on 01.09.2014, the father-in-law of the deceased had brought the deceased in a Bolero vehicle in injured condition. Then, the daughter stated him that this appellant had assaulted her. He has also stated that the deceased was in her sense and they gave her water to drink. They had taken the deceased in injured condition to Rohini Mohini hospital and on reaching at the gate of the hospital, she died and the doctor said that she is already dead. He has further stated that on 02.09.2014, they had taken the body of the deceased to their village. Thereafter, on the next day, the police came and they have got the statement recorded. He has identified his signature on the fardbeyan and also on the inquest report marked as Ext.- 1/2 & 3/1 respectively.

At para-17 of his cross-examination, he has stated that the marriage between her daughter and this appellant was love marriage as there was love affair between them. He has stated that father-in-law of the deceased had brought the deceased in injured condition to their house on 01.09.2014 itself. This statement has been given at paragraph-21 of his cross-examination.

PW-2 Mahto Oraon is the father of this appellant, who has stated that he resides in a separate house and on receipt of information, he went to the house of this appellant and saw his daughter-in-law, who stated that she is having severe pain in her abdomen and requested him to take to Ranchi. Thereafter, he took her to Ranchi and when they reached at the gate of the hospital, she died. Thus, they returned to Gumla.

From the evidence of these witnesses, who are witnesses of facts, it is clear that the deceased in an injured condition was brought to Ranchi. As per the F.I.R. and also as per the evidence of PW-2, it is clear that she died on the way just reaching the hospital but the doubt arises as to whether PW-4 and PW-5 were present at that time. If the F.I.R. is properly scrutinized, in the F.I.R., it has not been mentioned that as whether they accompanied the father-in-law of the deceased alongwith the deceased in an injured condition to hospital or not? Further, PW-2, who is father-in-law of the deceased, who has brought the deceased to Ranchi never whispers that the informant (PW-4) or his father (PW-5) were present alongwith him at any point of time.

Further, there are discrepancies in the dates. PW-2, who is father-in-law of the deceased and father of the appellant has stated that on receiving information, he went to the house of this appellant and on request by the injured, he brought her to Ranchi in a vehicle but she died near the gate of hospital. This witness has not mentioned any date but the father of the deceased (PW-5) has stated that she was brought on 01.09.2014 itself in his examination-in-chief and cross-examination on categorical statement, she was brought. The informant (PW-4) gives different dates. He says that on 02.09.2014, she was brought. Both PW-4 and PW-5 give statement that the deceased, when she was brought in an injured condition, has stated before them that it is this appellant, who has mercilessly assaulted her. The prosecution makes out a case of dying declaration of the deceased but the question, which falls for consideration is as to whether, she was in position to give dying declaration or not? Both these witnesses have stated that her condition was very critical as the tongue was protruded and so the eyes. PW-2, who has brought the deceased in an injured condition near hospital never stated the presence of PW-4 & PW-5 nor he stated that at any point of time she had given any statement. PW-2 has also not stated that before going to hospital, they took her to the house of the parents rather from the statement, it is clear that he directly went to the hospital. Thus, there is doubt about the fact that whether the deceased had given any statement and whether PW-4 and PW-5 were present to hear any statement of the deceased. Thus, we are not inclined to accept the argument of the learned counsel for the State that there is dying a declaration of the deceased as the same is doubtful.

Even if we disbelieve the aspect of dying declaration, the fact which cannot be burst aside is that the deceased as in injured condition was lying in her house, where there she was residing with this appellant. She sustained severe injuries is substantiated from the postmortem report. The death is homicidal is also proved.

Another circumstance, which is against the appellant and which has been proved by the prosecution is that the appellant always used to demand money from deceased and for not paying the same, he used to assault her. The money was demanded for consumption of liquor. The aforesaid fact has been proved by prosecution from the evidence of PW-4 & PW-5.

Since, the injuries are because of assault, which is also substantiated by the medical report, in terms of Section 106 of the Indian Evidence Act. It was the duty of this appellant to explain the same. Though, in his statement under Section 313 of the Cr.P.C., he has stated that he was not present at the house but once he has taken the defence, he should have explained at least narrated as where he was present at that point of time, what was the reason of the death and what was the cause of injury? This appellant has failed to prove the same.

Now, the question which will fall for consideration whether this case falls under Section 300 of the Indian Penal Code or under Section 304 of the Indian Penal Code. Admittedly, the police did not find any weapon nor the death was caused by using of any weapon. The doctor has opined that the fracture of ribs can be due to if one puts pressure on the chest. This suggests that pressure must have been applied on the chest. As there is a consistent evidence that this appellant used to assault the deceased, there can be a situation that the appellant had assaulted the deceased by putting pressure on the chest which resulting in fracture. In this, if that be so, it cannot be said that the appellant had any intention to commit murder of the deceased. Thus, in our opinion, this case cannot fall within purview of Section 300 of the Indian Penal Code. In that scenario, this can be within the purview of Section 304 Part-II of the Indian Penal Code.

Thus, considering the overall evidence and other factors, which leads to this case, we are of the opinion that conviction of the appellant under Section 302 of the I.P.C. is altered and his conviction is converted under Section 304 Part-II of the I.P.C.

So far as the sentence of the appellant is concerned, since the appellant is in custody for more than 12 years, thus, the sentence of the appellant is modified to the period which he has already undergone.

Accordingly, this appeal is partly allowed.

Pending I.A.(s), if any, stands disposed of, accordingly.

Thus, the appellant is directed to be released from custody forthwith, if not required in any other case.

Let the copy of this judgment be sent to concerned Trial Court for information and needful.