Dhoche Oraon, Mahesh Oraon v. State Of Bihar — 1999 DIGILAW 287 (PAT)

Judgment Prasad, J. 1. Cr. Appeal Nos. 26 and 36 of 1989(R), which arise out of common judgment dated 19th December, 1988 in ST. No. 291 of 1986 passed by Sri Chiranji Singh, the then IVth Addl. Judicial Commissioner, Ranchi, have been heard analogous and are to be disposed of by this judgment. 2. The sole appellant in Cr. Appeal No. 26 of 1989(R) is Dhoche Oraon, whereas Mahesh Oraon, Suka Oraon, Sandhu Oraon and Mathia Oraon are the appellants in Cr. Appeal No. 36 of 1989(R). All the appellants have been convicted under Sections 302 read with 149 of the Indian Penal Code, on a charge of committing murder of Budhua Oraon in prosecution of common object, and they have been sentenced to undergo rigorous imprisonment for life thereunder. 3. Briefly put, the prosecution case, as made out in the First Information Report (Exhibit 3), is as under : The informant (Balmani Urain), PW 1, the married daughter of deceased Budhua Oraon, was deserted by her husband Gura Oraon, a resident of village Pokhar and was living at her parental home for the last 8/9 years, at village Pungi, within the police station Mandar, District Ranchi. On 27.11.1995, around 10.30 p.m., Budhua Oraon, her father returned home from tanr (field). The informant served meal to him in the night. After the meal, her father took a chadar and ledra and went out oi the house to sleep in the saltan (open place) under a Katai tree. About half an hour later while the informant was washing her hand after taking food, she heard the cry of her father bachao-bachao (save-save). She came out of the house running along with her younger sister Etwaria Urain (PW 2) and she witnessed all the appellants, who wielded baluas, assaulting her father on head near the house. Her father suffered balua wounds on head and neck and he died instantaneously on the spot. On alarm raised by her, Sukra Oraon (PW 3), Angana Oraon (PW 7), Dhane Oraon, Chamra Oraon (not examined) and others arrived on the spot. She and her sister narrated the incident to them. Sukra Oraon (PW 3) disclosed to them that at about 11.45 p.m. the appellants armed with balua had visited his house in search of the deceased and had returned on not finding him there. She and her sister narrated the incident to them. Sukra Oraon (PW 3) disclosed to them that at about 11.45 p.m. the appellants armed with balua had visited his house in search of the deceased and had returned on not finding him there. The motive alleged for commission of the murder of the deceased is that the appellants considered him to be an ojha and suspected that he used to let loose the ghost under his power to then-house. In the night of the occurrence itself the information of the incident was given to Jarka Lohra, the village chowkidar and the next morning at about 8 a.m. she reached the police station in the company of the chowkidar, her sister Etwaria Urain (PW 2) and Sukra Oraon (PW 3) and lodged the first information report (Exhibit 3) which gave rise to the present case. The distance between the PO village Pungi and Mandar Police Station is about 4 kms. 4. On the basis of the first information report (Exhibit 3), the present case was instituted, the police officer visited the spot, held inquest over the dead body of Budhua Oraon and on completion of investigation charge-sheet was laid in Court against the accused appellants. The case was, ultimately, committed to the Court of Session bv Sri P. Kumar, Judicial Magistrate, Ranchi, on 13 6.1986. 5. The main defence in the Court below is of innocence and false implication. 6. At the trial, the prosecution examined nine witnesses in support of its case. Out of them, PW 6 (Gaina Oraon) is a tendered witness, whereas PW 9 (Jagannath Ram), the Assistant Sub-Inspector of Police, attached to Court office, is a formal witness, who has proved the first information report (Exhibit 3),the inquest report (Exhibit 4) and the seizure lists (Exhibits 5 and 5/1) in the pen of Abu Talim, the officer-in-charge,Mandar Police Station, in the year 1985. PW 4 (Kharsa Oraon) is a witness on the inquest report. The other PWs are: PW 1 (Balmani Urain), the informant, PW 2 (Etwaria Urain), PW 3 (Sukra Oraon), PW 5 (Kare Oraon), a witness on the recovery of a farsa from a done (water-logged field) at some distance from Patra toli in village Pungi, PW 7 (Agana Oraon) and PW 8 (Dr. K.P.Srivastava) who held autopsy on the dead body of Budhua Oraon.The defence, on the other hand, did not examine any witness. K.P.Srivastava) who held autopsy on the dead body of Budhua Oraon.The defence, on the other hand, did not examine any witness. 