Judgment:
1 Cr. Appeal (D.B.) No. 278 of 2007 Against the judgment of conviction dated 08.02.2007 and order of sentence dated 13.02.2007 passed by Sri Ashok Kumar Chand, learned Sessions Judge, Gumla in Sessions Trial No. 175/2006. 1. Bisram Oraon 2. Ravi Oraon ... … Appellants Versus The State of Jharkhand ... … Respondent For the Appellant : Mr. Baleshwar Yadav, Advocate For the State : Mr. Ravi Prakash, A.P.P. P R E S E N T HON’BLE MR. JUSTICE ANANT BIJAY SINGH HON’BLE MR. JUSTICE B.B. MANGALMURTI Per Anant Bijay Singh, J This appeal has been heard by this Division Bench specially constituted on 09.12.2017 (Saturday). 2. This appeal was filed on 16.03.2007 and it was admitted on 26.04.2007 and lower court records was called for. 3. Heard the learned counsel for the appellants and learned A.P.P.
4. This appeal has been preferred by the appellants, namely, Bisram Oraon and Ravi Oraon, being aggrieved and dissatisfied by the judgment of conviction dated 08.02.2007 and order of sentence dated 13.02.2007 passed in Sessions Trial No. 175 of 2006 by Sri Ashok Kumar Chand, learned Sessions Judge, Gumla whereby and whereunder, the learned Sessions Judge held the appellants guilty for the charge under Sections 302/34 of the Indian Penal Code and Section 376(g) of the Indian Penal Code and further on 13.02.2007 has sentenced the appellants to undergo R.I for ten years and fine to pay Rs. 5,000/ each for offence under Section 376(g) of the I.P.C and both 2 the appellants are also sentenced to undergo R.I for life and to pay a fine of Rs. 5,000/ each for the offence under Sections 302/34 of the I.P.C both the sentences are awarded shall run concurrently.
5. The case of prosecution as unfolded in the fardbeyan of Sukhna Asur(P.W. 6), alleging therein that on 24.02.2006 the wife of the informant namely Chhutni Devi aged about 35 years had gone to Serengdag market but she did not return back in the night and so the informant in the following morning began searching his wife and proceeded to village Serengdag. 6. It is also alleged that on the way near Harpat Simana, the informant found the dead body of his wife in a ditch. It is also alleged that therewere sign of nails on the neck of the deceased. 7. Thereafter it is said that the informant returned back to his village and any how the people assembled there and brought the dead body in the evening at the house of the informant. 8. The concerned Chaukidar was informed regarding the occurrence and incident on 26.02.2006 and in the mean while A.S.I, P.W.8 was going Bishunpur Side and recorded the fardbeyan of the informant. 9. On the basis of aforesaid allegations, Ghaghra P.S.Case No. 17 of 2006 dated 26.02.2006 has been instituted initially under Section 302 of the I.P.C subsequently Section 376(g) has been added under order dated 09.06.2006 10. In support of the case, the prosecution has examined as many as ten witnesses, P.W.1, Etwa Asur is hear say witness. P.W.2, Katiyo Devi, who is the sister of the deceased is an eye witness of the case and her statement under Section 164 Cr.P.C was also recorded by 3 the S.D.J.M, Gumla, which is Ext.4. P.W.3, Budhwa Asur. P.W.4, Mangala Asur, who are put in thumb impression of inquest report. P.W. 5, Fagu Asur is heresy witness. P.W.6, Sukhna Asur, who is informant and husband of the deceased and also thumb impression of fardbeyan. P.W.7, Bipta Asur who had declared hostile. P.W.8, Surendra Kumar Singh, who is I.O of this case. P.W.9, Dr. A.D.N. Prasad and P.W.10, Sri Krishna Kumar, the then S.D.J.M., Gumla who has recorded the statement of Katiyo Devi, P.W.2 under Section 164 Cr.P.C.
11. Learned counsel for the defence during course of argument while assailing the judgment submitted that P.W.6Sukhna Asur, who is informant of this case and in his fardbeyan Ext.2 and also subsequently statement under Section 161 Cr.P.C was recorded and he had categorically stated that his wife had gone alone from his house of village market and has not stated his wife along with P.W.2, Katiyo Devi. But in evidence in the court was on 06.01.2007 first time stated these fact and has improved the version and stated on the date of occurrence his wife has gone to the local Market with P.W.2, Katiyo Devi while she was returning appellants, Bisram Oraon and Ravi Oraon caught hold her the deceased and took and committed murder and name of appellants for the first time reliance can be placed on his evidence. 12. It is further submitted that while referring to the evidence of P.W.2, Katiyo Devi which was recorded on 28.11.2006 who has admitted that the deceased along with her gone to the village market while they were returning the appellants throttled her and thereafter she was threatened of dire consequences when P.W.2 returned to the village and disclosed the fact. She admitted in her statement recorded 4 under Section 164 Cr.P.C was recorded before the S.D.J.M. and in her crossexamination in which she has stated that as such she returned back to her home and disclosed about the occurrence to everyone and in the next following morning the dead body of her sister was found.
