Jharkhand High Court
Goenda Oraon vs State Of Jharkhand on 22 January, 2016
Author: D.N.Upadhyay
Bench: D.N.Upadhyay
1
Cr. Appeal (D.B.) No. 570 of 2007
(Against the judgment of conviction and order of sentence dated 11 th
December, 2006 and 14th December, 2006 respectively, passed by
Additional Judicial Commissioner (FTC), Khunti in Sessions Trial Case
no. 198 of 2005 corresponding to G.R. Case no. 394 of 2004 ,Khunti
P.S. Case No. 64 of 2004)
Goenda Oraon, S/o Mahnai Oraon, R/o Village Fuidi, P.S. Khunti District Ranchi
........ Appellant
Vrs.
The State of Jharkhand .......... Respondent
PRESENT: HON'BLE MR. JUSTICE D.N.UPADHYAY
: HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the appellant :Ms. Nivedita Kundu, Advocate
For the respondent :Mr. Amaresh Kumar,A.P.P.
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By Court:
1. This Criminal Appeal has been preferred against the judgment of conviction dated 11.12.2006 and order of sentence dated 14.12.2006 passed by the Additional Judicial Commissioner, FTC, Khunti in connection with Sessions Trial Case no. 198 of 2005, corresponding to G.R. Case no. 394 of 2004 arising out of Khunti P.S. Case no. 64 of 2004 whereby the appellant has been convicted for the offence punishable under section 302 and 201 IPC and sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for three years respectively. Further he has been convicted under section 4 of Prevention of Witch (Daain Practices) Act, 1999 with a sentence of six months. All sentences to run concurrently.
2. The case of the prosecution as it appears from the fard-beyan of the informant Riba Oraon PW-7 recorded on 26.8.2004 at 14:15 hrs is that on 25.8.2004 his father had gone to plough the fields. Later on his mother had taken food and gone there. After giving food to his father she did weeding in the field itself. Around 4 O'clock she gave her cloth bag to his father and told him you go ahead, I will get some fire wood and come later. After his father returned, till 6:00 p.m. she had not returned. They searched a lot but could not find her. Next day at around 9 a.m. When they 2 were searching for his mother they reached near the banks of the Kanchi river then he saw the body of his mother floating in the water. On looking closely it was seen that from the right side of the head a blood flowing wound was there. Thereafter, information was given to the village choukidar. About 6 months from today Goendra Oraon's , son of Mahnai Oraon daughter had fallen ill. He then said that Goenda Oraon had then told him that his mother is a witch (Dian) On this issue he had even assaulted his father and taken his father to the sorcerer (Ojha) at village Salhana. He then made the sorcerer declare his mother as a witch. After returning from the Sorcerer's place, a meeting was called at home, where it was decided that the sorcerer will be called and exorcism will be done regarding witch craft. We called the sorcerer. He exocised the witch from his mother. Even after that he regularly threatened us. It is his firm suspicion that it is Goenda Oraon who has murdered his mother and thrown her into the river.
3. On the basis of fard-beyan of Riba Oraon, PW-7 Khunti P.S. Case no. 64 of 2004 was registered under sections 302, 201 IPC. The police after due investigation submitted charge-sheet accordingly, cognizance was taken and the case was committed to the Court of Sessions and registered as S.T. Case No. 198 of 2005.
4. Charges U/S. 302 and 201 IPC and ¾ of Prevention of Witch (Dian) Practices Act, were framed, but the accused pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether eight witnesses. The learned Sessions Judge at the conclusion of the trial, convicted the accused person for the offences under sections 302 and 201 I.P.C. and ¾ of Prevention of Witch (Dian) Practices Act and sentenced him to undergo concurrent sentences leading to rigorous imprisonment for life . Hence, this appeal.
5. PW-7, Riba Oraon is the informant. He has deposed 3 that his father Sadho Oraon had gone to his fields for ploughing. His mother had taken food for his father there, after which she went to do weeding and then she went for a bath around 3:00 p.m. There is a river there. His father was working on his plough. His mother told her husband to take her clothes home, while she is going to collect fire wood. When his mother did not return then they went searching for her at night, but could not find her . Next day at 9 a.m. , they went searching for her and saw her dead body floating on the river and on the right side of her head there was a wound made by tangi. The Police Station was informed. The fard-beyan was recorded at the river itself and his signature was marked as Ext.3. Goenda always used to accuse his mother of being a witch (Dianbisahan) by which she was much troubled. His belief is that Goenda himself has killed her. He had also assaulted his father in the name of witch craft. There was a panchayati in the village regarding witch craft. The sorcerer (Ojha) had also come. Goenda also had come whom he recognized.
