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Jharkhand High Court · body

2007 DIGILAW 501 (JHR)

Sukra Oraon v. State of Jharkhand

2007-06-22

D.G.R.PATNAIK, D.K.SINHA

body2007
Judgment D.K. Sinha, J.- The sole appellant, Sukra Oraon, has preferred this appeal against the judgment of his conviction under section 302 of the Indian Penal Code and order of rigorous imprisonment for his life passed by the 1st Additional Sessions Judge, Gumla in Sessions Trial. No. 213 of 1997 on 8.6.2001 and 1.6.2001 respectively. 2. The prosecution was launched on the basis of the fardbeyan of the informant, Jatro Orain (P.W. 4) recorded on 21.5.1997 at about 10 a.m. at village Naditoli within Gumla police station. She narrated in her fardbeyan that in the night intervening 20/21.5.1997 her son, Etwa Oraon (since deceased) after having his supper went to sleep in the courtyard whereas the informant (mother of the deceased) retired to bed at the door of the cattle shed. In the midnight at about 12 O'clock she woke up on hearing some sound and found the appellant, Sukra Oraon assaulting his son Etwa Oraon as 'a result of which he started screaming, whereupon the assailant-appellant scolded him in abusive language to keep quiet and escaped. She Identified Sukra. Oraon by seeing him as also from his voice at the time of assault and Immediately rushed there and found excessive bleeding from her son's head. He was trembling and within a short while he succumbed to his injury. She raised alarm and pursuant to that, the co-villagers Jhirga Oraon (P.W. 1), Changre Oraon (P.W. 2), Bandhan Oraon (P.W. 3) and Fagua Gope (not examined) arrived at the scene to whom she narrated the occurrence and they found her son dead sustaining injuries. Disclosing the genesis of the occurrence, the informant narrated that in the morning of 17.5.1997 (Saturday) the appellant, Sukra Oraon after entering into her house had removed Rs. 600/- and a by cycle stealthily and on the same day he was apprehended with the cycle by the witnesses for which a Panchayati was convened in the village but he did not appear in Panchayati. Rather, he escaped giving out threat that he would commit their murder and also that he would set their house on fire. On the basis of such threat of the appellant the informant had reason to believe that the appellant, Sukra Oraon committed murder of her son Etwa Oraon by inflicting injury with the sharp cutting weapon. On the statement of Jatro Orain (Ext. On the basis of such threat of the appellant the informant had reason to believe that the appellant, Sukra Oraon committed murder of her son Etwa Oraon by inflicting injury with the sharp cutting weapon. On the statement of Jatro Orain (Ext. 2) Gumla P.S. Case No.108 of 1997 was registered and Gumla Police proceeded with the investigation. The police prepared the inquest report of the dead body of the deceased and sent the dead body for post mortem examination. After investigation the police submitted charge-sheet for the offence under section 302 of the Indian Penal Code and accordingly, charge was framed against the appellant under section 302 of the Indian Penal Code by the trial court to which the appellant pleaded not guilty and claimed to be tried. 3. Mr. B.M. Tripathy, the learned counsel for the appellant submitted that the appellant was convicted on the basis of the solitary testimony of P.W. 4 i.e. the mother of the deceased who claimed' to have Identified the assailant In the dead of night from a considerable distance without disclosing any source of Illumination. Implication of the appellant in the instant case by the informant (P.W. 4) is based upon conjecture and suspicion as she woke up from her slumber on hearing certain sound and by that time the assailant had already escaped. Though she claimed to identify the appellant as assailant with attribution that he dealt several blows from his weapon but conspicuously the nature of weapon used was not mentioned in her fardbeyan and the trial court failed to take into consideration this aspect. The complicity of the appellant has been speculated by the informant as the perpetrator of the crime only on account of previous enmity between the appellant and Etwa Oraon. Mr. Tripathy emphasized that the other witnesses viz. P.Ws. 1, 2, 3 and 6 are hearsay witnesses who 'derived information none other than the informant but for want of corroborative evidence of the so-called eye witness P.W. 4 it was not safe for the trial court to sustain the conviction of the appellant. The Investigating Officer did not collect any material as to whether any Panchayati was actually held in the village in respect of recovery of the alleged stolen cycle of the deceased from the possession of the appellant. 4. Mr. The Investigating Officer did not collect any material as to whether any Panchayati was actually held in the village in respect of recovery of the alleged stolen cycle of the deceased from the possession of the appellant. 