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2009 DIGILAW 702 (JHR)

Matal Oraon v. State of Jharkhand

2009-05-05

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT By Court. — The appellant is aggrieved by the judgment of conviction dated 18th July, 2003 and order of sentence dated 19th July, 2003 passed by learned Additional District & Sessions Judge, Fast Track Court No.-III, Gumla in ST No. 12 of 1997, whereby the appellant has been held guilty and convicted for the offences under Section 302 of the Indian Penal Code and Section 27(1) of the Arms Act. The appellant has been sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for three years under Section 27(1) of the Arms Act. Both the sentences are to run concurrently. 2. The prosecution case was launched on the fardbeyan of Budhwa Kindo dated 18th July, 1996. 3. The prosecution case, in brief, is that the informant's sister was married with Matal Oraon. After marriage, his sister was ill-treated by the members of the in-laws family. She was not keeping good health and as such came to reside at the house of her parent. 8-10 days ago, Matal had come to take the informant's sister to his village, 'but due to ill health she did not go. On 17th July, 1996, at about 8.00 p.m., when the family members were engaged in cooking their food, they heard sound of knocking at the door. The informant's father went to open the door. In the meantime, he heard the sound of firing. The informant having a torch in his hand rushed to the door and saw the appellant fleeing away, holding a gun in his hand. He found his father-Firu Kindu having sustained firearm injury caused, causing instantaneous death. Other family members also arrived there and saw the scene. The reason, as alleged by the informant, was the refusal of the informant's sister to accompany the appellant to her in-laws house. 4. On the basis of the said fardbeyan, the case was registered under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. On conclusion of investigation, police submitted charge-sheet for the offences under the said sections. 5. Charge under Section 302 of the Indian Penal Code and Section 27(1) of the Arms Act was framed against the appellant. The accused-appellant denied the charges and claimed to be tried. 6. On conclusion of investigation, police submitted charge-sheet for the offences under the said sections. 5. Charge under Section 302 of the Indian Penal Code and Section 27(1) of the Arms Act was framed against the appellant. The accused-appellant denied the charges and claimed to be tried. 6. The prosecution in order to prove the charges against the appellant altogether examined seven witnesses. P.W. 1-Jitni Oraon is the wife of the deceased and the mother of the informant. P.W. 2-Sukra Oraon is co-villager and. witness to the inquest report. P.W. 3-Karma Oraon and P.W. 4-Sandhana Oraon are also co-villagers. They are hearsay witnesses. P.W.5-Sudhwa Kindo is the informant. P.W. 6 Lakhan Murmu is the Investigating Officer and P.W. 7-Dr. Hemant Kumar has come to prove the post mortem report, which was prepared by Dr. Mani Shushan Prasad, who conducted post mortem on the dead body of the deceased-Firu Kindo. The prosecution has also proved the fardbeyan-Ext.-3, inquest report-Ext.-4 and post mortem report-Ext.-5. Exts.-1 and 2 are the signatures of the witnesses on the inquest report and first information report, respectively. 7. Learned Trial Court, on conclusion of the trial, relying upon the testimony of P.Ws. 1. 5 and 6 coupled with the evidence of the doctor-P.W. 7 held the appellant guilty for committing murder of Firu Kindu with firearm and convicted and sentenced him as aforesaid. 8. Learned counsel for the appellant has assailed the said judgment of court below and submitted that there is no cogent and clinching evidence on record either direct or circumstantial to prove the charges against the appellant. The prosecution has failed to prove the very genesis of the occurrence, The informant even has not stated anything about ill-treatment of his sister at the hand of the appellant. None of the witnesses have seen inflicting firearm injury by the appellant to the deceased. The only evidence, which is available on record, is that the informant and his mother saw the appellant fleeing away, holding a gun in his hand It was dark night and the witnesses saw him from a distance. Nobody saw the face of the appellant. In the dark night, identification of the appellant, as claimed by P.Ws. 1 and 5, is not free from serious doubts. Admittedly, there is no recovery of the firearm used in the commission of the said offence. Nobody saw the face of the appellant. In the dark night, identification of the appellant, as claimed by P.Ws. 1 and 5, is not free from serious doubts. Admittedly, there is no recovery of the firearm used in the commission of the said offence. The doctor has neither found any exit wound nor he has got any pellet inside the body. According to the prosecution, there was sign of one firing, but the doctor has found nine injuries on the person of the deceased. No bloodstain was found by the Investigating Officer vide his evidence at Para-8. There was no proper examination of the accused-appellant under Section 313 Cr.P.C. The circumstance regarding which no question was put to the appellant has also been used for his conviction. Learned counsel submitted that the prosecution has miserably failed to prove the charges against the appellant by any positive and admissible evidence. Learned Trial Court has committed serious error of law as well as fact & in holding the appellant guilty and convicting him for the said charges. 9. Learned A.P.P., on the other hand, supported the impugned judgment and 'f Jharkhand . 