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2009 DIGILAW 788 (JHR)

Buda Oraon v. State of Bihar (now Jharkhand)

2009-05-18

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT By Court. — This criminal appeal has been preferred by the appellant against the judgment and conviction dated 8.9.1999 and order of sentence dated 9.9.1999 passed by Shri S.N. Singh, 1st Additional Sessions Judge, Gumla in S.T. No.7 of 1997. 2. The accused-appellant was charged under Sections 376, 302 and 201 I.P.C. for committing rape and murder of a girl aged about eight years. The court below by the impugned judgment convicted the appellant under Sections 302, 376 and 201 I.P.C. and sentenced him to undergo R.I. for life under Section 302 I.P.C. He was further directed to undergo R.I. for life under Section 376 and R.I. for seven years under Section 201 I.P.C. 3. An unfortunate incident gave rise to this case. One Somari Kumari aged about eight years of Village-Shivnathpur Dahu Toli within the Police Station of Gumla District was found missing when her parents noticed on 13.6.1996 but did not find any trace. Again in the next morning i.e. on 14.6.1996 when Sania Oraon (the informant) was returning to his house after searching her daughter Somari Kumari, his younger brother met on the way and informed that Somari's dead body was spotted by villagers Manik Oraon and Dhana Oraon in the Lebra ditch. The informant went to the spot and found her daughter's dead body floating in a water filled ditch. There was injury on her body including the private part. He suspected murder of her daughter after committing rape on her by some miscreants. At about 6:00 P.M. he informed the same to the local Police. 4. On the basis of aforesaid fardbeyan of the informant, a formal F.I.R. was drawn and a case was registered under Sections 302, 376 and 201 of the Indian Penal Code. The case was registered against unknown. 5. The Police took investigation and on conclusion of investigation, submitted charge-sheet under Sections 302, 376/201 I.P.C. against the sole appellant. 6. Charge under Sections 302, 376/201 I.P.C. was framed against the accused-appellant. The accused-appellant denied the charges and claimed to be tried. He was put on trial. 7. The prosecution, in order to establish the charges against the appellant, examined altogether nine witnesses. The prosecution also brought on record some documentary evidences i.e. the fardbeyan Exhibit-2, inquest report-Exhibit-3 in support of the prosecution case. P.W. 1 Kartikeshwar Mishra is a formal witness. The accused-appellant denied the charges and claimed to be tried. He was put on trial. 7. The prosecution, in order to establish the charges against the appellant, examined altogether nine witnesses. The prosecution also brought on record some documentary evidences i.e. the fardbeyan Exhibit-2, inquest report-Exhibit-3 in support of the prosecution case. P.W. 1 Kartikeshwar Mishra is a formal witness. He proved his signature on the inquest report (Exbt.-1) and that of the signature of Lothya Oraon, another witness (Exbt.1/1). P.W.2 Mangra Oraon, admittedly an inimical and interested witness, came to depose that he had seen the accused fleeing away in the night of 13.6.1996 after throwing something in the waterlogged ditch. At that time he could not notice that the object thrown was the dead body. P.W. 3 Bandhu Bhagat has been produced to prove the extra judicial confession made by the accused-appellant Buda after 15-16 days of the date of occurrence. According to this witness, P.W.4 Ramkeshwar Oraon stated in his deposition that after 15-16 days of date of occurrence, the appellant, in the state of intoxication, was uttering that he had killed Somari Kumari and threw her dead body in a ditch. P.W. 5 Budhu Bhagat is a co-villager. He is also a hearsay regarding the extra judicial confession made by the appellant. P.W. 6 Lothya Oraon is the Mukhiya of the village. He is also a hearsay witness and proves his signature on the inquest report. P.W. 7 Dasrath Bhagat is also a co-villager and is a hear-say witness about the extra judicial confession made by the appellant allegedly before P.W. 4. P.W. 8 Sania Oraon is the informant. Admittedly, he had not named the accused-appellant. He had not either seen or suspected the appellant as the author of the crime. P.W. 9 Officer-in-charge of the Police Station is the Investigating Officer. He has come to depose that he visited the place where the dead body of Somari was recovered. That was a waterlogged ditch near the house of P.W. 2 Mangra Oraon. He has supported that there was several injuries on the person of the deceased including some injuries on her private part. He has proved fardbeyan of P.W. 8 (Exbt.-2) and the inquest report (Exbt.-3). 8. The doctor, who conducted autopsy of the dead body of Somari, was examined as court witness (C.W.1). He has proved post mortem report as Exbt.