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2011 DIGILAW 721 (JHR)

Samu Oraon v. State of Jharkhand

2011-07-25

P.P.BHATT, R.K.MERATHIA

body2011
JUDGMENT PRESENT The Hon’ble Mr. Justice R.K. Merathia The Hon'ble Mr. Justice P.P. Bhatt. By Court. This appeal is directed against the Judgment of conviction and order of sentence dated 15.1.2003 and 17.1.2003 respectively, passed by learned Additional District & Sessions Judge, Fast Track Court no. II, Gumla, in Sessions Trial No. 88 of 2000, convicting the appellant under section 302 of the Indian Penal Code and sentencing him to undergo R.I. for life. 2. The prosecution case, in short, is that the informant ( P.W-6) Jitbahan Oraon (son of the deceased-Jitu Oraon) lodged a Fardbeyan at about 10 A.M. on 31.1.2000 to the effect that at about 1 P.M. in the preceding day i.e. on 30.1.2000, his father Jitu Oraon along with his grandson-Bonka Oraon ( P.W-5) aged about 6 years (son of the informant) went for grazing cattle at about 1 P.M. When the informant returned from market at about 7 P.M., the villagers told him that some unknown person has killed his father-Jitu Oraon. He went to the place of occurrence and found his father dead with bleeding injuries. His wife and villagers assembled there. His son P.W.-5 told that when he along with his grandfather-Jitu Oraon were returning after grazing cattle, one young person wearing black full pant and wrapping green shawl came running and started assaulting the deceased by 'Tangi'. On this, P.W-5 due to fear, fled away. While running away, P.W-5 saw that the said unknown criminal was running towards 'Singrauli Basti'. P.W-5 came crying to the village and informed the wife of the informant-P.W-10. In the fardbeyan, it is further alleged that the deceased used to do "Jhar Phuk' and therefore due to enmity on this account, some unknown person has killed his father. 3. Mr. Yogesh Modi, learned Amicus Curiae, appearing for the appellant, assailed the impugned judgement on various grounds. He also submitted that the appellant is in jail for about 11 years. 4. Learned counsel for the State supported the impugned judgment. 5. After hearing the parties and going through the materials on record, we are satisfied that the appellant deserves benefit of doubt for the following reasons. 6. He also submitted that the appellant is in jail for about 11 years. 4. Learned counsel for the State supported the impugned judgment. 5. After hearing the parties and going through the materials on record, we are satisfied that the appellant deserves benefit of doubt for the following reasons. 6. It is true that the presence of P.W-5 at the place of occurrence has been established and the doctor has also found five incise injuries on the head of the deceased caused by sharp cutting weapon but on the basis of the materials brought on record, it cannot be said that the prosecution has proved its case beyond all reasonable doubt that it is the appellant, who has killed the deceased. 7. P.W--5 is the only eye witness, as per the prosecution. He was aged about 6 years at the time of alleged occurrence and about 8-9 years at the time of deposition. The court has found him competent to give evidence. He has inter alia said in cross-examination in para 3 that the appellant is of the same village and his house is at about 100 yards. He further said that he knew the appellant from the very beginning. This creates a serious doubt about the prosecution case. If P.W-5 was knowing the appellant from very beginning why he described the appellant as a person wearing black pant and wrapping him with green 'shaul'. He might not be knowing the name of the appellant, but then if he could give the description of the cloths, he could have given description of the identity of the appellant by other means and in other manner such as location of his house etc. If this witness was knowing the appellant from very beginning then there was no question of his saying that he can identify the accused, if shown. The test identification also becomes meaningless. 8. The informant-P.W-6 said in paragraph 5 that there was no quarrel between the appellant and the deceased from before and that the villagers were having doubt on the appellant. He further said that he informed the police station on the basis of the doubt of the villagers on the appellant. 9. The test identification also becomes meaningless. 8. The informant-P.W-6 said in paragraph 5 that there was no quarrel between the appellant and the deceased from before and that the villagers were having doubt on the appellant. He further said that he informed the police station on the basis of the doubt of the villagers on the appellant. 9. P.W-2-Chilgu Oroan proved the seizure of blood stained soil ( Ext-2)and inquest report of deceased ( Ext-3) but he did not say anything about the seizure of weapon 'Tangi' and did not prove the same, though he is shown as one of the witnesses of the seizure of 'Tangi'. This witness was also a witness to the confession but he did not say anything and did not prove the confessional statement also. 10. P.W-11-Mano Oraon-is another witness to the seizure of weapon but he also did not say anything about the same in his evidence. 11. Only the initial I.O.-Shankar Ram-P.W-12, was examined in this case. He proved the inquest report and the seizure of blood stained soil, but the subsequent I.O. Vijay Kumar Singh has not been examined, which has prejudiced the defence seriously. 12. The appellant was arrested on 6.2.2000. P.W.-1 is the Judicial Magistrate, who had conducted the T.I. Parade on 29.2.2000 i.e. after about 23 days. (It may be noted here that Police Station Case Number is Sisai( Bharno) P.S. Case No. 5/2000 but it is inadvertently mentioned as 65/2000 in the T.I. Chart and then in the evidence of P.W-5). 13 After carefully considering the entire matter, we are of the opinion that the appellant deserves benefit of doubt. 14. In the result, this appeal is allowed. The Judgment of conviction and order of sentence dated 15.1.2003 and 17.1.2003 respectively, passed by learned Additional District & Sessions Judge, Fast Track Court no. II, Gumla, in Sessions Trial No. 88 of 2000, is set aside. Appellant is directed to be released forthwith, if not wanted in any other case.