Jharkhand High Court
Jharia Oraon vs State Of Bihar (Now Jharkhand) on 10 August, 2004
Equivalent citations: 2004(3)BLJR1735, [2004(4)JCR216(JHR)], 2004 CRI LJ (NOC) 365, 2004 AIR - JHAR. H. C. R. 3029, (2004) 3 JLJR 582, (2004) 4 JCR 216 (JHA), 2004 BLJR 3 1735
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya, Lakshman Uraon
JUDGMENT S.J. Mukhopadhaya, J.
1. The appellant Jharia Oraon has challenged the judgment and order of conviction and sentence dated 7th July, 1997/8th July, 1997 passed by Shri Pradeep Kumar, learned Additional Sessions Judge, Gumla in S.T. No. 80-93, arising out of Gumla P.S. Case No. 172/92 corresponding to G.R. Case No. 685/92, whereby and whereunder, the appellant has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life.
2. The fact of the case lies in a narrow compass. On 11th August, 1992 in the morning, the father of the informant, namely, Birsu Oraon (deceased) was grazing his cows in the Kripanagar village and the informant Fekla Oraon (PW 5) was ploughing in the same field. One Mangra Oraon (PW 3) who is step brother of informant was grazing his field nearer to the field of informant. The accused Jharia Oraon who is a co-sharer and uncle of the informant was watering his field, informant's cousin, Biria Oraon and Mahadeo Oraon, who are sons of accused Jharia Oraon, were also ploughing in their nearby field. In the meantime, at about 7 a.m. uncle of informant i.e. accused Jharia Oraon wanted to take water by cutting the ridge of his field then the father of informant, namely, Birsu Oraon (deceased) prohibited him from doing so. Jharia Oraon then colluded with hot exchange of words with Birsu Oraon. Biria Oraon and Mahadeo Oraon who were ploughing their field left ploughing and came to the field of the informant and threw his father Birsu Oraon on the ground. Thereafter, accused Jharia Oraon gave three spade blows which was in his hand. The father of informant, namely, Birsu Oroan become unconscious and the informant ran to save his life. Mahadeo also gave a lathi blow on the right leg of informant. On hearing hulla, when Mangra Oraon (PW 3) came to the place of occurrence then Jharia Oraon and Mahadeo Oraon fled away. Jattra Oraon (PW 2) and Jugu Oraon also reached to the place of occurrence on hearing hulla. They along with the informant carried Birsu Oraon to Kharka More where he died. Leaving the dead body of his father, the informant along with his mother and villagers went to the police station for lodging FIR. On the basis of the fardbeyan of informant, Fekla Oraon (PW 5), the Police registered a case under Sections 302/34 and 323/34 of the Indian Penal Code and after investigation, submitted charge sheet against the three accused, namely, Jharia Oraon, Biria Oraon and Mahadeo Oraon.
3. In course of trial, the prosecution examined eight witnesses in order to bring home the charges framed against the three accused persons under Sections 302/34 and 323/34 of the Indian Penal Code.
4. PW 1, Jokhan Bhagat and PW 4. Hari Charan Kewat both proved the inquest report. They stated that the daroga prepared the Inquest report in their presence on which they put their signatures, marked as Exts. 1 and 1/1, according to them they had not seen the occurrence. PW 2, Jatra Oraon and PW 3, Mangra Oraon are full brothers. After the death of their father, their mother Somari Oraon started living with Birsu Oraon (deceased) and gave birth to a son, namely, Fekla Oraon, the informant (PW 5) PW 3, Mangra Oraon and PW 5, Fekla Oraon (informant) are the eye-witnesses to the occurrence who were ploughing their field where Birsu Oraon was grazing his cows. PW 2, Jatra Oraon came to the place of occurrence first after the occurrence took place and had seen the accused fleeing from the place of occurrence. PW 6, Dr. A.D.N. Prasad, Civil Assistant Surgeon conduct autopsy on the body of the deceased Birsu Oraon. PW 7, Dr. Jaswant Anant Lal, Civil Assistant Surgeon examined the informant Fekla Oraon (PW 5) and submitted injury report (Ext. 4) PW 8, Krishna Singh, Sub Inspector of Police was the Investigating Officer of the case.
