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2017 DIGILAW 1337 (JHR)

Maghey Oraon v. State of Jharkhand

2017-08-02

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 appellant is aggrieved by the Judgment of conviction dated 26.07.2005 and Order of sentence dated 27.07.2005, passed by the learned Additional Sessions Judge, FTC - I. Gumla, in Session Trial No. 325 of 2004, whereby the sole appellant has been found guilty and convicted for the offence under section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the said offence. 3. According to the prosecution story as revealed in the fardbeyan of the informant Manga Oraon, father of the deceased Somra Oraon aged about 16 years, recorded at RIMS, Ranchi, on 06.10.2004, is that on 05.10.2004 at about 5.00 P.M. son of the informant Somra Oraon had returned from school and he was taking his meal in the kitchen in the house, where his mother, sister and the father were also sitting. In the meantime the accused Maghey Oraon came there armed with a basula, (a sharp cutting object) and started assaulting the son of the informant. He made two assaults by basula, one on the head and another near the ear, causing bleeding injuries. The son of the informant fell down and became unconscious, whereupon Maghey Oraon fled away. The informant and his wife raised alarm, whereupon the persons nearby, came there and they also saw the occurrence. It is stated in the fardbeyan that the occurrence had taken place due to the previous land dispute. The fardbeyan given by the informant was sent to Bharno Police Station, in District Gumla, for necessary action, as the place of occurrence fell within the jurisdiction of that Police Station, on the basis of which Sisai (Bharno) P.S. Case No. 100 of 2004, corresponding to G.R. No. 611 of 2004 was instituted against the accused for the offence under Section 302 of the Indian Penal Code and investigation was taken up. After investigation, the police submitted the charge sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offence under section 302 of the Indian Penal Code and upon the accused pleading not guilty and claiming to be tried, he was put to trial. 5. After investigation, the police submitted the charge sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offence under section 302 of the Indian Penal Code and upon the accused pleading not guilty and claiming to be tried, he was put to trial. 5. In course of trial eleven witnesses were examined by the prosecution, including Investigating Officer and the Doctor, who had conducted the post-mortem examination on the deceased. The defence is the denial of the charge, but no defence witness was examined in the case. 6. PW-9 Manga Oraon is the informant and the father of the deceased. This witness has fully supported the prosecution case and has stated that the occurrence had taken place about four months ago on Tuesday in the evening, when he himself, his wife and his daughter were sitting in his house and Somra Oraon had returned from school and was taking meal. His mother was preparing the meal. In the meantime Maghey Oraon entered the house armed with basula and assaulted his son Somra Oraon by basula on his head and near the ear, due to which brain matter came out. Maghey Oraon thereafter fled away. Upon alarm raised, several persons came and Somra Oraon was brought to Bharno on a Maruti vehicle and after giving first aid, he was taken to Ranchi. In Ranchi hospital his son died. Police came in the hospital and recorded his fardbeyan, which was read over to him and upon finding the same true, he put his thumb impression. He has stated that he had no personal enmity with the accused, but previous enmity of land was there. He identified the accused in the Court. This witness was put to cross-examination, but there is nothing of much importance in his cross-examination. 7. PW-3 Mania Devi is the mother of the deceased. She has also supported the prosecution case as an eye witness. She has stated that the occurrence had taken place on Tuesday and she herself, her daughter and her husband were present in the house. Her son Somra Oraon had returned from school and was taking meal. Maghey Oraon came there with basula and made two assaults on the head of her son, causing bleeding injuries. Thereafter, he fled away. She has stated that the occurrence had taken place on Tuesday and she herself, her daughter and her husband were present in the house. Her son Somra Oraon had returned from school and was taking meal. Maghey Oraon came there with basula and made two assaults on the head of her son, causing bleeding injuries. Thereafter, he fled away. Her son was brought to Bharno and after first aid, he was sent to Bariatu hospital, where he died. She has identified the accused in the Court and she has stated that Maghey was jealous, as her son was studying. In her cross-examination this witness has stated that Maghey Oraon was not an insane person and she has also stated that there was some property dispute with the father of the accused. There is nothing of much importance in her further cross-examination. 