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2016 DIGILAW 756 (JHR)

Binni Oraon v. State of Jharkhand

2016-05-02

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : D.N. UPADHYAY, J. 1. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 17th May, 2003, passed by the Additional Judicial Commissioner, F.T.C. Ranchi in connection with Sessions Trial No. 202 of 1993 corresponding to G.R. Case No. 1556 of 1990, Mander P.S. Case No. 40 of 1990, whereby the appellant has been held guilty for the offences punishable under sections 448 and 304 of the Indian Penal Code and sentenced to undergo R.I. for life u/s 304 I.P.C. and to pay fine of Rs. 5,000/- to the dependent of the deceased and further sentenced to undergo R.I. for six months u/s 448 I.P.C. The sentences so passed were directed to run concurrently. 2. The prosecution case, in brief, is that on 9.5.1990 at about 8 p.m. while informant was sleeping in his house, the appellant committed house trespass and caused assault to Pairo Oraon by means of tangi, on his head and fled away. The occurrence was witnessed by the informant who happens to be the wife of Pairo Oraon. The injured was removed to hospital where some treatment was provided and he was referred to R.M.C.H. Ranchi, but, could not survive. On the basis of written report lodged by Puski Oraoin PW-2, Mander P.S. Case no. 40 of 1990 dated 10.5.1990 U/s. 324, 448 I.P.C. was registered. After death of Pairo Oraon Section 304 I.P.C. was added. After due investigation, charge sheet was submitted and, accordingly, cognizance was taken and case was committed to the Court of Sessions and registered as Sessions Trial no. 202 of 1993. 3. The appellant stood charged for the offences punishable under sections 448 and 304 I.P.C. to which he pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether five witnesses including informant Puski Orain PW2, Dr. Ajit Kumar Choudhary PW-3 who conducted post-mortem examination on the dead body of Pairo Oraon. Barju Orain PW-1 happens to be daughter of deceased and she has supported the prosecution case. The learned Additional Judicial Commissioner, Fast Track Court placing reliance on the evidence and documents available, held the appellant guilty u/s 448 and 304 I.P.C. and inflicted sentences as indicated above. 4. Barju Orain PW-1 happens to be daughter of deceased and she has supported the prosecution case. The learned Additional Judicial Commissioner, Fast Track Court placing reliance on the evidence and documents available, held the appellant guilty u/s 448 and 304 I.P.C. and inflicted sentences as indicated above. 4. At the very outset, learned counsel for the appellant has submitted that on the date of judgment the appellant was aged about sixty years and he has already remained in custody for about thirteen years and now he is aged about seventy-three years. Barju Oraoin PW-1 is not an eye witness to the occurrence as per her statement recorded in paragraph 5 of her deposition. She has admitted that she woke up after half an hour of the incident and it is a case of single blow and till Barju Oraoin PW-1 woke up, the appellant had left the place of occurrence. Puski Oraoin PW-2 is the informant. Though she has supported the prosecution case, but, she has admitted that at the time of occurrence all the family members including deceased were sleeping in the house. There was no source of light available. According to PW-2 the appellant entered in the house, inflicted blow by means of tangi on the head of deceased and fled away. She admits that during darkness she had witnessed the occurrence. After the appellant left the place she lit a lamp. It is submitted that investigating officer has not been examined and that has caused prejudice to the appellant. Besides above, it is submitted that conviction has been recorded u/s 448 and 304 I.P.C. and the appellant had already remained in custody for about thirteen years so, the sentence inflicted u/s 304 IPC may be reduced to the period already undergone. 5. Learned A.P.P. has opposed the arguments and submitted that PW-2 has fully supported the prosecution case which is being corroborated by PW-1. The doctor has found injuries on the head and skull bone of the deceased was found fractured. 6. We have examined the case record, perused the evidence available and the impugned judgment. The appellant happens to be the brother of the deceased and the informant is his sister-in-law (bhabhi). 7. The doctor has found injuries on the head and skull bone of the deceased was found fractured. 6. We have examined the case record, perused the evidence available and the impugned judgment. The appellant happens to be the brother of the deceased and the informant is his sister-in-law (bhabhi). 7. Considering the submissions, status of the convict and also taking into consideration that the occurrence took place in night and motive assigned by the informant has not been substantiated, we feel inclined to reduce the sentence from life imprisonment to period already undergone. In the circumstances, rigorous imprisonment for life inflicted u/s 304 IPC is hereby modified and reduced to period already undergone in custody. So far sentence inflicted u/s 448 I.P.C. is concerned, the appellant has already served out the same. 8. It reveals that the appellant has been sentenced to pay fine of Rs. 5,000/- to the dependent of deceased. Therefore, he shall be released after payment of the said amount to the dependent of the deceased. 9. With the above modification in sentence, the appeal stands disposed of. Appeal disposed of.