Lathe Oraon vs State Of Bihar

Shree Chandrashekhar, J

The sole appellant is aggrieved of the judgment of conviction under section 302 IPC and order of sentence, both dated 23.01.1993 passed in Sessions Trial No. 653 of 1989.

By an order dated 12.02.1993, the appellant was released on bail.

On the basis of the fardbeyan of Fagu Naik-informant, a first information report vide Doranda P.S Case No. 91 of 1989 was registered for the offence under section 307, 448 and 324 IPC. Subsequently, the offence under section 302 IPC was added vide order dated 20.03.1989 against the accused-appellant. The informant has claimed that when he was standing along with several villagers near the house of Damini Orain they found that Damini Orain and Kukri Orain were crying for help whereupon they rushed to their house. They have seen the accused-Lathe Oraon assaulting Damini Orain and Kukri Orain with the blunt portion of a spade. When the accused tried to flee away he was chased by the villagers and apprehended. The reason why the accused has assaulted Damini Orain and Kukri Orain is said to be the case lodged by Damini Orain for murder of her son allegedly by the accused-appellant.

During the course of treatment Damini Orain succumbed to her injuries on 13.03.1989.

However, Kukri Orain has survived the assault upon her by the appellant.

Charges under section 307 IPC and 302 IPC were framed against the appellant.

During the trial the prosecution has examined seven witnesses; the informant is P.W.2, the doctor who has conducted autopsy over the dead-body is P.W.1 and the investigating officer is P.W.7. All the prosecution witnesses except P.W.1 and P.W.7 have turned hostile. However, the learned Addl. Judicial Commissioner on the basis of the prosecution evidence in the court has found the appellant guilty for the offence under section 302 IPC and convicted him to undergo R.I for life.

The appellant has been acquitted of the charge under section 307 IPC.

Mr. Satish Kumar Keshri, the learned A.P.P contends that it is legal and permissible for the court to consider the evidence of a hostile witness and if on the basis of such evidence a finding on the guilt of an accused can be recorded, the judgment of conviction can be sustained. According to the learned A.P.P the present case is one such case.

As has been observed by the Hon'ble Supreme Court a criminal trial is not like a fairy-tale. It is a cardinal principle in criminal jurisprudence that the prosecution must establish the charge against an accused to the hilt, beyond all shadows of reasonable doubt. Benefit of doubt is right of an accused. There is no such expression as "hostile witness" in the Code of Criminal Procedure, 1973 but the term hostile witness has been interpreted through judicial decisions to mean a witness who is not favourable to the prosecution. No doubt, evidence of a hostile witness is also a piece of evidence and if supports the prosecution the prosecution can legally rely upon the same, but then, before an accused is found guilty there must be such evidence which conclusively establish that the accused has committed the crime. All the prosecution witnesses except, P.W.1-doctor and the investigating officer-P.W. 7 have turned hostile. Informant-P.W.2 has denied that he has lodged a first information report. He has also denied that he has named the appellant as the accused who has caused murder of Damini Orain and has assaulted Kukri Orain. The other prosecution witnesses have also declined to identify the appellant as an accused.

The learned Addl. Judicial Commissioner on the basis of the circumstances, that the appellant was apprehended by the villagers has convicted the appellant for offence under section 302 IPC.

Having carefully examined the materials brought on record of Sessions Trial No. 653 of 1989, we are of the opinion that there is no legally admissible evidence against the appellant to convict him for the offence under section 302 IPC. The prosecution has failed to prove that it was the appellant who has committed the crime. The learned Addl. Judicial Commissioner, Ranchi has committed serious error in law in convicting the appellant on the basis of conjectures and surmises.

Accordingly, conviction of the appellant under section 302 IPC and his sentence, both dated 23.01.1993 passed in Sessions Trial No. 653 of 1989 are set-aside. The appellant is acquitted of the criminal charge framed against him. He is also discharged of the liability of the bail-bonds furnished by him.

Criminal Appeal (DB) No. 21 of 1993(R) is allowed, in the aforesaid terms.