Jharkhand High Court
Lalit Oraon vs The State Of Jharkhand on 20 August, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.158 of 2004
(Against the Judgment of conviction dated 05.03.2003 and order of sentence
dated 06.03.2003, passed by the learned Additional District and Sessions
Judge, Fast Track Court No.II, Gumla in S.T. No.226 of 1991).
Lalit Oraon, S/o Baiju Oraon, resident of Village- Pandaria, P.O. &
P.S.- Sisai, District- Gumla. .... Appellant
Versus
The State of Jharkhand. ..... Respondent
PRESENT
HON'BLE MR. JUSTICE KAILASH PRASAD DEO
.....
For the Appellant : Mr. Dilip Kumar Prasad, Advocate Mr. Ajay Kumar Pathak, Advocate For the State : Mr. Mukesh Kumar, Additional Public Prosecutor .....
By Court:- Heard Mr. Dilip Kumar Prasad, assisted by Mr. Ajay Kumar Pathak, learned counsels for the appellant and Mr. Mukesh Kumar, learned Additional Public Prosecutor appearing for the State.
2. The instant Criminal appeal is directed against the Judgment of conviction dated 05.03.2003 and order of sentence dated 06.03.2003, passed by the learned Additional District and Sessions Judge, Fast Track Court No.II, Gumla in S.T. No.226 of 1991, whereby the appellant along with his father, Baiju Oraon have been acquitted of charge under Sections 302/34 and 307/34 I.P.C. But, the appellant, Lalit Oraon has been convicted for the offence committed and punishable under Section 304 Part II and 324 I.P.C. The learned trial court has awarded rigorous imprisonment for 5 years for the offence committed and punishable under Section 304 Part II I.P.C. and rigorous imprisonment for one year for the offence committed and punishable under Section 324 I.P.C. Both the sentences are directed to run concurrently. The period already undergone during trial in jail custody shall be set off under Section 428 Cr.P.C.
3. The prosecution case is based upon 'fardbeyan' of the informant, Budhu Oraon (P.W.2) recorded on 01.11.1990 by the Officer-in-Charge, Sisai Police Station at around 12.45 a.m. (in the night), in presence of co-villagers, Vijay Baxla, Chowkidar Tirath Gope, and injured elder brother of the informant, Budhai oraon, alleging therein that at around 8 p.m., when the informant went to the door of his uncle, Baiju Oraon, asking as to why he is not paying rent of the land to the State, because of non-payment of the rent by Baiju Roan, who is owner of half of the share of the land, rent of this informant has also not been accepted by the State authority. The informant has alleged that upon this, Baiju Oraon, his son, Lalit Oraon and his daughter, Jhiwal Orain lost their temper and
-2- [Cr. Appeal (SJ) No.158 of 2004] control and started abusing the informant. It is further alleged that they came out of the house, armed with tangi and lathi and started assaulting the informant. Lalit Oraon having armed with tangi, assaulted upon the head of the informant causing bleeding injury, due to which he fell down and started shouting. Thereafter his elder brother, Budhai oraon came with an intention to rescue the informant, who was also assaulted by Lalit Oraon by means of tangi on his head, causing bleeding injury to the elder brother of the informant, who became unconscious and has not regained his consciousness till lodging of the First Information Report. It is stated that after this, co-villagers, Budhu Ahir, Lodhwa Ahir, Feku Oraon, Jagnarayan Singh, Chama Oraon and others came to the place of occurrence, to whom the entire occurrence has been disclosed and sought help. The injured, Budhai Oraon has been brought to the Police Station where statement of the informant is being recorded. The informant has further alleged, that during the assault, Jhiwal Orain has also sustained some injury on her left hand as the other accused persons, such as, uncle and cousin of the informant, are interested in grabbing the land of the informant and with this intention, they had assaulted him by means of sharp portion of tangi and lathi, causing injury and thereafter when his brother fell down, his uncle, Baiju Oraon having lathi in his hand, assaulted on the body by means of lathi. The informant has alleged that the occurrence has been committed by the accused persons with an intention to kill them and thus, they have sustained injury.
