1. Jawara Oraon son of Bandhu Oraon 2. Krishna Oraon Son of Bandhu Oraon v. The State of Bihar
Case Details
Cr. Appeal (D.B) No. 32 of 1997(R) [Against the Judgment of conviction dated 29/30.1.97, passed by learned Additional Sessions Judge-Gumla, in Sessions Trial No.82 of 93] 1. Jawara Oraon son of Bandhu Oraon 2. Krishna Oraon Son of Bandhu Oraon Both are residents of Village-Nagfeni, Police Station-Sisai, District- Gumla .... .... …. Appellants Versus The State of Bihar .... .... .... Respondent P R E S E N T HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA ------ For the Appellants : Mr. Vishnupad Singh, Amicus Curiae For the State : Mr. Manoj Kumar Mishra, A.P.P. C.A.V. On 03.09.2024 Pronounced On: 18.09.2024 ------ Per Per Pradeep Kumar Srivastava, J 1. Above named appellants have challenged their conviction and sentence passed by learned Additional Sessions Judge, Gumla in S.T. Case No. 82 of 1993 dated 29/30.01.1997, whereby and whereunder the appellants have been held guilty for the offences under Sections 342, 302 read with Section 34 I.P.C. and rest four accused persons who were tried jointly in the same trial have been acquitted extending benefit of doubt. 2. Factual matrix giving rise to this appeal in a narrow campus is that on 18.12.1991 at about 06.00 P.M. one Kedar Oraon (deceased) had gone to his sasural, in the same village, while he was returning to his home and reached in front of the house of Chamari Orain, the accused persons namely, Krishna Oraon, Jawara Oraon, Hira Sao, Babu Lal Sao and Bitu Sao all surrounded and caught hold of him. All the accused persons brought Kedar Oraon to their house and brutally assaulted him on head, chest, leg and arm by hockey stick and due to assault he became unconscious. It is alleged that hearing hulla raised by Kedar Oraon, his son-in-law Tiju Oraon, (P.W.4), Fagua Oraon(P.W.6) and several other villagers reached there and have seen the occurrence. The injured was brought to his house and in the next day morning moved to hospital for treatment. In the course of treatment, the said Kedar died in the hospital where police also arrived and recorded the fardbeyan of informant Suna
Legal Reasoning
Oraon (P.W. 1) at Sadar Hospital Gumla. Accordingly, FIR was registered for the offences under Sections147, 342, 323 and 307 of the Indian Penal Code which was converted into 302 IPC after death of the deceased. 3. After completion of investigation, charge sheet was submitted against altogether six accused persons including present appellants, who have faced trial and out of six accused persons only the 2 Cr. Appeal (D.B) No. 32 of 1997(R) appellants have been held guilty for the offences under Sections 302/34 and 342/ 34 IPC and sentenced R.I. for life for the offence under Section 302/34 of the Indian Penal Code however no separate sentence was passed u/s 342/34 IPC. 4.
Legal Reasoning
Learned Amicus Curiae, Mr. Vishnupad Singh for appellants has placed following points of arguments indicating innocence of the appellants. (i) There is no eye witness of the occurrence. Although eleven witnesses have been examined to substantiate the charges leveled against the accused persons but none of them have seen the occurrence. The presence and perpetration of the appellants has not been proved beyond all reasonable doubt. (ii) The main witness examined by prosecution is P.W. 4, Tiju Oraon, who happens to be brother-in-law of deceased (real brother of wife of the deceased). P.W. 1 Suna Oraon is also brother-in-law of P.W. 4. (iii) The evidence of P.W. 4 categorically reveals incident, however he has not attributed any specific role against the appellants and in what manner the appellants have participated in the alleged crime and also failed to describe as to what type of weapon they were bearing. (iv) On the basis of same evidence four accused persons of this case have been acquitted extending benefit of doubt and there is no material on record showing that the present appellants together have 3 Cr. Appeal (D.B) No. 32 of 1997(R) committed the murder of the deceased. As such, conviction and sentence of the appellants is absolutely not warranted under law. (v) The FIR was lodged including the offence under Section 147 IPC showing presence of unlawful assembly but for the conviction of only present appellants, the learned trial court has invoked Section 34 of the Indian Penal Code establishing their joint liability without any positive evidence on record. (vi) It is admitted by the witnesses that P.W. 4, Tiju Oraon had sheer enmity with the deceased because he was not keeping his sister (P.W. 3) properly and there was tense conjugal relationship between them. They were also suspecting that the deceased had carnal relationship with a widow lady of village, namely, Chamari Orain. (vii) The place of occurrence is also stated to be the courtyard of the house of Chamari Orain where the deceased had gone but the deadbody was brought in haste to the house of the informant, P.W. 1, Suna Oraon. Althogh, P.W. 3 claims that her husband was unconscious and bought to her own house, thereafter sent for treatment at Sadar Hospital, Gumla. (viii) The genesis manner and motive behind the occurrence has not been proved by the prosecution. (ix) The place of occurrence is also doubtful and due to non- examination of investigating officer, the P.O. has not been proved. (x) It is argued very stoutly that due to tense relationship between deceased and his wife (P.W.3), brother-in-law- of deceased Tiju 4 Cr. Appeal (D.B) No. 32 of 1997(R) Oraon (P.W, 4), has himself managed to assault the deceased at his own home and thereafter manipulated this false story as was suggested by the defence to the prosecution witnesses. (xi) There was no enmity of any kind between appellants and the deceased. (xii) The learned trial court has swayed upon moral conviction of the events as stated by the witnesses but failed to properly appreciate the true tenor and import of the evidence of witnesses in the light of materials elicited in their cross-examination. Therefore, impugned Judgment and order of conviction and sentence of the appellants is illegal and based on extraneous facts, hence, is fit to be set aside allowing this appeal. 5. Per contra, learned APP for State has vehemently opposed the aforesaid contentions raised on behalf of learned Amicus Curiae and submitted that the learned trial court has very wisely and aptly apprised, scanned and appreciated the oral and documentary evidence led by prosecution. The case of defence is simple denial from occurrence and false implication but no material has been brought on record to disbelieve the prosecution story. All the witnesses are very natural and trust worthy witnesses and have given vivid account as to how and under what circumstances the deceased was assaulted by the appellants. There is no illegality or infirmity in the impugned Judgment and Order calling for any interference in this appeal, which is devoid of merits and fit to be dismissed. 5 Cr. Appeal (D.B) No. 32 of 1997(R) 6. For proper appreciation of the respective points of arguments raised on behalf of both sides and arrived at a right conclusion, we have to take brief resume of the ocular testimony of witnesses examined in this case. P.W. 1, Suna Oraon is the brother of deceased according to his evidence on 18.12.1991 at about 7 p.m. he heard hullah in the village that his brother Kedar is being assaulted by some persons then he proceeded to place of occurrence where Tiju Oraon, (P.W.4) disclosed that Kedar Oraon has been assaulted by Krishna Oraon, Jawara Oraon, Ganesh Oraon, Hiralal Sahu, Babulal Sahu etc.at the house of Chamari Oraon. He saw that his brother Kedar Oraon was lying unconscious in the courtyard of Chamari Oraon. He brought his brother to his own house and due to night could not brought him to hospital and in the next day morning when his brother could not regain consciousness then he brought him to Gumla Sadar Hospital and admitted there for treatment. The officer in charge of Gumla Police Station came to the hospital where his fardbeyan was recorded in presence of Tiju Oraon (P.W 4) and both have signed on the fardbeyan(Marked Ext. 1/1 & 1/2 respectively). In the course of treatment Kedar Oraon died on 20.12.1991 in the hospital. 7. In his cross examination this witness has described the place of occurrence which is bound and butted as:- In the West house of Chamari Oraon, in the North house of Chamari Oraon and in the South house of Ganesh Lohar. He clearly 6 Cr. Appeal (D.B) No. 32 of 1997(R) admits that Chamari Oraon had become widow in the childhood of this witness and after death of her husband where she resides he does not know. He has also admitted in para 13 & 14 that on the date of occurrence Kedar had gone to sasural and this fact was disclosed to him by Tiju Oraon and his mother. Towards east of the in-laws house of Kedar, the house of Chamari Oraon towards west, house of Jagannath Oraon are situated and toward north of the in-law house of Kedar there is village road and towards South there is P.W.D road. He has also admitted that the ingress and egress of Teju Oraon from his house is passed to the house of Chamarin. This witness has denied the suggestion of defence that there was tense relationship between Kedar and his wife, hence when he went to his sasural and his brother-in-law Tiju Oraon brutally assaulted him and given him false information in respect of assault given by the present appellants and falsely implicated them in this case. P.W.2 Ram Dayal Rai has been tendered by the prosecution as hostile. Somo Orain, P.W.3 is the wife of deceased. According to her evidence, the incident took place at about 4.00 P.M. Her husband had gone to sasural which is situated at a distance of 25 to 30 houses from her matrimonial home. When her husband was returning to home then Babulal, Ganesh Lohra, Bittu Saw, Hira Saw, Jawara Oraon assaulted her husband by lathi, legs, fist and also pressed his neck