Dismissed

Gandur Oraon v. State of Bihar

Jharkhand HC13 Mar 2019Cr.A(DB)/128/1996

Case brief

AI extract

What is this about?

The High Court of Jharkhand dismissed the criminal appeal challenging a conviction for murder and attempted concealment of evidence. The court upheld the trial court's finding that circumstantial evidence, including the accused's conduct and the recovery of the weapon pursuant to his confession under Section 27 of the Evidence Act, conclusively established guilt.

What did the court decide?

The appeal was dismissed as being devoid of merit; the bail bonds were cancelled; and the appellant was to be taken into custody.

Gandur Oraon Vs State of Bihar — Murder and Culpable Homicide | Jharkhand HC (2019)

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Cr. Appeal (D.B.) No. 128 of 1996(R)

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…..

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(Against the judgment of conviction and order of sentence both dated 10.05.1996, passed by learned Additional Sessions Judge, Gumla, in Sessions Trial No. 120 of 1991).

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Gandur Oraon

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….. Appellant

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Versus The State of Bihar (now Jharkhand) …. Respondent

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Present

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Hon’ble Mr. Justice Aparesh Kumar Singh Hon’ble Mr. Justice Kailash Prasad Deo

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For the Appellant : Mr. Ritesh Kumar Advocate For the State: : Mr. Shekhar Sinha, Additional Public Prosecutor

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By Court: Heard learned Counsel for the appellant and learned Additional Public Prosecutor representing the State.

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2. The sole appellant who stands convicted for the offence of murder under Section 302 of the Indian Penal Code and Section 201 of the Indian Penal Code by the impugned judgment dated 08.04.1996 passed in Sessions Trial No. 120 of 1991 by the learned Additional Sessions Judge, Gumla is before us in this appeal. The learned trial court by order of sentence of the same date sentenced the accused/appellant to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and further to undergo rigorous imprisonment for seven years under Section 201 of the Indian Penal Code, both the sentences were directed to run concurrently.

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3. During pendency of this appeal the appellant was enlarged on bail by order dated 06.08.1996. 4. The prosecution case is based on the fardbeyan of informant, Bukhla Oraon, (P.W.5), son of Late Jagru Oraon village Kudra, P.S. Sisai, District Gumla who was the mukhiya of Village Kudra Gram Panchayat. On 19.08.1990 at 16 hours in the evening his fardbeyan was recorded before the officer-in-charge at Sisai Police Station inter-alia alleging that today at 3 o'clock in the afternoon when he was returning through crossing to his house at Kudra, near Sarai Tola, line hotel, one Joseph Bara informed him that the wife of Gandur Oraon (accused) Madwa Orain of the same village Kudra aged about 19 years has been murdered and someone has thrown her dead body in the well of Akhtar Mian of village Sisai and that the dead body was floating over the water. Then the informant alongwith Joseph Bara, Laxmi Bhagat and two other staff of Sisai Block went there and saw the dead body floating over the water.

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On seeing it they noticed that the body had injuries on the neck and in the front portion. The dead body was retrieved by means of rope. He informed this incidence to Malar chawkidar of Kudra and that certain villagers Karma Oraon and others met him on the way and they also saw the dead body and that the chawkidar had gone towards the police station for giving information. Thereafter the informant also followed to the police station to ascertain whether the information has been furnished by the chawkidar and finding the chawkidar absent there he recorded the fardbeyan. The informant alleged that the house of in-laws and the paternal house of the deceased Madwa Orain was in the same village Kudra, but her father, mother and brother were not there therefore, she use to stay both at her paternal place and also at her in-laws place. The informant further stated that it came to his knowledge that the deceased was not seen in the village since last Thursday. The informant further stated that it was not known as to who killed Madwa Orain but the in-laws of the deceased should have reported about her missing in the police station or panchayat.

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5. The formal F.I.R. bearing Sisai P.S. Case No.93 of 1990 dated 19.08.1990 under Section 302 of the Indian Penal Code was instituted against unknown.

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6 . Upon conclusion of investigation chargesheet was submitted bearing No. 45 of 1990 dated 31.10.1990 against Gandur Oraon (appellant), Etwa Oraon his father and Gondro Oraon son of Bijla Oraon, all of village Kudra, P.S. Sisai, Gumla under Section 302/201 of the Indian Penal Code.

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7. After Cognizance and commitment to the learned court of Sessions charges were framed against the two accused persons, Gondro Oraon and Gandur Oraon on 20.12.1991 as Etwa Oraon has died. Gandur Oraon has been charged under Section 302 IPC and Gondro Oraon and Gandur Oraon have been charged under Section 201 IPC vide order dated 20.12.1991. The charges were read over to the accused persons in Hindi to which they pleaded not guilty and claimed to be tried. During the course of trial prosecution examined ten witnesses as under.

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Bijai Kumar Singh was examined as P.W.-1. He was an Advocate Clerk who identified the handwriting and the signature of officer-in-charge of Sisai P.S. who had submitted the charge-sheet which was marked as exhibit-1. In his cross-examination he denied that the charge-sheet was prepared in his presence. P.W.-2 is the medical officer, Dr. Mirtunjaya Saraogi, who conducted the postmortem examination on the dead body of Madwa Orain aged about 19

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years, female on 20.08.1990 at 01:00 P.M. at Sadar Hospital, Gumla. On Examination of the dead body he found that it was decomposed in blisters all over the body, tongue was protruded and hands and feet were sodden. Rigor Mortis was absent on all four limbs. The following ante mortem injuries were found on the dead body:

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“(1) Incised wound over right upper aspect of neck 5” x 1/2” x bone deep with fracture of the 2nd cervical vertebra.

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(2) Incised wound over right temporal region 5” x 1/2” x bone deep with fracture of the temporal bone.

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Nature of injuries:- Both the mentioned injuries are ante moterm in nature, are grievous and sufficient to cause death of the deceased. Injuries were caused by sharp weapon. Cause of Death:- Shock and haemorrhage, drowning were post-mortem in nature.

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Time since death- Approximately more than 96 hours.”

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The postmortem report was proved and marked as exhibit-2, written in his own handwriting and signed by him. As per the opinion of the Doctor cause of death was due to shock and haemorrhage, drowing were postmortem in nature. Time since death was approximately more than 96 hours. The nature of injuries were found to be ante-mortem in nature and grievous, sufficient to cause the death of the deceased. The injuries were such as inflicted by sharp weapon. There was water in the lungs as stated by him in his cross-examination. P.W.-3 Abnejar Khaka was an Advocate who has proved and identified the first information report written in the handwriting under the signature of Assistant Sub-Inspector of police, Shyamal Prasad Sinha, who was the officer-in-charge of Sisari P.S. on 19.08.1990 as exhibit3. However, he stated that the FIR was not recorded in his presence P.W.-4 is Karma Oraon. The deceased Madwa Orain was his cousin sister. He has stated that the deceased's father and mother had died and that he had brought her up and she was married to the accused Gandur about four years back. He heard noise in the village that a dead body has been found in the well. He went there at about 04:00 P.M., that was Sunday. There the police arrived and recovered the dead body from the well which was of Madwa Orain. Officerin-charge prepared the inquest report which is proved by him as exhibit-4 and his signature there upon has been proved and identified as exhibit-4/1. He states that when the accused Gandur Oraon was asked he stated that she has missing since Thursday. He has also proved the signature of the other witness mukhiya Dhokhla Oraon on the inquest report, which marked as exhibit-4/2. He further stated that this information was not conveyed to them since

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Thursday. In his cross-examination nothing has been elucidated by the defence which could discredit his statements made in chief.

