Jharkhand High Court
Fekan Oraon vs The State Of Jharkhand on 29 October, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 370 of 2016
With
Criminal Appeal (DB) No. 268 of 2016
With
Criminal Appeal (DB) No. 276 of 2016
With
Criminal Appeal (DB) No. 279 of 2016
[Against the Judgment of conviction dated 4.3.2016 and order of
sentence dated 5.3.2016 passed by the learned Addl. Sessions
Judge-I, Lohardaga in Sessions Trial No. 113 of 2006].
Fekan Oraon, son of late Basuwas Oraon, resident of village- Huahar, P.O.
Kisko, P.S. Kisko, District- Lohardaga, Jharkhand
............APPELLANT (Cr.A. 370 of 2016)
1. Sanjay Oraon , son of late Baijnath Oraon,
2. Sukhram Lohra, son of Charo Lohra
3. Laxman Sahu, son of Ruplal Sahu
All are residents of village Huahar, P.O. Kisko, P.S. Kisko, District-
Lohardaga, Jharkhand.
.......... APPELLANTS (Cr.A. 268 of 2016)
Ajanta Devi, wife of Bandhan Munda, resident of village- Pandari, P.O and
P.S. Chanho, District- Ranchi, Jharkhand.
............APPELLANT (Cr.A. 276 of 2016)
Narayan Bhagat, son of Late Marwari Bhagat, resident of village- Huahar,
P.O and P.S- Kisko, Disrict- Lohardaga, Jharkhand.
............APPELLANT (Cr. A. 279 of 2016)
-Versus-
The State of Jharkhand .........RESPONDENT (in all cases)
......
For the Appellants: M/s Naresh Prasad Thakur, Akhouri Awinash,
Bibhash Sinha and Ashwini Priya, Advocates.
For the State : M/s Bhola Nath Ojha, Sajay Kr. Srivastava
and Pankaj Kr. Mishra, A.P.Ps.
......
PRESENT
SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
JUDGMENT
C,.A.V. on: 23/10/2024 Pronounced on: 29 /10/2024 Page 1 Per, Ananda Sen, J.
These criminal appeals are directed against the Judgment of conviction dated 4.3.2016 and order of sentence dated 5.3.2016 passed by the learned Addl. Sessions Judge-I, Lohardaga in Sessions Trial No. 113 of 2006, whereby and whereunder, the appellants, namely, Sanjay Oraon, Sukhram Lohra, Narayan Bhagat, Laxman Sahu and Ajanta Devi are convicted under Sections 304 part-II IPC r/w Sections 149 and 148 IPC and Section 3 of Prevention of Witch (Daain) Practices Act and they have been sentenced to undergo R.I. for ten years and fine of Rs.10,000/- each under Section 304 part-II/149 IPC and R.I. for three months and fine of Rs.1,000/- each under Section 3 of Prevention of Witch (Daain) Practices Act. Further they have also been sentenced to undergo R.I. for three years and fine of Rs.5000/- each under Section 148 IPC.
So far as appellant, namely Fekan Oraon is concerned, he has been convicted under Section 302/149, 148 IPC and Section 3 of the Prevention of Witch (Daain) Practices Act and he has been sentenced to undergo imprisonment for life and fine of Rs.10,000/- under Section 302/149 IPC and no sentence has been awarded under Section 148 IPC and Section 3 of the Prevention of Witch (Daain) Practices Act.
2. The learned counsels for the appellants submitted that Section 149 of the Indian Penal Code cannot be attracted on the facts of this case. They also submitted that the prosecution has to prove that the assembly is unlawful, but if the evidence and circumstances are scrutinized, it would be clear that the assembly was not unlawful. They further contended that so far as appellants, namely Sanjay Oraon and Sukhram Lohra are concerned, the only allegation against them is that they had gone to the house of Shiv Narayan to call him and there is no allegation that they had committed any act of assault nor they had intention to commit murder. They also contended that it has come in evidence that a meeting was being convened and during the meeting, suddenly some of the persons became agitated and started assaulting the deceased. There were hundreds of person attending the meeting. Since the assembly was only for participating in the meeting, it cannot be said to be illegal. Appellants Ajanta Devi, Sanjay Oraon, Narayan Bhagat, Sukhram Lohra, Laxman Sahu could not have Page 2 been convicted with the aid of Section 149 IPC. They further submitted that Section 147 and 148 IPC are not attracted against these appellants as they never participated in any riot. So far as appellant Fekan Oraon is concerned, it has been submitted that he had no intention to commit murder of the deceased as he was not armed with any deadly weapon. It has also been contended that the entire occurrence had taken place in spur of the moment. On these grounds, prayer has been made to acquit these appellants.
