1. Udit Singh, Son of late Risha Singh. 2. Mitla Oraon, Son of Bishua v. The State of Bihar
Case Details
Cr. Appeal (D.B) No. 246 of 1997 (R) [Against the Judgment of conviction dated 04.09.1997, passed by learned Second Additional Sessions Judge, Palamau at Daltonganj, in Sessions Trial No.151/1990] 1. Udit Singh, Son of late Risha Singh. 2. Mitla Oraon, Son of Bishua Oraon, 3. Samlu Oraon, Son of Bishua Oraon, 4. Bishua Oraon, Son of Puran Oraon, 5. Tapeshwar Singh, Son of Late Mati Oraon, 6. Raghunath Singh, Son of Udit Singh. All residents of village Lalmatia, Police Station Garu, District- Palamau. …. Appellant s Versus The State of Bihar (Now Jharkhand) …..Respondent --------- PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA -------- For the Appellant : Mr. Pankaj Kumar, Adv. For the State : Mr. Bhola Nath Ojha, Spl.P.P. --------- JUDGMENT C.A.V. On 22.10.2024 Pronounced On:11/12/2024 Per- Pradeep Kumar Srivastava, J. Heard learned counsel for appellant Mr. Pankaj Kumar as well as
Legal Reasoning
learned Special Public Prosecutor appearing for the State Mr. Bhola Nath Ojha. 2. Present appeal has been preferred by the appellants challenging their conviction and sentence passed by Second Additional Sessions Judge, Palamau at Daltonganj in S.T. Case No. 151/1990 dated 4th September, 1990 whereby and whereunder the appellants have been found guilty and Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 1 sentenced for the life imprisonment for the offences under Section 302/149 of the I.P.C., rigorous imprisonment for 2 years for offence under Section 148 further the appellant no.2 (Mitla Oraon) was sentenced for rigorous imprisonment for six months for offences under section 323 of the I.P.C. All the sentences were directed to be run concurrently. 3. It is to be mentioned here at the very outset that out of six appellants only appellant no.2 (Mitla Oraon) and appellant no.6 (Raghunath Singh) are alive. Rest of the appellants, appellant no.1 (Udit Singh), appellant no.3 (Samlu Oraon), appellant no.4 (Bishua Oraon), appellant no.5 (Tapeshwar Singh) have been reported to be died during the pendency of this appeal. Hence, appeal filed on their behalf stands abated and
Decision
disposed of. FACTUAL MATRIX 4. Factual matrix giving rise to this appeal is that on 30.10.1989 at about 06:00 PM, the informant Dhankumar Kumhar (P.W.6) was talking with his family members at his house, meanwhile, he heard hue and cry “Bachao-Bachao” of his father-in-law (Sawan Kumar). The informant rushed out from the house and saw that Udit Singh, Raghunath Singh, Tapeshwar Singh, Bishuwa Oraon, Samlu Oraon and Mitla Oraon were assaulting his father-in-law by means of lathi and his father-in-law was lying on the road. It is further submitted that upon protest by the informant, Raghunath Singh (Appellant No.6) gave a lathi blow on the head of the informant and another blow on his leg. Mother-in-law of the informant also intervened, then she was also assaulted by the accused persons on her head causing bleeding injury. The informant along with his mother-in-law went towards his father-in-law and found him dead. Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 2 The informant raised alarm, then his wife Dhurbichni Devi (P.W.2), Pushan Kumhar, Dhundi Devi, Kushan Kumar, Kheriden Kumhar (P.W.8) came on the spot and have seen the occurrence. It is further alleged that the incident was informed to the Surpanch Rajendra Prasad, immediately. The motive behind the occurrence is that since 8 – 9 years, land dispute is going on between the parties for seven acres of “Gairmajarua land.” On the basis of the above information F.I.R. being Garu P.S. Case No. 20/89 (G.R. Case No. 482/89) was registered for the offences under Section 147, 148, 302, 323 read with Section 149 of the I.P.C. 5. After completion of investigation charge-sheet was submitted against all the accused persons and after taking cognizance, the case was committed to the court of Sessions for trail. The accused persons denied the charges levelled against them and claimed to tried. 6. After conclusion of trial one co-accused person namely, Nandeo Oraon was acquitted and other co-accused persons i.e., above named appellants were convicted and sentenced as stated above. 