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2003 DIGILAW 241 (JHR)

Jageshwar Oraon v. State of Bihar (Now Jharkhand)

2003-02-21

LAKSHMAN URAON, VISHNUDEO NARAYAN

body2003
Judgment Lakshman Uraon, J.- The instant appeal arises out of the judgment and order of conviction and sentence dated 26th, September, 1995, passed by Shri Gopal Prasad, learned 6th Additional Sessions Judge, Palamau at Daltonganj, Camp-Latehar, in Sessions Trial No. 38 of 1992, whereby and whereunder, the appellants have been convicted under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The prosecution case, based on the basis of Fard-beyan (Ext.5) of the informant Biru Uraon (PW 1), recorded on 12th May, 1990 at 9.00 a.m. at Village-Sinjo Tola-Keri Mahua, by S.I. A. Nasar, Officer-in-charge, Manika Police Station, is that in the last night i.e. 11.5.1990 at about 8.00 a.m. the informant was sitting at his home after taking meal. His father Parmeshwar Oraon (deceased) was sleeping in the courtyard. His wife Sukni Orain (PW 2) and• mother Bhukhli Orain (deceased) were also sitting in the courtyard. At that time Kaila Oraon, son of his uncle (appellant no. 1 Jageshwar Oraon) died due to illness. Females of his house started weeping and crying in the courtyard. The courtyard of the informant and the courtyard of his uncle is common. The members of the family of the informant did not go to the house of the appellant only because there was long standing enmity regarding land dispute, pending between them. At that time, Villagers Lal Chand Oraon, Shyam Lal Oraon and Ram Briksh Oraon along with other females of the village were also there. Appellant Jageshwar Oraon was giving a Lalkar that his son was caused to death by Parmeshwar Oraon (deceased) due to playing exorcism on his son. He ordered his daughter-in-laws i.e. wife of Bino Oraon and Ram Kishun Oraon to bring Prameshwar dragging in his house. Both the daughter-in-laws took Parmeshwar dragging from the courtyared inside their house. Bino Orain (appellant no.3) and Ram Kishun Oraon (appellant no.2) pushed and pulled Parmeshwar and brought him out in their Angan. They were asking Parmeshwar to get Kaila Oraon alive otherwise let he also be murdered and his dead body be kept by the side of the dead body of Kaila Oraon. On these orders, all the three appellants, namely, Jageshwar Oraon and both his sons (appellant no. 2 Ram Kishun Oraon and appellant no. 3 Bino Oraon) assaulted on the head of Parmeshwar Oraon with Tangi and undried wooden flanks (Danda). On these orders, all the three appellants, namely, Jageshwar Oraon and both his sons (appellant no. 2 Ram Kishun Oraon and appellant no. 3 Bino Oraon) assaulted on the head of Parmeshwar Oraon with Tangi and undried wooden flanks (Danda). When father of the informant fell down, then appellant no.1 Jageshwar Oraon crushed his head with wooden log. When Bhukhli Orain, mother of the informant, went to save him, then she was also assaulted on her head in similar manner, breaking her head. She also fell down and died. The appellants dragged both the dead bodies from Angan and took them inside their home and laid them by the side of the dead body of Kaila Oraon. Out of fear of being murdered, the informant fled away from the back door. In the morning he informed the Chowkidar Mangal Singh (PW3) whereupon he sent someone else to inform the police at the Police Station and he came to the house of the informant where the dead bodies were found. On the basis of the Fard-beyan (Ext.5) case was registered and formal F.I.R. (Ext.3) was drawn up. After investigation, the I.O. submitted chargesheet against Jageshwar Oraon, Ram Kishun Oraon, Bino Oraon, Laldeo Oraon, Shyam Lal Oraon and Ram Briksh Oraon, showing Rita Devi and Karmi Devi as absconders. 3. The learned 6th Additional Sessions Judge, Palamau at Daltonganj, Camp Latehar, framed charges under Sections 302 and 148 of the Indian Penal Code against these appellants and charges under Section 302/149, 302/114 and 147 of the Indian Penal Code were framed against Laldeo Oraon, Shyam Lal Oraon and Ram Briksh Oraon. 4. The prosecution examined altogether ten witnesses in order to prove the charges levelled against the accused persons. PW 1 Biro Oraon is the informant, PW2 Sukni Devi is his wife whereas PW3 Mangal Singh is the Chowkidar, who was informed by the informant that his parents had been murdered. He went to the house of Biro and saw the dead bodies of his parents in the house of appellant Jageshwar Oraon, whose heads were crushed. He did not go to the Police Station to inform the police, whose house is at a distance of half kilometer away from the house of the informant. PW4 Kharidan Bhuiyan and PW5 Kali Singh have deposed nothing about the alleged occurrence. He did not go to the Police Station to inform the police, whose house is at a distance of half kilometer away from the house of the informant. PW4 Kharidan Bhuiyan and PW5 Kali Singh have deposed nothing about the alleged occurrence. PW6 Ram Nandan Yadav is the seizure list witness in respect of two undried wooden flanks and one blood stained Tangi, which were seized and seizure list was prepared en which he signed (Ext.1/1). PW7 is the witness on inquest