Jharkhand High Court
Tetru Oraon vs State Of Jharkhand on 16 April, 2009
Equivalent citations: 2010 (1) AIR JHAR R 81, (2009) 4 EASTCRIC 126
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari, Prashant Kumar
CRIMINAL APPEAL (DB) No. 213 of 2001
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Against the impugned judgment of conviction and order of sentence dated
16.05.2001 and dated 17.05.2001 respectively passed in S.T. No. 190 of 1997 by
Shri Ram Vyas Ram, Sessions Judge, Gumla.
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Tetru Oraon .... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
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For the Appellant : Mr. Triveni Mishra, Advocate.
For the State : M/s. Anita Sinha, A.P.P.
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PRESENT
THE HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
THE HON'BLE MR. JUSTICE PRASHANT KUMAR
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By Court: - The appellant Tetru Oraon has been convicted under Section
302 I.P.C and has been sentenced to undergo life imprisonment by the impugned judgment / order passed in S.T. No. 190 of 1997 by the learned Sessions Judge, Gumla.
2. The prosecution case, according to the fardbeyan (Ext.4) of Railo Urain (P.W.-3), in brief is that on 13.05.1997 at about 8:00 P.M. while she was sitting in her house, she heard alarm of Charia Orain and Jagdish Oraon, she rushed to the house of Tetru Oraon where she saw Tetru-the appellant assaulting his wife with lathi, on her head. Charia Orain-victim on receiving two-three lathi blows on her head, fell down on the ground in serious condition. The appellant, thereafter, fled away from the place of occurrence. The informant administered some water to the victim but her condition did not improve. Some villagers assembled thereafter and saw the accused fleeing away with lathi in his hand. One Doctor K.P. Lal was called for her treatment but she could not ultimately survive and died on 14.05.1997. She died due to head injuries caused by lathi blows given by the appellant. It has been further stated that the appellant used to quarrel with the deceased and on that day also, just before the incident, there was hot exchange of words between them. On the 2 Cr. Appeal (D.B.) No. 213 of 2001 basis of said fardbeyan, the police registered a case against the appellant under Section 302 of the I.P.C. and started investigation. On completion of investigation, police submitted charge sheet under Section 302 of the I.P.C against the appellant.
3. The charge under the said Section was framed, which was denied by the appellant. He pleaded not guilty and claimed to be tried.
4. The prosecution, in order to prove the charge against the accused, altogether examined nine witnesses:
P.W.-1 Balram Oraon, is the brother of the deceased. He is a hearsay witness; P.W.-2 Somra Oraon, was tendered; P.W.-3 Railo Orain, turned hostile; P.W.-4 Sukra Oraon & P.W.-5 Aita Oraon, were also declared hostile; P.W.-6 Gopi Nath Jha proved the report of post-mortem which he had conducted on the dead body of the deceased; P.W.-7 Lalu Oraon, came to depose that the deceased had confessed his guilt of giving lathi blow and killing of his wife before him; P.W.-8 Sabir Mian, is a witness to the inquest report; P.W.-9 Saryug Pandit, is the Investigating Officer of the case.
5. Learned trial court relied upon the evidence of P.W.-6, P.W.-7, who deposed about the confession of deceased before him and Ext.- 6, the post mortem report, Ext.-2, inquest report and held the appellant guilty of committing murder of his wife, Cheriya Orain and convicted him under Section 302 I.P.C.
6. Learned counsel appearing on behalf of the appellant assailing the impugned judgment submitted that learned trial court without any cogent and reliable evidence on record has erroneously convicted the appellant mainly placing reliance on Ext-6, confessional statement made by the appellant before the police, which is wholly inadmissible. Learned counsel submitted that so far as the extra judicial confession, as disclosed by P.W.-7, is concerned, the same is also not admissible. The same finds no corroboration of any independent evidence. The statement has been made by the P.W.-7 after several years of occurrence. There was no whisper of 3 Cr. Appeal (D.B.) No. 213 of 2001 such extra judicial confession in the F.I.R. At any rate the same cannot be the legal basis for conviction as no question regarding the same was put to the accused appellant in his examination under Section 313 of the Cr.P.C. The very basis of case i.e. fardbeyan has not been supported by the informant P.W.-3. She was produced as a prosecution witness but she did not support the prosecution case and was declared hostile. There is no independent witness to support the impugned order of conviction.