7. Learned counsel for the appellants assailing the impugned judgment of conviction and sentence of the appellant has vehemently argued that altogether 10 witnesses were examined by the prosecution in order to substantiate the charges levelled against accused persons. P.W.6 Dhankumar Kumhar is the informant and son-in-law of the deceased, whose testimony suffers from material contradictions, improvement and exaggeration in his examination-in-chief. He has named four accused persons namely, Udit Singh, Raghunath Singh, Mitla Oraon and Garja Singh and further states that accused Tapeshwar Singh, Bishua Oraon and Samlu Oraon were standing there. This witness has Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 3 stated in clear terms that Udit Singh has assaulted the deceased with tangi on the head and Mitla Oraon had assaulted the deceased with lathi. However, in the F.I.R., there is no mention of tangi as a weapon of offence. This witness is also not an eye-witness of the occurrence and has not seen the actual happening in as much as in his cross-examination, he states that when he came out from the house he saw that his father-in- law was lying dead. The injury sustained by the deceased does not correspond with the version of this witness as to number of blows and the weapon used while assaulting the deceased by Udit Singh and Mitla Oraon. It is an admitted fact that at first instance, only informant reached at the place of occurrence and after his raising alarm other witness approached there. Therefore, all the witnesses examined in this case are hearsay witnesses of the occurrence. P.W.7 Puran Prajapati son of the deceased and P.W.8 Kharidan Prajapati grand-son of the deceased have claimed to be not an eye-witness of the occurrence. Although, they have deposed like an eye-witnesses of the occurrence to strengthen prosecution case. P.W.9 Arun Kishore Sahay is the doctor who has examined Chunni Devi (P.W.3) and found simple injury on her body caused by hard and blunt substance, which may also be caused due to fall. P.W.3 Chunni Devi happens to be the wife of the deceased, who has been turned hostile and not supported the prosecution case. The Investigating Officer has not been examined. It also prejudices the defence in elucidating contradictions appearing in the evidence of witnesses. Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 4 It is further submitted that the F.I.R. contains general and omnibus allegations against the appellants particularly, Mitla Oraon (Appellant No.3) and Raghunath Singh (P.W.6) have been alleged to assault the informant (P.W.6) by lathi, but in his testimony before the Court has alleged that Mitla Oraon assaulted him by lathi. The entire prosecution evidence indicates that except P.W.6 (Dhankumar Kumhar), none of the witnesses have supported the prosecution story as contained in the F.I.R., who claims to be sole eye- witness, but his testimony also suffers from material contradictions and infirmities which throws his testimony to be unreliable which cannot be made the basis of conviction of the appellants. It is further argued that learned trial court has miserably failed to appreciate that the prosecution has not been able to prove any of the common object as defined under Section 141 of the I.P.C, in furtherance of which, the incident took place. Therefore, Section 146, 147, 148 and 149 are absolutely not applicable in this case. So far, allegation against the appellant no.2 (Mitla Oraon) and appellant no.6 (Raghunath Singh) is concerned. P.W.6 (Dhankumar Kumhar) has stated that he was assaulted by these appellants using lathi. The injury report of P.W.6 proved by P.W.9 (Dr. Arun Kishore Sahay) goes to show that he found only one injury i.e., lacerated wound 1”x 1/4”x1/4” over forehead which was opined to be caused by hard and blunt substance like lathi. P.W.9 (Dr. Arun Kishore Sahay) has also examined Chunni Devi (P.W.3) wife of the deceased (Sawan Kumhar) and found following injuries. Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 5 (i) Lacerated would 2”x 1/4"x1/4” over the forehead of skull bone. (ii) Complain of pain over the back (iii) Complain of pain over both arms. Nature of injuries is simple in nature and caused by hard and blunt substance like lathi. It is further contended by learned counsel for the appellants that the post-mortem on the dead body of the deceased was conducted by P.W.5 (Dr. Arun Shukla) has sustained following ante-mortem injuries were found:- (i) Sharp cut injury on left parietal region of the skull size 6” x 1” x 1” (ii) Fracture of skull at multiple places. (iii) Fracture of mandible on dissection the small cavity was full of blood and there was laceration on parietal region of brain. Injury no.1 caused by a sharp weapon like tangi and injury no.2 & 3 caused by hard and blunt substance like lathi. 