SUKHA RAM ORAON AND ORS. vs STATE OF JHARKHAND

B.B. Mangalmurti, J.

This appeal is directed against the judgment of conviction dated 14.05.1996 and order of sentence dated 15.05.1996 passed by the learned 1st

Additional Sessions Judge, Gumla, in Sessions Trial No.9 of 1998, holding all the appellants guilty under Sections 302/34 of the Indian Penal Code and

sentenced them to undergo rigorous imprisonment for life.

The prosecution case, in short, as it appears from the F.I.R lodged by Jattu Oraon on 12.08.1986 at 6.30 a.m., is that his son-in-law Rameshwar

Oraon along with his wife Birsai Oraon and children visited his house in the evening at about 3 p.m. and stayed in the night. On the next day,

Rameshwar Oroan was returning to his village after taking meals at about 3.30 pm, and had covered only some distance from the house, when all of a

sudden covillagers Sukhram Oraon, Ram Oraon and Birsai Oraon assaulted him by Bhujali for causing his death, whereupon his son-in-law

Rameshwar Oraon started running to save his life and entered into the house of Choutha Oraon, but all the three accused persons also entered into the

house of Choutha Oraon and assaulted causing serious injuries on his body, which resulted in his death. This incident was also seen by his nephew-

Sukra Oraon and sister’s daughter- Salo Orain. Choutha Oraon, who was returning with his cattle after grazing them, also saw the three accused

persons fleeing away from his house with blood stained Bhujali. The informant was working in his field, when his Bhagina-Mangru Oraon informed

him about the incident, whereupon he came and saw the dead body of Rameshwar Oraon in the pool of blood in the veranda of Choutha Oraon. He

claimed that accused persons had caused death of his son-in-law Rameshwar Oraon whose dead body was lying at Dhaba (Veranda). Accordingly,

Ghaghra (Gumla) P.S. Case No. 59 of 1987 corresponding to G.R. No.450 of 1987 was registered under Section 302/34 of the Indian Penal Code

against the accused persons and investigation were taken up. After investigation, Police submitted the charge-sheet. Thereafter, cognizance was

taken and ultimately the case was committed to the Court of Session, which was numbered as S.T. No.9 of 1988.Â

The prosecution altogether examined twelve witnesses but no witness was examined on behalf of defence.Â

In this case, two prosecution witnesses, namely, Jattu Oraon was examined on 30.08.1991 as P.W.5 and Arjun Gope who was examined on

31.05.1993 was also numbered as P.W.5. For the convenience, Arjun Gope, who has also been examined as P.W.5, is an Advocate Clerk and only a

formal witness, who has recognized handwriting and signature of the Investigating Officer who proved the carbon copy of inquest report as Ext.5., be

treated as P.W. without any regular number.Â

P.W.1 Sukra Oraon has narrated that in the month of Sawan on Tuesday while he was returning from his school at around 4 p.m., he heard some

noise and saw that his brother-in-law was being assaulted by accused persons Sukhram Oraon, Ram Oraon and Birsai Oraon by Bhujali. They also

chased his brother-in-law to the house of Choutha. Sukhram was holding small Bhujali whereas Ram Oraon was holding a big sized Bhujali and Birsai

assaulted with Gupti on the head, shoulder and upon other body parts and killed him at the spot. This witness also informed his mother (P.W.3) about

the incident and they saw the accused persons going away from the house of Choutha Oraon. At that time, Salo Orain daughter of Choutha Oraon

was also present in the house. He further stated that thereafter he sent Mangra to inform his uncle Jattu, and when he came, this witness informed

him about the occurrence. He has identified the accused persons present in the Court. This witness was cross-examined at length but nothing adverse

could be taken from him.

 P.W.2 Choutha Oraon also deposed in support of the prosecution and stated that while he was returning with his cattle, he heard some noise. Then

he ran towards the house and saw Sukhram Oraon, Ram Oraon and Birsai Oraon coming out from his house and Birsai Oraon was holding Gupti and

rest two were holding blood stained Bhujali. He went inside the house and saw the body of Rameshwar Oraon in the Dhaba of his house. This witness

was informed by his daughter Salo that Sukhram Oraon, Ram Oraon and Birsai Oraon had killed Rameshwar Oraon. In the night of Tuesday, he went

to Police Station where Daroga Ji wrote his statement and the same was read over to him and this witness and Jattu Oraon had put their thumb

