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Jharkhand High Court · body

2002 DIGILAW 1236 (JHR)

Bandhan Mahto v. State of Bihar

2002-12-10

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2002
JUDGMENT Lakshman Uraon, J.-Both the appellants have preferred this appeal against the order of conviction and sentence dated 25.3.91 passed by Smt. Shakuntala Sinha, 7th Addl. Judicial Commissioner, Ranchi whereby and whereunder they have been convicted under Sections 302/34 and 201/ 34, IPC, sentencing them to go R.I. for life and to pay fine of Rs. 1,000/- each under section 302/34, IPC and in default of fine to undergo R.I. for three months and to go R.I. for three years for the offences punishable under Section 201/34, IPC, directing that both the sentences in each count in respect of each convict shall run concurrently. 2. The prosecution case as per the FIR, Ext.2, recorded on the statement of the informant, Ratni Devi, PW-4, on 2.11.89 at about 1 A.M. is that on 31.10.89 at village Nachiatu, the informant, Ratni Devi, alongwith her husband was thrashing the paddy at 3 P.M. near her house. At that time both the appellants, Bandhan Mahto and Hauwa Mahli went there and took her husband, Karma Oraon for going to Dungdung Market to enjoy by eating and drinking. Her husband went alongwith both these appellants but he did not return home at night. Then in the next morning the informant went to the house of both the appellants and inquired about her husband. Both the appellants were also not present in their respective houses. The family members of their houses informed that they had no knowledge as to where they had gone. She searched in the nearby villages and reached Kumba Tali. She met Mangal Munda, PW-6, of village Kuruhutu. He informed that towards North on the railway line at Basti Chete a dead body was lying. He asked the informant to go and see the dead body. The informant alongwith her Gotni, Singi Orain, PW-7, went to the railway line and saw the dead body of her husband ,cut into two parts. The upper portion was lying towards North and the rest portion below waist was lying in between the railway lines. She did not find any blood-stain at the place or nearby. Both Ratni and her Gotni, Singi, went to the village and informed the villagers. The villagers went and saw the dead body of Karma Oraon lying on the railway line. Thereafter she went to Police Station where her statement was recorded on which she and witness, Lakhwa Oraon, PW-3, signed, Exts. Both Ratni and her Gotni, Singi, went to the village and informed the villagers. The villagers went and saw the dead body of Karma Oraon lying on the railway line. Thereafter she went to Police Station where her statement was recorded on which she and witness, Lakhwa Oraon, PW-3, signed, Exts. 1/2 & 1/3 respectively. She has alleged that due to enmity and differences both the appellants took her husband, Karma Oraon alluring to eat and drink and caused his murder. Thereafter the dead body was laid on the railway line resulting separation of the dead body into two parts. 3. Both the appellants were charged under Sections 364/34,302/34 and 201/34, IPC. The learned court below did not convict the appellants u/s 364/34, IPC in view of the fact that murder was committed by them in furtherance of their common intention and the dead body was put on railway track after the murder. Hence, the appellants were convicted and sentenced only under Sections 302/34 and 201/34, IPC. 4. The alleged occurrence took place in between 31.10.89 and 1.11.89. The place of occurrence and the time of the alleged murder is not known to the informant or any prosecution witness. In this case the I.O. has not been examined. As per the FIR, Ext.2, there is no eye-witness of the alleged murder and putting the dead body of Karma Oraon on the railway line near village Chete. PW-4, Ratni Devi, who is the informant of this case, is the wife of the deceased, Karma Oraon. PW-4 was thrashing paddy alongwith her husband in the evening at 3 P.M. At that time both the appellants took her husband to Bazar to eat and drink. Her husband went along with both the appellants. But he did not return home. She alongwith PW-7, Singi Orain, went in search of Karma Oraon. She did not find both the appellants in their respective homes. They were informed in course of search by Mangal Munda, PW-6, that a dead body was on the railway line. He asked them to see the dead body. The informant, PW-4, and her Gotni, PW-7, went there and saw the dead body of her husband, Karma Oraon, which was cut in two pieces. The lower portion from the waist was in between the railway lines and the upper portion from the waist was outside the railway line. He asked them to see the dead body. The informant, PW-4, and her Gotni, PW-7, went there and saw the dead body of her husband, Karma Oraon, which was cut in two pieces. The lower portion from the waist was in between the railway lines and the upper portion from the waist was outside the railway line. She came to the village and informed the villagers, PW-1, Charu Oraon, PW-3, Lakhwa Oraon PW-5 Chadra Oraon. The villagers went there and saw the dead body. PW-1, PW-3 and PW-5 had stated