Jharkhand High Court
Criminal Appeal (Ob) Ne. S34 Af 2U1S vs The State Of Jharkband Noe on 28 January, 2021
Author: Shree Chandrashekhar
Bench: Ratnaker Bhengra, Shree Chandrashekhar
iN THE HIGH COURT OF JHARKH AND AT RANCHE 'Criminal Appellate Juriscic ston) Criminal Appeal (OB) Ne. S34 af 2U1S enience, bath dated 1G i, Ranchi in Sesaien vo village-Chachkopi, P.O.~Tuka, BSS coe Appellant Yersus The State of Jharkband noe Respondent bVvcon da ey HON'BLE MR. vu SPICE SHREE CHANDRASHE KHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellant . Ms. Shi mee Sandu, i, Anvious Par ike Stauct Myr. Roos Usa ay dudes ey pe Pep Shree Chand Fusnesnon. <. Here ainst Jaga Oraon, the appellant, under secon 307 of the Indi an Penal Code for attempt to nrurder Pa aya Oraon. The informant is the wife of Paya Orson who succumbed io the injuries on 25.07.2008 and, accordingly, the offence ander section 302 of the Indian Penal Code was added m the report vide order f Lartael AY Ye lean ferethered whiel wee recorded af te dated OF.08.2008. In ber Aardbevar which was recorded af 11:00 PM on LG.07 2008 at = Heath Centre, Bere, the informant has alleged that is the evening of 10.07.2008 she was with her husband at home ~~ her was drunk. At about 07:00 PM. Jaga Graon who is her elder brother-in-law eame there and fook away her husband on the pretext of enjoying drink. At about O8:00 PM, when she heard screams of her husband she carne oul anc (iran OaIPryirige® 2 5 rannuig towards his AG behind Aim her husband drenched in blood and pressing his abdomen came there. He told hey that Jaga Gracn has assaulted him and fled away. She > has { seer we knife blows over abdamen and one inhury on the head of her husband and fils intestine was bulging out. With the help of Mangara Orson, hiwa Orson and Rrimani Rupaur she brought her husband to Bero Hospital where her recorded by Garib Mochi, S12 ef Bero Police Station. The ed that the elder brother of her hushand assaulted him with "Ss murder duc to a land dispute between then. Atler the esheet was submitted againat the appellant and be has ihe trial on the charge under seetion 302 of the Indian Penal Code, During the trial the Informant was exam ined as PW3. The neig ¢ the mforrmant, namely, Brumani KujarpP W4, Birsa Oraon-PWS Orgor-PW6, Manora Qraon-PW7 and Damu Oraon-PWR were examined by however, in the Court, PWe, PW? and PWR have turned Dr Lal Manihi w he has first attended | Pava Oraon at Prin gary Health Centre, Bero observed two inelsed wounds around his abdominal area, the IMSHNS was cami img out Of the abdomen. Dr. C. S. Prasad whe condueted the poslmoriom examination over the dead | bady of P: ava Oraon an 23,07 2008 at about 12:48 hrs. has found si nigms Of repair at two places aver the inestine, He has seen perforation in the < sual inte Savon peritonitis in the int . Tre isemed Adéivional Judictal Carn: Cotet-VI Ranchi has held that the prosecution has proved the sequene events in the might of 10.072 oS CEES ICE in the night, and: Paya Graon was found i injured with a knife Hke weapan, The scarmad Judge und that the victim: bimself has rxefore his iver that Jaga Oraon assaulted him and the doctar who tated him first has cate egotically held that injury found on fis NEPACN WHA ey PS Ode SON ery oe syed be + tye mts ag eg ge ToS Sy a pee ey ¢ ay at een gen Pevegee . subicient to cause death in the ordina: Y course of nature and, therefore, 3 8 fo be convicted ander seetian 302 of the Indian Penal Code. > Held thus: oan yw Of Ue cour Mere cannot be Avo Wins fo ibe intention of the sccusect while inflicting auch the ebm that he iter fed fo kf fhe wetimn WHS of culpable homicide AVAQUITEH The nature of the wounds S. arster of fhe DOCLINNS ihe mode of cecun TETHOR, BSt rp witht regard fo jand diapute, Sed iy OVNG Sway fo AS house up 83 brother in pool of blood, races very of knife used Son fhe Oesis of Mls discioser Sigfernent af # ) tulalily Give rise of onty inference thet the acy a ake i op, Qe MPAN OG RACK BOG nial at aretats Sy GOINEEN of Be Se Sa SOC Had assaulted the weiss Paya Oraan ath i hin and onty Beckuse oF aun hale mechoa J for few days, finally if hardy mekes ° > reason for death of ihe by fhe dolar who conducted m examination on ie dead body of the deces seed. is fact Me accused has fei fas no stone unturied fo AH! vin' soe of accurrence Heelf and iherefore the ingredients of tend ove 9 ay ik: eyetye A . vex espn ifenen « of murder as against ihe accused fscing tral are mace aerence SOMeg posinor in result, te coud is of the considered view mat souboo has been able fo Bring Horne the charge against ; Y : 2 mn" e oS eeseye fare sale socused fsoing inal Accordingly, ace USE? Jaga Wrson