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2002 DIGILAW 738 (JHR)

Mahesh Oraon v. State of Bihar

2002-07-10

VISHNUDEO NARAYAN

body2002
Judgment Vishnudeo Narayan, J.-Both the appeals originate from the judgment and order dated 17.5.1996 passed in Sessions Trial No. 351 of 1993 by Sri R.P. Verma, 1st Additional Sessions Judge, Gumla and both the appeals aforesaid are hereby disposed of by this judgment. 2. Appellant Mahesh Oraon of Cr. Appeal No. 46 of 1996 (R) has been found guilty for the offence punishable under section 307 I.PC. and under section 25 (i-b) of the Arms Act and he was convicted and sentenced to undergo R.L for seven years and three years respectivley. However, the sentences have been ordered to run concurrently. Appellant, Budhwa Oraon of Cr. Appeal No. 57 of 1996 (R) was only found guilty for the offence punishable under section 307 I.PC. and he was convicted and sentenced to undergo R.I. for five years. 3. The prosecution case has arisen on the basis of the self-statement of informant Pw. 10, Arvind Kumar Sinha recorded on 27.5.1993 at 12.45 hours in Village Jorrag Nowatoli, PS. & District Gumla regarding the occurrence which is said to have taken place on that very day at 9.15 hours in village Jorrag Nowatoli, PS. and District Gumla. 4. The prosecution case, in brief, is that on a confidential information that the accused of Gumla PS. Case No. 103/93 under section 394 I.P.C. has been seen with the looted motorcycle black in Golour without any number plate towards village Jorrag, the informant along with the raiding party consisting of the police force came to Aam Bagicha in village Jorrag Nowatoli and found three persons coming on a motor cycle from Jorrag village and seeing the police force they turned their motor cycle east of the said Aam Bagicha and absconding accused Sushil Tirkey was driving that motor cycle and both the appellants were the pillion rider on the said motor cycle. It is alleged that appellant Budhwa Oraan had a brown bag in his hand and appellant Mahesh Oraon had a rifle in his hand. It is alleged that the informant along with raiding party followed them and at this Mahesh Oraon started making fire from his rifle and absconding accused Sushil Tirkey made two fires from his pistol and appellant Budhwa Oraon threw a bomb at the police jeep which had exploded and the police force fired six rounds from their arms in self-defence. It is alleged that the informant along with raiding party followed them and at this Mahesh Oraon started making fire from his rifle and absconding accused Sushil Tirkey made two fires from his pistol and appellant Budhwa Oraon threw a bomb at the police jeep which had exploded and the police force fired six rounds from their arms in self-defence. The prosecution case further is that the appellants aforesaid along with Sushil Tirkey left the motor cycle in front of the house of Kartik Oraon in village Jorrag Nowatoli and escaped in the forest and while escaping in the forest appellant Mahesh Oraon and absconding accused Suresh Tirkey again fired at the police force from their rifle and pistol respectively and the police force again fired at them in their self-defence. It is also alleged that appellant Mahesh Oraon surrendered by raising his hand in view of the firing made by the police force and he was caught by the police force along with the rifle. It is alleged that the police force was further chasing Sushil Tirkey and appellant Budhwa Oraon and on the orders of Sushil Tirkey aforesaid appellant Budhwa Oraon again threw a bomb taking out from his bag at the police force but the said bomb did not explode and thereafter they escaped in the forest. The rifle recovered from the possession of appellant Mahesh Oraon and the said motor cycle were seized. It is also alleged that the said country made rifle was loaded and two empty cartridges were also recovered from the left pocket of the full-pant of Mahesh Oraon besides a passbook bearing no. 35/7188 of the State Bank, Gumla. It is also alleged that the particles of the exploded bomb and the one live bomb which did not explode were also seized and seizure list was prepared. Lastly it has been alleged that the appellants had fired at the police raiding party along with the informant with intention to commit their murder. 5. The appellants have pleaded not guilty to the charges levelled against them and they have been falsely implicated in this case and there has been no encounter with the police raiding party and seizure list is a got up document and no incriminating articles have been recovered from the possession of Mahesh Oraon. 