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2006 DIGILAW 483 (JHR)

Somra Oraon v. State of Jharkhand

2006-04-27

D.P.SINGH

body2006
JUDGMENT : D.P Singh, J.-This appeal is directed against the judgment of conviction and order of sentence dated 16.11.2000 and 18.11 .2000 passed in Sessions Trial No. 512 of 1993/26 of 1994, whereby and whereunder the learned Additional Judicial Commissioner, Lohardaga held the appellant guilty under Sections 304(11) IPC and convicted and sentenced him to undergo RI for seven years. 2. The brief facts leading to this appeal are that one Mansa Oraon gave fardbeyan on 17.12.1992 at 18.15 hours to Lohardaga police that he was sleeping in his Sasural in the house of Dayanand Bhagat at village Hirhi, P.S. and district Lohardaga in the night of 15.12.1993 when all of sudden the appellant Somra Oraon alongwith one Gandra Oraon came inside and started assaulting him with lathi and spade resulting in several injuries on his body including a bleeding injury on the left leg. Thereafter he ran away to save his life and concealed himself in stack of straw at Tangratoli, wherefrom he was retrieved by the police. According to Mansa, the appellant had objections why he used to go to his Sasural. 3. On the basis of fardbeyan, Lohardaga P.S. Case No. 216/92 was registered and police investigated the case. In the meantime, the informant Mansa succumbed to his injury during treatment. As such police submitted charge-sheet against the appellant and Gandra Oraon under Sections 323 and 304 IPC. During the trial, co-accused Gandra Orao died and proceeding against him was dropped. The trial court after examining witnesses adduced on behalf of the prosecution, found and held the appellant guilty under Section 304(11) IPC and sentenced ~1im to serve RI for seven years. 4. This appeal has been preferred on the ground that the learned lower court has relied upon the evidence, which is not admissible in evidence. Learned counsel for the appellant submitted that there is no eye-witness of the occurrence and no circumstantial evidence has been brought on record to connect the appellant guilty under the alleged offences. It is further stressed that the learned lower court has relied upon the statement of the informant, who was not available for cross-examination and relying on this statement of informant under Section 32 of the Indian Evidence Act, the learned lower court has wrongly convicted the appellant. 5. It is further stressed that the learned lower court has relied upon the statement of the informant, who was not available for cross-examination and relying on this statement of informant under Section 32 of the Indian Evidence Act, the learned lower court has wrongly convicted the appellant. 5. According to the learned counsel for the appellant, the injuries found on the body of Mansa Oraon do not support the FIR regarding the nature of assault and the manner, in which the injury has been caused upon the deceased. The learned counsel pointed out that the deceased has received injury on his leg, whereas the post mortem report mentions that the death occurred due to injury on his head. As such, the entire prosecution story should have been disbelieved by the lower court. It has further been pointed out that other witness P.W.2 has formally proved the inquest report (Ext. 2). P.W.3 Sk. Salamat was the village Choukidar. who saw the deceased and informed the police, while PW 4, I.O. Asok Prasad Singh, has proved the fardbeyan and FIR as well as injury report of the deceased. It is pointed out that all these witnesses are not witnesses of the occurrence and, therefore, the petitioner Samra Oraon deserves to be acquitted of the charges. 6. Learned APP opposed this contention on the ground that the petitioner was involved in assaulting the deceased, which has been sufficiently proved in the alleged statement of the deceased made before the police and supported by the post mortem report. 7. I have gone through the evidence available on record and the arguments placed by the learned counsel for the appellant. In this case Mansa Oraon (deceased) has mentioned in his statement before the police that two persons including the appellant assaulted him. He further mentioned that he got a bleeding injury on his left leg with other injuries on his body. The post mortem report mentions that the deceased has got blood clots in subcutaneous tissues and after cutting the skull, blood clots was found in anterior cranial cavity. According to PW 1, Dr. M.N. Sen, the death was caused due to shock and haemorrhage on his head. It is further found that PW 2, Siaram Singh, S.I. of police, has prepared inquest report. PW 3, Sk. According to PW 1, Dr. M.N. Sen, the death was caused due to shock and haemorrhage on his head. It is further found that PW 2, Siaram Singh, S.I. of police, has prepared inquest report. PW 3, Sk. Salamat is the village Choukidar, who found the deceased concealing himself inside the stack of straw and informed the police. PW 4 is the I.O. As such, the evidence available on lower court records only mentions what they found after recording the statement of Mansa in the evening of 17.12.1992. 8. The trial court has discussed all these facts in his judgment and relying upon the last statement of the deceased under Section 32 of the Indian Evidence Act, convicted the appellant. According to the learned lower court, vide para 14, such statements do not require any corroboration. In this contention, learned counsel for the appellant submitted that even the informant has not mentioned regarding any injury on his head and as such, the reliance placed upon, on the statement of the deceased, by the learned lower court, is misplaced. 9. On careful consideration of the facts and circumstances, I find that the only evidence available before the lower court was the statement of Mansa Oraon (deceased) recorded by the police on 17.12.1992 and in this statement I do not find any indication that the deceased was given blow on his head by this appellant. In such view of the matter, where there is last statement of the deceased, precaution has to be taken before relying upon the statement. If the deceased was hit on his head with the intention to cause death, the deceased might have said like that. Further more, in such case where the motive has not been made out and death has occurred after one week of the actual occurrence, I find that the prosecution has not been able to prove that Somra Oraon was involved in alleged offence beyond all reasonable doubts. 10. Having regard to the above mentioned facts and circumstances, I find that this appeal has got merit. Accordingly, this appeal is allowed and order of conviction and sentence passed against the appellant is hereby set aside. The appellant is on bail, he is discharged from the liability of bail bond.