3. The learned counsel for the State opposing the prayer for the appellants submitted that branding both the deceased as witch, they were brought in the meeting. Sanjay Oraon and Sukhram Lohra were instrumental in bringing Shiv Narayan at the meeting place. The entire village branded the deceased as witch and they started assaulting the deceased persons and both the deceased died. It is further submitted that the presence of these appellants at the place of occurrence has been proved and there was overtact as all of them assaulted the deceased. It has been further contended that the allegation against Fekan Oraon is of higher degree as he had committed the murder of Shiv Narayan by pressing his neck. It has also been contended that all these evidences clearly suggests the presence of these appellants in an assembly, which was unlawful. It is lastly contended that on these grounds, the appellants have rightly been convicted.
4. The prosecution case is based on the Fardbeyan of informant Bhado Orain (P.W.4), wife of Shiv Narayan (the deceased), in which, she stated that on 30.5.2005 at about 8:00 in the morning, Sukhram Lohra, Jagdish Oraon, Durga Oraon and Sanjay Oraon came to their house and told that a meeting has been convened in the village. Her husband told them that he will come in the meeting but they waited and forcibly took him at the meeting place. The informant followed them along with her daughter. In the meeting place, many persons had assembled, including all these appellants. Budhwa Oraon confronted Shivcharan with some question as to why he is commenting against villagers to which, Shivcharan denied and stated that he has not gone to anyone's house and never said any thing. Sitaram Saw stated that Shivcharan Oraon is a witch and has taken the life of his father. Another villagers- Jitan Sahu also complained that Shiv Charan has buried rice in his field and was instrumental in the death of his cattle.
Page 3 Then Bhola Thakur stated that the witches should be done to death. On hearing this Fekan Oraon, Ranbir Oraon, Lochan Oraon, Laxman Sao, Gangia Bhaktain, Narayan Bhagat and 17-18 named persons present therein with sticks started assaulting the husband of the informant. The informant and her daughter went to save them, but they were also assaulted by fits and slaps. Everyone assaulted her husband, as a result, he died. Thereafter, they also alleged that Ramnath Oraon is also a witch and they also committed his murder. The informant stated that before the said occurrence, a priest type person was called in the village and that person had made declaration that these two deceased are witches.
On the basis of the aforesaid fardbeyan, FIR being Kisko P.S. Case No. 22/05 was registered under Sections 147, 148, 149, 302, 307, 323, 342,337 and 120B IPC and under Sections ¾ of the Prevention of Witch (Daain) Practices Act. After investigation, the police submitted chargesheet against these appellants. Accordingly, cognizance of the offence was taken and the case was committed to the Court of Sessions for trial. As the appellants pleaded not guilty, charge was framed against them for Sections 148, 307/149 IPC r/w Sections 149/302 IPC and Section 3 of the Prevention of Witch (Daain) Practices Act.
5. In order to prove the charges against the accused, the prosecution had examined altogether nine witnesses, who are as follows:-
P.W.1- Sita Ram Oraon P.W.2- Sohrai Oraon P.W.3- Laldeo Oraon P.W.4- Bhado Orain (wife of one of the deceased and the informant) P.W.5- Tetri Orain P.W.6- Gopal Singh P.W.7- Laxmania (the daughter of the deceased) P.W.8- Hari Shankar Prasad P.W.9- Dr. Ashok Kumar Oriya.
6. Some documents were also exhibited by the prosecution to prove its case, which are:-
Ext.1: Signature of witness, Hari Shankar Prasad on Fardbeyan.
