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2008 DIGILAW 1004 (JHR)

Timbru Oraon @ Timru v. State of Bihar

2008-08-26

D.P.SINGH, R.K.MERATHIA

body2008
By Court.- This appeal is directed against the judgment of conviction and sentence dated 20.9.1991 passed by Shri . N.K. Prasad, District & Sessions Judge, Giumla in Sessions Trial No. 68 of 1991/ G.R. No. 648 of 1990, whereby and whereunder the learned court below convicted the appellant under Sections 302/ 34 of the Indian Penal Code and sentenced him to undergo Rigorous Imprisonment for life. 2. The prosecution case, as per the Fardbeyan of the informant, Shankar Oraan (P. W. 1), briefly stated is that on 12.9.1990 at about 3.30 P.M. he, his mother (P.W. 2), 'Mami' (P.W. 3-wife of the deceased) were going to Village Tira Dumertoli for looking their Gora paddy. The deceased-Etwa Oraon, coming on bicycle, proceeded ahead and went to the field in question where the appellant-Timbru Oraon @ Timbru alongwith his two brothers were harvesting the paddy crop, to which Etwa Oraon, protested and thereon the appellant-Timoru Oraon @ Timru picked 4' 'Baluwa' from the field and attacked Etwa Oraon. On receiving Baluwa blow Etwa Oraon ran away leaving behind his cycle on the field whereupon he was chased by three accused persons. The witnesses and the informant were also chased by them. While fleeing away they saw that Etwa Oraon was being assaulted with the 'Baluwa' and he was crying for help. He was also assaulted by 'Bhala' by brothers of the appellant. The informant identified them by face. Then accused persons fled away towards their house with the weapons. 3. The informant party went there to find Etwa Oraon dead having several sharp cut injuries on his person. His neck was cut more than half. Blood was oozing in large quantity. They started crying there. As further stated that there was a land dispute between the parties in which possession was given in favour of the deceased two years ago, who was cultivating his field as usual. Therefore appellant and his two brothers had killed the deceased. The informant out of fear and night did not go to the police station. In the morning 'Chaukidar' was sent to police station. Gumla Police arrived at the place of occurrence, recorded the statement of P.W. 1 and started investigation and submitted charge-sheet. 4. The charges were framed against the appellant and his brother, Sanicharwa Oraon and they were put on trial. In the morning 'Chaukidar' was sent to police station. Gumla Police arrived at the place of occurrence, recorded the statement of P.W. 1 and started investigation and submitted charge-sheet. 4. The charges were framed against the appellant and his brother, Sanicharwa Oraon and they were put on trial. The appellant, in his statement, under Section 313 Cr.P.C., inter alia, claimed false prosecution due to land dispute and said that he was in possession of the land. However, trial court held him guilty and sentenced him as mentioned above. 5. Mr. Naveen Kumar Jaiswal, learned counsel for the appellant submitted that the appellant was implicated in this case due to enmity which is clear from the serious discrepancies in the evidence. He further submitted that the conviction of the appellant is based on the evidence of P.Ws. 1, 2 & 3, said to be the eye witnesses, but they were interested being 'Bhagna', this mother and the wife of the deceased. He further submitted that no independent witnesses have come to support the prosecution story. He also submitted that the investigation has not been conducted properly. 6. The main question is whether the evidence of P. Ws. 1, 2 & 3 said to be the eye witnesses are to be believed or not? There is no satisfactory explanation as to why nobody was called from the Village Tira Dumertoli said to be situated only at a distance of 40 steps from the place of occurrence. Moreover, there is no explanation as to why the said eye witnesses did not inform any villager after returning to their village. The explanation that they did not inform anybody as the villagers were in a drunken state due to 'Jitia' festival, is not satisfactory. 7. In paragraph no. 4, P.W. 1 inter alia stated that-from the village-Karaundi, one person can go to and return from Gumla in the night also. The Police Chauki in the village Shilam was at about three kilometers from the place of occurrence, but he does not know that there is a Police Chauki in Shilam. He further stated that on the next day morning, the witnesses went near the dead body alongwith other family members .. The Police Chauki in the village Shilam was at about three kilometers from the place of occurrence, but he does not know that there is a Police Chauki in Shilam. He further stated that on the next day morning, the witnesses went near the dead body alongwith other family members .. On the next day (i.e. Thursday) at about 8.30 a.m. the 'Chaukidar' of Tira Dumertoli, which is near to the place of occurrence, himself came and informed that his Mama, Etwa Oraon is lying dead. Then he requested him to inform the police station, but the 'Chaukidar' did not inform at the police station. He denied the suggestion that he had not seen the occurrence and the deceased was killed by unknown person about which he learnt from the 'Chaukidar' on the next day and that due to enmity the appellant has been falsely implicated. 