In his cross-examination he has said after he had returned home at around 6:00-6:30 p.m. then along with about 10 to 15 men they had gone to search for her in the evening itself. The next day about 20 to 25 men went in search of her. The body was found near the agricultural fields. The Kanchi river is here.
6. PW-3 , Sadho Oraon is the husband of the deceased. He has deposed that the incident took place four months ago on a Wednesday. He was going to plough fields and Koyli Orain came to the field with food. He was working on the field. His wife Koyli gave him the bag and went to collect wood. It was 4 p.m. in the evening. On the road he heard Chhap Chhap sound. In the house, he asked his son about his wife. She was not there. Till evening his wife did not return. He went searching for his wife with his son. On not being able to find her they returned. Next day on 4 searching, the body was found floating in the Kanchi river. On going near the body he saw that there was a wound made by tangi on the head. Blood had flowed out. The village choukidar was informed, then along with the choukidar, the police were informed. Goenda Oraon had first accused him of being a witch (Sorceror), and then his wife also and threatened them. It seems that Goenda has killed his wife. Goenda Oraon has come today. In his cross- examination he has informed that the accused had threatened him a year ago. This field is 2.5 k.m. away and is near the Kanchi river, just 10 foot steps away. His wife gave him some clothes in a bag before bathing in the river which he had brought home. His wife had told that after bathing and collecting wood she will return. His wife had dauli for cutting wood and an umbrella. The dauli and umbrella were near the fire wood. The police had questioned him and he had informed that the body was floating on the river and the head wound was from a tangi. He had said that other villagers were also working on their fields near by. He had told the police that he suspected Goenda. Kanchi river is a big river.
7. PW-2 Mahadeo Mahato, is a rickshaw driver. He said he was woken up by the Police at night. He asked Goenda as to why he had killed Riba's mother, to which Goenda replied that his daughter's health is not good, and he has had her treated. He has also engaged in sorcery and witch craft, that is why I killed her. Goenda informed him that he has killed by using tangi. Then the accused was taken to the police . Goenda was carrying tangi. The police had seized the axe (tangi). He has proved his signature on the axe seizure list. This witness had recognized Goenda in court.
8. PW-7 is Riba Oraon, son of the deceased. His father is Sadho Oraon. He said that on 25.8.2004 , his father had gone to plough the fields. After his mother had 5 given food to his father, she went to work as maid and then at 3:00 p.m. she went to take bath. His mother told his father to take the clothes and she herself went to collect fire wood. When his mother did not return, then at night they went to search of her. Next day, the body was found floating in Kanchi river and on the right side of the head there was injury made by cut from an axe. The police were then informed. Goenda used to often harass his mother by calling her a witch. He had also assaulted his father over witch craft. Panchayati had also taken regarding witch craft and sorcery. The sorcerer (Ojha) had also come. It is his belief that Goenda murdered. He has recognized Goenda Oraon in Court.
9. PW-8, Dr. Ajit Kumar Choudhary was the doctor who conducted the post mortem on the 27.8.2004 , on Koyli Orain. The doctor had said that the hands and feet were maggot infested and portion of right ear, right fore arm and both lips were eaten away by aquatic animals. He has also observed that the injury could have resulted from floating in the fast flowing river water and on being hit by boulder.
10. One repeated aspect of the witnesses testimony of PW-1, PW-2, PW-3, PW-4 and PW-7, that is from the husband and sons and also non relatives was the issue of sorcery and witch craft or accusation by the accused of the deceased being a witch. PW-2 and PW-6 have said that the tangi was seized by the police.
11. Counsel for the appellant, Nivedita Kundu has urged that he is innocent and has been wrongly framed only on suspicion. There is no eye witness to the incident so the appellant cannot be found guilty merely on suspicion. She has further said that the alleged weapon of offence, the axe or tangi was never sent for any forensic examination, so it is not possible to say that it was the weapon or instrument used in assault. Moreover, the axe has been cited as the instrument, and possibly for causing injury on the right 6 side of the head, the doctor who conducted the post mortem examination has said that injury could possibly be caused by hard and blunt substance. She said that the doctor has also said that injury could have also resulted from fast flowing in the river water and being hit by boulder, so there is a strong possibility of another reason for the cause of death. It is admitted that deceased had gone to have a bath, and typically it would have been in the just nearby river. Witnesses have said she had gone for a bath.
