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2003 DIGILAW 617 (JHR)

Khaita Oraon v. State Of Bihar (Now Jharkhand)

2003-05-14

LAKSHMAN URAON, VIKRAMADITYA PRASAD

body2003
JUDGMENT Vishnudeo Narayan, J. 1. The appellants named above have preferred this appeal against the impugned judgment and order dated 4.5.1990 passed in S.T. No. 94 of 1985/T.R. No. 7 of 1966 by Shri Damodar Prasad, Additional Judicial Commissioner, Ranchi whereby and whereunder all the appellants were found guilty for the offence punishable under Sections 302/34 and 201/34 of the Indian Penal Code and they were convicted and sentenced to undergo RI for life for the offence under Section 302/34 of the Indian Penal Code but no separate sentence was imposed against them for the offence under Section 201/34 of the Indian Penal Code. 2. The prosecution case has arisen on the basis of the FIR (Ext. 4) of PW 13 Lauwa Oraon, the informant lodged before Kanke Police Station on 28.2.1980 regarding the occurrence which is said to have taken place on 27.2.1980 at about 19.00 hours in village Manha P.S. Kanke, District Ranchi regarding the commission of the murder of his brother Manna Oraon. 3. The prosecution case, in brief, is that the informant along with Manna Oraon, the deceased of this case and Dhela Oraon (since dead) had gone to Jatlu Lohar, at Manha Tand Tola at about 16.00 hours on Wednesday i.e. 27.2.1980 for getting their respective furrow sharpen and Manna Oraon after sharpening his furrow returned from there as he had to carry his cattle. It is alleged that the informant and Dhela Oraon aforesaid were returning to their village together with their furrows at about 19.00 hours after 10-15 minutes to the departure of Manna Oraon and at that time it was a moonlit night and when they reached in the eastern side of the village near a hut used for worship he found several persons of the village playing with lathi and when he was on the village road near the said hut he heard the cry of Manna Oraon aforesaid to save and rescue him and saw all the appellants carrying Manna Oraon with them and due to fear he along with Dhela Oraon did not go there and returned to their house and told his neighbours, namely, Pw 4. Malha Oraon, PW 2, Chakia Urain, PW 5. Malha Oraon, PW 2, Chakia Urain, PW 5. Bishun Oraon and others regarding the incident and asked them to accompany him to the place of occurrence but they told the informant that it has already become night and it is not proper to go there in the night and Manna Oraon aforesaid shall be searched on the following morning. The prosecution case further is that the informant in the company of Dhela Oraon went near the hut aforesaid on the following morning in search of his brother Manna Oraon but he did not find him there and in course of search PW 5, Madra Oraon told him that Manna Oraon is dead and directed him to go to the police station. It is alleged that, thereafter, the informant and Dhela Oraon went to his younger brother, PW 10, Tunna Oraon in village Tamp and informed him about the incident. It is also alleged that there was enmity existing and alive between Manna Oraon aforesaid on the one hand and the appellants on the other hand and due to the said enmity the appellants have assaulted Manna Oraon and had concealed his dead-body somewhere. It is also alleged that he is on litigating terms with the appellants in respect of the land and a proceeding under Section 145 of the Cr PC is also subjudice between them. 4. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and that they have been falsely implicated in this case due to enmity which is existing and alive. 5. The prosecution has, in all, examined 14 witnesses to substantiate its case. PW 13, Lauwa Oraon is the informant and the brother of Manna Oraon, the deceased of this case. PWs 1, 2, 3, 4, 6 and 12 have turned hostile and they do not at all support the prosecution case. PW 5 has been tendered in this case. PWs 7, 8 and 10 are the hearsay witnesses of the occurrence in question. PW 9 and 10 are the witnesses of the Inquest Report. PW 8 and PW 3 are the witnesses of the seizure list which are Ext. 5 series and blood-stained earth as well as 25 lathis of small and big size besides artificial sword and one Dholak were seized as per Ext. PW 9 and 10 are the witnesses of the Inquest Report. PW 8 and PW 3 are the witnesses of the seizure list which are Ext. 5 series and blood-stained earth as well as 25 lathis of small and big size besides artificial sword and one Dholak were seized as per Ext. 5/1 and 5 respectively on which PW 8 Kauleshwar Mahto figures as witness and his signature thereon is Ext. 2 and 2/1. Ext. 5/2 is the seizure list regarding the recovery of a Labhandha of the size of 14 inch having blood stains thereon recovered from the house of appellant Bhikha Oraon. PW 11. Dr. R.S. Prasad has conducted the post-mortem examination on the dead-body of the deceased and the post-mortem report per his pen is Ext. 3 in this case. PW 14 is a formal witness who has proved the FIR (Ext. 4) and three seizure list Ext. 5 to 5/2. The IO has not taken oath in this case in support of the prosecution case. No oral and documentary evidence has been adduced on behalf of the defence. 6. The learned Court below has relied upon the solitary testimony of PW 13, informant read with the objective finding of the medical witness and come to the finding of the guilt of the appellants and convicted and sentenced them as stated above. