Jharkhand High Court
Ramphal Oraon vs State Of Jharkhand on 13 April, 2016
Bench: D.N.Upadhyay, Ratnaker Bhengra
Cr. Appeal (D.B.) No. 1364 of 2008
With
Cr. Appeal (D.B.) No. 1437 of 2008
With
Cr. Appeal (D.B.) No. 1438 of 2008
With
Cr. Appeal (D.B.) No. 1250 of 2008
---------
Against the judgment of conviction and order of sentence dated 23.09.2008
& 30.09.2008 respectively passed by the Addl. Judicial Commissioner-I,
Khunti in connection with S.T.No.575/2003.
---------
Ramphal Oraon. ... ... ... ... ... ...Appellant
(in Cr. Appeal (D.B.) No.1364/2008)
Etwa Oraon ... ... ... ... ... ...Appellant
(in Cr. Appeal (D.B.) No.1437/2008)
Purn Chandra Munda @ Munda Munda. ... ... ... ...Appellant
(in Cr. Appeal (D.B.) No.1438/2008)
Tauhid Ansari. ... ... ... ... ... ...Appellant
(in Cr. Appeal (D.B.) No.1250/2008)
-Versus-
The State of Jharkhand. ... ... ... ... ... ...Respondent
(in all the appeals)
---------
For the Appellants: Ms. Amrita Banerjee, Advocate.
For the State: A.P.P.
PRESENT
THE HON'BLE MR. JUSTICE D.N.UPADHYAY
THE HON'BLE MR. JUSTICE RATNAKER BHENGRA
---------
By Court
[D.N.Upadhyay,J.] All these appeals arising out of the same judgment passed in
connection with S.T.No.575/2003 are heard together and are being
disposed of by this common judgment.
2. These Cr. Appeals have been directed against the judgment of
conviction and order of sentence dated 23.09.2008 & 30.09.2008
respectively passed by the Addl. Judicial Commissioner-I, Khunti in
connection with S.T.No.575/2003, corresponding to G.R.No.618/2000,
arising out of Bundu P.S. Case No.105/2000 whereby the appellants
named above have been held guilty for the offence punishable under
2.
Section 396 of the Indian Penal Code and sentenced to undergo R.I. for
life. One of the appellant Ramphal Oraon ( in Cr. Appeal No.1364/2008)
has further been held guilty under Section 412 of the Indian Penal Code
and sentenced to undergo R.I. for five years. The sentences so passed
were directed to run concurrently.
3. The facts emerging from fardbayan of Pushp Lata Jaiswal
recorded on 28.11.2000 at 19:30 hours is that dacoity was committed in
the house of informant. Dacoits, who were 14-15 in number, armed with
pistol, knife etc. entered in the house at about 6:30 p.m., overpowered
the inmates, obtained key of the iron chest and looted ornaments and
cash as detailed in the fardbayan. After committing dacoity, the dacoits
went out of the house but again someone told that we did not perform
main job for which we had been here. Thereafter one of the miscreant,
who was tall in height, came back in the house and by putting pistol on
the neck of Kailash Prasad Jaiswal (Bhainsur) of the informant, opened fire
as a result Kailash Prasad Jaiswal died at the spot. The informant has also
given physical description of dacoits.
4. On the basis of fardbayan of Pushp Lata Jaiswal, Bundu P.S. Case
No. 105/2000, dated 28.11.2000 under Section 396 of the Indian Penal
Code against unknown dacoits was registered. It reveals from the record
that charge-sheets were filed against the appellants on different interval
after securing their attendance. Accordingly, cognizance was taken and the
case of the appellants was committed to the court of sessions and
registered as S.T.No.575 of 2003/ 676 of 2003.
5. Initially charge under Sections 396/120(B) of the Indian Penal
Code against 9 accused was framed to which they pleaded not guilty and
3.
claimed to be tried. Appellant-Ramphal Oraon stood further charged under
Section 412 of the Indian Penal Code.
To substantiate the charges, prosecution has examined
altogether 17 witnesses including the Investigating Officers, Dr.
A.K.Chaudhary, who conducted postmortem examination on the dead body
of Kailash Prasad Jaiswal, the Judicial Officers, who conducted T.I.P. The
learned Addl. Judicial Commissioner placing reliance on the evidence and
document available on record, held the appellants guilty and inflicted
sentence as indicated above.
