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2016 DIGILAW 336 (JHR)

Jalia @ Jaleshwar Oraon v. State of Jharkhand

2016-02-15

D.N.UPADHYAY, RATNAKER BHENGRA

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JUDGMENT : By Court : This Criminal Appeal has been directed against the judgment of conviction and order of sentence dated 21st December, 2004 and 22nd December, 2004, respectively, passed by learned Additional Sessions Judge, F.T.C., Latehar, in connection with Sessions Case No. 84/1997, corresponding to G.R. Case No.348 of 1993, arising out of Chandwa P.S. Case No.61 of 1993, whereby the appellant has been found guilty for the offence punishable under Sections 302/34, IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/, in default of making payment of fine, simple imprisonment for two months. 2. The case of the prosecution, in brief, is that on 21.08.1993, at about 9:00 p.m., informant, who happens to be wife of the deceased-Righan Singh, heard alarm raised by her husband coming out from the house of Jalia @ Jaleshwar Oraon (appellant). She reached to the place and found that appellant and his son have been causing assault to Righan Singh by means of Tangi and small stick (lathi). Thereafter, she rushed to her son and informed him about the occurrence and requested to intervene. Bhola Singh, P.W.2, son of the informant, did not dare to accompany the informant. Thereafter, the informant went to the house of Chowkidar, but he was also not found. Then, she returned back home and slept during night. On the following morning, Ram Keshwar Oraon informed that dead body of Righan Singh has been lying at a place within village Sikni. The informant went to the place and found her husband-Righan lying dead having injuries on his person. Fardbeyan of Yashoda Devi, P.W.1 was recorded at 12:30 hours on 22.08.1993 at village Sikni and a case being Chandwa P.S. Case No.61 of 1993, under Sections 302/34, IPC was registered. 3. The police, after due investigation, submitted charge sheet against the appellant Jalia @ Jaleshwar Oraon. The attendance of co-accused Deo Sahai Oraon could not be secured, as a result, only appellant Jalia @ Jaleshwar Oraon was put on trial. To substantiate the charge, prosecution has examined altogether seven witnesses and proved documents. Learned Additional Sessions Judge, F.T.C., placing reliance on the evidence and documents available, held the appellant guilty for the offence punishable under Sections 302/34, IPC and sentenced him, as indicated above. 4. The appellant has assailed the impugned judgment on the ground that Md. To substantiate the charge, prosecution has examined altogether seven witnesses and proved documents. Learned Additional Sessions Judge, F.T.C., placing reliance on the evidence and documents available, held the appellant guilty for the offence punishable under Sections 302/34, IPC and sentenced him, as indicated above. 4. The appellant has assailed the impugned judgment on the ground that Md. Mustakim, P.W.4 and Jitan Ram, P.W.7 are the formal witnesses, whereas Phulo Devi P.W.5 and Ram Keshwar Oraon P.W.6, have turned hostile and they have not supported the prosecution case. Doctor Ram Naresh Sharma, P.W.3 had conducted autopsy on the dead body of Righan and has described the injuries noticed by him at the time of postmortem examination. Bhola Singh, P.W.2, happens to be son of the deceased, but he is a hearsay witness and he has deposed in court what was communicated to him by his mother Yashoda Devi, P.W.1. 5. Now, it is admitted position that prosecution case is banking only on the testimony of P.W.1, Yashoda Devi. She could not be considered as a reliable witness and no credibility is to be given to her deposition. At the time of her examination in Court, she was aged about sixty years and the occurrence took place four years prior to the date of her examination in court. She has admitted that her eyesight has gone weak and she could not able to see properly during night. The occurrence took place at about 9:00 p.m. at a distance of about 100 steps from the house of the informant. It is also admitted that it was rainy season and there was heavy rain on that very date. If the circumstance, as disclosed by P.W.1, is admitted, it could be said that she did not hear any alarm raised by her husband from the distance of 100 steps. For the argument sake, if the version of the informant is admitted to be true, no reliance could be placed on her further statement when she says that she had seen the appellant and his son causing assault to Righan by means of Tangi and small stick, but she did not raise alarm nor she made any attempt to save her husband. Conduct of a wife, whose husband is being assaulted by two persons, does not appear to be that of the informant. Conduct of a wife, whose husband is being assaulted by two persons, does not appear to be that of the informant. Again she says that after seeing the occurrence, she went to her son and requested him to intervene to save his father, but the son refused to accompany her. Then, she went to the house of Chowkidar, but could not find him. She came back to her residence and slept during night. In the morning, she did not make effort to search out her husband. She did not inform any of the villagers about the incident, which she had seen during night. Therefore, the conduct of the informant does not appear to be natural and her statement is required to be discarded. Learned senior counsel has submitted that the informant had not seen the appellant or his son causing assault to Righan (deceased), rather Righan (deceased) in course of returning home, might be intercepted by someone, who killed him and thrown the dead body on the road. To strengthen this submission, learned senior counsel has submitted that Mangru Oraon is an attesting witness to the Ferdbeyan, but he did not come forward to support the version of the informant. According to evidence available, nearest house from the place of occurrence is that of Mangru. He did not say that he heard screaming or alarm raised by deceased-Righan from the house of the appellant or from any place situated near his house. Phulo Devi, P.W.5 and Ram Keshwar Oraon, P.W.6 are wife and son of said Mangru Oraon, but they did not support the prosecution case, as made out by the informant. 