7. The Trial Court on consideration of the evidence and materials on record and mainly relying on the ocular testimony of PWs 1 and 2, who claimed themselves to be eye-witnesses to the occurrence, the medical evidence and the circumstantial evidence that the appellants had searched for the deceased at the house of Sukra Oraon (PW 3) just before the occurrence and the conduct of PWs 1 and 2 that they disclosed the names of the appellants to the witnesses who had arrived just after the occurrence, held the appellants guilty of the charge under Section 302 read with 149, IPC and convicted and sentenced them in the manner stated above. 8. The point which falls for consideration is whether the prosecution has been able to bring home the charge under Sections 302 read with 149, IPC to the accused appellants beyond the shadow of all reasonable doubt. 9. Learned Counsel for the appellants has assailed the impugned judgment mainly on the ground that PWs 1, 2, 3, 5 and 7 are related to the deceased; that no independent witness has come forward to support the prosecution case; that PWs 1 and 2 have contradicted each other on the manner of occurrence; that it is highly improbable that PWs 1 and 2 had witnessed the actual assault on the deceased; that this is a case of blind murder and there is possibility that the appellants have been implicated at the instance of PWs 3 and 7 and that nonexamination of the IO is an infirmity in the prosecution case. He has also contended that the appellants are, at least, entitled to benefit of doubt. Learned APP appearing on behalf of the respondent-State, on the other hand, has supported the impugned judgment. 10. At the first instance, it has to be seen whether the deceased (Budhua Oraon) met with homicidal death. PWs 1 and 2 have stated that the deceased had sustained balua wounds and he died as a result cf it. PWs 3 and 7 have stated that they had seen the wounds on the person of the deceased. PW 8 (Dr. At the first instance, it has to be seen whether the deceased (Budhua Oraon) met with homicidal death. PWs 1 and 2 have stated that the deceased had sustained balua wounds and he died as a result cf it. PWs 3 and 7 have stated that they had seen the wounds on the person of the deceased. PW 8 (Dr. K.P. Srivastava) has testified to the effect that on 28.11.1985 at about 1.30 p.m. he performed post-mortem examination on the deceased, and he found the following ante-mortem wounds : A. Abrasion.2-1/2 x 3/4 cm. over left arm outer-side. B. Incised wound.1. 17 x 2-1/2 cm. x cranial cavity over left parie to temporal head, cutting left temporo parietal bone, completely, and cutting the covering of brain and brain underneath, presence of blood and blood clots in cranial cavity. 2. 10 x 2-1/2 cm. over chin and left mandible cutting the mandible bone underneath completely 3. 7 x 1-3/4 x 3-1/2 cm. over front of neck, cutting the upper part of larynx, soft tissues and fourth cervical vertebra bone partially. 4. 2 cm. long over left thumb back side over distal part, removing completely the distal part of nail and tip of the left thumb. According to him, the abrasion was caused by hard and blunt substance and the incised wounds were possible by sharp cutting weapon such as balua and the time elapsed since death was within 04-24 hours of the post-mortem examination. Exhibit 2 is the post-mortem report in his pen. He has opined that the injuries (presumably the incised wounds) were sufficient in ordinary course of nature to cause death. The factum of the murder of the deceased has not been challenged by the defence. Hence, on the basis of the ocular testimony and the medical evidence, it is established beyond doubt that the deceased met with homicidal death. 11. The crucial point which now arises for determination is whether the appellants were instrumental in the murder of the deceased. PWs 1 and 2 claimed themselves to be the eye-witnesses to the occurrence culminating in the murder of the deceased. The prosecution case premarily hinges on their testimony It is true that they are related to the deceased, being his daughters. Hence, their evidence has to be scrutinised with care and caution. Keeping this principle in mind, one may now proceed to discuss and analyse the evidence. 12. The prosecution case premarily hinges on their testimony It is true that they are related to the deceased, being his daughters. Hence, their evidence has to be scrutinised with care and caution. Keeping this principle in mind, one may now proceed to discuss and analyse the evidence. 