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2017 DIGILAW 1805 (JHR)

Keshwar Oraon v. State of Jharkhand

2017-10-14

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : Mr. Harish Chandra Mishra, J. Heard learned counsel for the appellant and learned counsel for the State. 2. This criminal appeal is directed against the Judgment of conviction and Order of sentence dated 2nd August, 2005, passed by learned Additional Sessions Judge-I, Gumla, in Session Trial No. 235 of 2004, whereby the sole appellant has been found guilty and convicted for offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/- for committing the said offence, and in default of payment of fine, he was directed to undergo simple imprisonment for four months. 3. The prosecution case is based on the fardbeyan of one Aghnu Oraon (P.W.4), wherein he stated that his younger sister Bullu Kumari was married to the accused Keshwar Oraon three years ago. Out of the said wedlock, a female child was born, who was about 1½ years old. Her husband used to often assault Bullu Devi and their relationship was not cordial because Keshwar Oraon was having illicit relationship with his sister-in-law (bhabhi). On 22.05.2004, when Bullu Devi came to her paternal home, she complained to her mother and her sister-in-law that the intensity of the torture had increased and her husband wanted to kill her. Thereafter, on 27.05.2004, this appellant was called by the informant and a panchayati was held, where the appellant assured that he shall keep his wife properly and shall refrain from assaulting her. On 27.05.2004, the sister of the informant, along with the appellant, left for her matrimonial home. On 04.06.2004 the informant came to learn that on the bank of Bandi Koyal River, near Narma Salaya Toli, a dead body of a female was lying in the bushes, whereupon the informant went there and found the dead body was of his sister Bullu Devi, from which it appeared that she was murdered by pressing her neck and the chest by lathi etc. 4. On the basis of the aforesaid fardbeyan, Bishunpur Police Station Case No. 21 of 2004 corresponding to G.R. No. 325 of 2004 was registered against the sole appellant for the offence under Section 302 of the Indian Penal Code, and after investigation, the police submitted the charge-sheet against this appellant under Section 302 of the Indian Penal Code. 4. On the basis of the aforesaid fardbeyan, Bishunpur Police Station Case No. 21 of 2004 corresponding to G.R. No. 325 of 2004 was registered against the sole appellant for the offence under Section 302 of the Indian Penal Code, and after investigation, the police submitted the charge-sheet against this appellant under Section 302 of the Indian Penal Code. Cognizance was taken for the offence under Section 302 of the Indian Penal Code and thereafter the case was committed to the Court of Session for trial. After commitment, the Trial Court, framed the charge against this appellant for the offence under Section 302 of the Indian Penal Code, to which the appellant pleaded not guilty and claimed to be tried. 5. Altogether 8 (eight) witnesses were examined by the prosecution to prove its case. The Fardbeyan, Formal FIR, Inquest Report, Postmortem Report, Confessional Statement of the appellant and Seizure List, were also proved and marked exhibits. 6. P.W.4 Aghnu Oraon, is the informant. He stated that Gullu Kumari was his younger sister, who was married with appellant, five years ago. He stated that out of the wedlock, one female child was born. He stated that Gullu Kumari was murdered by this appellant. Gullu Kumari was often being assaulted by the appellant because the appellant was in illicit relationship with his sister-in-law (bhabhi). A panchayati was held in the village, which was also attended by the appellant, in which the appellant agreed not to torture Gullu and requested to let Gullu accompany him. Thereafter his sister accompanied him. Six days after the panchayati, he went to Bishnupur, where he came to know that in Saliyal Toli, near the river, a dead body of a female was lying in the bushes. This witness became suspicious and went to see the dead body and found that the dead body was of his sister, from which it appeared that deceased was murdered by a lathi. Police came and recorded his fardbeyan, upon which he had put his LTI. He stated that Sukro Oraon was also with him, who had also put his signature on fardbeyan. Police came and recorded his fardbeyan, upon which he had put his LTI. He stated that Sukro Oraon was also with him, who had also put his signature on fardbeyan. This witness has stated that the appellant was arrested and he confessed before the police that he had killed his wife and led the police to the river banks, from where, on the pointing out of the accused, the murder weapon, i.e., a piece of wood, having blood stains and hair was recovered. He has identified the accused in the Court. In cross-examination, he stated that Sukru and Hari were also with him. He stated that the house of the uncle of this appellant is in between the house of appellant and the place where the dead body was recovered, but he did not discuss about this incident with the uncle of this appellant. He stated that the appellant was arrested soon as he was in his house. He stated that there was no documentation of the proceedings of the panchayati. He denied the suggestions that panchayati was never held and that his sister was killed by the extremists. 