4. Mr. Tripathy further pointed out that the place of occurrence as alleged by the informant could not be established by the Investigating Officer in his objective finding as there was no seizure of blood stained mat from the courtyard on which Etwa Oraon was sleeping and sustained bleeding injury from his head on account of assault. Even no lamp or earthen lamp was seized from the house of the informant. Mr. Tripathy exhorted that the witnesses produced on behalf of the prosecution were partisan who shared the interest of the informant by narrating the version what they derived from her as such their testimony ought lo have been scrutinized by the trial court with due care and caution. Failure of Justice has been occasioned by not scrutinizing the testimony of P.W. 4 who claimed to be the solitary eye witness of the occurrence. 5. As many as 8 witnesses were produced and examined on behalf of the prosecution. Besides, the prosecution has proved the post mortem report (Ext. 1), Fardbeyan of the informant (Ext. 2) and the part of the case diary (Ext. 3). 6. P.W.1 Jhirga Oraon testified that in the night of occurrence he went to the house of Etwa Oraon (deceased) on hearing cry. He was followed by other witnesses viz. Fagua Gope and Changre Oraon and found the dead body of Etwa Oraon lying in the Dhaba (courtyard) just opposite the cattle shed and blood was coming out from his ear, nose and neck. On query, he was apprised by Jatro Oraine that the •appellant, Sukra Oraon fled away after committing murder with knife. This witness further testified the genesis that about 8 days prior to the occurrence, Sukra Oraon (appellant) had stolen cycle from the house of the informant for which a Panchayati was convened by Jatro Oain but Sukra Oraon did not turn up there. He escaped after extending threat that he would kill the informant and her son. In the cross-examination the witness testified that at about 12 O'clock in the night of occurrence when he went to the house of Jatro Orain he found a lamp illuminating. He escaped after extending threat that he would kill the informant and her son. In the cross-examination the witness testified that at about 12 O'clock in the night of occurrence when he went to the house of Jatro Orain he found a lamp illuminating. He admitted being the close door neighbour of the informant. 7. P.W. 2 Changre Oraon made substantial development in his evidence by testifying that in the night of occurrence at about 12 O'clock when he carne out from his house to urinate, on alarm he went to the house of his neighbour Jatro Orain and found that Etwa Oraon was stabbed by Sukra Oraon and that the victim was trembling who succumbed his injuries. He further deposed by disclosing the genesis that Sukra Oraon had taken away the cycle and a sum of Rs.600/-from Etwa Oraon (since deceased). Though he had returned the cycle but money was not given and for that a Panchayati was held which was attended by his father but Sukra Oraon abstained by extending threat , that he would either kill them or set their house on fire. In the cross-examination the witness testified in respect of light for visibility at the time of occurrence that it was moonlit night. He further deposed that the appellant had already escaped before the arrival of the witnesses and that Etwa Oraon succumbed injuries after half an hour of their arrival. The witness further admitted that he could not have interaction with Etwa Oraon prior to his death. At the same time he denied having any talk with the informant in the said night in this connection. He admitted the informant to be his aunt. Finally the witness admitted that his statement was not earlier recorded by the police. From the statement of this witness we find that it is partly inconsistent with the statement of the informant P.W. 4, as he in her fardbeyan (Ext.2) narrated that the witnesses arrived only after her son succumbed his injuries and that she narrated the occurrence to the witnesses. We further find that the statement of this witness was recorded in the trial court without his statement recorded earlier by the Investigating Officer during investigation under section 161 Cr.P.C., leaving much room for deliberation, consultation and concoction. We further find that the statement of this witness was recorded in the trial court without his statement recorded earlier by the Investigating Officer during investigation under section 161 Cr.P.C., leaving much room for deliberation, consultation and concoction. He being the nephew of the informant and that his evidence is not consistent with the statement of other witnesses, we do not find his testimony worth of credence. 