Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 715 (PAT)

Bandhu Oraon v. State Of Bihar

2000-05-12

NARAYAN ROY, SOMESHWAR NATH PATHAK

body2000
Judgment Someshwar Nath Pathak, J. 1. All the abovenamed appellants were convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. They Were further convicted under Section 307/34, IPC and sentenced to undergo rigorous imprisonment for three years. The sentences were directed to run concurrently. 2. The case of the prosecution, as unfolded infardbeyan, is that on 25.5.1990 at about 9 p.m., the informant was at her house alongwith her husband, Sani Oraon (deceased), when suddenly accused-appellant, Suka Oraon, came there and asked for tobacco from her husband, Sani Oraon. Thereafter Suka Oraon announced that he will build a house on the land of maternal uncle. Then the informant told the accused that house will be built by the person who had purchased the land, whereupon Suka Oraon fisted and kicked the informant. When the informants husband intervened, Suka Oraon called out his brother, who came there. Budu Oraon came there wielding "sabal" in his hand and Bandhu Oraon accompanied his brother, Budu Oraon, armed with lathi. Budu Oraon hurled three "sabal" blows on the head of the informants husband which made the victim fall on the ground. When the informant had come to rescue her husband, She was assaulted by Budu Oraon with sabal. The informant sustained injury Upon her head and bled. The informant raised alarm. Nobody turned up. The informants father-in-law was sleeping in the other room who woke up hearing the alarm and saw the occurrence. Thereafter the informant and her husband were carried to the hospital by her father-in-law and dewar Budhram (PW 3) on a rickshaw. No sooner they came to the hospital, Sani Oraon died. The informant was treated in the hospital and she gave her fardbeyan from Bed No. 25 of the Female Ward of Lohardagga Sadar Hospital. The informant had further stated in the foot-note of the fardbeyan that the three abovename accused-appellants committed the aforesaid assault on account of the land dispute. On the basis of the fardbeyan (Ext. 2/1) a formal first information report was drawn up and after investigation accused-appellants were chargesheeted. Thereafter on commitment they faced trial and were convicted and sentenced, as stated above. 3. On the basis of the fardbeyan (Ext. 2/1) a formal first information report was drawn up and after investigation accused-appellants were chargesheeted. Thereafter on commitment they faced trial and were convicted and sentenced, as stated above. 3. The accused-appellants had denied the charges and they took no specific defence either through suggestions to the PWs or in their statements under Section 313 of the Code of Criminal Procedure, except that they were falsely implicated. 4. The prosecution examined, in all, 11 witnesses and brought on the record the formal first information report (Ext. 5), fardbeyan (Ext. 2/1), the post mortem report (Ext. 3), Inquest Report (Ext. 1/2) and the seizure lists (Exts. 6 and 7) and some signatures (Exts. 1 and 2 and 1/1) on different papers to prove its case. PW 11 was the Investigating Officer of the case. PW 9 and PW 10 were tendered. PW 8 was Sheikh Saheb Ali who figured as a witness to the seizure of blood-staind earth from the courtyard of Sani Oraon. This witness gave thumb impression on the seizure lists. This witness further vouchsafe to the seizure of "sabal" from the house of Sandesh Oraon father of the accused (PW 9) and he gave his L.T. on the seizure list of "sabal" also which was prepared by the police. PW 7 was the Doctor P.W. 6 was the informant and the eye-witness PW 5, was tendered. PW 4 was another eye-witness was nanad of the informant. This witness had gone to the house of her brother (deceased) on the date of the occurrence was Budhram Oraon, the brother of the deceased, who lived separate from his father and brother. He came to the place of occurrence on intimation by his father. He learnt about the occurrence from his father. He found the deceased lying unconscious on the ground and he was bleeding. He also found head injury on the person of his sister-in-law (Bhaujai). The informant, his bhaujai, detailed the alleged occurrence of assault before him. Thereafter he fetched a rickshaw and carried the deceased and the informant to the hospital where the informant gave her fardbeyan on which he (this witness) put his signature (Ext. 2). This witness also put his signature (Ext. 1/1) on inquest report, prepared by the police. PW 2 was Sukra Oraon. Thereafter he fetched a rickshaw and carried the deceased and the informant to the hospital where the informant gave her fardbeyan on which he (this witness) put his signature (Ext. 2). This witness also put his signature (Ext. 1/1) on inquest report, prepared by the police. PW 2 was Sukra Oraon. This witness went to the hospital at Lohardagga on coming to learn about the assault upon, the deceased where he saw the dead body. This witness put his signature on the inquest report prepared by the police. PW 1 was the daughter of the deceased, another eye-witness. 