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2018 DIGILAW 2671 (JHR)

Atwa Oraon v. State of Bihar (Now Jharkhand)

2018-12-06

H.C.MISHRA, RATNAKER BHENGRA

body2018
JUDGMENT : Heard learned counsel for the appellant and the learned counsel for the State. 2. The appellant is aggrieved by the impugned Judgment of conviction dated 21.03.1996 and Order of sentence dated 23.03.1996, passed by the learned 1st Additional Sessions Judge, Gumla, in S.T. No. 97 of 1993, whereby the appellant Atwa Oraon 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 R.I. for life for the said offence. It may be stated that there were four accused persons facing the trial, out of whom one accused Lahsu Oraon died during the pendency of the trial itself, whereas the other co-accused Budhni Orain and Swati Orain have been acquitted by the Trial Court below. 3. The prosecution case was instituted on the basis of the written report submitted at Bishunpur Police Station, by the informant Lahsunia Devi, the wife of the deceased Hiramuni Oraon, on 5.11.1992, wherein she has stated that she and her husband were working in their barn at about 5:00 P.M., in the previous evening, when Lahsu Oraon, the elder brother of her husband, came after tending his cattle, and started abusing her husband stating that he had got his gram crop destroyed by his animal. Her husband told him that he would compensate his loss. In the meantime Lahsu Oraon came accompanied with his son Atwa Oraon, and started assaulting her husband. Both of them started assaulting her husband by pressing him on the ground and also by pressing his neck, and assaulting him by fists and slaps. Thereafter, Atwa Oraon brought a tangi from his house and started assaulting her husband by tangi, during which Lahsu Oraon, his wife Budhni Orain and daughter-in-law Swati Orain were holding the deceased to the ground. She has stated that all the accused persons committed the murder of her husband at the spot, and when she tried to save her husband she was also assaulted. Thereafter, she went to her village and informed the villagers and alongwith the villagers she came back again at about 9:00 P.M., in the night, when she found her husband dead. She has stated that all the accused persons committed the murder of her husband at the spot, and when she tried to save her husband she was also assaulted. Thereafter, she went to her village and informed the villagers and alongwith the villagers she came back again at about 9:00 P.M., in the night, when she found her husband dead. On the basis of the written report given by the informant, Bishunpur P.S. Case No. 63 of 1992, corresponding to G.R. No. 973 of 1992, was instituted against all the four named accused persons, for the offence under Sections 302/34 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 persons for the offence under Sections 302/34 of the Indian Penal Code, and upon the accuseds’ pleading not guilty and claiming to be tried, they were put to trial. In course of trial, the prosecution has examined 13 witnesses, including the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. The I.O. has not been examined in the case, and as such a formal witness P.W.-1 Parsuram Singh has proved the formal F.I.R., as Exhibit-1. Another formal witness P.W.-2 Kuldip Singh has proved the post-mortem report as Exhibit-2. Out of the material witnesses examined, P.W.-5 Rabi Oraon has turned hostile and P.W.-8 Sukhnath Oraon was only tendered by the prosecution. 5. P.W.-12 Lahsunia Orain is the informant of the case and the wife of the deceased, and she has stated that on the date of occurrence she was working with her husband in her barn, where Lahsu Oraon came and started abusing her husband, saying that he got his crop grazed by their cow. Her husband said that he would compensate the loss, but Lahsu Oraon assaulted her husband, and Atwa Oraon brought a tangi and he also assaulted her husband, whereas Lahsu Oraon was pressing the neck of her husband. Her husband died at the spot. This witness went to the village raising the alarm and thereafter several villagers came there. By that time the accused persons were also present there. The villagers also saw the accused persons, and the blood at the place of occurrence. Her husband died at the spot. This witness went to the village raising the alarm and thereafter several villagers came there. By that time the accused persons were also present there. The villagers also saw the accused persons, and the blood at the place of occurrence. The police was informed, she gave her statement on which she had put her thumb impression. In her cross-examination, this witness has stated that her barn was near the village itself, at a distance of about one furlong. She has also stated that at the time of occurrence, she was at the barn, and the accused persons had assaulted her husband in the barn, and the dead body of her husband was taken away by the police from the barn itself. She could not give the boundary of her barn. She has stated that there was no enmity with the accused persons from before. She has denied the suggestion of giving false evidence. 