2025:JHHC:18785-DB IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No.73 of 2015 ------ Lalmuni Gundua ----- Appellant Versus State of Jharkhand ----- Respondents ------ CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE AMBUJ NATH ------- For the Appellant : Mr. Jitendra S. Singh, Adv. For the State : Mr. Bhola Nath Ojha, A.P.P ------- Per R. Mukhopadhyay, J. 07/01.07.2025 Heard Mr. Jitendra S. Singh, learned counsel appearing for the appellant and Mr. Bhola Nath Ojha, learned A.P.P. 2. This appeal is directed against the judgment of conviction dated 19.12.2014 and order of sentence dated 20.12.2014 passed by Shri Deepak Nath Tiwari, learned Additional Sessions Judge-II, Jamshedpur in S.T. Case No. 414 of 2012 whereby and whereunder the appellant has been convicted for the offence punishable under Sections 302/34 IPC and has been sentenced to rigorous imprisonment for life. 3. A written report was submitted by Pradhan Pasing Gundua on 17.06.2012 to the effect that on the same day at about 4 AM Suresh Gundua woke up from his sleep and in order to answer the call of nature, knocked at the door. After sometime his (informant’s) daughter-in-law Lalmuni (appellant) opened the door and rebuked Suresh Gundua for roaming around at night. As Suresh Gundua was preparing to go to the field, Lalmuni came out and by calling out Suresh told him that something has happened to his brother Rupesh. When Suresh entered the room, he found Rupesh lying dead on the ground. At this Suresh woke up the other members of the family. When the mother of the deceased questioned Lalmuni, she became 2 nervous and disclosed that since he was sleeping on the ground, he has died. It has been alleged that there was a mark of strangulation on the neck of the deceased and when Lalmuni was asked how the deceased received such injury, she fled away and hid at some place. The informant had a suspicion that it was Lalmuni who had committed the murder as for some days she was annoyed with Rupesh Gundua for not letting her visit the fair. 4. Based on the aforesaid allegations, Golmuri PS Case No. 128 of 2012 was instituted against Lalmuni Gundua for the offence punishable under Section 302 IPC. On completion of investigation chargesheet was submitted against the accused and after cognizance was taken, the case was committed to the court of sessions, where it was registered as S.T. No. 414 of 2012. Charge was framed for the offence punishable under Section 302 IPC which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried. 5. The prosecution has examined as many as 10 witnesses in support of its case. 6. PW 1 Pradhan Pasing Gundua is the informant of the case who has proved his written report, which has been marked as Exhibit-1. He has stated that the incident is of June 2012 in the night of 16th -17th . There was a mark of strangulation on the neck of Rupesh Gundua @ Mohan Singh. On 17.6.2012 Suresh Gundua who was sleeping outside had knocked at the door at 4 AM for going to answer the call of nature. After some time, Lalmuni opened the door from inside and rushed towards Suresh by saying that something has happened to his brother. He has stated that when Suresh found that things were not in order, he called his mother who was in another room. Rupesh was found lying dead on the floor and there were nail scratches on his neck and chest and in the night Lalmuni and Rupesh had slept in the same room along with their infant child. Lalmuni had disclosed that since Rupesh slept on the floor that 3 caused his death. When Lalmuni was asked about the marks on his neck. She disclosed that Rupesh had committed suicide. When they asked about the rope, Lalmuni became nervous and fled away. He has stated that Lalmuni had an illicit relationship with someone which caused the incident. In cross-examination he has deposed that the father of Rupesh works in the Police Department. Rupesh is his nephew. There was no door in the room of Rupesh and only a curtain was in existence. When he saw the deceased for the first time, the body was in the bed. He was in his village and was not present at the place of occurrence. He has deposed that he reached his village at 10 AM. He has further deposed that in the south side of the room of Rupesh there is a room in which his mother and sister used to sleep. There are seven inmates in the house including Rupesh. When Lalmuni was fleeing away, the brother of Rupesh and some other boys had chased her though he does not know their names. The family members of Rupesh did not inform the Police prior to his arrival. The father of Rupesh had come at about 4.30 – 5 PM. He cannot say as to who had informed the father of Rupesh. He does not know as to whether Lalmuni has an illicit relationship with Arjun or not. He, however, has come to know that one month back there was a relationship between Lalmuni and Arjun. 