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Jharkhand High Court · body

2009 DIGILAW 814 (JHR)

Mangra Oraon v. State of Jharkhand

2009-05-21

PRADEEP KUMAR

body2009
JUDGMENT By Court.-On repeated calls nobody appears on behalf of the appellant. Then the court requested to Sri Tapas Rai, Advocate for assisting' the court and he agreed to assist the court. Heard learned counsel for the appellant and learned counsel for the State. The appeal is directed against the judgment of conviction and sentence dated 9th January, 2002 passed by Sri R.N. Verma, Additional Judicial Commissioner-cum-Special Judge, Ranchi in Sessions Trial No. 380 of 1999, by which judgment, he found the appellant guilty under Section 398 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for ten years. However, he acquitted the appellant under Section 394 of the Indian Penal Code. He also acquitted the co-accused Somra Oraon & Etwari Orain. 2. The prosecution case was started on the basis of the fardbeyan given by the informant, Rajesh Kumar on 8.1.1998 at one A.M. at Sukhdeonagar Police Station. On 8.1.1998, at 1 P.M., he produced a pistol and cartridges before the Investigating Officer at the police station and stated that he has got a shop-cum-house where he is running a shop. He stated on 7.1.1998 at about 7:15 in the evening when he was sitting in his shop and his younger brother Rakesh was standing outside the shop, then two boys came there. One of them was Mangra Oraon, son of Champa Oraon, asked him for a packet of cigarette from him. His other friend was standing outside the shop. When he gave the cigarette packet to him and, then he pulled out a pistol from his pocket and putting the same on the eardrum (Kanpati) asked for money, whereupon the informant caught hold the revolver and gave call to his younger brother Rakesh Kumar to call his 'mama' who resides in front of the shop. In the meanwhile, he snatched the revolver from the accused Mangra Oraon. Mangra asked his friend Somra, who was standing outside the shop, to give the bomb and after taking bomb, he started running towards Maidan but since he was running, the bomb exploded. With the help of other villagers, the informant chased the accused persons but could not get their trace. Mangra asked his friend Somra, who was standing outside the shop, to give the bomb and after taking bomb, he started running towards Maidan but since he was running, the bomb exploded. With the help of other villagers, the informant chased the accused persons but could not get their trace. He stated that Mangra used to come to his shop for cigarette earlier also, but he does not know other accused Somra and after searching for them, he found that while they were running away, in the explosion, the finger of one accused has fallen down after explosion. He gave the full description of accused Mangra and Somra. The Investigating Officer made seizure list of the pistol and registered a case under Sections 393, 216(A); 201 and 25(i)(b)(a), 26 and 35 of the Arms Act and after investigation, submitted charge-sheet under Sections 393, 398, 216, 201 and 109 of the Indian Penal Code and under Sections 13, 26 and 35 of the Arms Act. 3. Since, the case was exclusively triable by Court of Session, learned Magistrate after taking cognizance of the case, committed the case to the Session, where the appellant alongwith other accused were charged under Sections 398 and 394 of the Indian Penal Code, the trial was held. After trial, the appellant was found guilty under Section 398 of the Indian Penal Code and convicted and sentenced as aforesaid by the Additional Sessions Judge, Ranchi. 4. Learned counsel for the appellant submitted that it appears from the evidences of the informant and other witnesses that at the time of occurrence on 7.1.1998, the informant had not identified the accused and subsequently, he did not lodge the F.I.R. on 7.1.1998, since both the police station was near about the place of occurrence. Moreover, the identification and name given by the informant is doubtful because the neighboring witnesses has stated that immediately after the occurrence, the informant called them but failed to give the name of the accused persons and as such, the identification of the appellant is doubtful. The Trial Court acquitted Somra Oraon on that ground itself that the informant failed to disclose the name of the accused to the witnesses immediately after the occurrence. 