12. PW 1 (Balmani Urain), the informant, has stated in her chief-examination that she lived in the house of her father (which is situate at Patra toli in village Pungi) at the time of the occurrence, that Etwaria, her sister, (PW 2) was also at the parental home on the fateful day; that on the date of occurrence, around 10.30 p.m., her father returned home from the field; that they served meal to him whereafter he went out, as usual, taking a ledra and a chadar to sleep in the angan (open space) in front of the house under a Katai tree. She has further stated in the chief-examination that thereafter, she and her sister (PW 2) had their meal and when they were washing their hands, she saw all the appellants, armed with baluas, came near her father and assaulted him. She has further stated that the first appellant (Sandu Oraon) struck with balua on head, neck and mouth of her father and thereafter, the other appellants assaulted him with balua, whereafter, the appellants fled away. She has further stated that she raised alarm, whereupon, Sukra Oraon (PW 3), Angana (PW 7), Balia, Ghansi and Chando arrived and she narrated to them that the appellants had killed her father and at that moment Sukra Oraon (PW 3) disclosed to her that a short-while ago in the same night, the appellants armed with balua had visited his house in search of the deceased. This fact has been supported the PW 3. PW 1 has further stated that the appellants considered her father an ojha and for this reason they committed his murder. She has further deposed that on the next morning, she went to the police station and lodged the first information report regarding the incident which was recorded by the police officer and on finding it to be correct, she put her thumb-impression thereon. She identified the appellants in Court. PW 1 has reiterated in cross-examination that 2/3 years prior to the occurrence she was staying at her fathers home to take care of him. She identified the appellants in Court. PW 1 has reiterated in cross-examination that 2/3 years prior to the occurrence she was staying at her fathers home to take care of him. It has come in evidence that her mother died long ago. She has explained that PW 2, her sister, is married and she lives at her sasural but had come to the parental home to assist her father in harvesting paddy crops. She has reiterated in cross-examination that on the fateful day between 8 and 10 p.m. her father had returned home from the field and at the time of occurrence, she and her sister were taking their meal and it was moon-lit night and when she reached the spot, the appellants assaulted her father and thereafter, they fled away. The appellants live in the neighbourhood of the place of occurrence. It is true that in the first information report, it is stated that the deceased had raised a cry of bachao-bachao at the time of the incident, whereupon, the informant came out of the house and witnessed the occurrence. This fact has not been stated by PW 1 in her evidence. PW 1 is an Illiterate and rustic woman. It seems that she did not state about it in her evidence, because she was not questioned about it or that she did not realise its significance. The deceased must have cried out for help at the time of assault. The occurrence took place in close proximity to the house of the deceased and soon after he had taken his food. The doctor has found that the stomach of the deceased contained rice and vegetable particles weighing about 450 gms. This corroborates the testimony of PWs 1 and 2 that shortly after the deceased had taken the meal, he was done to death. The presence of PW 1, which is corroborated by the testimony of PWs 2, 3 and 7, who arrived on the spot soon after the occurrence, on the spot at the time of the occurrence cannot be doubted. It was quite natural that after serving food to the father,PWs 1 and 2 were taking their meal and had the occasion to witness the occurrence near their house. It was quite natural that after serving food to the father,PWs 1 and 2 were taking their meal and had the occasion to witness the occurrence near their house. In spite of searching cross-examination, PW 1 is quite consistent in her evidence that the appellants had done her father to death and there is no reason to discard her testimony on the point. 13. PW 2 (Etwaria Urain), the other married daughter of the deceased, has testified to the effect in her chief-examination that on the fateful night around 10.30 p.m. she was at her fathers place and she and her sister (PW 1) were after taking their food, while their father taking his meal had gone out of the house to sleep under a Katai tree. She has further stated that when after taking food she and PW 1 came out to wash their hands, she saw the appellants approaching her father, appellant Sandu was armed with balua, but the other appellants did not possess any balua and the appellants assaulted her father. She has further stated that in the fist instance, appellant Sandu struck her father with balua on head, mouth, temporal region, chin, neck and finger, while the other appellants had pressed her father and on alarm, raised by her and PW 1, the appellants escaped and Sukra (PW 3), Angna (PW 7), Dhane, and Balia had arrived, to whom she and PW 1 narrated the incident and disclosed that the appellants had assaulted their father. A criticism has been made by the learned Counsel for the appellants that there is discrepant statements of PW. 1 and 2 on the manner of occurrence; inasmuch as PW 1 has stated that all the