Soma Oraon vs State Of Jharkhand

Gautam Kumar Choudhary, J

Appellants are before this Court in appeal against the judgment of conviction and sentence under Sections 302/34 of the IPC.

Informant is the brother of deceased. As per the FIR, on 17.06.1992 at about 6 am. informant-Chiru Oraon along with his brother Fauda Oraon had gone to plough his agricultural field. At about 8:00 a.m., Suleman Oraon armed with Lathi and accused Birendra Oraon armed with sword came there and asked them to leave the land. In the meantime, accused- Pityush Oraon armed with bow and arrow, Lal Mohan Oraon, Sakhu Oraon, Lalu Oraon, Chitru Oraon, Sikil Oraon and Namdeo Baraik armed with Lathi, Mathura Baraik with Tangi, Soma Oraon with Lathi and Tangi, Birendra and Ram Prasad Oraon with sword and Ram Chandra armed with Balua came there and attacked the informant party. Soma Oraon assaulted Fauda Oraon (deceased) with Tangi, Birendra Oraon and Ram Prasad Oraon assaulted him with sword as a result of which, he sustained injuries. After Fauda Oraon fell down, they continued with the assault. Mathura Baraik assaulted him with Tangi and other named accused persons assaulted him by Lathi. When the informant went to rescue of his brother, he was assaulted by Fauda Oraon, Pityush Oraon and Namdeo Baraik and Ram Chandra Oraon assaulted him with Balua as a result of which the informant sustained injuries and he fled away to save his life.

On the basis of the fardbeyan, Chainpur P.S. case No.38/92 was registered under Sections 147, 148, 149, 323, 324 and 302 of the IPC against these appellants and other co-accused persons. Police on investigation, found the case true and submitted charge sheet and the accused persons were put on trial for the offence under Sections 302/34 and 149 of the IPC, accused- Ram Chandra was further charged under Section 324 of the IPC.

Altogether eight witnesses have been examined on behalf of the prosecution. Apart from the prosecution evidence, relevant documents including post-mortem examination report, inquest report, fardbeyan and revenue records have been proved and marked as exhibits.

After the prosecution evidence, statement of the appellants were recorded under Section 313 of the Cr.P.C. Defence is of innocence, but no specific defence has been pleaded in the statement under Section 313 of the Cr.P.C. Two witnesses on behalf of defence have also been examined.

Ms. Jyoti Nayan, learned counsel for the appellants, submits that one Sikil Oraon, who is also an accused, was, in fact, not present at the place of occurrence and in the village on the said date of occurrence. As the Investigating Officer during investigation has found that he was not present in the village which would suggest that the informant has falsely implicated not only Sikil Oraon but others also. Further, she submits that Ram Prasad Oraon has been made an accused but he had died five days before occurrence on 12.06.1992. The aforesaid fact has been brought to the notice of the Court by the Investigating Officer while deposing as PW-7. The Investigating Officer has also stated that the death certificate was seen by him and entry in the case diary has already been made. She further submits that all the injuries on the body of the deceased are incised wounds, but as per the prosecution case, he was also assaulted mercilessly by the accused persons with sticks but surprisingly, no corresponding injury caused by hard and blunt substance was found which suggests that the entire prosecution case is fabricated. The informant is an interested and related witness and he is none other than the brother of the deceased. Thus, the Court should be cautious in dealing with his evidence. She relied upon a judgment rendered by the Hon’ble Supreme Court in the case of Chhote Lal Vs. Rohtash & Ors. {2023 INSC 1072} (neutral citation).

Further, it has been mentioned that there is no eye-witness to the said occurrence when it is alleged that a large number of persons took part in the assault of the deceased.

Ms. Priya Shrestha, learned counsel appearing on behalf of the State, submits that the informant is an injured witness and there is an injury report of the informant which would suggest that the informant is an eye-witness to the occurrence and he was present at the place of occurrence during the time of assault which cannot be disputed. She further submits that the charge is under Section 149 of IPC and thus, all the appellants would be equally liable for the offence committed. She argues that the acquittal of other accused persons is of no relevance in this case in view of the overwhelming evidence led by the prosecution.

FINDING

Deceased (Fauda Oraon) died a homicidal death is proved by Autopsy Surgeon (P.W. 6) who found the following injuries: -

I.  Incised wound over (R) leg in lower 3rd with cutting of tendo achilles and lower end of tibia and fibula- 4” x 2”x 3”.

II. Incised wound over (L) leg in lower 3rd with cutting of tendo achilles and lower end of tibia and fibula – 5”x 3”x 3”.

III. Incised wound over (R) parietal region- 4”x 1”x bone deep with fracture of parietal bone and laceration of underlying brain.

IV. Incised wound over (R) arm in posterior aspect – 6”x 1½”x ½”.

V. Incised wound over (R) side of chest on posterior aspect over scapula- 6”x 2”x 1”.

VI. Incised wound over (L) side of chest on post aspect over (L) scapula- 7”x 2”x 1 ½ “.

VII. Incised wound over back in mid line at the level of T 10 to L 4- 4”x 2”x 2”.

VIII. Incised wound over occipital region- 3”x 1”x 1”.

FIR has been lodged without any delay on the very same evening of the incidence. FIR is not a substantive piece of evidence, but it is very valuable document as it sets the law into motion. Delay in institution of FIR leads to possibility of embellishment. Statement of the informant as stated in the FIR can be used for corroboration of his testimony in terms of Section 157 of the Evidence Act, and it can also be used for contradiction by the defence under Section 145 of the Evidence Act.

As per the testimony of the informant (P.W. 5), he had gone along with his brother Fauda Oraon (deceased) to plough the field. At around 8:00 O’ clock the accused persons variously armed, attacked and assaulted them in which Fauda Oraon was critically injured and died on the spot. He has specifically named these appellants as the persons who were involved in the assault. As per his testimony, Soma was armed with lathi and tangi, Ram Chandra Oraon and Birendra with sword. The post-mortem examination report corroborates the testimony of P.W. 5, as all the injuries sustained by the deceased were caused by sharp cutting weapon. Defence has failed to elicit any contradiction in his account which can serve as basis to disbelieve his testimony. The very fact that all these appellants had come fully armed to stop the deceased and informant from ploughing the field, discloses a prior concert of mind and in furtherance of common intention, Fauda Oraon was indiscriminately assaulted by inflicting fatal injuries, resulting in his instantaneous death. In view of the direct eye witness’s account against these appellants in participating in the criminal act, charge under Section 302/34 is proved. As far as these appellants are concerned, it hardly makes any difference that the other co-accused persons were acquitted of the charges or some other persons were also implicated in the FIR either by default or by design.

I do not find any infirmity in the judgment of conviction and order of sentence. Judgment of conviction and sentence is affirmed.

Criminal Appeal stands dismissed.

Since the appellants are on bail, their bails are cancelled and they are directed to surrender before the Trial Court to serve the remaining sentence failing which, the Trial Court will proceed as per law. Pending Interlocutory Application, if any, is disposed of.

Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment.