Research › Search › Judgment

Jharkhand High Court · body

2002 DIGILAW 1222 (JHR)

Arjun Oraon v. State of Bihar

2002-12-09

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
JUDGMENT Vishnudeo Narayan, J.- This appeal has been directed by the sale appellant named above against the impugned judgment dated 24.1.1994 passed in S.T. No. 56 of 1990 (G.R. 720 of 1989) by Shri G. K. Verma, 2nd Additional Sessions Judge, Gumla, whereby and whereunder the appellant aforesaid was found guilty for the offence under Section 302 of the Indian Penal Code and he' was convicted and sentenced to undergo R.I. for life. 2. The prosecution case has arisen on the basis of the F.I.R. (Ext. 6) of P.W.3, Bandhani Orain, the widow of Thupa Oraon, the deceased of this case and the elder brother of the appellant aforesaid recorded by P.W.12, Bhaiyalal Singh, O.C. of Basia P.S. on 31.10.89 at 11.30 hours at P.S. Basia regarding the occurrence which is said to have taken place on 30.10.89 at 8.30 P.M. inside the house of the informant in village Poktanawa Tali, P.S. Basia, District Gumla and the said F.I.R. was recorded in presence of the chowkidar of the said village and the appellant was produced by the informant and the village chowkidar at the P.S. aforesaid by them. The said F.I.R. was received in the court of C.J.M. on 1.11.89. 3. The prosecution case, in brief, is that the appellant is the younger full brother of the deceased and both were residing in the P.O. house. It is alleged that the night of the occurrence is the Deewali festival night and the deceased has taken Hariya on that occasion and he returned to his house and asked from the wife of the appellant as to where the appellant has gone. It is alleged that the wife of the appellant brought the appellant from the other house and at this the deceased asked the appellant as to where he had gone and at this the appellant mounted assault on the deceased by tangi (axe) by giving three or four blows on his neck. nose, arm and other places causing his death at the spot. It is also alleged that P.W.2 Ganauri Orain, the sister of the deceased and the appellant, had intervened to ward of the occurrence. It is also alleged that on alarms P.WA, Lakshman Oraon, aged about 10 years, the son of the deceased, came there and started weeping seeing the assault being perpetrated on the deceased. It is also alleged that P.Ws. It is also alleged that on alarms P.WA, Lakshman Oraon, aged about 10 years, the son of the deceased, came there and started weeping seeing the assault being perpetrated on the deceased. It is also alleged that P.Ws. 1 and 6, the mother and father of the deceased also came there on alarms and had witnessed the occurrence and the appellant, thereafter, went inside his room where he remained after the occurrence. It is also alleged that the chowkidar of the village was informed to come to the place of occurrence and, thereafter, the informant in the company of the chowkidar along with the appellant came to the police station and reported about the occurrence. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case due to enmity and the deceased has died due to fall under intoxication. 5. The prosecution has in all examined 12 witnesses to substantiate the prosecution case. P.W.3, Bandhani Orain, the widow of the deceased is the informant in this case. P.WA, Lakshman Oraon, the son of the informant is the alleged eye witness of the occurrence along with his mother P.W.3. P.W.9, Dr. Krishna Prasad has conducted the postmortem examination on the dead body of the deceased and the postmortem report per his pen is Ext. 4 in this case. P.W.12, Bhaiyalal Singh is the I.O. of this case and he has proved the F.I.R. (Ext. 6). P.W.1, Budhani Devi and P.W.2, Ganauri Orain, the mother and sister respectively of the deceased and the appellant have turned hostile and they do not at all support the prosecution case. P.W.6, Etwa Oraon, the father of the deceased has been tendered. P.W.5, Amrus Kharia, the village chowkidar is the heresay witness of the occurrence. P.W.7 has proved the inquest report regarding the dead body of the deceased and the seizure list regarding the seizure of blood stained earth which are Exts. 2 and 3 respectively and his signature as well as the signature of P.W.8 thereon are Ext. 1 series. P.W.10 and P.W.11 are the formal witnesses who have proved the signature of the I.O. on the F.I.R and the case diary from page 1 to 23 (Ext. 5) respectively. 6. 2 and 3 respectively and his signature as well as the signature of P.W.8 thereon are Ext. 1 series. P.W.10 and P.W.11 are the formal witnesses who have proved the signature of the I.O. on the F.I.R and the case diary from page 1 to 23 (Ext. 5) respectively. 6. In view of the oral and documentary evidence on the record the learned court below has found the appellant guilty for the offence under Section 302 of the Indian Penal Code and has convicted and sentenced him as stated above. 