-4. He has supported that there was several injuries on the person of the deceased including some injuries on her private part. He has proved fardbeyan of P.W. 8 (Exbt.-2) and the inquest report (Exbt.-3). 8. The doctor, who conducted autopsy of the dead body of Somari, was examined as court witness (C.W.1). He has proved post mortem report as Exbt.-4. According to him he had examined the dead body of Somari Kumari and found the following injuries:- (i) Incised wound over both ingeneral region with cutting of phenoral vessel 4" x 2" x 2". (ii) Penetrating wound over root of neck on right side 1" x ¼" x 2" cutting of carotid vessels. (iii) Incised wound over right cubiful Foseea with cutting of bracial vessels 2" x 1" x 1". (iv) Incised wound over left axillary region with cutting of axillary vessels 3"x 1"x 2". (v) Penetrating wound over right temporal region with fracture of temporal bone 1" x ½" x 1". (vi) Abrasion and bruise were present around vagina with torned hymen. However, on examination of vaginal smear he has not found presence of any spermatozoa. In his opinion injuries No.2 to 5 were caused by sharp cutting weapon. Injury No.6 was a result of rape over the victim. Injuries are grievous in nature. Injuries No. 1 to 5 are sufficient to cause death either singly or collectively. 9. The appellant was, thereafter, examined under Section 313 Cr.P.C. in which his defence was total denial of the charges. According to him, he was falsely implicated. 10. Learned trial court, after considering the evidence available on record, came to the conclusion that the prosecution has successfully proved the charges under Sections 376, 302 and 201 I.P.C. Learned court below heavily relied on the extra judicial confession made by the appellant, as stated by P.W. 4 Ramkeshwar Oraon and the evidence of P.Ws. 3, 5 and 7 before whom said Ramkeshwar Oraon stated about the said disclosure by the appellant. He also relied on P.W.9 who deposed that in course of investigation the said villager supported that P.W. 4 Ramkeshwar Oraon had told them about the self-disclosure of guilt by the appellant before P.W.4 in aggravated condition. Learned trial court, on the said extra judicial confession, convicted and sentenced the appellant aforesaid against that the present appeal has been filed. 11. Learned trial court, on the said extra judicial confession, convicted and sentenced the appellant aforesaid against that the present appeal has been filed. 11. Learned counsel for the appellant has assailed the said judgment and conviction mainly on the following grounds:- 1. There is no eye-witness in this case. 2. The finding is based on the extra judicial confession allegedly made by the appellant in presence of P.W.4 Ramkeshwar Oraon. 3. There is no other witness to corroborate the said confession. 4. P.Ws. 3, 5 and 7 came to depose that Ramkeshwar Oraon (P.W.4) told about making the said statement of killing Somari by him on the fateful day. They are only the hearsay witnesses. 5. Even the statement of P.W. 4 is taken at its face value, there is no utterance about committing rape on the deceased. There is absolutely no iota of evidence on the side of the prosecution in support of the charge under Section 376. The doctor was examined as a Court Witness, though, he found some injuries on the person of the deceased including on the private part, but he also did not find presence of any spermatozoa. There is, thus, absolutely no cogent basis to prove the charge either under Sections 302, 376 or 201 I.P.C. against the appellant, even as circumstantial evidence. 12. Mr. R.P. Gupta, learned counsel appearing on behalf of the appellant submitted that even if the weak extra judicial confession is accepted as a piece of circumstantial evidence as the basis of conviction of the appellant, no question regarding the said circumstances has been put to the appellant in course of his examination under Section 313 Cr.P.C. and as such the same cannot be used as the evidence for convicting the appellant. Learned counsel submitted that question regarding the circumstance which has not been put to the accused, cannot be the basis of his conviction and even on that ground the impugned judgment does not find support of law. There is no admissible evidence on record and raises suspicion against the appellant. The suspicion, however strong, cannot take place as a piece of evidence. There is no admissible evidence on record and raises suspicion against the appellant. The suspicion, however strong, cannot take place as a piece of evidence. Learned counsel submitted that there is no legal evidence worth the name to support the charge either under Sections 302 or 376 or 201 of the Indian Penal Code against the appellant and the learned court below has erroneously held him guilty and convicted and sentenced him aforesaid. The appellant has been languishing in jail custody since about 14 years. 