8. It is further argued that the inquest report of the deceased also shows the cause of death due to injury caused by sharp cut weapon and there were three sharp cut injuries found on the dead body. Thus, deceased has sustained sharp cut injuries caused by Udit Singh (Appellant No.1) which was responsible for death. The present appellants Mitla Oraon and Raghunath Singh have simply assaulted to the informant and his mother-in-law and the injuries sustained by them are simple in nature as such the conviction and sentence of the appellants with aid of Section 149 of the Indian Penal Code is absolutely not Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 6 warranted under law and they deserve the benefit of doubt as there is no concrete evidence against these appellants for causing death of the deceased. The appellant Mitla Oraon has also been found guilty for the offences under Section 323 of the I.P.C. and sentenced to undergo rigorous imprisonment of six months. It is further alleged that both the alive appellants Mitla Oraon and Raghunath Singh have remained in custody during the course of trial for about six months and have been sufficiently punished for the offences alleged to be committed by them under Section 323 of the Indian Penal Code. 9. In the premises of the aforesaid arguments, it is submitted that the conviction and sentence of appellants Mitla Oraon and Raghunath Singh for the offences under Section 302/149 is liable to be set aside and they deserve acquittal from the charges levelled against them. In the alternative, it is submitted that the appellants have undergone substantive period of imprisonment during trial of the case and have been sufficiently punished for their conviction under Section 323 of the I.P.C. Accordingly, this appeal may be allowed. 10. On the other hand, learned Spl.P.P. defended the impugned judgment and order of sentence of the appellants namely Mitla Oraon and Raghunath Singh and contended that that these appellants were member of unlawful assembly and in prosecution of their common object have brutally assaulted the deceased who died on the spot. The deceased has sustained injuries not only by sharp cut weapon, but also by hard and blunt weapon like lathi causing multiple fractures on head. Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 7 Learned trial court has very wisely and aptly considered the overall evidence available on record and arrived at right conclusion. There is no merit in this appeal which is fit to be dismissed. 11. We have gone through the record of the case along with impugned judgment and order in the light of contentions raised on behalf of both sides. 12. It appears that the sole eye witness of the occurrence is the informant P.W.6 (Dhankumar Kumhar). In the F.I.R., he has stated in specific terms that on 31.10.1989, after sunset at about 06:00 PM, he was talking with the family members in his house, meanwhile he heard hulla of his father-in-law coming towards the pitch road situated at northern side of the house. He rushed towards the pitch road and saw that his co-villager Udit Singh, Raghunath Singh, Garja Singh, Tapeshwar Singh, Bishuwa Oraon, Samlu Oraon and Mitla Oraon all were armed with lathi, were assailing simultaneously to his father-in- law and his father-in-law under injured condition was lying dead on the road. He has further specifically stated that he forbade accused persons from assaulting to his father-in-law, then Raghunath Singh gave a lathi blow on his head and one lathi blow on left thigh. Thereafter, his mother-in-law Chunni Devi also came there and protested, then accused persons also assaulted her by lathi causing injury on head, thereafter, all the accused persons fled away. P.W.6 (Dhankumar Kumhar), the informant-cum-injured has deposed during trial that on the date of occurrence his father-in-law went out for urination, then Udit Singh, Raghunath Singh, Garja Singh and Mitla Oraon, Tapeshwar Singh, Bishuwa Oraon, Samlu Oraon were standing outside and Udit Singh has assaulted his father- Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 8 in-law by Tangi on head, Mitla Oraon assaulted by lathi and when this witness protested, then he was also assaulted by Mitla Oraon by lathi on head. Thereafter, he saw his father-in-law was lying