6. The prosecution has examined eleven witnesses in all to substantiate the prosecution case. RW. 6. The prosecution has examined eleven witnesses in all to substantiate the prosecution case. RW. 10, Arvind Kumar Sinha is the informant of this case. P.Ws. 1, 3, 4 and 9 are the alleged ocular witnesses of the occurrence and the members of the police raiding party. RWs. 6 and 11 are the witnesses of the seizure of the country made loaded rifle, Rajdoot motor cycle and live bomb as well as the particles of one exploded bomb and the seizure list is Ext. 3 and the signature of P.W. 6 thereon is Ext. 2. Ext. 2/1 is the endorsement per pen of appellant Mahesh Oraon along with his signature thereon made in token to the receipt of the copy of the seizure list. P.W. 2 is the ballistic expert and his report Ext. 1 in this case. P.Ws. 5 and 7 have been tendered. pw. 8, Sahjanand Pandey is the I.O. of this case. Ext. 5 is the fardbeyan of informant (RW. 10) and Ext. 4 is the formal F.I.R. No oral and documentary evidence has been brought on the record on behalf of the defence. 7. In view of the oral and documentary evidence on the record the learned court below has found both the appellants guilty for the offence under section 307 I.P.C. and appellant Mahesh Oraon was further found guilty under section 25 (i-b) of the Arms Act and they were convicted and sentenced as stated above. 8. Assailing the impugned judgment and order of the learned court below it has been submitted for the appellant that the impugned judgment is illegal and is based on surmises and conjectures and there is no legal evidence at all of any independent. competent and natural witnesses of the vicinity of the occurrence to support the prosecution case. It has also been submitted that seizure list is itself a doubtful document prepared in the police station and witnesses of the seizure have made an admission to that effect. It has also been submitted that all the witnesses except the witnesses of seizure are all police officials and they are highly interested and partisan witnesses and their testimony is replete with inherent improbabilities and material contradictions which cast a cloud of suspicion regarding the prosecution case which is a got up one. It has also been submitted that all the witnesses except the witnesses of seizure are all police officials and they are highly interested and partisan witnesses and their testimony is replete with inherent improbabilities and material contradictions which cast a cloud of suspicion regarding the prosecution case which is a got up one. It has also been submitted that the appellants have remained in custody for about 20 months as undertrial prisoner. 9. The learned A.P.P. has submitted that there is no illegality or any irregularity in the impugned judgment and order of the learned court below and there is legal evidence on the record of the natural and competent witnesses of the occurrence to substantiate the prosecution case beyond all reasonable doubts. 10. There is no denying the fact that in this case all the eye witnesses are the members of the police raiding party who had made a raid in the village Jorrag as per the confidential information received and no witness of village Jorrag has taken oath in this case but on this score alone all the official witnesses aforesaid cannot be said to be partisan and interested witnesses in absence of any material on the record to show that any independent witness was available near the place of the incident. The evidence of the police official witnesses if found credible cannot be discarded merely on the ground of non-examination of any independent witness of the vicinity of the place of occurrence by the prosecution. The settled principle of law in this regard only requires that their evidence be subjected to careful evaluation like any other witnesses of the occurrence. It is not out of place to mention here that there can be no legal proposition that the evidence of police officer unless supported by independent witnesses is unworthy of acceptance. If the evidence of police officer is found acceptable it would be an erroneous proposition that the evidence of such witnesses should be rejected only on the ground that no independent witness has taken oath in support of the prosecution case. Let us now scan the evidence on the record. P.W 10 was the then O.C. of Gumla P.S. who received a confidential information regarding the presence of the appellants along with the looted moter cycle of Gumla P.S. case No. 103/93 at Village Jorrag. Let us now scan the evidence on the record. P.W 10 was the then O.C. of Gumla P.S. who received a confidential information regarding the presence of the appellants along with the looted moter cycle of Gumla P.S. case No. 103/93 at Village Jorrag. P.W 10 has deposed that on this information he had constituted a raiding party consisting of the police force and went towards village Jorrag. P.W 10 has