7. Assailing the impugned judgment as unsustainable it has been submitted that in the facts and circumstances of this case no offence under Section 302 of the Indian Penal Code is made out and utmost a case under Section 304 Part II may be made on the basis of the evidence on record as there was 'no intention on the part of the appellant to commit the murder of the deceased and the assault in question has taken place in course of altercation. It has also been submitted that P.Ws. 3 and 4 are highly interested and partisan witnesses of the occurrence and there is no corroboration of their evidence by any independent, natural, competent and reliable witness of the occurrence and there is inherent contradictions and inconsistencies in their evidence which cast a cloud of suspicion to the credibility of the prosecution case. It has also been submitted that the mother, father and the sister of the deceased are not supporting the prosecution case which equally casts a cloud of suspicion on the prosecution case and there is no motive for the appellant to commit the murder of the deceased. It has also been submitted that P.WA, Lakshman Oraon is a child witness, aged about 11 years at the time of the occurrence and he is a tutored witness and there is no means of identification at the place of occurrence as it was a dark night when the alleged occurrence is said to have taken place. 8. The learned A.P.P. has submitted that the occurrence has taken place inside the house and P.Ws. 8. The learned A.P.P. has submitted that the occurrence has taken place inside the house and P.Ws. 3 and 4 are the ocular witnesses of the occurrence and they have supported the prosecution case and the I.O. in his objective finding has found and seized blood stained earth at the place of the occurrence which is the 'Angan' of the common house of the parties. It has also submitted that it will appear from the medical evidence on the record that the assault on the deceased by the appellant was very brutal one with intention to commit his murder and as such this case does not at all fall under the ambit of Section 304 Part II of the Indian Penal Code. 9. Before we scan the evidence on the record in the light of the submissions put forward on behalf of the appellant it is relevant to mention at the very outset that the appellant and the deceased are the full brothers living in a common house and there was no enmity at all between them existing and alive prior to the occurrence or on the day of the occurrence. According to the prosecution case it was a night of Deewali festival and the deceased being the elder brother had made an enquiry from the wife of the appellant as to where the appellant is in that night. The wife of the appellant called the appellant from some other house where he was and when the appellant came inside the house, the deceased asked him as to where he was and at this the appellant mounted assault on the deceased by tangi (axe) as a result of which the deceased has died at the spot. The appellant was brought by the informant and the chowkidar to the police station and the F.I.R. was drawn and the appellant was apprehended. The appellant as per prosecution case did not flee away from the house after the occurrence rather he remained in the P.O. house for the entire night. P.W.12, the I.O. has deposed that after recording of the F.I.R. and making arrest of the appellant at the P.S. where he was present with the informant and the village chowkidar, he inspected the place of occurrence and had prepared the inquest report (Ext. 2) of the dead body of the deceased. P.W.12, the I.O. has deposed that after recording of the F.I.R. and making arrest of the appellant at the P.S. where he was present with the informant and the village chowkidar, he inspected the place of occurrence and had prepared the inquest report (Ext. 2) of the dead body of the deceased. He has further deposed that he had found the dead body at the place of the occurrence and he has also seized the blood stained earth from the courtyard of the house of the parties. The I.O. has further deposed that the place of the occurrence is the common house of the parties to this case and the family of the appellant lives in the eastern part of the said house and the family of the deceased used to live in the western part of the said house and he has also found blood fallen in the courtyard and mark of dragging of the dead body from the courtyard to outside of the house in the village lane adjacent east of the house of the parties. It is, therefore, established in view of the objective finding of P.W.12, the I.O. that the occurrence has taken place inside the house of the parties. P.Ws. 3 and 4 in their evidence on oath have also testified the fact of the occurrence taking place inside the house. 