2011 (1) JLJR submitted that P.W. 1-Jitni Oraon and P.W. 5-Budhwa Kindo (informant) have supported the prosecution case and their testimony cannot be doubted on the basis of some minor contradictions, though the said witnesses reached to the spot after hearing the sound of firing. They saw the accused-appellant, running away with a gun in his hand. They also found firearm injury on the person of the deceased, which caused his instantaneous death. The injuries were also found by the doctor-P.W. 7, who proved the post mortem report prepared by Dr. Mani Bhushan Prasad, who, conducted post mortem on the dead body of the deceased-Firu Kindo. The prosecution has also proved inquest report (Ext.-4) and post mortem report (Ext.-5). In view of the said clear evidence, the proof of genesis becomes inconsequential. Learned Trial Court on thorough appraisal of evidences has rightly found and held the appellant guilty for committing murder of the deceased-Firu Kindo by causing firearm injury. There is no infirmity or illegality in the impugned judgment and the same is well discussed. 10. Having heard learned counsel for the appellant and learned A.P.P., we scrutinized the material on record. Learned Trial Court on thorough appraisal of evidences has rightly found and held the appellant guilty for committing murder of the deceased-Firu Kindo by causing firearm injury. There is no infirmity or illegality in the impugned judgment and the same is well discussed. 10. Having heard learned counsel for the appellant and learned A.P.P., we scrutinized the material on record. P.W. 1-Jitni Oraon at Para-1 has stated that after the marriage her daughter used to reside in her matrimonial home (Sasural) and time to time used to visit the house of the parent (Maike). Her daughter was residing peacefully in her Sasural. At Para-2, she stated that she had seen the appellant fleeing away, holding a gun in his hand. At Para-3, she denied the motive initially and has imputed that ~he does not know as to why her son-in-law (the appellant) committed murder of the deceased. She further stated at Para-5 of her deposition that there was no dispute between the son-in-law and the member of his family. P.W. 2-Sukra Oraon is co-villager and an independent witness. He has stated that he heard the sound of firing and rushed to 2011 (1) JLJR Chhoto Majhi vs. Sti the place of occurrence and found Firu Kindo dead. He has stated that the informant told him that his brother-in-law (appellant) shot fire and fled away. P.W. 3-Karma Oraon and P.W. 4-Sandhana Oraon are independent witnesses, but they have deposed that they came to know about the occurrence from the informant and his mother (P.W.1). P.W. 5-Sudhwa Kindo is the informant. He has stated that he had seen the appellant fleeing away, holding a gun in his hand in torchlight. He has not proved the genesis of the occurrence, as alleged in the fardbeyan. P.W. 6-Lakhan Murmu is the Investigating Officer, At Para-8 he has stated that he found nine injuries on the body of the deceased and at the same time, at Para9 he has stated that the appellant's house was searched, bL 11. From the above, it is evident that the ocular evidence has not been corroborated by the medical evidence. The doctor has not found any exit wound on the dead body of the deceased. No pellets were also found lying inside the body of the deceased. No firearm was recovered from the appellant. From the above, it is evident that the ocular evidence has not been corroborated by the medical evidence. The doctor has not found any exit wound on the dead body of the deceased. No pellets were also found lying inside the body of the deceased. No firearm was recovered from the appellant. There is, thus, no cogent evidence to support the prosecution version that the deceased was fired by a gun, which caused his death. There is no convincing evidence to prove the identification properly. Admittedly, there was a dark night. The informant-P.W. 5 claimed that he had seen the appellant in torchlight fleeing away, whereas P.W. 1 claimed to have identified the appellant running away with a gun in his hand in the light of a DHISRI (kerosene oil uncovered lamp which gives deam light). P.W. 1 as also P.W. 5 have also not proved the motive as to why the appellant committed murder of the deceased. P.W.1 ~te of Bihar (Now Jharkhand) 231 has stated that her daughter was residing in her matrimonial house peacefully. 12. On overall assessment of the evidences on record, we find no convincing evidence and material to establish the charges against the appellant. Learned Trial Court without taking into consideration the said infirmity in the prosecution case has erroneously held the appellant guilty and convicted him without any sufficient material on record. 13, In view of the above, the prosecution has failed to prove the charges against the appellant beyond the shadow of all reasonable doubts. Learned court below without taking into consideration the vital infirmity and lacunae in the prosecution case has erroneously held the appellant guilty of the said charges without sufficient evidence and material on recol"d. We are unable to uphold the impugned judgment of conviction of the appellant and order of sentence for the reasons aforementioned. 14. In the result, this• appeal is allowed. The impugned judgment of conviction dated 18th July, 2003 and order of sentence dated 19th July, 2003 passed by Sri D.C. Ray, learned Additional District & Sessions Judge, Fast Track Court No.-III, Gumla in Sessions Trial 1\10. 12 of 1997 is hereby set aside. The appellant is acquitted of the charges. The appellant, above named, is directed to be set at liberty forthwith, if not wanted in any other case.