8. P.W. 3, Bandhan Oraon is also one of the witnesses who arrived at the place of occurrence on hearing cry and alarm of the informant. He testified that when he arrived at the house of Jatro Orain (informant) he found the appellant (Sukra Oraon) running away with Balua and dagger. He found Etwa Oraon dead and he was apprised by the informant that the appellant Sukra Oraon had committed murder of her son. He further testified that only few days prior to the occurrence on Saturday, a cycle as well as Rs. 600/-in cash were stolen by the appellant from the house of Etwa Oraon. Though the cycle was recovered from Sukra Oraon but he did not return the money and for that a panchayati was held on Sunday. He abstained Panchayati extended threat that since he was insulted, he would commit murder of Etwa Oraon or set his house on fire. The dead body of Etwa Oraon was seized by the police and inquest report was prepared on which he put his signature as attesting witness. He admitted having married to the daughter of the informant only a month ago. His house was situated at the distance of about 2 k.m. towards south from the house of the informant and he had also heard cry of his mother-in-law (Informant). He proceeded with his wife to his matrimonial home but did not come across anyone on the way yet he claimed having seen Sukra Oraon (appellant) in the house of Jatro Oraine when he arrived thereafter half an hour. He testified that other witnesses were there from before and that he found injuries on the head (front and behind) and on the occipital region of the body of Etwa Oraon He admitted having no interaction with his mother-in-law (informant) in the said night. He testified that P.W. 6 Goyo Oraon had been to the police station in the night but the police came at about 11 O'Clock noon on the next day. He testified that P.W. 6 Goyo Oraon had been to the police station in the night but the police came at about 11 O'Clock noon on the next day. He admitted having found the dead body in the court-yard. Upon careful consideration we find that this witness has made substantial development by deposing that when he arrived at the house of his mother-in-law after half an hour cry covering the distance of about 2 k.m. he witnessed Sukra Oraon there. His testimony in our view is in the nature of a partisan witness• with unusual human behaviour which does not inspire confidence. A culprit after commission of murder can not wait for half an hour at the place of occurrence for the witnesses to come and spot him, in the usual course. In the cross examination the witness deposed that his statement was not recorded under section 161 Cr. P.C. by the police before his evidence in the court. 9. Jatro Orain (P.W. 4) is the informant who has claimed to be the solitary eye witness of the occurrence. She testified that the occurrence took place a year ago in the month of "Jyesth", Tuesday at about 12 O'clock in the night when his son was sleeping opposite cattle shed whereas she was sleeping in the courtyard and that a lamp was illuminating towards south. On the sound of foot steps, she woke up and identified the appellant, Sukra Oraon assaulting her son with Basula and knife. She went there and found her son trembling and died instantaneously. His ears, eyes and neck were injured. On her alarm the witnesses Jhirga Oraon, Fagua Gope, Changre Oraon and Bandhan Oraon arrived at the scene to whom she narrated the occurrence. Disclosing the genesis she deposed that only few days prior to the alleged occurrence i.e. on Saturday the appellant Sukra Oraon had stolen a cycle and Rs. 600/- in cash of her son, Etwa Oraon. The stolen cycle was recovered by her son from the possession of the appellant Sukra Oraon but he did not return the money. In this connection a Panchayati was convened on Sunday on the instance of her son (since deceased) but the appellant did not turn up, rather his father represented. 600/- in cash of her son, Etwa Oraon. The stolen cycle was recovered by her son from the possession of the appellant Sukra Oraon but he did not return the money. In this connection a Panchayati was convened on Sunday on the instance of her son (since deceased) but the appellant did not turn up, rather his father represented. She further testified that the appellant by abstaining from Panchayati had threatened that he would either kill Etwa Oraon or would set his house on fire. The police was informed. Pursuant to such information the police arrived there and her statement was recorded which was read over and she put her thumb impression. She identified the appellant in the Dock. In the cross-examination she deposed that the cattle shed was situated towards south of the courtyard and she used to retire to bed at about 12 O'clock in the night. The door of the cattle shed was open towards the adjacent room and a lamp was burning in the room. The door of the room was open. She testified that the eyes of her son was damaged by blowing. Though she raised alarm at the time of assault but the witness did not come immediately. Yet they arrived only after escape of the appellant from the place of occurrence when she went near her injured son. On hearing alarm, the witness, who came there first point in time was her son-in-law Changre Oraon. She testified that the house of the appellant, Sukra Oraon was situated in her neighbour and that no case was instituted in the police station in respect of theft of cycle. She claimed having her good visibility in the night. Finally she deposed that her son was wearing Janghia (underwear) at the time of occurrence. 