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2012 DIGILAW 617 (JHR)

Kinu Oraon v. State of Jharkhand

2012-04-23

D.N.UPADHYAY, R.K.MERATHIA

body2012
JUDGMENT By Court: Both these appeals arise out of the common judgment of conviction dated 21.10.2003 and order of sentence dated 23.10.2003 passed by the learned Additional Sessions Judge, Fast Track Court No.-2, Bokaro in Sessions Trial No. 148 of 2001 / Supplementary Sessions Trial No. 23 of 2003, convicting the appellants under sections 302 and 201 IPC and sentencing them to undergo R.I. for life for the offence under section 302 IPC and R.I. for three years for the offence under section 201 IPC. However, both the sentences were directed to run concurrently. 2. The prosecution case in short is that the informant-Tuggu Oraon (PW-7) lodged fardbeyan on 22.05.2000 at about 8.45 AM in presence of his brother Basudeo Ram (PW-2) that in the previous night at 11.00 PM, on hearing rumour of fire, he reached at the house of his sister's daughter (deceased) and found her dead. The villagers were trying to extinguish the fire by throwing water from the roof of the house. The deceased was married with the appellant-Kinu Oraon about four years back. After sometime, her husband-Kinu Oraon (appellant), her Bhaisur and Gotni (appellants-Anand Oraon and Hemu Oraon) and her father-in-law started torturing her as she could not bear child. She never slept in the room in which she was found dead. Appellants did not try to save the deceased. As other articles in the room were not burnt, it was suspected that the appellants have killed the deceased projecting accidental death by fire. 3. The prosecution examined 12 witnesses. PW-1 is the uncle of the deceased named in the fardbeyan and he was present at the time of recording fardbeyan. PW-2 is the father of the deceased. PW-3 is an independent witness. PWs – 4 & 5 have been declared hostile. PW-6 is another uncle of the deceased. PW-7 is the informant. PW-8 is the doctor who assisted the doctor who conducted the postmortem on the dead body of the deceased and proved the postmortem report. PW-9 is an independent witness. PW-10 is a formal witness. PW-11 has been tendered for cross-examination and PW-11 is chaukidar of the village. 4. Learned counsel for the appellants assailed the impugned judgment of conviction on various grounds and submitted that the prosecution has not been able to prove it's case beyond all reasonable doubts. PW-9 is an independent witness. PW-10 is a formal witness. PW-11 has been tendered for cross-examination and PW-11 is chaukidar of the village. 4. Learned counsel for the appellants assailed the impugned judgment of conviction on various grounds and submitted that the prosecution has not been able to prove it's case beyond all reasonable doubts. He further submitted that due to non-examination of the investigating officer, the case of the appellants has been seriously prejudiced. He lastly submitted that the appellants-Kinu Oraon and Anand Oraon are in jail for the last 12 years and the appellants deserve the benefit of doubt. 5. On the other hand, learned counsel for the State supported the impugned judgment. 6. Witnesses have supported the prosecution case to the extent that the deceased was found dead with burn injuries in the house of her husband-Kinu Oraon (appellant). There appears to be some mystery behind the incident which has not been explained by the prosecution. 7. PW-1 is a hearsay witness who inter-alia said that the dead body of the deceased was taken out after breaking the door. He also said that the villagers were saying that the appellants along with the villagers were trying to extinguish the fire. PW-2 has also deposed in similar terms. PW-3 is an independent witness, who inter-alia said that on the alarm regarding fire, villagers assembled there. He also said that he reached at the place of occurrence within 10-15 minutes when it was learnt from the villagers and the appellants that fire has broke out in the house of the appellant and the deceased Aloka Devi was inside the house. He also said that the appellants-Anand Oraon and Hemu Oraon reside separately. PWs – 4 & 5 were declared hostile. PWs – 6 & 7 are hearsay witnesses. PW-8 is the doctor who assisted the doctor who conducted the postmortem on the dead body of the deceased. As per the doctor's evidence, the deceased died due to burn injuries. The cause of death was cardio respiratory failure due to shock and severe burn injuries and as a result of antemortem burn injuries covering 100% of the body. It may be noted here that in the postmortem report, the doctor found that her wrist and shoulder were dislocated. However, this witness said that no internal and external injuries were found on the body. PW-9 is an independent witness. It may be noted here that in the postmortem report, the doctor found that her wrist and shoulder were dislocated. However, this witness said that no internal and external injuries were found on the body. PW-9 is an independent witness. He inter-alia said that the room in which the deceased was found dead, was closed from inside which was broken by the villagers. He also said that at the time of occurrence, appellant-Kinu Oraon had gone to Munidih Basti and he reached there on getting information about this incident. Investigating Officer has not been examined in this case, though case diary has been marked as exhibit without objection on behalf of defence. 8. After hearing the parties at length and carefully going through the records, in our opinion, the prosecution has not been able to prove it's case beyond all reasonable doubts against the appellants. It is not possible to accept the case of the defence that it was a case of accidental death by fire. In case of accidental fire, she must have tried to save herself and she could have come out of the burning house. But the prosecution has not been able to prove as to under what circumstances and in what manner and by whom, the deceased was killed by setting her on fire. There is nothing to show that at the time of getting burn injuries, she was unconscious. If she was conscious, then she must have resisted and tried to save herself if anybody wanted to burn her. PW-9 has not been declared hostile. He said that the appellant was not present at the time of occurrence and he was called after the occurrence. Regarding appellants-Anand Oraon and Hemu Oraon, there are general and omnibus allegations and it has come in the evidence that they reside separately. 9. Taking into consideration the totality of the circumstances, we are inclined to give the benefit of doubt to the appellants. 10. Accordingly, these appeals are allowed. The judgment of conviction and order of sentence as passed by the trial court against the appellants, is set aside. Appellants are acquitted of the charges. Appellant-Hemu Oraon is on bail. She is discharged from the liability of her bail bonds. Appellants-Kinu Oraon and Anand Oraon are in jail. They are directed to be released forthwith if not wanted in connection with any other case.