7. PW 2 Sumati Gundua is the mother of the deceased who has stated that her son was murdered by Lalmuni Gundua. In the morning, her nephew who was sleeping outside had knocked at the door and Lalmuni had opened it and disclosed that something has happened to his brother. She went and saw her son dead. In the night after having dinner, both Rupesh and Lalmuni were inside the room and the door was closed from inside. In cross-examination she has deposed that when the incident had occurred, she was asleep. The incident was disclosed to her by Suresh. She had heard a sound of screaming at midnight. 4 8. PW 3 Jai Singh Gundua is the father of the deceased who has stated that Lalmuni Gundua had committed the murder of his son. He was at PTC, Hazaribagh and on getting the information he had started for his house at 6 AM and reached at 1:30 PM. In cross-examination he has deposed that he does not have any personal knowledge about the incident. 9. PW 4 Suresh Chandra Gundua has stated that the deceased Rupesh Gundua alias Mohan Singh Gundua was his cousin brother. He had seen the dead body of his brother, which had scratches and a wound on the head. There were signs of injury on the neck. There were also scratches of nail polish. He had got the information of the death on 17th at 4:20 am. In the night between 16th and 17th his brother was with his wife and the child in the room and there were no one else present. Their door was locked from inside. When he had knocked at the door in the morning, it was opened after 15 minutes. When he went inside, he found his brother lying on the floor and he was already dead by then. When he asked his sister-in-law as to how Rupesh had died, she disclosed that he had hanged himself and thereafter she had fled away. In cross-examination he has deposed that in the night of 16th no quarrel had taken place with his brother. In the night of the incident he was sleeping outside. He had not witnessed the occurrence. 10. PW 5 Neena @ Leena has stated that on 17.6.2012 at about 4.00-4:30 am she was sleeping with her mother when they were woken up by her brother Suresh. Her brother Rupesh was lying on the floor and when her mother asked Lalmuni she stated that Rupesh is sleeping on the floor. On the close scrutiny marks of pressure over neck was found on Rupesh. In cross-examination, she has deposed that her brother was healthy. Inside the room, her brother, sister-in-law and their infant child used to stay. 5 11. PW 6 Vivek @ Jena Singh Gundua has stated that on 17.6.2012 at 4 am he was in his room sleeping when his mother and sister woke him up and took him to the room of his brother, who was found lying on the floor. There was a mark of rope found on the neck as well as nail scratches in the chest, back and some other places. On the pretext of bringing the rope she put off the lantern and escaped. His brother used to stay in a room along with Lalmuni and they have two and half year old child. A quarrel had taken place between Rupesh and Lalmuni regarding going to someplace. Lalmuni used to converse with some person over phone. He had a suspicion that Lalmuni was having an affair with someone and since Rupesh objected to the same, he was murdered. In cross-examination he has deposed that he does not know how Lalmuni was trying to jump from Mango bridge, but the Police managed to prevent such incident. 12. PW 7 Ram Shakal Yadav has stated that he does not know as to how Rupesh Gundua had died. 13. PW 8 Dharam Deo Purty did not support the case of the prosecution and was accordingly declared hostile by the prosecution. 14. PW 9 Kanhaiya Prasad Singh was posted as Sub-Inspector of Police in Golmuri PS and on 17.6.2012 he was handed over the investigation of Golmuri PS Case No. 128 of 2012. He had recorded the restatement of the informant. He had prepared the inquest report and sent the body for post mortem. He had recorded the statement of the witnesses and had also inspected the place of occurrence, which is a house divided into two parts. The roof tiled room was said to be the bedroom of the deceased. He had obtained the post mortem report and on completion of the investigation, submitted charge sheet. He has proved the formal F.I.R. which has been marked as Exhibit-2. The endorsement in the written report has been proved and marked as Exhibit-1/1. The witness Dharam Deo Purty had stated 6 before him that nothing was found near the body to indicate that the deceased had hanged himself. In cross-examination he has deposed that the dead body was found on the bed. No recovery was effected with respect to the instruments used in the murder. In course of patrolling, it came to light that a woman (accused) was trying to jump from Mango bridge and the Mango Police had rescued her and had taken her to the police station. It has come in evidence that the accused was annoyed with her husband regarding a quarrel, which had ensued for going to a fair. In para-40 of the case diary it has been mentioned that Puru Gagrai had disclosed about the illicit relationship between the accused and her brother in law Suresh. The accused had a dispute with Suresh. 