Jharkhand High Court
Bhukha Oraon vs State Of Jharkhand on 4 April, 2016
Equivalent citations: 2017 AJR 237, (2016) 4 JLJR 428
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
Criminal Appeal (DB)No. 423 of 2010
(Against the judgment of conviction and order of sentence dated
07.07.2004and 8.7.2004 respectively passed by the Additional Sessions Judge FTCIII, Gumla in connection with Sessions Trial Case no. 166 of 2001 corresponding to G.R. Case no. 260 of 2001, Gumla P.S. Case no. 107 of 2001) Bhukha Oraon ...... Appellant Vs. The State of Jharkhand ......... Respondent PRESENT: HON'BLE MR. JUSTICE D.N.UPADHYAY : HON'BLE MR. JUSTICE RATNAKER BHENGRA For the appellant :Mr. Laljee Sahay, Advocate For the respondent :Mr. S.K.Pandey, A.P.P. (Ratnaker Bhengra,J.) This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 7 th July, 2004 and 8th July, 2004 respectively passed by the Additional Sessions Judge, F.T.C.III, Gumla in connection with Sessions Trial Case no. 166 of 2001 corresponding to G.R. Case no. 260 of 2001, Gumla P.S. Case no. 107 of 2001, whereby the appellant has been held guilty for the offence punishable under sections 302 and 449 of the Indian Penal Code and Section 4 of Witch Craft Prevention Act and sentenced to undergo R.I. for life u/s 302 IPC. However, no separate sentence is awarded under section 449 of the IPC and Section 4 of the Witch Craft Prevention Act.
2. The case of prosecution, as per fard beyan (Ext.5) of PW5 Jatru Oraon, is that on 19.4.2001 at about 9:30 a.m. while he was sleeping in his house along with his wife, the appellant came and asked from out side of the house to open the door and gave threatening to kill his whole family if door was not opened. Thereafter, appellant broke open the door and entered into his house and alleged that Bhado Orain is 'Dian' and due to her witch practice his wife died and his two children became orphan. By saying that appellant started to assault his wife by the back portion of tangi. Out of fear PW5 raised alarm, daughter of informant 2 also sustained injury on her head. His wife sustained grievous injuries and died on the spot. On hearing alarm Matius Oraon Pw1 and PW4 Deva Oraon reached on spot. Thereafter, accused appellant fled away. On the basis of fardbeyan of informant PW5, Gumla P.S. Case no. 107 of 2001 dated 20.4.2001 under Section 302 I.P.C. was registered against the appellant.
After due investigation, charge sheet was submitted and, accordingly, cognizance was taken and case was committed to the Court of Sessions and registered as Sessions Case no. 166 of 2001.
3. The appellant stood charged for the offence punishable under sections 449, 302 I.P.C. and ¾ of Witch Craft Prevention Act to which he pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether nine witnesses and they are as follows: PW1 Marius Oraon, PW2 Bandhan Oraon, PW3 Nobour Oraon, PW4 is Deva Oraon, PW5 informant himself, Pw6 is Doctor Krishna Prasad, PW 7 is Sonia Kumari, PW8 Ram Badan Singh ASI and lastly PW9 is Chaturdhan Pradhan is a formal witness. PW1,4 and 7 are eye witnesses of the case while PW2 and 3 are hearsay witnesses. PW7 is child witness and PW6 is a doctor. PW8 is ASI who proved fardbeyan, inquest report and confessional statement. PW9 is Chaturdhan Pradhan who is formal witness.
4. The learned Trial Judge placing reliance on the evidence and documents available, held the appellant guilty u/s 302,449 I.P.C. & 4 of Witch Craft Prevention Act and inflicted sentences as indicated above. Hence, this appeal.