Ext.2: Signature of Kishore Tamsoy on Inquest report. Ext.3: Handwriting of Ajay Kumar on formal FIR. Ext.4: Postmortem Report.
Ext.4/1: Postmortem Report.
Page 4
7. After closure of prosecution witness, statement of the appellants under Section-313 of Cr.P.C were taken, in which they have pleaded not guilty.
8. The Trial Court thereafter hearing the arguments of the parties and considering the evidences had convicted the appellants, namely, Sanjay Oraon, Sukhram Lohra, Narayan Bhagat, Laxman Sahu and Ajanta Devi for committing the offence under Sections 304 Part-II, r/w Section 149 of the Indian Penal Code. So far accused Fekan Oraon is concerned, he has been convicted for committing the offence under Section 302/149 IPC. All accused persons have also found guilty for the offence under Section 148 IPC
9. From the records, I find that to prove homicidal death, the prosecution has examined P.W.9, the doctor Ashok Kumar Oriya, who conducted the post-mortem examination on the dead bodies. He found the following injuries on the body of both the deceased:-
Injuries found on the person of decreased- Ramnath Oraon.
Injuries ante mortem:-
(i) Lacerated wound over frontal bone at right
side size 2" x ½" x bone deep.
(ii) Lacerated wound over left side of eyebrow
1"x1/3"x bone deep.
(iii) Multiple bruise over neck and whole chest and abdomen.
Internal Injuries:-
(i) Thoracic cavity- There was full of blood in
thoracic cavity.
Multiple fracture of sternum bone (chest bone) Fractured rips of right side (II, III, IV, V, VI, VII and VIII), Fracture rips of left side (III, IV, V, VI, VII and VIII).
(ii) Multiple punctured would and laceration of both lungs.
(iii) Heart: Right and left chamber was punctured. Both chambers of heart was empty.
(iv) Abdominal Cavity:- Spleen and liver were ruptured. Stomach contains thick and complete digested food particles. Opinion: Time elapse since death approximately 6 to 12 hours.
Cause of death: Due to shock and haemorrhage injuries mentioned above were caused by hard and blunt objects. Above injuries may be caused by lathi, danda and big stones.
Page 5 Injuries found on the person of decreased- Shiv Charan Oraon Injuries ante mortem:-
(i) Bruise over forehead size 1" x1".
(ii) Multiple bruise over whole chest and whole abdomen.
Internal Injuries:-
(i) Thoracic cavity full of blood.
Multiple fracture of sternum bone
(ii) Fracture rips of left side (III to VIII).
Fractured rips of right side (II to VII)
(iii) Multiple punctured would and laceration of both lungs.
(iv) Heart: Right and left chamber punctured.
Both chambers were empty.
(v) Abdominal Cavity:- There was full of blood in abdominal cavity.
Liver spleen were ruptured and pale. Stomach was empty.
Opinion: Time elapse since death approximately 6 to 12 hours.
Cause of death: Due to shock and haemorrhage injuries mentioned above were caused by hard and blunt objects. Above injuries may be caused by lathi, danda etc. the blunt object.
From the evidence of the doctor and the postmortem report, it is proved that the deceaseds died homicidal death.
10. Now let us discuss as to what are the materials to convict all these appellants and also let us discuss as to whether they are part of an participated in unlawful assembly or not. Section 141 defines unlawful assembly, which reads as under:-
"141. Unlawful Assembly.- An assembly of five or more persons is designated an 'unlawful assembly', if the common object of the persons composing that assembly is First.- To overawe by criminal force, or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State] , or any public servant in the exercise of the lawful power of such public servant; or Second.- to resist the execution of any law, or of any legal process; or Third.- to commit any mischief or criminal trespass, or other offence; or Fourth.- By means of criminal force, or show of criminal Page 6 force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which, he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth.- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do."
Further Section 142 IPC is also important to decide this case, which proved that a person should be aware of the facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is also said to be a member of an unlawful assembly.
