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2017 DIGILAW 1248 (JHR)

Mangru Oraon v. State of Jharkhand

2017-07-25

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : 1. Heard learned counsel for the appellant and the learned Addl. P.P. for the State. 2. The sole appellant is aggrieved by the Judgment of conviction dated 03.06.2006 and Order of sentence dated 05.06.2006 passed by the learned Additional Sessions Judge-II, Gumla, in Session Trial No. 269 of 2004, Where by the sole appellant has been found guilty and convicted for the offence under sections 302 and 307 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life for the offence under section 302 of the Indian Penal Code and R.I. For 7 years for the offence under section 307 of the Indian Penal Code, and both the sentences were directed to run concurrently. 3. According to the prosecution case, the case relates to murder of one Karmi Devi, mother of the informant Jamuna Kumari, in the night between 24-25.06.2004. The informant Jamuna Kumari aged about 10 years, is the child eye witness to the occurrence and she had given her fardbeyan to the Police on 25.06.2004 at 10 A.M. at her house in village Bongoloya, P.S. Basia, District Gumla. She stated that her father had died about 3-4 years ago due to some illness, and she has three brothers, one of whom was living with her Mousi at village Chharda. Her elder brother had gone to see film on C.D. in the house of Chhotan Lohra. On 24.06.2004 in the night, her uncle Mangru Oraon came to her house and he also stayed in her house. The informant slept with her mother and younger brother in one room. At about 3 A.M. in the morning, her uncle Mangru Oraon started abusing her mother and assaulting her with axe. The informant woke up and saw in the light of lamp burning in the room that her uncle Mangru Oraon was assaulting her mother with axe. She raised alarm and tried to save her mother, whereupon her uncle assaulted her also with axe causing injury on her left elbow. Upon hearing the alarm, her cousin Somra Oraon reached there and saved them and in the meantime accused fled away. The mother of the informant died at the spot. She raised alarm and tried to save her mother, whereupon her uncle assaulted her also with axe causing injury on her left elbow. Upon hearing the alarm, her cousin Somra Oraon reached there and saved them and in the meantime accused fled away. The mother of the informant died at the spot. She stated that 8-10 days ago her mother had told her uncle that he had ploughed his own land earlier, resulting in lesser yield to her, whereupon there was some altercation between them, for which the occurrence had taken place. On the basis of the fardbeyan of the informant, Basia P.S. Case No. 32 of 2004, corresponding to G.R. No. 388 of 2004 was instituted for the offence under sections 302, 307 and 324 of the Indian Penal Code, against the accused Mangru Oraon and investigation was taken up. Upon completing the investigation, the Police submitted charge sheet in the instant case. 4. Upon commitment of the case to the Court of session, charge was framed against the sole accused Mangru Oraon for the offences under sections 302 and 307 of the Indian Penal Code, and upon his pleading not guilty and claiming to be tried, he was put to trial. In course of trial, thirteen witnesses were examined on behalf of the prosecution, including the Investigating Officer and the Doctors. 5. P.W.-3 Jamuna Kumari is the informant in the case, and she being a child witness, her capacity to testify was tested by the Court and upon being satisfied that she was capable to testify, her evidence was recorded by the Court. She has stated that her mother Karmi Devi was dead. She was sleeping with her mother and a lamp was burning there. Her uncle Mangru Oraon assaulted her mother with axe causing injuries on her hand and cheek, due to which her mother died. Mangru Oraon assaulted her also by axe causing injuries. Thereafter, Mangru Oraon fled away. She was given medical treatment at Basia Hospital. She has identified the accused in the Court. She has also stated that police came and recorded her fardbeyan, whereupon she had put her signature. She has identified her signature on the fardbeyan, which was marked Ext.1. In her cross-examination she has stated that occurrence had taken place at about 3 A.M. in the night. Her younger brother Fagunu was also sleeping there. She has also stated that police came and recorded her fardbeyan, whereupon she had put her signature. She has identified her signature on the fardbeyan, which was marked Ext.1. In her cross-examination she has stated that occurrence had taken place at about 3 A.M. in the night. Her younger brother Fagunu was also sleeping there. She has also stated that Mangru Oraon sat in her angan after killing her mother. 6. P.W.-1 is Hiramani Tirkey, who has stated that the occurrence had taken place about 6 months ago on 24.06.2004, at about 3.00 A.M. in the morning. She was in her house when she heard the alarm raised by Jamuna Kumari and her brother Fagunu Tirkey. She came to the place of occurrence and found Karmi Devi dead. Jamuna Kumari was also injured. She saw Mangru Oraon fleeing away from the place of occurrence with blood stained axe in his hand. She has stated that Mangru Oraon is the elder brother of husband of Karmi Devi. She has identified the accused in the Court. 7. P.W.