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellants that there is no ocular witness of the alleged occurrence and PW 13, the informant has purposely set up himself as an ocular witness of the occurrence on the recovery of the dead-body of the deceased from the Nala in village Manha and has falsely implicated the appellants in this got up case due to enmity which is existing and alive between the parties prior to the occurrence. It has also been submitted that the solitary testimony of the informant uncorroborated immaterial particulars by any other evidence of any independent, competent and natural witness of the occurrence is replete with inherent improbabilities and on this score alone his solitary testimony is fit to be brushed aside. It has also been submitted that the solitary testimony of the informant uncorroborated immaterial particulars by any other evidence of any independent, competent and natural witness of the occurrence is replete with inherent improbabilities and on this score alone his solitary testimony is fit to be brushed aside. It has also been submitted that about 40 persons were playing lathi danda near the hut which is according to the prosecution case is the place of occurrence but none of them is coming forward to support the prosecution case which casts a cloud of suspicion to the very credibility of the prosecution case regarding the occurrence having taken place near the hut. It has also been submitted that the evidence of the informant to have seen, the appellants carrying Manna Oraon from a distance of 100 yards in the moonlit night and to have also identified them is highly improbable in the facts and circumstances of this case. Lastly it has been contended that the conduct of the informant as per his testimony is such that no reliance can be placed upon his testimony as an ocular witness of the occurrence and therefore, there is no iota of legal evidence at all on the record to support the prosecution case and the learned Court below has committed a manifest error in coming to the finding of the guilt of the appellants and, thus, the impugned judgment is unsustainable. 8. The learned APP has submitted that Manna Oraon, the brother of the informant was done to death and his dead-body Was recovered from the Nala near the Karanj tree in the village and there were several incised and lacerated injuries besides abrasion on the dead-body of the deceased and PW 13, the informant and Dhela Oraon were the ocular witnesses of the occurrence regarding carrying Manna Oraon by the appellant put Dhela Oraon has dead during the pendency of this case and he could not be examined in this case whereas PW 13 in his evidence on oath has materially supported the prosecution case and in the facts and circumstances of this case his testimony is worthy of credit. Lastly it has been submitted that though there is enmity between the parties but on this ground alone the testimony of the informant cannot be brushed aside as the informant will spare the real culprit and falsely implicate the appellants and viewed thus there is no illegality in the impugned judgment. 9. It is relevant to mention at the very outset that in this case there is a solitary testimony of PW 13, the informant as an ocular witness of the occurrence uncorroborated in material particulars by any natural, independent and competent witness of the occurrence in the background of admitted enmity existing and alive between the parties prior to the occurrence. Therefore, the solitary testimony of PW 13, the informant has to be scrutinized with care and caution but before that, it is proper to look into the evidence of the medical witness. PW 11, the medical witness has deposed to have conducted the post- mortem examination on the dead-body of the deceased on 29.2.1980 at 10.00 hours and has found the following ante mortem injuries :-- (a) Abrasions : (i) 1 x 2 x 1/2 cm back left hand (ii) 1 x 1 cm back left wrist (iii) 1 x 1 cm back left elbow (iv) Drag mark 12 x 8 cm left front chest (b) Incised wounds : (i) 9 x 2 x 4 cm left front neck directed inner side cutting the spine and the chord. (ii) 8 x 2 x 3 cm below the preceding wound and running parallel. (c) Lacerated wounds : (i) 3 x 2 cm on the left side of the head with depressed fracture. 3 x 2 cm left half of the head. (iii) 2 x 2 cm left half of the head. The medical witness has further deposed that abrasions and lacerated injuries aforesaid were caused by hard and blunt substance, may be by Lohbandhi lathi and incised injuries were caused by sharp cutting weapon such as "balua", "farsa" or dagger and the death of the deceased has been caused due to the incised wound appearing on the neck of the deceased which was sufficient to cause the death of the deceased in the ordinary course of nature. The postmortem report (Ext. 3) per pen of the medical witness corroborates his testimony. According to the averments made in the FIR (Ext. The postmortem report (Ext. 3) per pen of the medical witness corroborates his testimony. According to the averments made in the FIR (Ext. 4) on the alarms raised by Manna Oraon he saw all the appellants carrying him with them and he ran to his house out of fear along with Dhela Oraon. In the FIR there is no averment that the informant has seen the appellants assaulting Manna Oraon aforesaid. PW 13, the informant has deposed that while returning from the house of Jatlu Lohar he heard the cry of Manna Oraon when he has reached near the Karanj tree and he saw all the appellant tying Manna Oraon with Dhoti and carrying him. He has further deposed that he rushed to his house and told his neighbours aforesaid and they expressed their unwillingness to accompany him for making search of Manna Oraon and told the informant that search shall be made out in the morning. He has further deposed that in the morning in course of search he found blood fallen near the said hut and PW 6, Madra Oraon told him to go to the police station to inform about the occurrence. He has further deposed that dead-body of Manna Oraon was found in a ditch near the said Karanj tree west of the said hut. He has also deposed that 30-40 persons were playing lathi