Ram Nandan Nonia Vs. the State of Jharkhand - Court Judgment

SooperKanoon Citationsooperkanoon.com/516996
SubjectCriminal
CourtJharkhand High Court
Decided OnFeb-02-2009
Case NumberCriminal Appeal (DB) No. 193 of 2001
Judge Amareshwar Sahay and; R.R. Prasad, JJ.
Reported in2009(57)BLJR1717
ActsIndian Penal Code (IPC) - Sections 302
AppellantRam Nandan Nonia
RespondentThe State of Jharkhand
Appellant Advocate P.A.S. Pati, Adv.
Respondent Advocate V.S. Sahay, A.P.P.
DispositionAppeal allowed
Excerpt:
criminal-murder-indian penal code, 1860-section 302-murder of wife- conviction-marriage took place 20 years ago-no eye-witness to occurrence- whole case based on circumstantial evidence-appellant and deceased were staying in same quarter leading a conjugal life-appellant having no motive to kill his wife-not a single witness stated that appellant was in fact present in house in night of occurrence-in absence of a iota of any evidence to show any motive suggesting for or inflicting fatal injuries on his wife by appellant, no such inference against appellant can be drawn-conviction and sentence set aside-appeal allowed. - motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant. - he also pointed out that according to the prosecution, the son of the appellant and the deceased namely bajrangi, aged about 8 years, was also present in the house, but he has also not been examined in the case, therefore, due to non examination of important witnesses, the prosecution has miserably failed to establish the charge beyond all reasonable doubts against the appellant. we are of the view that the prosecution has totally failed to establish the charge against the appellant beyond all reasonable doubt.1. the appellant has filed this appeal against the judgment dated 18/19.04.2001, passed by 3rd additional sessions judge, hazaribagh in sessions trial no. 274 of 2000 whereby, the appellant was convicted under section 302 of the indian penal code for killing his own wife namely jirwa devi and has been sentenced to undergo r.i. for life.2. the facts in short are that on 23.09.1999, fard bayan was lodged by the informant namely shiv nandan nonia, the brother of the deceased jirwa devi alleging therein that his sister jirwa devi was married to the appellant ram nandan nonia about 20 years ago and out of their wedlock they had one son namely bajrangi nonia aged about eight years and a daughter dulariya, aged about one year.on 23.09.1999, the informant received information at his house that his brother-in-law i.e. the appellant ram nandan nonia, has killed his sister jirwa devi. at this, he rushed along with his brother mahendra nonia to the matrimonial home of the deceased located at tapin 42 no. colony and found his sister lying dead in her quarter in a cot having injuries on her body. the neighbours disclosed that in the night between 22 and 23.09.1999, the appellant was quarrelling with his wife (deceased) and in that course, he assaulted himself with lathi and sticks resulting in her death.the informant further alleged in his fard bayan that the appellant used to assault the deceased in the past also. the police, after registering the case, started investigation and on its completion, submitted chargesheet. on the basis of which, the cognizance was taken and the case was committed to the court of sessions where the charges were framed against the appellant under section 302 of the indian penal code, which he pleaded not guilty and thereafter, he was put on trial.3. in order to establish the charge, altogether, ten prosecution witnesses were examined including the informant.4. there is no eye witness to the occurrence. the whole case is based on circumstantial evidence. out of 10 prosecution witnesses, p.w.-1 ramdeo nonia, p.w.-3 suryadeo nonia, p.w.-4 rajendra prasad kushwaha, p.w.-5 shambhu kumar mishra, p.w.-6 sukhlal nonia and p.w.-9 ram pravesh nonia alias chauhan are the witnesses who were declared hostile by the prosecution since they did not support the prosecution case.p.w.-2 is doctor amitabh ganguly who held the postmortem examination of the dead body of the deceased.p.w.-7 mahendra nonia and p.w.-8 shiv nandan nonia are the brothers of the deceased and are only hearsay witnesses.p.w.-10 saroj kumar singh is the investigating officer.5. according to p.w.-2 dr. amitabh ganguli, who held the postmortem examination of the dead body of the deceased jirwa devi, following injuries were found on her person:i. rigor mortis in both the limbs;ii. abrasion of 1' x 1' size on the right forehead;iii. abrasion 1' x 1/2' size on left knee;iv. echymosis of 2' x 1/2' size over the back.upon dissection, he also found fracture of right parietal skull with haematoma over right parietal lobe of brain. he has further testified to have found the liver, spleen and kidney intact and pale and the stomach containing 4 ounzes of a fluid.the doctor was of the opinion that the cause of death was haemmorhage and shock caused due to the injuries over brain by hard and blunt substance and that the time elapsed since death was within 6 to 40 hours from the time of post-mortem examination.6. the learned trial court, on the basis of the materials and evidence on record, convicted and sentenced the appellant as stated hereinabove.7. mr. p.a.s. pati, learned counsel appearing for the appellant submitted that most of the prosecution witnesses have not supported the case of the prosecution and p.ws. 7 and 8, who are the main witnesses being the brothers of the deceased, are the hearsay witnesses only.he further submitted that according to evidence of the informant, p.w.