7. Learned A.P.P. on the other hand submitted that the prosecution case is that the deceased had died due to serious injuries caused by lathi blows inflicted by the accused appellant, has been fully proved by ocular evidence and corroborated by the medical evidence. It is clear from the post mortem report that there was grievous injuries on the head of the deceased. The doctor opined that the injury was caused by hard and blunt substance. The accused appellant has also confessed the said fact before Lalu Oraon, P.W.-7. There is nothing in the cross examination to disbelieve his testimony.
8. Having heard learned counsel for the appellant and learned A.P.P., scrutinizing the evidences on record, we find that:
P.W.-1 Balram Oraon, is a hearsay witness and his evidence is of no worth to prove the prosecution case; P.W.-2 Somra Oraon, has been tendered and nothing material has come in support of the prosecution case; P.W.-3 Railo Orain, was the informant. She has been produced as a witness by the prosecution but she has denied to have given such statement before the police. She has not supported the fardbeyan and the prosecution version; P.W.-4 Sukra Oraon and P.W.-5 Aita Oraon, are co-villagers. They have been examined by the prosecution but they have also not supported the prosecution case and were declared hostile; P.W.-6 Dr. Gopi Nath Jha, who conducted post mortem of the dead body of the deceased Charia Orain. According to him, cause of death was due to shock and hemorrhage. He found depressed fracture and injuries on the 4 Cr. Appeal (D.B.) No. 213 of 2001 temporal parietal junction of right side of scalp and with the presence of blood clot.
In the case, homicidal death of the deceased is an admitted fact. The defence has not denied the same. Now the question remains as to who was the author of the injuries causing death of Charia Orain. On this point, we find the sole evidence of P.W.-7 Lalu Oraon. Admittedly, he is not the eye-witness. He has deposed that the accused appellant himself had disclosed the said fact to him in the presence of Aita Soren (P.W.-5). As already discused P.W.-5 has not supported the said version and he was declared hostile. This witness has stated that the said fact was disclosed before him and Aita Soren while he was going to call doctor for the treatment of the deceased. On reading his deposition, we find in paragraph-8 that he went to bring the Doctor by motorcycle with Aita and he did not stop anywhere in the way and reached Bharno within ten minutes and thereafter returned with the Doctor who came on another motorcycle. He has stated that in the way he did not meet any person. This version makes his statement regarding confession of accused before him and Aita highly doubtful. As already stated Aita (P.W.-5) has not supported the version of making extra judicial confession by the accused appellant before him and P.W.-7. P.W.-8 Sabir Mian, is witness to the Inquest. He does not throw any light as to who was the author of the injuries on the deceased. The evidence of P.W.-9 Investigating Officer has also not stated anything worthy to corroborate the prosecution version. Learned trial court has given much emphasis on Ext.-6 which was proved by P.W.-9 and said to be the confession of the appellant before him (P.W.-9). The said statement made before the police is inadmissible in evidence. Learned trial court, thus, on the one hand, has recorded his finding on the basis of inadmissible evidence i.e. Ext.-6, confession made before I.O. and on the other hand on the extra judicial confession said to be proved by P.W.-7. The said so called extra judicial confession disclosed by P.W.-7 is not admissible and reliable for the reasons aforesaid. Moreover, the same cannot be used as the basis for conviction of the appellant as in his examination under Section 5 Cr. Appeal (D.B.) No. 213 of 2001 313 of Cr.P.C. question regarding the same was not put to him and no opportunity was given to the appellant to explain the said circumstance.
It is now well settled that the circumstance question regarding which has not been put to the accused in his examination under Section 313 Cr.P.C., cannot be used as the basis of conviction. Reference can be made to the decision of the Supreme Court in Ajay Singh Vs. State of Maharastra 2007 (12) SCC 341 and Vikarmjit Singh @ Vicky Vs. State of Punjab 2006 (12) SCC 306.
9. In view of the above discussion we do not find any legal basis to uphold the finding of the learned trial court, and approve the impugned judgment and conviction of the appellant.
10. In the result, we allow this appeal, set aside the impugned judgment and the conviction and sentence of the appellant. The appellant, who is in custody, shall be set at liberty forthwith, if not wanted in connection with any other case.
(Narendra Nath Tiwari, J) (Prashant Kumar, J.) Jharkhand High Court, Ranchi Dated 16 /04/2009 Sunil/NAFR