4. On the basis of the aforesaid 'fardbeyan' of the informant, the Police instituted First Information Report bearing Sisai P.S. Case No. 112 of 1990 dated 01.11.1990 corresponding to G.R. No.763 of 1990 under Sections 341, 307, 324 I.P.C. against appellant/accused, Lalit Oraon and his father, Baiju Oraon. Subsequently, vide order dated 07.12.1990, Section 304 I.P.C. has been added.
5. After investigation, the Police has submitted charge-sheet vide No.02 of 1991 dated 31.01.1991 under Sections 341/307/324/302/34 I.P.C. against the accused/appellant, Lalit Oraon and his father, Baiju Oraon.
6. The cognizance of the offence has been taken vide order dated 01.12.1991 and the case has been committed to the Court of Sessions vide order dated 25.09.1991. The charge has been framed against both the accused persons, Lalit Oraon and Baiju oraon on 27th January, 1993, under Sections 302/34 and 307/34 I.P.C., to which they pleaded their innocence and thus, they were put under trial.
7. The prosecution has examined altogether ten witnesses and also adduced documentary evidence to prove its case against accused persons
-3- [Cr. Appeal (SJ) No.158 of 2004] beyond all reasonable doubt.
Puneshwar Prasad, a formal witness, has been examined as P.W.1 and has proved the signature and the hand-writing of the Officer-in-Charge and on the written report have been marked as Exhibits -1 and 1/A, Budhu Oraon, informant and injured of the case, has been examined as P.W.2, Vijay Baxla, an independent eye-witness as well as signatory to the First Information Report has been examined as P.W.3, Sunder Mani Kumari, daughter of the deceased (Budhai Oraon) has been examined as P.W.4, but she has not supported the prosecution case, Bicha Oraon, a witness to the inquest report, has been examined as P.W.5, who proved his signature on the inquest report and also proved the signature of Chama Oraon on the same have been marked as Exhibits-1/D and 1/E respectively, Chama Oraon, another inquest witness, has been examined as P.W.6, whose signature on the inquest report has already been proved and marked as Exhibit-1/E, Dr. A. K. Choudhary, who conducted the post- mortem of the deceased (Budhai Oraon) on 5th November, 1990, has been examined as P.W.7 and has proved the post- mortem report which has been marked as Exhibit-2, Dr. Dhaneshwar Baraik, posted as C.A.S. at Referral Hospital, Sisai, has been examined as P.W.8. This witness has examined the injured persons initially and proved the injury report of Budhai Oraon as Exhibit-3 and injury report of Budhu Oraon written by Dr. Sugendra Say as Exhibit-3/1, Smt. Siria Orain, wife of the deceased has been examined as P.W.9 and has been declared hostile by the prosecution and Sushant Kumar Mitra, has been examined as P.W.10 and has proved the case diary from Page- 2 to 19 written by the Officer-in-Charge in his hand-writing and signature has been marked as Exhibit-4.
8. After closure of the prosecution evidence, the statement of accused/appellant has been recorded under Section 313 Cr.P.C. on 29.03.2000, to which the accused/appellant has pleaded his innocence and has discarded the evidence brought by the prosecution.
The defence has not examined any oral or documentary evidence in support of its case.
9. After hearing the learned counsel for the parties and on perusal of the records, the learned trial court has passed the impugned judgment of conviction and order of sentence against the appellant/accused by convicting him for offence committed and punishable under Section 304 Part II and 324 I.P.C., but acquitted the co-accused, Baiju Oraon from the charge under Section 302/34 and 307/34 I.P.C.
