Against The Judgment And Order Of ... vs The State Of Jharkhand
2022 Latest Caselaw 3622 Jhar

                 Criminal Appeal (D.B.) No. 552 of 2017
    [Against the judgment and order of conviction and sentence dated
    23.12.2016 passed by Sri Rajesh Kumar No. 1, learned District &
    Additional Sessions Judge-I, Khunti in Sessions Trial Case No. 81/2010]
                                   ...........

Dharma Oraon @ Bhagat, S/o Koka Bhagat, R/o Vill- Birda, P.O. & P.S.- Karra, District- Khunti ... ... Appellant Versus The State of Jharkhand ... ... Respondent ...........

For the Appellant : Mr. Mayank Mohit Sinha, Amicus Curiae For the State : Mrs. Nehala Sharmin, A.P.P.

PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH ...........

C.A.V. On 28/07/2022 Pronounced on 12/09/2022

Heard Mr. Mayank Mohit Sinha, learned Amicus Curiae for the appellant and Mrs. Nehala Sharmin, learned A.P.P. for the State.

2. This appeal is directed against the judgment and order of conviction and sentence dated 23.12.2016 passed by Sri Rajesh Kumar No. 1, learned District & Additional Sessions Judge-I, Khunti in Sessions Trial Case No. 81/2010, whereby and whereunder the appellant has been convicted for the offence punishable u/s 302 of the IPC and has been sentenced to undergo R.I. for life along with a fine of Rs. 20,000/- and in default of payment of fine to undergo R.I. for two more years.

3. The fardbeyan of Sunil Tirkey was recorded on 13.09.2009 at 12:15 P.M, in which, he has stated that a football match was organized on 12.09.2009 between the villages Birda and Sakarpur and the team from the village Birda had won the match. After the match ended, players of both the teams went to their respective houses. It has been alleged that Bipait Oraon of Birda village was sitting in front of the house of Lakho Bhagat and along with him Sunil Tirkey, Gendra and Lakho Oraon were also sitting when all of a sudden at about 6:30 P.M. Dharma Oraon (appellant) had appeared and assaulted Bipait Oraon with a Basula. Bipait Oraon fell down unconscious and Dharma Oraon had once again struck him 2-3 times with the Basula. The villagers had chased and apprehended Dharma Oraon. Bipait

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Oraon was taken to RIMS, Ranchi for treatment but he succumbed to his injuries.

Based on the aforesaid allegations Karra P.S. Case No. 39/2009 was instituted against Dharma Oraon for the offence punishable u/s 302 of the IPC. On conclusion of investigation charge-sheet was submitted u/s 302 of the IPC against the accused and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Trial Case No. 81/2010. Charge was framed u/s 302 of the IPC against Dharma Oraon @ Bhagat which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as eight witnesses in support of its case.

5. P.W.1 (Sunil Tirkey) has deposed that the incident is of 12.09.2009 at around 6:30 P.M. when he, Bipait Oraon and Gendra Oraon were sitting in the metalled road. Lakho Oraon was also with them. Dharma Oraon had come from the back with a Basula and assaulted with it a few times on the head of Bipait Oraon. He has stated that Bipait Oraon is also known as Naga Oraon. He died during treatment. Dharma Oraon was caught by the villagers and tied up. The fardbeyan of this witness was recorded at Bariatu Hospital. He has identified his signature in the fardbeyan which has been marked as Exhibit-1.

In cross-examination, he has deposed that the football match was held between Birda and Sakarpur. There were about 300-400 spectators present in the match. He has denied the suggestions that Bipait had sustained injuries due to a fight during the football match. He has stated that he does not know the name of the persons who had caught hold of Dharma.

6. P.W.2 (Lakho Bhagat) has deposed that the occurrence took place about 1½ years back in the evening. He was sitting on the road in front of his house when Dharma came from

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the back and assaulted Bipait on his head with a Basula thrice. On that place Gendra, Lakhwa, Sunil and Bipait Oraon were sitting. Dharma fled away by throwing the Basula in the bushes but he was apprehended by the villagers. Bipait was sent to the Hospital from where he was referred to Ranchi where he succumbed to his injuries.

In cross-examination, he has stated that the assault was committed with the sharp end of the Basula. The Basula was recovered from the bushes by the Police. He does not know the relationship between the wife of Dharma and Bipait.

