Jharkhand High Court
Ramu Oraon vs State Of Jharkhand on 14 July, 2015
Author: R.R.Prasad
Bench: R. R. Prasad, Pramath Patnaik
1
Criminal Appeal (D.B) No.149 of 2012
with
Criminal Appeal (D.B) No.700 of 2013
---
Against the judgment of conviction dated 15.7.2004 and the order
of sentence dated 17.7.2004 passed by the Additional District
Judge, FTC No.1, Gumla in S.T.No.169 of 2003.
---
Ramu Oraon, son of Kolee Oraon,
Resident of village Lohra, P.O & P.S.
Dumri, District- Gumla......Appellant [Cr.App.(D.B) No.149 of 2012]
Chatur Sai, son of Bigan Say, resident
of village Lohra, P.O. & P.S.Dumri
District- Gumla..................Appellant [Cr.App.(D.B) No.700 of 2013]
VERSUS
The State of Jharkhand.............................................Respondent
For the Appellant: Mr.Arwind Kumar [Cr.App.(D.B) No.149 of 2012]
For the Appellant:Miss Amrita Banerjee[Cr.App.(D.B)No.700 of 2013]
For the State :Mr.Hardeo Pd.Singh [Cr.App(D.B) No.149 of 2012]
For the State :Mr.Ram Prakash Singh [Cr.App(D.B)No.700 of 2013]
P R E S E N T
THE HON'BLE MR. JUSTICE R. R. PRASAD
THE HON'BLE MR. JUSTICE PRAMATH PATNAIK
By Court: Since both the appeals arising out of same case were heard
together the same are being disposed of by this common judgment.
Those two appeals are directed against the judgment of conviction dated 15.7.2004 and order of sentence dated 17.7.2004 passed by the then Additional Sessions Judge-cum-F.T.C.No.1, Gumla in S.T.No.169 of 2003 whereby and whereunder the appellants on being found guilty for committing murder of Uchit Narayan Sai were convicted for the offence punishable under Section 302/34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life.
The case of the prosecution is that on 14.1.2003 at about 8.30 p.m. the informant, Shyam Charan Sai (P.W.7) and his elder brother Uchit Narayan Sai had taken their meal in the house. Thereupon Uchit Narayan Sai (deceased) came to sleep at the house situated at Jackfruit orchard whereas the informant came to the house situated near a pond. In the night at about 10 p.m. the informant heard 2 distress sound, upon which he rushed towards Jackfruit orchard. In the meantime, he heard sound of firing. Being scared of he hided himself behind the creeper of bin (a kind of vegetable). From there, he saw these two appellants and also Prahlad Sai, Tulsi Singh and Satendra Singh assaulting the deceased with sharp weapon. He remained hiding there till the accused persons fled from there. Only thereafter he came to Turhi forest and hided himself for whole night. In the morning, he came to Jackfruit orchard where he did find gun shot injury over the belly of the deceased and that apart, cut injuries were also there on the neck of the deceased.
On 15.1.2003 at about 12.30 p.m. when Md.Aftab Ahmad, Officer-in-Charge of Dumri police station came to the village, Shyam Charan Sai (P.W.7) gave his fardbeyan (Ext.4) to the same effect as has been stated above. The motive which has been assigned is that the accused persons were having land dispute with the deceased as well as the informant and therefore, they committed such offence.
On the basis of the said Fardbeyan, an F.I.R was registered not only against these two appellants but also against Prahlad Sai, Tulsi Singh and Satendra Singh. The Investigating Officer took up the investigation of the case. During which he held inquest on the dead body of the deceased and sent the dead body for post mortem examination which was conducted by Dr.Nawal Kishore Sinha (P.W.3), who upon holding autopsy did find following injuries.
(I) Incised wound 6"x2"x6" on the back of neck just below occipital bone.
(ii) Incised wound 6"x2"x6" -2" below the first injury.
(iii) Incised wound 1"x ½"x1" below left mandible.
(iv) Abrasion 3"x2" on right dorsum of hand.
(v) Punctured wound with burnt margin ¼" on left side of
abdomen.
(vi) Perforated wound with everted margin i.e. exit wound of
fire arm injury on the lumber region just left lateral to the vertebral column.