dead. He has further deposed that his mother-in-law came to the place of occurrence, then she was also assaulted, but he cannot see who has assaulted her. She had also sustained injuries and fell down. Hearing hulla, his wife also arrived at the place of occurrence along with Kharidan Prajapati (P.W.8) and Kishun Kumar and saw the occurrence. He has also stated that the motive behind occurrence is old land dispute. This witness admits that the incident took place at the road which is at a distance of five steps from the house. He also admits that his father-in-law went alone for discharging urine. He further admits at Para 10 that when he came out from the house he saw that is father-in-law was lying dead. In the court question, he again says that when the accused persons were assaulting to his father-in-law when came out from the house. 13. The defence has drawn attention of this witness towards the contents of F.I.R. as well as statement of witness under Section 161 of Cr.P.C. wherein he replies that he has stated before the police that his father- in-law went out for discharging urine, then Udit Singh assaulted him by tangi on head and Mitla Oraon assaulted on his head by lathi. He has also stated before police that Mitla Oraon gave a lathi blow to him also. He has also stated that he saw that Udit Singh has gave 3-4 tangi blows and Mitla Oraon gave 3-4 lathi blows on the head of the deceased. Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 9 The Investigating Officer of this case has not been examined in this case, so as to get the above glaring contradictions appearing in this case from the version of F.I.R. and the statement under Section 161 of the Cr.P.C. get explained through him. It has been certainly caused prejudice to the defence. 14. At this juncture, the evidence of other witnesses who also appears to be hearsay witnesses deserve some discussion for proper appreciation of the case. P.W.2 Dhurbichni Devi:- is wife of the informant and daughter of the deceased, she also admits that on the date of occurrence she was at her matrimonial home and after hearing message of murder of her father, she came to her paternal home and she is not an eye- witness of the occurrence. P.W.2 Chunni Devi:- is the wife of the deceased and injured witness. She has stated in clear terms that when she came out from her house after hearing hulla “Bachao-Bachao”, then saw that her husband was lying dead. She has not seen any of the persons fleeing away. She has also not stated that she was assaulted by any of the accused persons while raising protest. Therefore, she has been declared hostile by the prosecution. She has also not seen as to who has assaulted her husband and mother-in-law. P.W.4 Dhundi Devi:- is another daughter-in-law of the deceased. She has also stated that after hearing hulla of her father-in-law “Bachao-Bachao” at first her brother-in-law (Dhankumar Kumhar) went out to see the occurrence and when she came out of the house, her father-in-law was lying dead. She has stated in general terms that all the accused persons assaulted her father-in-law and disclosed that Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 10 Raghunath Singh and Mitla Oraon had tangi and other accused persons were having lathi. Samlu Oraon has assaulted her mother-in- law and Dhankumar Kumhar (Informant) has been also assaulted by the accused persons. Therefore, this witness has not seen the occurrence from her own eyes and she appears to be hearsay witness and contradictions appearing in her evidence also cannot be explained due to non-examination of the Investigating Officer. P.W.7 Puran Prajapati is the son of the deceased and has never seen the dead body of this father and did not see while the accused persons were assaulting. He claims to have seen Ragunath Singh and Matla Oraon and Garja Singh were fleeing away from the place of occurrence and also claims that he has seen Udit Singh was armed with Tangi and other co-accused persons were armed with lathi. P.W.8 Kharidan Prajapati is the grand-son of the deceased. This witness is also appears to be an eye-witness of the case rather deposed to be eye-witness of the occurrence and he deposed that he saw Raghunath Singh was giving lathi blow to his grand-father and Mitla Oraon, Udit Singh, Bishuwa Oraon, Samlu Oraon were also present with Tangi and lathi. The deposition of this witness is totally in contradictions with the main eye-witness Dhankumar Kumhar (Informant). As regards manner of assault by the accused persons. P.W.1 Md. Mustakim and P.W.10 Bomkesh Tiwary are formal witnesses and by profession advocate clerks who has proved the signature of I.O. Abdul Rahman on the F.I.R. and formal F.I.R., inquest report, seizure list, but clearly admitted that the above documentary evidences were not written in their presence. Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 11 P.W.5 Dr. Arun Shukla and P.W.9 Dr. Arun Kumar Sahay have medically examined the injured and conducted post-mortem of the dead body of the deceased which has been discussed in the arguments of the appellants as mentioned above. 15. The trend of prosecution evidence as elaborately discussed above goes to show that only P.W.6 Dhankumar Kumhar has claimed himself an eye-witness of the occurrence, but his evidence is suffering from material contradictions as regards presence of accused persons on the spot and actual role played by them in assaulting the deceased. He has not disclosed the manner of occurrence in specific terms in the F.I.R. and in his deposition also. He has given contradictory statement from the statement recorded under Section 161 of the Cr.P.C. and in his cross-examination specifically admits that when he came out from the house saw the dead body of his father-in-law. The another injured, wife of the deceased has also not seen the assailants and also not disclosed name of any of the accused persons who had assaulted to her husband or son-in-law (informant). It also appears that the dead body was lying on the pitch road all over the night and none of the villagers approached there, in spite of information given by the informant to the village Surpanch (Rajendra Prasad). The F.I.R. was lodged on the next day morning and the injured persons were sent to hospital and examined and the dead body was also sent for post-mortem report after preparation of inquest report. The claim of the prosecution that the present appellants who are alive namely Mitla Oraon and Raghunath Singh have assaulted the deceased with tangi and lathi has not been proved to the hilt. P.W.6 the informant in his evidence has stated that Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 12 Raghunath Singh and Mitla Oraon had assaulted on head by lathi and a separate charge under Section 323 was framed against the accused appellant Mitla Oraon and one Nandeo was acquitted. 16. Upon careful scrutiny of the material witnesses of facts, we find that so far, murder of the deceased is concerned. No overt act has been proved against any of the appellants in causing death of the deceased by assaulting him through Tangi or lathi. In this regard, all the witnesses are hearsay witnesses. The present appellants Raghunath Singh and Mitla Oraon have been attributed with allegation of giving lathi blow to the informant and his mother-in-law in his presence which has not been rebutted by the defence. Therefore, conviction of the present appellants for the offences under Section 323 of the Indian Penal Code may be justified. 17. In view of above discussion and reasons, we find that there is no role of the appellants Mitla Oraon and Raghunath Singh in causing death of the deceased by inflicting head injuries through tangi and lathi. Hence, conviction of these appellants for the offence under Section 302, 148, 149 of the I.P.C. is set aside and they are acquitted from the charges levelled against them for the offences under Section 302 read with Section 149 of the I.P.C. Similarly, the conviction of these appellants for the offences under Section 148 of the I.P.C. has also not been proved by the prosecution. The appellants have remained in judicial custody during trial for duration of six months and offence proved against them falls under Section 323 of the Indian Penal Code for which they have already been sufficiently punished. 18. In view of the above, this appeal is partly allowed subject to aforesaid observations. Appellants are on bail and they are Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 13 discharged from their liability of bail bonds. Sureties shall also be discharged. 19. Let the copy of this judgment along with record of trial court be sent back to concerned trial court for information and needful. 20. Pending I.As, if any stand disposed of. (Rongon Mukhopadhyay, J.) (Pradeep Kumar Srivastava, J.) Jharkhand High Court, at Ranchi Date: 11/12/2024 Amar/- N.A.F.R. Cr. Appeal (D.B) No. 246 of 1997 (R) Page | 14