Jitram Oraon vs The State Of Jharkhand
2024 Latest Caselaw 8736 Jhar

Jharkhand High Court

Jitram Oraon vs The State Of Jharkhand on 3 September, 2024

Author: Ananda Sen

Bench: Ananda Sen

              IN THE HIGH COURT OF JHARKHAND AT RANCHI
         (Against the judgment of conviction dated 25.06.2015 and order of
         sentence dated 27.06.2015 passed by learned Sessions Judge,
         Lohardaga in S.T. Case No. 29 of 2012/S.T. Case No. 34 of 2012)
                                       -------
                     Criminal Appeal (D.B.) No.624 of 2015
                                       ------
         Jitram Oraon, s/o Sri Birsa Oraon, resident of Mouza Chhotchorgai,
         PO and PS Kisko, District Lohardaga             ... Appellant(s).
                                 Versus
         The State of Jharkhand                          ... Respondent(s).
                                  With
                      Criminal Appeal (D.B.) No.561 of 2020
                                       ------
         1.Birsa Oraon @ Birsu Oraon, son of late Budhwa Oraon @ Khaya
         Oraon
         2. Dinesh Oraon
         3.Pancham Oraon
         Both sons of Shri Birsa Oraon @ Birsu Oraon
         All residents of Mouza Chhotchorgai, PO and PS Kisko, District
         Lohardaga                                       ... Appellant(s).
                                  Versus
         The State of Jharkhand                          ... Respondent(s).
                                  ------
         For the Appellant(s)     : Md. Zaid Ahmad, Advocate
                                    Mr. Naresh Pd. Thakur, Advocate
         For the State            : Mr. Sanjay Kumar Srivastava, APP

                                PRESENT
                           SRI ANANDA SEN, J.
                     SRI GAUTAM KUMAR CHOUDHARY, J.
                               .........
                           JUDGMENT

03rd September 2024

BY COURT.: We have heard learned counsel appearing for the appellants and learned counsel for the State at length.

2. These appeals arises out of judgment of conviction dated 25.06.2015 and order of sentence dated 27.06.2015 in S.T. Case No. 29 of 2012/S.T. Case No. 34 of 2012 whereby and whereunder learned Sessions Judge, Lohardaga convicted the appellant, namely, Jitram Oraon under Sections 302 and 201 of the Indian Penal Code and sentenced him to undergo RI for life with fine of Rs. 10,000/- for the offence under section 302 IPC, however no sentence under section 201 IPC was inflicted upon him. Further appellants, namely, Birsa Oraon @ Birsu Oraon, Dinesh Oraon, Pancham Oraon were convicted only under section 201 of IPC and sentenced to undergo SI for 3 years under section 201 of IPC.

3. The appellant in Cr. Appeal (DB) No. 624 of 2015 is the husband of the deceased whereas the other appellants in Cr.Appeal (DB) No. 561 of 2020 are other in-laws.

4. The prosecution case arises from the fardbeyan of PW4 who is the mother of the deceased. She stated that her daughter was married with the appellant Jitram Oraon sometime in May 2005 and she was residing at her matrimonial home and was blessed with a daughter of three years. She alleges that after three years the husband use to assault her alleging that she had developed some adulterous relationship. The deceased use to inform the informant about the aforesaid assaults and her mother try to pacify. On 26.04.2011 the brother of the appellant, namely, Dinesh Oraon informed the informant that her daughter had died as she was drowned in the well and they had performed all the last rites. When the informant and others reached the place of occurrence i.e. the matrimonial house of the deceased, the accused persons could not give any satisfactory reply thus she concluded that, to conceal the evidence they had performed the last rites of the deceased. On the aforesaid background Kisko PS Case No. 50 of 2011 under section 498A, 302, 201/34 IPC was instituted. The police investigated the case and filed chargesheet. As the appellants pleaded not guilty they were put on trial.

5. Altogether six witnesses were examined in this case who are PW1-Goberdhan Oraon, PW2-Sunil Oraon, PW3-Soma Oraon, PW4-Siriya Oraon @ Balmuni Oraon, PW5-Munu Tudu and PW6-Indranath Oraon and the documents were exhibited.

After closure of the evidence the appellants were examined under section 313 Cr.PC in which they tried to explain the situations and the circumstances which surfaced in the instance case. They replied but this appellant Jitram Oraon has admitted that they cremated the dead body of the deceased without informing his in-laws.