reports, prepared in his presence in respect to the dead bodies of Parmeshwar Oraon and his wife Bhukhli Orain, in carbon process by the I.O. Abu Nasar separately, in presence of him and another witness Susbedar Oraon, who signed on them (Exts.2 and 2/1 respectively). The inquest reports were prepared at the place of occurrence. He had also not gone to inform the police to the Police Station. PW 8 Baleshwar Singh, a formal witness, has proved the formal F.I.R. (Ext.3) in the pen and signature of S.1. laxmi Narayan Singh, Officer-in-Charge, Manika Police Station. PW9 Dr. Siddhnath has conducted the post-mortem examination on the dead bodies of Parmeshwar Oraon and Bhukhli Orain on 12.5.1990 at about 4.30 p.m. and 4.10 p.m. respectively and submitted Post Mortem Reports (Exts.4 and 4/ 1 respectively). PW 10 Sidheshwar Singh has proved the Fard-beyan (Ext.5), recorded by the Officer-in-charge A. Nasar on 12.5.1990. 5. learned court below relied on the evidence of the eye witnesses i.e. PW1 informant and his wife PW2 Sukni Devi, corroborated by the Medical evidence PW9 Dr. Siddhnath and convicted these appellants under Section 302/34 of the Indian Penal Code whereas he has acquitted three accused, namely, Laldeo Oraon, Shyam Lal Oraon and Ram Briksh Oraon. 6. Learned counsel for the appellants, assailing the judgment and order of conviction and sentence, has submitted that in this case the I.O. has not been examined and due to non-examination of the I.O., the appellants have been greatly prejudiced, as the place of occurrence of the alleged assault on the parents of the informant could not be proved. PW1 informant and his wife PW2 are interested witnesses, who have given contradictory statements in the prosecution case. They have falsely implicated these appellants only due to long standing land dispute. The independent reliable village witnesses have not been examined by the prosecution. PW1 informant and his wife PW2 are interested witnesses, who have given contradictory statements in the prosecution case. They have falsely implicated these appellants only due to long standing land dispute. The independent reliable village witnesses have not been examined by the prosecution. The genesis of the alleged occurrence was regarding exorcism, played by deceased Parmeshwar Oraon on the son of Jageshwar Oraon, namely, Kaila Oraon, resulting his death. This genesis has not been proved by any independent village witness. PW7 Rajeshwar Prasad Yadav (Mukhiya) was informed by the informant but he did not disclose the names of the appellants which shows That the informant and his wife later on implicated these appellants in this case. The doctor PW9 did not find any incised wound caused by Tangi blows on the heads of the deceased Parmeshwar Oraon and his wife Bhukhli Orain rather all the injuries were caused by hard and blunt objects and the wounds were found to be crushed one. Thus, in absence of any sharp cutting wound, the prosecution story regarding giving Tangi blows is falsified. The weapons i.e. blood stained Tangi and two undried wooden flanks were not produced in course of trial. The defence plea is that due to long standing land dispute, they have falsely been implicated in this case. The parents of the informant might have been murdered at a different place by unknown person. The doctor found the stomach of both the deceased empty though the informant and his wife have stated that they had taken meal and after that they were in their courtyard. 7. learned A.P.P. has submitted that PW1 and PW2 are the eye witnesses of the alleged occurrence and they were in the courtyard. They had taken their meal but they have not stated that their parents had also taken their meal. The courtyard of the appellants and the informant is common. Their houses are also situated side by side within ten steps. The dead bodies of the deceased were found inside the house of the appellants, which is clear from the fact that the I.O. who prepared inquest reports of both the deceased, has mentioned that the dead bodies were found in the house of the appellants. Their houses are also situated side by side within ten steps. The dead bodies of the deceased were found inside the house of the appellants, which is clear from the fact that the I.O. who prepared inquest reports of both the deceased, has mentioned that the dead bodies were found in the house of the appellants. PW3 Mangal Singh (Chowkidar) and PW 7 Rajeshwar Prasad Yadav (Mukhiya) had not gone to the police station to inform the police rather the Chowkidar sent some one to inform the police. When the police came to village-Sinjo Tola-Keri Mahua, it recorded the Fardbeyan of the informant on 12.5.1990 at 9.00 p.m. and the formal F.I.R. was drawn on the same day at 12.30 and was sent to the court through special messenger, which was received in the court on 13.5.1990. The evidence of PW1 and PW2 regarding assault with Tangi and undried flanks on the heads of the deceased have been corroborated by the evidence of Dr. Siddhnath (PW9), who conducted the postmortem examination and found injuries only on the heads, caused by hard and blunt substance, that may be wooden kachra and blunt portion of Tangi. He found the heads of both the deceased crushed, which corroborated that when the parents of the informant fell down on being injured, then their heads were also crushed with wooden logs. On these grounds, the learned A.P.P. has submitted that the learned court below has rightly convicted and sentenced these appellants under Sections 302 and 148 of the Indian Penal Code. On the other hand, the other three accused who have been acquitted had not taken any part in assaulting the deceased, as stated by the eye witnesses PW1 and his wife PW 2, who were declared hostile on this point by the prosecution. 