Jagarnath Oraon And Ors vs State Of Jharkhand

Chandrashekhar, J

Eleven persons have faced the trial on the charge of causing death of Jogi Oraon in furtherance of common intention of all.

Charges under section 302/34 IPC and section 148/34 IPC were framed against the accused persons vide order dated 20.06.1996 in S.T No. 283 of

1993.

During the trial, the accused-Gadeo Oraon died and seven accused persons namely, Burunga Oraon, Dasai Oraon, Dutia Oraon, Birsa Oraon,

Gosai Oraon, Balak Ram Oraon and Bhodro Oraon have been acquitted by the learned Ist Additional Sessions Judge, Gumla of the aforesaid charges

framed against them.

The convict namely, Jagarnath Oraon is appellant in Criminal Appeal (DB) No. 189 of 2001 and the convicts namely, Patras Oraon and

Bishambhar Oraon are the appellants in Criminal Appeal (DB) No. 250 of 2001.

They have challenged the judgment of conviction under section 148, 302/34 IPC dated 09.05.2001 and the order of sentence of R.I for life dated

10.05.2001 passed by the learned Ist Additional Sessions Judge, Gumla in S.T No. 283 of 1993.

On the basis of the fardbeyan of Taramuni Kumari, daughter of the deceased-Jogi Oraon, recorded at about 9. 30 a.m on 22.06.1993 at the police

station, Sisai P.S Case No. 92 of 1993 was registered under section 147, 148, 149, 302/34 IPC. After the investigation, charge-sheet was submitted

against eleven accused persons and they have faced trial in S.T No. 283 of 1993. During the trial, the prosecution has examined altogether 10

witnesses; the informant is P.W.4 and her brother is P.W.5. Dr. Mani Bhusan Prasad who has conducted autopsy on 23.06.1993 at 11 a.m over the

dead body has found the following injuries on Jogi Oraon :

“(i) Incised wound over front and right side of neck with cutting of trachea, oesophagus and right carotid artery and 5th and 6th cervical vertebra

size 6â€​X 4â€​ X bone deep.

(ii) Lacerated wound over right parietal region size- 2â€​X2â€​ up to bone deep with fracture of parietal bone and laceration of underlying brain matter.

(iii) Lacerated wound over right ear size 2â€​ X 1/2â€​ X 1/4â€​.

(iv) Lacerated wound over right axillary region size 2â€​ X 1/2â€​ X 1/2â€​.

(v) Stab wound over right side of right chest four in number in mid-axillary line at the level of 6th,7th, 8th, and 9th inter costal space with rapture of

right lobe of liver. Each injury of the size- 1â€​X 1/4â€​ upto the peritoneal cavity.â€​

The doctor has found injury nos. (i), (ii) and (v) grievous in nature and sufficient to cause death. In his opinion, the injury no. (i) was caused by a

sharp cutting weapon whereas the injury nos. (ii) and (iv) were caused by hard and blunt substance, such as lathi. The stab wound over right side of

the chest of Jogi Oraon according to the doctor was caused by sharp piercing weapon, such as knife (chhura).

The learned Ist Additional Sessions Judge, Gumla on the basis of the materials laid before him has held that the prosecution has proved the charge

under section 148, 302/34 IPC against the appellants.

The accused namely, Dasai Oraon has been acquitted of the charges framed against him on the ground that the evidence adduced by the

prosecution against him was wholly unreliable.

The informant namely, Taramuni Kumari-P.W.4 has stated that on 22.06.1993 she accompanied her father who had gone for ploughing the field.

