1. Tota Oraon @ Birsa Oraon Son of Thigra Oraon @ Balu Oraon 2 v. The State of Jharkhand
Case Details
Cr. Appeal (D.B.) No.836 of 2002 [Against the judgment of conviction dated 08.11.2002 and order of sentence dated 09.11.2002 passed by learned Additional District and Sessions Judge-cum Fast Track Court No.1, Gumla in S.T. No.87 of 2002] ------ 1. Tota Oraon @ Birsa Oraon Son of Thigra Oraon @ Balu Oraon 2. Birsa Oraon son of Late Duga Oraon Both are resident of village Chirotongri, police station- Bharno, District-Gumla .... .... …. Appellants Versus The State of Jharkhand .... .... .... Respondent ------ For the Appellants
Legal Reasoning
: Mr. Amit Kumar Choubey, Advocate For the State : Mr.Vineet Kumar Vashistha, S.P.P. ------ PRESENT Sri. Ananda Sen, J. Sri. Pradeep Kumar Srivastava, J. JUDGEMENT ------ 03/12/2024 By court: 1. Heard, Mr. Amit Kumar Choubey, learned counsel for the appellants and Mr. Vineet Kumar Vashistha, learned Special Public Prosecutor appearing for the State. 1 2. This criminal appeal is preferred against the judgment of conviction dated 08.11.2002 and order of sentence dated 09.11.2002 passed by learned Additional District and Sessions Judge-cum Fast Track Court No.1, Gumla in S.T. No.87 of 2002, whereby and whereunder, the appellants were convicted under Sections 302/452/34 of IPC and sentenced them to undergo imprisonment for life under sections 302/34 of IPC and further been sentenced to undergo Rigorous Imprisonment for a period of 5 years under section 452 of IPC. However, both the sentences were directed to run concurrently. 3. The FIR is at the instance of P.W.-8, who is the wife of the deceased. She states that she has two houses in the village. Her husband, on the fateful night, after having dinner left her house and went to the other house to sleep. At night, she heard some commotion, which was coming from the location of the second house. She then woke up and ran and saw that her husband was putting fire in the heap of straw of the accused person. Since her husband is not mentally stable, he has put the straws on fire. She has further stated that the appellants came out with Lathi (sticks) and started assaulting her husband(since deceased) on his head and legs resulting to his death. 2 4. Based on the aforesaid fardbayan, the case was instituted under Section 452/302/34 of the Indian Penal Code against the appellants. The police after investigation, filed charge- sheet against the appellants for the offence under Sections 452/302/34 of the Indian Penal Code and the appellants were put on trial after framing of charges. 5. Altogether 9 witnesses have been examined in this case and the trial court, after completing all the procedures has convicted the appellants for offences punishable under Sections 302/452/34 of the Indian Penal Code and sentenced them as stated above. 6. We have heard both learned counsel for the appellants and learned Special Public Prosecutor appearing for the State. 7. Important witness as per the prosecution is P.W.-8, who is the informant, P.W.2-Kana Sao, P.W.-3- Moti Ram Sahu and P.W.-6, Ladi Sao seems to be eye witnesses to the offence. 8. Now first, we discuss P.W.-2, Kana Sao. P.W.2 in his examination-in-chief had stated that he had seen these appellants assaulting the deceased with sticks and committing his murder. We have gone through the cross-examination. In Para 4 and Para 5, this witness stated that when he reached the place of occurrence, the appellants had already fled away. This statement suggests that the witness has reached the place of occurrence 3 after the assault had taken place. Thus, there is doubt as to whether this witness is an eye witness to the assault or not. 9. P.W.-3 and P.W.-6 claims to be eye witnesses to the occurrence. They have also stated that they have seen the appellants assaulting the deceased. P.W.-2 has stated that these two witnesses P.W.-3 and P.W.-6 reached at the place of the occurrence after him. If P.W.-3 and P.W.-6 have reached the place of occurrence after P.W.-2 then, it is also not possible for them to see as to who had assaulted the deceased. P.W. -3 also stated that his statement was not recorded by the police during investigation. He also admitted that he did not disclose the incident to anyone. Thus, these two witnesses are also not eye- witnesses of the occurrence. 10. Now we analyse the witness P.W.-8, the informant, who claims to be eye witness. She in her FIR had stated that she had seen the deceased putting fire on the straws, when these appellants came and started assaulting the deceased with sticks, but surprisingly, as a witness in Paragraph -12 she stated that she got the information about the fact on the next day through P.W.-3 and P.W.-6, when she went to the place of occurrence and found her husband dead. This statement also creates a doubt in the mind of this court as to whether actually she had seen the occurrence or 4 not. Further as per her statement, her husband had put fire on the straws of these appellants, but the Investigating Officer (P.W.-9) has clearly stated in Paragraph-22 that he during investigation had not found any ash of fire or burnt materials at the place of occurrence. These flaws create a doubt about the entire prosecution case and the fact narrated by the informant and others that the straw of the appellants was put on fire by the deceased. 11. Further another glaring aspects is that the witnesses have stated that deceased had been assaulted by stick. The Doctor P.W.-7, who conducted the post-mortem has found four injuries, two of them are caused by hard and blunt substance. The injuries caused by hard and blunt substance are on the head and on the legs. P.W.7 also surprisingly found two incised wounds on the head and according to him, these two incised wounds are only caused by sharp cutting weapon. As per P.W.-8 and other witness, the appellants were found with only lathi, which cannot cause sharp cut injuries i.e. incised wounds. 12. All the aforesaid features of this case create a doubt in the mind of this Court about the involvement of these appellants and the prosecution case. Since, there are elements of doubt, the appellants must be given benefit of doubt. 5
Decision
13. In view of the aforesaid discussion, we allow this criminal appeal by acquitting the appellants. 14. The judgment of conviction dated 08.11.2002 and order of sentence dated 09.11.2002 passed by learned Additional District and Sessions Judge-cum Fast Track Court No.1, Gumla passed in S.T. No.87 of 2002 is set aside. 15. As the appellants are already on bail, thus they and their bailors are discharged from the liabilities of the bail bonds. 16. Pending I.A(s), if any, is also disposed of accordingly. 17. Let the copy of this order along with record of trial court be sent back for information and needful. (Ananda Sen, J.) (Pradeep Kumar Srivastava, J.) High Court Of Jharkhand, Ranchi Dated 03/12/2024 N.A.F.R/ Pappu-Simran/ Cp 03. 6