-7 mahendra kumar nonia, he was informed about the death of the deceased by one ganesh nonia, but the said ganesh nonia has not been examined by the prosecution as a witness in the case. he also pointed out that according to the prosecution, the son of the appellant and the deceased namely bajrangi, aged about 8 years, was also present in the house, but he has also not been examined in the case, therefore, due to non examination of important witnesses, the prosecution has miserably failed to establish the charge beyond all reasonable doubts against the appellant. consequently, the appellant is liable to be acquitted.8. from the impugned judgment, we find that the learned trial court has noticed the fact that admittedly the appellant and the deceased were staying in the same quarter leading a conjugal life and the deceased was found lying on a cot with several injuries on her person and the death was caused due to those injuries therefore, these circumstances lead to the conclusion that the appellant and the deceased were present at the same house at the time of alleged occurrence and since no explanation was offered by the appellant as to under what circumstanced did the deceased die in the residential quarter and therefore, only legitimate inference that can be drawn was that nobody else other than the present appellant committed the murder of his wife.9. in order to test the submission of the rival contention of the parties and in order to find as to whether the trial court has rightly come to the conclusion or not, we have carefully gone through the evidence of the main witnesses i.e. p.ws. 7 and 8 i.e. the brothers of the deceased, p.w.-2 doctor and of p.w.-10 saroj kumar singh, the investigating officer of the case.p.w.-8 shiv nandan nonia, the informant, in his evidence has stated that about a year back, he was informed by one gajendra nonia that his sister jirwa devi has been killed at which, he rushed to her place and found his sister jirwa devi died having injuries on her leg, waist and neck. there he came to know that the appellant had quarreled with the deceased in the previous night and in course of fight, he assaulted the deceased by means of bamboo stick resulting into her death.p.w.-7 mahendra nonia, the brother of the informant stated in his evidence that on 23.09.1999, he received information that his sister jirwa devi has been killed by the appellant and he went to see his sister where he found her dead having injuries on her person. he further stated that gajendra nonia told him that the appellant has killed his sister jirwa devi. he further alleged that in the past also, the appellant used to assault the deceased. the version of the witnesses in on hearsay on the information of gajendra nonia but gajendra nonia has not come forward to corroborate the statement of p.w.-7 therefore, his statement remained as uncorroborated hearsay version which can not be relied. position is the same with that of p.w.-8. his testimony is also hearsay without any corroboration. therefore, thief evidence is of no value.10. according to the prosecution case, the witnesses p.ws-4, 5 and 6 had disclosed that the relationship between the appellant and his wife was strain and the appellant used to assault his wife in the past also but this fact has not been supported by those three witnesses namely p.ws. 4, 5 and 6 in the trial and therefore, in such a situation, we find that the prosecution has not been able to establish the fact that the appellant had any motive to kill his wife. even the fact that he had a quarrel with his wife in the previous night and he assaulted the deceased in the previous night of the occurrence, has not been proved. the only circumstance against the appellant, which has been used against him by the prosecution is that the appellant and his wife were living in the same quarter and therefore, the inference would be that he was present in the quarter and since he did not extend any explanation regarding the injuries on the person of the deceased and the cause of her death and therefore, it would be presumed that he has committed the murder.11. on examination of the evidence and materials on record, we find that not a single witness of the prosecution has stated that the appellant was in fact present in the house in the night of occurrence.in absence of an iota of any evidence to show any motive suggesting for or inflicting fatal injuries on his wife by this appellant, no such inference against the appellant can be drawn.12. in view of the facts stated above, in our view, the trial court committed error in convicting the appellant and sentencing him under section 302 of the indian penal code for killing his wife on such unacceptable and inadmissible evidence. we are of the view that the prosecution has totally failed to establish the charge against the appellant beyond all reasonable doubt.in view of the discussions and findings above, this appeal is allowed. the conviction and sentence passed by the trial court is hereby set aside. the appellant, who is in custody, is directed to be set at liberty forthwith if not wanted in any other case.
Judgment:

1. The appellant has filed this appeal against the Judgment dated 18/19.04.2001, passed by 3rd Additional Sessions Judge, Hazaribagh in Sessions Trial No. 274 of 2000 whereby, the appellant was convicted under Section 302 of the Indian Penal Code for killing his own wife namely Jirwa Devi and has been sentenced to undergo R.I. for life.

2. The facts in short are that on 23.09.1999, Fard Bayan was lodged by the informant namely Shiv Nandan Nonia, the brother of the deceased Jirwa Devi alleging therein that his sister Jirwa Devi was married to the appellant Ram Nandan Nonia about 20 years ago and out of their wedlock they had one son namely Bajrangi Nonia aged about eight years and a daughter Dulariya, aged about one year.

On 23.09.1999, the informant received information at his house that his brother-in-law i.e. the appellant Ram Nandan Nonia, has killed his sister Jirwa Devi. At this, he rushed along with his brother Mahendra Nonia to the matrimonial home of the deceased located at Tapin 42 No. Colony and found his sister lying dead in her quarter in a cot having injuries on her body. The neighbours disclosed that in the night between 22 and 23.09.1999, the appellant was quarrelling with his wife (deceased) and in that course, he assaulted himself with Lathi and sticks resulting in her death.

The informant further alleged in his Fard Bayan that the appellant used to assault the deceased in the past also. The Police, after registering the case, started investigation and on its completion, submitted chargesheet. On the basis of which, the cognizance was taken and the case was committed to the Court of Sessions where the charges were framed against the appellant under Section 302 of the Indian Penal Code, which he pleaded not guilty and thereafter, he was put on trial.

3. In order to establish the charge, altogether, ten prosecution witnesses were examined including the informant.

4. There is no eye witness to the occurrence. The whole case is based on circumstantial evidence. Out of 10 prosecution witnesses, P.W.-1 Ramdeo Nonia, P.W.-3 Suryadeo Nonia, P.W.-4 Rajendra Prasad Kushwaha, P.W.-5 Shambhu Kumar Mishra, P.W.-6 Sukhlal Nonia and P.W.-9 Ram Pravesh Nonia alias Chauhan are the witnesses who were declared hostile by the prosecution since they did not support the prosecution case.

P.W.-2 is Doctor Amitabh Ganguly who held the Postmortem examination of the dead body of the deceased.

P.W.-7 Mahendra Nonia and P.W.-8 Shiv Nandan Nonia are the brothers of the deceased and are only hearsay witnesses.

P.W.-10 Saroj Kumar Singh is the Investigating Officer.

5. According to P.W.-2 Dr. Amitabh Ganguli, who held the Postmortem examination of the dead body of the deceased Jirwa Devi, following injuries were found on her person:

i. Rigor Mortis in both the limbs;

ii. Abrasion of 1' x 1' size on the right forehead;

iii. Abrasion 1' x 1/2' size on left knee;

iv. Echymosis of 2' x 1/2' size over the back.

Upon dissection, he also found fracture of right parietal skull with haematoma over right parietal lobe of brain. He has further testified to have found the liver, spleen and kidney intact and pale and the stomach containing 4 ounzes of a fluid.

The Doctor was of the opinion that the cause of death was haemmorhage and shock caused due to the injuries over brain by hard and blunt substance and that the time elapsed since death was within 6 to 40 hours from the time of post-mortem examination.

6. The learned Trial Court, on the basis of the materials and evidence on record, convicted and sentenced the appellant as stated hereinabove.

7. Mr. P.A.S. Pati, learned Counsel appearing for the appellant submitted that most of the prosecution witnesses have not supported the case of the prosecution and P.Ws. 7 and 8, who are the main witnesses being the brothers of the deceased, are the hearsay witnesses only.