5. The Trial Court acquitted Somra Oraon on that ground itself that the informant failed to disclose the name of the accused to the witnesses immediately after the occurrence. 5. On the other hand, learned counsel for the State has opposed the prayer and submitted that the informant P.W. 4 Rajesh Kumar and his younger brother Rakesh Kumar, P.W. 7 have fully supported the prosecution case and identified the appellant Mangra Oraon and as such this conviction is fit and proper. 6. After hearing both the parties and going through the evidences, I find that the prosecution has examined eight witnesses in course of trial. P.W. 1 is Kauselander Kumar, P.W. 2 is Umesh Prasad, P.W. 3 is Niranjan Prasad, PW. 4 Rajesh Kumar (informant), PW. 5 is Binod Prasad, PW. 6 is Santosh Kumar and P.W. 7 is Rakesh Kumar, brother of the informant-cum-eye witness and P.W. 8 is Rajendra Prasad. 7. As per the informant, P.W.4, Rajesh Kumar, on 7.1.1998 at about 7:15 in the evening when he was sitting in his ‘kirana’ shop, then accused Mangra came and asked for a packet of cigarette. He was visited to his shop earlier also. He gave one cigarette packet to him. After taking the cigarette packet, he brought out the revolver from his pocket and putting the same on his eardrum, he asked to give money from the cash box, whereupon he caught hold the revolver and called his brother Rakesh to call his 'mama', Binod Prasad. The friend of the appellant, Somra, was standing outside the shop, was called by the accused Mangra for giving bomb, then he gave the bomb to Mangra and when the hulla was made by his younger brother, witnesses started coming there and saw that both the accused persons were running away and the revolver came in the hands of informant and while they were running away, the bomb was exploded, since it was deep dark, both the accused ran away. He stated that a telephone call was given to the Sukhdeonagar Police Station. The Investigating Officer came at 11.11.1995 (sic-11 PM?) in the night, and then he gave his statement to the Investigating Officer. He signed to prove the fardbeyan as Exhibit No.2. He also gave the pistol, which he had snatched from the accused, Mangra. He stated that a telephone call was given to the Sukhdeonagar Police Station. The Investigating Officer came at 11.11.1995 (sic-11 PM?) in the night, and then he gave his statement to the Investigating Officer. He signed to prove the fardbeyan as Exhibit No.2. He also gave the pistol, which he had snatched from the accused, Mangra. When the police again came, then the fallen finger of the accused was recovered and the Investigating Officer prepared a seizure list. He identified the accused Somra in court. In his cross-examination, at para-7, he stated that the alias name of the accused Somra is Ramesh Kumar Munda and he stated before the police that the two accused came to his shop and one of them was Samra Oraon @ Ramesh Kumar Munda. He stated before the police that when the witnesses started coming, then Mangra called his friend Ramesh Munda @ Somra to give bomb. 8. Rakesh Kumar, P.W. 7, brother of the informant who was also present in the shop is the main witness. He stated that they have got kirana shop and on the date of occurrence in the evening, he was sitting outside the shop. His brother Rajesh Kumar was sitting in the shop, the accused Mangra came with another person and demanded cigarette from his brother, and he demanded money and take out a pistol from his pocket and put the same on his brother. His brother caught hold of the pistol, then Mangra called his friend Somra to give bomb, whereupon his brother called him to call his 'mama'. He started making hulla and the accused stated running away, whereupon the bomb fell down and exploded, cutting the finger of the accused. At about 11 P.M. in the night, Officer Incharge Shivagi Prasad came, whereupon statement was given. Next day again, police came and seized the cut finger. In his cross-examination, he stated that the police never recorded his statement nor examined him. He stated in para 7 that at the time of occurrence itself, he knew the name of the accused Mangra and Somra. 9. Next day again, police came and seized the cut finger. In his cross-examination, he stated that the police never recorded his statement nor examined him. He stated in para 7 that at the time of occurrence itself, he knew the name of the accused Mangra and Somra. 