Judgment:
Cr. Appeal (D.B.) No.1418 of 2006 Against the judgment of conviction and order of sentence dated 5th August, 2006 passed by the Addl. Judicial Commissioner XVIth, Ranchi in connection with S.T.No. 309 of 2004 --------- Suresh Mahto.… … … ...Appellant -Versus- The State of Jharkhand. … … … ...Respondent --------- For the Appellant: Mr. Laljee Sahay, Advocate. For the State: A.P.P. --------- PRESENT THE HONE'BLE MR. JUSTICE D.N.UPADHYAY THE HON'BLE MR. JUSTICE RATNAKER BHENGRA --------- By Court This Cr. Appeal has been preferred against the judgment of conviction and order of sentence dated 5th August, 2006 passed by the Addl. Judicial Commissioner, XVIth, Ranchi in connection with Sessions Trial No. 309 of 2004, corresponding to G.R.No.891/2004 (Angara P.S. Case No. 25/2004) whereby the appellant has been held guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo R.I. for life and to pay fine of Rs. 10,000/- and in default of making payment of fine, he will have to suffer further R.I. for one year.
2. The prosecution case as it appears from the written report lodged by Raju Oraon (father of the deceased) in brief is that on 26.03.2004 at about 4 p.m. while Suresh Oraon was sitting near his house, appellant suddenly appeared with an axe in his hand and inflicted repeated blow causing head injury to Suresh Oraon. On 'Halla' the informant and other witnesses ran to the place and saw the appellant fleeing from the place having blood stained 'Tangi' in his hand. Suresh Oraon was removed to RIMS, Ranchi for his treatment but could not survive. On 27.03.2004 a written report was lodged and Ranchi Sadar Angara P.S. Case No. 25/2004 dated 27.03.2004 under Sections 307 and 324 of the Indian Penal Code was registered. After death of Suresh Oraon, Section 302 of the Indian Penal Code vide order dated 31.03.2004 was added. The Investigating Officer after due investigation submitted charge-sheet against the appellant under Section 302 of the Indian Penal Code and accordingly cognizance was taken and the case of the appellant was committed to the court of sessions and registered as S.T.No.309/2004. Charge under Section 302 of the Indian Penal Code against sole appellant-Suresh Mahto was framed to which he pleaded not guilty and claimed to be tried.
3. The prosecution in order to substantiate the charges, examined altogether 07 witnesses including the informant, Doctor and the Investigating Officer. The learned Additional Sessions Judge at the conclusion of trial, 2. placing reliance on the evidence and documents available on record held the appellant guilty under Section 302 of the Indian Penal Code and sentenced him as indicated above.
4. Learned Counsel for the appellant has challenged the findings of the Trial Court on the ground that blood stained axe, blood stained earth, blood stained leaf and stem of mustard plant were seized but those articles were neither sent for its chemical examination to F.S.L. nor produced in Court. The Investigating Officer had not taken step to record the statement of independent witness though availability of said witness was there. The place of occurrence as described by the witnesses does not appear to be consistent. The informant has said that the occurrence took place when the deceased was sitting besides his house whereas so-called eye-witnesses had said that they were sitting in front of the house of Jagnu. There is delay in recording the statement of eye-witnesses and that creates doubt on the veracity of those eye-witnesses. It could be said that they had been projected by the prosecution after thought. The informant (P.W.
5) and Koyali Devi (P.W.
3) are not the eye-witness and the statement which they had given in the Court appears to be inconsistent. The conduct of P.W. 1 and P.W. 2 who have projected themselves as eye-witness does not appear to be natural because they did not inform the police. Presence of these two witnesses does not find mentioned in the written report. The investigation done by the I.O. is perfunctory which could not be relied upon and, therefore, impugned judgment is liable to be set aside.
5. Learned A.P.P. has opposed the argument and submitted that case of the prosecution is fully intact. There are two witnesses i.e. Somra Oraon and Mangra Oraon and they have fully supported the prosecution case and given the actual account of the incident. At the time of assault deceased raised alarm which attracted his parent and nearby people and they immediately rushed to the place of occurrence. Koyali Devi (P.W.3) and Raju Oraon (P.W.
5) are the parent of the deceased and they had reached to the place of occurrence after hearing 'Halla'. Hearing the alarm raised by their son-Suresh Oraon, they had seen the appellant fleeing from the place having blood stained axe in his hand. The arrival of these two witnesses at the place of occurrence appears to be quite natural. There is no merit in this appeal and the same is liable to be dismissed.