10. P.W. 5, Dr. A.D.N. Prasad while was posted as Civil Asstt. Surgeon at Sadar Hospital, Gumla held post mortem examination on the dead body of Etwa Oran on 25.5.1997 and found the following: Rigor mortis was present in all four limbs, Bleeding from mouth and nostrils was seen. On dissection 1. Sharp cutting over the left Mostoid region, obliquely placed 3" x 1" X 2" with laceration of the brain and the Medula oblongata on left side. Depressed fracture of the occipital bone. On dissection 1. Sharp cutting over the left Mostoid region, obliquely placed 3" x 1" X 2" with laceration of the brain and the Medula oblongata on left side. Depressed fracture of the occipital bone. In the opinion of the witness, cause of death was head injury as above, resulting into haemorrhage and shock which ultimately led to cardio respiratory failure. The injury was ante mortem in nature caused by sharp cutting weapon like Balua. Time elapse since death- was assessed between 24 to 36 hours. He proved the post mortem report Ext. 1. In the cross-examination the witness testified that after sustaining such injury a person can survive only for 15 to 30 minutes. It is evident from the post mortem report that the single injury ante mortem in nature was caused by sharp cutting weapon and cause of death was head injury as aforesaid. 11. P.W. 6 Goyo Oraon is the full brother of the deceased. He testified that his brother Etwa Oraon was killed in the night of Tuesday perhaps 18 months ago and it was the month of Jayesth. The witness admitted that he used to live separately from the house of, his brother (deceased) and mother (informant) at some distance. Disclosing the genesis, the witness corroborated that the appellant had stolen a cycle and Rs. 600/- of his brother Etwa Oraon. Though the cycle was recovered from the possession of the appellant but money was not returned for which Panchayati was held in the village but the appellant Sukra Oraon abstained. The witness further deposed that Sukra had extended threat that he would either kill both of them or would set their house on fire. The statement of this witness is very important in the sense that he claimed having inter action with the appellant in the market on Sunday where the appellant had extended threat that he would commit murder of both or would set their house on fire. He was informed by his brother-in-law Bandhan Oraon about the murder and upon such information when he came to the place of occurrence, his mother apprised that while she was sleeping in the courtyard and Etwa Oraon was sleeping in the Veranda, the appellant Sukra Oraon entered and committed murder of Etwa Oraon to whom she identify. He admitted his thumb impression on the statement of his mother recorded by police as the attesting witness. He admitted his thumb impression on the statement of his mother recorded by police as the attesting witness. The inquest report of the dead body of Etwa Oraon was prepared and he admitted his thumb impression thereon. In the cross-examination the witness admitted having not informed the police about the threat extended by the appellant, Sukra Oraon that he would commit murder. On the other hand he claimed having narrated the matter in the village. He had neither participated in the Panchayati nor he informed the Panchayat about such threat extended by the appellant. 12. P.W. 7 Brajendra Bahadur Singh is the Investigating Officer of the case who testified that on 21.5.1997 while he was posted at Gumla Police station as S.I. of police, he heard rumour arid pursuant to that, he went to the village Naditoli and recorded the Fardbeyan of the informant (Ext. 2). He admitted having prepared inquest report but the inquest report was not produced in the court during his deposition though he admitted that same was attested by Fagua Gope and Bandhan Oraon. The dead body of the victim was sent for post mortem examination to the Sadar Hospital, Gumla and thereafter he visited the place of occurrence. He observed that the place of occurrence was the courtyard of the house of the informant at village Naditoli. The informant's house was situated at the outskirt of the village on the bank of the river. He found the room situated towards east of the courtyard made of clay. The house of the appellant was situated towards south of her courtyard. He collected blood stained earth from the place of occurrence in presence of the witnesses to which a seizure list was prepared duly attested by Fagua Gope and Bandhan Oraon by putting their thumb impressions. Yet blood stained earth was not produced in the court. The witness recorded the statements of the witnesses and submitted charge-sheet against the appellant. In the cross-examination, the witness admitted having made entry in the station diary at the police station on the information received on rum our. He visited the place of occurrence at about 10 a.m. and found that the dead body was lying on a mat in the courtyard of the informant. In the cross-examination, the witness admitted having made entry in the station diary at the police station on the information received on rum our. He visited the place of occurrence at about 10 a.m. and found that the dead body was lying on a mat in the courtyard of the informant. The courtyard was surrounded by only two sides with single room towards east and north each and there were remains of dilapidated rooms towards west and north with easy access from that side. 13. P.W. 8, Raj Kishore Sahu is the formal witness who proved paragraphs 1 to 14 of the case diary (Ext. 3) in the pen and signature of Brajendra Bahadur Singh the then Officer In-charge of Gumla Police Station. In the cross-examination he admitted that the case diary was not written in his presence. 