NIRANJAN ORAON, HARI ORAON vs STATE OF JHARKHAND

H.C. Mishra, J

Heard learned counsel for the appellants and the learned counsel for the State.    Â

The appellants are aggrieved by the Judgment of conviction dated 02.05.1996 and Order of sentence dated 04.05.1996, passed by the learned

Additional Sessions Judge-VI, Palamau at Daltonganj, in Sessions Trial No. 111 of 1991, whereby, the appellants have been found guilty and convicted

for the offence under Sections 302 / 34 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to

undergo R.I. for life for the said offence.Â

The prosecution case was instituted on the basis of the fardbeyan of the informant Luv Tiwary, who is the brother of the deceased Munesh Tiwary,

recorded on 19.5.1990 at about 8:15 A.M, wherein he has stated that in the previous evening, i.e., on 18.5.1990 at about 5:30 P.M, he was in his

rickshaw garage at Baralota, where Sohan Mistry, Bigu Bhuiyan and Sri Krishna Murari were also present. At the same time the accused, Birbal

Oraon, Niranjan Oraon, Rameshwar Oraon and Hari Oraon also came there. Birbal Oraon used to ply the rickshaw from the same rickshaw garage.

His brother, Munesh Tiwary was in visiting terms with the wife of the accused Ram Prasad Oraon. All the four accused persons talked with Munesh

Tiwary and thereafter, Ram Prasad Oraon and Munesh Tiwary went on a rickshaw which was driven by Birbal Oraon and Niranjan Oraon and Hari

Oraon also followed them. In the next morning, the informant was informed that the dead body of his brother was lying near a shop, whereupon he

went there and found the dead body of his brother. He has stated in the fardbeyan that the cause of occurrence was the illicit relationship between his

deceased brother and the wife of the accused Ram Prasad Oraon, and due to this illicit relationship, the accused persons had committed the murder of

his brother by sharp cutting weapon and thrown the dead body. On the basis of the fardbeyan, Daltonganj (Sadar) P.S Case No. 140 of 1990,

corresponding to G.R No.629 of 1990, was instituted for the offence under Sections 302 / 34 of the Indian Penal Code, against the aforesaid accused

persons and investigation was taken up. After investigation, the police submitted the charge-sheet in the case.

After commitment of the case to the Court of Session, charge was framed against all the four accused persons, namely, Niranjan Oraon, Hari

Oraon, Ram Prasad Oraon and Birbal Oraon, for the offence under Sections 302 / 34 of the Indian Penal Code, and upon the accused persons'

pleading not guilty and claiming to be tried, they were put to trial. It appears from the record that Ram Prasad Oraon, thereafter, absconded and his

trial was separated. In course of trial, sixteen witnesses were examined by the prosecution, including the I.O. and the Doctor, who had conducted the

post-mortem examination on the dead body of the deceased.Â

Out of the witnesses examined, P.W.-1 Kunti Devi and P.W.-3 Sohan Bhuiyan have turned hostile and have not supported the prosecution case at

all. P.W.-5 Suresh Oraon and P.W.-8 Bandhu Oraon are the witnesses of the seizure of a sword from the house of the accused Niranjan Oraon, but

they have also turned hostile and have not supported the seizure made in their presence. However, they have identified their signature and L.T.I on

the seizure list, and the signature of P.W.-5 Suresh Oraon was marked Exhibit-1/4. P.W.-10 Pardeshi Ram, P.W.-11 Devi Dayal Mehta, P.W.-12

Deodhari Ram, P.W.-13 Nakchhedi Mahto and P.W.-14 Bachru Ram were only tendered by the prosecution, and they have denied any knowledge

about the occurrence.Â

The prosecution case is supported only by P.W.-4 Luv Tiwary, the informant and the brother of the deceased, and P.W.-7 Krishna Murari Mishra,

who is the brother-in-law of the deceased, and they have only stated that in the evening of 18.5.1990, the deceased went with the accused persons

and in the next morning, his dead body was found. They are not the witnesses to the occurrence. As such, in their evidence, there is only the evidence

of last seen of the accused persons with the deceased and nothing further. P.W.-4 Lav Tiwary has also proved his signature on the fardbeyan, the

inquest report and one seizure list, which were marked as Exhibits- 1/1, 1 / 2 & 1/3 respectively. Â

P.W.-2 Basant Tiwari is also the witness to the inquest report who has proved his signature on the inquest report and the same was marked

Exhibit-1. P.W.-9 Om Prakash Tiwary is also the witness to the seizure list of the bloodstained soil, as also to the fardbeyan, on which he has

identified his signatures, which were marked Exhibits- 1/5 & 1/6 respectively. Both of them have stated nothing about the occurrence.  Â

P.W.-6 is Dr. Narayan Chandra Agrawal, who had conducted the post-mortem examination on the dead body of the deceased on 19.5.1990 and

had found four incised wounds on the dead body. Two of them were on the vital parts of the dead body, i.e., neck and chest. He has stated that the

death was caused due to shock and hemorrhage, caused by the said injuries, which were sufficient in the ordinary course of nature to cause the death.

