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2016 DIGILAW 353 (JHR)

Biran Oraon v. State of Jharkhand

2016-02-18

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 5th April, 2005 and 7th April, 2005 respectively, passed by 1st Additional Sessions Judge, Lohardaga in connection with Sessions Trial Case no. 750 of 1993 corresponding to G.R. Case no. 145 of 1992, arising out of Lohardaga P.S. Case no. 62 of 1992, whereby the appellant has been held guilty for the offence punishable under section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The case of the prosecution as it appear from the fard-beyan of Manomat Orain, recorded on 9.4.1992 at 2:30 hrs. at Sadar Hospital, Lohardaga, is that on 8.4.1992 at about 7 p.m. husband of the informant left home to have liquor. At about 10 p.m. while the informant was trying to make her younger child sleep, her another son Baburam Oraon went out of the house for urinating. In the mean time, Baburam Oraon raised alarm after which the informant also came out of the house and saw the appellant causing injury to her husband by means of dagger. Two more persons who were standing at the spot, fled away after seeing the informant. The informant scuffled with the appellant Biran Oraon and some how succeeded to snatch dagger from his hand. In the mean time, father and mother of the deceased also reached there. Thereafter, the appellant fled away. Injured Etwa Oraon was taken to hospital on a rickshaw but, he was declared dead. On the basis of fard-bayan of Manomat Orain Lohardaga P.S. Case no. 62 of 1992 U/s 302/34 I.P.C. was registered against Biran Oraon and two unknown persons. The Police after due investigation submitted charge sheet and accordingly cognizance of the offence was taken and the case was committed to the Court of Sessions and registered as Sessions Trial Case no. 750 of 1993. 3. The appellant stood charged for the offence punishable under section 302 Indian Penal Code to which he pleaded not guilty and claimed to be tried. To substantiate the charge the prosecution has examined altogether ten witnesses and proved documents like fard-beyan, post-mortem report, seizure list etc. The learned Additional Sessions Judge placing reliance on the evidence and documents available, held the appellant guilty for the offence punishable under section 302 IPC and sentenced him as indicated above. 4. To substantiate the charge the prosecution has examined altogether ten witnesses and proved documents like fard-beyan, post-mortem report, seizure list etc. The learned Additional Sessions Judge placing reliance on the evidence and documents available, held the appellant guilty for the offence punishable under section 302 IPC and sentenced him as indicated above. 4. Learned counsel for the appellant has assailed the impugned judgment mainly on the ground that prosecution has miserably failed to bring home the charge framed against the appellant. According to prosecution case, Baburam Oraon PW-6 and Manomat Orain PW-7 who are son and wife of the deceased were the eye witnesses but, they have not supported the prosecution case in Court and they have turned hostile. PW-7 who is informant had admitted some part of her statement recorded U/s 161 Cr.P.C. but, she had not named the appellant Biran Oraon in the Court. PW-6 had also not supported the prosecution case and said that he had seen his father lying on the ground when he came out of the house for urinating. Baburam Oraon was examined U/s 164 Cr.P.C. but, the Magistrate who had recorded the statement has not been examined. The signature of Baburam Oraon appearing on that statement has also not been proved. The Bench Clerk of the said Magistrate has formally proved the statement recorded U/s 164 Cr.P.C. Since, the Magistrate has not been examined, signature of witness Baburam Oraon appearing on said statement has not been proved, the statement so recorded u/s 164 Cr.P.C. (Ext.-4) cannot be read in evidence. Since, the prosecution case is not supported by any material witness, examination of Doctor and I.O. appears to be formal in nature. Rantho Oraon PW-3 and Baso Orain PW-4 are the parents of the deceased but, they have also not supported the prosecution case. Impugned judgment of conviction and sentence passed by the learned Additional Sessions Judge is not sustainable in the eye of law. 5. The learned A.P.P. has opposed the arguments and submitted that the informant has supported the fact which was communicated to her by PW-6. She has admitted that after alarm raised by her son Baburam Oraon, she came out of the house and saw the appellant causing injury to Etwa by means of dagger. 5. The learned A.P.P. has opposed the arguments and submitted that the informant has supported the fact which was communicated to her by PW-6. She has admitted that after alarm raised by her son Baburam Oraon, she came out of the house and saw the appellant causing injury to Etwa by means of dagger. She admits that she had given her statement before Police in which she had stated that she had seen the appellant Biran Oraon causing injuries to Etwa by means of dagger. It is settled law, if a witness has been declared hostile, his entire deposition shall not be thrown away. The evidence which is required to be relied upon, can well be considered even if the witness has turned hostile. Furthermore, attention of hostile witnesses i.e. Baburam Oraon PW-6 and Manomat Orain PW-7, were drawn to their previous statements recorded u/s 161 Cr.P.C. and those statements were referred to the Investigating Officer PW-10 who has conceded that aforesaid two witnesses Baburam Oraon and Manomat Orain have given that statement before him u/s 161 Cr.P.C. 6. We have examined the evidence and documents available on record and also perused the impugned judgment. Admittedly, PW-3 Rantho Oraon (father) and PW-4 Baso Orain (mother), PW-6 Baburam Oraon (son) and PW-7 Manomat Orain (wife) have not supported the prosecution case and they did not say that the appellant Biran Oraon had committed murder of Etwa Oraon by causing injury to him by means of dagger. PW-3 and PW-4 have not pretended themselves to be eye witnesses and they have said that on hulla when they came out of their house they found deceased Etwa lying on the ground. Baburam Oraon son of deceased was aged about nine years at the time of occurrence. In his statement u/s 161 Cr.P.C. he has stated that he came out of the house for urinating and he had seen his father quarreling with appellant and his father. He wanted to bring his father back but, till then Biran Oraon started causing assault to Etwa by means of dagger. Immediately, he ran to his house and informed his mother-PW-7 then both of them came out of the house and snatched away dagger from Biran. Thereafter, Biran fled away from the place of occurrence. He wanted to bring his father back but, till then Biran Oraon started causing assault to Etwa by means of dagger. Immediately, he ran to his house and informed his mother-PW-7 then both of them came out of the house and snatched away dagger from Biran. Thereafter, Biran fled away from the place of occurrence. Although, aforesaid two witnesses have not supported said fact during the trial and they have turned hostile but the statement of PW-6 recorded by the Police does not reflect in the fard-bayan of informant. Since, all four material witnesses have turned hostile, we do not feel inclined to up hold the judgment of conviction and order of sentence dated 5.4.2005 and 7.4.2005 respectively, passed by the 1st Additional Sessions Judge, Lohardaga in connection with Sessions Trial Case no. 750 of 1993 corresponding to G.R. Case no. 145 of 1992 arising out of Lohardaga P.S. Case no. 62 of 1992. Accordingly, the impugned judgment of conviction and order of sentenced is set-aside and the appellant is directed to be released forthwith from custody if, not wanted, in any other case and for that convicting/successor court shall issue appropriate direction, if necessary. 7. Appeal is allowed.