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2017 DIGILAW 1689 (JHR)

Madhu Oraon v. State Of Jharkhand

2017-09-20

ANANDA SEN, B.B.MANGALMURTI

body2017
JUDGMENT B.B. Mangalmurti, J. (CAV) - This appeal is directed against the judgment of conviction dated 22nd April, 2006 and order of sentence dated 25th April, 2006 passed by Shri Awadhesh Nandan, 1st Additional Judicial Commissioner, Khunti in Sessions Trial No. 302 of 2002 and have found the appellants guilty under Section 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. 2. The short fact of the case is that on 19.01.2002, informant along with his maternal uncle Anil Oraon of village Sotiyari and Gobra Oraon (Mausa of informant) proceeded from the brick kiln of Gobra Oraon situated in village Adailhatu at 7.00 p.m. for Kathal Toli. On the way, all the three persons took their meals in the Nunu Hotel. After taking meal, Anil Oraon went to his village Sotiyari. The informant Bhakhru Oraon @ Shiv Oraon and Gobra Oraon came to the house of informant at village Kathal Toli at 9.30 p.m. on bicycle. Gobra Oraon left his bicycle and proceeded for his house. In the morning, the informant went to the house of Gobra Oraon at around 7.00 a.m. where he came to know from his maternal aunt that Gobra Oraon did not return to home on previous night. Informant and other persons started searching for him. During search they found the slipper (Hawai Chappal) of Gobra Oraon at the door of co-villager Madhu Oraon and thereafter at the distance of 100 Yards in the north direction, they found the dead body of Gobra Oraon with cut injuries on the face of the body lying in the pool of blood in the Bari of Etwa Oraon. The further case is that Gobra Oraon had illicit relationship with Prabha Devi wife of Madhu Oraon and he used to meet Prabha Devi sparingly causing annoyance to Madhu Oraon and his brother Parya Oraon. The informant believed that Madhu Oraon, Parya Oraon and some unknown persons had murdered Gobra Oraon. Thereafter, police registered Bundu P.S. Case No. 04 of 2002 for offence under Section 302/34 of the Indian Penal Code against Madhu Oraon, Parya Oraon and others. After investigation, charge sheet under the aforesaid Section was submitted against the appellant Madhu Oraon and Parya Oraon @ Paritosh Oraon. Thereafter, police registered Bundu P.S. Case No. 04 of 2002 for offence under Section 302/34 of the Indian Penal Code against Madhu Oraon, Parya Oraon and others. After investigation, charge sheet under the aforesaid Section was submitted against the appellant Madhu Oraon and Parya Oraon @ Paritosh Oraon. After taking cognizance, the case was committed to the court of Sessions and after framing of charge, the prosecution altogether examined six witnesses but the defence has not examined any witness. The court after consideration of the evidences adduced on behalf of the prosecution, found that it is not possible to hold that the occurrence took place in a different manner than the one alleged by the prosecution and held Parya Oraon @ Paritosh Oraon and Madhu Oraon guilty for the offence under Section 302/34 of the Indian Penal Code for committing murder of Gobra Oraon @ Gobardhan Oraon and sentenced them to life imprisonment. 3. Learned counsel for the appellants submitted that the court below has erred in holding that slipper of the deceased was recovered at the door of Madhu Oraon but failed to consider that seized slipper is of general kind of slipper available in market and used by most of the villagers. The Investigating Officer in his evidence stated that a slipper was recovered near the door of Madhu Oraon but P.W.2 Girawala Devi submitted that Parle G biscuit and slipper were recovered near the door of Madhu Oraon. He further submitted that the trial court has not taken into consideration the motive behind the alleged murder which was due to the illicit relationship of deceased with Prabha Devi (wife of Madhu Oraon) as stated in fardbeyan but P.W.2 Girawala Devi (wife of deceased) and informant P.W.5 both stated that the motive behind the murder is land dispute. The trial court has not properly considered the statement of witnesses and has not taken the material contradictions and the provisions of section 313 of the Code of Criminal Procedure, 1973 have not been complied with. The relevant questions upon which conviction were made were not put before the accused. Lastly, he submitted that the conviction have been made only on the statement of solitary witness P.W.3 (Sorubala Devi). The case has not been proved beyond all reasonable doubt. 4. The relevant questions upon which conviction were made were not put before the accused. Lastly, he submitted that the conviction have been made only on the statement of solitary witness P.W.3 (Sorubala Devi). The case has not been proved beyond all reasonable doubt. 4. Learned A.P.P. appearing on behalf of the State submitted that the prosecution has able to prove the motive behind the murder due to illicit relationship of the deceased with Prabha Devi which also find place in the fardbeyan itself. The slipper of deceased was found near the door of one of the appellant and the body was found within the radius of 100 meter in the Bari of Etwa Oraon. He further submitted that the trial court has found that some minor contradictions may be due to lapse of time when the occurrence took place and evidences of the witnesses recorded. The trial court also held that material evidence remained unchallenged which is fully corroborated with the medical evidence. The evidence of P.W.3 is vital which was corroborated with the other witnesses led to one conclusion and the conviction was also based on it. The prosecution has established the case to its right perspective that led to conviction. 