that they were informed about the dead body of Karma Oraon lying on the railway track near the village Chete. They have also stated that PW-4, Ratni Devi, had informed them that she and her husband were thrashing paddy in a nearby Khalihan of their homes at about 3 P.M. then both the appellants took her husband to eat and drink to Dungdung Market. Thereafter the dead body of her husband was found on the railway track. PW-1, Charu Oraon, had also gone to the Police Station alongwith the informant, Ratni Devi where her statement was recorded on which he gave his L.T.1. PW-3, Lakhwa Oraon, had also corroborated the statement of PW-1 who had also gone to the Police Station alongwith the informant and PW-1. He also signed on the FIR, Ext. 1/1. PW-6, Mangal Munda, was going to sow the paddy in his field crossing the railway line where he saw one dead body lying there. He did not go near the dead body rather when he was returning home after sowing the paddy seeds then, he met Ratni Devi (informant), PW-4 and one woman whom he informed that go and see the dead body which was lying on the railway track. PW-7, Singi Orain, has been declared hostile only because she has deposed that the informant, PW-4, had not named the assailants who caused the murder of her husband. However, she has admitted that she had gone in search of Karma Oraon alongwith PW-4, Ratni Devi. In para-4 she has stated that in course of search of Karma Oraon alongwith PW-4, she met on their way one man whose name she could not remember who informed that one buffalo was lying on the railway line. When she and Ratni Devi went there they saw the dead body of Karma Oraon which was cut into two parts. In para-4 she has stated that in course of search of Karma Oraon alongwith PW-4, she met on their way one man whose name she could not remember who informed that one buffalo was lying on the railway line. When she and Ratni Devi went there they saw the dead body of Karma Oraon which was cut into two parts. The upper portion from the waist was outside the railway line and the other half portion was in between the railway ,lines. Both of them returned home and informed the villagers. The villagers went and saw the dead body. When the matter was informed to the Police on 2.11.89 then the I.O. went to the railway line which was near the village Chete Basti on the same day at about 6 A.M. and prepared the inquest report in his pen and signature, Ext. 3, on which PW-2, and PW-3 Lakhwa Oraon signed, Exts. 1 & 1/3 respectively. 5. PW-5, Chadra Oraon is the fatherin-law of the informant who was also informed by the informant, PW-4, Ratni Devi that Karma Oraon was taken by both these appellants to eat and drink. Since thereafter the dead body of Karma Oraon was found on the railway line. 6. As the I.O. has not been examined hence a formal witness, PW-8, William Minz, has proved the fardbeyan and formal FIR in the pen and signature of the then Officer-in-Charge of Hatia P.S., Prithvi Raj, Ext.2. The inquest report in carbon processes, Ext.3. 7. PW-9, Dr. Ajit Kumar Choudhary, conducted the post mortem examination on the dead body of Karma Oraon, aged about 25 years, of village Nachiatu on 2.11.89 at about 2 P.M. and found lacerated wounds - 12 x 4cm x scalp deep on the left tempero parietal region of head. There was diffused contusion of left tempera parietal frontal scalp and left temporal muscle. There was crack fracture of left tempero parietal bone measuring 12 C.M. long. There was presence of subdural blood and blood clot over both sides of brain and laceration of left temporal region of brain. The Doctor found these lacerated wounds antemortem in nature caused by hard and blunt substance. He also found postmortem injuries which was crush injury over the abdomen. The body was divided into two parts by means of crush injury at the level of IIIrd number vertebra. The Doctor found these lacerated wounds antemortem in nature caused by hard and blunt substance. He also found postmortem injuries which was crush injury over the abdomen. The body was divided into two parts by means of crush injury at the level of IIIrd number vertebra. The small intestine, large intestine, liver, spleen were crushed. The abdominal cavity did not contain blood and blood clot. This witness found abrasions - (1) 6 x 4 C.M. over left cheek (2) 3 x 2 C.M. over left forehead. (3) 4 x 2 ,C.M. over right forehead (4) 3 x 3 C.M. over right cheek. (5) 6 x 2 C.M. over back of right palm (6) 5 x 2 C.M. over right front of chest (7) 10 x 4 C.M. over left arm frantal side (8) 4 x 2 C.M. 8 x 2 C.M. and 2 x 1 C.M. over left scapular region. The post mortem injuries and abrasions were caused by railway accident. The death was due to head injury as a result of abovenoted lacerated wounds since 24 to 48 hours from the time of the post mortem examination. He prepared the postmortem examination report in his pen and signature, Ext.4. 