(vii) Internal examination:-there was tear of large intestine.
Stomach was empty.
3According to doctor, injuries no.(i) to (iii) were caused by sharp cutting weapon whereas injury no.(iv) was caused by hard and blunt substance and injuries no.(v) to (vii) were caused by firearm.
According to the doctor, death was caused on account of cutting of brain stem. The doctor has proved the post mortem examination report as Ext.1.
Meanwhile, the Investigating Officer recorded the statements of the witnesses. On completion of investigation, charge sheet was submitted against the appellants whereas the three persons, namely, Prahlad Sai, Tulsi Singh and Satendra Singh were shown as absconder.
Accordingly, cognizance of the offence was taken against the appellants. When the appellants were put on trial after commitment of the case, the prosecution examined altogether eight witnesses. Of them, P.W.2, Deo Narain Sai, brother-in-law of the deceased, P.W.4,Jarku Nagesia , the friend of the informant's father, P.W.5, Chandar Bopal Sai father of the deceased and the informant, P.W.6, Birsamani Devi, widow of the deceased are the hearsay witnesses, who have derived knowledge about the occurrence from the informant, Shyam Charan Sai, P.W.7. According to them, the deceased after taking meal went to sleep at the house situated at Jackfruit orchard and the informant went to house situated near a pond. The informant at 10 O'clock heard distress sound being raised by the deceased, upon which he rushed towards the house where the deceased was sleeping and found the appellants and other accused persons assaulting the deceased under a Jackfruit tree. He hided himself and from there he had seen the appellants committing offence. P.W.1, Budh Ram Baraik the Panchayat Sewak has testified that at about 11 p.m. in the night the informant came to his house and knocked the door upon which he opened the door and then the informant told him that he had heard his brother calling upon all others to flee from the house as they will be done to death. 4 Immediately thereafter he heard sound of firing and therefore, he has come there to take shelter. However, this witness has been declared hostile. Shyam Charan Sai, P.W.7 the sole eye witness has testified in the manner in which he has made statement in the Fardbeyan.
After closure of the prosecution case, when the incriminating evidences were put to the accused persons under Section 313 of the Code of Criminal Procedure, they denied.
Thereafter the court having placed its implicit reliance on the testimony of P.W.7, recorded the order of conviction and sentence which is under challenge.
Miss Amrita Banerjee, learned counsel appointed as Amicus Curiae submits that only P.W.7, the brother of the deceased happens to be the eye witness and none else but the testimony of P.W.7 never inspires confidence to be believed on account of his conduct. In this regard, it was highlighted that according to P.W.7, when he saw the appellants and other accused persons committing murder, he instead of coming to the village, went to the forest and remained there for the whole of night whereas as per the evidence of the witnesses, approximately more than 50 houses were there around the place of occurrence where he could have easily taken shelter and at the same time he could have told to them about the occurrence but instead of that he fled to forest which may not have been safe for him and hence, the conduct of the witness appears to be unnatural. Moreover, in absence of any source of light it would not have been possible for anyone to identify the person, still he has claimed to have identified the accused persons and thereby the testimony of P.W.7 is fit to be rejected.
Further it was submitted that from the circumstances appearing in this case sufficient indication is there to throw light that the informant had never seen any of the accused persons committing offence, rather he could know that his brother has been killed only in 5 the morning and after seeing injuries on the person of the deceased, he gave Fardbeyan which is consistent with the injuries found on the person of the deceased.
Further it was pointed out that the story as propounded by P.W.7 that he as well as the deceased had taken meal at 8.30 p.m. also gets falsified from the medical evidence as the doctor did find stomach empty whereas if the testimony of P.W.7 would have been correct, food partially digested must have been there in the stomach and under the circumstances, testimony of P.W.7 never inspires confidence to be believed and hence, it be rejected.