8. P.W. 2, mother of P.W. 1, inter alia, said that-Etwa Oraon-deceased and his mother won the case and they were in possession of the land in question. Nobody was there when the dead body was lying in the fields. Mukhia. Sarpanch and Chaukidar who lived in the village, were not informed about the occurrence on the same day i.e. on Wednesday, rather they were informed on the next day. She has denied similar suggestion given to P.W. 1. 9. P.W. 3, the wife of the deceased inter alia, stated that-her husband won the case about 5-6 years ago and thereafter started cultivating the land. The appellant and his family members used to quarrel with regard to the land in question. After her husband was assaulted with Balua, she became senseless and was not in a position to say anything. 10. P.W. 4 is said' to be the witness of the seizure of blood stained Balua said to have been recovered from the house of the appellant. He is said to the witness also to the seizure of blood stained soil, said to have been recovered from the place of occurrence. P.W. 5, another villager was tendered. P.W. 6 is the doctor, who conducted the post mortem report and found many injuries on the person of the deceased, which were grievous in nature and sufficient in ordinary course to cause death either individually or collectively. P.W. 7 is the Officer-in-Charge. who submitted charge-sheet. P.W. 5, another villager was tendered. P.W. 6 is the doctor, who conducted the post mortem report and found many injuries on the person of the deceased, which were grievous in nature and sufficient in ordinary course to cause death either individually or collectively. P.W. 7 is the Officer-in-Charge. who submitted charge-sheet. P.W. 8 is the Investigating Officer, who has, inter alia, stated tliat-on receiving information he went to the place of occurrence and found portion of paddy harvested. He also found a cycle, which was seized by the police. The blood stained soil and Balua were sent for forensic examination. 11. It may be noted that no report of forensic examination has been brought on record to prove that Balua said to have been recovered from the house of the appellant was blood stained. P.Ws. 1, 2 and 3 did not disclose the name of any other assailant before the Investigating Officer though P.W. 2 has said that she knew the brother of the appellant, Sanicharwa Oraon. Sanicharwa Oraon has been acquitted by the trial court. 12. In these circumstances, in our opinion, the trial court should not have relied on the testimony of P.Ws. 1, 2 and 3. Their conduct cause serious doubt about their truthfulness. They did not contact anybody either in the nearby village or in their own village after the alleged occurrence. They did not try to ascertain whether the deceased could survive with the medical help, nor did contact any person of nearby village, though they remained with the dead body for about 1 % after the occurrence. They returned to their village but did not inform anybody including Mukhiya, Sarpanch and Chaukidar in the night, even if it was Jitia festival and most of the villagers might have been in a drunken state. Only for that reason, it is difficult to accept that the said witnesses did not inform anybody about the said occurrence. P.W. 1, in his cross-examination, admitted that on the next day of the alleged occurrence he learnt from the Chaukidar of the villager situated near to the place of occurrence, regarding killing of Etwa Oraon. If this statement is accepted, P.Ws. 1, 2 and 3 could not be the eye witnesses of the alleged occurrence. P.W. 1, in his cross-examination, admitted that on the next day of the alleged occurrence he learnt from the Chaukidar of the villager situated near to the place of occurrence, regarding killing of Etwa Oraon. If this statement is accepted, P.Ws. 1, 2 and 3 could not be the eye witnesses of the alleged occurrence. It is true that Etwa Oraon was killed in a brutal manner, but the prosecution is required to prove that the appellant caused his death. These three witnesses claiming to be eye witnesses of the occurrence have contradicted on material points and they do not appear to be. reliable. The Trial Court has acquitted Sanicharwa Oraon giving him benefit of doubt in similar circumstances. 13. In these circumstances, in our opinion, the appellant also deserves the benefit of doubt and be acquitted from the charges levelled against him. 14. Accordingly, this appeal is allowed and the order of conviction and sentence dated 20.9.1991 passed by Shri N.K. Prasad, District & Sessions Judge, Giunla in Sessions Trial No. 68 of 19911 G.R. No. 648 of 1990 is hereby set aside. The appellant- Timbru Oraon @ Timru on bail, is discharged from the liabilities of the bail bonds.