7. P.W.5 is Mani Oraon. He stated that the daughter of Bhagwa Oraon was married to Keshwar Oraon. He stated that he had heard that the appellant used to assault the deceased. He stated that a panchayati was held on 27.05.2004 and the accused had attended the panchayati. He stated that in panchayati, the accused had assured that he shall not torture his wife. He further stated that after a week of the panchayati, he came to know that Bullu had been murdered and her body was found near the river. This witness identified the appellant in the Court. In his cross-examination, he admitted that he was not present in the panchayati. He learnt from the villagers about the panchayati. He also could not say as to who attended the panchayati. He stated that he had not given any statement before the police, rather he was deposing for the first time in the Court. He stated that he did not go to Narman to inquire as to whether the deceased was tortured. 8. P.W.2 is Nawal Kishore Sinha, who was the Medical Officer at Sadar Hospital, Gumla. He stated that he had not given any statement before the police, rather he was deposing for the first time in the Court. He stated that he did not go to Narman to inquire as to whether the deceased was tortured. 8. P.W.2 is Nawal Kishore Sinha, who was the Medical Officer at Sadar Hospital, Gumla. He stated that he conducted the post-mortem examination on the dead body of Bullu Devi and he found the following injuries: - (1) Bruise of 6" x 4" on anterior surface of neck and on upper external region; (2) Vault of head was depressed laterally; (3) Both parietal bones were fractured. There was subdural haematoma and intra carnival cavity contained blood. Both parietal lobes of brain were crushed. Stomach was found empty. Heart - All four chambers of heart found empty. He stated that time elapsed since death was 24 to 48 hours. All the injuries were ante mortem and were caused by hard and blunt substance, may be, by lathi or iron rod or by heavy, hard and blunt substance. He stated that cause of death was brain injury, i.e., injury No. 3, which was sufficient to cause death. He identified the post-mortem report to be in his pen and signature, which was marked as Exhibit 2. 9. P.W.1 Raiman Oraon and P.W.3 Karma Oraon are the witness to the Inquest Report. They identified their signatures on the inquest report, which was prepared by the Police Officer. The said Inquest Report was marked as Exhibit 1 and the signatures thereon were marked as Exhibit 1/1 and Exhibit 1/2. They have stated that on the dictate of the police, they had signed the inquest report. 10. P.W.6 is Hari Oraon. He stated that on 05.06.2004, he accompanied the informant to Narman Salaya Toli. He stated that police arrested this appellant, who admitted that he had committed the murder. He stated that the police in presence of the accused had recovered the murder weapon, which was blood stained piece of wood with hair. The police prepared the seizure list which was signed by this witness and the informant Aghnu also put his LTI on the seizure list. Signature of this witness was marked Exhibit-3. He stated that 6-7 days prior to the occurrence a panchayati was held because the appellant used to assault the deceased. The police prepared the seizure list which was signed by this witness and the informant Aghnu also put his LTI on the seizure list. Signature of this witness was marked Exhibit-3. He stated that 6-7 days prior to the occurrence a panchayati was held because the appellant used to assault the deceased. The appellant assured that he will not assault and will keep his wife in a proper manner. After 7 (seven) days, the incident had taken place. He has stated that the accused was having illicit affair with his bhabhi, due to which the offence was committed. This witness, in cross examination, stated that he also tried to reason with Keshwar in the panchayati. The danda was recovered from the bushes on the pointing out by the accused. He stated that the hairs and the danda were wrapped in a paper. He stated that the police arrested Keshwar from his house. 