Somnath Oraon vs Unknown
2021 Latest Caselaw 2974 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                    Cr. Appeal (DB) No. 974 of 2019
           1.Somnath Oraon
           2.Etwa Pahan @ Munda @ Etwa Munda
           3.Biru Oraon
           4.Ram Oraon
           5.Michel Xaxa
           6.Munit Xaxa
           7.Miraj Xaxa                                              ...             Appellants
                                     Versus
           The State of Jharkhand

           CORAM:           Hon'ble Mr. Justice Aparesh Kumar Singh
                            Hon'ble Mrs. Justice Anubha Rawat Choudhary

                            Through Video Conferencing

           For the Appellant              : Mr. B.M. Tripathy, Sr. Advocate
                                           Mr. Naveen Kumar Jaiswal, Advocate
           For the State                  :Ms. Priya Shrestha, A.P.P.
           For the Informant              : Mr. Anil Kumar Sinha, Advocate
                                                 ---

03/18.08.2021 Heard learned Senior Counsel for the appellants, Mr. B.M.Tripathy, assisted by learned counsel, Mr. Naveen Kumar Jaiswal, Ms. Priya Shrestha, learned Additional Public Prosecutor for the State and Mr. Anil Kumar Sinha, learned counsel for the informant on the prayer for suspension of sentence made on behalf of appellant no. 1, Somnath Oraon, appellant no. 2, Etwa Pahan @ Munda @ Etwa Munda, appellant no.3, Biru Oraon through I.A No. 3310 of 2021, appellant no.4, Ram Oraon through I.A. No. 3511 of 2021 and appellant no. 5, Michel Xaxa, appellant no. 6, Munit Xaxa and appellant no. 7, Miraj Xaxa through I.A. No. 3706 of 2021 respectively.

2. These seven appellants along with 10 others namely (1) Paras Sahu (2) Desi Munna Sahu (3) Diwakar Sahu(4) Praveen Minz (5) Jeevan Minz (6) Rampujan Sahu (7) Dhuri Oraon (8) Aman Kujur (9) Irkan Tirky (10) Novel Tirkey have been convicted for the offence punishable under Sections 148, 342, 307, 436, 458 and 302 read with Section 149 of the I.P.C. and Section 3 of the Prevention of Witchcraft Act, by the impugned judgment of conviction dated 02.08.2019 passed in Sessions Trial No.101/2016 by the court of learned Additional Sessions Judge-I, Lohardaga and all the convicts have been sentenced to undergo R.I. for three years under Section 148 of I.P.C, R.I. for one year under Section 342 of I.P.C, R.I. for 10 years under

Section 307 of I.P.C with a fine of Rs.10,000/- each, R.I. for 10 years with a fine of Rs.10,000/- each under Section 436 of I.P.C, R.I. for 10 years under Section 458 of I.P.C. with a fine of Rs.10,000/- and also sentenced to undergo life imprisonment with a fine of Rs. 20,000/- each under Section 302 of the I.P.C. The convicts have also been sentenced to undergo R.I. for three months under Section 3 of the Prevention of Witchcraft Act, vide the impugned order of sentence dated 08.08.2019.

3. However, learned senior counsel for the appellant does not press the prayer for suspension of sentence of appellant no. 1, Somnath Oraon and appellant no. 2, Etwa Pahan @ Munda @ Etwa Munda made through I.A. No. 3310 of 2021 and appellant no. 4, Ram Oraon through I.A. No. 3511 of 2021, at this stage.

Learned A.P.P for the State does not oppose the prayer.

4. Learned Senior Counsel for the appellants submits that the instant appeal arises out of the judgment passed in Sessions Trial No. 101 of 2016 arising out of Kairo P.S. Case No. 09 of 2016 out of which Sessions Trial No. 144 of 2016 also arose in respect of five other accused persons, who stand convicted by a separate judgment dated 2nd August, 2019 and order of sentence dated 8th August, 2019. He submits that two convicts, Sandeep Oraon and Raju @ Raj Kumar Oraon in Sessions Trial No. 144 of 2016 from which Cr. Appeal (D.B) No. 929 of 2019 arose, have been granted the privilege of suspension of sentence on the specific ground that the injured witness, Laldeo Bhagat (P.W.4) in the said Sessions Trial, who is P.W.7 in the present Sessions Trial No. 101 of 2016, did not name those appellants in his statement made under Section 164 Cr.P.C (Ext.-2) recorded on 26th April, 2016 i.e., eight days after the incidence, but in his deposition at paragraph-14, he tried to improve his statement by naming those two appellants. However, learned Judicial Magistrate (P.W. 8) in Sessions Trial No. 144 of 2016, who is P.W.9 in the instant Sessions Trial, before whom the statement under Section 164 Cr.P.C of P.W. 4 was recorded, had in his deposition clearly stated that the injured witness, Laldeo Bhagat has not named those appellants while recording his statement under Section 164 Cr.P.C. It is submitted that this Court also took into account the evidence of the informant (P.W.9) therein / P.W.10 herein, Rajesh Bhagat, who though had named those appellants in the F.I.R and in his deposition, but in his cross-examination at Para-62 he had