While she was collecting grass in the field, at about 9 a.m, the accused persons named in the fardbeyan, variously armed, came there. She has stated

that the appellant namely, Bishambhar Oraon was holding knife and other accused persons were armed with tangi. Her father was assaulted by the

appellant namely, Patras Oraon on his neck by tangi and, thereafter, Bishambhar Oraon gave a knife blow in his chest. The informant has stated that

other accused persons have also assaulted her father with tangi. When she raised cries the accused persons assaulted her also whereupon she ran

towards home and informed her family members. When they came back to the field they found Jogi Oraon was drenched in blood. The accused

persons had fled away. The informant has asserted that her father was assaulted by the accused persons with whom there was a long standing land

dispute pending in the Court. In the court, in her examination-in-chief the informant has reiterated the story narrated by her in her fardbeyan. She has

made specific allegation of assault by Patras Oraon and Bishambhar Oraon. With respect to other accused persons she has of course made a general

allegation of assault upon her father by them with tangi.

The prosecution has projected the informant and Jagarnath Oraon who has been examined as P.W. 5 as eye-witness. P.W.5 has also attributed

assault upon his father by Bishambhar Oraon, Patras Oraon and the accused Jagarnath Oraon as well as Gosai Oraon.

Mr. A. K. Chaturvedi, the learned counsel for the appellants has contended that Jagarnath Oraon is not an eye-witness and the informant is not a

reliable witness. The learned counsel has contended that; (i) in the First Information Report the informant has failed to name her brother namely,

Jagarnath Oraon as an eye-witness, however, in the court she has improved her testimony, (ii) the number of injuries upon the deceased do not match

with the number of accused persons sent-up for trial, (iii) acquittal of as many as seven accused persons substantially erodes the prosecution's case

and, (iv) non-examination of the investigating officer has caused serious prejudice to the defence, least to say, the prosecution has failed to prove the

place of occurrence.

During the trial, besides the informant and her brother namely, Jagarnath Oraon the prosecution has examined other witnesses, may be they are

related to Jogi Oraon, the deceased. Brother of the deceased namely, Fakir Oraon-P.W.2 was in his house at the time of the incident and when the

informant informed him about the assault upon Jogi Oraon he rushed to the place of occurrence and saw the dead body of Jogi Oraon. Another son of

the deceased namely, Gandhi Oraon has also stated that he has received information about assault upon his father from his sister. He has seen the

dead body of his father at the place of occurrence. Wife of the younger brother of the deceased namely, Sargi Devi has also deposed on the similar

lines, as P.W. 2 and P.W. 8 have narrated the story in the court. They all have spoken about complicity of the accused persons in the crime, as

informed to them by the informant.

However, in her examination-in-chief the informant has not made any specific allegation of assault upon her father by the accused-Jagarnath

Oraon, whereas her brother namely, Jagarnath Oraon has stated that the accused-Jagarnath Oraon and Gosai Oraon also have assaulted his father

with tangi. In S.T No. 283 of 1993, the learned Ist Additional Sessions Judge, Gumla has acquitted other accused persons except the appellants

namely, Patras Oraon, Jagarnath Oraon and Bishambhar Oraon on the ground that there is vague and general allegation of assault by other accused

persons upon Jogi Oraon. The accused-Gosai Oraon was one among those acquitted accused persons. The accused-Dasai Oraon has also been

acquitted of the charges framed against him on the ground that the evidences led against him are wholly unreliable. P.W.10, the doctor, has found that

the injury nos.(ii) and (iv) were caused by hard and blunt substance. The appellant namely, Jagarnath Oraon was not holding any such weapon. Thus,

the evidence led by the prosecution against the appellant namely, Jagarnath Oraon is not consistent and, therefore, we hold that he is entitled for the

benefit of doubt.

In view of the aforesaid state of evidences led during the trial of S.T No. 283 of 1993, we are inclined to extend benefit of doubt to Jagarnath

Oraon who is appellant in Criminal Appeal (DB) No. 189 of 2001.

Accordingly, the judgment of conviction under section 148, 302/34 IPC dated 09.05.2001 and the order of sentence dated 10.05.2001 passed in S.T

No. 283 of 1993 qua the appellant namely, Jagarnath Oraon in Criminal Appeal (DB) No. 189 of 2001 are set-aside. Their conviction under section

148 IPC is also set-aside.

The appellant namely, Jagarnath Oraon in Criminal Appeal (DB) No. 189 of 2001 is discharged of liability of the bail-bonds furnished by him.