13. Learned A.P.P., on the other hand, submitted that though there is no direct evidence to prove the charges against the appellant, the circumstance proved by the prosecution go to form a chain which point out the guilt against the appellant, P.W. 2 Mangra Oraon had seen the appellant fleeing away from the spot who had thrown anything in the water filled ditch. At that time he did not notice that it was human remains. Subsequently co-related incident he heard the accused confessing before P.W. 4 about his guilt. Though in the past there was some dispute between them, his testimony on that ground only cannot be discarded. P.W. 4 Ramkeshwar Oraon has stated about the confession of guilt by the appellant before him. He disclosed the same before the co-villagers P.Ws. 3, 5 and 7 and all came and supported the same that Ramkeshwar Oraon, immediately after disclosure of the guilt by the appellant, had told those villagers. They are independent witnesses and there is no enmity or any reason to falsely implicate the appellant. The Investigating Officer (P.W. 9) and Court Witness (C.W.1), also corroborated and proved the prosecution case. P.W.9-lnvestigating Officer deposed that Ramkeshwar Oraon (P.W.4) had stated before him about the confession made by the appellant in presence of co-villagers P.Ws. 3, 5 and 7 and several co-villagers supported the same before him. The doctor (C.W. 1) had proved the injuries on the dead body of Somari. He found several injuries on the person, which suggest that the deceased was sexually ravished and thereafter she was brutally murdered, Learned. A.P.P. submitted that it is an incidence of most heinous crime of committing rape on a female child of 8 years and thereafter finished her life. Learned trial court has, thus, rightly convicted the appellant and awarded appropriate deterrent punishment. 14. A.P.P. submitted that it is an incidence of most heinous crime of committing rape on a female child of 8 years and thereafter finished her life. Learned trial court has, thus, rightly convicted the appellant and awarded appropriate deterrent punishment. 14. The prosecution story and the submission of learned A.P.P. shake our conscience as well The episode touches our heart. We are also emotionally mourned after going through the unfortunate account of events and loss of precious life, who had just seen only seven years of spring. However; the emotion and the thought of morality have absolutely no role to play, particularly in a case in which a person has to be convicted for serious charges of murder and rape. The justice has to be done on the basis of the cogent positive and admissible evidence and materials on record. 15. We find absolute failure of the investigating agency and the prosecution to bring on record sufficient material to catch hold of guilty of such a heinous crime. We find no evidence, either direct or circumstantial to prove the said charges against the appellant. The sum total of extra judicial confession said to be made before P.W.4, which has been the sole basis for holding the appellant guilty also cannot be used for convicting the appellant, as no question whatsoever was put before the use of extra judicial confession to the appellant in his examination under. Section 313 Cr.P.C. In Ajay Singh vs. State of Maharashtra [ (2007)12 SCC 341 ] the Apex Court has held that a conviction based on the circumstance a question regarding of which was never asked and no opportunity was given to the accused to explain, is not sustainable. At the first instance we do not find the quality of corroborated extra judicial confession allegedly made by the accused as the sole basis for his conviction for grievous charges like Sections 302 and 376 I.P.C. The aforesaid verdict of the Supreme Court completely forbade us to rely on the same. No question regarding the said extra judicial confession was put to the appellant in his examination under Section 313 Cr.P.C., I find no other evidence on record to connect the link of circumstance in order to complete a chain and to use the same as circumstantial evidence against the appellant. 16. No question regarding the said extra judicial confession was put to the appellant in his examination under Section 313 Cr.P.C., I find no other evidence on record to connect the link of circumstance in order to complete a chain and to use the same as circumstantial evidence against the appellant. 16. As aforesaid, though the incident pains us, we are unable to find any supporting evidence or material on record to hold the appellant guilty and to uphold the impugned judgment of his conviction. 17. In the result, we allow this criminal appeal. The appellant is acquitted of the charges leveled against him. The judgment of conviction dated 8.9.1999 and the order of sentence dated 9.9.1999 passed against the appellant by Shri S.N. Singh, learned 1st Additional Sessions Judge, Gumla in Sessions Trial No. 7/1997 are set aside. The appellant, who is said to be in custody for about 14 years, is ordered to be set at liberty forthwith, if not wanted in any other case.