8. In the present case, the I.O. has not been examined. Hence I have to consider whether the appellants have greatly been prejudiced or not due to non-examination of the I.O. In the village, there are more than 100 houses but at the time of the alleged occurrence, as deposed by PW1 and PW2, they were not in their houses. The Village is situated in the Jungal and there is no means of livelihood except the forest produce. As such, off and on they leave their homes and go somewhere else for their livelihood. The Village is situated in the Jungal and there is no means of livelihood except the forest produce. As such, off and on they leave their homes and go somewhere else for their livelihood. At the time of the alleged occurrence, none of the villagers had gone to the place of occurrence. Appellant no. 1 is the uncle of the informant and the other two appellants are his cousin brothers. Both are living side by side, having common courtyard. Due to long standing enmity regarding land dispute. they were not on friendly terms. Even Kaila Oraon, son of appellant no. 1 Jageshwar Oraon, died due to illness, the informant and his family members did not go there. There is no evidence that other villagers had also assembled there except the three accused, who have been acquitted by the learned court below. On 12.5.1990 at about 8.00 p.m. the informant and his wife having taken their meal, were in their courtyard. Parmeshwar Oraon was also lying in his Angan whereas Bhukhli Orain, wire of Parmeshwar Orain, was sitting in the courtyard. When Kaila Oraon died, then appellant Jageshwar Oraon suspected Parmeshwar Oraon to have caused death of Kaila Oraon by playing exorcism. Therefore, Jageshwar Oraon asked his daughter-in-laws, namely, Rito and Karmi caught hold of Parmeshwar Omon and took him inside their home. Thereafter, appellant Jageshwar Oraon asked parmeshwar Oraon, his brother, to get Kaila Oraon alive otherwise he will also be killed and his dead body will be kept by the side of Kaila Oraon. The other two appellants, who are the sons of Jageshwar Oraon, assaulted him with fists and slaps and brought him in the Angan. Thereafter, all the three appellants Jageshwar Oraon, Ram Kishun Oraon and Bino Oraon assaulted on the head of Parmeshwar Oraon with Tangi and undried wooden flanks, as a result of which he fell down and died. As deposed by PW1 and PW2 when Bhukhli. wife of Parmeshwar Oraon, went to save her husband, then she was also assaulted with Tangi and undried wooden flanks on her head, as a result of which she also died. When both the deceased had fallen down on being injured, then also their heads were crushed with wooden logs and the dead bodies were dragged inside their home and kept by the side of the dead body of Kaila Oraon on the mat. When both the deceased had fallen down on being injured, then also their heads were crushed with wooden logs and the dead bodies were dragged inside their home and kept by the side of the dead body of Kaila Oraon on the mat. PW1 Biro Oraon and his wife PW2 Sukni Orain are the eye witnesses, who have fully corroborated the prosecution case, as stated by the informant in his Fard-beyan (Ext.5). PW 1 informed the Chowkidar Mangal Singh (PW3) and also 1re Mukhiya Rajeshwar Prasad Yadav (PW7), who have corroborated this fact that when they went to the house of the appellants, they saw the dead bodies of Parmeshwar Oraon and Bhukhli Orain, having their heads crushed. 9. PW 6 Ram Nandan Yadav is the seizure list witness in respect of blood stained Tangi and two wooden Kachras containing blood stains, having been seized in his presence and seizure list was prepared. The inquest reports were also prepared on which PW7 Rajeshwar Prasad Yadav and one Subedar Oraon signed. All these go to show that there is no dispute regarding the place of occurrence as the place from where the blood stained Tangi and wooden flanks were recovered is the house of the appellants. 10. Thus, I find that there is no dispute regarding the place where the occurrence took place, which has been proved by the ocular evidence of PW1 and PW2. They have not been cross-examined to contradict the place of occurrence where the dead bodies were found i.e. inside the house of the appellants and from their house material exhibits i.e. blood stained Tangi and blood stained wooden flanks were recovered and seized. 