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2015 DIGILAW 361 (JHR)

Mahadeo Oraon v. State of Jharkhand

2015-03-11

RONGON MUKHOPADHYAY

body2015
JUDGMENT : R.MUKHOPADHYAY, J. This appeal is directed against the judgment of conviction and order of sentence dated 20.12.2005, passed by Sri Anand Kumar Gupta, learned Additional District & Sessions Judge-II, Gumla, in Sessions Trial No. 254 of 2003, whereby and whereunder the appellant has been convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for 7 years and a fine of Rs.1,000/-and failure to deposit fine would lead to further simple imprisonment for three months. 2. The prosecution story as would appear from the FIR instituted by the informant-Bala Oraon is to the effect that when the appellant was assaulting his wife on 28.05.2003 at about 8 P.M., the informant tried to intervene, at which the appellant assaulted him on the head by means of a “khukhri”. 3. Based on the aforesaid allegations, Gumla P.S. Case No. 103 of 2003, corresponding to G.R. No. 327 of 2003 for the offence punishable under Sections 324/307 of the Indian Penal Code was instituted. Since the informant died on 3.6.2003, Section 302 of the Indian Penal Code was added. 4. Upon investigation, finding the case to be true, chargesheet was submitted and after taking cognizance, the case was committed to the Court of Sessions, where the charge was framed on 10.02.2004 for the offence punishable under Section 302 of the Indian Penal Code. The charge was read over to the appellant, to which he pleaded not guilty and claimed to be tried. 5. The prosecution examined as many as 7 witnesses in support of its case. 6. P.W-1-Pachwa Oraon in his evidence did not support the occurrence. 7. P.W-2-Bandhan Oraon also did not support the occurrence and he was declared hostile by the prosecution. 8. P.W-3-Smt. Peto Orain, who is the wife of the appellant, has stated that she did not have a turbulent relationship with the appellant and they never used to fight. On the prayer of the prosecution, this witness was also declared hostile. 9. P.W-4-Punai Oraon did not support the occurrence and he was also declared hostile by the prosecution. 10. P.W-5-Dr. Saroj Kumar had conducted autopsy on the dead body of Baila Oraon and had found the following injuries:- (i) Lacerated wound 1” x 1”x soft tissue on the left thumb with nail missing. 9. P.W-4-Punai Oraon did not support the occurrence and he was also declared hostile by the prosecution. 10. P.W-5-Dr. Saroj Kumar had conducted autopsy on the dead body of Baila Oraon and had found the following injuries:- (i) Lacerated wound 1” x 1”x soft tissue on the left thumb with nail missing. (ii) Incised wound ( stitched) 5”x1/4” bone deep on left frontal region of head cutting the underlying bone and brain. There was presence of blood and blood clots in cranial cavity. Internal organs were pale. 11. It was opined by P.W-5 that the above noted injuries were anti mortem in nature. Lacerated wounds were caused by hard and blunt substance may be possible by biting by a person and incised wound by heavy sharp cut weapon may be by “Khukhri”. The doctor had opined that the cause of death was due to head injury. 12. P.W-6-Smt Somari Devi is the wife of the deceased and she has stated that the appellant was trying to assault his wife and when her husband went to intervene, he was assaulted by the appellant on his head. She has also stated that her husband survived for 8 days and in course of treatment, finally succumbed to his injuries. 13. P.W-7-Rizwan Ahmad Khan is the Investigating Officer, who had investigated into the occurrence. This witness has stated that on 29.05.2003 at about 10 A.M., the deceased had come and given a written report leading to institution of Gumla P.S. Case No. 103 of 2003. This witness had recorded the restatement of the informant and had sent him to the hospital for treatment. The place of occurrence was also verified by him and it was found that in the place of occurrence, a mud wall has been constructed and a tiled house is also standing therein and there was a common courtyard. This witness had recorded the statements of Somari Devi, Punai, Pachwa Oraon and Pheto Orain. He had also prepared the inquest report on 3.6.2003 when he came to know that the informant has succumbed to his injuries. This witness had arrested the appellant on 2.7.2003 and thereafter had submitted chargesheet under Section 302/201 of the Indian Penal Code. 14. The appellant was examined under Section 313 Cr.P.C. in which he denied the allegations. 15. Heard Mr. Mohit Prakash, learned counsel for the appellant and Ms. Anita Sinha, learned counsel for the State. This witness had arrested the appellant on 2.7.2003 and thereafter had submitted chargesheet under Section 302/201 of the Indian Penal Code. 14. The appellant was examined under Section 313 Cr.P.C. in which he denied the allegations. 15. Heard Mr. Mohit Prakash, learned counsel for the appellant and Ms. Anita Sinha, learned counsel for the State. 16. Learned counsel for the appellant submits that the conviction is based on the sole testimony of P.W-6 and none of the independent witnesses have supported the prosecution case. He has further submitted that the deceased could have been saved had timely medical care been made available to him. He has also submitted that no blood stained soil or “Khukhri” were seized by the investigating officer and that even assuming the occurrence had taken place, there was no repeated blow by the appellant upon the deceased. He has submitted that the postmortem report does not contain the age of injury and as such the same is not a believable piece of evidence. Continuing with his argument, learned counsel for the appellant has submitted that the incident even assuming that the same happened at the instance of the appellant was at the spur of moment and whatever weapon was available was used by him. Learned counsel for the appellant further submits that the appellant has remained in custody for about 2 years and seven months and he has already faced the rigors of trial since 2003 and as such an alternative argument has been put forward that if his conviction is sustained, he be released on the ground of the period undergone by him as according to learned counsel for the appellant, the appellant has been sufficiently punished for the alleged occurrence. 