is found and held gui ' S302 ERO... 4. In Session Trial Case No, 134 of 2009, the appellant sunvicted and sentenced to RE for Hic a Fine of Rs.10,000/ unser section 302 of the Indian Penal Code with defaull stipulation to undergo Surther imprisorurient for ane year, - Roy ganar wnt i . Lesa yd yare ved Amicus has confended that given a 4 The Serica of Pava Craon the evidence of his w ide that he has named sta ey Mig infer rant. upon us not io believe testimony of the &, An secused ean be convicted solel declaration and His quite « settled position in law that it jg not necessary fo seek corroboration af.a dying declaration by medependent evidence. In i : da Bola Subrainnanvam and dex. State of drdhre 9¢ Hon'ihe Supreme Court has observed that a e verge of his death must be accorded a specie oF 8 Pes flotiey Cbaormeperpectow wu Seat im "Adaflefia Shyawmnsunder v State aah =
te oe wot a a 3 yoo a YD poner on te ae] ws pot Cu we pope wv eae 7 a oe S. JRC ddd @SCo on which Mr. Vineet Kamar Vashts Maced heavy reliance proceeds on the similar lines.
ty fafa" owas followed in "Laxman uo Shute of #22) & SCC 720 wherem the Hon'ble Supreme Court has Fhe jucstic theory re garcia aonamaebiity of a dy aration) is fhef such declaration is rnade ¢ > tre enniy sven ¥ iS af the pole of dealh and when every Preset OF this workd ne, when every mative fo fsfsehood is silenced, and fhe fis induced by ihe most powerfil consideratian fo speak Noferthstanding ihe same, greaf caulios must be DON SHIeNG ihe weight ip be given to HUR Species Gy awoounl af the existance cf maviv cocumslarices of fhevr truth. The situation i which a nied is on Pas so Soleynn and serene, is the reason §7 law fo "iy Of fis siafemiert ff is for thie reason the aah and crossasanination are dissensed wih Stnaes the sceused Nas fo Puwer f OF OPOSS-GNaTT CHT, ihe cours @raiats thal the dying seciaration shouid be af Suen 6 a nature as io iaspire full confidence of the court ins fruihfuines and co;reciness. The coun, Sawever has afways fs: be on ?
3. gual io see that the Sis oy wos cof as 8 TUS mors ert t? ~ « x ~ resulf of either huoring ¢ EHEC & product oF am ui TRE muir & a8 f ESE ise the decease i i fo opserve & and i ently sadant. CHT snally, therefore, the court in ord wr the deceased was in a ft manta' card fein £ : deciaraticon? kOOKS up to fhe rneciical Oo HON eyewiineases state ited the deceased was ¢ aiste fo make fhe declaration, fre medical OPN SH prevail nor can it Sa said thet since there is no or af the deofar as to the fitne 88 of the aund of fhe ine dying decisration is not acneplable......° 'The Informant is smectic and there is na imeonsisieney in her evidence on the point that her husband has disclosed name of fagea Oraon who 3 inflicted knife blows apon him. Ms. Shilpi Sandil, the learned Amicus would submit that an the.
her husband when she came cut from her house she found the appellant eon jouse and her husband came bebind hum whereas % x \ eposed that ker husband came running hor e pressing his abdomen and yelling that Jaga (Graon) and Dago (Oraon) have assaulied han wee wene with knife but Dago Oraon has not been sert up for trial. This discrepancy i her evidence the Hugh not been explained by the prosecution, m our opinion. on chat ground testimeny of the informant cannot be dishelieved ~ this prunarily is an improvement by the informant in the Court, Paya Oraon has given his ow x t hefore the nve rin which he has disclosed complicity the appellant. © officer that the stalement of Paya Oraon was nat re duced In writing mp of a Magistrate. However, the alle riding circumstances if _partcularky, the death happening I4 days after Paya Qraon suffered knife blows uidicate :
that he was in a condition te speak and there is no reason why sfieve the Informant whe apparently had no reason to aise
- rea aptedsan byeenthyene oe wees ew then pees aged ots they ene easiest YMiseecs ds vee ovwn elder brother-in-law in the case and shield the real culprit Phere is no nike suggestion by the defence in her cross-examination that her husband had any animosity with other persans and he was done to death by his enemies. With Cy the help of pudemert in UK:
« O8. Mr. Vineet Kumar Vashistha, the learned APP has submitted that the wideaw of deseased would be the last persan to inveive any other person leaving oul 2 BWR sallants. In our view, there is intrinsic tat in the iestimonmy an the iaformant has stated that on hearing eries of wnneconeene Lee sf the informant and sruner snconsisioneies im ber &y idence which are quite natural in the context of the Jady being an. iierate rural \worien (paragraph no-720 of her testimony) 8 ould not affect the worth of her evidence.