further deposed that when they were proceeding to village Jorrag they saw three persons on a black Rajdoot motor cycle and seeing the police force they turned their motor cycle towards Am Bagicha and absconding accused Sushil Tirkey was driving the said motor cycle and appellant Budhwa and Mahesh Oraon were the pillion riders on said motor cycle and there was a bag in the hand of appellant Budhwa and appellant Mahesh Oraon had a rifle in his hand and the said motor cycle was without any registration no. plate. He has also deposed that the police force headed by him was chasing the appellants aforesaid and at this appellant Mahesh Oraon fired from his rifle at the police force and absconding accused Sushil Tirkey also fired at them from his pistol and the police force was still chasing them and at this appellant Budhwa threw a bomb taking out from his bag and the police force had fired at the appellant in their self-defence and in spite of this they were fleeing away and after reaching Nowatoli village they left their motor cycle and started fleeing away to wards the forest on foot. His evidence is further to the effect that the police force headed by him was following and chasing them and the appellant Mahesh Oraon again fired from his rifle and absconding accused Sushil Tirkey made 2 or 3 rounds of firing from his pistol and police force again made firing in their defence. In para 4 he has deposed that appellant Mahesh Oraon was arrested by the police force and the appellant Budhwa, and Sushil Tirkey were being chased by the police force and appellant Budhwa Oraon again threw a bomb at the police force and they escaped in the forest. In para 18 of his cross examination he has deposed that one of the bombs thrown by appellant Budhwa Oraon had exploded at a distance of 10-15 yards from the police force. In para 18 of his cross examination he has deposed that one of the bombs thrown by appellant Budhwa Oraon had exploded at a distance of 10-15 yards from the police force. In para 15 of his evidence he has deposed that at the time of the firing no person of the village had come there. Ext. 6 is the S.D.E. entry no. 588 dated 27.5.1993 regarding the confidential information. He has also deposed that a seizure list was prepared after the search of appellant Mahesh Oraon which was witnessed by the witnesses who had assembled at the place of occurrence thereafter. P.Ws. 1, 3, 4 and 9 are the police officials and the members of the raiding party and they have materially corroborated the testimony of P.w. 10, the informant. P.w. 8, Sahajanand is also a police official and the member of the raiding party and he has participated in chasing the appellants. He is also the I.O. of this case. He has deposed that when the police raiding party reached near village Jorrag both the appellants along with absconding accused Sushil Tirkey were seen on a Rajdoot motor cycle and seeing the police force the said motor cycle took a turn towards Am Bagicha and the said motor cycle was being driven by absconding accused Sushil Tirkey and both the appellants were pillion riders and appellant Budhwa Oraon was sitting in the middle with a bag and appellant Mahesh Oraon had a country made rifle in his hand and in course of chase Budhwa Oraon threw a bomb which had exploded and appellant Mahesh Oraon had fired from his rifle and absconding accused Sushil Tirkey also fired from his pistol and the police force also fired at them. He has also deposed that thereafter Sushil Tirkey and other appellants left the motor cycle near the house of Kartik Oraon and started fleeing away towards the forest and they were followed and again appellant Budhwa Oraon threw a bomb which did not explode and again firing was made by the police force and the appellant Mahesh Oraon raised his hand and surrendered and he was apprehended and other co-accused persons fled away towards the jungle. His evidence is further to the effect that Mahesh Oraon was searched in presence of the witnesses of the search and seizure and a loaded country made rifle with 315 cartridge besides empty cartridge from his pocket and one pass book of one Mahto Oraon were recovered from his possession and the seizure list was prepared which is Ext. 3 in this case. He has further deposed that the recovered fire arm was sent to the ballistic expert and the report of the ballistic expert is Ext. 5. He has also deposed that the motor cycle and the particles of the exploded bomb besides one unexploded bomb were also seized from the place of occurrence. P.W. 8 has also materially corroborated the testimony of P.w. 10, the informant and other witnesses of the raiding party referred to above. P.w. 2 is the Sergeant Major and ballistic expert and he has examined the seized loaded country made rifle and also the