and danda near the hut at the time of the occurrence. In para 4 of his cross-examination he has deposed that it was a moonlit night and he had seen the appellants in the said moonlit night at a distance of 100 yards when they were tying Manna Oraon with Dhoti. It is pertinent to mention here that the alleged identification of the appellants from a distance of 100 yards in a moonlit night is definitely not probable. Furthermore according to the informant there were 30-40 persons playing lathi and danda near the hut where Manna Oraon was being carried away by the appellants but none of the aforesaid persons has come forward to support the case of the prosecution in respect thereof for the reasons best known to them. Furthermore according to the informant there were 30-40 persons playing lathi and danda near the hut where Manna Oraon was being carried away by the appellants but none of the aforesaid persons has come forward to support the case of the prosecution in respect thereof for the reasons best known to them. His evidence is further to the effect that his house is situated at a distance of 50 yards from the said hut and after going to his house instead of making a repot regarding the occurrence to the police station he took his meal and slept peacefully and comfortably and no attempt was taken by him or any member of his family for doing the needful in the matter. This conduct of the informant is not at all befitting and at the same time it is unbecoming of his being the full brother of Manna Oraon and this gives an inkling of the fact that the informant had no occasion at all even to witness Manna Oraon being carried by the appellants as alleged. In para 5 of his cross-examination he has further deposed that the appellants had carried Manna Oraon through the village and he had watched them till they were out of site. It is equally pertinent to mention here that the informant has not raised any alarms in course of occurrence as well as while Manna Oraon was being carried by the appellants through the village. This aspect of the matter further makes the evidence of PW 13, the informant highly improbable and equally unworthy of credit. The solitary testimony of PW 13, the informant stands uncorroborated by any other evidence of independent, natural and competent witness specially when there are 30-40 persons playing lathi-danda at the said hut. There is also total absence of any incriminating circumstances appearing on the record as per evidence of the informant giving an inkling of the fact regarding the complicity of the appellants as a participant in the occurrence as well as commission of the murder of Manna Oraon by them. Even PW 13, the informant has not whispered regarding any assault on the deceased by the appellants in his evidence on oath. Even PW 13, the informant has not whispered regarding any assault on the deceased by the appellants in his evidence on oath. Admittedly there is enmity existing and alive between the parties prior to the occurrence and furthermore the land of the informant and his brother Manna Oraon aforesaid are in the cultivating possession of the appellants much prior to this occurrence as a result of the 145, Cr PC proceeding terminating in favour of the appellants. Therefore, in the facts and circumstances of this case PW 13 cannot be termed to be an ocular witness and due to the enmity existing and alive all the appellants have been roped in this case falsely. And last but not the least there is no iota of legal evidence at all on the record that the appellants have carried the deceased as alleged and have committed his murder. The recovery of the dead-body of the deceased from the ditch near the Karanj tree as well as the blood stained earth does not ipso facto implicate the appellants as an assailants of the deceased. The Lohbandha lathi, artificial sword and a Bhala from the house of the appellants as per seizure list have no relevancy in this case as the said Lohbandha lathi alleged to have been containing blood stains thereon has not been sent to the Serologist for chemical examination to ascertain the existence of the human blood thereon. The IO has also not been examined in this case for the reasons best known to the prosecution and the appellants stand seriously prejudiced on this score as they could not elicit the facts in his cross- examination showing their innocence specially in view of the fact that the informant has denied to have stated before the IO in his statement under Section 161 of the Cr PC to have seem Manna Oraon fallen on the road which goes to Akhara. The learned Court below has committed a manifest error in relying upon the solitary testimony of the informant uncorroborated in material particulars which is replete with inherent improbabilities and the solitary circumstance of tying Manna Oraon with Dhoti and carrying him through the village by the appellant as deposed by the informant without raising any hue and cry by him is not a circumstance of unimpeachable character to lead unerringly and unmistakably to the hypothesis of the guilt of the appellants. The false implication of the appellants in view of the admitted enmity existing and alive between the parties prior to the occurrence cannot be totally ruled out in this case. The learned Court below has failed to scrutinize the evidence in proper perspective meticulously and has committed a manifest error in corning to the finding of the guilty of the appellant. Therefore, the impugned judgment is unsustainable. 10. There is merit in the appeal and it succeeds. The appeal is allowed. The impugned judgment is hereby set aside. The appellants are not found guilty to the charges levelled against them and they are, accordingly, acquitted. They are also discharged from the liability of their bail bonds. Lakshman Uraon, J. I agree.