and killed him. She went to the place of occurrence hearing hullah raised by her husband and found him lying unconscious and accused persons have fled away. 7 Cr. Appeal (D.B) No. 32 of 1997(R) He brought her husband at her home and in the next day morning he was brought to Gumla Hospital but could not be saved and died. She has also admitted in her cross-examination that on the date of occurrence she herself informed to village Chowkidar Chimia Mahli and went to police station where her statement was recorded and she put her thumb impression. Police also arrived at her house but her brother was not present at that time and in the next day morning she went to Gumla hospital. Her attention has been drawn towards her statement under Section 161 Cr.p.c. recorded by the I.O. wherein she has stated that after hearing hullah of her brother Tiju Oraon went to the place of occurrence and when she arrived at the place of occurrence none of the accused persons were present. She has denied the suggestion of the defence that there was inimical terms between her husband and brother Tiju Oraon. Hence, her brother after assaulting Kedar Oraon has falsely implicated the other accused persons and she had seen no occurrence. P.W. 4., Tiju Oraon is the most important witness of this case. He admits in his examination-in-chief that in the evening, he alongwith his brother-in-law Kedar Oraon were present in his house and when Kedar Oraon proceeded to his home then Chamari Orain, Krishna Oraon, Jawara Oraon caught hold him and brought towards the courtyard of Chamari Oraon and assaulted him by hockey, lathi and fat. Meanwhile, Ganesh Lohra, Hiralal Saw, Babulal Saw, Bitu Saw also arrived and started assaulting by lathi to Kedar Oraon and 8 Cr. Appeal (D.B) No. 32 of 1997(R) due to assault Kedar Oraon fell down and became unconscious. Then this witness raised alarm and accused persons fled away. He went near Kedar Oraon and hearing his hulla, Sanichar Oraon (P.W. 5), Suna Oraon (P.W.1), Fagua Oraon (P.W. 6) and Somo Orain (P.W. 3) arrived and all of them brought Kedar Oraon to his house. Due to night, injured could not be brought to the hospital but in the next day morning on instruction of village Chowkidar, the injured Kedar Oraon was brought and admitted to Gumla Sadar Hospital where he died on the next date. In his cross-examination these witness admits that in his statement before I.O. he has stated that Kedar was caught hold and taken by Chamarin, Krishna Oraon and Jawar Oraon. He has also disclosed that thereafter Hiralal Saw, Ganesh Lohra, Bittu Saw and Babulal Saw arrived with lathi and hockey and assaulted to Kedar on his head and also assaulted by fats and fist on his chest. He did not talk with the accused persons rather raised alarm then accused persons fled away. He also admits that no other villager pursued the accused persons. He also raised alarm at the time when the accused Krishna and Jawara were taking away Kedar towards the house of Chamari Orain. He has denied the suggestion of defence that he has given totally false evidence and he himself after assaulting the deceased falsely raised alarm and brought the injured in unconscious state to his house and falsely implicated these petitioners. 9 Cr. Appeal (D.B) No. 32 of 1997(R) P.W. 5, Sanichar Oraon has also admitted in clear terms that he came to know about the occurrence from Tiju Oraon, P.W.4 and saw the injured under unconscious state who was admitted to hospital on the next day. P.W. 6, Phagua Oraon has also stated that while he was proceeding for a walk, he heard hullah and went to the place of occurrence where he saw Krishna Oraon and Jawara Oraon and other accused persons have fled away. He saw the injured in unconscious state who was brought to his house with the help of this witness and on the next date injured was admitted to Sadar Hospital, Gumla. In his cross-examination he admits that he did not talk with Krishna and Jawara (appellants). He has also stated before police that he came to know from villagers that present accused persons have assaulted to Kedar. P.W. 7, P.W.8 and P.W. 9 have been tendered Jagarnath Oraon, Gome Oraon and Chedu Oraon by the prosecution. P.W. 10 Chunia Mahli is the village chowkidar. According to his evidence while he was in night duty at the village one Chamru Oraon uncle of Kedar Oraon visited him and told that Kedar Oraon has been assaulted by Krishna Oraon and Jawara Oraon. Then he went to the place of occurrence which is courtyard of the house of Chamari Orain where Kedar was lying unconscious. Kedar was brought to his house thereafter, this witness went to police station and informed the matter. On the next date, Kedar was brought to hospital where he died. In his cross-examination, this witness has admitted that 10 Cr. Appeal (D.B) No. 32 of 1997(R) Chamarin Orain is a widow lady since 15 to 20 years and she does not reside at her house. He has not seen the occurrence. P.W. 11, Doctor Thomas Justin Minz has conducted autopsy on the dead body of deceased, Kedar Oraon and found following injuries. (i) Left ankle joint lacerated wound 1”x1/2”x skin deep anteriorly. (ii) Lacerated would 4”x2” x scalp deep on right fronto pointed region. There was fracture of right perital bone. All milinges were instance. Right fronto perital brain matter ruptured. There were cerebral clot on fronto parietal brain. All the injuries were antimortem in nature caused by hard blunt substance. Injury no.1 was simple in nature and injury no.2 was grievous and sufficient to cause death in the ordinary course of nature. 