-2 Gangu Oraon is the son of the deceased. He has stated that his mother was murdered about 6 months ago and at the time of occurrence he had gone to see film in the house of Chhotan Lohra. He was informed about the occurrence by his cousin, whereupon he rushed to his house and saw his mother dead and his sister Jamuna Kumari injured. This witness was informed by his sister that they were assaulted by Mangru Oraon. He has stated that Mangru Oraon had assaulted his mother in drunken condition. He has identified Mangru Oraon in the Court. In his cross-examination he has stated that he was not present at the time of occurrence and he was informed about the occurrence by his sister. 8. P.W.-4 Somra Oraon is the cousin of the informant. He has stated that his aunt was murdered on 24.06.2004 at about 3.00 A.M. in the morning. He was in his house and upon alarm raised by Jamuna Kumari, he rushed to the place of occurrence and found Mangru Oraon standing with blood stained axe at the door. He called his aunt Karmi Devi, but she did not respond. Jamuna Kumari was also injured. He was in his house and upon alarm raised by Jamuna Kumari, he rushed to the place of occurrence and found Mangru Oraon standing with blood stained axe at the door. He called his aunt Karmi Devi, but she did not respond. Jamuna Kumari was also injured. He has stated that Mangru Oraon was not mentally ill and he had greedy eyes over the land of Karmi Devi, for which he had committed the murder. He has stated that the accused was apprehended by the police. He has identified the accused in the Court. In his cross-examination he has stated that his house is situated at a distance of 10 steps from the house of the deceased. Though this witness was put to extensive cross-examination, but nothing of much importance could be taken in his cross-examination. 9. P.W.-9 is Dalu Oraon, who has stated that Karmi Devi was murdered about 6 months ago. He was sleeping in his house. At about 3 A.M., he heard the noise, whereupon he went to the house of Karmi Devi along with other villagers, where he saw Mangru Oraon, with an axe and he was standing in the courtyard. Jamuna Kumari was also present there in injured condition. This witness has stated that since Mangru Oraon was armed with axe, it was he, who had assaulted them. He has stated that there was land dispute between the parties. He has identified the accused in the Court. In his cross-examination he has stated that his house is situated at about 30 steps from the house of the deceased. He has stated that when he reached the place of occurrence, he saw Mangru Oraon sitting in the courtyard with axe, and about 20-22 persons had assembled there, who had apprehended Mangru Oraon. 10. P.W.-6 is Budhwa Pahan, who has also stated that Karmi Devi was murdered at about 3 A.M., in the night between 24-25.06.2004. He was present in his house, upon hearing the noise he went to place of occurrence and he saw dead body of the deceased in the pool of blood and her daughter Jamuna Kumari was also standing there with injury in her elbow and she was crying. Jamuna Kumari informed that Mangru Oraon had assaulted her and her mother by axe. This witness sent Somra to inform the police. Jamuna Kumari informed that Mangru Oraon had assaulted her and her mother by axe. This witness sent Somra to inform the police. At about 10 A.M. In the morning, the police came and seized blood stained axe and blood stained soil and had prepared the seizure list, upon which he put his signature. He had identified his signature on the seizure list, which was marked Ext.3. He has also stated that the police prepared inquest report of the dead body, upon which also he had put his signature, which, upon his identification, was marked Ext.4. He has stated that the occurrence had taken place due to the land dispute and he has identified the accused in the Court. In his cross-examination, this witness has stated that axe, by which the murder was committed, was shown to him by Somra, which he had taken from accused Mangru Oraon. 11. P.W.-7 Markus Khadiya has also stated that Karmi Devi was murdered about 6 months ago and upon hearing the noise he had visited the place of occurrence, where several villagers had assembled. He saw Karmi Devi dead and her daughter Jamuna Kumari was also injured. The daughter of Karmi Devi informed that her uncle Mangru Oraon had assaulted both of them. This witness is also a witness to the seizure list and stated that he had put his thumb impression on the seizure list. He has also identified the accused in the Court. In his cross-examination he has stated that axe was seized by the police, which he had seen and it was blood stained. 12. P.W.-8 is Lachchu Khadiya, who has only stated that he was called by the police and his signatures were taken on some papers, but he had no knowledge what was written on the papers. 13. P.W.-5 Dr. A.K. Agrawal is the Medical Officer, who had conducted the post-mortem examination on the dead body of the deceased on 25.06.2004 at about 1.15 P.M. and had found the following ante-mortem injuries on the person of the deceased:- 1. One incised wound 3”X2”X2” over left wrist with fracture of lower end of ulna on medial aspect. 2. One incised wound 4"x1½" X2 ½" over left side middle neck with cutting of all soft tissues, blood vessels, with partial cut of trachea and esophagus. 3. One incised wound 3”X2”X2” over left wrist with fracture of lower end of ulna on medial aspect. 