8. PW-6 Peno Kumari, aged about 13 years, is the sister of the deceased, who has also supported the prosecution case as an eyewitness, stating that at Somra was taking meal, Maghey came with basula and made two assaults on the head and near the ear of her brother, causing bleeding injuries. Somara was brought to Bharno and from Bharno he was taken to Ranchi, where he died in course of treatment. She has identified the accused in the Court and has stated that she had seen him assaulting the deceased. There is nothing of much importance in her cross-examination also. 9. PW-5 Turta Uraon is the brother of the deceased. He was feeding animals besides his house, and he had seen the accused entering the house with a basula and had also seen him fleeing away. Upon alarm raised he entered in the house and saw his brother with bleeding injuries on his head and was informed about the occurrence. This witness has also stated that the deceased was taken to the hospital and he died. The fardbeyan of his father was recorded in the Hospital, and the inquest report of the dead body was prepared, on which he had put his signatures, which on his identification were marked Exts.3/1 and 4/1 respectively. He has identified the accused in the Court, and there is nothing of much importance in his cross-examination 10. The fardbeyan of his father was recorded in the Hospital, and the inquest report of the dead body was prepared, on which he had put his signatures, which on his identification were marked Exts.3/1 and 4/1 respectively. He has identified the accused in the Court, and there is nothing of much importance in his cross-examination 10. PW-1 Atwa Uraon, PW-2 Mithu Uraon, PW-7 Harkhu Lohra and PW-8 Manjul Kumar Uraon are not the eye witnesses to the occurrence of murder, but upon alarm raised, they had reached at the place of occurrence and had seen the deceased in injured condition. PW-1 Atwa Uraon has stated that he was informed about the occurrence by the parents of the deceased, whereas other witnesses have started they had seen Maghey Oraon fleeing away with basula. PW-1 Atwa Uraon is also the witness to the seizure list of blood stained earth from the house as also the seizure of the blood stained basula and he has identified his signatures on both these documents, which were marked Ext.1 and Ext.2. PW-2 Mithu Uraon is also witness to the seizure list of blood stained earth and on his identification his signature was marked as Ext.1/1 on the seizure list. PW-8 Manjul Kumar Uraon is also a witness to the inquest report of the dead body of the deceased and he has identified his signature on the inquest report which was marked as Ext.4/1. All these witnesses have identified the accused in the Court and these witnesses were put to cross-examination but there is nothing of much importance in their cross-examinations. 11. PW-4 Harikant Uraon is a nearby shop-keeper and he has stated that soon before the occurrence, the deceased had come at his shop for purchasing a chimni of lantern. He has also stated that Maghey Oraon was standing near his shop with basula and when Somra was returning to his house, Maghey Oraon followed him. Soon thereafter father of Somra came running and called him, whereupon he went to his house and saw Somra fallen with injury on his head. This witness had also seen Maghey Oraon fleeing away from the place of occurrence. Thereafter, Somra was brought to Bharno hospital, from where he was taken to Bariatu hospital, where he died in the night. Soon thereafter father of Somra came running and called him, whereupon he went to his house and saw Somra fallen with injury on his head. This witness had also seen Maghey Oraon fleeing away from the place of occurrence. Thereafter, Somra was brought to Bharno hospital, from where he was taken to Bariatu hospital, where he died in the night. He had also gone with the injured boy to the hospitals, and at Bariatu hospital the fardbeyan of the father of the deceased was recorded. He is a witness to the fardbeyan and he has identified his signature on the fardbeyan, which was marked Ext.3. There is nothing of much importance in his cross-examination. 12. PW-11 is Dr. Tulsi Mahto, who was the Professor and Head of the Department of Forensic Medicine, RIMS, Ranchi. He had conducted the post-mortem examination on the dead body of the deceased and had found the following antemortem injuries on the person of the deceased:- Incised Wound: (i) 10 C.M. x 2 C.M. x bone deep over right cheek cutting the underline mandible bone. (ii) 7 C.M. x 2 C.M. x bone deep on the right side of forehead, situated transversally cutting the underlined bone and brain matter. A portion of brain matter was protruding out. There was crack fracture extending from the right and left ends of the cut injuries. There was presence of blood and its clot. The Doctor has opined that the above injuries were ante-mortem, caused by heavy sharp cutting weapon and death was due to head injury and associated injuries over the face. He has proved the post-mortem report to be in his pen and signature, which was marked Ext.11. 