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2017 DIGILAW 2060 (JHR)

Manga Oraon v. State of Bihar

2017-11-30

ANIL KUMAR CHOUDHARY, HARISH CHANDRA MISHRA

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JUDGMENT : 1. No one appears on behalf of the appellant in spite of repeated calls. The record shows that on 12.8.2010 when the matter taken up, no one had appeared for the appellant and the matter was adjourned. Thereafter, the matter could be taken up today and today also, no one appeared for the appellant. Learned counsel for the State is present. As such we have gone through the record with the help of learned counsel for the State. The sole appellant is aggrieved by the Judgment of conviction dated 22.1.1993 and order of sentence dated 5.2.1993 passed by learned 5th Addl. Judicial Commissioner, Ranchi, in ST. No. 339 of 1989, whereby, the accused appellant has been found guilty and convicted for the offences under Sections 302 and 201 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant was sentenced to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code. No separate sentence, however, was passed for the offence under Section 201 of the Indian Penal Code. 2. The prosecution case was instituted on the basis of the fardbeyan of one Raiya Oraon, the son of the deceased Gobra Oraon, recorded on 26.9.1988 stating therein that two days earlier, his father had gone for a walk in the evening in the village. When his father did not return back till late night, they started searching him. In the morning, he found one slipper of his father near the house of the accused Manga Oraon and he also found some blood there. He also found the mark of dragging and thereafter, the dead body of his father was found in the river. The Chowkidar was informed. The informant has stated that there was enmity between the appellant Manga Oraon and his father Gobra Oraon and there was a criminal case, in which, his father was acquitted. He has suspected that this accused had committed the murder of his father. On the basis of the fardbeyan, Lapung P.S. Case No. 25 of 1988 corresponding to G.R. No. 2976 of 1988 was instituted for the offences under Sections 302, 201/34 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 3. On the basis of the fardbeyan, Lapung P.S. Case No. 25 of 1988 corresponding to G.R. No. 2976 of 1988 was instituted for the offences under Sections 302, 201/34 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 3. After commitment of the case to the Court of Session, charge was framed against the sole accused for the offence under Section 302 of the Indian Penal Code, and upon the accused's pleading not guilty and claiming to be tried, he was put to trial. 4. In course of trial, the prosecution has examined nine witnesses (actually eight, as after PW-6, the next witness is numbered as PW-8), including the Doctor, who had conducted the post mortem examination on the dead body of the deceased. The Investigating Officer of the case has not been examined. 5. P.W. 1-Raiya Oraon is the informant of the case and the son of the deceased. This witnesses has stated that the occurrence had taken place about one and half years ago on a Saturday, at about 4 P.M. in the evening, and his father was in the house. It was a day of Karma festival. Manga Oraon and Karlus Khakha came to his house and called his father for taking haria (local rice wine). His father went along with them, but he did not return back in the night and on the next day, he found the slipper of his father near the house of Manga Oraon and blood was also found. There were marks of dragging of the dead body and the dead body of his father was found in the river. He has stated that he informed the Chowkidar and he also informed the police, whereupon, his fardbeyan was recorded by the police, on which he had put his thumb impression. He has identified the accused in the Court. In his cross-examination, he has stated that he does not remember the date of occurrence, but the dead body of his father was found in the river on Sunday. He had seen the slipper of his father near the house of the accused at a distance of about 20 feet and there was blood also there. He has also stated that when the accused along with another person came to call his father, by that time, his father had not taken haria. He had seen the slipper of his father near the house of the accused at a distance of about 20 feet and there was blood also there. He has also stated that when the accused along with another person came to call his father, by that time, his father had not taken haria. He has also stated about the previous litigation between the parties and has stated that there was enmity between them. He had not seen the accused committing the murder. He has also stated that brother of the accused had enticed away his cousin sisters and married one of them, due to which there was enmity between them. He has denied the suggestion to have given the false evidence. 