FAGU ORAON Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Present appeal has been preferred against the judgment of conviction dated 10.05.2002 and order of sentence dated 13.05.2002, passed by 2nd Additional Sessions Judge, Gumla, in Sessions Trial No. 41 of 1999, whereby appellants (who are original accused No. 2 and 3) have been convicted for the offence punishable under Sections 302/201/34 of the Indian Penal Code for life imprisonment. No separate sentence has been awarded under Section 201 of the Indian Penal Code.

(2.) We have appointed Sri Shekhar Sinha as amicus curiae, because, counsel for the appellants is not present when the matter is called out. Counsel for the appellants has pointed out that prosecution has not properly appreciated the major omissions and contradictions in the depositions of prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial court and, hence, the judgment of conviction and order of sentence passed by learned trial court deserves to be quashed and set aside. Moreover, it has been submitted by counsel for the appellants that P.W.-1 , P.W.-2 and P.W.-3 are hearsay witnesses. All these witnesses have stated before the court that they were conveyed bythe wife of one Bandhana Oraon about the incident. Thus, neither P.W.-1, nor P.W.-2 and P.W.-3 are the witnesses of the incident in question. Incident has taken place on 5.7.1998, and, son of informant (P.W.-7), namely Nazmul Ansari, has been murdered by the appellants, but the charges have not been proved by the prosecution witnesses beyond reasonable doubts. It is further submitted by learned counsel for the appellants that so far P.W.-4 is concerned, who is witness of seizure panchnama, has stated that one bicycle recovered from the well and a knife was also recovered from the field of appellant No. 1 (original accused No. 2), whereas, Investigating Officer who is P.W.-9 has stated that knife was recovered from the field of appellant No. 1 (original accused No. 2) and there was water in the field. There is no confessional statement of original accused No. 1 namely Desha Oraon. P.W.-4 has never stated that recovery of bicycle and knife was made on the behest of original accused No. 1 or original accused No. 2. Looking to the deposition of P.W-4, bicycle and knife were already kept ready and panchnama was also prepared which was signed by this witness. Thus, recovery is not connected with the statement of any of the accused and, therefore, recovery alone is not sufficient for conviction of the appellants. Moreover, so called confessional statement of appellant No. 1 (original accused No. 2) has also not been proved. The I.O. has not stated in his deposition as P.W.-9 about the signature of Fagu Oraon. Thus, his simple statement made before the police about the incident is not admissible as per Indian Evidence Act. This aspect of the matter has also not been properly appreciated by the learned trial court, hence, judgment of conviction and order of sentence passed by the learned trial court deserves to be quashed and set aside. There is no eye witness of the incident. The whole case of the prosecution is based upon presumptions and surmises.

(3.) We have heard learned A.P.P. appearing for the State, who hasvehemently submitted that incident has taken place on 5th July 1998 and the F.I.R. was lodged on 6.7.1998. Appellants were named in the F.I.R. In fact, there were three accused, but, original accused No. 1 has been acquitted by learned trial court. Rest accused No. 2 and 3 have been convicted, who have preferred this appeal. Informant, who is P.W.-7, has sold she bufallow to the accused and the money was to be recovered from them and, therefore, informant P.W.-7 sent his son namely Nazmul Ansari for recovery of the amount of Rs. 3,000/- at the house of appellantsaccused and thereafter murder of son of informant taken place. This fact was stated by P.W.-1, P.W.-2 and P.W.-3. There is also recovery of knife and bicycle. These facts has been proved by P.W.-4 and P.W.-6. and also by P.W.-9, who is I.O. Thus, there is recovery of incriminating articles because of the statement of appellant No. 1 (original accused No. 2), as well as on the basis of the statement of Desha Oraon, who is original accused No. 1, who has already been acquitted by the learned trial court. Moreover, there is extra judicial confession by appellant No. 1 before the police. Said document is Ext.-5 in the records of sessions trial, thus, no error has been committed by the learned trial court.