appellants had assaulted the deceased with balua, whereas PW 2 has deposed that the appellant Sandu alone had inflicted the wounds by balua to the deceased while the other appellants had pressed him. PW 2 is a rustic village woman. Every person who witnesses a murder, reacts in his own way; some are stunned shocked or in horror and in such a state their power of observation gets impaired and affected to some extent. In the deposition of witnesses, there are normal discrepancies, however truthful and honest may be. PW 2 is a rustic village woman. Every person who witnesses a murder, reacts in his own way; some are stunned shocked or in horror and in such a state their power of observation gets impaired and affected to some extent. In the deposition of witnesses, there are normal discrepancies, however truthful and honest may be. These discrepancies are due to normal error of observation, normal errors of memory due to lapse of time, due to mental disposition, such as shock, horror at the time of occurrence and the like. PW 2 might have missed to observe whether the appellants other than Sandu were armed. A witness may form a different impression about the incident when he/she chances to see a sudden attack on a victim. But the fact remains that she has corroborated the testimony of PW 1 that appellant Sandu was the main assailant of the deceased and balua was the weapon used in assault. Her evidence also corroborates the testimony of PW 1, that the other appellants were present on the spot and they too had participated in the occurrence. The failure of PW 2 to state that the other appellants too wielded balua and assaulted the deceased with such weapon may be due to normal error of observation or normal error of memory, which is insignificant and not material contradiction to discard her testimony. She has reiterated in the cross-examination that at the time of the occurrence she was washing her hands after the meal and that she had not gone to sleep. She has not been cross-examined on the point of occurrence in her cross-examination. She has named and identified the appellants in Court. The occurrence took place in moon-lit night. The appellants were the co-villagers of the deceased. So, PW 2 could have committed no mistake in identifying them on the spot at the time of the occurrence. There is no reason to discard her testimony. Her presence at the house of the deceased at the relevant point of time has been testified to by PWs 1, 3 and 7. PWs 3 and 7 have corroborated the testimony of PWs 1 and 2 that soon after the occurrence, they had disclosed the names of the appellants among the culprits involved in the incident on the spot. 14. PWs 3 and 7 have corroborated the testimony of PWs 1 and 2 that soon after the occurrence, they had disclosed the names of the appellants among the culprits involved in the incident on the spot. 14. The evidence of PWs 1 and 2 is corroborated by the medical evidence that the wounds sustained by the deceased were possible by balua blows. The fist information report (Exhibit 3) in substance corroborates the testimony of PW 1. 15. It does not stand to reason as to why PWs 1 and 2 being the close relatives of the deceased would falsely implicate the appellants and spare the real culprits. The evidence of PWs 1 and 2 gives the ring of truth. 16. PW 3 (Sukra Oraon) and PW 7 (Agna Oraon), first cousins of PWs 1 and 2, who reside in the same basti, have testified to the effect that on hulla they had gone to the house of the deceased. PW 3 has further stated that 15/20 minutes before the occurrence, the appellants had gone to his house and searched the deceased. He claims to have disclosed this fact to PWs 1, 2 and 7 after arrival on the scene soon after the occurrence. It has come in his evidence that the deceased often visited his house and at times slept there. PWs 1, 2 and 7 have supported the statement of PW 3 regarding the visit at the appellants to his house in search of the deceased that night. There is no material on record to suggest that PWs 3 and 7 have any animus against the appellants. The circumstance that the appellants searched for the deceased that night shortly before the occurrence lends assurance to the testimony of PWs 1 and 2 on their involvement in the incident. 17. A criticism has been made by the learned Counsel for the appellants that there was delay in lodging the first information report. The occurrence took place on 27.11.1985 some time after 10.30 p.m. The distance between the PO village Pungi and Mandar Police Station is about 5 kms. The deceased had no son. The informant (PW 1) and her sister (PW 2), the married daughters, were the only members of the family living in his house at the relevant point of time. The occurrence took place on 27.11.1985 some time after 10.30 p.m. The distance between the PO village Pungi and Mandar Police Station is about 5 kms. The deceased had no son. The informant (PW 1) and her sister (PW 2), the married daughters, were the only members of the family living in his house at the relevant point of time. They could not have on their own rushed to the police station in the night to lodge the first information report. They had to depend on the chowkidar and the distant male relatives for going to the police station. The first information report was lodged the next morning at 8 a.m. by the informant. Hence, in the circumstances, there is no delay in lodging the first information report. 