5. The above resume of the evidence suggests that there was only 3 eye-witnesses to the alleged occurrence of assault upon the deceased and the informant and they are PWs 1, 4 and 6. So far the evidence of these three eye-witnesses regarding the alleged occurrence of assault is concerned, is substance, it was to the effect that on the alleged date and time the accused Suka Oraon came to the house of the informant and demanded tobacco. After that he announced that he will construct a house on the land of their maternal uncle and this made the informant blunt out that only that person will construct a house on this land who had purchased the same. This infuriated Suka Oraon who fisted and kicked the informant and when the informants husband interceded on her behalf, Suka Oraon called out his brothers, Budu Oraon and Bandhu Oraon, who came to the place of occurrence armed with sabal and lathi respectively. Thereafter, Budu Oraon dealt sabal blows upon the informants husband and Bandhu Oraon also assaulted the deceased with lathi. When the informant came to rescue her husband, she was assaulted by Budu Oraon with sabal. So far the assault in particular is concerned, there are certain variations in the evidence of PWs 1, 4 and 6 from the same as stated in the fardbeyan and these variations and deviations or improvements and exaggerations were referred to by the appellants lawyer during the course of argument which I shall discuss hereinbelow while scrutinising the evidence in order to see whether the prosecution has been able to prove its case or not. 6. In this connection, PW 1, Nitu Kumari, had stated that Budu assaulted her father with sabal and Bandhu with lathi. 6. In this connection, PW 1, Nitu Kumari, had stated that Budu assaulted her father with sabal and Bandhu with lathi. It was submitted that, in the fardbeyan, there was no reference to Bandhu assaulting the deceased with lathi. There was further reference to the evidence of PW 1, who said that accused-Suka Oraon demanded tobacco from this witness. However, so far the demand of tobacco either from PW 1 or PW 6 or deceased is concerned, I am of the opinion that discrepancies in the evidence of PWs, in this connection, is immaterial because the informant gave her fardbeyan in the hospital lying in an injured condition on her bed and, so the chance of her giving incoherent and unorganised statement regarding the genesis of the occurrence is very much probable. So far the evidence of PW 4 is concerned, she described the alleged occurrence of assault upon the deceased and the informant in a general way by speaking that all the three accused-appellants assaulted her brother and her bhaujai with sabal, lathi, and her sister-in-law (Bhaujai) was also kicked and fisted. So far PW 6, Sukri Oraon, is concerned, it was submitted that in her evidence before the Court, the informant spoke of assault on her husband by accused Bandhu Oraon with lathi whereas in the fardbeyan there was no reference to Bandhu Oraon assaulting her husband with lathi. PW 6 further had stated that the accused Suka Oraon had carried her to distance away from her angan kicking and fisting her, whereas in the fardbeyan there was no reference to this part of her dragging from her angan to some distance away. 7. However, all the informant discrepancies and improve upon the evidence appear to be just negligible and minor as I have already said above that fardbeyan was given by the informant in an injured condition in the hospital. Moreover fardbeyan is not the encyclopaedia of a case and minute details of the alleged occurrence need not necessarily be stated in the same. Moreover, despite the above alleged deviations and discrepancies, as stated above, the evidence does not at all demolish the case of the prosecution regarding the assault upon the deceased and the informant in particular. So, I do not think, the case of the prosecution shall be disbelieved on the ground of the aforesaid discrepancies, as pointed out by the appellants lawyer. So, I do not think, the case of the prosecution shall be disbelieved on the ground of the aforesaid discrepancies, as pointed out by the appellants lawyer. The evidence was next criticised on the ground that, in the first information report, the names of PW 1, Nitu Kumari and PW 4, Taramuni Oraon, were not mentioned. In this connection, it is to be noted that PW 1 is the daughter of the deceased and, so her presence in the house of the deceased on the alleged date and time is quite natural. No suggestion was given to PW 1 that she was not present in the house on the alleged date and time of the occurrence. So far PW 4 is concerned, she had stated that on the date of occurrence she had come to the house of the informant as guest. No suggestion was given to this witness also that she was not present in the house of the informant on the alleged date and time. So far non-examination of any independent witness is concerned, it is a matter of special notice that the alleged occurrence of assault took place in such a quick succession that the witnesses had no opportunity to come to the piace of occurrence but they had seen the deceased and the informant both at the spot in an injured condition. So, these witnesses saw the deceased lying on the ground and the informant in injured condition and they were carried to the hospital by Budhram Oraon (PW 3) and Ramjit Oraon (PW 9). It was submitted before me that Ramjit Oraon who was the father-in-law of the informant was tendered. So, this will create doubt, whether, of course, there was any occurrence of assault on the deceased on the alleged date and time. But, in this connection, it is to be noted that PW 9 was not withheld from the Court, rather he was tendered and the accused had full opportunity to cross-examine him and elicit anything favourable, but cross-examination of this witness was declined. So, I do not think, the non-examination of any independent witness in this case is going to effect the prosecution case adversely. 