6. The trial Court thereafter convicted Jitram Oraon who is the appellant in Cr. Appeal (DB) No. 624 of 2015 for committing offence under section 302 and 201 IPC and sentenced him to undergo RI for life under section 302 IPC whereas the other appellants who are in Cr.Appeal (DB) No. 561 of 2020 are convicted under section 201 IPC and sentenced to SI for 3 years.

7. The learned counsel appearing on behalf of the appellants submits that the prosecution has failed to prove that the death is homicidal. When there is no evidence that the death is homicidal, the appellant cannot be convicted under section 302 of IPC. He submits that the only guilt of the appellant, namely, Jitram Oraon is that without informing the informant and her family members, dead body was cremated. This act of the appellant does not come within the purview of any of the provisions of the Indian Penal Code nor can it lead to any presumption that he had committed murder. It is his contention that none of the persons from the matrimonial home of the deceased was produced as a witness. Though the witness PW4 stated that this appellant had subjected the deceased to torture and the deceased was assaulted by this appellant for non-fulfillment of demand of money but the I.O has categorically stated that he has not found any witnesses in support of such assault or demand. The I.O. also did not found any incriminating articles from the room of the deceased. He lastly submits that only with the aid of section 106 of Evidence Act these appellants have been convicted but on

the facts and circumstances of the case and the law laid down by the Hon'ble Supreme Court there is no application of section 106 of the Evidence Act, when in this case the prosecution has miserably failed to prove involvement of this appellant beyond all reasonable doubt.

8. Learned counsel appearing on behalf of the State submits that since the deceased was cremated, there remained no evidence to suggest that the death was homicidal. Further the fact that the deceased was cremated without informing the informant clearly suggests that the deceased was done to death in her matrimonial home by the appellant and they made the evidence to disappear. Further it is his contention that admittedly the deceased died in the matrimonial home. These being the facts, it is the duty of the appellants to put forth an explanation as to how the deceased died which they miserably failed. Since the appellants have miserably failed to satisfy the aforesaid conditions, it would be presumed that they have committed murder of the deceased and cremated the body so that the evidence disappears.

9. We have gone through the entire records and the evidence. Six witnesses have been examined in this case. PW4 is the informant. She has reiterated and supported the prosecution case stating therein that she received information that the deceased was murdered and was cremated. She stated that there was altercation going on between the husband and the wife which fact was informed to her by the deceased herself. She stated that money was demanded but due to non-payment of the same deceased was murdered. All the other witnesses including PW4 admittedly are not the witnesses from the village of the appellants. These all witnesses stated that they have heard about the torture but admittedly they have not seen this appellant

torturing the deceased. These witnesses have stated that they went to the house of this appellant where they found that this appellant and others have already cremated the deceased.

10. To bring home the charge under section 302 of IPC, the prosecution has to prove that the death is homicidal. In this case admittedly there is no postmortem report nor there any material which would suggest that the death of the deceased is homicidal.

11. There is an allegation by PW4 and other witnesses that this appellant and others used to torture the deceased and assaulted her. When we go through the evidence of PW5 who is I.O., we find that in paragraph no. 7 he has stated that he did not get any material or evidence to suggest that the deceased was assaulted nor any one complain was made before him. He also stated that he got information that the informant at the relevant time of occurrence was residing in Delhi. Further PW4 who is the informant in paragraph no. 7 stated that earlier deceased and her husband use to reside in Haryana and this informant was residing at Delhi and at that point of time there was cordial relationship amongst the parties and they use to visit each other's house. While residing in Haryana and Delhi there was no case against the husband. This clearly suggests that prima-facie there was no material to come to a conclusion that there was dis- cordial relationship amongst the husband and the wife. Further as observed there is no material to suggest that the death is homicidal. Admittedly the deceased died in the house of the appellants but this fact only cannot attract section 106 of Evidence Act.

12. Section 106 of the evidence Act reads as follows:-

"106. Burden of proving fact especially within knowledge. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of providing that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket, is on him."

13. The Hon'ble Supreme Court in the case of "Sabitri Samantaray Vrs. State of Odisha" reported in (2022) SCC Online SC 673 held that Section 106 of the Indian Evidence Act applies to cases where the chain of evidence has been successfully established by the prosecution. Paragraphs 18 & 19 of the said judgment reads as under:

"18. Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the Section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, it merely prescribes that when an individual has done an act, with an intention other than that which the circumstances indicate, the onus of proving that specific intention falls onto the individual and not on the prosecution. If the accused had a different intention than the facts are especially within his knowledge which he must prove.