&. The dying declaration of Paya Graon is adm isaible in eviderice ander section 32 (3) of the Evidence Act which prov jdes that statement of a person as tO the cause of his death, uf 85 tw any of the circumsiances of the has gee 4} try QPEL x the SRP ER EK oft t ye Foaph his death, HW) Gane Ss iW hich He Cause OF RUS Qa eames inte question is & ralevant fact, Sub-section i te section 32 further elurifies that al the lime when a pC erean has made such relevant stalement 1 1s arumaterial whether he was ander expectation ol death or not. The dying ye Pays cy ETE ees} } yerk ly inereni het sy YY ate oars & <t PAS:
of Paya Orson t8 & RESUS Ineriminaling meter against Ene appellant and though in our opimion this by itsel!) is sufficient to accord cur eonourrenee with the judgment | af conviction of the ap pellant in Session Trial Case No. 134 of 2Q09, by way of precaution anc following the rule of cauhan, we would now see whether there is amy independent corroboration to thie evidence af PWS, the: informant.
10. The case of the prosecnuen is that on the informant raismg, cries her neighbours cane ~ there and with their help Paya OQraon was taken to the Primary (lealih Centre at Bern, PWS, Brimant Kuta ws Nh shat at around O8:00 PM in the night of 10.07 200 1S PWS came fo her house for help. She told ber that Jaga Qraom ba ad stabbed her | susband, whereupon she had gone Ww ith her io her herse and found Paye Oraon lying Bia pool af blood oe through the woREGS. She has further stated that Paya Oraon was taken to Bere Hospital in the velucle of Tinky ang at that fins PW, PW and PW? were alse accomspeny! ing Paya Oraon, In the hospital, he was administered First Aid and thereafter referred to RIMS for treatment.
PWS, Birsa Oraan bas desertbed the backgrounds of the case. He has stated x frat Daga Oraon, Jaga Graon and Paya Oraon came to his house at about g t po 22 ae! pepe ws oe eda as $3 oo wet & ke % ot oe od bap8 ty poe ~ x a band oe ©y 4 et they were drumk. PW, PW? and PWS who had made stalements hefore Ine ives galing officer supportuig ft the DPOSeCHTIDOR were declared hostile in the Coun. The statement of a hostile witiess a8 wh yw * was . y aN ye - rae 3 - : * 3 nal altageines worthless and € part of the exarniination- Qyeemef and peage-OX aaa OF a hostile WHTneSss Car he relied upor by the praseculi on i me extent i Sugporis HS CxSe. in "Spad Akbar y State af Karnataka" & ak avidence of 8 hostile pent (PAR Ne. 33d of witness cannat be rejected wholesale merely on the e grand that the prosecution sas dubbed him hosifle and crass-examined him. In the crnss-exan mination by the defence, PWS. PW? and PWS have ma we siatements favourable to the appellant however such evidence which has remained antested would be in the realm of hearsay and not admissible. PWG has slated In his examunalion-in- ehief that the wife of Paya Giraon had informed him about the Gecurrencs af about 08-00 PM in the night and asked flim to take her husband h > hospital. Ne has further stated that Paya Oracn on Ww hose abdomen he has seen injuries was taken to the hosplial. He has further slated that af that tune Paya Oraon was alive and he was talking. PW? has alsa stated that at about 08:00 PM in the Pa might ihe wife of Paya Oraon came to his house and told him that | her husbarid got injured in a quarrel, He bas further stated that when Paya Orson was taken to the hospital at that Gime PW, FW and one WOMAN Were SCCOMpSNyIng Him, PWS has stated that Paya Oraon and Jaga Qracn came to the house of Resa Oraon in the evening and after they parted accompany Paya Oraon and Jaga Oraon started mrarpit in which Paya Oraon has sullered ijuries, "The aforesaid evidence of PW6, PW? and PW8 has considerable corroborative md value and is admissible under section iS? of the Evidence Act. Furthermore. since PW hag stated that she informed PW6 and PW? that Jaga Oracn has assaulted her Husband the évidence of PW6 and PW? ts admissible as part of AMA we creyen yay Aen y ~ < Wey. ove oS} et vk > ~ 3 Phere was no Teme gap between the occurrence and the mio ration v about the appellant given by PW to these witnesses that he assaulted her husband and there was a certain kind of =e and live Link between the twa events. Therefore, PW and PW? have corroborated PWS on Pays Orson making a dying declaration belore his w fe, i. Another piece of evidence pressed by the prosecution is confessional statement of the appellant and recovery of a dagper at his 'nstanes, PAVE and PW2 who are the seizure witnesses have stated in the Cesart was not recovered in their presence and they have sig sebsure memo at the instance of the mvestigating officer. Mr. Vineet Kumar Vashi a, the learned APP has contended that the statement of "PAVE and PW to the effect that ne recovery was effected in their presence is not sufficient to doubt reovery of the crime weapon at the disclosure of the appellant. Por a tas ovasieh svrsyecgipet par . 