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2013 DIGILAW 53 (JHR)

Mangra Oraon v. State of Jharkhand

2013-01-09

D.N.PATEL, D.N.UPADHYAY

body2013
ORDER Per D.N. Patel, J. 1. The present appeal has been preferred against the judgment and order of conviction and sentence dated 26.6.2002 and 27.6.2002 respectively passed by the learned 1st Additional Sessions Judge, Gumla. in Sessions Trial No. 168 of 2000 whereby the appellant has been held guilty for offence under Section 302/201 of the Indian Penal Code and accordingly he has been convicted under Section 302. IPC and sentenced to undergo rigorous imprisonment for life. Further, the appellant has also been convicted under Section 201 of the Indian Penal Code and accordingly sentenced to undergo rigorous imprisonment for seven years. However, both the sentences have been ordered to run concurrently. 2. It is the case of the prosecution that on 18.4.2000 at about 10 a.m. the informant Chunnu Oraon (who has not been examined) gave fardbeyan to the police that on 14.4.2000 when the informant returned to his house from his field. he did not find his wife Nando Devi (deceased) in the house. When he asked his daughter-in-law, Pusho Devi (PW 2). she conveyed the informant that the accused appellant Mangra Oraon who is the eldest son of the informant had assaulted his mother Nando Devi accusing her as witch. Thereafter, the informant had reached the house of the accused appellant who was living separately from the informant. There also Nando Devi was not traceable. Thereafter, the informant started searching his wife. He also contacted his relatives and ultimately on 17.4.2000 the informant came to know that the dead body of his wife Nando Devi was lying inside a well of a garden of one Soma Oraon. (not examined). Thereafter, he found the dead body of his wife Nando Devi Fardbeyan of the case was given on 18.4.2000 at about 10.00 a.m. 3. On the basis of the said fardbeyan Gumla P.S. Case No. 60 of 2000 was registered and investigation was carried out. After completion of the investigation charge-sheet was submitted against the appellant who faced the trial and was convicted as aforesaid. 4. It is alleged by the prosecution that PW 2 is the eye-witness and statements of other witnesses were recorded and the case was committed to the Court of Sessions being Sessions Trial No. 168 of 2000. After completion of the investigation charge-sheet was submitted against the appellant who faced the trial and was convicted as aforesaid. 4. It is alleged by the prosecution that PW 2 is the eye-witness and statements of other witnesses were recorded and the case was committed to the Court of Sessions being Sessions Trial No. 168 of 2000. On the basis of the evidence given by the prosecution witnesses PW 1 to PW 9 the learned trial Court has convicted the appellant under Sections 302/201, IPC and accordingly sentenced as aforesaid. Against the judgment and order of conviction and sentence passed by the learned trial Court the present appeal has been preferred by the appellant. 5. We have heard the learned counsel for the appellant who has submitted that the prosecution has failed to prove the offence of murder beyond all reasonable doubts. There are major omissions contradiction and improvements as per the depositions of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial Court and hence the judgment and order of conviction and sentence of the appellant passed by the learned trial Court deserves to be quashed and set aside. It is further submitted by the learned counsel for the appellant that PW 2 (Pusho Devi) is not at all an eye-witness to the occurrence. Learned counsel for the appellant has meticulously taken this Court in detail upon the deposition of PW 2 and it is submitted that she has not seen the incident of murder allegedly committed by the appellant. Looking to her deposition. she has stated that the appellant had given some slaps treating Nando Devi (deceased) as a witch. Thereafter both of them had left and she (PW 2) and the appellant had gone to their own houses as they were living separately. Thus, it is submitted by the learned counsel for the appellant that the prosecution has failed to prove the offence of murder allegedly committed by the appellant. It is also submitted by the learned counsel that PWs 3, 4 and 7 are the hearsay witnesses. So far as other witnesses are concerned. they are witnesses to the inquest report and the FIR which are Ext. 1 and 3 respectively PW 6 is the investigating officer PW 5 is Dr. It is also submitted by the learned counsel that PWs 3, 4 and 7 are the hearsay witnesses. So far as other witnesses are concerned. they are witnesses to the inquest report and the FIR which are Ext. 1 and 3 respectively PW 6 is the investigating officer PW 5 is Dr. Prem Kumar who had conducted post-mortem on the dead body of the deceased and had found as many as five incised wounds on the dead body of the deceased. Thus, the ocular evidence and the medical evidence are in contradiction to each other. As per eye-witness (PW 2), slaps were given by the appellant to the deceased Nando Devi whereas as per the medical evidence of Dr. Prem Kumar (PW 5). there were as many as five incised wounds. Neither the weapon was recovered, nor the blood stained earth blood stained clothes or any other materials connected with the murder of the deceased committed by the appellant was recovered or discovered by the investigating agency. It is also submitted by the counsel for the appellant that the investigating officer has also failed to locate the place of occurrence. Thus, there is no proof of the place of occurrence in this case. These aspects of the matter have not been properly appreciated by the learned trial Court and hence the judgment and order of conviction and sentence by the learned trial Court deserves to be quashed and set aside. It is further submitted by the learned counsel for the appellant that the appellant has already remained in custody for more than 12 years. Thus, in absence of any cogent clinching and reliable evidence against the appellant for causing murder of the deceased the appellant deserves to be acquitted and released from the judicial custody forthwith by quashing the impugned judgment and order of conviction of the appellant passed in Sessions Trial No. 168 of 2000. 