8. So, I do not think, the non-examination of any independent witness in this case is going to effect the prosecution case adversely. 8. It was still further submitted by the appellants lawyer that the doctors evidence is inconsistent with the ocular evidence, in so far as the deceased was assaulted three times by accused-Budu Oraon with sabal, whereas the Doctor found only one incised injury. However, I find that the doctor referred to one sharp cut incised wound over the back of scalp of Sani Oraon of the dimension of 4" x 1" x 1" cutting across the scalp and bone piercing upto brain matter. Both sides of parietal bones were transversely fractured posteriorly. Brain matter was full of clotted blood. So, I find that the reference to three sabal blows by the informant in her fardbeyan or in her evidence before the Court, in substance, is not contradicted by the medical evidence, because there were fractures of the parietal bones of both sides and there was incised wound on the scalp also. When any instrument is used indiscriminately, the counting of blows by a witness may not be accurate and, therefore, the chance of miscalculation is very much there. In any case, the evidence with respect to assault with sabal is intact and hence, the medical evidence is not in conflict with the ocular evidence. I shall refer to the other injuries upon the deceased at a later stage. So far the injuries upon Sukri Oraon (PW 6) are concerned, she had said that she was subjected to one sabal blow on her head by Budu Oraon and the doctor found one incised wound on the middle of scalp 3" 1/2" x 1/2". The other injury was incised wound on the left side of scalp 1" x 1/2" x 1/2". So, these two injuries are very much probable even by one blow of sabal on her head. So, there is no inconsistency of the medical evidence, regarding Sukri Oraon, with the ocular evidence. She was also kicked and fisted by Suka Oraon and this is explained by the 3rd injury which was pain over the back of Sukri Oraon. In all circumstances, therefore, I do not think, that the medical evidence was inconsistent with the ocular evidence. 9. She was also kicked and fisted by Suka Oraon and this is explained by the 3rd injury which was pain over the back of Sukri Oraon. In all circumstances, therefore, I do not think, that the medical evidence was inconsistent with the ocular evidence. 9. It was lastly submitted by the appellants lawyer that the alleged occurrence took place on the spur of moment and there was no pre-planning or premeditation and so the offence under Section 302 of the Indian Penal Code is not attracted. In this connection, of course, the evidence does not suggest that the three accused-appellants had any prior meeting of minds or they had pre-planned for murder of the informants husband and then came to the place of occurrence with common design. But, however, the object or intention of the appellants has to be gathered from the circumstances on the record and the manner of assault. So, it is to be noticed in this connection, that the evidence is that when accused Suka Oraon came to the house of the informant and announced that he will build a house on the land of Mama, the informant objected and this resulted in kicking and fisting of the informant and when the deceased intervened, Suka Oraon called out his brothers, Budu Oraon and Bandhu Oraon, who came to the P.O. armed with sabal and lathi. So, naturally the accused-appellants developed a common intention suddenly and their intentions were certainly not pious. So, it is apparent that the common intention of assault on the part of all the three appellants was very much there and it was abundantly clear from the evidence and circumstances on the record. Now the question is as to whether there was the common intention of all the appellants for causing murder of the deceased. In this connection, there is evidence regarding assault upon the deceased by Bandhu Oraon with lathi of course, in the fardbeyan, the informant failed to state that Bandhu Oraon had assaulted her husband with lathi. However, this can very much be explained, as I have stated above, on account of slip of memory when the informant gave her fardbeyan before the police in the hospital and in injured condition. The evidence of three eye-witnesses, however, on this point is consistent that Bandhu Oraon had assaulted the deceased with lathi. However, this can very much be explained, as I have stated above, on account of slip of memory when the informant gave her fardbeyan before the police in the hospital and in injured condition. The evidence of three eye-witnesses, however, on this point is consistent that Bandhu Oraon had assaulted the deceased with lathi. The doctors evidence, in this connection, is also important and he has found one lacerated wound and abrasions on various parts of the body of the deceased. It was suggested that these injuries might have been caused by fall of the deceased on the ground. However, I am of the opinion that since there was no evidence as to how the deceased fell on the ground, backwise or mouthwise, the evidence regarding the assault upon him with lathi cannot be discarded. So, the medical evidence and the ocular evidence cannot be discarded as regards the assault upon the deceased with lathi. So, the intention of both Budu Oraon and Bandhu Oraon was common and the informants husband died no sooner had he reached the hospital on account of the assault upon his head with sabal. If the intention of Bandhu Oraon were not common with Budu, he had no business to assault the deceased with lathi when already his brother had assaulted him with sabal. So intention of Bandhu Oraon was very much common with his brother Budu and, therefore, he must have assaulted the deceased with lathi in order to ensure that their common design was accomplished. So, I do not think that Budu Oraon and Bandhu Oraon would escape from the liability of causing the murder of the informants husband, Sani Oraon. 