2. One incised wound 4"x1½" X2 ½" over left side middle neck with cutting of all soft tissues, blood vessels, with partial cut of trachea and esophagus. 3. One incised wound 3”x1”x1” over right side of chin and lower neck with cutting of lower gum. He has stated that all the above injuries were ante-mortem in nature and caused by sharp cutting weapon and were grievous in nature. Injury No.2 was sufficient to cause death in ordinary course of nature. Cause of death was due hemorrhage and shock. He has stated that time elapsed since death till post-mortem examination, was 12 to 24 hours. He has identified the post-mortem report to be in his pen and signature, which was marked Ext.2. 14. P.W.10 is Dr. Vinod Kumar Gupta. He had examined the injured informant on 25.06.2004 and had found the following injury on her person:- 1. Wound with incised margin over medial aspect of elbow and upper arm of left side- size 3½ “x 2”x muscle deep. He has stated that the injury was simple in nature, caused by sharp edged weapon. He has identified the injury report to be in his pen and signature, which was marked Ext.5. 15. P.W.-11 Ram Awadh Paswan had produced the axe and the blood stained soil in sealed condition with F.S.L. Label in the Court. Seals were opened in the Court. The axe was marked as material Ext.-I and the blood stained soil was marked as material Ext.-II. 16. P.W.12 Nawal Kishore Prasad, he is the Investigating Officer of the case. This witness has stated that on 25.06.2004, while he was posted as Officer- In-charge in Basia Police Station, he had received an information that one lady was murdered in village Bongoloya. He made the Senha Entry No. 441 about the information and proceeded for the place of occurrence. He reached the place of occurrence and recorded the fardbeyan of the informant Jamuna Kumari. He has identified the fardbeyan to be in his pen and signature and also bearing the signatures of Jamuna Kumari and one witness, which was marked Ext.7. He prepared the inquest report of the dead body, which he identified and the same was marked Ext.8. He has also proved the formal F.I.R., which was marked Ext.9. He has identified the fardbeyan to be in his pen and signature and also bearing the signatures of Jamuna Kumari and one witness, which was marked Ext.7. He prepared the inquest report of the dead body, which he identified and the same was marked Ext.8. He has also proved the formal F.I.R., which was marked Ext.9. He has stated that he took up investigation at the place of occurrence itself, and seized blood stained soil and blood stained axe on the basis of the confessional statement of the accused and prepared the seizure list. He has proved the seizure list, which was marked Ext.10. He has also proved confessional statement of Mangru Oraon, which was marked Ext.11. He recorded the statements of the witnesses and has given the details of the place of occurrence and has stated that the dead body was found on the bed. The bed and the earth nearby wwere full of blood. He has also stated that the house of Mangru Oraon was adjacent South to the place of occurrence. A lamp was also there with kerosene oil in it. He has stated that accused was apprehended after chase and he had admitted his guilt and on his pointing out the axe was recovered. The blood stained axe and blood stained earth were sent for F.S.L. Examination. He also got the statements of two witnesses, namely, Somra Oraon and Gangu Oraon recorded under section 164 of the Code of Criminal Procedure. He sent the dead body for post-mortem examination and received the post-mortem report. He has identified the weapon of offence, i.e., axe and blood stained soil in the Court, which were earlier marked as material Ext.-I and material Ext.-II. In his cross-examination he has stated that axe was recovered from the house of the accused. 17. P.W.-13 is Sri Krishna Kumar, the Sub-Divisional Judicial Magistrate, who had recorded the statements of two witnesses Somra Oraon and Gangu Oraon under section 164 of the Code of Criminal Procedure and has proved those statements, which were marked Exts. 12 and 12/1. 18. On the basis of the evidence on record, the sole appellant was convicted and sentenced by the Trial Court below, for the offences as aforesaid. 19. 12 and 12/1. 18. On the basis of the evidence on record, the sole appellant was convicted and sentenced by the Trial Court below, for the offences as aforesaid. 19. Learned counsel appearing for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, are absolutely illegal and cannot be sustained in the eyes of law, inasmuch as, the prosecution has failed to bring home the charges against the appellant beyond all reasonable doubts. It is submitted that there is only one eye witness to the occurrence, who is Jamuna Kumari, who is a child witness and much reliance cannot be placed upon her evidence, as she may be tutored. Learned counsel also submitted that admittedly, one another eye witness was also present there, i.e., younger brother of the informant, but he has not been examined in the Court, which throws ample suspicion upon the prosecution case. Learned counsel also submitted that it has come in evidence that the appellant had no issue, and accordingly, there appears to be no reason as to why the appellant would have greedy eyes over the land of the mother of the informant. Learned counsel also submitted that according to the prosecution case, the occurrence had taken place at about 3.00 A.M. in the night between 24-25.06.2004, whereas the post-mortem examination had been conducted on 25.06.2004, but the Doctor has stated the time elapsed since death was approximately 12 to 24 hours, which does not match with the evidence of the prosecution witnesses. Learned counsel accordingly, submitted that even though, the witnesses have supported the prosecution case that when they reached the place of occurrence, the accused was also present there with axe in his hand and they were informed by P.W.