6. I.O. has not been examined, weapon of crime has not been seized, place of occurrence has not been proved and nothing incriminating has been recovered from the place of occurrence. The inquest has not been proved rather learned trial judge has gone to the extent of exhibiting carbon copy of the case diary. It is submitted that learned trial judge has committed gross error by placing reliance on the statement of solitary witness Yashoda Devi, who is also interested witness for holding the appellant guilty for offence of murder. The impugned judgment is liable to be set aside. 7. It is submitted that learned trial judge has committed gross error by placing reliance on the statement of solitary witness Yashoda Devi, who is also interested witness for holding the appellant guilty for offence of murder. The impugned judgment is liable to be set aside. 7. Learned Additional Public Prosecutor has opposed the argument and submitted that the informant was a helpless wife, in whose presence, her husband was subjected to assault by the appellant and his son. To have help, she had ran from pillar to post, but all in vain. Even the son has not extended any help to save his father. If the situation was so, what was expected from other villagers, could be imagined. Evidence of informant is intact that after hearing alarm raised by her husband, she went to the place of occurrence, which is the courtyard of the house of the appellant. She had seen the appellant and his son causing assault by means of Tangi and lathi. She returned back to her son, sought help from him, but all in vain. Then, she went to Chowkidar, but he was not found at home. In such situation, she had left with no option, but to remain at home, which she did. In the morning, Ram Keshwar Oraon, P.W.6, informed about the dead body of Righan lying on the road within village Sikni. Immediately, she rushed to see the dead body and after arrival of the police, she had given her ferdbeyan. Nothing more was expected from the wife, in whose presence, her husband was killed and she did not get any help from any corner. Only because statement of informant is not corroborated by any other witness, that cannot be thrown away. Learned trial judge has rightly held the appellant guilty and the impugned judgment of conviction and order of sentence need no interference. 8. Admittedly, the finding of the learned trial judge is based on the evidence of Yashoda Devi, P.W.1, wife of the deceased. What was seen by her and what she had done have already been explained in the preceding paragraph. Without repeating the same, we would like to discuss certain aspect of the prosecution case, which has come up in the evidence of P.W.1. The time of occurrence is 9:00 p.m. and the place of occurrence is situated at about 100 steps from the house of the informant. Without repeating the same, we would like to discuss certain aspect of the prosecution case, which has come up in the evidence of P.W.1. The time of occurrence is 9:00 p.m. and the place of occurrence is situated at about 100 steps from the house of the informant. Normally, the village life stops after sunset and the people used to confine in their respective houses. The informant has also said that after return from market, she was in her house. It is also stated that, it was raining heavily outside. We do not agree with the version of the informant when she says that she heard alarm raised by her husband, which was coming from the house of the appellant situated at a distance of 100 steps, meaning thereby, more than 100 ft. Even admitting the version of informant to be true, the conduct of the informant does not appear to be genuine and natural. She says that she had witnessed the occurrence from the distance of about 10 steps, if it was so, why her presence was not noticed by any of the assailants, is a question to be answered. Calmly and quietly, after witnessing the assault, she went to her son and requested him to extend help, but he did not dare to go to the place of occurrence. The informant then went to the house of Chowkidar, but he was not found, but then she did not inform to the wife of the Chowkidar. Thereafter, she did not take effort to inform any of the villagers. In paragraph 7 of her cross examination, she says that her husband was lying on the ground when she had reached at the place of occurrence. In paragraph 5 of her cross examination, at one point, she says that she does not understand minutes and hours, but in the next sentence, she says that it had taken half an hour to reach to the house of her son. It is also admitted by P.W.1 that house of Mangru is just adjacent to the house of the appellant. The prosecution has not extended any explanation as to why Mangru has not come to court to depose in favour of the informant. The son and wife of Mangru have been examined, but they did not support the prosecution case. 9. It is also admitted by P.W.1 that house of Mangru is just adjacent to the house of the appellant. The prosecution has not extended any explanation as to why Mangru has not come to court to depose in favour of the informant. The son and wife of Mangru have been examined, but they did not support the prosecution case. 9. Considering all these aspects, as pointed out above, we do not find that the testimony of P.W.1 is wholly reliable. Besides the above, fardbeyan and inquest report have not been proved. Due to non examination of the I.O., place of occurrence has also not been proved. Only because death of Righan was homicidal, the appellant could not be held liable for murder of Righan. No motive has been assigned as to why Righan was killed by the appellant and his son. 10. Considering the facts and circumstances and the discussions made above, we are inclined to give at least benefit of doubt to the appellant, and accordingly, this appeal is allowed and the judgment of conviction and sentence dated 21st December, 2004 and 22nd December, 2004, respectively, passed by learned Additional Sessions Judge, F.T.C., Latehar, in Sessions Case No. 84/1997, is, hereby, set aside. The appellant, named above, who is in custody, is, hereby, directed to be released forthwith, if not wanted in any other case, and for that the convicting/ successor court shall issue appropriate direction, if needed.