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2016 DIGILAW 1098 (JHR)

Soma Oraon S/o Gendra Oraon v. State of Jharkhand

2016-07-20

AMITAV K.GUPTA

body2016
JUDGMENT : Amitav K. Gupta, J. 1. This appeal is directed against the judgment of conviction dated 29.04.2003 and order of sentence dated 30.04.2003 passed by the learned Addl. District and Sessions Judge, Fast Track Court no. 1 Gumla, in S.T. No. 250/1989 whereby the appellant was found guilty and convicted for the offence under Sections 324 I.P.C and sentenced to undergo imprisonment for two years and a fine of Rs. 1000/- with a default clause of further imprisonment of six months on failure to deposit the fine. 2. The prosecution's case in brief as per the fardbeyan of the informant, Budhu Oraon (PW-2) is that on 24.12.1981, at 12 noon, he was going to his plot of land and when he reached near the Semal tree the accused, namely, Soma Oraon armed with tangi came running there along with his father, Gendra Oraon and mother, Birso Orain. It is alleged that Birso Orain caught him and the accused, Soma Oraon and his father, Gendra Oraon assaulted him with tangi due to which he sustained injuries on his back, arm, ear and head. Thereafter, Mahadeo Oraon (PW-1) along with Jowakhim Oraon and his daughter, Budhni Devi (PW-3) came there and the accused persons fled away. The informant was brought to his home and thereafter taken to the hospital. It is alleged that due to land dispute the accused persons had assaulted the informant with fists and slaps. On the basis of the fardbeyan, the police registered Gumla P.S. Case No. 196/1981 dated 24.12.1981 under Sections 323, 324, 307/34 I.P.C. On completion of investigation, charge-sheet was laid and the accused persons faced the trial on the charges framed and the defence was of complete denial. On the basis of the evidence on record the trial court acquitted the co-accused, Birso Orain but convicted the appellant for the offence under Section 324 IPC. It transpires from the record that one co-accused, Gendra Oraon died during the trial. 3. Learned counsel appearing for the appellant, while assailing the impugned judgment, has argued that it would be evident that the witnesses, namely, PW-1 (Mahadeo Oraon), PW-3 (Budhni Devi), PW-4 (Soma Oraon), PW-5 (Pandu Oraon) and PW-6 (Jatta Oraon) are the brother, daughter, brother-in-law and nephews respectively of the informant i.e. PW-2 (Budhu Oraon). 3. Learned counsel appearing for the appellant, while assailing the impugned judgment, has argued that it would be evident that the witnesses, namely, PW-1 (Mahadeo Oraon), PW-3 (Budhni Devi), PW-4 (Soma Oraon), PW-5 (Pandu Oraon) and PW-6 (Jatta Oraon) are the brother, daughter, brother-in-law and nephews respectively of the informant i.e. PW-2 (Budhu Oraon). That all of them are related and highly interested witnesses and there is no explanation as to why no independent witnesses were examined as the occurrence had taken place in an open area of the village. That the informant has also admitted that there was a panchayati but surprisingly none of the panchayat witnesses have been examined. That the informant has, in his chief examination, deposed that when he reached near the Semal tree the co-accused, Birso Orain caught hold of him and the other two co-accused assaulted him with tangi whereas in his cross-examination he has stated that all the accused persons called him near the Semal tree and admitted that talks took place between them near the Semal tree and a panchayati was also convened on account of the land dispute. It is argued that PW-3 (Budhni Devi) stated that she had seen the occurrence from her house which is situated 100 yards from the place of occurrence. PW-4 (Soma Oraon) is the brother-in-law of the informant and a highly interested witness. PW-5 (Pandu Oraon) is the nephew of the informant and he is not an eye witness to the occurrence. In his cross-examination he has stated that his house is situated at a distance of half a k.m. and when he reached the place he saw 10-12 other persons present there. He has testified that they had cleaned the wounds of the informant and they had taken him to the police station whereas other witnesses have stated that the informant was taken to the hospital. PW-5 has admitted that his statement was not recorded by the police and the informant, in terms of social relation, is his brother. PW-6 (Jatta Oraon) is the nephew of the informant. PW-7 is a formal witness. It is contended by the learned counsel that the doctor has not been examined and the injury report has not been brought on record. That the investigating officer, (I.O.) has not been examined and there is contradiction in the testimony of witnesses regarding the manner and place of occurrence. PW-7 is a formal witness. It is contended by the learned counsel that the doctor has not been examined and the injury report has not been brought on record. That the investigating officer, (I.O.) has not been examined and there is contradiction in the testimony of witnesses regarding the manner and place of occurrence. The non-examination of the I.O. has prejudiced the defence and in the absence of any injury report the conviction of the appellant under Section 324 IPC is not sustainable, hence the appellant deserves to be acquitted of the charge. 4. Per contra, learned counsel for the State has contended that no doubt medical evidence is not on record but the witnesses have consistently supported the manner of assault and just because the witnesses are related to the informant, their evidence cannot be discarded on this count only. In fact they are natural witnesses who had witnessed the occurrence. There is no illegality in the impugned order warranting interference by this Court. 