He further submitted that according to evidence of the Informant, P.W.-7 Mahendra Kumar Nonia, he was informed about the death of the deceased by one Ganesh Nonia, but the said Ganesh Nonia has not been examined by the prosecution as a witness in the case. He also pointed out that according to the prosecution, the son of the appellant and the deceased namely Bajrangi, aged about 8 years, was also present in the house, but he has also not been examined in the case, therefore, due to non examination of important witnesses, the prosecution has miserably failed to establish the charge beyond all reasonable doubts against the appellant. Consequently, the appellant is liable to be acquitted.

8. From the impugned Judgment, we find that the learned Trial Court has noticed the fact that admittedly the appellant and the deceased were staying in the same quarter leading a conjugal life and the deceased was found lying on a cot with several injuries on her person and the death was caused due to those injuries therefore, these circumstances lead to the conclusion that the appellant and the deceased were present at the same house at the time of alleged occurrence and since no explanation was offered by the appellant as to under what circumstanced did the deceased die in the residential quarter and therefore, only legitimate inference that can be drawn was that nobody else other than the present appellant committed the murder of his wife.

9. In order to test the submission of the rival contention of the parties and in order to find as to whether the Trial Court has rightly come to the conclusion or not, we have carefully gone through the evidence of the main witnesses i.e. P.Ws. 7 and 8 i.e. the brothers of the deceased, P.W.-2 Doctor and of P.W.-10 Saroj Kumar Singh, the Investigating Officer of the case.

P.W.-8 Shiv Nandan Nonia, the informant, in his evidence has stated that about a year back, he was informed by one Gajendra Nonia that his sister Jirwa Devi has been killed at which, he rushed to her place and found his sister Jirwa Devi died having injuries on her leg, waist and neck. There he came to know that the appellant had quarreled with the deceased in the previous night and in course of fight, he assaulted the deceased by means of Bamboo stick resulting into her death.

P.W.-7 Mahendra Nonia, the brother of the informant stated in his evidence that on 23.09.1999, he received information that his sister Jirwa Devi has been killed by the appellant and he went to see his sister where he found her dead having injuries on her person. He further stated that Gajendra Nonia told him that the appellant has killed his sister Jirwa Devi. He further alleged that in the past also, the appellant used to assault the deceased. The version of the witnesses in on hearsay on the information of Gajendra Nonia but Gajendra Nonia has not come forward to corroborate the statement of P.W.-7 therefore, his statement remained as uncorroborated hearsay version which can not be relied. Position is the same with that of P.W.-8. His testimony is also hearsay without any corroboration. Therefore, thief evidence is of no value.

10. According to the prosecution case, the witnesses P.Ws-4, 5 and 6 had disclosed that the relationship between the appellant and his wife was strain and the appellant used to assault his wife in the past also but this fact has not been supported by those three witnesses namely P.Ws. 4, 5 and 6 in the trial and therefore, in such a situation, we find that the prosecution has not been able to establish the fact that the appellant had any motive to kill his wife. Even the fact that he had a quarrel with his wife in the previous night and he assaulted the deceased in the previous night of the occurrence, has not been proved. The only circumstance against the appellant, which has been used against him by the prosecution is that the appellant and his wife were living in the same quarter and therefore, the inference would be that he was present in the quarter and since he did not extend any explanation regarding the injuries on the person of the deceased and the cause of her death and therefore, it would be presumed that he has committed the murder.

11. On examination of the evidence and materials on record, we find that not a single witness of the prosecution has stated that the appellant was in fact present in the house in the night of occurrence.

In absence of an iota of any evidence to show any motive suggesting for or inflicting fatal injuries on his wife by this appellant, no such inference against the appellant can be drawn.

12. In view of the facts stated above, in our view, the Trial Court committed error in convicting the appellant and sentencing him under Section 302 of the Indian Penal Code for killing his wife on such unacceptable and inadmissible evidence. We are of the view that the prosecution has totally failed to establish the charge against the appellant beyond all reasonable doubt.

In view of the discussions and findings above, this appeal is allowed. The conviction and sentence passed by the Trial Court is hereby set aside. The appellant, who is in custody, is directed to be set at liberty forthwith if not wanted in any other case.