Research › Search › Judgment

Jharkhand High Court · body

2024 DIGILAW 663 (JHR)

Jogi Oraon @ Jogindra Oraon v. State of Jharkhand

2024-07-03

DEEPAK ROSHAN, RONGON MUKHOPADHYAY

body2024
JUDGMENT : R. Mukhopadhyay, J. Heard Ms. Kavita Kumari, learned counsel for the appellants and Mr. Saket Kumar, learned A.P.P. for the State. 2. This appeal is directed against the judgment and order of conviction and sentence dated 20.09.2001 (sentence passed on 29.09.2001) passed by Shri Prashant Kumar, learned Sessions Judge, Gumla in Sessions Trial No. 126 of 1998 whereby and whereunder the appellants have been convicted for the offence punishable under Sections 302/34 of I.P.C. and have been sentenced to undergo imprisonment for life. 3. The prosecution case arises out of the fard beyan of Kunka Baraik who has stated that on 21.11.1997 he had come to Dumartoli and was staying with his in-law’s family for the last one week. The informant’s elder brother-in-law namely, Narain Baraik had 1.14 acres of land at Kumhar More and on that land, he was constructing a house under Indira Awaas Yojna. The informant was looking after the construction work along with his brother-in-law. It is alleged that in the night of 20.11.1997, while the informant was sleeping along with his brother-in-law, the accused persons variously armed had come and after abusing the brother-in-law of the informant had started assaulting him with axe, bhujali, farsa and lathi, as a result of which the brother-in-law of the informant became unconscious and when he tried to rescue him, he was also threatened by the accused persons. After committing the assault, the accused persons had left the place of occurrence. The informant thereafter intimated about the incident to Ram Lakhan Baraik who had arrived with Hira Nath Baraik and the villagers had also arrived. The injured Narain Baraik was referred to Sisai Referral Hospital, where in course of treatment, he died. It has been alleged that the ancestors of Jogi alias Jogindra Oraon (appellant no. 1) had donated 1.14 acres of land in Bhudan which was later on settled with the deceased Narain Baraik upon which he was constructing a house and on account of the same, there was a land dispute which resulted in the incident. 4. Based on the aforesaid allegations, Sisai P. S. Case No. 122 of 1997 was instituted against the accused persons under Sections 302/34 of I.P.C. After completion of investigation, charge-sheet was submitted and after cognizance was taken, the case was committed to the court of Sessions where it was registered as S. T. No. 126 of 1998. 4. Based on the aforesaid allegations, Sisai P. S. Case No. 122 of 1997 was instituted against the accused persons under Sections 302/34 of I.P.C. After completion of investigation, charge-sheet was submitted and after cognizance was taken, the case was committed to the court of Sessions where it was registered as S. T. No. 126 of 1998. Charge was framed under Sections 302/34 of I.P.C. against the accused persons to which they pleaded not guilty and claimed to be tried. 5. The prosecution in course of trial has examined 6 witnesses in support of its case. 6. P.W. 1 – Hiranath Baraik did not support the case of the prosecution and was declared hostile. 7. P.W. 2 – Ram Lakhan Baraik has stated that on the date of the incident, he was in his house, when his brother-in-law Kunka Baraik had come late at night and informed him that his elder brother-in-law Narain Baraik has been assaulted. On this information, he had informed the villagers and with 8-10 persons he had reached the place of occurrence, but when Narain Baraik could not be found, they went to Sisai Police Station. In the police station, the fard beyan of his brother-in- law was recorded and the police had come in the night and in the morning near the field his elder brother was found lying in an injured condition. He was in his senses and was taken by the villagers to Sisai Hospital where he died. He has proved his signature on the inquest report, which has been marked as Exhibit 2. In cross-examination, he has deposed that his brother Narain Baraik used to stay at Barbatoli as a Ghar-jamai. 8. P.W. 3 – Kunka Baraik is the informant and the sole eye-witness of the occurrence. He has stated that on the date of occurrence, it was around 11:00 P.M. and he was sleeping in Mahrapara in the house of Matukdhari Master and Narain Baraik was sleeping outside the house when the accused persons had come variously armed and started committing assault upon Narain Baraik. He has stated that there is no animosity between the accused persons and Narain Baraik from before. After assaulting Narain Baraik, he was thrown in the field and the accused persons had left. On seeing the assault, he had hid himself behind a lemon tree. He has stated that there is no animosity between the accused persons and Narain Baraik from before. After assaulting Narain Baraik, he was thrown in the field and the accused persons had left. On seeing the assault, he had hid himself behind a lemon tree. When the accused persons had left, he had gone to the house of Narain Baraik at Dumartoli and Ram Lakhan Baraik was informed about the assault committed upon Narain Baraik and in the night when the police had come at Mahrapara, they had seen Narain Baraik in an injured condition. He has further deposed that it was 11:00 P.M. in the night when the incident had happened and others were sleeping. In the fard beyan, he has stated that there was an assault committed and out of fear he had hid himself behind a lemon tree. 9. P.W. 4 – Dr. Krishna Prasad was posted as a Civil Assistant Surgeon in Gumla and on 21.11.1997 he had conducted post mortem on the dead body of Narain Baraik and had found the following injuries: (i) Bandaged wound over scalp on removal of bandage stitched wound over right parietal bone size 2 ½ “x ½ “X 1” cutting over right parietal bone. (ii) Stitched wound over left parietal bone size 2 ½ “x ½” x ½” cutting the left parietal bone. (iii) Bruise over sternum on dissection haemotoma under and fracture of sterum resulting into haemothorax left side. (iv) Bandaged wound over left upper arm on opening the bandaged stitched. Incised wound size 2”x ½” x ½” cutting the left humerus. The cause of death was opined to be on account of shock and haemorrhage. He has proved the post mortem report which has been marked as Exhibit 3. 