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2018 DIGILAW 900 (JHR)

Ram Lal Oraon v. State of Jharkhand

2018-04-21

ANIL KUMAR CHOUDHARY, RAJESH KUMAR

body2018
JUDGMENT : 1. Heard the parties. 2. This appeal has been preferred by the appellant against judgment of conviction dated 8.7.2014 and order of sentence dated 9.7.2014 passed by the Additional Sessions Judge-I, Lohardaga in S.T. Case No. 106 of 2006 whereby and where under, the appellant has been convicted for the offence punishable under Section 302, IPC and sentenced to undergo RI for life and to pay a fine of Rs. 10,000/-. 3. The prosecution case as unfolded in the fardbeyan is that the deceased Birua Oraon was sitting on the chabutara (platform) of the village. At about 5.00 p.m., the wife of Janeshwar Paswan raised alarm that the accused-appellant-Ram Lal Oraon has murdered the deceased Birua Oraon by assaulting him with tangi at her house. On hearing the alarm while the informant went running to the place of occurrence on the way he found that the accused-appellant Ram Lal Oraon was running away by holding tangi (axe) in his hand. On reaching the house of Janeshwar Paswan (Manjhi), the informant saw that his brother Birua Oraon was lying dead there. There were marks of assault with axe on the head and neck of the deceased Birua Oraon and there was profuse bleeding. On being asked by the informant, the wife of Janeshwar Paswan (Majnhi) (PW1) told the informant that the accused-appellant chased the deceased armed with axe and the al deceased in order to save himself while a entering inside the house of the PW-1 the accused-appellant reached at the main door of the house of the PW 1 with the axe and caused grievous injury to the deceased by assaulting him 'with the axe on his head and neck by which the deceased died instantly. It has also been mentioned in the fardbeyan that the accused was (demanding money from the deceased for e taking liquor but as the deceased did not give him money. hence. he murdered the deceased. On the basis of the fardbeyan the police registered Senha P.S. Case No. 4 of 2006 corresponding to G.R. No. 26 of 2006 and took up the investigation of the case After completion of investigation the police submitted charge-sheet in the case. 4. Upon commitment of the case of the Court of session charges for the offence punishable under Section 302. IPC was framed against the appellant. 4. Upon commitment of the case of the Court of session charges for the offence punishable under Section 302. IPC was framed against the appellant. Upon the appellant's pleading not guilty he was put to trial. 5. In support of its case the prosecution examined altogether nine witnesses. No evidence was adduced by the accused-appellant Out of the witnesses examined by the prosecution. PW 1 is the sole eye-witness to the occurrence. 6. PW 1 Basanti Devi, has stated that the occurrence took place four years prior to her deposing in Court. At 5.00 a.m. she was in her house. She just returned from collecting water from hand pump She saw that the accused-appellant was chasing the deceased and at the door of the PW1 the accused-appellant assaulted the deceased with the axe on the neck of the deceased resulting in the death of the deceased at the spot itself. There was profuse bleeding of the deceased. After murdering the deceased. the accused-appellant ran away from the place of occurrence Thereafter. PW 1 raised alarm and on her alarm. villagers also came there and saw the dead-body. She is the eye-witness to the occurrence of commission of murder of the deceased by the accused-appellate at her door. After being assaulted by the accused-appellant, the deceased Birua Oraon fell on the ground. In her cross-examination, she has stated that she saw the accused-appellant Ram Lal Oraon assaulting the deceased with the axe. The length of the blade of the axe was one hand span and the length of the wooden handle was one hand. Ram Lal Oraon assaulted Birua Oraon by sharp edge of the axe. PW 1 was examined by the police. 7. PW 2 Pyari Manjhi has stated that on hearing alarm of the PW I, she went and saw that the accused Ram Lal was fleeing away with an axe after committing murder of Birua Oraon. She also saw dead-body of Birua Oraon and blood was coming out from the neck of Birua Oraon. In her cross-examination she has stated that her house is adjacent to the house of PW 1. The length of the blade of the axe was one hand span and the length of the wooden handle of the axe was one hand. 8. PW 3 Mangai Orain is the wife of the deceased. In her cross-examination she has stated that her house is adjacent to the house of PW 1. The length of the blade of the axe was one hand span and the length of the wooden handle of the axe was one hand. 8. PW 3 Mangai Orain is the wife of the deceased. She has stated that Ram Lal chased Birua Oraon from thrashing field (khalian). The accused-appellant Ram Lal Oraon was armed with an axe. Ram Lal Oraon murdered Birua Oraon by assaulting with axe at the door by PW 1. On hearing the alarm of PW 1, PW 3 went near the door and saw the dead-body. There was injury of axe on the neck of her husband. The accused-appellant murdered the deceased because of old enmity and after commission of murder of the deceased-Birua Oraon, the accused-appellant fled away from the place of occurrence. The nephew of the accused-appellant locked the accused-appellant, in the house and put the latch of the door from outside. She