4 Ne ae mament we woukl praceea on the premise that there is mo undepercden coy nee on recovery of the crime weapon, sull evidence af the investigating oy roe Seer whose act was Contempordncoys with fhe recovery of crime weapon can be taken Into consideration oy the Court, In his confessional statement the appellant has stated that he had concealed the crime weapon beneath the around in his house and he can get Nepale recovered, Section 27 of the Evidence Act provides © that whe en any fact is deposed to as discover eh consequence of any information received from a person accused of a crime x whe isu sustody ofa police oflicer may be proved, provided such infprmanion actly to the fact thereby di iscovered. The knowledge of the uppellart 3 $ 4,3 about the place where he had concealed the erime article and bis disclosure to ng officer about such place would be sovered under section 2, Soy fis infermation has led to discovery of a new fact by the investigaling at is, the place where the crime article was ¢ ycealed. Though we are prima-facic satighed that the evidences led by the prosecution in the form oi confessional statement of the appellant and recovery of the crime weapon al his sasiance are admissible in evidence, what is significant to nate is That there is sufficient evidence besides the confessional staiement and recovery of the erime weapon to establish assautt by the appellant upon his brother.
42. Mr. Vineet Kumar Vashistha, the learned APP has contended that the nature of Inpury and opini F PWS that the injury was sufficient in the erdinary course ip cause death end the other circumstances in the case such as 3 che appellant faking his brother away on the pretest of enjoying drink and wed om bis abdamen are sufficient to held thai act of the appes inflicting mur At would fall squarely under clause Thirdly of section 300 of the Indian Penal upon the judgments in ©) rn at infention or knowledge as envisaged under see "gon 300 of the Indian Penal w Code cannot be ink aod aw eae erred from the materials laid during the trial and, moreover, 7 the death has oceurred 14 days afier Paya Oraon suffered stab inyury which by uself is sufficient to hold that the appellant camnot be convicted for murder, NAP Qy8 * 'Phere is no eyewliness who has seer assault upon Paya Oracn. He Ce tpn LOR OS Pe was drunk, invited and taken away by the appelant for more drinks. The appellant was CARVIN' A WEAPON is not the proseculion cy adence. PWS who accompanied them has trae @ hostile and did not support the PW has stated about land dispute hetween the amination she fas admitted thal there was no previous brothers, ui her 4 disnute between thers and evidence of the inveshgaune officer that the tm pee Ae pew.
'non pet wr janet prosecution WLINC fore him about the land dispute woul seaim of hearsay. The other prosecution WITAESses s have staied in the Court that no knowledge about any land dispute hetween the brothers. in the ss = Ne difieult to infer that the appellant clreumstanees. ith ore "
premeditation and motive on his part to commit murder of his brother cannot + or u be imputed. PW1O bas stated that the Injury found on the person of Paya Oraan al as in sature, may be caused by a a big k nife Eke Nepala and sulficic so cause death in the ordinary course yf nature. Mr, Vineet Kumar Vashistha, she learned APP has strenuously argued thai the evidence of PW1O 1s gufficrent ee eonvict the appellant for murder. However, we are unable to accept i the proposes shat evidence of the doctor that the in ury was sufficient to Cause a death can farm the | fsunsation fer convichng a person under section 302 of the Under ate Thirdly to section 300 of the Indian Penal nis required to establish that the acwused intended io Cause 4 and thal injury was sulficient fo cause death in the Sere are two distmet parts af clause Therdly to 3 ordinary course af nature.
