Jharkhand High Court
Sandeep Oraon vs The State Of Jharkhand on 28 June, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (DB) No. 929 of 2019
1. Sandeep Oraon
2. Bijay Yadav
3. Jhari @ Jhariya Yadav
4. Raju @ Raj Kumar Oraon --- --- Appellants
Versus
The State of Jharkhand --- --- Respondent
---
CORAM: Hon'ble Mr. Justice Aparesh Kumar Singh
Hon'ble Mrs. Justice Anubha Rawat Choudhary
Through: Video Conferencing
---
For the Appellant: M/s B.M. Tripathy, Sr.Advocate,
Naveen Kr. Jaiswal, Advocate
For the Respondent: Ms. Priya Shreshtha, A.P.P
For the Informant: Mr. Anil Kr. Sinha, Advocate
---
04 / 28.06.2021 Heard learned senior counsel for the appellant Mr. B.M. Tripathy,
assisted by learned counsel Mr. Naveen Kumar Jaiswal, learned A.P.P for the
State Ms. Priya Shreshtha and Mr. Anil Kumar Sinha, learned counsel for the
Informant on the prayer for suspension of sentence made on behalf of Appellant
No. 1 - Sandeep Oraon through I.A. No. 2172/2021.
2. These four appellants along with one other stand convicted for the
offences punishable under sections 148, 342/149, 307/149, 436/149, 458/149
and 302/149 of the Indian Penal Code and section 3 and 4 of the Prevention of
Witch (Daain) Practices Act, 1999 by the impugned judgment dated 02.08.2019
passed in Sessions Trial No. 144/2016 by the Court of learned Additional
Sessions Judge-I, Lohardaga and they have been sentenced to undergo R.I. for
three years under section 148 of Indian Penal Code; R.I for one year under
section 342 of Indian Penal Code; R.I for ten years with a fine of Rs. 10,000/-
under section 307 of the Indian Penal Code; R.I. for ten years with a fine of Rs.
10,000/- under section 458 of Indian Penal Code, imprisonment for life with a
fine of Rs. 20,000/- under section 302 of the Indian Penal Code and R.I for
three months under section 3 of the Prevention of Witch (Daain) Practices Act,
1999, by the impugned order of sentence dated 08.08.2019.
3. Learned senior counsel for the appellant submits that as per the
statement of the Informant (PW-9) made in the fardbeyan at 08.30 pm on
17.04.2016, he had gone out of the house after having meal while his
grandfather Govardhan Bhagat (deceased), elder mother Mado Bhagat
(deceased), sister-in-law Sukhmaniya Bhagat (deceased), his mother Cheriya
.2
Bhagat and elder brother Laldeo Bhagat were inside the house. At that point of
time, children, elders, youth, male and female around 400-500 in number armed
with lathi, farsa, tangi, garasha and sword surrounded the house of the
Informant and alleged that his grandfather Govardhan Bhagat indulges in
witchcraft practice by stealing children and sacrifices them. The crowd agitated
upon denial by the elder brother Laldeo Bhagat (PW-4) and his grandfather
Govardhan Bhagat, set the house on fire by sprinkling kerosene oil from all
sides. The Informant being scared, hid himself and was watching the incidence.
His grandfather, mother and sister-in-law who were hiding in one room were
mercilessly killed by burning due to such fire. After sometime, police came but
brickbats were thrown on the police and in self-defence, Sub Inspector of Police
fired five round from his service pistols, due to which crowd backtracked. Then
the police somehow could take out his wife Cheriya Bhagat and brother Laldeo
Bhagat and saved them from dying. The Informant named 25 persons including
the present convicts and the appellant herein. Thereafter, injured was taken for
treatment outside. It is submitted by the learned counsel for the appellant that
the Informant (PW-9) in his deposition at paragraph-62 in his cross-examination
has stated that the police had told him the name of the accused persons
including Sandeep Oraon (Appellant No. 1) who were arrested after 2-3 days.