-4- [Cr. Appeal (SJ) No.158 of 2004] Being aggrieved at, and dissatisfied with the impugned judgment of conviction and order of sentence, the appellant/accused, Lalit Oraon has preferred the present Criminal Appeal before this Hon'ble Court, assailing the impugned judgment of conviction and order of sentence passed by the learned trial Court.
10. Heard Mr. Dilip Kumar Prasad assisted by Mr. Ajay Kumar Pathak, learned counsels appearing for the appellant.
Learned counsel appearing for the appellant has submitted that the impugned judgment of conviction and order of sentence is bad in law as well as on facts and thus, cannot sustain in the eyes of law. Learned counsel appearing for the appellant has further submitted that except witnesses, Budhu Oraon (P.W.2- informant) and Vijay Baxla (P.W.3), no other prosecution witnesses examined in this case have supported the prosecution case, even the wife of the deceased (Smt. Siriya Orain) who was examined as P.W.9 has been declared hostile by the prosecution and Sunder Mani Kumari (P.W.4), daughter of the deceased has also not supported the case of the prosecution, while stating in her cross-examination that she does not know as to who has killed her father and assaulted her uncle though she has not been declared hostile by the prosecution.
Learned counsel appearing for the appellant has further submitted that there is vital contradiction with respect to the oral and medical evidence brought on record.
Learned counsel appearing for the appellant has further submitted that evidence of Budhu Oraon (P.W.2- informant) and Vijay Baxla (P.W.3) are not, in consonance with the, prosecution case. If both are eye-witnesses to the occurrence, there should not have been any vital contradiction, so far as the manner of occurrence is concerned.
Learned counsel appearing for the appellant has further submitted that non- examination of the Investigating officer has certainly caused serious prejudice to the appellant, as the appellant could not get an opportunity to elucidate the fact to prove his innocence by cross-examination of the Investigating officer regarding manner of occurrence and other facts.
Learned counsel appearing for the appellant has further submitted that as per the prosecution case, which is on the basis of the 'fardbeyan' of the Budhu Oraon (P.W.2- informant) and as per fardbeyan of the informant, the occurrence took place when the informant went near the door of the appellant, asking them as to why they are not paying and depositing the rent of land revenue, upon which a scuffle took place in which Budhu Oraon (P.W.2- informant) was assaulted by means of tangi on his head by Lalit Oraon and when informant, Budhu Oraon (P.W.2) made brawl, his elder brother, Budhai Oraon, came for rescue, who was also assaulted by sharp edge of tangi on his head, as a result of which, he fell down and became unconscious. Thereafter Budhai
-5- [Cr. Appeal (SJ) No.158 of 2004] Oraon (deceased) was assaulted by means of lathi by Baiju Oraon having iron pointed part over the end of the lathi.
Learned counsel appearing for the appellant has further submitted that if the evidence of Vijay Baxla (P.W.3) is compared with the evidence of Budhu Oraon (P.W.2), this Court will find that there is vital contradiction in their evidence.
Learned counsel appearing for the appellant has further submitted that Vijay Baxla (P.W.3) has stated in his evidence that he was watching the incident from the distance of 10-15 Yards, but in Para-2 of his examination-in-chief, he has stated that when Lalit Oraon (appellant) has assaulted Budhu Oraon (P.W.2) by means of tangi, he (Vijay Baxla) has fled away raising brawl and when brother of the informant, Budhai Oraon came for rescue, Lalit Oraon again assaulted him by means of tangi causing injury upon Budhai Oraon who subsequently fell down.
Learned counsel appearing for the appellant has further submitted that, as per the evidence adduced in the Court by Budhu Oraon (P.W.2), he fell down after sustaining injury at the place of occurrence and when his elder brother, Budhai Oraon came for rescue, he was also assaulted by Lalit Oraon by means of tangi on his head. If the evidence of Vijay Baxla (P.W.3) is taken into consideration, then it appears that Budhu Oraon was assaulted by means of tangi, but he did not fell on the ground rather he fled away. After that his elder brother, Budhai Oraon came, who was also assaulted by means of tangi by Lalit oraon in head, as such, Budhai Oraon fell down.