5. PW5 Jatru Oraon is the informant and husband of the deceased. He states that on 19.4.2001 at about 9:30 p.m. he was in his house along with his wife. Accused Bhukha Oraon came and he broke the door of his house and entered into it and told that your wife is dian and due to her witch craft practice his wife died. After saying this accused started to assault Bhado Orain by means of tangi. He further states that out of fear he climbed on the Chajha and raised alarm. He further states that his daughter aged about three years sustained injury. He further states that accused assaulted his wife by back portion of tangi on her 3 head and she died on the spot. He further states that on his hulla Matius Oraon (PW1) and Deva Oraon (PW4) came there. Accused also gave threatening to assault to them. After the occurrence he gave information to chawkidar. He further states that next day police came and recorded his fardbeyan. He has signed over it. He further states that Matius was also present and he has also signed on it. He further states that police recovered tangi from the house of accused and prepared seizure list in his presence. Matius Oraon was also present. He has also signed on the seizure list . He has proved his signature (Ext ½) on the seizure list. In his crossexamination he states that Matius Oraon is his brotherin law and Deva Oraon is his nephew. He further states it was dark at the time of occurrence. He further states that before the occurrence accused never called his wife Dian . He further states that there was no enmity with the accused with him. He further states that on the same date the wife of accused died and after her funeral all of them drank liquor. Accused also drank liquor and he committed the crime. He further states that his daughter was also treated. He further states that tangi was recovered on the information received from the accused by the police. At that time Bhukha was under arrest. He denied the suggestion that he himself committed murder of his wife and falsely implicated the accused in this case. This witness has given a clear picture of the occurrence. There is no discrepancy in his evidence. He has fully supported the prosecution case as alleged in the fardbayan.
6. P.W.7 Sonia Kumari is a child witness and daughter of the informant. She states that her mother was killed about two years ago. In the night, she was sleeping on a cot along with her mother. She further states that Bhukha came in the house and he assaulted her mother by the back portion of tangi due to which her mother died. She further states that police came at her village but had not recorded her statement. She further states that her father Jatru oraon told her to narrate in the court then she is deposing in the court what he has informed to her. This witness is aged about five years. After examination by the court, her deposition was recorded. She has stated that she deposed in the court on the saying of his father which is not fatal for the prosecution case and 4 there is nothing to disbelieve her.
7. PW1 Matius oraon is an eye witness not to the assault, but soon thereafter. He states that on 19.4.01 at about 9:30 p.m. he was sitting in his house after taking meal. He heard hulla of Jatru oraon then he went there and saw that accused Bhukha oraon was inside the informant's house , with tangi. He further states that Deva was also with him. He further states that they tried to apprehend the accused but he gave threatening to them to kill. He further states that he along with Deva went inside the house and saw that Bhado Orain was lying dead and blood was oozing from the injuries. He further states that on that date accused's wife was died and he was convinced that due to the witch craft practice, his wife died. Due to this he has committed murder of informant's wife. He further states that after committing murder of the deceased accused went at the police station and he confessed his guilt. He further states that on the information received from the accused tangi was recovered which was used in the crime. Seizure list of tangi was prepared in his presence and he signed over it. He has proved his signature (Ext.1). He has also proved his signature (Ext.1/1) on the fardbeyan. He further states that Jatru Oraon is his own sala (brotherinlaw). He further states that he was also present in the funeral ceremony of the wife of accused. Jatru was also present. He further states that the night was dark. After returning from the burial ground they drank liquor at the house of the accused and there after they went to their houses. He denied the suggestion that informant himself committed murder of his wife and falsely implicated the accused in this case. This witness has also supported the prosecution case and saw that the accused was coming out of the informant's house after committing murder of Bhado Orain. When he tried to apprehend him then the accused gave threatening to kill and fled away. This witness is a reliable witness. There is nothing on record to disbelieve him.
8. PW4 Deva Oraon states that on 19.4.02 at about 9:30 p.m. occurrence took place. He was inside his hosue. He heard hulla of Jatru oraon then he went at this hosue and saw that accused Bhukha oraon was assaulting Bhado orain by 5 means of tangi. He further states that he forbade him not to assault then the accused gave him threatening and chased him. He further states that on the same day wife of accused died and accused was convinced that due to the witch craft practice his wife died. Due to this enmity he has committed murder of Bhado orain. He further states that Jatru oraon is his maternal uncle. He further states that out of fear he has not apprehended the accused. He further states that Bhukha oraon never called dian to Bhado orain in his presence before the occurrence. He denied the suggestion that Jatru oraon himself committed murder of his wife. This witness has also supported the prosecution case. There is nothing in his evidence to disbelieve him.