identified the accused-appellant in the Court. In her cross-examination, she has stated that she has not seen the accused-appellant assaulting her husband with the axe. 9. PW 4 Bishun Oraon has stated that he heard from the villagers that Ram Lal Oraon had murdered the deceased Birua Oraon. On next day of the occurrence, the police came and in presence of the police, he opened the lock of the house and police brought out the accused-appellant Ram Lal from the house. On being asked by the police, Ram Lal Oraon disclosed that after committing murder of Birua Oraon, he has kept the axe in his house. Ram Lal Oraon brought out the axe with which he killed Birua Oraon from his house and handed it over to the police. The said axe was stained with blood. Police seized the said axe and on being identified by PW 4, his signature on the seizure list has been marked as Exhibit 1. In his cross-examination, he has stated that at the time of the seizure of the axe from the house of Ram Lal, PW 4 was standing outside and only police and Ram Lal went inside the house of Ram Lal. 10. PW 5 Janeshwar Manjhi has stated that on retuning from the market, he came to know that the appellant murdered Birua Oraon. 10. PW 5 Janeshwar Manjhi has stated that on retuning from the market, he came to know that the appellant murdered Birua Oraon. Police prepared inquest report of the dead-body of Birua Oraon. On being identified by him, his signature of the seizure list has been marked as Exhibit 2. In his cross-examination, he has stated that he is not a literate man and he did not read the contents of the inquest report. 11. PW 6 Jharia Oraon has stated that he heard about the accused-appellant murdering the deceased Birua Oraon. He was declared hostile as he did not support the case of the prosecution. 12. PW 7 Bitu Oraon is the informant of the case. He heard that PW 1 raised alarm that Birua Oraon was cut by Ram Lal. PW 7 went there and saw the dead-body of Birua Oraon. PW 1 told PW 7 that the accused-appellant was chasing the deceased and murdered the deceased. PW 7 further stated that Ram Lal was demanding money from Birua Oraon but Birua Oraon did not give him money hence Ram Lal Oraon murdered Birua Oraon. Police recorded his statement. He identified Ram Lal Oraon in the Court. In his cross-examination he has stated that he has not seen Ram Lal Oraon assaulting Birua Oraon. Police recorded his statement at 7.00 a.m. at the place of occurrence. 13. PW 8 Vinod Kumar Gupta is the Investigating Officer of the case. He has stated about the investigation done by him in this case. The fardbeyan on being proved by PW 8 has been marked as Exhibit 3. He has also prepared the inquest report of the dead-body and sent the dead-body for post-mortem examination. He has described the place of occurrence in detail with its boundaries and recorded the statement of the witnesses. During the course of the investigation the accused-appellant led to recovery of the weapon of the offence from his house which is the axe used by him to murder the deceased-Birua Oraon and the same was recovered by PW 8. PW 8 also prepared the seizure list which has been marked as Exhibit 1/1. PW 8 sent the blood stained axe for its examination by Forensic Science Laboratory. After completion of the investigation, he submitted the charge-sheet in the case. He identified the accused in the Court. PW 8 also prepared the seizure list which has been marked as Exhibit 1/1. PW 8 sent the blood stained axe for its examination by Forensic Science Laboratory. After completion of the investigation, he submitted the charge-sheet in the case. He identified the accused in the Court. In his cross-examination, PW 8 has stated that he cannot say the boundary of the house from where the accused Ram Lai Oraon was apprehended. 14. PW 9 Dr. A.K. Oraya. conducted the post-mortem examination on the dead-body of Birua Oraon and he found following :- External injuries :- (i) Sharp cut wound below left ear size 4" x 1-1/2" x bone deep. (ii) Sharp cut wound in posterior aspect of neck size 2-1/2" x 1/3" muscles deep. (iii) Lacerated wound on occipital region of skull size 2" x l" x bone deep with fracture of occipital bone. On Internal examination he found :- (i) Both lungs were pale. (ii) Heart right and left chambers were empty. (iii) Abdominal cavity :- Liver, Spleen and kidney pale. (iv) Stomach contained :- Half digested rice. He opined that the injury Nos. 1 and 2 were caused by sharp and heavy object like axe (tangi), injury No.3 was caused by hard and blunt object. According to him death of the deceased was due to shock and hemorrhage. He further stated that post-mortem was in his pen and signature and on being proved by him, the same was marked as Ext. 6. In his cross-examination, he has stated that the injury Nos. 1 and 2 has been caused by single blow separately. 15. After closure of the evidence of the prosecution the statement under Section 313 of the Code of Criminal Procedure of the accused-appellant was recorded, wherein the accused-appellant denied the circumstances appearing in evidence against him and expressed his ignorance about the post-mortem report and took the plea of false implication. Learned Court below after taking into consideration the evidence available in the record, convicted and sentenced the appellant, as already indicated above. 