As per the deposition of the Informant, he hid himself along with his wife and
infant child when 400-500 persons surrounded his house and were indulging in
brickbats and burning of the house. No overt act has been alleged against this
appellant. It is further submitted that the injured witness (PW-4) who was taken
for treatment at Devkamal Hospital at Ranchi has in his statement under section
164 of the Cr. P.C recorded on 26.04.2016 (Ext. 2) not named the present
appellant no. 1, though he had named about 30 such persons who allegedly had
indulged in rioting and putting the house on fire on the fateful night. PW-8-
Judicial Magistrate, 1st Class, Ranchi before whom the statement was recorded
under section 164 of the Cr. P.C has, in para-14 of his deposition, categorically
stated that PW-4 did not name the present appellant. However, PW-4 has tried
to improve the version during deposition by making statement at paragraph-14
that this appellant and several other named persons together had put his house
on fire. This witness has however also not alleged any overt act against this
appellant. On the other hand, as per his statement at para-3 of the deposition, he
has clearly stated that he had gone and hid himself in another room and asked
his mother, father and wife to go in another room. As per his statement at para-
.3
5, when his father, mother and wife were burning, he jumped over into another
room. After one hour of the incidence, police came and he was taken out. It is
further submitted that on the allegations of obstruction in discharge of official
duty, police had instituted Kairo P.S. Case No. 10/2016 for the same incidence
in which all the same accused persons were acquitted vide judgment dated
31.01.2019 passed in G.R. No. 224/2016. This fact has come at para-29 of the
impugned judgment. It is submitted that no other prosecution witnesses are
reliable to substantiate the charge against the appellant since PW-10, nephew of
the Informant (PW-9) admittedly was studying in Ranchi then, though he
claims to have reached the village in the evening. PW-5, another nephew of
PW-4 is also hearsay witness. In the aforesaid facts and circumstances when 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 400-500
person, the findings recorded by the learned Trial Court are suffering from
serious errors in the appreciation of evidence. In such circumstances, the
appellant who is in custody since the date of his surrender on 23.07.2016, may
be enlarged on bail by granting him the privilege of suspension of sentence.
4. Learned Additional Public Prosecutor and learned counsel for the
Informant have strongly opposed the prayer. It is submitted that the Informant
(PW-9) is an eyewitness to the occurrence. He was out of the house along with
his wife and infant child when crowd of about 400-500 persons surrounded his
house where his 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. PW-4 Laldeo Bhagat who had sustained burn
injury has, in his deposition, clearly stated about the presence of this appellant
at the time of burning of the house. The Doctor (PW-3) who conducted post-
mortem on all the three deceased and adduced the post-mortem report as
Exhibit-1, 1/1 and 1/2, has corroborated the testimony of the eyewitness that
death occurred due to severe burn injuries. It is submitted that the police also
had instituted Kairo P.S. Case No. 10/10216 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 victims during the same incidence. The date,
time and place of occurrence is not in dispute. Moreover, evidence of these
eyewitnesses including the injury report of PW-4 (Ext.-3) adduced by another
doctor (PW-6) and statement of PW-10, nephew of the Informant (PW-9)
corroborates the involvement of this appellant and other convicts in the
occurrence. Therefore, appellant who has been in custody for less than five
years by now, may not be enlarged on bail.
5. We have considered the submissions of the learned counsel for the
parties and taken into note the materials relied upon by them from the lower
court records. It appears from the statement of Informant (PW-9) that he had hid
himself when occurrence took place by unlawful assembly of 400-500 persons.
The injured witness (PW-4) has, in his deposition at para-14, named this
appellant along with several other accused persons, though in his statement
made under section 164 of the Cr. P.C on 26.04.2016 (Ext.2) i.e. eight days
after incidence, had not specifically named this appellant. Moreover, PW-8,
learned Magistrate before whom statement of PW-4 was recorded under section
164 of the Cr. P.C, had in his deposition at para-14 stated that the appellant was
not named by PW-4. Having regard to the totality of the facts and circumstances
noted above, we are inclined to grant bail to the Appellant No. 1-Sandeep
Oraon by suspending his sentence during pendency of this appeal. Accordingly,
the Appellant No. 1-Sandeep Oraon, shall be released on bail, during the
pendency of this appeal, on furnishing bail bonds of Rs. 10,000/- (Rupees Ten
Thousand) with two sureties of the like amount each, to the satisfaction of
learned Additional Sessions Judge-I Lohardaga, in connection with Sessions
Trial No. 144/2016 with the condition that he and his bailors shall not change
their address or mobile number without permission of the learned Trial Court.
(Aparesh Kumar Singh, J)
(Anubha Rawat Choudhary, J)
Ranjeet/