empty cartridge and his report is Ext. 1 in this case. In para 2 of his evidence he has deposed that the seized rifle was a country made rifle which was loaded with 315 cartridge and the said rifle was in working order. He has also deposed that the empty cartridge was of .315 bore. In para 5 of his cross examination he has deposed that the seized articles have been sent to him under the sealed cover. In course of his evidence he has identified the aforesaid articles which are material exhibits in this case. Therefore, the testimony of P.W 2 establishes the fact that the recovered loaded rifle was in working order, P.Ws. 6 and 11 are the witnesses of the seizure. P.W. 6 has deposed in his examination in chief that he has put his signature on the seizure list and in his presence. P.W 11 has put his L.T.I.. His signature is Ext. 2. P.W. 11 the other witness of seizure has also deposed that seizure was made in his presence and he has put his L.T.I. on the seizure list and P.W 6 has put his signature thereon. However, both the witnesses in their cross examination have deposed that they have put their signature and L.T.I. in the P.S. and the contents of the seizure list were not read over to them. However, both the witnesses in their cross examination have deposed that they have put their signature and L.T.I. in the P.S. and the contents of the seizure list were not read over to them. The evidence of seizure list witnesses appearing in their cross examination are fit to be brushed aside in view of the overwhelming reliable evidence on the record that the seizure list was prepared at the place of the occurrence and both the witnesses of the seizure were present there. It therefore appears from the evidence on the record that in the raid appellant Mahesh Oraon was apprehended by the police raiding force headed by the informant at the place of occurrence with the loaded country made rifle and the said loaded rifle was in working order and appellant Budhwa had threw bombs twice from his bag and had escaped in the forest. It is also established that Suhsil Tirkey had left the motor cycle in the village while escaping and the said motor cycle was also recovered and he has also fired from his country made pistol. Therefore, the evidence on the record clearly establishes the prosecution case beyond all shadows of reasonable doubts and the evidence of the official witnesses are quite credit-worthy and reliable, In view of the legal and reliable evidence on the record of the police official witnesses referred to above the non-examination of any person of the vicinity of the place of the occurrence cannot be said to be a lacuna of the prosecution case in the facts and circumstances of the case specially when there is evidence on the record to show that none of the villagers had come to the place of occurrence during the commission of the occurrence. It is also apparent from the evidence on the record that at the time of the seizure the two witnesses of the seizure had voluntarily came to the place of occurrence and in their presence the seizure has been made. In view of the legal and reliable evidence on the record it can never be said that the police official witnesses are partisans and interested witnesses and their testimony in the fact and circumstances of this case cannot be brushed aside. Therefore, I see no substance in the submission put forward on behalf of the appellant. In view of the legal and reliable evidence on the record it can never be said that the police official witnesses are partisans and interested witnesses and their testimony in the fact and circumstances of this case cannot be brushed aside. Therefore, I see no substance in the submission put forward on behalf of the appellant. Some minor inconsistencies and discrepancies have occurred in the testimony of the official witnesses but these inconsistencies and discrepancies are not at all sufficient to doubt the presence, of the official witnesses at the place of the occurrence and their participation in apprehending the appellant and these discrepancies are not of such a magnitude to cast a cloud of suspicion to the creditability of their evidence as well as of the prosecution case. The learned court below has meticulously considered the evidence on the record and has rightly come to the finding of the guilt of the appellant in this case. The sentences awarded to the appellants in the facts and circumstances of this case cannot also be said to be excessive. Therefore, I see no illegality or any irregularity in the impugned judgment and order of the learned court below requiring an interference therein. 11. There is no merit in this appeal and it fails. The impugned judgment and order of the learned court below is hereby upheld. The appeal is hereby dismissed.