Mr.Arwind Kumar, learned counsel appearing for the appellant Ramu Oraon submits that he endorses the same view which has been expressed by learned counsel appearing for the appellant Chatur Sai that the informant had never seen the accused persons committing murder and therefore, whatever statements have been made, those statements appears to have been manufactured which fact gets substantiated from the evidence of P.W.1, Budh Ram Baraik wherein he in his examination-in-chief has stated that at 11 O'clock the informant came rushing to his house, knocked the door and when he opened it, the informant informed that his brother has been surrounded by some miscreants and therefore, he has been raising alarm that everyone should leave the house and out of fear, he came to the house of P.W.1 but the testimony of P.W.1 was never taken into account by the court as he has been declared hostile but in the facts and circumstances, the fact stated by P.W.1 appears to be correct. Moreover, the conduct of the appellants is as such that his testimony never warrants to be acted upon but the court below did not take into account all this aspect in right perspective and hence, the judgment of conviction and order of sentence is fit to be set aside.
As against this, learned counsel appearing for the State submits that much argument has been advanced over the untrustworthiness of 6 the witness on account of his conduct but how one, in the facts and circumstances, acts that depends on his wisdom. The informant was so scared that he choose not to go to the village, rather to the forest as he must have deemed it as the safest place and that the testimony of P.W.7 is worth reliable as his testimony gets corroboration from the medical evidence and thereby the judgment of conviction and order of sentence never warrants to be interfered with.
Having heard learned counsel appearing for the parties and on perusal of the record, we do not subscribe the view as has been expressed on behalf of the State as the conduct of P.W.7 certainly appears to us to be unnatural which markes him unworthy of credence. Not only that the prosecution has never come forward with the case that the informant was able to identify the accused persons under some source of light, rather the witnesses are quite silent though one of the witnesses, P.W.2 has testified that there was moon light night but P.W.7 has never said so. Even if it was moonlight night question would be as to whether in the situation prevailing P.W.7 was in position to identify the person.
It be stated that it is the case of the prosecution as has been testified by P.W.7 that the deceased as well as the informant took meal at the house at 8.30 p.m. and then the deceased went to a place to sleep over there whereas the informant P.W.7 came to other place. At 10 O'clock, according to P.W.7, he heard distress being raised by his brother (deceased), upon which he rushed towards that direction and in the way he heard sound of firing. When he came near a Jackfruit tree, he found the appellants and other accused persons assaulting the deceased with sharp weapons. After seeing all this, he went away to a forest, though as per his evidence by that time the accused persons had left the place of occurrence. Even if P.W.7 would have scared, natural conduct would have been for him to come to his brother and then to inform to the villagers whose houses were not far 7 away from there but instead of coming to the village, he went to the forest where he would have certainly remained alone whereas if he had come to the village, he would have got solace from the villagers and the villagers would have assisted him. Under the circumstances, the conduct of P.W.7 certainly appears us to be unnatural.
Going further in the matter, we do find that P.W.7 has claimed to have identified the accused persons from the distance of about 20 yards from creeper of bin which was quite dense. The place of occurrence is said to be under the true. In such situation, it would not have been possible to identify the accused persons as under the tree it would have been more dark and that too from behind the bushes which, according to the witnesses, was quite dense. Going further in the matter it appears to us that P.W.7 possibly could know about the occurrence only in the morning. According to P.W.7, he did return from the forest in the morning but before that P.W.6, widow of the deceased had noticed the dead body being lying there under the Jackfruit tree. Her evidence give indication that after taking notice of the dead body, she informed to P.W.7 Further we do find that P.W.7 has come forward with the case that he as well as his brother (deceased) had taken meal at 8.30 p.m. and then both of them got separated as each of them went to different place for sleeping. At about 10 O'clock the occurrence is said to have taken place meaning thereby that only one and half hour had passed from the time when the deceased had taken meal and in that event, partly digested food should have been there in the stomach but according to the doctor, the stomach was empty. This also falsifies the testimony of P.W.7.
Under the circumstances P.W.7 never appears to be trustworthy and hence, his evidence deserves to be rejected but the trial court acted upon the testimony of P.W.7 and thereby he, in the facts and 8 circumstances stated above, certainly appears to have committed illegality in recording the order of conviction and sentence. Hence, the judgment of conviction and order of sentence is hereby set aside.
Consequently, the appellants are acquitted of all the charge and are directed to be released forth, if not wanted in any other case.
Thus, both the appeals stand allowed.
(R.R.Prasad, J.) (Pramath Patnaik,J.) Jharkhand High Court, Ranchi, The 14th July, 2015, NAFR/N.Dev.