6. P.W. 2-Sukhro Orain and P.W. 3-Birsi Orain are the wife and daughter respectively, of the deceased, who had also supported the prosecution case, only making the suspicion against the accused. P.W. 2-Sukhro Orain was not present in her house, as she had gone to her parents' place at the time of occurrence and as such, she is only a hearsay witness, whereas P.W. 3-Birsi Orain has supported the case, and stated that Manga Oraon along with another person came and took her father for taking haria and he went away along with them, in spite of the fact that this witness had asked her father not to go with them, and thereafter, the dead body was found. In her cross-examination, she has stated that as she had not seen the occurrence, and she does not know as to who had committed the murder. 7. P.W. 4-Pene Oraon is 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 Exhibit-1. He is also a witness to the seizure of bloodstained soil seized near the house of Manga Oraon, and he has proved his signature and the signature of another witness on the seizure list, which were marked as Exts.-1/1 and 1/2 respectively. 8. P.W. 5-Bisuba Oraon was only tendered by the prosecution and P.W. 6-Lakho Oraon has only deposed that at about one and half years ago, Manga Oraon and Karlus Khakha had gone to his house for taking haria, but he did not gave haria to them. 9. P.W. 8 is Dr. 8. P.W. 5-Bisuba Oraon was only tendered by the prosecution and P.W. 6-Lakho Oraon has only deposed that at about one and half years ago, Manga Oraon and Karlus Khakha had gone to his house for taking haria, but he did not gave haria to them. 9. P.W. 8 is Dr. Niranjan Minj, who had conducted the post mortem examination on the dead body of the deceased on 26.9.1988 and had found the following injuries on the dead body:-- (1) Incised wound 5 x 2 cms x bone deep on the left frontal region above the angle of left eye. The weapon cut the underlying bone and the dura-mater completely. There was a crack fracture extending over left fronto parietal bone measuring 10 cm long. (2) 6 X 2 cm x bone deep on the left side of the neck situated transversely. The weapon cut the soft tissue, main blood vessels of the left side of the neck and the body of the fourth cervical vertebra partially. He has stated that all the injuries were ante mortem in nature, caused by sharp cutting weapon and the death was caused due to these injuries. He has identified the post mortem report to be in his pen and signature, which was marked Exhibit-2. 10. As the 1.0. has not been examined in this case, the fardbeyan and the formal FIR have been proved by formal witness P.W. 9-Jagarnath Ram, a Court Constable and on his identification, fardbeyan was marked as Exhibit-3 and formal FIR was marked as Exhibit-4. 11. On the basis of the evidence on record, the appellant was convicted and sentenced by the Trial Court below. 12. Thus, from perusal of the evidence on record, it is apparent that there is no eyewitness to the occurrence and the only evidence against the appellant is that the appellant had allegedly called the deceased and had taken the deceased along with him on the pretext of taking haria, and on next day, his dead body was found. However, the story that the appellant had called the deceased from his house, is an improvement upon the fardbeyan of the informant, inasmuch as, in the fardbeyan, it is no where stated that the appellant had called the deceased and had taken the deceased along with him. However, the story that the appellant had called the deceased from his house, is an improvement upon the fardbeyan of the informant, inasmuch as, in the fardbeyan, it is no where stated that the appellant had called the deceased and had taken the deceased along with him. In the fardbeyan, it is only stated that the father of the deceased had gone for evening walk in the village and thereafter, he did not return back. The only other evidence, which is against the appellant is that at a distance of 20 feet from his house, one slipper of the deceased and blood were found. Though it is the case of the prosecution that the deceased along with the accused had gone to take haria, and it appears that P.W. 6-Lakho Oraon has been examined to prove this fact, but he has only stated that the accused Manga Oraon and Karlus Khakha had gone to take haria at his house and he has not named the deceased, namely, Gobra Oraon. 13. We are of the considered view that even though the case rests only on the circumstantial evidence, but the circumstances are not enough to hold the appellant guilty and convict him for the offences under Sections 302 and 201 of the Indian Penal Code. Indeed, even the charge was not framed against the appellant for the offence under Section 201 of the Indian Penal Code. We are of the considered view that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of the law. 14. For the foregoing discussions, the impugned Judgment of conviction dated 22.1.1993 and Order of sentence dated 5.2.1993 passed by learned 5th Addl. Judicial Commissioner, Ranchi, in Sessions Trial No. 339 of 1989, are hereby, set aside. Consequently, the sole appellant Manga Oraon is found not guilty and he is acquitted of the charge. The appellant is on bail, he is discharged from the liability of his bail bond. This appeal is accordingly, allowed. Let the Lower Court Records be sent back forthwith to the Court concerned, along with a copy of this Judgment.