Learned counsel appearing for the appellant has further submitted that both the version cannot be accepted together. P.W.3 (Vijay Baxla) has never stated before the Court that after sustaining injury by means of tangi, on the head caused by Lalit Oraon (appellant), Budhai Oraon fell down and lost his consciousness, whereas, the informant (P.W.2- Budhu Oraon) has categorically stated in his 'fardbeyan' that till recording his fardbeyan' his elder brother, Budhai Oraon was unconscious.
Learned counsel appearing for the appellant has further submitted that non- examination of the Investigating officer has caused serious prejudice to the appellant, as the appellant could not get an opportunity to cross-examined him with respect to the manner of occurrence and genuineness of the eye-witness in this case as to whether P.W.2 (Budhu Oraon) is an eye-witness to the occurrence or P.W.3 (Vijay Baxla) is an eye-witness to the occurrence, as there are vital contradictions in their deposition.
Learned counsel appearing for the appellant has further submitted that the Doctor (P.W.8), who has examined the informant-cum-victim and his elder brother in an injured condition at Sisai Referral Hospital, but has not mentioned any other injury found on the person of Budhai Oraon which was subsequently found by Dr. A. K. Chowdhary (P.W.7) who has conducted the post-mortem and autopsy of the dead-body of the deceased. Learned counsel appearing for the appellant has further submitted that the
-6- [Cr. Appeal (SJ) No.158 of 2004] informant (P.W.2- Budhu Oraon) who has been examined by the Doctor at Referral Hospital, Sisai, has not been examined in this case although injury report of Budhu Oraon has been proved and marked by a competent Doctor as Exhibit-3/1, but in the said injury report, there is abrasion over the neck of the victim, but this fact has also not been alleged by the informant in his 'fardbeyan' nor while deposing in the Court as P.W.2 (Budhu Oraon) nor by Vijay Baxla (P.W.3) claiming himself as eye-witness to the occurrence. As such, there are vital contradictions in the medical report i.e. Exhibit-2 (Post-mortem report of Budhai Oraon), Exhibit-3/1, injury report of Budhu Oraon and Exhibit-3, injury report of Budhai Oraon.
Learned counsel appearing for the appellant while relying on the aforesaid submissions, has submitted that the conviction of the appellant under Section 304 Part II I.P.C. cannot sustain in the eyes of law, as initially the Doctor has not observed any abrasion on the person of the deceased while examining at Referral Hospital, Sisai, but the same was mentioned by Dr. A. K. Chowdhary (P.W.7) while conducting autopsy on the dead-body of Budhai Oraon (deceased) at R.M.C.H., Ranchi on 05.11.1990.
Learned counsel appearing for the appellant has further submitted that considering such vital contradiction in the oral and medical evidence and coupled with the non-examination of the Investigating officer, the appellant cannot be convicted under Section 304 Part II I.P.C.
Learned counsel appearing for the appellant has further submitted that the appellant has suffered rigour of trial for about 28 years for a petty issue between the agnates, as such, lenient view may be taken, as on petty issue of depositing rent of the land, occurrence took place between agnates.
11. Heard Mr. Mukesh Kumar, learned Additional Public Prosecutor appearing for the State.
Mr. Mukesh Kumar, learned Additional Public Prosecutor appearing for the State, while supporting the impugned judgment of conviction and order of sentence, has submitted that the same has been passed by the learned trial court upon the material available on record and the learned trial court has acquitted co-accused and father of the appellant, Baiju Oraon from the charge, but since injury was found on the informant as well as on the deceased caused by sharp-cut weapon like tangi, as such, the learned trial court has rightly convicted the appellant under Sections 304 Part II and 324 I.P.C..
Learned counsel appearing for the State has further submitted that informant, Budhu Oraon (P.W.2) has corroborated his fardbeyan, while examining in the Court.