11. P.W.7 is Jhayo, the mother of the deceased. She stated that the deceased was married with Keshwar. Keshwar was in an illicit relationship with his sister-in-law (bhabhi), as a result of which he used to torture the deceased. She stated that the deceased had a daughter aged about 2 years out of the said wedlock. The deceased had informed her that Keshwar used to assault her. A meeting was convened. On the next day, appellant had taken Bullu with him and thereafter murdered her. In cross examination, she stated that she had never stated before the police about the incidence and is narrating the same for the first time in the Court. She stated that a panchayati was held, but, she did not attend the same. 12. P.W.8 Om Prakash is the Investigating Officer. He stated that on 04.06.2004, he heard that besides Bandi Koel River in bushes there was a dead body of a young lady. He went to the place of occurrence, where he recorded the fardbeyan of the informant, the brother of the deceased. He has identified the fardbeyan to be in his pen and signature, which was marked as Exhibit 4. The inquest report was also proved and marked as Exhibit 5. The dead body was sent for post-mortem examination. He stated that there were some spots of dry blood on the earth, which were not possible to be seized. The bushes were trampled, which was suggestive of violence. The inquest report was also proved and marked as Exhibit 5. The dead body was sent for post-mortem examination. He stated that there were some spots of dry blood on the earth, which were not possible to be seized. The bushes were trampled, which was suggestive of violence. He described the place of occurrence. The formal FIR was proved and marked Exhibit 6. He stated that he had recorded the statement of the witnesses and thereafter arrested the appellant, who confessed his guilt and told that he could get the murder weapon recovered. The confessional statement was marked as Exhibit 7. On the pointing out of the appellant, the piece of wood, which was blood stained, was recovered. Some woman hair was also found stuck on the piece of wood. The piece of wood was seized and a seizure list was prepared, which was proved as Exhibit 8. He stated that he recorded the statements of the seizure witnesses and other witnesses, including the mother of the deceased and after completing the investigation, he submitted the charge-sheet. In his cross-examination, he admitted there is some overwriting in the dates. 13. The statement of the accused/appellant was recorded under section 313 of the Code of Criminal Procedure, 1973 wherein he denied all the circumstances appearing against him in the evidence, and stated that he was innocent, but he has got nothing to say in his defence. Defence did not adduce any evidence. 14. On the basis of the aforesaid evidence, the Trial Court below held the appellant guilty for the offence for murdering the deceased and convicted and sentenced him to undergo rigorous imprisonment for life along with fine as mentioned above. 15. Learned counsel for the appellant submits that from the evidence adduced by the prosecution it is apparent that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubts. He submits that admittedly, there is no eye witness to the occurrence and only on the basis of the alleged recovery on the basis of the confessional statement of the appellant, he has been convicted in this case. He submits that admittedly, there is no eye witness to the occurrence and only on the basis of the alleged recovery on the basis of the confessional statement of the appellant, he has been convicted in this case. Learned counsel submitted that the circumstances which are against the appellant are as follows: - (i) Last seen with the deceased as they returned together after the panchayati; (ii) Confession by this appellant before the police leading to the recovery of a blood stained wooden piece with women hairs. Learned counsel submits that these circumstances against the appellant are so weak that the appellant could not be convicted on the basis of the said circumstances, as the chain is not so complete so as to point only towards the guilt of the accused. It is submitted that there is no report of any forensic laboratory to prove that the blood and hair stuck in the wooden piece were of any human, or of the deceased. He submits that the alleged confession of the appellant which was made before the police is absolutely inadmissible. He also submits that if at all the recovery of the piece of wood, on the confession of this appellant, is admissible, then also only that part of the confessional statement is admissible in the eyes of law so far it leads to the recovery of the wooden piece and nothing further. Learned counsel submits that there is a long gap of five days in between the date of death and the last seen with the appellant, which is fatal for the prosecution. He further submits that the genesis of the occurrence is the alleged illicit relationship of the appellant along with his sister-in-law, which has not been proved by the prosecution and, which is also fatal. Learned counsel for the appellant accordingly, submitted that in the facts of this case, the prosecution has failed to bring home the charge against the appellant beyond all reasonable doubts, and in any event, the appellant is entitled to the benefits of doubt. 