Pushp Lata Jaiswal-informant (P.W.1), Mohan Lal Jaiswal (P.W.2),
Tara Devi-P.W.3 (wife of the deceased), Rashmi Jaiswal (P.W.4), Annapurna
Kumari (P.W.5), Renuka Kumari @ Renu Kumari (P.W.13) are the eye-
witnesses, who were present in the house at the time of commission of
dacoity and they all have supported the prosecution case. These
appellants were also identified by witnesses in T.I.P. and T.I. Chart have
been proved by Yogeshwar Mani, Judicial Officer (P.W.9). He has proved
T.I. Chart as ext. 3, 3/1, 3/2 & 3/3. Dipak Barnwal (P.W.11) is another
Judicial Magistrate, who had conducted T.I.P. of convict-Dhananjay Oraon
@ Langra @ Lambu @ Sukra Oraon. He has proved two T.I. Chart as ext.
3/4, 3/5. Abhay Kumar Sinha (P.W.16) is an Executive Magistrate and
T.I.P. of wall clock recovered from possession of appellant-Ramphal Oraon
was conducted by him and he has proved T.I. Chart of wall clock (Ext. 11).
Niranjan Prasad Jaiswal-P.W.6 and Roshanlal Jaiswal-P.W.8 (sons of
deceased) are hearsay witnesses and they have supported the prosecution
case as disclosed to them by the eye-witnesses. Dr. A.K.Chaudhary (P.W.7)
had conducted postmortem examination on the dead body of Kailash
4.
Prasad Jaiswal and he has proved the postmortem report as ext. 2 and
described the injuries found on the person of deceased. Ramendra Kumar
jaiswal is the formal witness and he has proved his signature appearing on
inquest report and signature of R.K.Bhagat as ext. 1/1 and 1/ 2. Bhagwan
Pd. Gupta (P.W.12), Chetnanand Sinha (P.W.14), Krishna Kumar Mahto
(P.W.17) are the Investigating Officers. They had conducted investigation
and submitted charge-sheet against the appellants after collecting
evidence. Statements of some of the witnesses were recorded under
section 164 Cr.P.C. during investigation and those statements have been
proved by P.W.14 as Ext. 8, 8/1 & 8/2. Vedanand Jha (P.W.15) has proved
confessional statement of appellant-Ramphal Oraon. Eye-witnesses have
fully supported the prosecution case as detailed in the fardbayan.
Appellants were identified in T.I.P. and also in Court by the witnesses. The
role played by them has been described by the witnesses. All the
necessary documents like T.I.P. chart, seizure list, statement of witnesses
recorded under Section 164 Cr.P.C. have also been proved and contention
made therein find support from the evidence available on record. The
prosecution has successfully proved that looted wall clock was recovered
from the house of appellant-Ramphal Oraon and that clock was put on
T.I.P. and accordingly identified by the witnesses.
6. We have carefully gone through the evidence on record and the
documents marked exhibits. The prosecution witnesses have successfully
proved that docoity was committed in the house of informant on
28.11.2000in the evening at about 6:30 p.m. and articles like golden ornaments, cash, wall clock etc. were looted by the dacoits. Identification 5. of appellants as offender has successfully been proved.
7. Learned Counsel for the appellants has raised only one point. It is submitted that dacoity was committed in the house of informant, looted articles were also recovered, the appellants were identified by the witnesses, find support from the evidence adduced by the prosecution but conviction and sentence recorded under Section 396 I.P.C. is incorrect. The appellants are not liable to be brought within the ambit of under Section 396 of the Indian Penal Code because Kailash Prasad Jaiswal was not murdered in course of commission of dacoity and, therefore, appellants are not conjointly liable for the murder and they are not liable to be punished under Section 396 of the Indian Penal Code. It is fairly conceded that ample evidence by the prosecution has been brought on record to prove that dacoity was committed and looted articles from possession of one of the appellant Ramphal Oraon was also recovered but evidence on record does not indicate that Kailash Prasad Jaiswal was killed in course of commission of dacoity rather the eye-witnesses have clearly stated that after committing dacoity, the appellants with their associates went out of the house. In the meantime one of the miscreant said that important job has still left to be performed and thereafter one of the miscreant who was tall in figure, returned back and caused injury to Kailash Prasad Jaiswal by means of fire arm from a close range. Kailash Prasad Jaiswal sustained gun shot injury on his neck and died at the spot. By referring this fact brought on record by the witnesses, it is submitted that murder of Kailash Prasad Jaiswal was not done in course of commission of dacoity. Some of the miscreants were intending to commit murder and after dacoity was over one of the miscreant who has 6. been identified as convict Dhananjay Oraon @ Langra @ Lambu @ Sukra Oraon returned back and opened fire from a close range on the neck of Kailash Prasad Jaiswal as a result Kailash died. The eye-witnesses, who had identified co-convict Dhananjay have clearly deposed that it was Dhananjay, who killed Kailash Prasad Jaiswal. Under such circumstances, the appellants do not owe vicarious liability as defined under Section 396 of the Indian Penal Code and they are not liable to be punished under Section 396 of the Indian Penal Code.