9. PW3 Nobour Oraon states that about one year ago he came to know that wife of Jatru Oraon was murdered. He went to the house of Jatru oraon and saw the dead body of Bhado orain. He further states that police came there and prepared the inquest report in his presence. He has proved his signature (Ext.2) on the inquest report. He further states that Jatru oraon was also present there and he signed over it. PW5 Jatru Oraon states that police prepared the inquest report in his presence and he also signed on it. PW8 ram Badan Singh states that he prepared the inquest report which is in his pen and signature. All these witnesses have proved the inquest report (Ext.2). On perusal of this inquest report it appears that the dead body was found in the house of the informant. There is no dispute about the death of Bhado orain. On the basis of all these evidences it can safely be held that deceased Bhado Orain died due to the injuries sustained by her and the place of occurrence is also proved, which is the house of informant.
10. PW6 Doctor Krishna Prasad states that on 20.4.2001 he conducted the postmortem examination on the dead body of Bhado Orain and found the following injuries: (1) Lacerated injury over vertex 1"x1" skull bone not fractured. (2) Bruise over front of chest. Both sides ribs fractured leading to bylateral haemothorey. On opening the abdomen there was a full term fetus (female child). 6 Liquor was meconium sterned. (Child died because of mother's death). He has opined that cause of death due to shock and hemorrhage and time elapsed since death 12 to 36 hours approximately. He has further opined that above injury can be caused by back portion of tangi. He has further opined that all the injuries were antemortem in nature. He has proved postmortem report in his pen and signature (Ext.4) In crossexamination he states that due to slip of pen he forgot to mention weapon used. Above injuries cannot be caused by simple fall on the ground. He has further opined that the fracture of ribs not possible by collision against woodenbed (chaukhat). According to this witness , the deceased Bhado Orain died due to the antemortem injuries which was found on her dead body at the time of postmortem injuries examination. So, it is clear that the death of Bhado Orain was homicidal.
11. PW8 Ram Badan Singh states that on 20.4.01 he was posted as A.S.I. Of police at Gumla police station. On the same day he went at village Joratar and recorded the fardbayan of Jatru oraon. He has proved fardbayan in his pen and signature (ext.5). He further states that he prepared the inquest report of the deceased. He further states that on the basis of fard bayan formal FIR was prepared by the officer incharge Prem Chand Ram. He has proved formal FIR (Ext 6) He further states that Jayram Singh S.I. Of police was given charge of the investigation of this case. He again went to the place of occurrence along with Jayram Singh. He further states that accused confessed his guilt before him and Jayram Singh. He has proved the confessional statement in the pen and signature of Jayram Singh (Ext.7) He further states that one tangi with handle was recovered form the house of the accused Bhukha oraon and seizure list was prepared by him in presence of witnesses Matius oraona and Jatru oraon. Jayram Singh also signed on it. He has proved seizure list (Ext.8). He further states that I.O. Jayram Singh recorded the statement of the witnesses and also inspected the place of occurrence in his presence. He further states that the dead body was lying inside the house of the informant . He denied the suggestion that the sign of the accused was obtained on his confessional statement by putting pressure on 7 him.
12. Learned counsel for the appellant has submitted that prior to the occurrence, where Bhado Orain was killed all have met and consumed liquor. Counsel has said that in fact on the same day the wife of the accused had also died, and he had taken liquor, along with the informant and wife of the informant now deceased. So he must have been upset and was not totally in control of his mental alertness. And the assault on the informant's wife was due to the impairing effects of the consuming liquor and murder was done in the heat of moment.