15. PW 10 Dr. Uma Shankar Prasad was posted as a medical officer in the department of FMT, MGM Medical College, Jamshedpur and on 17/6/2012 he had conducted autopsy on the dead body of Rupesh and had found the following:- (1) Three linear scratches measuring 2 ½ cm, 1 ½ cm, 3 cm long on the lateral aspect of upper part of left arm near shoulder. (2) Several crescentic (resembling the new moon in shape) nail scratch marks on the interior surface of left elbow. (3) Four linear scratches measuring 1 cm, 3 cm, 2 cm and 2 cm large placed transversally and almost parallel to each other on intro lateral aspect of upper part of right arm near shoulder. (4) One linear scratch abrasion almost semi circular in shape 5 cm long on the posterior lateral aspect of middle of right arm. (5) One linear scratch abrasion almost semi circular in shape 3 cm long on the posterior lateral aspect of right arm 3 cm above injury no.4. 7 (6) One linear scratch abrasion 3 cm long placed transversally on the lateral aspect of left arm in middle. On dissection of scalp and after removal of skull bones the brain was found congested with petechial haemorrhage spots on the surface of brain and in the layers of meninges. On dissection of thoracic-abdominal cavities- all the viscera were found congested. Both the lungs were found congested with petechial haemorrhage spots on the surface of both lungs. On dissection of neck extravasation of blood was found in the subcutaneous tissues under the ligature mark and adjacent areas. The larynx a trachea was found congested with bloody froth. The cause of death was opined to be due to asphyxia as a result of pressure over neck. The linear scratch abrasions that caused by sharp pointed objects while the injury No. 2 is nail scratch caused by fingernails. He has proved the post mortem report which has been marked as Exhibit-2. 16. The statement of the accused was recorded under Section 313 CrPC in which he has denied to have any role in the incident. 17. The defence has examined one witness. 18. DW 1 Rajesh Lal has stated that on 18.6.2012 he was having liquor with Suresh Gundua and Suresh Gundua had disclosed that he had committed the murder of his brother and has implicated his sister-in-law. The rope which was used in the murder was burnt by him. 19. It has been submitted by Mr. Jitendra S. Singh, learned counsel for the appellant that the appellant has been implicated only on the basis of suspicion. Admittedly, there are no eyewitnesses to the occurrence and only on the basis of weak circumstantial evidence, the appellant has been convicted. It 8 has been submitted that since the chain is not complete, the burden of explaining the circumstances as envisaged in Section 106 of the Evidence Act does not vest upon the appellant. 20. Mr. Bhola Nath Ojha, learned APP has, on the other hand, submitted that the evidence of the witnesses establishes the fact that the appellant was sleeping with the deceased in her room at night, and the deceased was found dead in the morning, apparently due to strangulation with scratch marks present over various parts of his body and the onus was obviously upon the appellant to explain the circumstances leading to the death. It has also been submitted that motive has been established beyond doubt to the effect that the appellant was having an extramarital affair. 21. We have considered the rival submissions and have also perused the lower court record. 22. The entire case of the prosecution is based on circumstantial evidence, as admittedly there are no eyewitnesses to the murder of Rupesh Gundua. The needle of suspicion points towards the appellant for the reason that she was with her husband in the night when the murder took place; no suitable explanation had been given by her and her conduct after she was questioned by the inmates of her house when she had fled away. We have to therefore analyze and come to a finding as to whether the learned Trial Court was justified in holding the appellant guilty of murder in the circumstances noted in the impugned judgment of conviction. The post mortem report reveals a homicidal death as the cause has been opined to be on account of pressure over neck. Abrasions and nails scratches were are also found on the person of the deceased. 23. The Fardbeyan of the informant is based on hearsay evidence and the informant who has been examined as PW 1 has admitted to be not present at the place of occurrence and had only reached at 10 AM though the incident came to light in the early morning. The hearsay evidence upon which the 9 fardbeyan of PW 1 is based is that of Suresh Gundua who has been examined as PW 4. PW 4 is the person who was sleeping outside and whose persistent knocks led to the appellant opening the door and disclosing that something had happened with her husband. Thereafter, the incident of the death of Rupesh Gundua had unfolded. It is indeed surprising and rightly taken note of by the learned trial court that the murder could not have been the handiwork of a solitary person without the active assistance of an accomplice, more so, when PW 1 has deposed that the deceased was a boxer. There were several inmates in the house, but none seem to have got any inkling about the murder, though PW 2 has disclosed about hearing someone scream at night which however was not followed up by her. The role of PW 4 seems to have assumed considerable significance as though he was sleeping outside the room he had not disclosed of any suspicious going ons. The inmates of the house being PW 2, PW 5 and PW 6 have also remained silent in that respect, which is perhaps designed to safeguard PW 4. 