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P.W.-5 is Bukhla Oraon the mukhiya of Kudra panchayat, the informant. He has fully supported the case has made out in his fardbeyan. He has proved his signature on the fardbeyan exhibit-3, which has been marked as exhibit3/1. He also stated that deceased was missing since Thursday and that her husband or any other family member had not given any information to the gram panchayat. He further stated that father of Gundur is Etwa and Gondro also as from the same village. In cross-examination he states that a number of boys and girls go to the brick kiln for work and they do not leave any information to their family members or to the panchayat. However, he further stated that inmates of the house keep information about such family members. This witness has also identified his signature on the confessional statement of the accused/appellant Gandur Oraon dated 21.08.1990 marked as exhibit-A. 19.08.1990 was a Sunday and not Thursday. The date on which the dead body was recovered was 19.08.1990 and police had arrested him on that day. We do not find that the defence has been able to discredit the statement of this witness who is the author of the first information report. P.W.-6 is Badinu Oraon of the same village Kudra. He states that Madwa Orain was the wife of Gandur Oraon accused. He states he does not know as to since when she was missing. He however stated that the dead body was recovered from the well on Sunday. He further stated that there was no function on the preceding Thursday in the village. Nothing has been elucidated during cross-examination by the defence from this witness. P.W.-7 Banai Oraon has not supported the case of the prosecution. P.W.-8 is Smt. Dibla Orain of the same village Kudra. According to her, Madwa Orain deceased was her niece and that she had brought her up and got her into marriage with Gandur. She states that her dead body was recovered from the well about two years back. She has stated that Gandur or his family members did not inform them about the missing of Madwa and or the recovery of the dead body from the well. She stated that Madwa Orain was not suffering illness rather was in good health. She came to know about the death of Madwa from the villagers that the dead body of Madwa has been recovered from a well of Akhtar Mian. She had gone to see the dead body. She further stated that in her cross-examination that Gandur is son-in-law but could not say as to how and where Madwa was assaulted. She further states that the

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boys and girls and other members of the village go to work in the brick kiln and do not disclose it to their parents. P.W.-9 is Mangra Oraon @ Kato Oraon who has been declared hostile by the prosecution and has not supported the case. P.W.10 is Abdul Mujib, who was posted as Sub-Inspector at Sisai. On 19.08.1990 at 04:00 P.M. the information of this incidence was reported by Bukhla Oraon (P.W.5) which was recorded by the reader of the police station M.K. Panda and the then officer-in-charge Shyamla Prasad Sinha that inscribed his signature thereupon. He identified their handwriting and signature, which was basis for institution for the formal F.I.R. bearing Sisai P.S. Case No.93 of 1990, which was handed over to him for investigation. He has endorsed the identification of the formal F.I.R. as exhibit-3, the signature of Shyamla Prasad Sinha thereupon as exhibit-3/2 proved earlier. In his deposition he has described the place of occurrence at para 2 which is at half a kilometer from villager Kudra in lonely place surrounded by paddy fields on which paddy was planted. About 30 feet in the West is small room covered with tiles, the door of which opens in the East. At a distance about 10 to 15 feet from the village in the West is a paddy field where in the North he found the place to be in a disheveled state since the paddies were lying here and there. He found the soil of that place scraped and removed and also washed. Around the well is the land of Akhtar Mian. At a small distance in the South corner is E-Block colony. He further stated that upon recovery of the dead body with the help of villagers and chawkidar of the deceased Madwa Orain, the inquest report was prepared in his handwriting and signature in the presence of two witnesses. The carbon copy of the inquest report which has been proved and marked as exhibit-4 from has been endorsed by him. He further stated that dead body was sent for postmortem to Gumla Hospital. He arrested the accused on 21.08.1990 when he accepted his guilt. His confession was recorded. On his confessional statement the tangi used in the murder of Madwa Orain was recovered from the well of Ranjit Singh in the presence of the witnesses Bhikhu Singh and Gandura Oraon son of Bijla Oraon, Bhikhu Singh and Gandura Oraon inscribed their thumb impression there upon. The seizure list has been proved and identified by him marked as exhibit-5. Upon conclusion of investigation he submitted the charge-sheet. During course of investigation witness Mangru Oraon has stated that the accused Gandur Oraon was found loitering around the well of Akhtar Mian on the previous Friday and that this fact was told to Smt. Dibla

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Orain (P.W.-8). In his cross-examination this witness has stated that the F.I.R. was recorded on 19.08.1990 in the evening Thursday at 03:00 P.M. In the forwarding of the accused on 23.08.1990 the date of occurrence is reported as 19.08.1990, than he immediately corrected himself by stating that the corrigendum letter was sent on 03.09.1990 to the C.J.M., Gumla and the date of incidence was reported as 16.08.1990 which is the correct date and was a Thursday. The confession of the accused was recorded on 21.08.1990 in village Kudra. He had made a correction in the date of confessional statement from 22.08.1990 to 21.08.1990 and put and oblique thereupon. He denied the suggestion that Gandur Oraon was arrested on 19.08.1990 and that the date shown was incorrect and further that there was no recovery on the basis of his statement. These prosecution witnesses proved and identified the documentary evidences as discussed above up to exhibit-5.