Learned counsel for the appellant has also said that the weapon allegedly used for the murder, the axe (tangi) has not been produced in court, and in absence of this axe, the allegation of murder of deceased collapses. He has also submitted that the nonexamination of the investigating officer has seriously prejudiced the appellant , because, he would have been able to say whether the incident occurred at the place of occurrence or not and whether in the absence of axe the murder could have taken place or not. Due to these reasons non examination of investigating officer is fatal for the prosecution of the appellant. Further, PW1 and PW4 are relatives of informant, hence not reliable.
13. Learned APP has on the other hand submitted that this case is an open and shut case is the sense that murder has been witnessed by two witnesses on the spot itself and one of them is a child witness whose credibility is not doubted. The husband is also a natural witness on the spot. The husband of the deceased had also immediately after the occurrence given information to the chaukidar, subsequent to which also the FIR was lodged, the next day, so there is no time to manufacture a story or case against the accused. Based on the aforesaid reasons he has said the appellant has committed heinous crime and is guilty.
14. Having heard the arguments, perused the documents and in the facts and circumstances, one aspect stands out is that there are not one but two reliable witnesses, the husband , P.W. 5 and the child or daughter of the deceased P.W.7. Learned counsel for the state has already mentioned that since the matter was 8 that night itself reported to the choukidar and the FIR lodged the very next day, it is doubtful that the husband , PW5 is an unreliable witness and he has cooked up a story of the murder of his very own wife . The child who witnessed the murder of her own mother is a very believable and reliable witness. She has been a witness to the horrific murder of her mother and at such a tender age. Most probably she will be scarred for life. One forgets many things when very young, but it is doubtful she will forget the murder of her own mother which happened before her very own eyes. She has deposed about the incident, after two year when she was around five years old and seems to recollect the incident. Hence, she is a reliable and believable witness. She has deposed, that her mother was killed two years ago. It was night when her mother was killed. She was sleeping with her mother on the cot. On that night Bhukha entered her house. On entering he hit her mother with the axe. That her mother died due to the assault.
15. PW1, Matius Oraon said that on alarm he arrived at the place of occurrence and saw the appellant with the axe in the house of the deceased. PW 4 or Deva Oraon was along with him. PW4 has deposed that he also saw assault. That they had tried to apprehend the appellant but he threatened them. On entering they saw that Bhado Orain was lying dead and blood was oozing from her injuries. So PW1 and PW4, are both immediate witnesses who saw the appellant soon after alarm was made, and he was also seen with the axe, the alleged murder weapon. P.W.4 also claims to have seen the assault.
16. PW6, the doctor has found following injuries: (1) Lacerated injury over vertex 1"x1" skull bone not fractured. (2) Bruise over front of chest. Both sides ribs fractured leading to bylateral haemothorey. On opening the abdomen there was a full term fetus (female child). Liquor was meconium sterned. (Child died because of mother's death). He has further opined that above injury can be caused by back portion of axe tangi. He has further opined that all the injuries were antemortem in nature.
17. PW.8, Ram Badan Singh, has proved fardbayan in his pen and signature 9 (ext.5). He further states that he prepared the inquest report of the deceased. He further states that on the basis of fard bayan formal FIR was prepared by the officer incharge Prem Chand Ram. He has proved formal FIR (Ext 6).He further states that one tangi with handle was recovered from the house of the accused Bhukha Oraon and seizure list was prepared by him in presence of witnesses Matius Oraon and Jatru Oraon. Jayram Singh also signed on it. He has proved seizure list (Ext.8). He further states that the dead body was lying inside the house of the informant.
18. Hence, based on the aforesaid reasonings and conclusions, we do not find any merit in this appeal. In the result, the appeal stands dismissed and judgment of conviction and order of sentence dated 7 th July, 2004 and 8th July, 2004 respectively passed by the Additional Sessions Judge, F.T.C.III, Gumla in connection with Sessions Trial Case no. 166 of 2001 corresponding to G.R. Case no. 260 of 2001, Gumla P.S. Case no. 107 of 2001,is, hereby upheld. (D.N.Upadhyay, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 04.04.2016 Nibha / / N.A.F.R.