In so far as complicity of the appellants namely, Patras Oraon and Bishambhar Oraon is concerned, in view of the consistent evidence led by the

prosecution particularly, through P.W.4 and P.W.5, we find that their presence at the place of occurrence and assault by them on Jogi Oraon are

established. P.W.10 has found one incised wound over the front right side of the neck of the deceased which is attributed to the appellant namely,

Patras Oraon and a stab wound over the right side of the chest of the deceased which is clearly attributable to the appellant namely, Bishambhar

Oraon. The prosecution witnesses have consistently deposed about assault by the appellants namely, Patras Oraon and Bishambhar Oraon on Jogi

Oraon. We have also taken note of the statement of P.W. 4 and P.W. 5 whose evidence in respect of number of assault upon Jogi Oraon is not

consistent but then we have to keep in mind that when eleven persons have started assaulting their father they could not have counted the blows.

Moreover, intellect of P.W. 5 can be assessed from his answer in the cross-examination when he says that he does not remember how old is his

sister, the informant. Moreover, the inconsistency sought to be established through the prosecution story of assault upon the deceased by all the

accused persons, eleven in number, and the number of injuries, that is, five injuries on Jogi Oraon is not such which establishes that the manner of

occurrence as disclosed by the prosecution is just not possible. On non-examination of the investigating officer, all that we intend to observe is that

whether prejudice has been caused to the accused or not, has to be examined in the context of the circumstances of the case. In view of the

consistent evidence of P.W. 4 and P.W. 5, we find that non-examination of the investigating Officer would not hit credibility of the prosecution's case.

Now, the question is whether the appellants namely, Patras Oraon and Bishambhar Oraon can be convicted under section 302/34 IPC.

The manner of occurrence as disclosed by the prosecution would establish that these two appellants, armed with weapon, have assaulted Jogi

Oraon, however, the evidence on common intention of all to cause death of Jogi Oraon cannot be gathered from the prosecution's evidence. All that

the prosecution has been able to establish is that these two appellants intended to assault Jogi Oraon. They definitely did not share the common

intention to cause death of Jogi Oraon. This can be discerned from the injuries caused by them to Jogi Oraon. The doctor-P.W.10 has not given a

definite opinion whether any of the two injuries, that is, injury no. (i) or injury no. (v) was sufficient to cause death in ordinary course of nature. Which

one was the fatal injury caused to Jogi Oraon has not been established by the prosecution. The doctor has simply said that death has occurred due to

the injuries found on the dead body of Jogi Oraon.

By now it is well-accepted that when it is not possible to ascertain which injury was the fatal one and who is the accused who has given the fatal

blow, it is not safe and proper to convict the accused under section 302/34 IPC [refer, “Vijay Singh and Another Vs. State of Madhya Pradeshâ€

reported in (2014) 12 SCC 293].

In the light of the aforesaid discussions, we hold that conviction of the appellants namely, Patras Oraon and Bishambhar Oraon in Criminal Appeal

(DB) No. 250 of 2001 under section 302/34 IPC is not sustainable and, accordingly, the judgment of conviction dated 09.05.2001 under section 302/34

IPC and the order of sentence dated 10.05.2001 passed against the appellants namely, Patras Oraon and Bishambhar Oraon in S.T No. 283 of 1993

are set-aside.

The appellants namely, Patras Oraon and Bishambhar Oraon in Criminal Appeal (DB) No. 250 of 2001 are convicted under section 326 IPC and

they are sentenced to undergo R.I for Ten years.

The bail-bonds furnished by the appellants namely, Patras Oraon and Bishambhar Oraon in Criminal Appeal (DB) No. 250 of 2001 are cancelled.

These appellants shall surrender before the court below to serve the remaining sentence.

Criminal Appeal (DB) No. 189 of 2001 is allowed.

Criminal Appeal (DB) No. 250 of 2001 is partly allowed.

Let a copy of the Judgment be transmitted to the court concerned through FAX.

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