10. P.W.9 has deposed to have conducted the postmortem examination on the dead body of the deceased at 9.30 A.M. on 1.11.89 and he has found the following ante mortem injuries on the person of the deceased: (i) Incised injury on the right sice of neck, just below the occipital bone cutting the axis vertebra; size 3" x 1" x 1 1/2". (ii) Incised injury on the right side of neck, just lateral and below injury no. (i); size 3" x 1" x 11/2”; again cutting the axis vertebra and major vessels. (iii) Incised wound just below and medial to injury no. (ii), cutting the thyroid cartilage; size 3" x 1" x 1". (iv) Incised wound at the base of the chin, cutting the right mandible; 2W x 1/2" x 1/2". (v) Incised wound at the lateral angle of right eye; size 1" x 1/2" x 1/2". (vi) Lacerated injury over the middle portion of the nose, two in number on the either side of the nose; both maxillary and nasal bone fractured. (iv) Incised wound at the base of the chin, cutting the right mandible; 2W x 1/2" x 1/2". (v) Incised wound at the lateral angle of right eye; size 1" x 1/2" x 1/2". (vi) Lacerated injury over the middle portion of the nose, two in number on the either side of the nose; both maxillary and nasal bone fractured. (vii) Incised wound on the left side of neck, cutting the major vessels; size 2" x 1/2" x 1". (viii) Incised wound at the tip of the left shoulder; size 2" x 1/2" x 1/2". The medical witness has further deposed that injury nos. 1, 2, 3, 4. 6 and 7 were grievous in nature caused by sharp cutting weapon may be by tangi (axe) except injury no. 6 which has been caused by hard and blunt substance may be by the back portion of the tangi (axe). The medical witness has further deposed that injury nos. 5 and 8 are simple in nature though caused by sharp cutting weapon. The evidence of the medical witness is further to the effect that the death of the deceased has been caused as a result of injury nos. 1, 2, 3 and 7 either singly or jointly in ordinary course of nature. The time elapsed since death according to the medical witness is between 24 to 36 hours. It appears from the postmortem report read with the evidence of P.W.9, the medical witness that there was merciless assault by tangi (axe) on the vital parts of the body of the deceased which has caused his death. The absence of alcohol in the stomach of the deceased as found by the medical witness has no much bearing in this case. 11. P.W.3 Bandhani Orain, the informant and the widow of the deceased claims herself to be present in the P.O. house at the time of the occurrence. She has deposed that the appellant had assaulted the deceased by tangi (axe) causing his death and after the assault, the appellant remained in the house. She has further deposed that when chowkidar of the village came she along with the chowkidar and the appellant went to the P.S. She has also deposed that her son Lakshman has also witnessed the occurrence. Her evidence is further to the effect that P.W.2, Ganauri Orain had intervened in the occurrence to save the deceased. P.W4. She has further deposed that when chowkidar of the village came she along with the chowkidar and the appellant went to the P.S. She has also deposed that her son Lakshman has also witnessed the occurrence. Her evidence is further to the effect that P.W.2, Ganauri Orain had intervened in the occurrence to save the deceased. P.W4. Lakshman Oraon, the son of the deceased and the informant was 11 years old at the time of the occurrence. Before recording his evidence, the court has put some questions to test the understanding faculty of this witness and being satisfied, the evidence of P.WA was recorded. He has deposed that in the night of the Deewali festival the occurrence has taken place and the appellant assaulted his father Thupa Oraon on his face and neck by tangi as a result of which his father fell down and died. He has also deposed that P.W.2 had intervened in the occurrence to rescue the deceased. P.W.4 has also deposed that on alarms he woke up and had seen the occurrence. He has specifically denied the suggestion that his father has died due to fall. The evidence of P.Ws. 3 and 4 establishes the fact beyond doubt that the appellant had mercilessly assaulted the deceased with tang; causing his death. Nothing material has been elicited in their• cross examination to discredit their testimony. The evidence of P.Ws. 3 and 4 stands corroborated by the medical witness as deposed by P.W.9 regarding the existence of injuries on the person of the deceased. I see ring of truth in the evidence of P.Ws. 3 and 4 and I see no reason to discredit their testimony in the facts and circumstances of this case. P.W.1, the mother and P.W.2, the sister of the appellant as well as of the deceased are not supporting the case of the prosecution for the reasons best known to them and it has no bearing in this case and it does not at all cast any suspicion regarding the authenticity of the prosecution case in view of the evidence of P.Ws. 3 and 4 read with the testimony of P.W.9 and P.W.12. It is true that motive for the occurrence has neither been disclosed in the F.I.R. nor in the evidence of P.W.3 and P.W.4. 