Judgment:
Criminal Appeal (D.B) No.977 of 2004 ---- Against the judgment of conviction dated 17.2.2004 and the order of sentence dated 20.2.2004 passed by the Additional Sessions Judge, Lohardaga in S.T. No.80 of 2001. Mahabir Oraon…………………………………………………. Appellant VERSUS The State of Jharkhand…………………………………… Respondent For the Appellant:Ms. Suchitra Pandey, A.C For the State : Mr. Vijay Kumar Gupta, A.P.P P R E S E N T THE HON’BLE MR. JUSTICE R.R.PRASAD THE HON’BLE MR. JUSTICE R. N. VERMA By Court: The appellant Mahabir Oraon was put on trial on the accusation of committing murder of his wife Piyo Orain. The trial court having found the appellant guilty for the said charge convicted him for the offence punishable under Section 302 of the Indian Penal Code, vide judgment dated 17.2.2004 and sentenced him to undergo imprisonment for life, vide its order dated 20.2.2004. The case which the prosecution initially made out in the Fardbeyan (Ext.4) is that the deceased Piyo Orain had first married to this appellant. In course of time, Piyo Orain (deceased) went to brick-kiln for earning her livelihood. There she came in contact with one Ram Oraon with whom she developed relationship as a result of which she gave birth of one son and one daughter. Subsequently, when she came home, she again started living with this appellant, from whom she had two sons and one daughter. All the five children were living with the appellant. In spite of that relationship between them was not cordial as the deceased frequently used to go to brick-kiln for earning her livelihood which the appellant was not liking and therefore, there used to be altercation in between wife and husband. On 28.5.2000 at about 5 a.m. one Manglesh Oraon (P.W.4), son of the appellant came before the informant Prabhu Oraon (P.W.1), a Choukidar to whom it was informed that in the last night his father (the appellant) had killed his mother by inflicting tangi injury and has left home. On getting this information, when Prabhu Oraon (P.W.1) came to the place of occurrence, he did find the deceased lying dead and beside her a tangi smeared with blood was also lying. Thereupon Prabhu Oraon (P.W.1) informed to the Lohardaga Police Station. On getting such information, S.I, Ram Baleshwar Rai, Lohardaga Police Station, came and recorded the Fardbeyan (Ext.4) of Prabhu Oraon on 28.5.2000 at 9 a.m. wherein informant narrated about the incident as has been stated above. On that basis a case was lodged by drawing a formal FIR. The said Ram Baleshwar Rai (not examined) himself took up the investigation during which the Investigating Officer seized the Tangi smeared with blood under seizure list (Ext.5). The investigating Officer held inquest on the dead body of the deceased and prepared an inquest report (Ext.3). After holding inquest when the dead body was sent for post mortem examination, it was conducted by Dr.Rabindra Nath Pandey, Sadar Hospital, Lohardaga but he has not been examined. However, post mortem examination report has been proved under Ext.6 by Dr. Din Bandhu Sharma. Post mortem report reveals that following injuries were present on the person of the deceased. External Injury (i) lacerated wound about 4” x 2” x 3” on left side of neck extending from sternocledomstoid muscles of left side upto middle of neck about 3” above medial end of sterno clavicular joint. Internal Injury (i) cervical cavity: meanings intact and pale (ii) Neck – All the important blood vessels e.g. left Jugar veins and carotid artery were lacerated and torned. Left sternocledomstoid muscles also lacerated in relation to external injury no.1. (iii) Thorax – Both chambers of heart – empty, both lungs pale. (iv) Abdomen – Stomach contained semi digested food particles, liver, spleen, both kidneys all were pale, bladder – empty. According to doctor, death was caused due to haemorrhage and shock due to damage of vital blood vessels e.g. left Jugular veins and left carotid artery. Subsequently, the investigation was taken over by Abdul Jalil, (P.W.10), who recorded the statement of the witnesses and on completion of investigation submitted charge sheet, upon which cognizance of the offence was taken. In due course, when the case was committed to the court of sessions, the appellant was put on trial during the prosecution examined as many as 11 witnesses. Of them, P.Ws.1 and 3, are the same person informant Prabhu Ram who did testify almost in the same manner as he had made statement in his Fardbeyan. It would be significant to note that he was told by Manglesh Oraon (P.W.4), son of the deceased, that it was the appellant who has committed murder of his wife Piyo Orain but the said Manglesh Oraon (P.W.4) has been declared hostile when he did not support his earlier statement made before the police. That apart, P.W.5, Sulendra Oraon, brother of the deceased, P.W.6, Mangri Orain, mother of the deceased, P.W.7, Ghuro Orain, P.W.8, Suresh Oraon, son of the deceased and P.W.9, Laxman Oraon have turned hostile. Upon closure of the prosecution case when the appellant was questioned under Section 313 of the Code of Criminal Procedure about the incriminating material, he denied it, rather he in his statement stated that on the fateful day, he was not in the house. Thereupon the trial court placing its reliance upon the statements made by the witnesses under Section 161 of the Code of Criminal Procedure recorded the order of conviction and sentence which is under challenge. Mr.Suchitra Pandey, learned counsel appearing for the appellant submits that there has been not an iota of evidence regarding the appellant committed murder of his wife, still the trial court has recorded the order of conviction and sentence which is fit to be set aside. In this regard it was pointed out that most important witness Manglesh Oraon (P.W.4), son of the deceased, who had informed to the informant about the appellant committed murder of his wife has turned hostile. Not only that all other material witnesses have turned hostile. In that event, there was absolutely no evidence to the effect that it was the appellant, who committed murder of his wife, still the trial court recorded the order of conviction and sentence which, in the facts and circumstances stated above, is fit to be set aside. Heard learned counsel appearing for the State. Having learned counsel appearing for the parties and on perusal of the record we do subscribe the same view which has been expressed by learned counsel appearing for the appellant as there does not appear to be any evidence whatsoever to the effect that it was the appellant, who committed murder of his wife. Perhaps, the deceased was found killed in her house, it was presumed by the trial court that it could be only the appellant, who had committed murder of his wife but there has been absolutely no evidence that on the day of occurrence the appellant was in his house, rather he in his 313 statement has said that on the day of occurrence, he was away from the house. In such situation, the trial court committed grave illegality in recording the order of conviction and sentence which is hereby set aside. Consequently, the appellant is acquitted of the charges and is directed to be released forthwith, if not wanted in any other case. Thus, this appeal stands allowed. ( R.R. Prasad, J.) (R. N. Verma, J.) Jharkhand High Court, Ranchi Dated-the 1st February, 2016, NAFR/N.Dev