13. PW-10 is Asit Kumar Modi, the Investigating officer of the case. He has stated that on 06.10.2004 he was posted as Sub-Inspector of Bharno Police Station. The fardbeyan of the informant Manga Uraon was received in the Police Station, which was sent to Sisai Police Station for registering the police case. This witness was given the charge of investigation. He has identified the fardbeyan to be in the handwriting of J.P. Bage, Sub-Inspector of Bariatu Police Station, and the same was marked as Ext.5. He has also proved the formal F.I.R. which was marked Ext.6. He has stated that he visited the place of occurrence and recorded the statement of the informant. He has identified the fardbeyan to be in the handwriting of J.P. Bage, Sub-Inspector of Bariatu Police Station, and the same was marked as Ext.5. He has also proved the formal F.I.R. which was marked Ext.6. He has stated that he visited the place of occurrence and recorded the statement of the informant. He has given the details of the place of occurrence and has stated that lot of blood was found on the earth. He seized the blood stained earth in presence of the witnesses and he has proved the seizure list, which was marked Ext.7. He recorded the statements of other witnesses and on 07.10.2004 he arrested the accused. On 08.10.2004 the accused admitted his guilt and his confessional statement was recorded, which has been proved by this witness as Ext.8. He has stated that on the basis of the confessional statement, the blood stained basula was also recovered. He has proved the seizure list of basula, which was marked Ext.9 and the arrest memo has also been proved by this witness, which was marked as Ext.10. He has stated that he had sent blood stained earth and basula for forensic examination, but the report had not yet been received. He received the post-mortem report and submitted charge sheet against the accused. In his cross-examination there is nothing of much importance. 14. On the basis of the evidence on record, the accused appellant was convicted and sentenced by the Trial Court below, for the offence as aforesaid. 15. Learned counsel appearing for the appellant has submitted that the appellant has been falsely implicated in this Case and the prosecution has not been able to bring home the charge against the appellant beyond all reasonable doubts and as such, impugned Judgment of conviction and Order of sentence passed by the Trial Court cannot be sustained in the eyes of law. Learned counsel submitted that even on the basis of evidence, no offence can be said to be made out under section 302 of the Indian Penal Code, as the evidence brought on record suggests that the accused had no intention to kill the deceased, as after giving the blows he fled away from the place of occurrence. Learned counsel submitted that even on the basis of evidence, no offence can be said to be made out under section 302 of the Indian Penal Code, as the evidence brought on record suggests that the accused had no intention to kill the deceased, as after giving the blows he fled away from the place of occurrence. It is submitted that the deceased died in course of treatment in the hospital and had the accused intended to cause his death, he would have made further assaults on the deceased causing his death at the spot. Learned counsel further submitted that in any view of the matter, the offence can be said to be made out only under section 304 Part-II of the Indian penal code. Learned counsel also submitted that no motive has been proved by the prosecution for committing offence and lastly, learned counsel tried to submit that at the time of occurrence the appellant was a Juvenile, and he be given the benefit of juvenility, and be released, taking into consideration the long period undergone by the appellant in custody. 16. Learned Addl. P.P. appearing on behalf of the State on the other hand, opposed the prayer and has submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence, inasmuch as, three eye witnesses to the occurrence, PW-3 Maria Devi, the mother of the deceased, PW-6 Peno Kumari, the sister of the deceased and PW-9 Manga Uraon, the father of the deceased, who were all present at the place of occurrence, have fully supported the prosecution case. The evidence of these witnesses are consistent on the point that the accused entered the house and made two assaults on the head and near the ear of the deceased by basula. PW-9 Manga Uraon has stated that due to the assault, brain matter of the deceased came out and he became unconscious. On the alarm raised by these witnesses all other witnesses had assembled at the place of occurrence and all of them stated that they saw the deceased with bleeding injuries and they also saw the accused fleeing away from the place of occurrence with basula. Learned counsel also submitted that ocular evidence of these witnesses is fully corroborated by medical evidence PW-11 Dr. Tulsi Mahto, who had found two injuries at the same sites of the body as disclosed by the witnesses. Learned counsel also submitted that