18. It has been urged by the learned Counsel for the appellants that the motive alleged for the murder of the deceased by the appellants is a weak one. PW 1 has stated that the appellants suspected the deceased to be an ojha and this case was the motive for the crime committed by them. PWs 2 and 3 have also testified to this effect. It has come in the cross-examination of PW 1 that at times the deceased used to visit the villagers when invited for performing witch-craft. It is suffice to say that even where the motive established is a weak one that itself is insufficient to lead to any inference adverse to the prosecution. It is well settled that where positive evidence against an accused is clear, cogent and reliable, the question of motive pales into insignificance. In the instant case, there is reliable evidence of two eyewitnesses, namely, PWs 1 and 2, that the appellants were instrumental/ participated in the murder of the deceased. The above contention of the learned Counsel for the appellants is without merit. 19. An argument has been advanced by the learned Counsel for the appellants that PW 1 (Balmani Urain) has admitted in her cross-examination that the deceased desired to gift his land to his daughters and this fact too has come in the evidence of PW 3. He further submitted that it has come in the evidence of PW 3 that in his caste there is custom that a daughter does not inherit the property of her father. He further submitted that it has come in the evidence of PW 3 that in his caste there is custom that a daughter does not inherit the property of her father. On this premise he has contended that there is possibility that the deceased might have been murdered by his own nephews (PWs 3 and 7) and at their instance the appellants have been implicated in this case. This argument is presumptive and does not appeal to reason. Had it been a fact, PWs 1 and 2 being the relatives of the deceased would not have spared them to falsely implicate the appellants. 20. As regards the contention of the learned Counsel for the appellants that independent witnesses have not been examined in this case, it may be emphasised that in the instant case, it has been found that PWs 1 and 2 were the only witnesses present in the house of the deceased at the time of the incident and only they had witnessed the occurrence. Their evidence has been found to be truslt-worthy. It has not come in evidence that any independent witness was present at the time of the occurrence. It is true that some of the persons who had arrived on the spot after the occurrence have not been examined, but they are not material witnesses and their non-examination does not adversely affect the prosecution case. 21. A criticism has been made that the Investigating Officer has not been examined in the insant case and this is an infirmity in the prosecution case. The identify of the place of occurrence has been established bv the cogent evidence of PWs 1, 2, 3 and 7. It is not the defence version that the occurrence had taken place elsewhere. The defence has not taken any contradiction on material point from the PWs vis-a-vis their statements in Court and before the police. The learned counsel for the appellants failed to demonstrate that any prejudice has been caused to the defence due to the non-examination of the IO. I am of the considered view that in the circumstances failure to examine the IO is not an infirmity in the present case. 22. The learned counsel for the appellants failed to demonstrate that any prejudice has been caused to the defence due to the non-examination of the IO. I am of the considered view that in the circumstances failure to examine the IO is not an infirmity in the present case. 22. In view of the discussions made above and on consideration of the evidence and the materials brought on record, I find and hold that the prosecution has been able to establish the charge against the appellants beyond shadow of all reasonable doubt, 23. In the result, both the criminal appeals fail and are dismissed. The judgment and order of conviction and sentence passed by the trial Court against the appellants are confirmed. The appellants are on bail. They are directed to surrender to their bail bond in the Court below forthwith to serve out the remaining part of the sentence, failing which the Court below shall take all steps to secure their attendance.