5. We have heard the arguments of the parties and perused the Lower Court Records. P.W.1 Dr. Ajit Kumar Choudhary, Tutor in the Department of Forensic Medicine, Ranchi, who conducted the post mortem of the dead body of Gobra Oraon which was marked as Ext.1 found the injuries caused by hard and blunt substance and some injuries caused by sharp cutting weapon. P.W.4 Roshan Jaiswal is seizure list witnesses, who proved his signature on seizure list and have stated that one cartridge was recovered inside the house of Madhu Oraon. During cross-examination, he replied that although he did not went inside the house of Madhu Oraon but he could know from the Police that the cartridge was recovered from the box of Madhu Oraon. P.W.5 Bhakru Oraon, the informant of this case had narrated all the events in details and proved the prosecution story duly corroborated with the statement of P.W.6. The Investigating Officer has also seized blood stained earth and a pair of Hawai Chappal near the door of the house of the appellant no. 1. P.W.5 Bhakru Oraon, the informant of this case had narrated all the events in details and proved the prosecution story duly corroborated with the statement of P.W.6. The Investigating Officer has also seized blood stained earth and a pair of Hawai Chappal near the door of the house of the appellant no. 1. The Investigating Officer found the injuries mainly on the face portion and cut injury on the head and forearms and palm of the left hand. The shirt was also in torn condition. No slipper or shoe was on the dead body. The place of occurrence is at a distance of about 100 yards towards the south of house of Madhu Oraon. The Investigating Officer has stated that both the appellants were arrested from their house who also confessed their guilt causing murder and their statement were recorded by him and have been marked as Ext.6 & 6/1 here. Since these Exhibits 6 & 6/1 were recorded during investigation by the police so it cannot be taken into consideration and are being discarded. Counsel for the appellant has submitted that slipper was recovered near the door of Madhu Oraon but the seized slipper is of general kind which are available in the market as well as used by most of the villagers. Certainly, the slippers are manufactured in large scale normally but here in this case the Investigating Officer in his evidence have stated that no slipper or shoe was on the dead body. The Investigating Officer has seized a pair of Hawai Chappal near the door of the house of appellant no. 1 and it was also supported by P.W.2 Girawala Devi. From the evidence of P.W.2 Girawala Devi (wife of deceased) if that slipper was not being used by the deceased then P.W.2 had no occasion to mention about the slipper as well as the biscuit. P.W.2. and P.W.5 have indicated the motive behind the murder is land dispute. It is mentioned in the fardbeyan that the deceased was having illicit relationship with the wife of appellant no. 1 but in clear term no witnesses have deposed about the illicit relationship. It can be inferred that as deceased was having illicit relationship so he went near the house of appellant no. 1 and in the backdrop of land dispute also both appellant assaulted with Tono and Tangi. 1 but in clear term no witnesses have deposed about the illicit relationship. It can be inferred that as deceased was having illicit relationship so he went near the house of appellant no. 1 and in the backdrop of land dispute also both appellant assaulted with Tono and Tangi. The slipper was seized near the door of appellant no. 1 and the dead body was found near the back side of his house within a radius of 6065 yards. The prosecution with the help of statement of P.W.3, the eye witness who had given the description of assault being made by Madhu Oraon, appellant no. 1 holding Tono and Parya Oraon was holding Tangi. This witness due to fear and threatening went inside the house. She has seen the occurrence from a close distance as she has also stated that the distance of her house from the place of occurrence is about 6065 yards where the dead body was recovered which is situated just behind the house of Madhu Oraon, appellant no. 1. The description of assault given by P.W.3 is fully corroborated with the antemortem injuries found by the Doctor who has been examined as P.W.1. The Doctor has also found antemortem injuries, abrasion, lacerated wound caused by hard and blunt substance, rest of the injuries were caused by heavy and sharp cutting weapon and the statement of P.W.3 fully matched with the injuries on the dead body of Gobra Oraon. The prosecution story were amply proved with the statement of P.W.2, P.W.5 and P.W.6. The witnesses have described the place of occurrence and the distance of the house situated around it and there was no confusion or contradiction. 6. Counsel for the appellant submitted that the Investigation Officer has recorded the age of Sorubala Kumari as 13 years in the case diary while recording her statement under section 161 of the Code of Criminal Procedure, 1973 but this witness while deposing as P.W.3, her age was recorded as 21 years. Therefore, she may be termed as child witness. She cannot attain majority after two years as she has deposed on the day of evidence that the incident was around two years before. 7. Replying to this contention, learned A.P.P. has submitted that this contradiction was not taken from her during the cross-examination nor this was put to the Investigating Officer P. W.6. She cannot attain majority after two years as she has deposed on the day of evidence that the incident was around two years before. 7. Replying to this contention, learned A.P.P. has submitted that this contradiction was not taken from her during the cross-examination nor this was put to the Investigating Officer P. W.6. The Investigation Officer P. W.6 while replying in his cross-examination has stated that Sorubala Devi P. W.3 stated that Madhu and Pariya assaulted Gobra with Tono and Tangi but rather she had stated only that they assaulted heavily and continuously and Gobra was trying to escape by sounding alarm. She went inside the house due to fear. The Investigation Officer stated that this witness has not stated about the threatening given by accused persons. So far her age is concerned, no such question or contradiction were taken either from P.W.3 Sorubala Devi or from Investigation Officer P. W.6 Krishna Kumar Mahto. From the perusal of the evidence of P.W.3, it appears that this witness has stated her age as 21 years whereas the court has also assessed her as 21 years while recording her evidence. Therefore, this witness P.W.3 cannot be held to be a child witness at this stage. There is consistency found in the evidence of the prosecution witness and the story of the prosecution put forward were held to be proved as the circumstances of the events were knitted well before the court. 8. Therefore, on scrutiny of the evidences brought on record and in the facts and circumstances of the case, we do not find any occasion to interfere in the findings of the court below. 9. In the result, instant appeal is dismissed.