6. We have examined the case record, impugned judgment and perused the deposition of witnesses and the documents which have been proved. Somra Oraon (P.W.
1) and Mangra Oraon (P.W.
2) are the two eye- witnesses and they have said that on 26.03.2004 at about 4 p.m. they along with Suresh Oraon (deceased) were sitting besides the house of Jagnu. In the meantime, appellant (Suresh Mahto) suddenly appeared with an axe in his hand and inflicted 'Tangi' blow on the head of Suresh Oraon. Seeing the assault, these 3. two witnesses left the place of occurrence due to fear but later P.W. 1 had gone to RIMS where treatment of Suresh Oraon was going on. These two eye- witnesses have given precise description of the occurrence which had occurred within no time. Both the witnesses without any exaggeration had given the actual account of occurrence. These two witnesses have been cross-examined by the defence counsel in detail but the cross-examination so done failed to damage the veracity of these witnesses. We do not find that defence Counsel has succeeded to bring any cogent material on record to disbelieve the presence of these two eye-witnesses at the relevant point of time at the place of occurrence. The informant (P.W.5) and Koyali Devi (P.W.3) happen to be parent of the deceased. The place of occurrence is not far away from the house of these two witnesses. After hearing alarm raised by their son, they ran to the place of occurrence and found Suresh Oraon having injury on his head, blood was oozing out from the wound and the appellant with an axe in his hand was seen fleeing from the place. We do agree with the submission of learned A.P.P. that arrival of these two witnesses after hearing alarm raised by their son was quite natural and nothing has been elicited from the mouth of these two witnesses to disbelieve their presence or discard their evidence given during trial. It is not necessary that in the First Information Report names of all the witnesses would appear because concentration of the witnesses is expected to be remained towards the occurrence. It is always not necessary that each and every witness would notice the presence of each other. It depends on the place and position of the witnesses from where they had been watching the incident. Particularly in a case where the son has sustained grievous injury and his life is at stake, the parent who arrived at the place of occurrence would concentrate to rescue the injured instead of taking notice of presence of other witnesses and that is what happened in the case at hand. It would never be fatal if the informant has not named all the witnesses in the fardbayan. On this score alone, we are not inclined to disbelieve the contention made in the written report which is otherwise acceptable. Therefore, the statement of P.W. 3 and P.W. 5 appears reliable and convincing. So far written report is concerned that has well been proved by the Scribe Lalu Oraon (P.W.6). He has clearly stated before the Court as to what was narrated to him by the informant, was reduced to writing. The informant has also accepted the contention made in the written report and he has deposed accordingly.
7. The manner of assault as described by P.W. 1 and P.W. 2 find full corroboration from the postmortem report. Dr. Shambhu Saran (P.W.4) had conducted autopsy on the dead body of Suresh Oraon and he had found the injuries caused by heavy sharp cutting weapon. Blow was given by means of 'Tangi' with so much of force that brain matter were protuded from the wound.
4. The evidence of P.W. 4 is corroborative to the ocular evidence. The Investigating Officer (P.W.7) has supported the investigation done by him. He has said that blood stained axe was recovered on the basis of confession made by the appellant. Learned Counsel has vehemently raised a point that blood stained axe, blood stained earth, blood stained leaf and stem of mustard plant were not sent to F.S.L. for its examination and, therefore, it could not be said that those articles were having human blood. He has also argued that those articles were not produced in Court to support the fact that it were seized in course of investigation. We do not find such argument tenable in view of the fact that eye- witnesses present at the place of occurrence have described the incident in their deposition in Court. In a case where eye-witnesses are available and they had described the occurrence non-sending of weapon and other articles stained with blood to F.S.L. for ascertaining human blood on the article shall not be sufficient to brush aside the testimony of eye-witnesses if it is reliable, convincing and inspiring confidence. In view of the evidence available on record and the discussions made above, we do not find any merit in this appeal and the same stands dismissed. The judgment of conviction and order of sentence dated 5th August, 2006 passed by the Addl. Judicial Commissioner XVIth, Ranchi in connection with S.T.No. 309 of 2004 is hereby upheld. [D.N.Upadhyay,J.] [Ratnaker Bhengra,J.] Jharkhand High Court, Ranchi Dated the 21.01.2016 P.K.S./N.A.F.R.