6. P.W.-3 Phaguwa Bhagat, P.W.-4 Bishnu Bhagat, P.W.-6 Jokhna Oraon, P.W.-7 Budhman Oraon and P.W.-9 Bitna Oraon are the hearsay witnesses, who have stated that upon the information about the occurrence, they had gone to the place of occurrence, and there was a meeting, in which the informant had informed about the occurrence. All these witnesses have stated that the informant informed that all the four accused persons had committed the murder of her husband by tangi. P.W.-10 Shivcharan Oraon and P.W.-11 Lohra Oraon are also the hearsay witnesses who have stated that they were informed that only Atwa Oraon had committed the murder of her husband. All these witnesses have stated that they had seen the dead body of the deceased with bleeding injuries in the agricultural field of one Bishwa Bhagat. P.W.-3 Phaguwa Bhagat is also the witness to the seizure list of seizing the blood stained soil, and the inquest report of the dead body, and he has proved the seizure list as Exhibit-3 and the inquest report as Exhibit-4. His signatures were marked as Exhibit-3/1 and 4/1 on these documents. 7. P.W.-13 is Dr. Mirtunjay Sarawgi, who had conducted the post-mortem examination on the dead body of the deceased on 7.11.1992, and had found the following injuries:- (i) Lacerated wound over left temporal region 2” x 1” x brain deep with multiple fracture of the underlying bone and laceration of the brain matter. 7. P.W.-13 is Dr. Mirtunjay Sarawgi, who had conducted the post-mortem examination on the dead body of the deceased on 7.11.1992, and had found the following injuries:- (i) Lacerated wound over left temporal region 2” x 1” x brain deep with multiple fracture of the underlying bone and laceration of the brain matter. (ii) Lacerated wound over right tragus of the ear 1 ½” x ½” x 1” deep with fracture of the right zygomatic process of the temporal bone. (iii) Lacerated wound over right occipital region 2” x 2” x brain deep with multiple fracture of the underlying bone and laceration of the brain matter. (iv) Incised wound over right sub mandibular region 1” x 3/4” x 1” deep. He has stated that the injury Nos. (i), (ii) & (iii) were caused by hard and blunt substance and were grievous in nature, whereas injury No. (iv) was caused by sharp weapon and was simple in nature, which could be caused by the sharp side of the tangi, whereas the other injuries could be caused by the blunt portion of the tangi. He has stated that injury Nos. (i) and (iii) were sufficient in the ordinary course of nature to cause the death. He has identified the post-mortem report to be in his pen and the signature, which was already marked Exhibit-2. 8. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein the accused have denied the evidence against them. No evidence was adduced by the defence. On the basis of the materials on record, the appellant Atwa Oraon, has been convicted and sentenced for the offence under Section 302 of the Indian Penal Code, by the Trial Court below, whereas the female co-accused persons have been acquitted. 9. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as, the prosecution case is full of contradictions and discrepancies. 9. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as, the prosecution case is full of contradictions and discrepancies. It is submitted by the learned counsel that in the F.I.R, the informant has stated that Lahsu Oraon and Atwa Oraon had assaulted the deceased, in which, Atwa Oraon had assaulted by tangi and the other co-accused, including Budhni Orain and Swati Orain, were holding the deceased, whereas in her evidence, P.W.-12 Lahsunia Orain has not even named Budhni Orain and Swati Orain, due to which, they were acquitted by the Trial Court below. It is also pointed out by the learned counsel that though in the F.I.R., there is allegation of assault by tangi only against the appellant Atwa Oraon, but most of the hearsay witnesses have stated that they were informed by the informant that all the accused persons had assaulted the deceased by tangi. Learned counsel also pointed out that the place of occurrence has not been proved in the case, inasmuch as, according to the F.I.R. and the evidence of P.W.