Anua Oraon vs State Of Jharkhand

Shree Chandrashekhar, J

Three persons, namely, Anua Oraon, Bandey Oraon and Bhajju Oraon were named as assailants in his fard-beyan by the informant, namely, Sania Oraon which was recorded on 21.06.1986, on the basis of which Lohardaga P.S Case No.61 of 1986 was registered under section 302/307/325/324/323/34 I.P.C against them.

During the investigation, the accused Bhajju Oraon has died and, therefore, a charge-sheet was submitted against Anua Oraon and Bandey Oraon.

Both the accused persons have faced trial on the charge under section 307/34 I.P.C and under section 302/34 I.P.C; the appellant-Anua Oraon was charged also under section 323 I.P.C for causing hurt to Sukra Oraon.

The appellant, namely, Anua Oraon has been convicted under section 302 I.P.C and sentenced to R.I for life for the said offence. He has also been convicted under section 323 I.P.C and sentenced to R.I for One year for the said offence.

Contention raised by Mr. Ramit Satender, the learned counsel for the appellant is that on the basis of testimony of Sukhu Oraon-P.W 1, the sole eye-witness, conviction of the appellant is not sustainable in law.

During the trial the prosecution has examined five witnesses; the informant is P.W 3.

The prosecution has projected Sukhu Oraon-P.W 1 as eye-witness. The other prosecution witnesses, namely, Marcho Orain-P.W 2, Sania Oraon-P.W 3 and Mangri Orain-P.W 4 are related witnesses. In any case they are not the eye-witnesses.

Dr. Baidyanath Prasad Jaiswal, who has conducted the post-mortem examination, has found the following injuries on Bhaura Oraon:

(1) one incised wound obliquely place 3" x ½" x ½" on the left side of forehead,

(2) one incised wound ½" x ¼" x ¼" on the left side of face outside left eye,

(3) one lacerated wound 3" x ½" x ½" on the left side of scalp (Pariestes).

(4) one lacerated wound 2 ½" x ¼" x bone deep on the outer aspect of ankle,

(5) one lacerated wound 2" x ¼" x ¼" on the middle of left leg,

(6) one lacerated wound 2" x ½" x bone deep on the upper part of eye,

(7) one lacerated wound 2 ½" x ½ x bone deep on the front of left ankle,

(8) one Bruise 3 ½" x 2 ½" on the frontal of left side of chest,

(9) one Bruise 3" x 2" on the back of right hand,

(10) Fractures of right libia and fibia near ankle, left libia and fibia at two places near the ankle and knee left 8th rib, right coller.

The post-mortem examination report would reveal that the death was caused due to shock and hemorrhage. The incised wounds, that is, the injury nos.(1) and (2) were caused by sharp cutting weapon and in the opinion of the doctor, the lacerated wounds were caused by hard and blunt substance. The time elapsed since death was 12 hrs.

The doctor who has conducted the post-mortem examination has, however, not been produced by the prosecution during the trial.

The informant-Sania Oraon who is brother of Bhaura Oraon, the deceased, has stated in his fard-beyan that in the morning of 21.06.1986 Sukra Oraon came running to his house and informed him that when he was ploughing field with Bhaura Oraon and Sukhu Oraon, the accused Bhajju Oraon and his two sons, namely, Anua Oraon and Bandey Oraon came there variously armed with lathi, Tangi, Bhala, bow and arrow and started abusing them. He has stated that when the accused persons started assaulting Bhaura Oraon and Sukhu Oraon, Sukra Oraon fled away from the place of occurrence and informed him about the incident. Then he along with his wife, nephew and wife of the deceased went there. The informant has stated that Sukra Oraon had seen the accused persons assaulting the deceased. In the fard-beyan, the informant has alleged that Bhajju Oraon assaulted Bhaura Oraon with Tangi and Anua Oraon assaulted him with lathi fitted with Bhala. According to him, the accused Bandey Oraon has assaulted Bhaura Oraon and Sukhu Oraon with bow and arrow. Upon receiving such information the informant has gone to the place of occurrence and finding his brother lying in the injured condition took him to the hospital at Lohardaga. However, on the way Bhaura Oraon died.

In the court, the informant has admitted that he arrived at the place of occurrence after receiving information about the occurrence. In his cross-examination, he has admitted that at the time of occurrence he was at his house. The learned Sessions Judge has found him not an eye-witness. Mangri Orain-P.W 4, who is the wife of the informant, was also at home at the time of occurrence.

Sukhu Oraon-P.W 1 has said that in the morning of 21.06.1986 when he was ploughing field with Bhaura Oraon the accused persons came there and assaulted them. In his examination-in-chief, P.W 1 has stated that the appellant-Anua Oraon was holding a lathi fitted with Bhala and the accused, namely, Bandey Oraon was carrying bow and arrow. He has alleged that the appellant-Anua Oraon gave one blow with Bhala to his father, namely, Bhaura Oraon. He has further stated that due to assault upon him he was not conscious and in the position to go home and, therefore, he was taken on a cot by the villagers to the hospital. In his cross-examination, he admits that after receiving injuries at the hands of the accused persons he became unconscious. He further admits that his father had also become unconscious.

There was a land dispute between the parties on which both parties were staking their claim. The informant has stated that the land for which incident has taken place belongs to his family, however, no document in support of such a claim has been produced by the prosecution during the trial. The accused persons have produced documents indicating a decree of the civil court in their favour. The post-mortem report was produced in the court under section 294 Cr.P.C; the doctor who has conducted post-mortem examination report has not been examined during the trial. The accused-Anua Oraon has examined himself under section 315 Cr.P.C as a defence witness. He has spoken about possession over the disputed land in his favour. The documentary evidence on this point has been laid through him. None of the crime weapons was seized during the investigation, blood-stained soil from the place of occurrence was not seized and in absence of examination of the doctor who has conducted the post-mortem examination over Bhaura Oraon the defence was definitely handicapped in respect of the nature of injuries found on Bhaura Oraon.

True, a conviction can be recorded on the basis of testimony of a solitary witness, but then, in every case in which the prosecution's case is based on just one eye-witness, the rule of prudence requires that the court must be cautions and only when it is found that testimony of the sole eye-witness is wholly reliable and trustworthy, that is, of sterling quality, conviction on the basis of the sole eye-witness should be recorded.

In view of the aforesaid facts: non-examination of the doctor, failure of the investigating officer to seize incriminating materials and collect blood-stained soil from the place of occurrence, and admission of the eye-witness in his cross-examination that he became unconscious after receiving assault at the hands of the accused persons, we are of the opinion that on the basis of the testimony of the informant conviction of the appellant, namely, Anua Oraon cannot be recorded.

We are of the opinion that the appellant-Anua Oraon is entitled for benefit of doubt and, accordingly, his conviction under section 302 I.P.C and sentence of R.I for life for the said offence and his conviction under section 323 I.P.C and sentence of R.I for One year for the said offence are set-aside.

The appellant-Anua Oraon, who is on bail, shall stand discharged of liability of the bail-bonds furnished by him.

Criminal Appeal (D.B) No.7 of 2002 is allowed.

Let a copy of the judgment be transmitted to the court concerned through 'Fax'.

Let lower-court records be sent to the court concerned forthwith.