7. P.W.3 (Pullu Oraon) has deposed that when the incident had occurred on 12.09.2009 at 6:30 P.M. he was at Jariya village and the incident had taken place at Birda village. His brother Bipait Oraon was murdered by Dharma Oraon with a Basula. The incident had happened in Birda village near the road side where his brother was sitting and Dharma Oraon had assaulted him from the back with a Basula as a result of which Bipait Oraon had suffered injuries on his forehead, back side of the head and above the eyes. The villagers had taken Bipait Oraon for treatment to Karra Hospital from where he was referred to RIMS, Ranchi where in course of treatment he died at 2:00 A.M. This witness was informed about the incident by the villagers. He has stated that Dharma Oraon was tied up by the villagers but his father untied him and on the next day Dharma Oraon had surrendered at the Police Station.

In cross-examination, he has stated the he has not witnessed the occurrence.

8. P.W.4 (Vikram Mehta) has stated that he had heard in the next morning about the incident of Dharma Oraon assaulting Bipait Oraon with a Basula on his head resulting in his death.

In cross-examination, he has deposed that whatever has been stated by him is on the basis of hearsay

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knowledge.

9. P.W.5 (Sunita Kumari) and P.W.6 (Mangra Oraon) have not supported the case of the prosecution and have accordingly been declared hostile by the prosecution.

10. P.W.7 (Kashi Nath Pandey) is the Investigating Officer who has stated that the investigation of Karra P.S. Case No. 39/2009 was handed over to him and after taking over investigation he had gone to Birda village from where he arrested Dharma Oraon. He had recorded the restatement of the informant and on 14.09.2009 had recorded the statement of witnesses, Lakho Bhagat, Mahesh Oraon, Bodal Oraon, Mangra Oraon, Fulu Oraon and Vikram Mehta. All had supported the allegations made in the First Information Report. He has stated that the accused had confessed to his guilt. He had inspected the place of occurrence which is a metalled road situated in Birda village and beside the road are the houses of Lakho Mahto, Mahadeo Oraon and at about a distance of 200 yards is Birsa Munda Chowk. The Basula with which the assault is said to have taken place was recovered from the bushes and a seizure list was also prepared. He has proved the seizure list which has been marked as Exhibit-2. He had obtained the postmortem report and on the orders of his superior authority he had submitted charge-sheet.

He could not identify the accused in the dock due to the passage of time. He has proved the formal First Information Report which has been marked as Exhibit-3. He has proved the handwriting and signature of Ramashish Singh in the fardbeyan and the endorsement of the Officer-in-Charge Manoj Kumar as well as his signature which have been marked as Exhibits- 4 and 5 respectively. He has also proved the inquest report which has been marked as Exhibit-6.

In cross-examination, he has deposed that he had not mentioned in the seizure list whether blood stains were found in the Basula or not. He has proved his signature and handwriting

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in the arrest memo which has been marked as Exhibit-A. He has deposed that the Basula was never sent for forensic examination to the Forensic Science Laboratory.

11. P.W.8 (Dr. Tulsi Mahto) has deposed that the autopsy on the dead body of Bipait Oraon was conducted on 13.09.2009 by Dr. Aman Kumar, Assistant Professor, Dept. of FMT, RIMS, Ranchi under the supervision of this witness and the findings are as follows:

External:-

(i) abrasion red in colour 1 cm x ½ cm & ½ cm x ½ cm over right chick upper part.

(ii) Lacerated wound:-

a) 3 cm x ½ cm x soft tissue deep over left parietal region of head.

b) 2 cm x ½ cm x bone deep over the left temporal region of head.

c) 5 cm x ½ cm x soft tissue deep over the left pinna of the ear.

(iii) Lacerated wound stitched:-

a) 2 cm x ½ cm x soft tissue deep haring are stitch over right eyebrow medial side.

b) 3 cm x ½ cm x bone deep haring two stitches over right eyebrow lateral side with fracture of underline orbital bones.

c) 2 cm x ½ cm x soft tissue deep haring are stitch over right side of forehead placed laterally.

Internally:- There was defuse contusion of whole scalp with contusion of both side temporal muscle.

There was presence of crack fracture 7 cm in length on the left temporo parietal bone. There was depressed and comminuted fracture of right temporo parietal bone in an area of 6 cm x 5 cm and a crack fracture extends from the said depressed fracture into the right frontal bone measuring 5 cm in length. There was contusion of brain and presence of subdural blood and blood clot on both sides of brain.

As per his opinion, the above noted injuries were antemortem in nature caused by hard and blunt substance. Death was due to the above noted injuries. The head injuries were itself sufficient in ordinary course of nature to cause death. He has proved the postmortem report which has been marked as

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Exhibit-7.