9. Other witness, namely P.W.1, Kauselander Kumar stated that on the date of occurrence, i.e. 7.1.1998, at about 7:30 P.M. in the evening, the occurrence took place in the shop of Rajesh and two persons had come to the shop and they demanded money at the point of pistol, Rajesh snatched the pistol but they ran away. He proved his signature on the seizure list of pistol. In his cross-examination, he stated that he did not identify any of the accused and the informant Rajesh Kumar did not tell the name of the accused to him. 10. P.W. 2 Umesh Prasad also stated in court that on 7.1.1998, the occurrence took place in the shop of the informant, Rajesh Kumar. Rajesh Kumar told him that two accused persons, at the point of pistol, were demanding 'rangdari from him and during ‘chhina-jhapti, the pistol fell down. He also stated that the name of the accused was not told to him. 11. P.W. 3, Niranjan Prasad also stated that the occurrence took place on 7.1.1998 and when they made hulla, then the two accused persons ran away. They chased them, but they ran away. He did not identify any accused. Rajesh told him that the accused were demanding money on the point of pistol and on his objection, the pistol fell down and the dacoits ran away. They had also fallen down and the bomb exploded but the name of dacoits was not disclosed to him by the informant. 12. P.W. 5, Binod Prasad, stated in the court that on the date of occurrence, i.e. on 7.1.1998 at about 7:30 P.M. Rakesh called him, saying that 'mama', thieves have entered in the shop, whereupon he made hulla and other witnesses, Niranjan, Santosh and Umesh came and the accused persons ran away. Rajesh told him that two persons had come to the shop. They were demanding cigarette and when he asked for money, then the accused brought out a pistol, which he caught hold out. In his cross-examination, he stated that he did not identify any of the accused. He does not know Mangra and Samra. Rajesh told him that two persons had come to the shop. They were demanding cigarette and when he asked for money, then the accused brought out a pistol, which he caught hold out. In his cross-examination, he stated that he did not identify any of the accused. He does not know Mangra and Samra. 13. P.W. 6, Santosh Kumar also stated that on 7.1 .1998, the occurrence took place and on hulla, he reached to the shop of Rajesh. Rajesh told him that the two accused Mangra and Somra had come. They were demanding money at the point of pistol but he said that he had not seen the occurrence. 14. Thus from the evidence of these independent witnesses, P.Ws. 1 to 3 and 5, it is apparent that all the witnesses came immediately after the occurrence. The name of the accused persons were not disclosed to them. Although, P.W. 4 and even P.W. 7 claimed that they identified the accused and they knew their names as Mangra Oraon and his father's name. P.W. 4 and P.W. 7 both had stated that in that night, the Oaroga came on telephone at about 11:30 P.M but from the fardbeyan, it appears that it was registered on the next day that is on 8.1.1998 at one A.M. and the informant P.W. 4 and his brother P.W. 7 and even P.W. 5, the 'mama' of the informant have stated that the revolver was seized by the police in the night itself at 11 P.M. but from the Fradbeyan, it appears that the same was produced on 1 A.M. which creates doubt in the prosecution case. The seizure list, which has been marked as exhibit in the trial also, says that the seizure was made on 8.1.1998 at 1:45 in the afternoon and thus the statement of both the witnesses P.W. 4, P.W. 7 and P.W. 5, 'mama' contradictory to the seizure list, time and place and as also the time and place of fardbeyan. It seems that the informant had not identified the accused and subsequently on the next day after getting the information from here and there and on guess work, he named the accused persons. It seems that the informant had not identified the accused and subsequently on the next day after getting the information from here and there and on guess work, he named the accused persons. Learned Trial Court while acquitting the accused Somar Oraon at para-11 of his judgment, has stated that since the informant did not disclose the names of accused to people assembled on the place of occurrence, Somra Oraon becomes entitled to get benefit of doubt. 15. I find that the conviction of the appellant is also doubtful on the basis of the evidence. Accordingly, the judgment and conviction dated 9th January, 2002, passed by Sri R.N. Verma, Additional Judicial Commissioner-cum-Special Judge No.1, Ranchi is set aside and the appeal is allowed. 16. Appellant Mangra Oraon is on bail and hence he (sic-is?) released from the bondage of his bail bond.