19. Thus although Section 106 is in no way aimed at relieving the prosecution from its burden to establish the guilt of an accused, it applies to cases where chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused. Moreover, in a case based on circumstantial evidence, whenever an incriminating question is posed to the accused and he or she either evades response, or offers a response which is not true, then such a response in itself becomes an additional link in the chain of events [ See Trimukh, Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681]"

14. The Hon'ble Supreme Court in the case of "Rajinder Singh Vrs. State of Haryana" reported in (2013) 15 SCC 245 held that Section 106 of the Evidence Act does not relieve the burden of the prosecution to prove guilt of the accused beyond reasonable doubt. Paragraph 18 of the said judgment reads as under:

"18. Section 106 of the Evidence Act does not relieve the burden of the prosecution to prove guilt of the accused beyond reasonable doubt but where the prosecution has succeeded to prove the facts from which a reasonable inference can be drawn regarding the existence of certain other facts and the accused by virtue of special knowledge regarding such facts fail to offer any explanation then the court can draw a different inference."

15. Further in the case of "Anees vs. State Government of NCT" reported in 2024 SCC OnLine 757 the Hon'ble Supreme Court in details discussed the principle governing the applicability of section 106 of Evidence Act and in paragraph nos. 43 and 44 of the judgment the Hon'ble Supreme Court has held that section 106 of the Evidence Act in a criminal case should be applied with care and caution. The ordinarily rule which applies to criminal trial in this country is that onus lies with the prosecution to prove the guilt of the accused and the same is not modified by the provision contained in section 106 of Evidence Act. Section 106 of the Evidence Act cannot be invoked to make up the ability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. The section cannot be used to support the conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that the crime was committed. Even though it a matter specifically within the knowledge of the accused but it does not throw the burden on the accused to show that no crime was committed. It has been further held that to infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So until a prima-facie case is established by the evidence the onus does not shift to the accused. Further in

paragraph no. 50 it has been held that section 106 of Evidence Act would apply to cases where the prosecution would be said to have succeeded in proving facts from which reasonable inference can be drawn regarding guilt of the accused. For better appreciation it is necessary to quote paragraph nos. 43, 44 and 50 of the aforesaid judgment which is as under:

"43. Thus, from the aforesaid decisions of this Court, it is evident that the court should apply Section 106 of the Evidence Act in criminal cases with care and caution. It cannot be said that it has no application to criminal cases. The ordinary rule which applies to criminal trials in this country that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the provisions contained in Section 106 of the Evidence Act.

44. Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed. To infer the guilt of the accused from absence of reasonable explanation in a case where the other circumstances are not by themselves enough to call for his explanation is to relieve the prosecution of its legitimate burden. So, until a prima facie case is established by such evidence, the onus does not shift to the accused.

50. Section 106 of the Evidence Act would apply to cases where the prosecution could be said to have succeeded in proving facts from which a reasonable inference can be drawn regarding guilt of the accused."

16. Thus from the aforesaid judgments and section 106 of the Evidence Act it is clear that where the guilt of the accused is established by evidence produced by the prosecution unless the accused is able to prove some other facts especially within his knowledge, section 106 of the Evidence can be applied.

17. In this case from the evidence, we find that the prosecution has not been able to prove the guilt of these appellants beyond all reasonable doubt and also the fact that the deceased died homicidal death. Further the prosecution has not been able to prove the guilt of the husband committing offence under section 302 of the Indian Penal Code. When we arrived at a conclusion that the prosecution has not been able to prove commission of the offence itself, then there is no application of section 106 of the Evidence Act. The other appellants also could not be convicted.

18. Thus from what has been discussed above, both these Criminal Appeals stand allowed. The judgment of conviction dated 25.06.2015 and order of sentence dated 27.06.2015 passed by learned Sessions Judge, Lohardaga in S.T. Case No. 29 of 2012/S.T. Case No. 34 of 2012 are set aside.

19. The appellant, namely, Jitram Oraon in Cr. Appeal (DB) No. 624 of 2015 who is in custody be released forthwith, if not wanted in any other case. So far as other appellants, namely, Birsa Oraon @ Birsu Oraon, Dinesh Oraon, Pancham Oraon in Cr.Appeal (DB) No. 561 of 2020 are concerned they are on bail and accordingly, they and their bailors are discharged of the liabilities of the bail bonds furnished by them.

20. Let a copy of the judgment along with the Trial Court Records be sent back to the Court concerned forthwith.

(ANANDA SEN, J.)

(GAUTAM KUMAR CHOUDHARY, J.) High Court of Jharkhand, Ranchi Dated: 03rd September 2024 Tanuj/ A.F.R.