Bandey 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 accused-Anua Oraon was charged also under section 323 I.P.C for causing hurt to Sukra Oraon.

The appellant, namely, Bande Oraon has been convicted under section 302/34 I.P.C and sentenced to R.I for life for the said offence. He has also been convicted under section 323/34 I.P.C and sentenced to S.I for six months for the said offence.

Mr. Ramit Satender, the learned counsel for the appellant submits that without establishing participation of the appellant in the occurrence and demonstrating that the appellant has shared common intention with the accused, namely, Anua Oraon to cause death of Bhaura Oraon, he cannot be convicted with the aid of section 34 I.P.C for causing death of Bhaura Oraon.

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 weapons 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 Anua Oraon was holding a lathi fitted with Bhala and the appellant, namely, Bandey Oraon was carrying bow and arrow. He has alleged that 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.

The learned Sessions Judge has recorded a finding that there was no piercing injury found on the person of Bhaura Oraon, which could not have been caused by bow and arrow. However, the learned Judge has held that in view of the evidence led by the prosecution participation of Bandey Oraon in the incident is established and, accordingly, he has been convicted under section 302 I.P.C with the aid of section 34 I.P.C.

On this issue, we find the approach of the learned Sessions Judge erroneous.

Section 34 I.P.C in itself is not a substantive offence. It talks of the constructive liability of a co-accused who may not be the person who has inflicted the fatal injury, but then, the prosecution must establish that death has been caused in furtherance of common intention of all or that the other accused had knowledge that death may be caused in furtherance of the common intention. The specific case of the prosecution against the appellant is that he has caused injury on the palm of Sukhu Oroan with bow and arrow. However, no such injury has been proved by the prosecution. There is no material laid by the prosecution during the trial on participation of the appellant in the occurrence. The prosecution has failed to prove that the appellant shared common intention with Anua Oraon to cause death of Bhaura Oraon.

In view of the aforesaid facts, we are of the opinion that the appellant-Bandey Oraon is entitled for benefit of doubt and, accordingly, his conviction under section 302/34 I.P.C and sentence of R.I for life for the said offence and his conviction under section 323/34 I.P.C and sentence of S.I for six months for the said offence are set-aside.

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

Criminal Appeal (D.B) No.612 of 2008 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.