14. The appellant was examined and his statement was recorded under section 313 of Cr. P.C. The only question, which was put to him, was that he in the night of 20/21.5.1997 committed murder of Etwa Oraon by inflicting injury with the weapon while Etwa was sleeping in the courtyard and his reply was denial of guilt. The defence was denial of guilt and that he was not present on that date in the village. He came to know about the occurrence only when he returned back to the village. 15. From perusal of the impugned judgment it is evident that the learned trial court relying upon the statements of the P.W. 4 and P.W. 3 sustained the conviction of the appellant for the charge under section 302 IPC. 16. The trial court has given much important to the statement of P.W. 4 i.e. the mother of the victim without scrutinizing the consistency and authenticity of the fardbeyan recorded by the police at the first instance that the informant was sleeping at the door of the cattle shed whereas his son Etwa Oraon retired to bed after having his food by laying a mat in the courtyard in the night at about 12 O'clock. When she witnessed by raising her head on the sound of the foot steps entering in her courtyard, she found that the co-villager appellant, Sukra Oraon assaulting on the head of her son with the weapon as a _ result of which her son started screaming. When she witnessed by raising her head on the sound of the foot steps entering in her courtyard, she found that the co-villager appellant, Sukra Oraon assaulting on the head of her son with the weapon as a _ result of which her son started screaming. She further narrated in her Fardbeyan that the appellant Sukra Oraon while retreating asked her son Etwa Oraon in abusive language to keep quiet. She identified him by observation as also from his voice. No source of light was disclosed in her fardbeyan recorded by the police at the first instance. But in her substantive evidence before the trial court she changed the place by testifying that she was sleeping in the courtyard whereas her son (Etwa Oraon) was sleeping near opposite the cattle shed and that a lamp was burning there. She testified that when she woke up on the sound of the foot steps found Sukra Oraon assaulting her son with Balua and knife. She went there and found her son trembling and soon thereafter he died sustaining injuries on ears, eyes and neck. In the cross-examination she deposed that lamp was burning in the room but the door was open. The Investigating Officer in his objective finding observed that when he arrived at the place of occurrence he found the dead body lying in the courtyard on mat. In this manner we find that the statements of the solitary eye witness is not consistent in relation to the place of occurrence. She has admitted that lamp was burning in the room whereas she was sleeping on the Verandah of the cattle shed and that the victim was in slumber in the courtyard on a mat at some distance. In this manner she was sleeping between the light and deceased at some distance. She has simply narrated that the lamp was burning in the room but she did not claim to identify the assailant in the light of the said lamp which was burning far away from the place of occurrence where the deceased, Etwa Oraon was sleeping. Yet the witnesses are consistent that it was moonlit night. We further find that the P.W. 3, Bandhan Oraon in his deposition claimed having seen the appellant Sukra Oraon running away with Balua and Chhura when he arrived at the place of occurrence on hearing alarm. Yet the witnesses are consistent that it was moonlit night. We further find that the P.W. 3, Bandhan Oraon in his deposition claimed having seen the appellant Sukra Oraon running away with Balua and Chhura when he arrived at the place of occurrence on hearing alarm. But the informant (P.W. 4) is consistent that the witnesses arrived at the scene only after the appellant escaped. It is surprising that this witness heard alarm of his mother-in-law at the distance of about 2 K.M. and when he arrived there with his wife after half an hour he found the accused-appellant perhaps waiting for him and as such his version is not trustworthy. He was not interrogated by the police under section 161 Cr.P.C. and therefore, his statement in the court for the first time has got neither corroborative value nor evidentiary value. 