3 and 4 read with the testimony of P.W.9 and P.W.12. It is true that motive for the occurrence has neither been disclosed in the F.I.R. nor in the evidence of P.W.3 and P.W.4. I have already stated above that there was no enmity at all existing and alive between the parties prior to the occurrence till the date of the occurrence. The motive pales into insignificance when there is direct evidence on the record in the evidence of P.Ws. 3 and 4 regarding the assault by the appellant on the deceased causing his death inside the house. It cannot be laid down that motive may not be very much material in cases depending on direct evidence whereas the motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as per the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of the eye witness or circumstantial evidence. The question in this regard is whether the prosecution must fail because it failed to disclose the motive and prove the same or even whether inability to prove motive would weaken the prosecution case to any perceptible limit. No doubt if the prosecution proved the existence of the motive it will be well and good for it particularly in a case depending on circumstantial evidence for such motive could then be counted as one of the circumstance. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the appellant. Here in this case we have direct ocular evidence of P.Ws. 3 and 4 regarding the assault on the deceased by the appellant resulting the death of the deceased. Therefore, in the facts and circumstances of this case the nondisclosure of the motive and evidence in respect thereof on the record does not appear to be a lacuna of the prosecution case. In view of the direct evidence on the record referred to above the non-disclosure of the motive pales into insignificance in the facts and circumstances of this case. There is evidence on the record that no person of the village had come to the place of occurrence on alarms. Therefore, the corroboration of the evidence of P.Ws. In view of the direct evidence on the record referred to above the non-disclosure of the motive pales into insignificance in the facts and circumstances of this case. There is evidence on the record that no person of the village had come to the place of occurrence on alarms. Therefore, the corroboration of the evidence of P.Ws. 3 and 4 in the facts and circumstances of this case by any independent witness does not arise at all. The occurrence has taken place at about 8 O'clock in the night inside the house and admittedly it was a Deewali night. P.W.3 in para 8 has deposed that lamp was burning inside the house in the verandah and in the courtyard and also in the Gohal. In view of the evidence of P.W.3, referred to above it cannot be said that there was no means of identification at the place of occurrence. Therefore, I see no force and substance in the contention of the learned counsel for the appellant. 12. Now a pertinent question arise as to whether the conviction of the appellant under Section 302 of the Indian Penal Code in the facts and circumstances of the case is justified or not and whether it falls under the ambit of Section 304 of the Indian Penal Code. According to the prosecution case as averred in the F.I.R., the deceased enquired from the wife of the appellant as to where the appellant is and, thereafter, the wife of the appellant called the appellant from some other house and seeing the appellant the deceased enquired from him as to where he was and at this the appellant mounted assault on the deceased. However, this aspect of the case has not been brought on the record in the evidence of P.Ws. 3 and 4. They are silent on the score in their evidence. From the facts aforesaid as averred in the F.I.R. it appears that the appellant had no intention to commit the murder of the deceased by assaulting him. There is also no patent or latent motive and malice for the appellant to assault the deceased. There is also total absence of any animus for the appellant to assault the deceased. From the facts aforesaid as averred in the F.I.R. it appears that the appellant had no intention to commit the murder of the deceased by assaulting him. There is also no patent or latent motive and malice for the appellant to assault the deceased. There is also total absence of any animus for the appellant to assault the deceased. It, therefore, appears in view of the prosecution case that at the spur of the moment the appellant under intoxication started assaulting the deceased by tangi as a result of which the deceased has died. The occurrence is said to have taken place at the spur of the moment and there was no premeditation or any cool consideration from before on the part of the appellant to commit the murder of the deceased. It, therefore, appears in the facts and circumstances of this case that the intention of the appellant was evidentally to cause hurt to the deceased and not 10 kill him and as such the charge against the appellant falls under the ambit of Section 304 Part I of the Indian Penal Code. 13. After considering all the pros and cons of the matter I find substance in the contention of the learned counsel for the appellant that this case falls under the ambit of Section 304 of the Indian Penal Code. The appellant is in custody since 31.10.1989. Therefore, the conviction under Section 302 of the Indian Penal Code of the appellant is hereby modified under Section 304 Part I of the Indian Penal Code and his sentence is altered to the period already undergone by him in custody. 14. With the modification of the sentence as stated above, the appeal is hereby dismissed. Let the appellant be set free forthwith if not wanted in any other case. Lakshman Uraan, J.-I agree.