5. The learned Additional Sessions Judge, Gumla relied on the evidence of PWs. 2, 3 and 5 to hold that the prosecution case of assault by a spade by Jharia Oraon has been fully proved. He further held that the evidence of the eye-witnesses is corroborated by the medical evidence of the doctor (PW 6) and the evidence of the IO (PW 8). The same is also held to be corroborated by the inquest report which has been proved by PWs. 1, 4 and 8. The learned Additional Sessions Judge, Gumla thereby held the accused Jharia Oraon guilty of the charges under Section 302 of the Indian Penal Code and convicted and sentenced him to undergo rigorous imprisonment for life.
After going through the prosecution case and the evidences, the learned Additional Sessions Judge further held that there was no evidence to show that the accused Biria Oraon and Mahadeo Oraon assaulted the deceased Birsu Oraon or the informant and acquitted them from the charges levelled against them,
6. Challenging the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Gumla, the learned counsel for the appellant has submitted that there is no similarity between the ocular evidence and the medical evidence. The injuries as shown in the medical evidence also vary with the injuries as shown in the inquest report. PW 2, Jatra Oraon cannot be said to be an eye-witness who reached to the place of occurrence subsequent to the occurrence as alleged to have taken place. The testimony of PW 3, Mangra Oraon is to be doubted, the same being not in consistence with the prosecution case. The testimony of the other eye-witness, PW 5, Fekla Oraon (informant) is also in the shadow of doubt, there being contradictions in his ocular evidence and the medical evidence of Doctor (PW 6).
7. Reliance was placed on a decision of the Supreme Court in the case of Niranjan Prasad v. State of M.P., reported in 1996 (1) East Cr C 716 (SC).
In his testimony at Paragraph '5' PW 3, Mangra Oraon stated that the accused Jharia gave three blows from the blunt side of the spade. The blunt side was round and the same had not cut the head of the deceased, on the other hand, the other eyewitness Fekla Oraon (PW 5), the informant, in his deposition at paragraph '6' stated that accused gave three blows from the blunt side of spade, which was even and blood started oozing from the three places, similarly, while one of the witnesses, namely, PW 6 stated only one injury, the other eye-witness, namely, PW 5 stated that there were three injuries on the head of the deceased. On the other hand, in the inquest report two injuries were shown to have caused on the head of the deceased doctor (PW 6) in his medical evidence. The reported only sharp cutting injury. Learned counsel for the appellant has submitted that there is a major contradictions as to how many blows were given on the person of the deceased and whether the weapon used was sharp cutting or a blunt substance.
8. Learned A.P.P. by refuting the argument advanced on behalf of the appellant, submitted that the learned Court below has properly scrutinized the evidence of the eye-witnesses i.e. PW 3, Mangra Oraon and PW 5, Fekla Oraon, who were present at the place of occurrence. PW 2, Jatra Oraon who came to the place of occurrence, has also seen the accused fleeing away from the place of occurrence. They have given vivid description about the manner of alleged occurrence. Two of the eye-witnesses, namely, PWs. 3 and 5 have deposed that the accused Jharia Oraon gave spade blow on the head of the deceased from its blunt portion due to which Birsu Oraon fell down and died subsequently. PW 6, Dr. A.D.N. Prasad, who conduct autopsy on the dead body of Birsu Oraon has also found sharp cutting injuries on the person of the deceased. The learned A.P.P. has submitted that the accused Jharia Oraon had a spade in his hand, a heavy sharp cutting weapon and the eye-witnesses have seen the accused giving blow by spade, a heavy sharp cutting weapon on the person of the deceased.
9. In the present case, none of the independent witnesses of the nearby area (field) has been examined by the prosecution. PW 1, Jokhan Bhagat and PW 4, Hari Charan Kewat the independent witnesses have merely proved the inquest report, but they have not seen the occurrence of the three witnesses who claimed to be the eyewitnesses or witness of part of the occurrence i.e. PWs. 2, 3 and 5 are related to the deceased. They are son/step sons of the deceased and can be stated to be interested witnesses.
PW 2, Jatra Oraon stated that he was in his garha land and reached the place of occurrence on hearing hulla, where he found the dead body of Birsu and seen Jharia, Biria and Mahadeo fleeing away. At paragraph No. 3 of his deposition, he stated that Mangra Oraon (PW 3) is his full brother, who was there on the upper part of the land. It took about half an hour to reach the place of occurrence. In his cross-examination at paragraph '4', while PW 2 stated that he had also gone to the Police Station along with Fekla (PW 5), further stated that except Mangra, the Police had not taken statement of any other witness in his presence. He had given statement before the Court for the first time and stated that he was told as to what evidence to be given before the Court. He further accepted that apart from the Government Pleader, he has also engaged a separate lawyer.