8. From the aforesaid discussion of oral testimony of witnesses particularly P.W. 4, Tiju Oraon who happens to be sole eye witness of occurrence, admittedly the deceased Kedar Oraon was with him throughout the alleged occurrence and other witnesses have got information about the occurrence from P.W. 4. It is evident that P.W. 4 has leveled allegation against the appellant that they caught Kedar Oraon and brought towards the courtyard of Chamari Orain. This witness raised hullah but no one turn up, meanwhile, other accused persons armed with lathi and rod, hockey, danda arrived at the seen of occurrence and assaulted to Kedar Oraon by hockey stick, fat and fist 11 Cr. Appeal (D.B) No. 32 of 1997(R) indiscriminately. This witness is none else but own brother-in-law of the deceased. The place of occurrence is also just in front of house of this witness. He remained a silent inspectator throughout the occurrence. He has attributed no motive or prior ill will or any dispute between the deceased and the accused persons particularly the appellants for any reason whatsoever, although they are co-villages and known to each other very well. The place of occurrence as alleged by P.W. 1, Suna Oraon appears to be a different place. Genesis, manner and perpetration of each of these accused persons in the alleged crime as disclosed by P.W. 4 who claims to be eye witness, appears to be wholly unreliable. It has also been surfaced in the evidence of village chowkidar (P.W. 10), that at the time of information given to him only name of present appellants were disclosed. Later on elasticity was given to prosecution evidence adding the name of total six miscreants. Although, there is only two injuries on the body of deceased caused by hard and blunt substance like lathi as opined by doctor (P.W. 11), it appears that P.W. 4 had any ulterior motive to falsely implicate the accused persons arrayed in the FIR. The learned trial court has given undue weightage to the evidence of P.W 4 and other heresay witnesses while convicting the present appellants only on the basis of evidence that these witness reached at the place of occurrence, present appellants were also present on the spot and other assailants had been fled away. The learned trail court must have bear in mind that when as per evidence 12 Cr. Appeal (D.B) No. 32 of 1997(R) of P.W. 4 purported eye witness, present appellants have not assaulted but only caught hold of the deceased and other co-accused persons were involved in assaulting the deceased by the respective arm have been given benefit of doubt then on the basis of same evidence the case of appellants should not have been segregated and appellants could not be held as sole perpetrator in causing death of the deceased and they are also entitled for the same benefit of doubt. In view of threadbare examination of testimony of ocular witnesses, we are of the firm view that the learned trial court has committed serious illegality while accepting part of the evidence of P.W. 4 and other witnesses could be proved against the appellants and rest part exonerating the other accused persons has been laid basis for acquittal of them, is absolutely not justifiable under law. Accordingly, we find merits in the contention raised on behalf of learned Amicus Curiae, Mr. Vishnupad Singh appointed by this Court on behalf of appellants and find merits in this appeal. Accordingly, impugned Judgment and order of conviction and sentence of appellants passed by learned Additional Sessions Judge-Gumla is set aside. 9. The appellants are given benefit of doubt and acquitted from the charge leveled against them. Both the appellants are on bail, they are also discharged from the respective bail bonds. 10. Before parting with this Judgment we must record that we have been given able assistance by Mr. Vishnupad Singh, learned Amicus Curiae appointed by this Court to appear on behalf of 13 Cr. Appeal (D.B) No. 32 of 1997(R) appellants. We direct the Secretary, High Court Legal Services Committee to make payment of prescribed remuneration to learned Amicus Curiae. 11. In view of above, this appeal is allowed. Let the trial court records be sent to the concerned court forthwith alongwith the copy of the Judgment for information and needful. (Rongon Mukhopadhyay, J.) (Pradeep Kumar Srivastava, J.) Jharkhand High Court, at Ranchi Dated :- 18/09/2024 Rajnish/-N.A.F.R 14 Cr. Appeal (D.B) No. 32 of 1997(R)