11. Considering the aforesaid provision of law, we have to decide from the evidence as to whether the assembly was unlawful or not. From the FIR and the evidence of the prosecution witnesses, we find that it has been proved by the prosecution that a meeting was convened in the village and 100's of the villagers had assembled. The purpose for which, the meeting was called has not been spelt out by any of the prosecution witnesses. From the evidence, led by the prosecution, it can be concluded that the meeting was convened to decide and discuss about these two deceased and their acts. The deceased were brought in the meeting. Till this stage, I find that there is no evidence and none of the conditions mentioned in Section 141 IPC is attracted. Thereafter as per the evidence, suddenly some persons alleging and accusing these deceased, started assaulting them. This was a sudden development, which had taken place in the meeting. Thus from the admitted facts, which surfaced in evidence, it cannot be said that the said meeting, which was convened, was unlawful, and the assemblage of person during the meeting was not unlawful. From the explanation of Section 141, it is also clear that the assembly, which was not unlawful at the time it was assembled, can subsequently became unlawful. In this case from the evidence, it is also clear that when a person made some adverse comments against the deceased and shouted that the witches should be killed, then some members of the meeting started assaulting the deceased. Thus at that point of time, the assembly had become unlawful.
Page 7
12. From the facts and the evidence, led by the prosecution, we can say that the entire assembly which was convened initially had not become unlawful as there is nothing to suggest that the entire village had the intention to commit any unlawful act, as envisaged under Section 141 IPC. Therefore, Section 149 IPC shall not apply.
13. Now from the evidence, led by the prosecution, we have to consider as to what are the materials against each of the appellants.
14. So fas as the appellant, Ajanta Devi [appellant of Cr.A (DB) 276/2016] is concerned; her presence in the meeting has been stated by P.Ws. 4, 5 and 6. These witnesses in omnibus manner taking name of all the accused including Ajanta Devi stated that they assaulted the deceased with sticks. P.W.4, in her cross-examination, at paragraph 7 then has categorically stated that Ajanta was not present in the meeting. P.W.5 in paragraph 1 also gave omnibus statement naming several accused including this appellant who had assaulted the deceased with sticks. In paragraph 13, she also specifically stated that Ajanta was not at the place of the meeting. Thus, in view of the contradictory statement given by these witnesses, it is doubtful whether Ajanta Devi was present at the place of occurrence or not. In view of this reasonable doubt, the presence of Ajanta Devi at the place of occurrence during meeting is doubted; therefore the appellant, namely, Ajanta Devi could not have been convicted. Accordingly she is acquitted.
15. So far as appellants, namely Sanjay Oraon and Sukhram Lohra [appellants of Cr.A. (DB) No. 268 of 2016] are concerned, from the evidence of P.Ws. 4, 5, 6 and 7, we find that specific allegation against Sanjay Oraon and Sukhram Lohra is that they have brought Shivcharan from his house to the meeting place. This act of their cannot be said to be an illegal act as because at that point of time, there is nothing on record to suggest that anyone had any intention to commit murder of the deceased nor at that point of time, the assembly i.e. the meeting was an unlawful assembly. If we read the evidence of P.W.4, there is nothing in examination-in-chief that these two appellant had assaulted the deceased. She also stated that Sanjay and Sukhram along with two others had taken her husband at the meeting place, Page 8 but when she stated about the assault, she had not taken the name of Sanjay and Sukhram. She further stated that Laxman, Lochan, Ranbir, Narayan, Gangia, Lal Sahdeo had assaulted the deceased with stones and sticks. Similar is the statement of P.W.6. All these witnesses have claimed to be eye witnesses, thus from their evidences, we find that the allegations against these two appellants namely Sanjay Oraon and Sukhram Lohra are only to the extent of calling and taking the deceased at 'Bagicha' (garden area), where the meeting was convened. Thus we hold that the conviction of the appellants, namely, Sanjay Oraon and Sukhram Lohra is also bad, as they have not committed any offence.
16. So far as appellant, namely, Laxman Sahu [appellant of Cr.A.(DB) No. 268 of 2016] and Narayan Bhagat [appellant of Cr.A.(DB) No. 279 of 2016] are concerned, we find that the eye witnesses i.e. P.Ws. 4, 5, 6 and 7 have stated that they have assaulted the deceased with sticks and stones. The allegation is omnibus and general against the other accused including these appellants. From the evidences of these witnesses, it is proved that they have assaulted the deceased with sticks and stones. From their evidence, it is clear that though they had assaulted the deceased, but there is nothing to suggest that they had any intention to cause death of the deceased. In absence of their intention to cause death of the deceased, the Trial Court has rightly convicted these two appellants, namely, Laxman Sahu and Narayan Bhagat for committing the offence under Section 304 part-II IPC. Their conviction under Section 304 part-II IPC is affirmed.