impression. The Investigating Officer has also recovered two covers of Bhujali near the Tamarind tree near his house and the blood stained soil was

also seized. The seizure list was prepared, on which he has put his thumb impression. He has identified the accused in Court. During

crossexamination, he replied that he was returning with his cattle and while he was near to his house, he had seen accused persons coming out from

his house holding Gupti & Bhujali. After entering into the house he could see that Rameshwar was lying in pool of blood. This witness has fully

supported the prosecution case.Â

P.W.3 Smt. Dhundhli Orain is mother-in-law of the deceased Rameshwar Oraon who deposed in support of the prosecution case. She was informed

by Sukra Oraon that these accused persons were assaulting her son-in-law, Rameshwar Oraon whereupon she came to the house of Choutha Oraon

and saw the dead body. Choutha Oraon and Salo were also present there.Â

P.W.4 Mangru Oraon is the brother of Birsai Oraon whose husband was murdered, who saw that his sister was weeping there. He was informed by

Birsai that his brother-in-law was murdered and was asked to call her father, then he went to call his uncle at the field, who came along with him. He

has stated that he was not informed by anybody who had killed his brother-in-law.    P.W.5 Jattu Oraon has narrated the incident in detail. He

deposed that he was working in his field and was called by Mangru, stating that Sukhram Oraon, Ram Oraon and Birsai Oraon had murdered

Rameshwar Oraon and his dead body was lying in the house of Choutha. He went there and saw the dead body of Rameshwar where other

witnesses were also present. There he was informed by Sukhram and Salo that these accused persons had killed Rameshwar. He informed the

incident to the Chowkidar who also came at the place of occurrence and both went to Police station. He narrated the incident before the Daroga Ji

who has noted his statement upon which he has also put his thumb impression. He recognized the accused persons present in the court.Â

 P.W.6 Gede Oraon is a witness of seizure list by which the blood stained soil from the house of Choutha Oraon was seized upon which he had put

his thumb impression.Â

 P.W.7 Dr. Hemant Kumar, Civil Assistant Surgeon, Sadar Hospital, Gumla had conducted the post-mortem upon the dead body of Rameshwar

Oraon aged about 25 years and found the following injuries:-

I. Incised wound on the left parietal region of the head       6†X 1†X 3†with fracture of underlying bone,    brain and

meninges also cut, blood clot present. II. Incised wound over left fronto parietal region of the   head 1 ½â€​ X 1/2"" X scalp deep.

III. Incised wound on left side of the face lateral to left  eye 1 ½â€​ X 1/2"" X 1/2â€​.

IV. Incised wound right post auricular region of  the head 1â€​ X 1/2â€​ X scalp deep.

V. Incised wound at parieto occipital region of the head     1â€​ X ½â€​ X scalp deep.

VI. Incised wound on the right shoulder region  6â€​X 1â€​X 3â€​ with fracture for scapula bone.

VII. Incised wound at right arm 1â€​ X 1/2â€​ X 1/2"".   Â

 In his opinion, injury nos.2, 3, 4, 5 and 7 were simple in nature but injuries nos.1 and 6 were grievous in nature. Injury no.1 was sufficient to cause

death in ordinary course of nature. The cause of death was shock and hemorrhage. He proved post-mortem report as Ext.1. During cross-

examination, he stated that injury no.1 may be caused by Bhujali. The size of blade of Bhujail by which this injury was caused may be between 4-5

inches. He further stated that nothing was found in small intestine, but 100 ml. of watery fluid found in stomach which may be formed just after taking

meal.Â

P.W.8 Smt. Salo Orain is eye witness of the incident. She narrated prosecution version. She was cleaning rice outside Dhaba of her house then she

saw Sukhram Oraon, Ram Oraon and Birsai Oraon assaulting Rameshwar. Rameshwar entered into the Dhaba and accused persons had assaulted

with Bhujali and Gupti as a result he fell down near the cooking place. Thereafter, witnesses reached there. She recognized accused persons present

in the court. This witness properly replied during cross-examination.