8. Ext.A, which is the post mortem report, is the clear indication as per the evidence of Dr. PW-9, that lacerated wounds which were on the head, were antemortem in nature caused by hard and blunt substance. Whereas the other post mortem injuries and abrasions were also found which were not the cause of death of Karma Oraon. The witnesses did not find any blood-stain on the railway track or nearby the dead body. This shows that Karma Oraon was murdered some where else causing lacerated wounds on his head by hard and blunt substance and thereafter the dead body was put on the railway track near Basti Chete. The train cut the dead body into two pieces at the waist. The lower part of the body was in between the railway lines and the upper portion was outside the railway lines. 9. I have stated above that there is no eye-witness of the alleged occurrence. PW6, who had gone to sow the paddy seeds in his field crossing the railway line, saw one dead body on the railway line. The lower part of the body was in between the railway lines and the upper portion was outside the railway lines. 9. I have stated above that there is no eye-witness of the alleged occurrence. PW6, who had gone to sow the paddy seeds in his field crossing the railway line, saw one dead body on the railway line. He was knowing the deceased prior to the alleged occurrence but he did not go near the dead body to see it. He did not' identify the dead body at that time but he simply saw a dead body on the railway line. When he informed PW-4 and PW-7 who were in search of Mangal Munda then both PW-4 & PW-7 went and saw the dead body. Thereafter, they returned home and informed the villagers. The villagers examined are PW-1, PW-3 and PW-5. They were informed by Ratni Devi, PW-4 that in the evening at 3 P.M. on 31.10.89 she and her husband were thrashing paddy on a nearby Khalihan of their home. Then both the appellants took her husband Karma Oraon to eat and drink to Dungdung Market. Since thereafter Karma Oraon did not return home and on the next day his dead body was found on the railway line on information given by PW-6, Mangal Munda. There were differences in between these appellants and the deceased and they were in inimical terms. At night when Karma Oraon did not return then PW-4 & PW-7 searched Karma Oraon in the village and also went to the homes of the appellants. Both the appellants were also not found in their respective homes. The family members informed that they had no knowledge as to where both the appellants had gone. There is no any eyewitness of the alleged murder of Karma Oraon but there is only circumstantial evidence against these appellants as deposed by PW-4. Her husband was in inimical term due to certain differences with the appellants. The appellants took her husband from the Khalihan at about 3 P.M. on 31.10.89 to eat and drink at Dungdung Market. All the three persons had gone together. Since thereafter the dead body of Karma Oraon was found lying on the railway line. PW-5, father-in-law of the informant, had gone to attend his duty hence he had not gone in search of Karma Oraon. All the three persons had gone together. Since thereafter the dead body of Karma Oraon was found lying on the railway line. PW-5, father-in-law of the informant, had gone to attend his duty hence he had not gone in search of Karma Oraon. When he returned home after duty then he was informed by PW-4 & PW-7 that the dead body of Karma Oraon was lying on the railway line. He also went there and saw the dead body where the I.O. prepared the inquest report. 10. The learned counsel for the appellants has submitted that there is no eyewitness of the alleged occurrence and the circumstances which has been planted by the prosecution, does not point the guilt of the appellants. It was submitted that the finding of the learned Court below is based only on surmises and conjectures which' cannot take place the proof. The I.O. has not been examined in this case which has caused prejudice to these appellants. The learned counsel for the appellants has also submitted that although the informant, PW4, Ratni Devi, has alleged that her husband was in inimical term with the accused, he was last seen going with them to Dungdung Bazar. This evidence of the sole witness, PW-4 is without any corroboration even by her Gotni, Singi Orain, PW-7. She denied that she was informed by PW-7 regarding going of her husband with the appellants. It was also submitted that the circumstantial evidence to connect the chain is not complete. 11. The learned APP on behalf of the State has submitted that although the I.O. has not been examined in this case but the place where the dead body was found has well been proved by the oral evidence which also gets support by the inquest report, Ext.3, to show that the dead body of Karma Oraon was found on the railway track near Chete Basti on 2.11.89 at 6 A.M. It was also submitted that the learned Court below has rightly arrived at the conclusion that the circumstantial evidence has been connected to lead that the murder was committed by these appellants only and none else. 12. In this case the informant, PW-4, has alleged in the FIR, Ext.2, that there was old enmity due to quarrel in between her husband and the appellants. 