16. Learned A.P.P. submits that there was sufficient motive on the part of the appellant to commit murder of his wife. He submits that witnesses have consistently proved the fact that the appellant was torturing and assaulting the deceased very often, for which a panchayati was also held. 16. Learned A.P.P. submits that there was sufficient motive on the part of the appellant to commit murder of his wife. He submits that witnesses have consistently proved the fact that the appellant was torturing and assaulting the deceased very often, for which a panchayati was also held. He submits that recovery of murder weapon at the instance of this appellant is a very importance circumstance, which would point towards the guilt of the deceased. He submits that admittedly, there was dispute amongst the appellant and the deceased and the deceased was being tortured by the appellant. A panchayati was also held and after the panchayati, the deceased was taken to her matrimonial home and thereafter she was killed. It is submitted that upon his arrest, the accused confessed his guilt, on the basis of which, and on the pointing out by the appellant, the blood stained weapon of offence, with the woman hair, was recovered. As such, even if there is no eye witness to the occurrence of murder, the chain of circumstances is so complete, that it points only towards the guilt of the accused. Learned counsel for the State concluded by submitting 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 the Order of sentence. 17. Having heard learned counsels for both the sides and upon going through the record, we find that though there is no eye witness to the occurrence, but the fact remains that P.W.4 Aghnu Oraon, the brother of the deceased and the informant in the case, and P.W.7 Jhayo, the mother of the deceased have proved the fact that due to the strained relationship between the deceased with her husband, the deceased had come to her parents' place few days prior to the occurrence complaining about the torture and assaults being made to her by the appellant, where a panchayati had been held and the appellant had assured to keep his wife properly and had taken her along with him to her matrimonial home. The fact of panchayati is also proved by P.W.5 is Mani Oraon and P.W.6 is Hari Oraon. The fact of panchayati is also proved by P.W.5 is Mani Oraon and P.W.6 is Hari Oraon. Though there is no eye witness to the occurrence of the murder, but the fact remains that the dead body of the deceased has been found and when the accused Keshwar Oraon was apprehended, he confessed his guilt before the police giving the manner in which the murder was committed and on the basis of his confessional statement, and on his pointing out, the weapon of offence, i.e., the blood stained piece of wood, stuck with woman hair was recovered. P.W.4 Aghnu Oraon, P.W.6 Hari Oraon and P.W.8 the investigating officer have fully proved the fact that on the self implicating confessional statement of the accused Keshwar Oraon, the said recovery was made. Though there is no forensic examination of the weapon of offence, but, in our considered view, in the facts of the case, this is not at all fatal to the prosecution. The recovery of the weapon of offence, on the basis of confessional statement of the accused, is a strong circumstance against the accused, completing the chain of circumstances, pointing only towards the guilt of the accused, leaving any scope of doubt. In our considered view, on the basis of the evidence on record, the prosecution has been able to bring home the charge against the appellant beyond all reasonable doubts. 18. Consequently, we do not find any illegality in the impugned Judgment of conviction and Order of sentence dated 2nd August 2005, passed by the learned Additional Sessions Judge-I, Gumla, in Sessions Trial No. 235 of 2004, convicting and sentencing the appellant for the offence under Section 302 of the Indian Penal Code, which we, hereby, affirm. The appellant is already in custody, serving out the sentence. 19. There is no merit in this appeal, which is accordingly, dismissed. Let the Lower Court Records be transmitted to the Court concerned forthwith along with a copy of this Judgment.