Learned counsel for the State has further submitted that the inquest witnesses have been examined and has proved their signatures on the inquest
-7- [Cr. Appeal (SJ) No.158 of 2004] report which have been marked as Exhibits- 1/D and 1/E. Learned counsel for the State has further submitted that the Doctor, who has conducted the post- mortem examination upon the deceased, has been examined as P.W.7 and Doctor who has examined the injured initially at Sisai Referral Hospital has been examined as P.W.8 and both have found injury over the head of the victim, as such, the learned trial court has rightly convicted the appellant/accused, Lalit Oraon under Sections 304 Part II and 324 I.P.C.
Learned counsel for the State has further submitted that Sundarmani Kumari (P.W.4), daughter of the informant in her examination-in-chief, has supported the prosecution, as such, the learned trial court is justified in convicting the appellant/accused under Sections 304 Part II and 324 I.P.C.
12. Heard, Mr. Dilip Kumar Prasad assisted by Mr. Ajay Kumar Pathak, learned counsel appearing for the appellant and Mr. Mukesh Kumar, learned Additional Public Prosecutor appearing for the State and perused the entire records including the First Information Report, the charge framed against the appellant and the evidence of all the prosecution witnesses, exhibits and statement of accused/appellant recorded under Section 313 Cr.P.C. and the impugned judgment of conviction and order of sentence.
From perusal of the material available on record, it appears that there is contradiction with regard to statement made in 'fardbeyan'. The statements of both eye-witnesses, namely, Budhu Oraon (P.W.2) and Vijay Baxla (P.W.3), are contradictory to each other.
This Court has scrutinized the evidence and has come to the conclusion that the medical evidence is not in consonance with the oral testimony of the witnesses. Informant (P.W.2- Budhu Oraon) has never alleged that he has been assaulted or he has sustained any type of injury on his neck, but the Doctor (P.W.8) who has initially examined the informant (Budhu Oraon) at Sisai Referral Hospital, has proved the injury report as Exhibit-3/1 written by Dr. Sugendra Say, who has found abrasion over the neck of P.W.2 (Budhu Oraon), but such injury has not been explained by the prosecution.
From perusal of the medical evidence of the deceased (Budhai Oraon) whose post- mortem report has been proved and marked as Exhibit-2 and the injury report initially issued by P.W.8 (Dr. Dhaneshwar Baraik) has been proved and marked as Exhibit-3, which was initial injury report which never speaks about any injury except injury found on the head, but the Exhibit-2 which is the post -mortem report issued by P.W.7 (Dr. A. K. Chowdhary), who has mentioned three abrasion on the person of the deceased, one on lateral side of left knee, second on frontal portion of the left knee and third on lateral side of
-8- [Cr. Appeal (SJ) No.158 of 2004] left elbow. If the Doctor, who has initially treated Budhai Oraon (deceased), has not found such abrasion, as appears from the injury report which has been proved and marked as Exhibit-3. If such injury was there on person of injured then the Doctor of Sisai Referral Hospital, who has initially examined the deceased (Budhai Oraon), has no reason for not mentioning the abrasion found on the left knee and left elbow of the deceased which was subsequently observed and mentioned by P.W.7 (Dr. A. K. Chowdhary) during autopsy of the deceased which has been marked as Exhibit-2. Such vital contradiction in the medical evidence is not corroborated by the oral evidence of the prosecution witnesses. The oral evidence of the prosecution witnesses, namely, Budhu Oraon (P.W.2) and Vijay Baxla (P.W.3) are not in consonance with each other as the informant has claimed that after he was assaulted by means of tangi on his head by Lalit Oraon (appellant), he sustained bleeding injury and he fell down on the ground and raised brawl. Thereafter his brother came for rescue, but he was also assaulted by Lalit Oraon by means of tangi on his head, who also fell down and remained unconscious till his 'fardbeyan' was recorded by the Police. But Vijay Baxla (P.W.3) has stated that after informant (Budhu Oraon) sustained injury by means of tangi caused by Lalit Oraon, he fled away and thereafter his brother came, who was also assaulted by Lalit Oraon by means of tangi and he fell down, but Vijay Baxla (P.W.3) has never said that P.W.2 (Budhu Oraon) was present when Budhai Oraon was assaulted by Lalit Oraon (appellant) by means of lathi, which has been stated by P.W.2 (Budhu Oraon).