10. P.W. 5 – Vishwanath Ram has stated that on 21.11.1997, Kunka Baraik had come to the police station for giving information. However his statement was not recorded and in fact the statement of Kunka Baraik was recorded in the hospital. He has proved the fard beyan which has been marked as Exhibit 4. He had taken over investigation and in course of the same he had prepared an inquest report as well as sent the dead body for autopsy. He has proved the inquest report which has been marked as Exhibit 5. He has proved the fard beyan which has been marked as Exhibit 4. He had taken over investigation and in course of the same he had prepared an inquest report as well as sent the dead body for autopsy. He has proved the inquest report which has been marked as Exhibit 5. He had inspected the place of occurrence and had seized two axes and blood-stained earth and had also prepared a seizure list which has been proved and marked as Exhibit 6. The statements of the witnesses were recorded by him. He has proved the formal FIR which has been marked as Exhibit 7. Subsequently, investigation was handed over to Bipin Bihari Verma, who has subsequently submitted the charge-sheet. 11. P.W. 6 – Bipin Bihari Verma is another Investigating Officer who after taking over charge of the investigation has merely proved the charge-sheet. He has also proved the entire case diary, which has been marked as Exhibit 8. 12. The statements of the accused persons were recorded under Section 313 of Cr.P.C. in which they have denied their involvement in the incident. 13. Submission has been advanced by Ms. Kavita Kumari, learned counsel for the appellants that there is an unexplainable delay in institution of the FIR. It has been submitted that the entire case of prosecution is based upon the evidence of P.W. 3 who is the informant. Learned counsel further submits that the incident had occurred at 11:00 P. M. and it would be improbable for the informant to have identified the accused persons, considering the fact that it was the first cycle of full moon and he had claimed to have seen the incident from behind a lemon tree. She further adds that P.W. 3 cannot be an eye-witness of the occurrence on account of the inherent contradiction in his evidence when compared to the evidence of P.W. 2. On such score, learned counsel further submits that the learned trial court has committed an error in convicting the appellant and therefore, the impugned judgment and order of conviction and sentence is liable to be set aside. 14. Learned A.P.P. for the State has opposed this appeal and has submitted that the evidence of P.W. 3 is clear, cogent and consistent and there is no inconsistency in his evidence which would create a doubt that he is not an eye-witness to the occurrence. 14. Learned A.P.P. for the State has opposed this appeal and has submitted that the evidence of P.W. 3 is clear, cogent and consistent and there is no inconsistency in his evidence which would create a doubt that he is not an eye-witness to the occurrence. It has been submitted that in the fard beyan, the informant has stated about witnessing the assault and which fact has also been stated by him in his evidence as P.W. 3 and he had informed P.W. 2 – Ram Lakhan Baraik after which the other persons gathered and had come to the place of occurrence. Learned A.P.P. has also submitted that the incident of assault was reported to the police and therefore, it cannot be said that there was an inordinate delay in institution of the FIR. 15. We have heard the learned counsel for the respective parties and have also perused the lower court records. 16. The facets of the prosecution case are based upon the evidence of the sole eye-witness who is the informant and who has been examined as P.W. 3. He has stated that he was sleeping at 11:00 P.M. in the night when the appellants had come variously armed and had committed an indiscriminate assault upon Narain Baraik and he had witnessed the assault from behind a lemon tree. Subsequent thereto he had informed Ram Lakhan Baraik who has been examined as P.W. 2 and thereafter Ram Lakhan Baraik along with other villagers had gone to the place of occurrence, but since Narain Baraik was not found there, they had informed the matter to Sisai Police Station and in the morning, Narain Baraik was found in the field in an injured condition. The evidence of P.W. 3 further reveals an unnatural conduct on the part of both P.W. Nos. 3 & 2 as in spite of witnessing the assault, P.W. 3 did not try to save Narain Baraik or to search Narain Baraik and in a matter of fact fashion had gone to inform Ram Lakhan Baraik. In fact the evidence of Ram Lakhan Baraik also suggests that though he had come to the place of occurrence along with the other villagers, but no efforts were made to search out Narain Baraik and only in the morning, he was found in an injured state lying in the field. 17. On consideration of the evidences of P.W. Nos. In fact the evidence of Ram Lakhan Baraik also suggests that though he had come to the place of occurrence along with the other villagers, but no efforts were made to search out Narain Baraik and only in the morning, he was found in an injured state lying in the field. 17. On consideration of the evidences of P.W. Nos. 2 and 3 it seems that if they had taken efforts to locate Narain Baraik, he would have been saved as it would appear that though the assault has taken at 11:00 P.M., Narain Baraik remained alive till he was searched out by P.W. 2 and the police in injured condition and in course of treatment in the hospital, he died. It also appears from the evidence of P.W. 2 that when Narain Baraik was rescued from the field, he was in a conscious state of mind, but there does not seem to be any utterance made by him with respect to the assailants. The evidence of P.W. 3 therefore seems to be a fraught with inconsistencies and doubt and an unnatural conduct which seems to have gathered strength from the evidence of P.W. 2. These facets of the case have not been properly appreciated by the learned trial court while convicting the appellants for the offences punishable under Sections 302/34 of I.P.C. We therefore, on the basis of the discussions made hereinabove set aside the judgment and order of conviction and sentence dated 20.09.2001 (sentence passed on 29.09.2001) passed by Shri Prashant Kumar, learned Sessions Judge, Gumla in Sessions Trial No. 126 of 1998. 18. This appeal is allowed. 19. Since the appellants are on bail, they are discharged from the liabilities of their bail bond.