He has identified the post-mortem report to be in his pen and signature, which was marked Exhibit-2.  Â

P.W.-15 Bijay Kant Singh is the I.O. of the case. This witness has stated that on 19.5.1990, he was posted as Officer-Incharge of Daltonganj

Police Station. He had recorded the fardbeyan of the informant, which he has proved and the same was marked Exhibit-3. He inspected the places of

occurrence and has given the details thereof. He seized the bloodstained soil from one place of occurrence and has proved the seizure list, which was

marked Exhibit-4. He also prepared the inquest report and has proved the same, which was marked Exhibit-5. This witness has stated that he

recovered one sword from the house of the accused Niranjan Oraon, in the presence of witnesses, and he has proved the seizure list of seizure of the

sword, which was marked Exhibit-4/1, and he has also identified the sword, present in the Court, which was marked as material Exhibit-I. He has also

proved the formal F.I.R, which was marked Exhibit-6. He has stated that he recorded the statements of the witnesses and thereafter, he handed over

the charge of investigation. In his cross-examination, this witness has stated that he had not sent the bloodstained soil for forensic examination and he

had not brought the sword in the Court, and such swords are easily available in the market. He has denied the suggestion of making faulty

investigation.Â

P.W.-16 Md. Idris had brought the sword to the Court and he has deposed only to that extent.Â

The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. On

the basis of the evidence on record, the Trial Court below has found the accused persons guilty, and convicted and sentenced them as aforesaid.

Learned counsel for the appellants has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court

below cannot be sustained in the eyes of law, inasmuch as, the prosecution has failed to bring home the charge against the accused persons beyond all

reasonable doubts. It is submitted that most of the witnesses have turned hostile, or were only tendered by the prosecution and the prosecution case

depends only upon the evidences of P.W.-4Â Â Luv Tiwary, the informant, P.W.-7 Krishna Murari Mishra,

the               brother-in-law of the deceased, and of the I.O, P.W.-15 Bijay Kant Singh. In the evidence of the informant

and the brother-in-law of the deceased, there is nothing except that the deceased was found in the company of the accused persons in the evening of

18.5.1990 and on the next day, the dead body of the deceased was found. As such, there is only last seen evidence against the accused persons in the

evidence of both these witnesses. Even though, the evidence of P.W.-15 Vijay Kant Singh shows that a sword was recovered from the house of the

accused Niranjan Oraon, but the fact remains that it is nowhere stated that the said sword was either bloodstained, or it was recovered on the basis of

the confessional statement of the accused. Learned counsel accordingly, submitted that the evidence on record was not at all sufficient to convict the

appellants, and in the facts of this case, the appellants ought to have been given the benefits of doubt.Â

Learned counsel for the State, on the other hand, has opposed the prayer and has submitted that the prosecution witnesses, namely, P.W.-4 Luv

Tiwary and P.W.-7 Krishna Murari Mishra have supported the prosecution case that in the evening of 18.5.1990, the deceased was taken away by all

the accused persons for the reason that he was in illicit relationship with the wife of one of the accused Ram Prasad Oraon, and on the next day, the

dead body of the deceased was found. The proximity in between taking away the deceased by the accused persons and the recovery of the dead

body was so close, so as to safely infer that the accused persons had committed the murder of the deceased, and this fact is also proved by the

evidence of P.W.-6 Dr. Narayan Chandra Agrawal and the post-mortem report proved by him is as Exhibit-2. There is also the recovery of the

weapon of offence, i.e., sword from the house of one of the accused. Learned counsel accordingly, submitted that there is no illegality in the impugned

Judgment of conviction and Order of sentence passed by the Trial Court below.Â

Having heard the learned counsels for both sides and upon going through the record, we find that the only evidence on record against these

appellants is the last seen evidence with the deceased and nothing further. They were seen in the company of the deceased in the evening and the

dead body was found on the next day morning. Though there is recovery of sword from the house of the accused Niranjan Oraon, but there is no

evidence to show that either the said sword was bloodstained, or it was recovered on the basis of the confessional statement of the accused. The case

is supported only by two witnesses, who are P.W.-4 Luv Tiwary and P.W.-7 Krishna Murari Mishra, and both these witnesses are highly interested

witnesses being the brother and the brother-in-law of the deceased. Though several independent witnesses have been examined in the case, but all of

them either turned hostile or have only been tendered by the prosecution and have not supported the prosecution case at all. We are of the considered

view, that it was not at all safe to base the conviction of the appellants only on the last seen evidence of the highly interested witnesses, i.e., the

brother and brother-in-law of the deceased, which was absolutely uncorroborated. Even the recovery of sword from the house of Niranjan Oraon is of

no consequence, in absence of any bloodstains in the sword, and its recovery not having been made on the basis of any confessional statement. We

are of the considered view that in the facts of this case, the appellants were entitled at least to the benefits of doubt, and as such, the impugned

Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law.

In view of the foregoing discussions, the impugned Judgment of conviction dated 02.05.1996 and Order of sentence dated 04.05.1996, passed by

the learned Additional Sessions Judge-VI, Palamau at Daltonganj, in S.T. No. 111 of 1991, convicting and sentencing the appellants for the offence

under Sections 302 / 34 of the Indian Penal Code, are hereby, set aside. Consequently, the appellants Niranjan Oraon and Hari Oraon are given the

benefits of doubt and they are acquitted of the charges. Both the appellants are on bail and they are discharged from the liabilities of their respective

bail bonds.

We find from the record that one convicted co-accused, Birbal Oraon, was in custody during trial, and the office has reported that he has not filed

any appeal. By now, he might have been given the benefits of remission in sentence, but we are not sure of this fact. The Secretary, High Court Legal

Services Committee, is directed to enquire from the concerned Jail authorities whether the co-accused, Birbal Oraon is still in custody, and if that be

so, to provide the legal aid to the said  co-accused. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee,

Ranchi, for the needful.Â

This appeal is accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this

Judgment.     Â