This Court is of the opinion that if the persons are eye-witnesses to the occurrence, such vital contradiction will not emerge with respect to the presence of the victim-cum-informant (P.W.2), when his brother, Budhai Oraon was assaulted. With regard to unconsciousness of Budhai Oraon, which was alleged by the informant (P.W.2) in his fardbeyan, but not supported by another eye-witness, Vijay Baxla (P.W.3), who has never said that Budhai Oraon has also lost his consciousness, as such, vital contradiction has been found in the statement of prosecution witnesses i.e. P.W.2 and P.W.3, who are claimed to be the eye-witnesses to the occurrence, which suggest that evidence of informant (P.W.2 -Budhu Oraon) who is an injured witness can only be considered as eye-witness and thus, this Court has reason to disbelieve and discard the evidence of P.W.3 (Vijay Baxla).
This Court has observed that wife of the deceased, Siriya Oraine, who has been examined as P.W.9, has not supported the prosecution case and has been declared hostile by the prosecution though the occurrence took place in
-9- [Cr. Appeal (SJ) No.158 of 2004] the common courtyard of the informant and the accused persons. The daughter of the deceased, Sunder Mani Kumari has been examined as P.W.4 and she has also not supported the case of the prosecution. During cross- examination, this witness (P.W.4) has categorically stated that she does not know name of the persons, who have assaulted her father and uncle. Under such background, this Court is of the view that major contradiction in the medical evidence and oral testimony coupled with the non-examination of the Investigating officer has caused serious prejudice to the appellant.
13. Considering discussion made herein-above, this Court is of the opinion that the appellant (Lalit Oraon) cannot be convicted under Section 304 Part II I.P.C. on the sole oral testimony of informant (P.W.2 -Budhu Oraon), as the other evidence is contradictory from the evidence of oral testimony of informant (P.W.2 -Budhu Oraon), such as oral testimony of Vijay Baxla (P.W.3), Sunder Mani Kumari (P.W.4) and Smt. Siriya Oraine (P.W.9) and the medical report exhibited as Exhibit-2 and Exhibit-3/1.
14. Under the circumstances, this Court is extending the benefit of doubt in favour of the appellant for acquitting him under Section 304 Part II I.P.C.
15. So far as conviction of the appellant under Section 324 I.P.C. is concerned, since oral evidence of the victim with respect to the assault by means of weapon on the head of the deceased as well as informant have been corroborated by the medical evidence, i.e. Exhibit-3 and Exhibit-3/1, as such, conviction of the appellant under Section 324 I.P.C. passed by the learned trial court is upheld and affirmed. The appellant remained in custody since 3.11.1990 to 24.04.1992 during trial and for two months after his conviction and sentence. The trial court has awarded the sentence under Section 324 I.P.C. for one year rigorous imprisonment, which has already been served out by the appellant. As such, the period already undergone by the appellant is sufficient for offence committed and punishable under Section 324 I.P.C.
16. Considering the above aspect of the matter, the instant Criminal appeal preferred by the appellant is partly allowed by acquitting him under Section 304 Part II I.P.C. upholding the conviction of the appellant under Section 324 I.P.C.
17. In the result, this Criminal Appeal stands partly allowed with modification, as stated above.
18. The appellant, who is already on bail, is discharged from the liability of his bail bonds.
-10- [Cr. Appeal (SJ) No.158 of 2004]
19. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated 20th August, 2018/ sandeep/