10. So far the assault upon the informant is concerned, it is to be noted that she was fisted and kicked by Suka Oraon and I have already stated above that since it was he who had called out his brothers and asked them to come to the place of occurrence, his intention was common with his brother to cause assault upon the informant and the deceased. So, whatever assault must have been committed upon the informant, his object was common with Budu and Bandhu. Of course, the informant was assaulted by Budu only with sabal which resulted in two simple incised wound on her head. So, whatever assault must have been committed upon the informant, his object was common with Budu and Bandhu. Of course, the informant was assaulted by Budu only with sabal which resulted in two simple incised wound on her head. However, it is to be ascertained as to whether the intention of the appellants was to cause murderous assault upon the informant. In this connection, the quantum of injury and the manner of assault would be significant to enlighten this Court. Since, the injuries were simple and Bandhu Oraon did not commit any overt act and Suka Oraon only kicked and fisted the informant. I am of the opinion that there was no intention to commit murderous assault upon the informant. So, the conviction of the three appellants under Section 307, IPC for causing murderous assault upon the informant does not appear to be based on sound reasoning. Admittedly Bandhu Oraon did not assault the informant. So, both Suka and Budu may be convicted for their individual acts of assault upon the informant. Both were charged under Section 307/34, IPC and both indulged in assault upon the informants. So, the evidence shall prove the charge under Section 323, IPC against Suka Oraon and the same under Section 324, IPC against Budu Oraon Since the charge under Section 307/34, IPC would include the charge under Section 307 IPC, this charge can be reduced to a charge under Sections 323 and 324, IPC. On the basis of the evidence adduced and proved I would be fortified in this opinion by a Constitution Bench judgment of the Supreme Court (of five Judges) Billie (William) Slaney V/s. State of Madhya Pradesh, AIR 1955 SC 116. So, Suka Oraon can very well be convicted under Section 323, IPC within the provision of Section 322(2), Cr PC and Budu Oraon may be convicted under Section 324, IPC within the same provision of Criminal Procedure Code. Bandhu Oraon shall be acquitted for the charge under Section 307/34, IPC. 11. Before I conclude, I would like to refer to the argument of the appellants lawyer that the blood stained earth picked up from the place of occurrence by the Investigating Officer and the sabal recovered from the house of the father of the accused-appellants were neither produced in Court nor they were sent to Forensic Science Laboratory and, therefore, the prosecution case was to be disbelieved. In this connection, I am of the opinion that the seizure list on the record was very much there and the seizure witnesses also supported the fact of the seizure. So, the omission by the I.O. in this connection, cannot be given much significance and, even if, it is assumed that there was no seizure of articles, the evidence on the point of assault would not at all suffer from any infirmity be cause nothing has been elicited from cross-examination of PWs as to how collaterals (sic) informant shall be falsely implicated in a false case of assault. Of-course, there was land dispute on account of the announcement of the accused for constructing a house on the land of their mama, but that will also give a cause for the accused to commit the alleged offender under the circumstance, therefore, the case of the alleged occurrence of assault upon the informant and the deceased was amply proved by the evidence on record. So, all the criticism in this connection, is fit to be dismissed. 12. As a result of the aforesaid discussion upon the entire gamut of the evidence and the circumstance emerging therefrom, the order of conviction is modified to the effect that accused Suka Oraon and Budu Oraon shall be convicted under Sections 323 and 324 of the Indian Penal Code respectively. Budu Oraon and Suka Oraon, and Bandhu Oraon shall be acquitted of the charge under Section 307/34, IPC. Accused Budu and Bandhu Oraons conviction under Section 302/34, IPC shall remain intact. Suka Oraon is acquitted of charge under Section 302/34, IPC. 13. So far the sentence is concerned, Budu and Bandhu Oraon were sentenced to undergo life imprisonment and this sentence is, thus, maintained. Suka Oraon is sentenced to undergo R.I. for one year under Section 323, IPC and Budu Oraon is sentenced to undergo R.I. for 2 years under Section 324, IPC.The sentence of Budu shall run concurrently. 14. With the aforesaid modification in the order of conviction and sentence, this appeal is dismissed.