-3 Jamuna Kumari that appellant had assaulted both of them, but in view of the aforesaid discrepancies, the appellant was entitled at least to the benefits of doubt. 20. Learned Addl. P.P. appearing on behalf of the State on the other hand, opposed the prayer and has submitted that the prosecution has been able to bring home the charges against the accused beyond all reasonable doubts. The prosecution case has been fully supported by the informant P.W.3 Jamuna Kumari, who is a child witness and her evidence was recorded only after recording the satisfaction that she was able to testify. The prosecution case has been fully supported by the informant P.W.3 Jamuna Kumari, who is a child witness and her evidence was recorded only after recording the satisfaction that she was able to testify. The manner in which she has given details of the occurrence, is very natural and the same is also supported by all other prosecution witnesses, who reached the place of occurrence upon the alarm raised by her and saw the dead body of the deceased in a pool of blood and the informant also injured in her elbow. The appellant was also present with blood stained axe and he was apprehended by the villagers. Learned counsel submitted that ocular evidence of the prosecution witnesses is fully corroborated by the medical evidence of P.W.5 Dr. A.K. Agrawal, who had proved the ante-mortem injuries on the vital part of the body of the deceased, and has stated that the injury on the neck was sufficient to cause death in the ordinary course of nature. The injury on the injured informant has also been proved by P.W.10, Dr. Vinod Kumar Gupta, who found incised wound on the elbow of the informant. Learned counsel submitted that blood stained weapon used in the occurrence and the blood stained soil seized from the place of occurrence were also produced in the Court and they were marked material exhibits, which were also identified by the Investigating Officer. Learned counsel accordingly, submitted that the prosecution has been able to prove the charge against the appellant beyond all reasonable doubts, that he had committed murder of the deceased and when the informant objected and tried to save her mother she was also assaulted by the same axe with the intention to cause her death also. Learned counsel submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence. 21. Having heard learned counsels for both the sides and upon going through the record, we find that the prosecution case is fully supported by P.W.3, Jamuna Kumari, although she is a child witness. Her evidence was recorded only after recording the satisfaction that she was able to testify, and she has stood the test of cross-examination. As such, by no stretch of imagination it can be said that she is a tutored witness. Her evidence was recorded only after recording the satisfaction that she was able to testify, and she has stood the test of cross-examination. As such, by no stretch of imagination it can be said that she is a tutored witness. She has stated that she was sleeping with her mother in the night when she woke up and saw the occurrence in the light of burning lamp. The lamp was also found by the Investigating Officer at the place of occurrence. When she tried to save her mother, she was also assaulted by the accused by the same axe. She informed all the prosecution witnesses about the occurrence, who assembled at the place of occurrence upon hearing the alarm raised by her. The fact that younger brother of the informant, who was also present at the place of occurrence, has not been examined in the case, is not fatal to the prosecution, as in the evidence it has come that he was about 5 to 6 years old only, at the time of occurrence. We find from the record that the witnesses, who had assembled at the place of occurrence have specifically stated that appellant was present there with blood stained axe in his hand and he was apprehended by the villagers with the weapon used in the occurrence. The ocular evidence of these witnesses is fully corroborated by the Medical evidence of P.W.-5 Dr. A.K. Agarwal and the post-mortem report proved by him as Ext.-2 and also by the Medical evidence P.W.10 Dr. Vinod Kumar Gupta and the injury report of the injured informant proved by him, as Ext. 5. 22. On the basis of the evidence on record, we are of the considered view, that the prosecution has been able to bring home the charges against the appellant beyond all reasonable doubts. We find no illegality in the impugned Judgment of conviction dated 03.06.2006 and Order of sentence dated 05.06.2006, passed by the learned Additional Sessions Judge-II, Gumla, in Session Trial No. 269 of 2004, convicting and sentencing the appellant as aforesaid, which we hereby, affirm. The appellant is serving out the sentence in jail custody. 23. This appeal is accordingly, dismissed, being devoid of any merit. Let the Lower Court Records be sent back forthwith to the Court concerned, along with a copy of this Judgment.