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8. After closure of the prosecution evidence the statement of the two accused persons including the appellant was recorded under Section 313 Cr.P.C. to which they have denied their involvement. This appellant denied his involvement and stated that he does not know who killed his wife. 9. Upon consideration of the evidence on record and the submission of the learned counsel for the parties, the learned trial court convicted the present appellant for the charges under Section 302/201 of the Indian Penal Code but acquitted the other accused Gondro Oraon of the charge under Section 201 of the Indian Penal Code.

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10. Before us in appeal learned counsel, Mr. Ritesh Kumar representing the appellant has made the following submissions to assail the finding of the learned trial Court. He submits that the case is based on no legal evidence. There is no eye witness to the occurrence and there are no circumstantial evidence of such conclusive nature which establishes the guilt of the accused. The deceased was appellant's wife but she had her maternal home also in the same village. It has come in the evidence of P.W.-5 and P.W.-8 that Boys and Girls and other villagers of the village used to go to brick kiln for work and did not use to inform their family members. The appellant had therefore no knowledge or information about the absence of his wife Madwa Orain for the last four days. Leaned counsel for the appellant points out that the recovery of the tangi from the well of Ranjit Singh has not been properly proved as none of the two seizure list witnesses have supported the seizure of the tangi. Bhikhu Oraon has not been examined where as the Gandru Oraon was

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himself an accused facing the trial. The signature of the appellant on the seizure list is also not present. Thus the incriminating weapon of assault allegedly recovered from the well of Ranjit Singh pursuant to the purported confessional statement of the appellant has not been proved in order to admit it as a legal evidence under Section 27 of the Evidence Act. The dead body was recovered apparently after 96 hours of the death from a well and was in a sodden condition as per the report of the Medical Officer, Dr. Mirtunjaya Saraogi (P.W.2). The description of place of occurrence by the Investigating Officer in itself cannot be treated to be an incriminating legal evidence to convict the accused/appellant for the charge of the murder of his wife. The prosecution in this case has miserably failed to prove the motive behind the crime. In the light of all these lacunae in the prosecution case the conviction of the accused for the charge of murder and concealment of the evidence is not proper in the eye of law. The impugned judgment of conviction and order of sentence, therefore, deserves to be interfered by this Court in appeal. The appeal may be allowed.

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11. Learned Additional Public Prosecutor, Mr. Shekhar Sinha in support of findings recorded in the impugned judgment has in particular referred to the evidence of P.W.5, Bhukhla Oraon, the Mukhiya of village Kudra and the evidence in the nature of recovery of the weapon of assault tangi, on the confessional statement of the accused recorded in custody proved through the seizure list exhibit-5 by the investigating officer. He submits that the medical evidence on record shows that the dead body was of about 96 hours. Its shows that the wife of the appellant was missing for approximately four days. The maternal home and matrimonial house of the deceased both were in same village and there were no family members surviving in the maternal home of the deceased. The appellant being the husband of the deceased owed a duty to explain the circumstances of her missing for the last four days, since the deceased was his wife and the special circumstances relating to her missing or death were exclusively in the knowledge of the accused/appellant. This burden has not been discharged by the appellant under Section 106 of the Evidence Act. The circumstantial evidences brought on record by the prosecution have been conclusively established and coupled with the conduct of the accused/appellant, the injuries found on the dead body as proved by P.W.2, Dr. Mirtunjaya Saraogi through the postmortem report exhibit-2 show that the accused/appellant and he alone was the perpetrator of the act of

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murder of his wife, which he has also confessed on his arrest by the police on 21.08.1990. These incriminating circumstances taken together form a complete chain which points out to only hypothesis of the guilt of the accused and no other. The appellant has also admitted in his confession that he killed his wife because he suspected that she was involved with one Birsa Oraon of the same village. The appeal is therefore devoid of merit and to fit to be dismissed.