17. Learned counsel for the State on the other hand has submitted that although the conviction is based on the sole testimony of P.W-6 but since she was an eye witness and has given a clear description about the incident, the conviction of the appellant be sustained. It has been submitted by learned counsel for the State that the fardbeyan itself can be treated to be a dying declaration of the deceased and coupled with the evidence of P.W-6, the prosecution has been able to establish its case beyond any reasonable doubt. 18. It has been submitted by learned counsel for the State that the fardbeyan itself can be treated to be a dying declaration of the deceased and coupled with the evidence of P.W-6, the prosecution has been able to establish its case beyond any reasonable doubt. 18. After hearing the learned counsel for the parties and after perusing the lower court records, I find that fardbeyan was given by the deceased –informant on 29.05.2003 and it is not the case of the defence that the informant was in an unconscious state or was not in a position to give the fardbeyan. The informant died on 3.6.2003 and on his death, the fardbeyan given by him assumed more significance. The informant had categorically stated in his fardbeyan, which can be treated to be a dying declaration, about the factum of occurrence and he had pinpointed the name of the appellant as the person who had given a “Khukhri” blow on the vital part of his body. The version of the informant has been corroborated by the evidence of P.W-6 and the defence has not been able to create any major discrepancy in the statement of the informant and in the evidence of P.W-6. P.Ws. 1, 2, 3 & 4 did not support the occurrence but the same cannot dissuade the evidence of P.W-6 as the testimony of P.W-6 is natural, believable and fully corroborating the fardbeyan of the informant. 19. In the case of Veer Singh and ors Vs. State of U.P., reported in (2014) 2 SCC 455 while considering the testimony of a single witness, it was held as follows:- "21. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is not the number of witnesses but quality of their evidence which is important as there is no requirement under the law of evidence that any particular number of witnesses is to be examined to prove/disprove a fact. The evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided under Section 134 of the Evidence Act. As a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. The evidence must be weighed and not counted. It is quality and not quantity which determines the adequacy of evidence as has been provided under Section 134 of the Evidence Act. As a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. (Vide Vadivelu Thevar v. State of Madras, Kunju v. State of T.N., Bipin Kumar Mondal v. State of W.B., Mahesh v. State of M.P, Prithipal Singh v. State of Punjab, Kishan Chand v. State of Haryana and Gulam Sarbar v. State of Jharkhand.)". 20. The evidence of P.W-6 is solid, reliable, corroborative and cannot be discarded on the ground that she is the sole eye witness to the occurrence. The qualitative value of the evidence of this witness inspires confidence and when seen in the backdrop of the dying declaration of the informant assumes added significance and based on the sole testimony of P.W-6 and the surrounding circumstances, the learned trial court was perfectly legal and justified in convicting the appellant for the offence punishable under section 304 Part II of the Indian Penal Code. 21. It has been strenuously argued on behalf of the appellant that the appellant has sufficiently been punished and as such he may be released in view of the period undergone by the appellant. In this context, reference may be made to the case of State of M.P. Vs. Babloo, reported in 2014 9 SCC 281, wherein, it was held as follows:- "18. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all the relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society. 19. In the instant case, as noticed above, the High Court in a very casual manner reduced the sentence of the accused to the period already undergone merely on the ground that the accused is first offender. If such a view is taken, the accused, who commit such offence, will be emboldened and repeat such crime, which is totally detrimental to the society." 22. In view of the law laid down, as quoted above, the prayer of the appellant for releasing him in view of the period he has already undergone, being devoid of any merit, is rejected. 23. Considering the totality of the circumstances enumerated above, I do not find any illegality in the judgment of conviction and order of sentence dated 20.12.2005, passed by Sri Anand Kumar Gupta, learned Additional District & Sessions Judge-II, Gumla, in Sessions Trial No. 254 of 2003. 24. This appeal is accordingly dismissed and the judgment of conviction and order of sentence dated 20.12.2005, passed by Sri Anand Kumar Gupta, learned Additional District & Sessions Judge-II, Gumla, in Sessions Trial No. 254 of 2003, is sustained. 25. As the appellant is on bail, his bail bond is cancelled and the appellant is directed to surrender immediately in order to serve out the rest period of the sentence.