Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 836 (JHR)

Somra Oraon v. State of Jharkhand

2015-07-22

R.R.PRASAD, RAMATH PATNAIK

body2015
JUDGMENT : By Court:-Heard. 1. This appeal is directed against the judgment of conviction and order of sentence dated 5th February, 2004, passed by the then learned Addl. Judicial Commissioner-cum-Fast Track Court No.IV, Ranchi, in Sessions Trial No.301 of 1998, whereby and whereunder the Court having found the appellant guilty for committing murder of Birsa Oraon, convicted him for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.1,000/-. 2. The case of the prosecution, as has been projected, in the F.I.R. (Ext.4) is that on 13.04.1985 at about 1.00 p.m. when Birsa Oraon, the husband of the informant-Jauni Orain (P.W.1) came near the house of appellant, Somra Oraon, altercation took place in between them. During which course, the appellant, Somra Oraon assaulted him with 'sawal' as a result of which, Birsa Oraon fell down. Thereupon the informant (P.W.1)-Jauni Orain with the help of others Emil Oraon (P.W.2), Jindo Oraon and Mashih Ekka (P.W.4) brought him to the house and then the informant started looking for the means for taking her husband to Hospital. The informant did not get any means to take her husband to the Hospital. Meanwhile at about 4' O Clock, Birsa Oraon died. 3. On the next day i.e. 14.04.1985, the informant took the dead-body to the Mandar Police Station where Jauni Orain (P.W.1) gave her 'fardbeyan', upon which FIR (Ext.4) was registered. Thereupon the I.O. took up the investigation, during which, he held inquest on the dead-body of the deceased and prepared an inquest report. Thereafter the dead-body was sent for post-mortem examination which was conducted by Dr. Kanhaiya Prasad Srivastava (P.W.5) who on holding autopsy did find the following injuries :- (A) Abrasion (i) 6 cm X 1 cm situated over back of left forearm. (ii) 1 cm X 1 cm situated over front of left leg. (B) Lacerated wound:- (i) 4 cm X 1½ X soft tissue and 2 cm X ½ cm X soft tissue situated over back of of left forearm. (ii) 3 cm X 1 cm situated over front of right leg middle part with fracture of right tibia and fibula bone with contusion and laceration of soft tissue around. (B) Lacerated wound:- (i) 4 cm X 1½ X soft tissue and 2 cm X ½ cm X soft tissue situated over back of of left forearm. (ii) 3 cm X 1 cm situated over front of right leg middle part with fracture of right tibia and fibula bone with contusion and laceration of soft tissue around. (C) Internal :-There was diffuse contusion of scalp over back of head with presence of subdural blood and blood-clots over both sides of brain. 4. The Doctor issued post-mortem examination (Ext.3) with an opinion that all the injuries were ante-mortem in nature and have been caused by hard and blunt substance such as 'sawal'. According to the doctor, death was on account of head injury. 5. Meanwhile, the I.O. seized 'sawal' from the house of the appellant under a seizure-list (Ext.2). The I.O. recorded the statements of the witnesses. On completion of the investigation, when the charge-sheet was submitted, cognizance of the offence was taken in due course. When the case was committed to the Court of Sessions, the appellant was put on trial, during which the prosecution examined as many as six witnesses. Of them P.W.1-Jauni Orain (informant) and P.W.3 -Dashmi Orain are the eyewitnesses who did testify that they saw the appellant assaulting the deceased with sawal near his house. The appellant did assault over the leg and arm and then fled away. Thereafter the informant with the help of P.W.2 -Emil Oraon, P.W.4-Mashih Ekka and Jindo Oraon brought to the house where at about 4' O clock in the evening, Birsa Oraon died. 6. P.W.2-Emil Oraon is a witness to the inquest who had come to the place of occurrence when P.W.1-Jauni Orain (informant) had informed about the occurrence. P.W. 4-Mashih Ekka has been declared hostile. One witness, Salagi Orain has been examined as Court witness No.1 who has also testified that the appellant assaulted Birsa Oraon with 'sawal and when he fell down, he was brought home where he succumbed to his injuries. 7. Upon closure of the prosecution case, when the appellant was questioned under Section 313 Cr.P.C. about the incriminating evidences, appearing against him, he simply denied. 8. 7. Upon closure of the prosecution case, when the appellant was questioned under Section 313 Cr.P.C. about the incriminating evidences, appearing against him, he simply denied. 