11. PW 9 Dr. Siddhnath on 12.5.1990 at 4.30 p.m. conducted the post-mortem examination on the dead body of Parmeshwar Oraon and found the following injuries on his person : (i) Rigor mortis were present all over the dead body (ii) Ante-mortem multiple bruises and fracture of skull bone associate with lacerated wounds were found over the head. (iii) On cutting the skull subdural haematoma was found. Face was badly crushed antemortemly, teeth were found broken, mandible was found fractured. These injuries were caused by hard and blunt substance, may be Lathi and back of Tangi. On opening, the heart chambers were found empty. Stomach was also found empty. (iii) On cutting the skull subdural haematoma was found. Face was badly crushed antemortemly, teeth were found broken, mandible was found fractured. These injuries were caused by hard and blunt substance, may be Lathi and back of Tangi. On opening, the heart chambers were found empty. Stomach was also found empty. The cause of death was shock due to the above injuries, within 24 hours from the time of post-mortem examination. He prepared Post-Mortem Report in his pen and signature (Ext.4). On the same day at 4.10 p.m. he conducted the post-mortem examination on the dead body of Bhukhli Orain and found the folowing injuries on her person: (i) Rigor mortis was present over the whole dead body (ii) Whole of the face and skull were badly crushed by antemortem multiple blows with hard heavy instrument (iii) The brain was found compressed and lacerated. (iv) There were multiple antemortem abrasions and bruises over different parts of the whole body He found the abdomen empty. The cause of death was shock due to the above injuries within 24 hours from the time of Post Mortem Examination report, submitted by him in his pen and signature (Ext.4/1). 12. When the Post Mortem Reports are considered, it is clear that the stomachs of both the deceased were empty at the time of the alleged occurrence. PW1 and PW2 who are the eye witnesses have not stated that the deceased had taken their meals. There is no suggestion or cross-examination regarding taking of meal by the deceased along with the eye witnesses i.e. PW1 and PW2. The weapons used were heavy, hard and blunt. The doctor opined that the injuries can be caused by the back portion of Tangi and hard and blunt Kachra (wooden flanks) also. The time of death stands corroborated as per the Post Mortem Reports, which is within 12 hours, which corroborated that the alleged occurrence took place on 11.5.1990 at 8.00 p.m. Thus, there is no doubt about the time of the alleged occurrence and the manner of the alleged occurrence, as deposed by PW1 and PW2, corroborated by the doctor Siddhnath (PW9). 13. In view of the above considered facts, circumstances and evidence of the eye witnesses i.e. PW 1 and PW 2, I find that although they are interested witnesses but there is no contradiction in their evidence. 13. In view of the above considered facts, circumstances and evidence of the eye witnesses i.e. PW 1 and PW 2, I find that although they are interested witnesses but there is no contradiction in their evidence. On the other hand, their evidence regarding manner of the alleged occurrence and place of the alleged occurrence have been corroborated by the Village Chowkidar Mangal Singh (PW 3) and Mukhiya Rajeshwar Prasad Yadav (PW 7), ( who found the dead bodies inside the house of the appellants. They also found the heads of the deceased crushed. The I.O. has not been examined in this case and had he been examined, there would have been addition in the prosecution evidence. The inquest reports of the dead bodies of Parmeshwar Oraon and Bhukhli Oraon were prepared at the place of occurrence. Their dead bodies were found inside the house of the appellant Jageshwar Oraon. PW 1 and PW 2 have deposed that the dead bodies of their parents were laid by the side of the dead body of Kaila Oraon. Kaila Oraon had died his natural death and hence the dead body of Kaila Oraon might have been buried, which has not been brought on record as to how the dead body of Kaila Oraon was removed from the house of Jageshwar Oraon. As Parmeshwar Oraon and his wife Bhukhli Orain were done to death as a result of assault with back portion of Tangi and wooden flanks and died at the place of occurrence and their dead bodies were dragged inside the house of the appellants, hence these dead bodies could not be removed. Thus, due to non-examination of the village independent witnesses, the prosecution case has not suffered from any legal infirmity. I, therefore, find that the learned court below has rightly come to the conclusion while convicting these appellants under Section 302/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life. 14. In the result, this Criminal Appeal is dismissed and the conviction and sentence, passed by the learned court below, is hereby affirmed. As all the appellants are on bail, their bail bonds are cancelled and they are directed to surrender in the court below to serve their sentences. At the same time, the learned court below is also directed to take all coercive steps to apprehend these appellants/convicts to serve their sentences. As all the appellants are on bail, their bail bonds are cancelled and they are directed to surrender in the court below to serve their sentences. At the same time, the learned court below is also directed to take all coercive steps to apprehend these appellants/convicts to serve their sentences. Vishnudeo Narayan, J.-I agree.