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12. We have considered the submissions of learned counsel for the appellant and learned Additional Public Prosecutor, Mr. Shekhar Sinha representing the State, gone through the materials on record including the fardbeyan, the framing of the charge, the evidence of ten prosecution witnesses and five prosecution exhibits, the statement of the accused under Section 313 of the Cr.P.C. and also perused the impugned judgment of conviction and order of sentence. We have scanned the material evidence in depth as referred to herein above. The case is based on circumstantial evidence since there are no eye witness to the occurrence. It is clear from the medical evidence that the death occurred due to ante-mortem injures caused by sharp cutting weapon on 16.08.1990 and the dead body was recovered on 19.08.1990. The Medical Officer, P.W.2, who conducted the postmortem found it to be of 96 hours. It indicates that wife of the accused/appellant was missing for the last four days. The accused/appellant however made no effort to trace her or to report of her missing to the police station or the panchaiyat as categorically stated by the informant, who is the Mukhiya of the village Kudra, P.W.5. The argument advanced on behalf of the appellant on that score is not worthy of acceptance since on the one hand the maternal house of the deceased is in the same village Kudra and on the other hand there were no members of the family like father, mother and brother of the deceased alive. The deceased was the wife of the appellant and his conduct in the aforesaid circumstances appear to be unnatural. The recovery of the weapon of assault pursuant to exhibit-A the confessional statement of the accused, adduced without objection, from the well of Ranjit and proved by the Investigating Officer constitute a serious incriminating legal evidence admissible under section 27 of the Evidence Act to show the involvement of the accused in the crime. The disclosure statement is admissible under Section 27 of the Evidence Act as an exception to the rule regarding admissibility of extra judicial confession under the Evidence Act based on the doctrine of confirmation by subsequent

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facts. The accused alone does have the knowledge of such special facts which are related to the commission of the offence. If his confession during custody lead to recovery of that fact it amounts to a confirmation of the facts showing the involvement of the accused in the commission of the offence. The doctrine of confirmation by subsequent events under Section 27 of the Evidence Act and its admissibility as legal evidence has been expounded by the Apex Court in the case of Pawan Kumar Alias Monu Mittal Versus State of Uttar Pradesh and another and analogous cases, as reported in (2015) 7 SCC 148 para 29, profitably quoted herein under:-

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29. It is settled principle of law that statements made by an accused before a police official which amount to confession is barred under Section 25 of the Evidence Act. This prohibition is, however, lifted to some extent by Section 27 which reads as thus:

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“27. How much of information received from accused may be proved- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

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In the light of Section 27 of the Evidence Act, whatever information given by the accused in consequence of which a fact is discovered only would be admissible in the evidence, whether such information amounts to confession or not. The basic idea embedded under Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or noninculpatory in nature, but if it results in discovery of a fact it becomes a reliable information.

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When the evidence of the prosecution is linked together in such a fashion they form a complete chain of circumstances conclusively proved leading to the only hypothesis, which is not in consonance with the innocence of the accused/appellant but only points out to his guilt and of no other person. We find from the evidence of the Investigating Officer also P.W.-10 that the place of the occurrence is the well and its surrounding paddy fields and the postmortem report shows that the dead body was sodden and of 96 hours. When all these incriminating materials are taken together we do not bear any doubt that the prosecution has been able to bring home the charge under section 302 of the I.P.C. as against the accused/appellant herein. We therefore, do not find reason to interfere in the impugned judgment of conviction and order of sentence both dated 08.04.1996 passed in Sessions

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Trial No. 120 of 1991 by the learned Additional Sessions Judge, Gumla. 13. Accordingly, the appeal is dismissed as being devoid of merit.

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14. The appellant who is on bail, his bail bonds are cancelled. Let him be taken into custody for serving out the remaining part of his sentence. 15. Let the Lower Court Record be sent down to the Court concerned forthwith along with a copy of the judgment.

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(Aparesh Kumar Singh, J.)

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(Kailash Prasad Deo, J.)

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Jharkhand High Court, Ranchi Dated the 13.03.2019 Jay/R.S.

Gandur Oraon v. State of Bihar

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Gandur Oraon v. State of Bihar

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