10. In view of such statement, the counsel for the appellant submitted that the PW 2, Jatra Oraon has accepted that he was tutored and as such it will not be safe to rely on his evidence.
So far as PW 3, Mangra Oraon is concerned, in his testimony, he stated that he was in his field and Birsu was grazing the cows. In the nearer field Biria and Mahadeo, both sons of accused Jharia were ploughing their field and they having seen hot exchange of words in between Jharia and Birsu Oraon came to the place of occurrence. Biria and Mahadeo threw Birsu on the ground and that Jharia gave three spade blows on the head of Birsu. When Fekla went to save Birsu, Jharia, Mahadeo and Biria also started beating Fekla. He further stated that they brought Birsu on the road to take him to a hospital, but while bringing near the road, Birsu died. His statement is contradictory to that of the statement of PW 2, Jatra Oraon who stated that while he came to the place of occurrence, found Birsu dead. PW 3, Mangra Oraon, as noticed earlier, stated that Jharia gave three blows on the head of Birsu from the blunt side of spade, but there was no cut injury in his head. This part of the evidence is contradictory to the evidence of PW 5, Fekla Oraon (informant), who claimed to be an eye-witness and at paragraph '6' of his deposition stated that the accused Jharia Oraon gave three spade blows on the head of the deceased Birsu at three places and blood started oozing out from all the three places. At the time of occurrence i.e. when the accused alleged to have given three blows of spade, presence of PW 3, Mangra Oraon is. also to be doubted in view of the statement made by PW 5, Fekla Oraon, who stated that after the three spade blows given by accused Jharia on the head of the deceased Birsu, he (PW 5), raised India and on hearing such hulla, Mangra Oraon (PW 5), Jatra Oraon (PW 2) and Jugus came to the place of occurrence and carried Birsu near the road where he died. The ocular evidence of PW 5, Fekla Oraon is also not in consistent with the medical evidence. PW 6, Dr. A.D.N. Prasad, who conducted autopsy on the body of the deceased and found only one sharp cutting injury on the left perito occipital region 3" x 3" x 1-1/2" with laceration brain and fracture of the skull. On the other hand, PW 5, Fekla Oraon at Paragraph '6' of his deposition stated that the accused gave three blows on the head of the deceased from the back side of the spade and blood was oozing out from all the three injuries. In the inquest report, two injuries were shown i.e. (i) cut injury in the middle of the head; and (ii) injury on the back side of the head.
11. In the case of Niranjan Prasad v. State of M.P. reported in 1996 (1) East Cr C 716 (SC), the Supreme Court noticed that the eye-witnesses stated that the deceased was assaulted with sharp cutting weapon, however, the evidence of the doctor who held post mortem examination shows that the deceased had no injury which could be caused by sharp cutting weapon; and, indeed, he had sustained only one injury which could be caused, according to the doctor, by a blunt weapon only. The Supreme Court held that if on the basis of the objective findings of the doctor, the trial Court found it unsafe to rely upon the ocular version of the incident as was given by the four witnesses in the said case, it cannot be said that the finding of the trial Court in this regard was against the weight of evidence or perverse.
12. In the present case, the objective finding of the doctor is contrary to the ocular evidence of both the eye-witnesses, namely Mangra Oraon (PW 3) and Fekla Oraon (PW 5). The doctor found one sharp cutting injury, but the ocular evidence of eye-witnesses was that there were three injuries by blunt portion of the spade. The inquest report shows two injuries on the head of the deceased. In these circumstances, it is unsafe to rely upon the ocular version of the incident as given by the eyewitnesses. The evidence of PW 8, Shri Krishna Singh, Sub-Inspector of Police who was the Investigating Officer is of not much importance to hold the accused guilty for the offence under Section 302 of the Indian Penal Code. He stated that there was water logging at the place of occurrence, the colour of which become red due to blood. The testimony of eye-witnesses, namely, PWs 3 and 5 is untrustworthy and unreliable. The learned Court below has not considered all these aspects, resulting erroneous finding of conviction and sentence, passed against the appellant, which cannot be sustained in view of reasoning aforesaid.
13. In the result, I find merit in this criminal appeal, which is hereby allowed and the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Gumla in Sessions Trial No. 80/93, arising out of Gumla PS Case No. 172/92 corresponding to GR Case No. 685/92, is hereby set aside and the appellant is acquitted of the charges levelled against him.
14. The appellant Jharia Oraon who is said to be in custody, is directed to be released forthwith from the jail custody, if not wanted in any other case.
Laxman Uraon, J.
15. I agree.