8. Last but not the least, it is contended, if the statement of witnesses and documents proved by prosecution are admitted to be true, appellants are not liable to be convicted under Section 396 of the Indian Penal Code rather conviction so recorded may be converted under Section 395 of the I.P.C. By submitting above, it is pointed out that the appellants have more or less remained in jail custody for about 10 years and they have sufficiently been punished.
9. Learned A.P.P. has opposed the argument and submitted that the appellants with their associates were all along present in the house even after commission of dacoity, looted articles were with them, they were present in the courtyard, in the meantime one of the miscreant told that main task has left to be discharged. Thereafter one of the miscreant took out pistol and opened fire on the neck of Kailash Prasad Jaiswal and killed him. After collecting valuables from the house, the appellants and their associates were very well present over there, in the meantime, co-convict Dhananjay Oraon took out pistol and opened fire causing death of Kailash Prasad Jaiswal at the spot. It is not that dacoity was over and the appellants and their associates had left the place. The prosecution has 7. successfully proved the offence punishable under Section 396 of the Indian Penal Code against all, who have been convicted. Offence under Section 412 I.P.C. has also been proved against Ramphal Oraon and they have rightly been held guilty and inflicted with sentence.
10. Having heard rival submission and after going through the evidence on record, we find force in the argument advanced by learned Counsel for the appellants. It is fairly conceded that evidence and documents available on record are sufficient to prove that dacoity was committed in the house of informant and valuables were looted. One clock looted from the house was recovered from possession of appellant- Ramphal Oraon and the looted article has been identified by witness in T.I.P. Identification of the appellants have also been proved as offender by the witnesses. They were identified in T.I.P. while they were in custody as well as in Court during trial. We do agree that witnesses have stated that appellants and their associates have collected valuables like ornaments, cash and other articles from the house and they were just to leave the place of occurrence but in the meantime one out of them uttered that main task has not been discharged thereafter co-convict Dhananjay Oraon came back in the house and opened fire on the neck of Kailash Prasad Jaiswal and killed him. We do not find that Kailash Prasad Jaiswal at any point of time, in any manner, either resisted or made protest against the appellants in commission of dacoity. Likewise no other members present in the family had made any protest in course of commission of dacoity, therefore, evidence on record suggest that keeping the inmates in fear of death, dacoity was successfully committed by the appellants and their associates. While they were just to leave the place, someone uttered that 8. main job is left to be performed, thereafter co-convict Dhananjay killed Kailash Prasad Jaiswal. We do not find that appellants were also having intention to commit murder or Kailash Prasad Jaiswal was killed in course of commission of dacoity. If co-convict Dhananjay Oraon was having intention to commit murder, he shall be held liable for that offence. We do not find any circumstance, that even at the time the appellants with their associates were just to leave the place with looted articles any protest was made from any corner.
11. In view of the evidence available on record and the discussions made above, we do not agree with the findings of the Trial Court that appellants are conjointly liable for the murder of Kailash Prasad Jaiswal and they are liable to be punished under Section 396 of the Indian Penal Code. We are in agreement with the submission advanced by learned Counsel for the appellants that dacoity was committed, articles were looted and for that the appellants are liable to be held guilty for the offence under Section 395 of the Indian Penal Code. In the result, we feel inclined to alter the conviction and sentence from one under Section 396 of the Indian Penal Code to one under Section 395 of the I.P.C. as against the appellants. They are hereby held guilty under Section 395 of the Indian Penal Code and sentenced to undergo R.I. for 10 years and to pay fine of Rs.5,000/- each and in default of making payment of fine each of them shall suffer further imprisonment of six months. Conviction and sentence recorded under Section 412 of the Indian Penal Code against the appellant-Ramphal Oraon is hereby upheld. Period already undergone shall be set up under Section 428 of the Cr.P.C. The Convicting/Successor Court is directed to issue modified conviction warrant against the 9. appellants under Section 395 of the Indian Penal Code as indicated above. The conviction and sentence recorded under Section 412 IPC against Appellant-Ramphal stands upheld.
12. Accordingly, aforesaid appeals stand dismissed with modification in the conviction and sentence dated 23.09.2008 & 30.09.2008 respectively passed by the Addl. Judicial Commissioner-I, Khunti in connection with S.T.No.575/2003 as against appellants named above.
[D.N.Upadhyay,J.] [Ratnaker Bhengra,J.] Jharkhand High Court, Ranchi dated the 13.04.2016 P.K.S./N.A.F.R.