12. In this case the informant, PW-4, has alleged in the FIR, Ext.2, that there was old enmity due to quarrel in between her husband and the appellants. Now I have to consider whether the genesis of the alleged occurrence has been proved by the prosecution or not. PW-1, Charu Oraon, PW-2, Mithua Oraorl, PW-3, Lakhwa Oraon and PW-5, Chadra Oraon, all of village Nachiatu, have not deposed anything that there was enmity in between the deceased and the appellants. PW-4, the informant, Ratni Devi has simply alleged that there was the slight differences in between her husband and the appellants. She has also admitted that she had gone in search of her husband Karma Oraon in the house of these appellants. She admits that she had married with Karma Oraon in the Court which shows that she was in love with the deceased and later on got married before the Marriage Officer. Regarding that Court marriage her father and brother had instituted a case against Karma Oraon, deceased husband of the informant. She has admitted that there was no any pending case regarding the landed properties or any other quarrel in between her husband and the appellants. Thus, there is no documentary evidence or oral evidence, supporting the enmity in between the deceased and the appellants, to lead that the said motive compelled these appellants to cause the murder of Karma Oraon. PW-5, Chadra Oraon, has also supported the evidence of PW-4, the informant, that there was no any enmity in between the deceased and the appellants. Thus, the prosecution has failed to prove the genesis of the alleged occurrence which was the previous enmity in between the deceased and these appellants. On the other hand, the informant, PW-4, Ratni Devi, has admitted that she had married in the Court with Karma Oraon, deceased, as she had fallen in love with him for which her father and brother had instituted a case against her husband, Karma Oraon. This also creates another circumstances that her father and brother may also cause the murder of Karma Oraon due to institution of a criminal case by them against the deceased. 13. As I have stated above that in this case the I.O. has not been examined and the place of occurrence could not be established only because there is no eyewitness of the alleged murder of Karma Oraon. 13. As I have stated above that in this case the I.O. has not been examined and the place of occurrence could not be established only because there is no eyewitness of the alleged murder of Karma Oraon. There is also no eye-witness to prove that how the dead body of Karma Oraon was kept on the railway line. Thus, due to non-examination of the 1.0. the accused-appellants have been prejudiced. 14. In view of the evidence available on the record I find that the learned Court below was misled in believing the statement of the hear-say witnesses and also the evidence of the informant, PW-4. which could not be corroborated even by her Gotni, PW-7, Singi Orain, who has stated that she had never informed that her husband had gone to Dungdung Bazar alongwith these appellants. 15. The circumstantial evidence is only that PW-4, Ratni Devi saw her husband, Karma Oraon, going with these appellants to Dungdung Bazarto eat and drink. Thereafter, there is no circumstances to connect the chain that whether they went to Dungdung Market or not. There is no evidence to show that the deceased was seen in the market alongwith these appellants or not. Since thereafter, there is no evidence that where they had gone. There is also no connection of any circumstances of chain how the dead body was kept on the railway line. Thus, the evidence of last seen of the deceased with the appellants is a very weak evidence, which could not be corroborated by any other evidence of competent, independent, natural and reliable village witnesses. They are the independent village witnesses as I have mentioned above including the father-in-law of the informant, PW-5, Chadra Oraon. Thus, the connecting chain to prove the alleged murder by these appellants could not be corroborated by any of the prosecution witnesses. Hence, the benefit of doubt should go in favour of the appellants. On the other hand, there is a legal evidence as per the admission of PW-4. Ratni Devi, the informant, that her father and brother were in inimical term with her husband, Karma Oraon, because she had married with Karma Oraon in the Court. 16. Hence, the benefit of doubt should go in favour of the appellants. On the other hand, there is a legal evidence as per the admission of PW-4. Ratni Devi, the informant, that her father and brother were in inimical term with her husband, Karma Oraon, because she had married with Karma Oraon in the Court. 16. In view of my above considered facts I come to the conclusion that the finding of the learned Court below which is based only on last seen theory of the deceased with the appellants, cannot be sustained in convicting the appellants in causing the murder of Karma Oraon and putting the dead body on the railway line. 17. In the result this criminal appeal is allowed. The judgment and order of conviction and sentence of the learned Court below in S.T.No. 239/90 is hereby set aside and the convict-appellants are aquitted from the charges levelled against them. As both the appellants are on bail, hence, they are discharged from the liability of their bailbonds furnished in this case. Vishnudeo Narayan, J.-I agree.