17. The second circumstance, which the prosecution witnesses have consistently narrated is the genesis of the occurrence. The prosecution witnesses are consistent that only a few days prior of the alleged occurrence a cycle and Rs. 600/of Etwa Oraon was stolen by the appellant and though the stolen cycle was recovered from the possession of appellant but the stolen money was not returned for which a Panchayati was held but it was not attended by the appellant rather his father represented there. The witnesses are further consistent that the appellant had extended threat that he would either commit murder of Etwa Oraon or would set his house on fire. The prosecution is conspicuously silent as to in whose presence and at which place such threat was extended and how the witnesses including the informant (P.W.4) came to know about such threat extended by the appellant. We do not find any material on the record that the allegation of such theft was either reported to the police nor to the Panchayati as was required to be produced by the prosecution in support of such genesis. Even no document was prepared or any resolution was passed in the Panchayat in respect of such theft. We are, therefore, of the opinion that the prosecution miserably failed to prove a complete chain of circumstances with no other hypothesis except the guilt of the appellant in commission of murder of Etwa Oraon. Even no document was prepared or any resolution was passed in the Panchayat in respect of such theft. We are, therefore, of the opinion that the prosecution miserably failed to prove a complete chain of circumstances with no other hypothesis except the guilt of the appellant in commission of murder of Etwa Oraon. We have taken note of the fact as it appeared in the statement of the P.W. 4 that the appellant inflicted injuries on Etwa Oraon by dealing repeated blows with Balua and Knife but no corresponding, injuries caused by Balua and knife were found on the person of the victim in the post mortem report. The doctor found single injury caused by the sharp cutting weapon only on the head of the deceased Etwa and not on his eyes, ears and neck whereas it was alleged in her statement before the trial court that eyes of her son were damaged by blowing blunt object. We are therefore, of the considered view on careful examination of the informant P.W. 4, Jatro Oraine that she could not be the eye witness of the occurrence on the following points viz. (i) Absence of source of light for identification of the assailant, (ii) No corresponding injuries found on the dead body as per her narration and, (iii) In the opinion of the doctor the victim could have survived for 15 to 20 Minutes after sustaining injury on the particular portion of the head, but she deposed that when she went near her son, she found him dead. Therefore, her entire allegation is based upon speculation and it is settled law that speculation or suspicion howsoever may be strong cannot take the place of proof. 18. In so far as the statement of P.W. 6 Goyo Oraon is concerned, he claimed in his deposition having interaction with the appellant on Sunday in the village market and that the appellant extended threat as he was implicated in the police case, he would, therefore, kill both of them and would also set their house on fire. But such threat of the appellant was never communicated by this witness either to the police or in the village Panchayat or anyone in the village and it is not the fact that any police case was instituted in respect of such theft of cycle and cash by the appellant and therefore his testimony does not inspire confidence. But such threat of the appellant was never communicated by this witness either to the police or in the village Panchayat or anyone in the village and it is not the fact that any police case was instituted in respect of such theft of cycle and cash by the appellant and therefore his testimony does not inspire confidence. We reiterate the absence of any direct evidence adduced on behalf of the prosecution in support of the alleged genesis of the occurrence which led to strong motive of the appellant to commit gruesome murder of Etwa Oraon. 19. Having regard to the facts and circumstances of the case, arguments advanced on behalf of the appellant and the learned A.P.P. and upon conscious consideration on the materials on the record of appeal, we are of the opinion that the prosecution failed to prove the charge under section 302 IPC against the appellant, Sukra Oraon beyond shadow of all reason able doubt. There is merit in this criminal appeal. The conviction of the appellant, Sukra Oraon under section 302 IPC and order of sentence passed therein is unsustainable. 20. In the result, this appeal is allowed and the impugned judgment of conviction and order of sentence passed by the 1st Additional Sessions Judge, Gumla in Sessions Trial No. 213 of 1997 dated 8th June, 2001 is set aside. Let the appellant, Sukra Oraon be released at once in the instant case. D.G.R. Patnaik, J.-I agree.