12. In his 313 Cr.P.C. statement the accused has denied about his involvement in the murder.

13. Mr. Mayank Mohit Sinha, learned Amicus Curiae for the appellant has submitted that there are contradictions in the evidence of the eye-witnesses P.W.1 and P.W.2. He has submitted that though the Basula was recovered by the Police but the same was not sent for examination to the Forensic Science Laboratory. He has further submitted that the postmortem report does not corroborate the manner of assault as Basula is a sharp cutting weapon while the injuries were caused by hard and blunt substance.

14. Mrs. Nehala Sharmin, learned A.P.P. for the State has primarily relied upon the evidence of P.W.1 and P.W.2 while submitting that the incident had occurred in their presence and the evidence of the Investigating Officer (P.W.7) reveals that the Basula was recovered from the bushes which corroborates the evidence of P.W.2.

15. We have considered the rival submissions and have also perused the Lower Court Records.

16. The incident is said to have occurred when Bipait Oraon was sitting with his friends and all of a sudden the appellant had arrived and gave repeated blows upon Bipait Oraon with a Basula resulting in his death during treatment. P.W.1 and P.W.2 are the eye-witnesses who were sitting with the deceased when the assault had taken place. Both have consistently stated about the assault committed by the appellant upon the deceased Bipait Oraon with a Basula. P.W.2 has stated that the assault was made with the sharp end of the Basula though P.W.1 seems not to have specified as to which end of the Basula was used in the assault. P.W.2 has further stated that the Basula was thrown by the appellant in the bush from where it was seized as per the evidence of the Investigating Officer (P.W.7).

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17. "Basula" is a heavy and sharp edged tool used by the carpenters. The front portion is sharp while the back portion is blunt. If we now consider the autopsy report, it indicates that lacerated wound was found on the parietal region of head, temporal region of head, right eyebrow, right forehead and there was presence of crack fracture of 7 cm in length on the left tempro parietal bone and all the injuries were caused by hard and blunt substance. The discrepancy between the ocular and medical evidence according to the learned counsel for the appellant is a primary consideration for recording the innocence of the appellant. The result of the inconsistency between the ocular and medical evidence has been considered by the Hon'ble Supreme Court in the case of "State of Uttarakhand versus Darshan Singh", reported in (2020) 12 SCC 605, wherein it has been held as follows:

"43. In Abdul Sayeed v. State of M.P., this Court discussed elaborately the case law on the subject of conflict between medical evidence and ocular evidence: (SCC pp. 272-74, paras 32-39) "Medical evidence versus ocular evidence

32. In Ram Narain Singh v. State of Punjab this Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case.

33. In State of Haryana v. Bhagirath it was held as follows: (SCC p. 101, para 15) '15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation.

If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight

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must be given to opinions given by persons who are experts in the particular subject.'

34. Drawing on Bhagirath case, this Court has held that where the medical evidence is at variance with ocular evidence, 'it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant".'

35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.

'21. ... The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the "credit" of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.' [Vide Thaman Kumar v. State (UT of Chandigarh) and Krishnan v. State at SCC pp. 62-63, para 21.]

36. In Solanki Chimanbhai Ukabhai v. State of Gujarat this Court observed: (SCC p. 180, para 13) '13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.'

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37. A similar view has been taken in Mani Ram v. State of U.P., Khambam Raja Reddy v. Public Prosecutor and State of U.P. v. Dinesh.

38. In State of U.P. v. Hari Chand this Court reiterated the aforementioned position of law and stated that: (SCC p. 545, para 13) '13. ... In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy.'

39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved." (emphasis in original)

18. As we have noted earlier only P.W.2 has stated about the assault committed with the sharp edge of the Basula while P.W.1 has merely stated about the assault. Both P.W.1 and P.W.2 are consistent with respect to the manner of assault and the weapon used. P.W.7 had prepared a seizure list of the Basula recovered from a bush. There is nothing to disbelieve the ocular evidence, and the medical evidence would have gained importance if the ocular evidence was improbable. We must also note the fact that the incident had taken place at 6:30 P.M. when it was almost dusk and the assault was made from the back which also creates a doubt regarding P.W.2 describing the assault with the sharp edge of the Basula.

19. In view of the overwhelming evidence on record we are not inclined to interfere in the judgment and order of conviction and sentence dated 23.12.2016 passed by Sri Rajesh Kumar No. 1, learned District & Additional Sessions Judge-I, Khunti in Sessions Trial Case No. 81/2010 and accordingly we dismiss this appeal.

20. Before parting with this judgment we record our appreciation for Mr. Mayank Mohit Sinha, learned Amicus Curiae

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for the assistance rendered to us in delivering this judgment.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

High Court of Jharkhand at Ranchi Dated, the 12th day of September, 2022.

Alok/NAFR