Ram Oraon vs The State of Bihar (Now Jharkhand)

R.R. Prasad, J.—The appellant, Ram Oraon, was charged under 302 read with Section 34 I.P.C by the 3rd Addl. Judicial Commissioner, Ranchi. The allegation against him is that on the night of 10.12.1992, he, in furtherance of the common intention of Suleman Khalko, attacked the deceased, Bhikuram Oraon, with a sharp cutting weapon, on account of which the said Bhikuram Oraon died. The Trial Judge, finding the appellant guilty, sentenced him to imprisonment for life, which is under challenge in this appeal.

On 10.12.1992, the deceased Bhikuram Oraon, P.W.1 Jaikan Oraon, P.W.2 Bhagwan Oraon and P.W.3 Meghu Oraon, all residents of village - Jikhi, went to attend a party. They had their dinner and at about 9.00 p.m., the deceased went out of the house to attend calls of the nature followed by P.W.2. After sometime, P.W.2 came back and informed P.Ws.1 and 3 that the deceased is being attacked. P.Ws. 1 and 3 accompanied by P.W.2 went out of the house and found the deceased being assaulted by the appellant and other person. On seeing the witnesses, the appellant ran away. Thereafter, the injured was taken to the hospital. The statement, Ext.2, was given by P.W.3, Meghu Oraon, at 3.00 a.m. at the hospital on 11.12.1992 regarding the occurrence, on the basis of which a crime was registered and investigation was taken up by the Police Officer. The inquest was conducted and requisition was given to the medical authorities for conducting autopsy on the dead body.

On receipt of the requisition, P.W.5, Dr. Tulsi Mahto, conducted autopsy and he found the following injuries:

(a) Incised wound all stitched 13 c.m. long on the right tempo parietal region over the head situated anterior portion or chipping the right parietal temporal bone under moth only the outer fable is involved only 4 c.m. 1/2 c.m. area.

(b) 7 c.m long on the right cheek starting from the right angle of mouth cutting right side of underlying bone mendusal.

(c) 5 c.m. long on the right cheek cutting the underlying bone partially maxillia

(d) 7 1/2 c.m. long 6 1/2 cm on the left crepetal region of the head cutting the underlying bone and bring matter partially.

(B) Incised wound not stitched

(I) 6 cm x 2 cm into bone deep over the right scapular region cutting the underline bone partially.

(II) Linear cut involving the skin of 7 cm in length on the left scapular region.

The Doctor issued Ext.3, the post mortem certificate, with his opinion that the incised injuries would have been caused by sharp cutting weapon, such as Tangi.

After the completion of investigation, final report was filed by P.W.6, the Officer who took up investigation from the Officer who earlier conducted investigation. The appellant denied all the incriminating circumstances, when he was questioned u/s 313 Cr.P.c.

Learned Snr. Counsel, appearing for the appellant, submits that Ext.2 cannot be the first information in this case, in view of the evidence of P.Ws.3 and 4. According to him, there must have been another statement given to the police immediately after the incident and the said statement was suppressed as it was found to be not in tune with the present prosecution case and it was substituted with Ext.2. He, therefore, submits that the appellant is entitled to an acquittal. On the above contention, we have heard Mr. V.S. Sahay, learned Counsel appearing for the State.

According to the prosecution, Bhikuram Oraon died on account of the injuries. The Doctor, P.W.5, who conducted autopsy and who issued the post mortem certificate, proves the said fact.

P.Ws.1, 2 and 3 were examined to establish that Bhikuram Oraon was attacked by the appellant with sharp cutting weapon and that P.W.2 also suffered injuries during the course of the same transaction. It is to be stated at this stage that though P.W.2 claimed that he also suffered injuries and the other witnesses have stated in their evidence that but for the treatment, P.W.2 would have died, the prosecution did not choose to examine the Doctor and did not choose to mark the injury report for the injuries said to have been suffered by P.W.2. Keeping this in mind, we will analyze the evidence of P.Ws.1 to 3, who claimed that they witnessed the occurrence. According to them, the deceased, who had taken his meal, went out of the house at about 9.00 p.m. to attend calls of nature and that P.W.2 followed him. They further deposed that sometimes thereafter P.W.2 returned and informed them that the deceased is being attacked by the appellant and another and that he has also suffered injury, when he tried to intervene. Witnesses have further stated that they went to the place where the deceased was being attacked and found the appellant and another person causing injury on the deceased. It is the further case of the prosecution that at 3.00 a.m. on 11.12.19921 Ext.2 was given by P.W.3 at the police station. On going through the evidence of P.Ws.1 to 3 as well as the evidence of P.W.4, who is said to have come to the place immediately after the occurrence, we find that the said statement, Ext.2, could not be the first information in this case. P.Ws.3 and 4 have admitted in their evidence that after the incident, the deceased Bhikuram Oraon was placed on a cot and carried to Lapung police station, which was at a distance of 16 kms. They have also stated that P.W.1, immediately after the occurrence, left the place for the police station in his motor cycle. According to P.Ws.3 and 4, at the police station P.W.3 gave a statement and thereafter the injured was referred to the hospital by the police authorities. The evidence of P.Ws.1 to 3 shows that immediately after the occurrence the deceased was taken to the police station on a cot and P.W.1 preceded them on a motor cycle. If that be the case, there must have been some information at the police station regarding the incident and the said information would have been given by P.W.1. If we assume for a moment that P.W.1 did not give any statement, then it is incumbent upon the prosecution to show as to what happened to the statement given by P.W.3 since, according to the witnesses, after they went to the police station with the deceased, who was placed on a cot, a statement was recorded by the Officer on being narrated by P.W.3 at the police station. The said statement has not seen the light of the day. It is, therefore, clear that the prosecution has suppressed the initial information received by the police and it came out with the present version that the complaint, Ext.2, was given for the first time by P.W.3 at 3.00 a.m. on 11.12.1992 at the hospital. Once we come to the conclusion that an earlier document giving the details about the incident was suppressed, then we cannot but come to the conclusion that the said document must have been against the prosecution version and therefore, it was suppressed and in the above circumstances, the Court cannot but draw an adverse inference against the prosecution. Therefore, we reject the evidence of P.Ws.1 to 3. We are unable to place any reliance upon the oral dying declaration said to have been made by the deceased to P.W.4. P.W.4 stated that the deceased made an oral declaration implicating the appellant with the crime. P.Ws.1 to 3, who were present along with the deceased, did not whisper a word in their evidence that the deceased made an oral declaration to P.W.4 implicating the appellant with the crime. We, therefore, find it difficult to accept the evidence of P.W.4 that the deceased gave an oral dying declaration implicating the appellant with the crime.

In view of the discussion made above, we allow the appeal by setting aside the conviction and sentence imposed upon the appellant by the trial court. It is reported that the appellant is in jail. He is directed to be released from the jail custody forthwith, if not wanted in any other case(s).