8. Two witnesses have been examined on behalf of the defence, wherein they have stated that the appellant has falsely been implicated on account of the fact that some dispute with respect to partition of the property is there in between the Somra Oraon, the appellant and the deceased. 9. The trial court having placed its implicit reliance on the testimonies of the eye-witnesses, Jauni Orain (P.W.1) and Dashmi Orain (P.W.3), found the appellant guilty for committing murder of Birsa Oraon and accordingly, recorded the order of conviction and sentence which is under-challenge. 10. Mr. H. K. Shikarwar, learned counsel appearing for the appellant submits that though the witnesses P.Ws.1 and 3 have deposed that on account of the deceased being assaulted by the appellant by 'sawal', he died but sufficient indication is there in their evidence to suggest that whatever happened it happened in course of the altercation which took place in between the deceased and the appellant. 11. In this regard, it was pointed out that such indication is also there in the statement of the informant made in the 'fardbeyan', wherein she has specifically stated that before the deceased was assaulted by the appellant, there had been altercation and if that is so, the appellant cannot be said to have committed culpable homicide rather the case becomes a culpable homicide not amounting to murder. 12. Mr. Hardev Pd. Singh, learned counsel appearing for the State submits that both P.Ws.1 and 3 have categorically deposed that the appellant did assault, causing injuries, resulting into the death of the deceased and thereby, the court has rightly convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code. 13. Having heard learned counsel appearing for the parties and on perusal of the records, we do find that the case of the prosecution as has been testified by the witnesses P.W.1-Jauni Orain and P.W.3-Dashmi Orain that when the deceased came near the house of the Somra Oraon, Somra Oraon assaulted the deceased with 'sawal' over his arm and leg. However, P.W.3 has also testified that the appellant assaulted the deceased indiscriminately with 'sawal'. On account of injuries being sustained, the deceased died. 14. However, P.W.3 has also testified that the appellant assaulted the deceased indiscriminately with 'sawal'. On account of injuries being sustained, the deceased died. 14. But the question does arise as to whether in the facts and circumstances of the case, the prosecution has been able to prove its case of culpable homicide? 15. It be stated that we have taken notice of the evidences of P.W.1 and P.W.3, whereby they have testified that on account of deceased being assaulted by 'sawal' he sustained injuries resulting into his death, but cautious examination of the testimonies of P.Ws.1 and 3, we do find that sufficient indication is there to suggest that the deceased was assaulted during altercation. 16. In this regard, we may refer to the testimony of P.W.1, as elicited in the cross-examination, wherein she has stated that she reached at the place of occurrence when altercation was going on in between them. This version further gets strengthen from the statement made in the 'fardbeyan' wherein it has been stated by the informant that before the deceased was assaulted, altercation had taken place. Similar is the case with P.W.3 from whose evidence it also appears that the deceased was assaulted in course of altercation which ensued when the appellant asked for his share in the property. The testimonies of the aforesaid witnesses further get corroboration from the evidence of CW.1-Salgi Orain, who has also testified that it is on account of some dispute with respect to partition of property, altercation had taken place, during which, the deceased was assaulted, as a result of which, he died. 17. Under the circumstances, we do find that the case never falls within the parametre of culpable homicide rather the case falls within one of the exceptions, Exception 4 of Section 300 I.P.C. 18. Accordingly, the conviction recorded under Section 302 of the Indian Penal Code is converted into Section 304 (Part 2) of the I.P.C. and thereby, the appellant is sentenced for the period already undergone. 19. With this modification in the judgment of conviction and order of sentence, this appeal is partly allowed. 20. Since the appellant is in custody, let he be released forthwith, if not wanted in any other case. Appeal partly allowed.