16. Mrs. Alpana Verma, the learned counsel for the appellant submitted that the findings of the learned trial Court are against the weight of evidence in the record. Learned Court below failed to take note of the contractions in the testimony of the witnesses of the prosecution. 16. Mrs. Alpana Verma, the learned counsel for the appellant submitted that the findings of the learned trial Court are against the weight of evidence in the record. Learned Court below failed to take note of the contractions in the testimony of the witnesses of the prosecution. It is further submitted that this case is based on the eye-witness account of the only eye-witness PW 1 and her testimony does not inspire the confidence. It was further submitted that the accused was of unsound mind at the time of occurrence. Hence, it is submitted that this is a fit case where the accused be given the benefit of Section 84, of the IPC and otherwise also, this is a fit case where the appellant be acquitted by giving him the benefit of doubt. 17. Mrs. Vandana Bharti, the learned Addl. PP on the other hand, defended the impugned judgment of conviction and order of sentence and submitted that the testimony of the PW 1 has remained unshaken even after her long cross-examination. She further submitted that even though PW 1 is a rustic and. illiterate village lady as is apparent from the thumb impression put by her on her deposition yet she has well stood her cross-examination and the testimony of PW 1 is corroborated by the testimony of PW 2 who is a post occurrence witness who has seen the accused-appellant running away from the place of occurrence with the blood-stained axe. It is also submitted that the testimony of PW 3, who is a pre-occurrence witness and who has seen the accused-appellant chasing the deceased before the occurrence also corroborates the testimony of the PW 1. Further the testimony of PW 8 that the accused-appellant led to recovery of the weapon of offence has remained unchallenged in his cross-examination. Mrs. Vandana Bharti, the learned Addl. PP further submitted that the oral testimony of the material witnesses of the prosecution has been corroborated by the testimony of PW 9 the Doctor who conducted the post-mortem examination on the dead-body of the deceased, from which it is crystal clear that the accused-appellant inflicted repeated blows by the sharp edge of the axe obviously with intention to murder the deceased. It was then submitted by learned Addl. It was then submitted by learned Addl. PP that plea of unsoundness of mind at the time of the occurrence of the appellant was never taken at the time of trial and there is no evidence of the defence to show that the appellant was of unsound mind at the time of occurrence. The learned Addl. PP submitted that the learned Court below taking into consideration the evidence in the record has rightly convicted the appellant hence there being no merit in appeal the impugned judgment of conviction and order of sentence be confirmed and the appeal being without any merit, be dismissed. 18. So far as the contention of the appellant regarding the unsoundness of mind is concerned, it is settled principle of law, as has been held by the Hon'ble Apex Court, in the case of Bapu v. State of Rajasthan, reported in 2007 (8) SCC 66 , that the standard to be applied is whether according to the ordinary standard, adopted by reasonable men, the act was right or wrong. The mere fact that the accused is conceited, odd irascible and his brain is not quite all right or that the physical and mental ailments from which he suffered had rendered his intellect weak and had affected his emotions or will, or that he had committed certain unusual acts, in the past or that he was liable to recurring fits of insanity at short intervals, or that he was subject to getting epileptic fits but there was nothing abnormal in his behaviour, or that his behaviour was queer, cannot be sufficient to attract the application of the Section 84 of the Indian Penal Code. 19. In the case of State of Rajasthan v. Shera Ram, 2012 (1) East Cr C 31 (SC) : (2012) 1 SCC 602 , the Hon'ble Apex Court observed as under in paragraphs 18 and 19. "18. In Surendra Mishra v. State of Jharkhand, 2011 (1) East Cr C 172 (SC) : (2011) 11 SCC 495 , the Court was dealing with a case where the accused was charged for an offence under Section 302, IPC and Section 27 of the Arms Act. While denying the protection of Section 84, IPC to the accused, the Court held as under : (SCC pp. 499-500, para 11) 11. In our opinion, an accused. While denying the protection of Section 84, IPC to the accused, the Court held as under : (SCC pp. 499-500, para 11) 11. In our opinion, an accused. who seeks exoneration from liability of an act under Section 84 of the Penal Code is to prove legal insanity and not medical insanity. Expression 'unsoundness of mind' has not been defined in the Penal Code and it has mainly been treated as equivalent to insanity. But the term 'insanity' carries different meaning in different contexts and describes varying degrees of mental disorder. Every person who is suffering from mental disease is not ipso facto exempted from criminal liability. The mere fact that the accused is conceited, odd, irascible and his brain is not quite all right, or that the physical and mental ailments from which he suffered had rendered his intellect weak and affected his emotions or indulges in certain unusual acts, or had fits of insanity at short intervals or that he was subject to epileptic fits and there was abnormal behaviour or the behaviour is queer, are not sufficient to attract the application of Section 84 of the Penal Code." 19. From the above stated principles, it is clear that a person alleged to be suffering from any mental disorder cannot be exempted from criminal liability ipso facto The onus would be on the accused to prove by expert evidence that he is suffering from such mental disorder or mental condition that he could not be expected to be aware of the consequences of his act. (Emphasis supplied) 20. After going through the records, we found that at no point of time during the trial, the accused-appellant took the plea of unsoundness of the mind at the time of commission of the offence. There is absolutely no evidence in the record to suggest that accused-appellant was of unsound mind at the time of the occurrence. In this backdrop, we are of the considered opinion that in this case, the accused-appellant has failed to discharge the burden of proving his unsoundness of mind at the time of commission of occurrence to make him entitled to the exception of Section 84 of the Indian Penal Code. 21. In this backdrop, we are of the considered opinion that in this case, the accused-appellant has failed to discharge the burden of proving his unsoundness of mind at the time of commission of occurrence to make him entitled to the exception of Section 84 of the Indian Penal Code. 21. So far as the contention of the accused-appellant regarding the insufficiency of the evidence is concerned, it is a settled principle of law that if testimony of a single witness is wholly reliable, such sole testimony can be the basis of the conviction, as has been held in paragraphs 11 and 12 by the Hon'ble Supreme Court of India in the case of Vaidvely Thevar v. The State of Madras, ( AIR 1957 SC 614 ) as under : "11. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that "no particular number of witnesses shall, in any case, be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after the consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to all any particular number of witnesses. In England both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's 'Law of Evidence-9th Edition, at pages 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized on Section 134 quoted above. The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted." Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well-established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable. (2) Wholly unreliable. (3) Neither wholly reliable nor wholly unreliable. 12. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger is insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. There is another danger is insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the Court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the Court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution." (Emphasis supplied) 22. After going through the testimony of PW I, though she has been cross-examined at length, nothing has been elicited in her cross-examination to disbelieve or discredit her testimony in any manner. The testimony of PW 1 appears to be trustworthy and her testimony inspires confidence and reliable. Besides the testimony of PW 1 is corroborated by the testimony of PW 2 who is a post-occurrence witness, having seen the accused-appellant running away from the place of occurrence immediately after the occurrence with the blood stained axe. PW 3 is a pre-occurrence witness who has seen the accused-appellant chasing the deceased armed with axe. There is also the testimony of PW 8 the Investigating Officer. regarding recovery of weapon of offence after being led to recovery of the same by accused person from his house, obviously a place about which the accused-appellant has exclusive knowledge. Exhibits 5 and 5/1 which are the Forensic Science Laboratory reports. There is also the testimony of PW 8 the Investigating Officer. regarding recovery of weapon of offence after being led to recovery of the same by accused person from his house, obviously a place about which the accused-appellant has exclusive knowledge. Exhibits 5 and 5/1 which are the Forensic Science Laboratory reports. which shows that the packet marked as Exhibit A contained one tangi (axe) with wooden handle. The blade of the tangi was rusted and its length was about 19.5 cm and its width was about 7 cm and blood was also detected on the axe. Exhibit 5/1 show that the blood detected on the axe was human blood of group B. Exhibits 5 and 511 are also corroborative pieces of evidence. This evidence of prosecution both oral and documentary is also corroborated by the evidence of PW 9 the Doctor who conducted the post-mortem examination of the deceased. 23. Keeping in view the evidence in record and the principles of law as discussed above we are of the considered view that in this case the prosecution has succeeded in bringing home the charge for the offence punishable under Section 302, IPC against the accused-appellant Ram Lal Oraon. Accordingly, we confirm the judgment of conviction dated 8.7.2014 and order of sentence dated 9.7.2014 passed by the Additional Sessions Judge-1, Lohardaga in S.T. Case No. 106 of 2006 as already indicated above. The accused-appellant is already in custody undergoing the sentence. 24. Let the original Lower Court Records be sent back to the Court concerned forthwith. along with a copy of this judgment. 25. In the result this appeal is dismissed. Appeal dismissed.