13. She stated that the dead body of her sister was found at the place where the occurrence had taken place. 14. She stated that police had not recorded her statements and for the first time she is giving her evidence before the Court. 15. It is further submitted that while referring to the evidence of P.W.2 submitted that in Chief, she has stated that she disclosed the name of the appellants when she returning to the house after the occurrence but in her crossexamination has given contradictory version and no reliance can be placed in her evidence. 16. It is also submitted that I.O has recorded the statement under Section 161 Cr.P.C of P.W.2, Katiyo Devi on 27.02.2006 in which she has named these two appellants but in her statement recorded under Section 164 Cr.P.C later on 17.03.2006 for which non plausible explanation of P.W.8. It is also submitted that reference to Section 164(5) Cr.P.C, which reads as hereunder: (5) Any statement (other than a confession) made under SubSection (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. It is also submitted that Ext.4 which is statement of P.W.2 Katiyo Devi recorded under Section 164 Cr.P.C the applies of the aforesaid provision and no certificate has been given by S.D.J.M, rather certificate has been given by Bench Clerk which is serious lacuna in 5 recording the statement under Section 164 Cr.P.C of P.W.2 and no reliance can be place to record her statement. 17. It is further submitted that from the evidence of P.W.8, who is I.O of this case, has prepared the inquest report of the deceased which is marked as Ext.2 which shows that dead body was found at Salgi More on 26.02.2006 at 9:30 but in his evidence in para4 he has given description of place of occurrence according to which place of occurrence one and half kilometer south Harpat Simana on the village road of Pirha pathar where the ditch situated the dead body was found in the ditch. 18. He has also proved the formal F.I.R i.e. Ghaghra P.S. Case No. 17 of 2006, which is marked as Ext.3. Learned counsel for the appellants has also submitted that place of occurrence has not been proved by the Investigating Officer and in para 12 he has stated that he has not sent the Petticoat, blouse and sari which has been seized mentioned in the inquest of F.S.L test. so the prosecution has failed to prove the case beyond all reasonable doubt, hence appellants deserve acquittal from all the charges.
19. On the other hand, learned A.P.P while referring to the evidence of P.W.2 she is an eye witness and her statement was recorded under Section 164 Cr.P.C which is as Ext.4 and also to refer the evidence of evidence of P.W.9doctor has conducted postmortem examination of the dead body of the deceased in which following injuries were found: i. Bruise in from of the neck on the mid line, 1½''x1'' with haemotoma in front and on both side of the neck. Subcuterious haemorragic blood present under neath the 6 skin of the neck. The 4th and 5th trachial rings were broken. ii. Multiple abrasions behind the right elbow, posterior thorasic wall and on medial aspect of the right knee of variable shapes and sizes . iii. Laceration of the prinium with part of the vegina expelled out due to putrifaction. Saminal fluids like liquid present in side the vegina but no sperm seen under kneath the Microscope.” Postmortem examination report marked as Ext.5. 20. Learned A.P.P has also submitted that this witness has proved the cause of death of the deceased and also submitted that prosecution has proved this case beyond all reasonable doubt and appellants do not deserve the acquitted from all the charges and appeal is fit to be dismissed.
21. After hearing the parties and in view of the discussions made above and evidences both oral and documentary, it appears that P.W.2 is the star witness of the case, although in her evidence in the court in Chief, she has named these two appellants for taking away the deceased and further returning to her house and disclosed all these facts before her family members, but in her crossexamination she reiterated that she has not disclosed anything for two days to any person, so no reliance can be placed upon her evidence. 22. Further, P.W.10, S.D.J.M., Gumla who has recorded the statement under Section 164 Cr.P.C of P.W.2 and recorded her statement under Section 164 Cr.P.C which has been marked as Ext.4. 23. The learned counsel for the appellants draw the attention 7 of provision of Section 164(5) Cr.P.C and submitted that P.W.10 has not given any certificate, rather Bench clerk has given certificate which creates doubts and veracity of the manner of statement of P.W.2. 24. Further the I.O has not proved the place of occurrence as stated in the evidence of P.W.6 that he brought the dead body from the ditch. But the inquest report reveals that it was prepared at Salagai More. Further prosecution has not brought any evidence to establish or to connect the appellants that they have committed rape and murdered of the deceased. 25. Having heard the learned counsel for the parties, materials available on record and the evidences both oral and documentary, we are of the considered view that the prosecution has failed to prove its case beyond all reasonable doubt against the appellants. So, benefit of doubt is given to the appellants. 26. In the result, this appeal is allowed with no costs and the judgment of conviction dated 08.02.2007 and the order of sentence dated 13.02.2007 passed by the trial court against these appellants is hereby set aside and the appellants are acquitted of all the charges. The appellants, Bisram Oraon and Ravi Oraon, who are in custody, are directed to be released forthwith, if not wanted in connection with any other case. (Anant Bijay Singh, J.) (B.B. Mangalmurti, J.) High Court of Jharkhand, Ranchi Dated 09/12/2017 Satayendra/NAFR