section 300 of the Indian Penal Code, the first part refers to intention of the (£981) 3 SCC 616 the = Hon'ble apcused. bn "Uo grep Sfeeh « State of Harvand SS ane Court has held thal in order {6 bring a case within clause Thirdiy of section 3OU of the Indian Penal Code it nrust be proved thal there was un intention to infiet that particular bodily injury which in the ordinary course of nature was sufficient to cause deat. In yet another judgment, in "Revedfir (iPSii 84 the Hon'ble Supreme Court has
-pecause the blew fanded on a partic oH} the berly ¢ ayarced from the sircunsfances in which ine ivaw we t would Be heazarduus [6 sey inat fhe accused intended to eguse that particular infu. The weapon Wes not He cid not passeas ane. Ailerc ator faaX pice behvean her and ihe deceased and he ¢ faye blow with @ kasal. in ur opinion in these cireumalances gd be difficutt fo Say haz ihe accused imfended fe Cause that particular injury, True i is that fhe infusy proved fatal ang was opined in the ordinary =, SoBe o ane to be sufficient fe ceuse death. We ne eed net nis suBfeot in VIEW of a very recent decision cf FES grup Singh & Sate of Haryana. San. Jd, speaking a after refering fo ¥s a OO the subyect including ine one reed upon in Hus case, Vise Singh vo State af Py th observed that in ander fe bring the case wii para iH of Section SOO of fae JO, mus sf) be prcved tat there WaS Sh arention to int vfiof that particular bodily imuaey whic sy in ibe ordinary course OF f pature WAS SY ifipkat to Cause n in other words, fal the infury found fe BE DPR WAS the injury shat was inmended (o DG nitiote BCs.
8 PFEWIOUS GOCk for "es mf iy tay An bnhary over the ao: dominal area the extent of which was suck shat the Intestine ws bulging Gut Was definitely serious and orievous if RALUES, wat at the same tine the v Jeti owas able to speak ~ WS have accepted the evidence of the informant that her frusband made 8 dying declaration belare died [4 days after he was stabbed by his brother her, and give
8. gunk CUCUTShaces which nerringly indicates that the app sant had t Se sii intenviar ss envisaged ursder Clause Gat his act was so uN mminently dangerous that in all probability would cause death as provided under elause Fourthly to eection 300 af the indian Penal Coad cars sat be inferred. Most unpor ¥ . % Y nae . ~ leo . a aoa . sry eee as recorded by PWS that he stab wounds had degen erated and there was Sign 0) seritarmiiis in the 4 aund reflect that Paya Oraon was not provided proper weaiment May be. PAWS has observed that sentonitis fas > 2 sia injuries this carol be forgotion that Paya Oraon has not died | and the stab indurie es caused by the ape astiant were not the Brut ediate cause of x tS. in the aforesaid factual seenario, we are oi the opinion That oy > af the Indian Penal eanviction and sentence of the appellant under section af Code is not sustainable and, accordingly, the judgment of conviction and ih order of sentence, both dated 1OO2.2010, against the appcuant . namely, Jags Craon for the offence under section 307 of the Indian Penal Cade passed by the isarned Additicnal J fudicial Comunissioner, MPC. Viv Ranchi ip Se o. 134 of 2G09, are sel-n: ids.
18, The appellant, namely, Jaga Oraon is convicied and senteneed {3 M4 RI for 7 years under section 304 Part Hof the . {indian Penal Code.
Vy. My, Vineet Kumar Vashistha, the learned APP states that the eliant, nameby, Jaga Oraon who has serve a the sermence of more than P years and 2 MOrins, with remission, is in custody.
. Accordingly, the appellant, namely, Jaga Oraon whe is in cusindy Fad SK fo any other criminal shall be released - forthwith, U mot wante od in connection
18. Tn the result. Criminal Appe 2 (PB) Wo, S54 of 2015 is party allowed, in the aforesaid terms.
28. We record our appreciation to the vah uable assistance rendered by Mis, Shilp! Sandil, the leame d Amicus who has meticulously prepared Syn} Sots, notes of argument and supplemented her arguments by filing grounds supparted by jadgments for challenging the padgment passes | the ap pela ent in Session Trial Case No. 134 of 2009. We also appreciate the assistance of Mr. Vineet i Kumar Vashistha, the learned A APP.
zi. Let a copy of the pdgment be transritied to the Court CQHOaNed and the concerned jail superintendent ifrough Kar'
22. Let the lower Court records be sent to the Court concerned forihys et th. eure at aren rte (Shree Chandrashekhar, J.) Sd /-
(Ratnaker Bhengra, J.)