12. Counsel for the appellant has also said that the doctor has opinioned that at 10:30 he examined the body, and his opinion is that death occurred 3 to 5 days ago. The incident as reported is possibly of after 3-4:00 p.m. when the deceased had gone for taking bath on the 25.8.2004, and the doctor examined on 10:30 a.m. in the morning of the 27.8.2004, so as per the doctor's opinion , death would be prior to the time as reported or emerges from the fard- beyan or as per the timing of events given by the witnesses. So the time factor also does not help the prosecution to hold the appellant guilty.
13. Counsel for the appellant said there is reliance placed on the extra judicial confession of the accused, as reported by PW-2 . But that seems to have been made in front of the police. However, this extra judicial confession, as accepted by the Trial Court is not in the case diary. So it cannot be used against the appellant. Neither was he given the opportunity of controverting such confession under section 313 Cr.P.C., whereby no question to that effect was sought from the appellant. Counsel for the appellant has also asserted that since the axe in question was never sent for forensic examination, and also the extra judicial confession has been used by the Trial Court below in helping to convict him, the non-examination of the I.O. has been prejudicial to the appellant. Finally, she has said that 7 the case is so badly circumstanced against the appellant that informant and his father or PW-7, and PW 3 have also only said that they suspect or strongly believe he committed the murder, however, no one saw him do so.
14. Learned counsel for the State, the A.P.P. on the other hand submitted, though there seems to be no eye witness, there are sufficient compelling circumstances that point to the guilt of the accused. He has submitted that there is consistent testimony by five witnesses that the accused had issues regarding witch craft with the deceased, and this has been variously indicated by PW-1, PW-2, PW-3, PW-4, and PW-7. Such things are fairly common in village or rural area and the testimonies of these witnesses point to the involvement of the appellant in the murder of the deceased.
15. Learned A.P.P. has then pointed to the recovery of the tangi, at the confession of the accused from bushes near his house. The opinion of the doctor cannot be totally discounted. He has observed that the injury may be caused by back portion of tangi and as per the confession of the appellant, the tangi was recovered.
FINDINGS:
16. After going through the document, records and arguments, it is seen that since there are no eye witnesses, case will rest solely on circumstances.
17. Learned A.P.P. has made three main arguments. He has said that there is motive for killing and this has been made clear according to him by the deposition of the PW-1, PW-2, PW-3, PW-4, PW-6 and and PW-7 who have all said that previously the accused has been harassing the deceased regarding witch craft. So much that even panchayati was even held. On this point, it can be said that three of those witnesses are the husband and sons of the deceased. Moreover, motive , does not necessarily always lead to murder. In the absence of eye witness, one cannot 8 definitely say that the motive was converted into actus.
18. The extra judicial confession has also been sought to be used by the State. We are inclined to agree with the defence that extra judicial confession, that too also in front of police is inadmissible. So, this court will not be easily able to use such confession. The Trial Judge has not asked any question on the confession to the accused under section 313 Cr.P.C., so this confession will fall flat. Moreover, even, if the axe or tangi was recovered at the instance of the accused, it was not sent to forensic to determine blood stains, so this axe or tangi is also of no use. Appellant has also relied on the doctor's opinion that the tangi's back portion may have been used, but in the cross-examination he has also indicated the possibility of injury on the head being the result of hit on the head by boulder in the fast flowing river.
19. So on the three arguments raised by the State, there are cogent counter arguments given by the defence. The extra judicial confession would bar using the confession, and hence, also the recovery of the axe or tangi. This aspect of the case shows glaringly the lapses on the part of the prosecution as well as the trial court. The extra judicial confession should have been brought into the ambit of statement of accused under 164 Cr.P.C., as well as been taken under section 313 Cr.P.C. Then the confession as well as the recovery of the axe had more meaning. Of course, the lapse of not sending the axe for forensic examination would still remain.
20. Thus, having perused the documents and record, and having heard the arguments of both counsels, bearing in mind that they are not eye witnesses, the axe has not been examined forensically, and because of the lapses regarding the extra judicial confession not being built upon 9 under section 164 and 313 Cr.P.C. it is difficult to convict the appellant for the crimes under section 201 and 302 IPC. Hence, this court holds the appellant Goenda Oraon not guilty of the offences under sections 201 and 302 IPC. If he is in jail custody, he is directed to be released forthwith form jail, if however, he is already on bail, then he is discharged from his responsibility of bail bond.
21. This appeal is accordingly allowed and disposed of.
(D.N.Upadhyay, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 22.01.2016 Nibha / / N.A.F.R.