6. We have also heard learned Addl. P.P. who has submitted that the case of prosecution has been fully established by the depositions of the PWs 1 to 9 examined before the learned trial Court and no error has been committed by the learned trial Court in appreciating the evidence of prosecution witnesses by convicting the appellant for the offence of murder. P.P. who has submitted that the case of prosecution has been fully established by the depositions of the PWs 1 to 9 examined before the learned trial Court and no error has been committed by the learned trial Court in appreciating the evidence of prosecution witnesses by convicting the appellant for the offence of murder. It is also submitted by the learned counsel appearing on behalf of the State that PW 2 is the eye-witness and she has clearly narrated the role played by the appellant in causing murder of the deceased. It is also submitted by the learned counsel appearing on behalf of the State that the contradiction. if any in the depositions of the prosecution witnesses is minor in nature and hence their depositions have been correctly appreciated by the learned trial Court and therefore the appeal may not be entertained by this Court. 7. Having heard both sides and looking to the evidence on record. it appears that the whole incident was brought to light on 18.4.2000 by the fardbeyan of the informant who has given fardbeyan before the Police that he has seen the dead body of his wife Nando Devi (deceased) into the well in the garden of Soma Oraon. It is stated in the fardbeyan that on 14.4.2000 when the informant returned to his house from his field, he did not find in his wife his house. When he asked his daughter-in-law (PW 2), she informed the informant that the appellant had assaulted his mother (who is the wife of the informant), by accusing her as a witch (dayan). The appellant had given some slaps and he had also threatened Pusho Devi (PW 2) to go inside her house otherwise she will be assaulted. FIR (Ext. 1) is proved by PW 4 Maheshwar Prasad who is a formal witness and he had proved the signature of the officer-in-charge. 8. Thus, looking to the prosecution case, PW 2. Pusho Devi is the star witness. Looking to her depositions. it appears that she is not an eye-witness at all. It has been observed by the trial Court in para 2 of its judgment that PW 2 is the solitary eye-witness to the occurrence which is an incorrect appreciation of the evidence on record. Looking to her deposition, it is evident that she had seen the appellant giving slaps to his mother Nando Devi (deceased). It has been observed by the trial Court in para 2 of its judgment that PW 2 is the solitary eye-witness to the occurrence which is an incorrect appreciation of the evidence on record. Looking to her deposition, it is evident that she had seen the appellant giving slaps to his mother Nando Devi (deceased). Pusho Devi (PW 2) was also given threat by the appellant to go inside her house and thereafter PW 2 had gone in her house and the appellant had left for his house. It is also evidenced from the deposition that the appellant is residing separately from his parents the informant Chunnu Oraon and the deceased mother Nando Devi. Thus, she (PW 2) is not, in fact, an eye-witness of the murder of the deceased, nor this is a case of last seen together. It was never conveyed by PW 2 that both i.e. appellant and the deceased had gone together. These aspects of the matter have not been properly appreciated by the learned trial Court. Rest of the witnesses (PWs 1, 3, and 7) are hearsay witnesses. Thus, PW 2 is not a trustworthy and reliable witness. She has never stated about the murder of the deceased committed by the appellant. She has wrongly been narrated as an eye-witness. Thus, the prosecution has failed to prove beyond all reasonable doubt the offence of murder committed by the appellant PWs 4, 6, 8 and 9 have proved the FIR and the inquest report (Ext. 1 and 3). Dr Prem Kumar (PW 5) has proved the post-mortem report (Ext. 2) and he has deposed that there were as many as five incised wounds on the dead body of the deceased. Who caused those injuries is not coming out from the evidence of prosecution witness at all. The only witness of the prosecution is PW 2 (Pusho Devi) who has also not stated that the appellant had caused these five incised wounds on the dead body of the deceased (Nando Devi). In absence of evidence of murder the order of conviction and sentence passed by the learned trial Court is not sustainable and is fit to be set aside. 9. In absence of evidence of murder the order of conviction and sentence passed by the learned trial Court is not sustainable and is fit to be set aside. 9. We, therefore, allow this appeal and set aside the impugned judgment and order of conviction and sentence of the appellant by the 1st Additional, Sessions Judge, Gumla, in Sessions Trial No. 168 of 2000 dated 26/27th June, 2002. The appellant is in jail custody, is directed to be released forthwith from custody. if not wanted in connection with an other case(s). Appeal allowed.