clearly stated that the name of the accused persons were told to him by the police. He submits that the same set of prosecution witnesses though with different numbers in some instances, have been adduced in the instant Sessions Trial No. 101 of 2016. The same statement of injured witness (P.W.7) Laldeo Bhagat has been brought on record as Ext.-2. It is submitted that the injured witness has not named these appellants except appellant, Etwa Pahan @ Munda @ Etwa Munda in his statement under Section 164 Cr.P.C,. By referring to the statement of P.W.9, Judicial Magistrate at para-14 in the instant Sessions Trial, it is pointed out that the learned Judicial Magistrate has clearly stated that the injured witness, Laldeo Bhagat had not named these appellants except appellant no. 2, Etwa Pahan while recording his statement under Section 164 Cr.P.C. It is submitted that the appellants may therefore be enlarged on bail as the evidence of the Informant (P.W.10) is not reliable as he has stated in para-62 of his deposition in the instant trial that name of the accused persons were told to him by the police. It is further submitted that no other prosecution witnesses are reliable to substantiate the charge against the appellants. The entire prosecution story is in the realm of doubts and conjectures and omnibus allegations have been made against several persons in a crowd of about 400 to 500 persons. Therefore, the findings recorded by the learned trial court are suffering from serious error in the appreciation of evidence. When conviction has been recorded with the aid of Section 149 of the I.P.C, corroboration by more than 2-3 witnesses is a rule, otherwise chances of false implication are more likely. Appellant no. 3, Biru Oraon (I.A. No. 3310 of 2021) is in custody since 18th April, 2016. Appellant no. 5, Michel Xaxa is in jail custody since 18.04.2016 and appellant no. 6, Munit Xaxa and appellant no. 7, Miraj Xaxa are in jail custody since 05. 05. 2016 (I.A. No. 3706). Therefore, they may be enlarged on bail by suspending their sentence during pendency of appeal.

5. Learned Additional Public Prosecutor, Mrs. Vandana Bharti and learned counsel for the informant, Mr. Anil Kumar Sinha have strongly opposed the prayer. It is submitted that the informant (P.W.10), is an eye witness to the occurrence. He was out of house along with his wife and infant child when a crowd of about 400-500 persons surrounded his house where other family members including the deceased were present and the house was put on fire. He hid himself and saw the entire incidence in the flame of

burning light and bulb. Laldeo Bhagat (P.W.7), who had sustained burn injury, in his deposition, clearly stated about the presence of appellants at the time of burning of the house. The Doctor (P.W.6), who conducted the post- mortem on all the three deceased and adduced the post-mortem report as Exts.-1, 1/1 and 1/2 has corroborated the testimony of the eye witnesses and opined that the death occurred due to severe burn injury. It is further submitted that the police also had instituted Kairo P.S. Case No. 10/2016 for the same incidence as unlawful assembly of around 400-500 persons had resisted the police in discharge of the official duties while saving the victim during the same incidence. The date, time and place of occurrence is not in dispute. Moreover, evidence of eye witnesses including the injury report of the injured witness (P.W.7) adduced by another doctor (P.W.8) and statement of nephew of the informant (P.W.3) corroborates the involvement of these appellants and other convicts in the offence. Therefore, appellants may not be enlarged on bail.

6. Learned counsel for the informant has also stated that another convict, Irfan Tirkey in Cr. Appeal (D.B) No. 919 of 2019 has been denied the privilege of suspension of sentence.

Learned senior counsel for the appellant in reply to this submission states that the name of the appellant, Irfan Tirkey occurs in the statements made by the injured witness, Laldeo Bhagat (P.W.7) under Section 164 Cr.P.C as also at Para-14 during trial. Therefore, he stands on a different footing to that of present appellants. It is submitted that all the common accused persons in Kairo P.S Case No. 10 of 2016 have been acquitted by learned trial court.

7. We have considered the submission of learned counsel for the parties and taken note of the relevant materials relied upon by them from the Lower Court Records. It appears from the statement of the Informant (P.W.10) that he hid himself when the occurrence took place by unlawful assembly of 400-500 persons. The injured witness (P.W.7) herein has in his deposition at para-14 named the appellant nos. 3, Biru Oraon, 5, Michel Xaxa, 6, Munit Xaxa and 7, Miraj Xaxa along with several other accused persons though in his statement made under Section 164 Cr.P.C (Ext.2) on 26 th April, 2016, i.e, 8 days after the incidence, he did not specifically name these appellants. Moreover, P.W.9 learned Judicial Magistrate before whom the

statement of P.W.7 was recorded under Section 164 Cr.P.C, has in his deposition at para-14 stated that the appellant nos. 3,5,& 6 were not named by P.W.7 and no statement was made regarding appellant no.7 either way. Appellant nos. 3 and 5 have remained in custody for 5 years and 4 months and appellant nos. 6 & 7 have remained in custody for 5 years and 3 months by now.

8. Having regard to the totality of the facts and circumstances noted above, we are inclined to grant bail to the appellant nos. 3, 5, 6 and 7 by suspending their sentence during pendency of this appeal. Accordingly, appellant no. 3, Biru Oraon, appellant no. 5, Michel Xaxa, appellant no.6, Munit Xaxa and appellant no. 7, Miraj Xaxa shall be released on bail, during the pendency of this appeal, on furnishing bail bonds of Rs. 10,000/- (Rupees Ten Thousand) each with two sureties of the like amount each, to the satisfaction of learned Additional Sessions Judge-I Lohardaga, in connection with Sessions Trial No. 101/2016 with the condition that appellants and their bailors shall not change their address or mobile number without permission of the learned Trial Court.

Consequently, I.A. No. 3310 of 2021 stands partly allowed. I.A. No. 3706 of 2021 stands allowed.

However, in view of the prayer made by learned senior counsel for the appellants at the outset, I.A. No. 3310/2021 as respects the appellant no. 1 Somnath Oraon and appellant no. 2 Etwa Pahan @ Munda @ Etwa Munda and I.A. No. 3511/2021 as respects the appellant no. 4 Ram Oraon, are dismissed as not pressed.

(Aparesh Kumar Singh, J)

(Anubha Rawat Choudhary, J) Jk/