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2009 DIGILAW 671 (JHR)

Mangra Oraon v. State of Bihar (Now Jharkhand)

2009-05-01

AMARESHWAR SAHAY, R.R.PRASAD

body2009
JUDGMENT By Court The sole appellant Mangra Oraon was charged for the offence under Sections 448 of the Indian Penal Code for committing house trespass by entering into the house of Etwa Oraon (deceased) and further under Section 302 of the Indian Penal Code for committing the murder of the aforesaid Etwa Oraon. The learned 2nd Additional Judicial Commissioner, Ranchi, by the impugned Judgment, convicted the appellant for the offence under Sections 448 and 302 of the Indian Penal Code and sentenced him to undergo life imprisonment for the offence under Section 302 of the Indian Penal Code and to pay a fine of Rs. 50/-, in default to undergo R.I. for a further period of 15 days and further R.I. for six month for the offence under Section 448 of the Indian Penal Code. Both the sentences were ordered to run concurrently. 2. The prosecution case in brief is that Madheya Oraon alias Sonua (P.W.-3) lodged F.I.R. before the Chanho Police Station on 25.07.1983 at 03:00 P.M. alleging therein that in the preceeding night, at about 9:00 P.M., while his father Etwa Oraon (deceased) was sitting in his house, the appellant, who was nephew of the deceased and was in a drunken state, came there and sat by the side of his father. The appellant thereafter told his father Etwa Oraon that he would beat him and thereafter started beating with fists and slaps whereupon, the informant drove the appellant out of his house. The appellant again came back with an axe (Tangi) and thereafter, he gave a Tangi blow to Etwa Oraon (deceased) causing injuries below the chest and on his arm and other parts of the body and then fled away. The informant and his mother Runia Orain (P,.W.-2) tried to catch hold the appellant but he fled away. Etwa Oraon remained alive for the whole night. He also demanded water to drink which was also given to him. The informant further alleged in the F.I.R. that since his house was at a lonely place and the night was dark so he did not raise any hulla and he could not go to the hospital and ultimately his father died in the morning before sun rise. He further stated that they had no enimity with the appellant Mangra Oraon from before and therefore, he could not say as to why he assaulted his father. He further stated that they had no enimity with the appellant Mangra Oraon from before and therefore, he could not say as to why he assaulted his father. At about 6:00 A.M., Suresh Nayak, Chowkidar was passing through the way, to whom the informant informed about the occurrence. On his call, Shiekh Shamsuddin, Chowkidar and the villagers Jena Oraon, Champa Oraon and Jabru Oraon came there to whom the informant narrated the occurrence and with their assistance, carried his deceased father to the Police Station where he lodged the F.I.R. The Police, after registration of the F.I.R., took up the investigation and on completion of investigation, submitted chargesheet against the appellant under Section 448 and 302 of the Indian Penal Code. The case was committed to the Court of Sessions where charges were framed to which the appellant denied and thereafter, he was put on trial. 3. In order to establish the charges, altogether eight witnesses were examined on behalf of the prosecution and some documents were also adduced in evidence. .Learned Trial Court, on the basis of the evidence and materials on record, convicted and sentenced the appellant as already stated hereinabove. 4. Learned Counsel Mr. Rakesh Kumar Sinha, by assailing the Judgment of the Trial Court, submitted that the learned Trial Court has convicted the appellant on the basis of the evidence of two alleged eye witnesses i.e. P.Ws. 2 and 3 i.e. the widow and son of the deceased who themselves have made vital contradictions in their evidence, making their testimony most unreliable. He further submitted that though the prosecution failed to establish charges beyond all reasonable doubts, even then the learned Trial Court has wrongly and illegally convicted the appellant for the alleged offence. On the other hand, Mr. T. N. Verma, learned APP, by supporting the Judgment of conviction and sentence passed by the Trial Court, submitted that P.Ws. 2 and 3 i.e. the two eye witnesses have fully supported the prosecution case and they are very much reliable and therefore, the Trial Court has not committed any error in convicting and sentencing the appellant after holding him guilty for committing murder of Etwa Oraon. 5. In order to test the arguments of respective parties, we have scrutinised the evidence of the prosecution witnesses in detail particularly the evidence of P.Ws. 2 and 3, the eye witnesses. 6. 5. In order to test the arguments of respective parties, we have scrutinised the evidence of the prosecution witnesses in detail particularly the evidence of P.Ws. 2 and 3, the eye witnesses. 6. The P.W.-2 Runia Orain is the widow of the deceased Etwa Oraon. In the opening line of her evidence, she has stated that she do not remember the time lapsed since the occurrence. However, in her examination-in-chief, she has stated that at the relevant time she was cooking food and her son Sonua was in the house. At that time, the appellant Mangra Oraon came to her house and told that he would beat her husband and thereafter started beating him by fists and slaps but she separated them and then the appellant went back but again came back to her house with a Tanga and in the Angan (courtyard) he started assaulting her husband Etwa Oraon by means to Tanga due to which her husband received bleeding injuries in his chest, arm and other parts of the body. When she tried to rescue, the appellant became ready to assault to her also and thereafter, the appellant said to have fled away. In her cross examination, she has stated that the house of appellant was situated just next to her house and was own nephew of her husband. They were having good relations and were also in visiting terms. She further stated in her cross examination that the appellant was sitting in her house even prior to her husband (deceased) Etwa Oraon arrived to the house. Her husband offered ‘Pakauri’ to the appellant which he consumed. After eating ‘Pakauri’, the appellant told her husband that he would beat him and thereafter, started beating him but she asked not to assault then he left the place but again came with Tanga. In para-9 of her evidence, she further stated that along with the appellant, his mother and brother also came to her house and they were asking the appellant not to assault her husband. 7. P.W.-3 Madheya Oraon alias Sukhuwa Oraon, is the son of the deceased and of P.W.-2, is an eye witness. In para-9 of her evidence, she further stated that along with the appellant, his mother and brother also came to her house and they were asking the appellant not to assault her husband. 7. P.W.-3 Madheya Oraon alias Sukhuwa Oraon, is the son of the deceased and of P.W.-2, is an eye witness. In his evidence, he has stated in examination-in-chief that on the date of occurrence, at about 9:00 P.M., he, his father, his mother and brother and sister were present in the house and at that time, the appellant came to their house and told his father that he would beat him and thereafter, started beating with fists and slaps. Then the appellant was driven away from the house but he again came with a Tanga and assaulted his father causing injuries on his chest, left hand and other parts of the body due to which, his father fell down and asked for water. He was bleeding profusely and ultimately, in the morning he died. He further stated that since the appellant threatened them and therefore, they did not go to the Police Station to inform about the occurrence and ultimately his father died in the early morning and when Chowkidar Suresh Nayak, Chowkidar Shiekh Samsuddin and villagers Jena Oraon, Champa Oraon and Jabru Oraon came, he narrated the story to them that the appellant had killed his father. In cross examination, this witness has said that he did not remember the date and month of the occurrence. In para-6 of the cross examination, he has stated that when his father returned from the Bazaar at about 8:00 P.M., the appellant Mangra was sitting in his house and was talking to him. He added that he had no quarrel with Mangra. In para-7 of the cross examination, he has stated that the night was dark and only one ‘Dibia’ was burning inside the room. There was no boundary wall in the house and the courtyard was open. He further deposed that the occurrence took place on Sunday whereas, the Police came at the place of occurrence on Tuesday and on that day, the appellant’s mother handed over a Tanga to the Police. 8. From close scrutiny of evidence of the two eye witnesses i.e. P.Ws. 2 and 3, it is significant to note that they have contradicted each other with regard to the actual place of occurrence. 8. From close scrutiny of evidence of the two eye witnesses i.e. P.Ws. 2 and 3, it is significant to note that they have contradicted each other with regard to the actual place of occurrence. One witness said that the appellant assaulted the deceased in the room, while the other stated that the deceased was assaulted in the courtyard. Though according to the evidence of the informant, the weapon used for commission of the offence i.e. Tanga was handed over to the Police by the mother of the appellant but the said fact that the alleged weapon which was used in commission of the offence was handed over to the Police by his mother was not put to the accused in his examination under Section 313 Cr.P.C. and therefore, the same cannot be taken into consideration against him. In any view of the matter, the Investigating Officer was not examined in the case. We further find that even according to the prosecution, the occurrence took place at about 9:00 P.M. on 24.07.1983 whereas, the report was made to the Police on 25.07.1983 at 3:00 P.M. i.e. after an inordinate and unexplained delay of 18 hrs. Chowkidar Sheikh Samsuddin to whom the informant narrated the story in the morning, was examined as P.W.-7 and he has stated in his evidence that he was informed by Suresh Chowkidar (P.W.-8) about the murder of Etwa Oraon and then he along with the Officer incharge went to the place of occurrence where the wife of the deceased (P.W.-2) stated that the appellant has killed her husband while he was sleeping in the veranda by means of Tanga. 9. Chowkidar Suresh Nayak to whom the informant said to have informed first, was examined as P.W.-8 and he stated that while he was going to catch fish, one Maisa Oraon told him that in Tonka Toli of village Choraiya, there was much hulla in the night and then on receipt of this information, he went to the house of Etwa Oraon where he met Madheya Oraon (informant) and on being asked Madheya Oraon told him that his father Etwa Oraon was sleeping and when this informant went to wake up Etwa Oraon, he found he was dead having injuries on his chest and hands etc. On such statement, this Chowkidar was declared hostile. Therefore, this witness has not supported the prosecution. 10. On such statement, this Chowkidar was declared hostile. Therefore, this witness has not supported the prosecution. 10. Out of total eight witnesses examined on behalf of the prosecution, P.W.-1 Jagarnath Ram and P.W.-7 Chowkidar Sheikh Samsuddin were not chargesheet witnesses whereas, the chargesheeted witnesses Jahru Oraon and Mahesh Sharma were not examined by the prosecution for the reasons best known to it. 11. The story of the prosecution becomes very much doubtful in view of the fact that admittedly the appellant had no animosity with the deceased or his family. The deceased was his own uncle and therefore, there was no reason as to why the appellant would kill him. Chowkidar Suresh Nayak (P.W.-8) to whom the informant has allegedly informed first about the occurrence, did not support him. 12. As we have already noticed above that the Investigating Officer was not examined on behalf of the prosecution and therefore, the defence could not draw the attention of the Investigating Officer about the contradictory statements made by the other witnesses and further about the inordinate and unexplained delay in lodging the First Information Report. The explanation given by the informant for not going to the hospital to get his father treated immediately after the occurrence or giving information to the Police does not appear to be convincing and acceptable. It may be that if timely medical aid would have been given to the deceased, he may have survived. 13. Taking into consideration all the facts and circumstances stated above, we do not find sufficient evidence to affirm the conviction and sentence against the appellant passed by the Trial Court rather we find the evidence of the prosecution to be weak and unreliable. Therefore, we are of the view that the appellant is entitled to the benefits of doubt. 14. In view of the discussions and findings above, this appeal is allowed. The conviction and sentence passed by the Trial Court is hereby set aside. The appellant, who is on bail, is discharged from the liability of bail bonds.