17. So for as appellant namely Fekan Oraon [appellant of Cr.A. (DB) No. 370 of 2016] is concerned, we find that P.W. 4 has stated that this appellant has assaulted the deceased with Lathi branding him as witch. He also assaulted this witness. It has also been stated that Fekan had assaulted the deceased with Lathi and stone and had urinated on the face of the deceased. She stated that this appellant with stick pressed the neck of the deceased and committed his murder. P.W.6 has also stated the similar facts about Fekan Oraon. Thus the allegation against Fekan Oraon has been proved by the eye witness that he has committed murder of the deceased.
Page 9 Thus the conviction of appellant Fekan Oraon under Section 302 IPC is affirmed.
18. As Section 141 IPC is not proved, as held in paragraph 12 of this judgment, therefore the conviction under Section 148 IPC is not sustainable, so far as appellants namely, Fekan Oraon, Laxman Sahu and Narayan Bhagat are concerned.
19. So far as Section 3 of the Prevention of Witch (Daain) Practices Act is concerned, we find that the evidence is consistent that Fekan Oraon, Laxman Sahu and Narayan Bhagat had branded the deceased as witch and they started assaulting them. Thus the appellants namely Fekan Oraon, Laxman Sahu and Narayan Bhagat have rightly been convicted under Section 3 of the Prevention of Witch (Daain) Practices Act by the learned Trial Court. Their conviction under Section 3 of the Prevention of Witch (Daain) Practices Act is affirmed.
20. So far as sentence is concerned, from the impugned judgment, we find that in the year 2006, Narayan Bhagat was aged about 60 years whereas, Laxman Sahu was 74 years. Today, they must be 78 years and 92 years, respectively. Thus, it would not be proper them to send them back in custody. Thus their sentence is reduced to the period, which they had already undergone.
21. So far as appellant- Fekan Oraon is concerned, since we hold that he is guilt for the offence committing murder of the deceased, his sentence, which has been imposed by the Trial Court i.e. of life imprisonment along with fine of Rs.10,000/- is hereby affirmed. Thus Cr.A.(DB) No. 370 of 2016 is, hereby, dismissed. As he is already in custody, he is directed to serve the sentence.
22. Accordingly, Cr. Appeal (DB) No. 268 of 2016 is partly allowed by acquitting appellants, namely, Sanjay Oraon and Sukhram Lohra and convicting the appellant, namely Laxman Sahu under Section 304, part-II IPC and Section 3 of the Prevention of Witch (Daain) Practices Act. Since Sanjay Oraon and Sukhram Lohra are on bail, they are discharged from their liabilities of bail bonds and so are the bailors.
Page 10
23. Cr. Appeal (DB) No. 276 of 2016 is allowed by acquitting appellant, namely, Ajanta Devi. Since she is on bail, she is discharged from the liability of her bail bond, and so are the bailors.
24. So far as Cr. Appeal (DB) No. 279 of 2016 is concerned, the appellant, namely, Narayan Bhagat has rightly been convicted under Section 304, part-II and Section 3 of the Prevention of Witch (Daain) Practices Act. Thus Cr.Appeal (DB) No. 279 of 2016 is dismissed. As held earlier, considering his age, the sentence is modified to the period which he had already undergone. Since he is already on bail, he is also discharged from his liability of bail bond and so are the bailors.
25. Let the Trial Court Records be sent back to the Court concerned forthwith, along with a copy of this judgment.
26. Pending interlocutory application, if any, is also disposed of.
(ANANDA SEN, J.) GAUTAM KUMAR CHOUDHARY, J: I agree.
(GAUTAM KUMAR CHOUDHARY, J.) High Court of Jharkhand, Ranchi.
Dated: 29/10/2024.
NAFR-Anu/- CP3 Page 11