ocular evidence of these witnesses is fully corroborated by medical evidence PW-11 Dr. Tulsi Mahto, who had found two injuries at the same sites of the body as disclosed by the witnesses. He also found the brain matter protruding out of the wound, as disclosed by PW-9 Manga Uraon. This witness has also proved the postmortem report, which was marked Ext.11. Learned counsel, accordingly, submitted that the prosecution has been able to bring home the charge against the appellant beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence. 17. Having heard learned counsels for both the sides and upon going through the record, we find that the prosecution case is fully supported by PW-3 Maria Devi, PW-6 Peno Kumari and PW-9 Manga uraon, who are mother, sister and father of the deceased respectively, and they were present at the place of occurrence. The other witnesses, though they are not the eye witnesses of the occurrence, but they had reached at the place of occurrence soon after the occurrence, upon alarm raised by the aforesaid three witnesses, and they had seen the deceased at the place of occurrence fallen with bleeding injuries on the head. These witnesses have also stated that they had seen the accused fleeing away with basula from the place of occurrence. PW-5 Turta Uraon, who is the brother of the deceased, was feeding animals besides the house and he had seen the accused entering the house with a basula and had also seen him fleeing away, and he dad also seen the injuries on the head of his deceased brother. The ocular evidence of these witnesses is fully corroborated by the medical evidence of PW-11 Dr. Tulsi Mahto and the postmortem report proved by him as Ext.11. PW-9 Manga uraon has also stated that due to the assaults made by the accused, the brain matter had came out and this fact is also corroborated by the medical evidence of PW-11. Dr. Tulsi Mahto, and the post-mortem report proved by him as Ext.11. Tulsi Mahto and the postmortem report proved by him as Ext.11. PW-9 Manga uraon has also stated that due to the assaults made by the accused, the brain matter had came out and this fact is also corroborated by the medical evidence of PW-11. Dr. Tulsi Mahto, and the post-mortem report proved by him as Ext.11. The contention of the learned counsel appearing for the appellant that on the basis of these evidence, offence can be made only under section 304 Part-II cannot be accepted, and is fit to be rejected outright, looking into the force applied and the weapon used by the accused, while the assaults were made upon the deceased on his head and even the brain matter protruded out of the wound. After getting such injuries the deceased fell unconscious. Thus, it cannot be said that if the accused appellant had intended to kill the deceased, he could have killed the deceased at the spot. On the basis of the confessional statement the accused, blood stained basula was also recovered. In our considered view, the offence is clearly made out against the accused for the offence under section 302 of the Indian Penal Code. So far the contention of the learned counsel for the appellant that the motive has not been proved in this case, it is well settled principle of law that when the offence is proved with the help of eye witnesses, the motive becomes immaterial. [Authorities:- Birendra Das and Another vs. State of Assam, (2013) 12 SCC 236 and Abu Thakir and Others vs. State of Tamil Nadu, (2010) 5 SCC 91 ]. 18. As regards the plea of juvenility, taken by the learned counsel for the appellant as his last submission, we find from the record that the age of the appellant in the F.I.R. has been disclosed to be about 25 years, whereas the impugned Judgment shows that at the time of Judgment the appellant was aged about 20 years. The Judgment has been delivered in about 9 months of the occurrence. The Judgment has been delivered in about 9 months of the occurrence. It is an admitted fact that no plea of juvenility was ever taken before the Trial Court below, nor before this Court, at the time of admission of this appeal, rather this plea has been taken during fag end of the arguments, and that too, not through any application on oath, rather only orally, as a last stake of a loosing gambler, which cannot be entertained. 19. We are of the considered view that on the basis of evidence brought on record the prosecution has been able to bring home the charge against the appellant beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed against the appellant by the Trial Court below, worth interference by this Court. 20. For the foregoing discussions, we find no illegality in the impugned Judgment of conviction dated 26.07.2005 and Order of sentence dated 27.07.2005, passed by the learned Additional Sessions Judge, FTC - I. Gumla, in Session Trial No. 325 of 2004, which, we hereby, affirm. The appellant is already serving out the sentence in jail custody. 21. There is no merit in this appeal, which is accordingly, dismissed. Let the Lower Court Records be sent back forthwith to the Court concerned, along with a copy of this Judgment.