5. Having heard the learned counsels and on going through the evidence, it is abundantly clear that there are material contradictions in the testimony of the informant, i.e. PW-2. It is noticed that in examination-in-chief, the informant has stated that when he reached the Semal tree, the appellant and the other co-accused came armed with tangi and assaulted him whereas in his cross-examination he has stated that the accused were near the Semal tree and he went there on the asking of the accused persons. That a panchayati had taken place for one and half hours and talks had taken place with respect to the land dispute. It is well settled that the testimony of the interested witnesses is not necessarily unreliable, however, it is necessary that the evidence of such witnesses should be scrutinised with caution. On scrutiny of the testimony of the prosecution witnesses, it is evident that PW-3 deposed that the accused persons had chased her and she ran away to save herself. In cross-examination she has been asked whether she had made such a statement before the police. PW-3 has stated in her cross-examination that she was the first person to reach the place of occurrence but PW-1 has not stated that PW-3 was chased by the accused. In cross-examination she has been asked whether she had made such a statement before the police. PW-3 has stated in her cross-examination that she was the first person to reach the place of occurrence but PW-1 has not stated that PW-3 was chased by the accused. PW-1 has admitted that accused Birso is the sister of PW-2 (the informant) and there was land dispute between PW-2 and Birso who was cultivating the land and PW-2 had asked her to leave the cultivation of the land. PW-1 has stated that he was taking the child for a bath when he saw the accused persons assaulting PW-2 with Tangi and PW-2 sustained injuries on face, head, neck and hand. That due to the assault PW-2's hand was severed and it was hanging from the skin. He along with PW-3 and Soma had come to the rescue of PW-2 but, PW-3 has stated that she had seen the occurrence from her house. In cross-examination she has admitted that her house is situated 100 yards from the place of occurrence and in between there are houses of Suna Oraon and Lohra Oraon and the house of Choukidar Panu Oraon, is situated near the place of occurrence. PW-1 has admitted that police did not record his statement and he was deposing for the first time on the asking of PW-2. PW-5 (Pandu Oraon) admitted that his house is situated half a kilometer from the place of occurrence. In cross-examination, he has stated that the informant was taken to the police station which is contrary to the statement of P.Ws. 1 and 3 who stated that they brought PW-2 to the hospital. PW-6 (Jatta Oraon) has admitted that he is the nephew of the informant and the police had not recorded his statement and he has deposed in the court on the asking of the informant (PW-2). At this juncture it is necessary to reiterate the settled proposition that non-examination of Investigating Officer cannot be a ground for disbelieving the prosecution case when there is no inconsistency in the evidence of the witnesses. However, when prejudice is caused to the defence then the non-examination of the Investigating Officer is fatal to the prosecution's case. At this juncture it is necessary to reiterate the settled proposition that non-examination of Investigating Officer cannot be a ground for disbelieving the prosecution case when there is no inconsistency in the evidence of the witnesses. However, when prejudice is caused to the defence then the non-examination of the Investigating Officer is fatal to the prosecution's case. It is noticed that the informant has admitted that a panchayati had taken place for 1 to 1½ hours and PW-5 in his cross-examination has admitted that when he reached the place he saw that 10-12 persons had assembled there. PW-6 has disclosed that he was not examined by the police. In view of the discussions made above it is evident that there are material contradictions in the testimony of PW-2, the informant and PWs. 1 and 3. In such circumstances, the non-examination of the Investigating Officer assumes significance as it has caused prejudice to the defence since attention of the witnesses have been drawn to their deposition whether they had made the statement earlier before the police or not. PWs. 1, 3 and 6 have stated that due to the assault the victim's left hand was hanging from the skin of his hand. However, there is no finding or medical evidence to corroborate such injury or manner of assault. PW-2 has admitted that there is land dispute with accused Birso Oraon, who is his sister. Admittedly neither the Doctor has been examined nor the injury report has been proved to substantiate the fact that the victim was treated for such fatal injuries neither has the court giving any finding that marks of injury were shown or pointed out by the injured to the court. In the attending facts and circumstances, the contradictions in the testimony of the witnesses does not inspire confidence regarding the manner of occurrence or place of occurrence. 6. In view of the evidence and discussions made above a shadow of doubt is cast over the prosecution's case and in the given facts, the benefit of doubt enures to the accused, accordingly, the judgment and conviction of Soma Oraon, passed by the Addl. Sessions Judge, Fast Track Court No. 1, Gumla in S.T. No. 250/1989 is hereby set aside and the accused, Soma Oraon is hereby acquitted of the charges. He is discharged of the liabilities of the bail bonds. 7. In the result, the appeal stands allowed. Sessions Judge, Fast Track Court No. 1, Gumla in S.T. No. 250/1989 is hereby set aside and the accused, Soma Oraon is hereby acquitted of the charges. He is discharged of the liabilities of the bail bonds. 7. In the result, the appeal stands allowed. Appeal allowed.