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2015 DIGILAW 256 (JHR)

Sandu Oraon @ Bahira Oraon v. State of Jharkhand

2015-02-18

R.R.PRASAD, RAVI NATH VERMA

body2015
ORDER :- 1. This appeal is directed against the judgment of conviction and order of sentence dated 23.4.2004 passed by Additional Judicial Commissioner, FTC-IV, Ranchi in S.T. No. 340 of 2002, whereby and whereunder, the court having found the appellant guilty for committing murder of his wife Karmi Oraoin convicted him for the offence punishable under Section 302 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. 2. The case of the prosecution, as has been made out by the prosecution, is that the Officer In-charge of Mandar Police Station received an information on 8.4.2002 that some occurrence has taken place at Village Tunko Toli, Chund. On receiving such information, Officer In-charge asked one Hare Ram Paswan-Sub Inspector (P.W.7) to go to the place of occurrence for its verification. When Hare Ram Paswan-P.W. 7 reached to the place of occurrence at about 6:30pm, he was informed by Radha Mohan Oraon, Chowkidar (P.W. 1) that while he was in his house, he came to know that the appellant has killed his wife by chopping off her head with spade. Thereupon, he immediately came to the place of occurrence and found the dead-body lying on the ground where the appellant was brandishing spade and was not allowing anyone to come near the dead-body. He further informed that the appellant had killed his wife, as he was having suspicion that his wife had had illicit relationship with someone else. Accordingly, Investigating Officer recorded the fard-beyan (Ext.1 /1) of P.W. 1, upon which a formal FIR (Ext. 3) was drawn against the appellant. 3. The Investigating Officer during investigation held inquest on the dead-body of deceased-Karmi Oraoin and prepared an inquest report (Ext. 4). During inspection of the place of occurrence, earth smeared with blood was seized under seizure list (Ext.5). At the same time, the police also seized spade. The Investigating Officer sent the dead-body for postmortem examination which was conducted by Dr. Ram Sevak Sahu-P.W. 6 who upon holding autopsy on the dead-body of the deceased-Karmi Oraoin found the following injury:- 12cm x 5cm x bone deep on fronto lateral neck cutting soft tissue blood vessels trachea oesophagus, 3rd, 4th and 5th survical vertebra including spinal code. Cut was also found on the left side of mandible bone. Ram Sevak Sahu-P.W. 6 who upon holding autopsy on the dead-body of the deceased-Karmi Oraoin found the following injury:- 12cm x 5cm x bone deep on fronto lateral neck cutting soft tissue blood vessels trachea oesophagus, 3rd, 4th and 5th survical vertebra including spinal code. Cut was also found on the left side of mandible bone. On inspection of the wound, three tissue tags were found projecting from left margin of wound indicating minimum of four blows. There was infiltration of blood and blood clots in the soft and bony tissues on the side of injuries. 4. The doctor issued postmortem examination report (Ext.2) with an opinion that the death was caused on account of sharp cutting heavy weapon due to above-mentioned injuries, caused by sharp cutting heavy weapon like that of 'spade and gandasa'. 5. After completion of the investigation, when the Investigating Officer submitted charge-sheet against the appellant, cognizance of the offence, as aforesaid, was taken and the case was committed to the Court of Sessions where the appellant was put on trial. 6. The prosecution in order to prove its case examined altogether 7 witnesses. Of them, P.W. 2-Mangra Oraon, P.W. 3-Shiv Oraon are the hearsay witnesses, whereas P.W. 4-Chunnu Munda and P.W. 5-Dipan Orain have been declared hostile. P.W. 1-Radha Mohan Lohra-informant also happens to be a hearsay witness who has testified that when he returned home after discharging duty, he came to know that the appellant has killed his wife by cutting her neck with spade. When he came to the place of occurrence, he found the neck almost severed off from the body. The appellant by brandishing 'spade' was not allowing anybody to come near to the dead-body. He has further testified that the appellant committed murder of his wife, as he was suspecting that his wife was having illicit relationship with the other. 7. After closure of the prosecution case, the appellant was questioned under Section 313 of Cr. P.C. about the incriminating circumstances appearing against him to which he denied. 8. The trial court having regard to the facts and circumstances of the case recorded the judgment of conviction and order of sentence against the appellant, which is under challenge. 9. Mr. 7. After closure of the prosecution case, the appellant was questioned under Section 313 of Cr. P.C. about the incriminating circumstances appearing against him to which he denied. 8. The trial court having regard to the facts and circumstances of the case recorded the judgment of conviction and order of sentence against the appellant, which is under challenge. 9. Mr. Rohit, learned counsel appearing for the appellant, submits that all the witnesses, including P.W.1, examined by the prosecution, are the hearsay witnesses, still the court held the appellant guilty for the offence punishable under Section 302 of Indian Penal Code for committing murder of his wife and thereby it committed illegality in recording the judgment of conviction and order of sentence against the appellant and hence, it is fit to be set aside. 10. As against this, learned counsel for the State submits that though the witnesses, examined by the prosecution, are the hearsay witnesses but something is there in the testimony of P.W. 1 which does indicate that it could only be the appellant and none other who had committed murder of the deceased and under the circumstances, the trial court has rightly convicted the appellant and thereby, the judgment of conviction and order of sentence never warrants to be interfered with by this Court. 11. Having heard learned counsel for the parties and on perusal of the records, we do find that the trial court has convicted the appellant for the offence punishable under Section 302 of Indian Penal Code for committing murder of his wife on the basis of the evidence of P.W. 1 but admittedly P.W. 1 happens to be a hearsay witness, as he has testified that when he came to the village after performing his duty, he came to know that the appellant had committed murder of his wife. After knowing all this, when he came to the place of occurrence, he found the appellant present near the dead-body. After knowing all this, when he came to the place of occurrence, he found the appellant present near the dead-body. He has further testified that the appellant at that time was imputing charge against his wife that she was having illicit relationship with someone but this piece of evidence that the appellant, at that point of time, was telling that his wife was having illicit relationship with someone else, does not find corroboration from the earlier statement, wherein it has been stated by the informant-P.W. 1 that the appellant was suspecting that his wife was having illicit relationship with other. Thus, two circumstances are there (i) the appellant was found present near the dead-body having spade on his hands and (ii) he was not allowing the other persons to come near the dead-body but these two circumstances taken together cannot be said to be the circumstances indicating only towards guilt of the appellant alone, as there may be the other reason on account of which the appellant was not allowing the other persons to come near the dead-body. 12. Thus, the circumstances appearing in the case cannot be said to have been indicating only towards the guilt of the appellant. Accordingly, we do find that the trial court was not justified in recording the judgment of conviction and order of sentence against the appellant. 13. Further, we do find that since the 'spade' was seen in the hands of the appellant, it was taken by the court that it could only be the appellant who committed murder of his wife with said 'spade', but that 'spade', though seized by the Investigating Officer, has never been sent to the Forensic Science Laboratory to find out as to whether blood group, appearing over the spade, was matching with the blood group of the wife of the appellant and as such, it cannot said with certainty that said 'spade' was used for committing the murder of the deceased. 14. Accordingly, the judgment of conviction and order of sentence passed against the appellant is hereby set aside. Consequently, the appellant is acquitted of the charge levelled against him and is directed to be released forthwith, if not wanted in any other case. 15. In the result, this appeal stands allowed.