P.W.9 Prahlad Sahu, Advocate Clerk proved the formal F.I.R. as Ext.2 and P.W.10 Baisaku Indwar also an Advocate Clerk proved the case diary as

Ext.3. Arjun Gope, who has been wrongly numbered as P.W.5 also an Advocate Clerk proved the inquest report as Ext.5 and P.W.11 Puneshwar

Prasad, Advocate Clerk has proved charge-sheet as Ext.4.Â

P.W.12 Bhukhan Lohra, Chowkidar No.3/1 Ghaghra Police Station stated that occurrence is about eight years ago. On Tuesday when he was in his

residence, Jattu and Choutha came to his house and stated that his son-in-law has been killed in his house. He was not informed as to who had killed

the deceased. He went there and after seeing the dead body he gave information to the Police Station.Â

Counsel for the appellants submitted that the motive has not been proved in this case and Investigating Officer has not been examined. The

informant is not an eye witness and there is no consistency in the evidence of P.W.1 Sukra Oraon and P.W.8 Smt. Salo Orain. He further submitted

that as per averment after taking meal the deceased started his return journey but in the post-mortem undigested food were not found which creates

doubt on the prosecution story. He further submitted that P.W.8 Smt. Salo Orain had not stated about the manner of occurrence and who was using

which weapon, is not specific in her statement. She replied in her cross-examination that she is first time deposing before the court.

Therefore, her evidence is not reliable. Lastly, he submitted that non-examination of Investigating Officer has caused serious prejudice. He relied on a

decision of Maga Ram Rajak and Others Versus The State of Bihar reported in 1985 E Cr. C 445 (Pat.) where it has been held that when

statement of a witness was not recorded under Section 161 Cr.P.C. and that witness is examined in Court by the prosecution, testimony of that

witness will be of no consequence. Court therefore, will exclude the evidence of that witness.Â

Learned A.P.P. submitted that P.W.2 Choutha Oraon, owner of the house where the dead body of the deceased was found has also supported the

case. His evidence was also corroborated by the P.W.8 Smt. Salo Orain. He also submitted that statement of P.W.8 Smt. Salo Orain was recorded

by the Investigating Officer which find place at Para 14 of the case diary. The prosecution has been able to prove the case through P.W.1 Sukra

Oraon, P.W.2 Choutha Oraon, P.W.3 Smt. Dhundhli Orain, P.W.5 Jattu Oraon and P.W.8 Smt. Salo Orain. The statement of these witnesses have

proved the case in proper manner.Â

Considering the above pleadings of the parties and on perusal of the Lower Court Records and the materials brought before this Court, it appears

that the evidence of eye witnesses supported with other prosecution witnesses, the prosecution has able to prove the case. The non-examination of

Investigating Officer does not affect much in this case as the prosecution has able to prove the place of occurrence firstly when the deceased was

assaulted while he was returning home and thereafter he was chased by the convicts when he entered into the Dhaba of P.W.2 Choutha Oraon. The

manner of assault was also amply proved by the eye witnesses and other supporting witnesses. There was recovery of cover of Bhujali from the Imli

tree near his house. Submission of the Counsel for the appellant that the statement of P.W.8 Smt. Salo Orain is of no consequence as held in Maga

Ram Rajak and Others Versus The State of Bihar (supra) as she has stated in her cross-examination that for the first time she deposed before the

Court, is explained by the learned A.P.P. that statement of Smt. Salo Orain (P.W.8) was recorded by the Investigating Officer which is mentioned in

the case diary. The Investigating Officer has not been examined in this case and if the evidence of P.W.8 Smt. Salo Orain is also excluded, even then

the prosecution version is well established by remaining witnesses. Therefore, the prosecution has able to prove the case. The Doctor found the

injuries sufficient to cause death in ordinary course. The Doctor also found watery liquid in the stomach which was formed after taking meal. The

time of occurrence is after 4 pm as deposed by P.W.1 Sukra Oraon. Therefore, the case cannot be doubted on this point. These convicts not only

assaulted but also chased and continued the assault which resulted in the killing of deceased Rameshwar Oraon. The evidences of prosecution

witnesses are such which corroborates the entire episode and the manner of occurrence and the sharp cutting weapon used while assaults were

made. Therefore, in such circumstances, we are of the considered view that it needs no interference. Â

In the result, this appeal is dismissed. The judgment of conviction dated 14.05.1996 and order of sentence dated 15.05.1996 passed by learned 1st

Additional Sessions Judge, Gumla in Sessions Trial No.9 of 1998, are hereby, affirmed.Â

Since the appellants are on bail, their bail are cancelled forthwith. They are directed to serve remaining part of the sentence.

 9.  The court below is also directed to take appropriate steps so that appellants will serve the sentences imposed upon them.Â

10. Let the Lower Court Record be returned to the court concerned immediately.Â

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