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2019 DIGILAW 1059 (JHR)

Thurka Oraon S/o Sonai Bhagat v. State of Bihar

2019-05-15

DEEPAK ROSHAN, SHREE CHANDRASHEKHAR

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JUDGMENT : SHREE CHANDRASHEKHAR, J. 1. Two convicts namely, Thurka Oraon and Bhainsa Oraon alias Bhaisa Oraon have challenged the judgment of their convection dated 25.04.1995 under section 302/34 I.P.C. and the order of sentence of R.I. for life dated 26.04.1995 passed by the learned 1st Additional Sessions Judge, Gumla in S.T. No. 135 of 1992. 2. By an order dated 08.08.1995, both the appellants were granted bail by this Court. 3. During pendency of this criminal appeal, the appellant no. 2 namely, Bhainsa Oraon alias Bhaisa Oraon has died and, accordingly, this criminal appeal qua the appellant no. 2 has abated. 4. The prosecution case is disclosed in the ferd-beyan of Etwa Oraon which was recorded on 21.12.1991 at Gumla police station. The informant has stated that on the fateful day his brother Dayal Oraon along with his daughters namely, Biyari Kumari and Budhmani Kumari were looking after their paddy field. On 20.12.1992 at about 8 p.m. the accused Bhaisa Oraon and Thurka Oraon armed with lathi and baluwa came there and started assaulting his brother. The informant has stated that Bitna Oraon son of Karma Oraon was also there and they were threatened and asked by the accused persons to leave the place. On information wife of Dayal Oraon reached the place of occurrence. On the basis of ferd-beyan of Etwa Oraon, a First Information Report was lodged under section 302/34 I.P.C. against both the accused persons. After the investigation, a charge-sheet was filed under section 302/34 I.P.C. whereupon cognizance of the offence was taken by the learned Magistrate. A common charge under section 302/34 I.P.C. was framed against both the accused persons which they denied and claimed trial. 5. During investigation the prosecution has examined eight witnesses, the daughters of the deceased namely, Budhmani Kumari and Biyari Kumari were examined as PW-3 and PW-4 respectively. The wife of the deceased namely, Etwari Orain is PW-5 and Bitna Oraon has been examined as PW-2. 6. The learned Additional Sessions Judge has recorded a finding that PW-4 is fully corroborated by the evidence of PW-2, PW-5 and PW-6. Finding PW-4 a reliable eye-witness the learned Additional Sessions Judge has convicted both the accused persons under section 302/34 I.P.C. 7. Two-fold contentions have been raised by Ms. 6. The learned Additional Sessions Judge has recorded a finding that PW-4 is fully corroborated by the evidence of PW-2, PW-5 and PW-6. Finding PW-4 a reliable eye-witness the learned Additional Sessions Judge has convicted both the accused persons under section 302/34 I.P.C. 7. Two-fold contentions have been raised by Ms. Suchitra Pandey, the learned Amicus: (i) solely on the basis of evidence of a child witness, without corroboration, conviction of the surviving appellant-Thurka Oraon under section 302/34 I.P.C is unsustainable. (ii) the surviving appellant is entitled for benefit of doubt. 8. Initially the prosecution has projected the daughters of the deceased-Dayal Oraon and PW-2 Bitna Oroan as eye-witnesses. Wife of the deceased namely, Etwari Orain who has been examined as PW-5 has also supported the prosecution case. 9. During the trial, one of the daughters of the deceased namely, Budhmani Kumari was tendered for cross-examination. PW-2 Bitna Oraon on his own account is not an eye-witness. The informant-Etwa Oraon has stated in his ferd-beyan that the accused persons threatened and forced them to leave the paddy filed. Etwari Orain-PW-5 has admitted that she reached the paddy field on hearing hullah from the paddy field. These witnesses are not the eye-witness. The post-mortem examination report would disclose three incised wound on the dead body, however, the doctor who has conducted post-mortem examination has not been examined by the prosecution. To make the case of the prosecution worse, it has failed to prove the post-mortem report. The informant has also not been examined by the prosecution and no explanation is coming forth from the prosecution for non-examination of the informant during the trial. 10. From the evidence of the prosecution witnesses it has not been established which accused was holding baluwa; injuries corresponding to assault by baluwa have been found on the dead body. The effect of the aforesaid lacuna in the prosecution case is that the prosecution has failed to establish the cause of death of the deceased and the person who has caused the incised wound to the deceased. In a case of murder, trial of an accused cannot proceed on mere assumption. It is a seminal principle in law that the prosecution must establish its case beyond all reasonable doubt. In a case of murder, trial of an accused cannot proceed on mere assumption. It is a seminal principle in law that the prosecution must establish its case beyond all reasonable doubt. The effect of non-examination of the informant would be that the defence would be handicapped to elicit answer on the manner of the alleged occurrence and the effect of non-examination of the doctor and non-production of the post-mortem examination report would be that the defence has failed to establish the cause of death. It may be so that the prosecution has been able to establish the presence of the surviving appellant namely, Thurka Oraon at the place of occurrence but it has definitely failed to establish that it was Thurka Oraon who has caused homicidal death of the deceased namely, Dayal Oraon. 11. In the above facts, we find conviction of the surviving appellant namely, Thurka Oraon under section 302/34 I.P.C. unsustainable and, accordingly, the judgment of his conviction dated 25.04.1995 under section 302/34 I.P.C. and the order of sentence of R.I. for life dated 26.04.1995 passed by the learned 1st Additional Sessions Judge, Gumla in S.T. No. 135 of 1992 are set-aside. 12. The surviving appellant namely, Thurka Oraon stands discharged of the bail-bonds furnished by him. 13. In the result, Criminal Appeal No. 55 of 1995 (R) is allowed. 14. We appreciate the efforts of Ms. Suchitra Pandey, the learned Amicus who has ably assisted the Court arguing this criminal appeal on behalf of the surviving appellant. 15. The assistance rendered by Mr. Ram Prakash Singh, the learned A.P.P. is also appreciated. 16. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bills. She shall be paid Rs. 5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017. 17. Let a copy of the order be transmitted to the court concerned through 'Fax'. 18. Let the lower-court records be transmitted to the court concerned, forthwith.