24. The motive which has been attributed to the appellant is of her having an illicit relationship with Suresh Gundua (P.W.4) which soured the relationship with her husband. In fact, the evidence of the witnesses reveals two reasons for the purported strained relationship existing between them: the first being the anger of the appellant towards the deceased for not being allowed to visit a fair and the second being the purported illicit relationship the appellant was having. PW 1 has stated that the appellant was having an affair with one Arjun while PW 6 has stated about the appellant having an affair with someone which was objected to by the deceased. PW 9 who is the investigating officer, has referred to a statement of one Puru Gagrai who had stated about the illicit relationship between the appellant and PW 4. This Puru Gagrai has not been examined by the prosecution. The domestic quarrel with respect to refusal to allow the appellant to visit a fair appears to be a trivial issue and so far as the illicit relationship is concerned, the same has 10 vaguely been asserted by the witnesses, such inconsistency with the person with whom she was having an affair being apparent. The motive of the appellant therefore, has not been established by the prosecution. 25. Another factor which has been considered by the learned trial court is the conduct of the appellant as it is said that on being questioned, she had fled away from the house and she had also attempted to commit suicide. In her 313 CrPC statement, this fact was put to her in which she has explained that she had fled away since her mother in law was assaulting her. 26. In the circumstances discussed above, we have to consider as to whether Section 106 Evidence Act would be applicable or not. In this context reference may be made of the case of Nagendra Sah versus state of Bihar, reported in (2021) 10. SCC 725 wherein it has been held as follows: “19. In this case, as mentioned above, neither the prosecution witnesses have deposed to that effect nor any other material has been placed on record to show that the relationship between the appellant and the deceased was strained in any manner. Moreover, the appellant was not the only person residing in the house where the incident took place and it is brought on record that the parents of the appellant were also present on the date of the incident in the house. The fact that other members of the family of the appellant were present shows that there could be another hypothesis which cannot be altogether excluded. Therefore, it can be said that the facts established do not rule out the existence of any other hypothesis. The facts established cannot be said to be consistent only with one hypothesis of the guilt of the appellant. 22. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existence of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the court can always draw an appropriate inference. 23. When a case is resting on circumstantial evidence, if the accused fails to offer a reasonable explanation in discharge of burden placed on him by virtue of Section 106 of the Evidence Act, such a failure may provide an 11 additional link to the chain of circumstances. In a case governed by circumstantial evidence, if the chain of circumstances which is required to be established by the prosecution is not established, the failure of the accused to discharge the burden under Section 106 of the Evidence Act is not relevant at all. When the chain is not complete, falsity of the defence is no ground to convict the accused.” 27. Some other features of the case not appropriately considered by the learned trial court is the silence on the part of the family members of the deceased in not informing the Police immediately after the occurrence; shifting the onus on the appellant without for once hinting at the possibility of an intruder committing the offence; the evidence of DW 1 stating about PW 4 confessing before him of committing the murder and the explanation given by the appellant in her 313 CrPC statement. 28. The evidence discussed above does not complete the chain of circumstances against the appellant and consequently, the onus of explaining the circumstances under Section 106 of the Evidence Act becomes irrelevant. In that view of the matter, we hereby set aside that impugned judgment of conviction dated 19.12.2014 and the order of sentence dated 20.12.2014 passed by Shri Deepak Nath Tiwari, learned Additional Sessions Judge- II in S.T. Case No. 414 of the 2012. 29. This appeal is allowed. 30. Since the appellant is in custody, she is directed to be released immediately and forthwith, if not wanted in any other case. (Rongon Mukhopadhyay, J.) (Ambuj Nath, J.) Shamim/-