-12 Lahsunia Orain, the occurrence had taken place in her barn and the deceased was killed in the barn, and she has also stated that the police had taken away the dead body from her barn, whereas all the witnesses have stated that they had seen the dead body in the agriculture field of Bishua Bhagat. Due to non-examination of the I.O., the place of occurrence could not be proved and the defence is vitally prejudiced thereby. Learned counsel accordingly, submitted that in the facts of this case, the appellant Atwa Oraon was also entitled at least to the benefits of doubt. 10. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the informant P.W.-12 Lahsunia Orain has made specific allegation of assault by tangi against the appellant, Atwa Oraon and this evidence is fully corroborated by the medical evidence of P.W.-13 Dr. Mirtunjay Sarawgi, as also the post-mortem report proved in the case. The other witnesses had also seen the dead body with bleeding injuries and accordingly, the prosecution has been able to bring home the charge against the accused appellant Atwa Oraon beyond all reasonable doubts. Mirtunjay Sarawgi, as also the post-mortem report proved in the case. The other witnesses had also seen the dead body with bleeding injuries and accordingly, the prosecution has been able to bring home the charge against the accused appellant Atwa Oraon beyond all reasonable doubts. As such, there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 11. Having heard learned counsels for both sides and upon going through the record, we find that there is only one eyewitness to the occurrence, i.e., P.W.-12 Lahsunia Orain, who is the wife of the deceased and the informant in the case. All other witnesses are hearsay witnesses, who were informed about the occurrence by the informant herself. Though in her F.I.R, the informant had stated that the occurrence was committed by the four accused persons, but in her evidence, she has not even named the two female co-accused persons. It is a fact that according to the FIR, as also as per the evidence of the informant, there is allegation of assault upon the deceased by tangi against this accused, but the injuries on the dead body of the deceased, which were the cause of his death, were lacerated wounds. There can be no presumption that the assaults were made by the blunt portion of the tangi, unless it is specifically alleged. All the witnesses who are the hearsay witnesses, except P.W-10 Shivcharan Oraon and P.W.-11 Lohra Oraon have stated that they were informed by the informant that all the four accused persons had assaulted the deceased by tangi, which is not the case of the prosecution at all. All the hearsay witnesses examined in the case have stated that they had seen the dead body in the agriculture field of Bishwa Bhagat, and not in the barn of the deceased. The inquest report which has been proved in this case as Exhibit-4, also clearly shows that the dead body was lying in an agriculture field and not in any barn. P.W.-12 Lahsunia Orain has stated that the dead body was in her barn and it was taken by the police from the barn itself. She was asked about the boundary of her barn, to which, she answered that she had no knowledge about the boundary. P.W.-12 Lahsunia Orain has stated that the dead body was in her barn and it was taken by the police from the barn itself. She was asked about the boundary of her barn, to which, she answered that she had no knowledge about the boundary. As such, there is no evidence on record, even to show that the said agriculture field of Bishwa Bhagat was in the boundary of her barn. The I.O has not been examined in the case, who could have proved the place of the occurrence, which has certainly prejudiced the defence, as the defence could have taken the real place of occurrence from the I.O. 12. We are of the considered view that due to the inconsistency in the evidence, and due to the fact that the place of occurrence could not be proved in the case, the appellant was entitled at least to the benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law. 13. For the foregoing reasons, the impugned Judgment of conviction dated 21.3.1996 and Order of sentence dated 23.3.1996, passed by the learned 1st Additional Sessions Judge, Gumla, in Sessions Trial No. 97 of 1993, convicting and sentencing the appellant Atwa Oraon, for the offence under Section 302 of the Indian Penal Code, are hereby, set aside. Consequently, the appellant is given the benefits of doubt, and he is acquitted of the charge. The appellant is on bail, and he is discharged from the liabilities of his bail bonds. 14. This appeal is accordingly allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.