B.B. Mangalmurti, J
1. Heard learned counsel for the appellant and learned counsel for the State.
2. The sole appellant is aggrieved by the impugned Judgment of conviction dated 20.05.1996 and Order of sentence dated 21.05.1996, passed by the
learned 1st Additional Sessions Judge, Gumla, in Sessions Trial No. 236 of 1995, whereby, the appellant along with his father, the co-accused Roto
Oraon, has been found guilty and convicted for the offences under Section 302/34 of the Indian Penal Code. Upon hearing on the point of sentence,
the appellant has been sentenced to undergo R.I. for life for the offence under Section 302 of the Indian Penal Code.
  The appellant Roto Oraon died during the pendency of this appeal, as such his name was deleted vide order dated 12.4.2018.
3. The prosecution case is based on the fardbeyan of Birso Orain stating that at about 9/10 a.m. she along with her husband Jatru Oraon and his son
Birsa Oraon and Hal Nahas, Eta Kharia and Pusha Kharia had gone to sow paddy in their field Kusumdon situated at a distance of 1 km. from the
village. The informant went for drinking water at the well of the paddy field which was at a distance of 500 yards, at that time Roto Oraon and Karmu
Oraon came and started assaulting her husband and son with basula tangi and kutti. Her husband and son ran towards the field of Dhondhi Chick
Baraik to save their life but both the accused persons chased them and assaulted on their head as a result of which both fell down and died. She ran
from the well but by that time they had died. She stated that this occurrence was witnessed by Hal Nahas, Eta Kharia and Pusha Kharia also.
  The villagers also came there on hulla. She stated that her husband had previous dispute with both accused persons relating to partition. She
further stated that earlier Panchayti was held and the Panches had divided the lands among them and half of the land was given to her husband Jatru
Oraon and another half was given to Roto Oraon, his brother. After this partition her husband and son had gone there for sowing paddy but Roto
Oraon and his son assaulted them and committed their murder. On the basis of the fardbeyan, Gumla P.S. Case No. 108 of 1995, corresponding to
G.R. No. 381 of 1995, was instituted for the offences under Sections 302/34 of the Indian Penal Code, against the accused Roto Oraon and Karmu
alias Karma Oraon and investigation was taken up. After investigation, the police submitted the charge-sheet in the case.Â
4. After commitment of the case to the Court of Session, charge was framed against both accused for the offences under Section 302/34 of the Indian
Penal Code, and upon the accuseds' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, thirteen witnesses were
examined by the prosecution, including the Investigating Officer and the Doctor, who had conducted the post-mortem examination on the dead bodies
of the deceased. Â
5. Out of the material witnesses examined, P.W.-1 Birso Orain is informant of this case. P.W.2 is Roto Kharia, P.W.3 Eta Kharia
P.W.4 is Pusha Kharia, P.W.5 is Bandhu Oraon, P.W.6 is Gandur Kharia, and P.W.7 is Makru Kharia who have supported the case. P.W.10 is
Dr. R.K. Beck, who has conducted the post-mortem examination on the dead body of Jatru Oraon, P.W.9 is Dr. A.D.N. Prasad who has examined
the accused Roto Oraon, P.W.12 is Dr. Manibhushan Prasad who conducted the post-mortem examination on the dead body of Birsa Oraon P.W.11
is Bandhan Sahu, I.O. of this case. P.W.8 is Chunnu Oraon tendered for cross-examination. P.W.13 is Sri A.N. Upadhyay, Judicial Magistrate, 1st
Class, Gumla.Â
 Accused Roto Oraon and Karmu Oraon were examined under 313 Cr.P.C in which they denied the evidence.Â
6. P.W.1 is Birso Orain who stated that on the date of occurrence her husband and son gone to plough the field for sowing paddy along with Hal
Nahas, Eta Kharia and Pusha Kharia and she also accompanied them. She went for drinking water on the well. At that time both the accused persons
Roto Oraon and Karmu Oraon came with Kori and Baluwa and started assaulting her husband and son. She stated that Roto is her Dewar and
Karmu is son of Roto. Hal Nahas, Eta Kharia and Pusha Kharia started making hulla then her husband and son ran from Kusumdon to the field of
Dhondhi Chick Baraik. Both accused chased them and assaulted till they fell down and died. She ran towards them and found them dead. She further
stated that her husband used to plough this Kusumdon well before the incidence and when Roto Oraon also wanted to plough the field then a
Panchayti was held and the Panches partitioned the land. At 4 p.m. Daroga Jee came and she gave her statement. The statement was read over to
her then she put her L.T.I. over the same. She identified both accused. In her cross-examination, she stated that the Panchayti was held when her
children were young. She further stated that when her husband and son fell down on the land of Dhondhi Chick Baraik nobody was present
there. Â
7. P.W.2 is Roto Kharia who stated that in his presence Daroga prepared Inquest report of the dead body of Jatru Oraon and Birsa Oraon which was
read over to him and then finding it correct he and Makru Kharia put their signatures as witnesses. He proved his signature as Exts.1, 1/1, 1/2 and 1/3.
8. P.W.3 Eta Kharia stated that on the date of occurrence he had gone for ploughing the field along with Pusha, Jatru and Birsa. Birsai Orain, wife of
Jatru had also gone there. They were ploughing the Kusumdon for sowing paddy which belonged to Jatru Oraon. At that time about 9 a.m. Roto and
his son Karmu came variously armed with Basula and Kori. Karmu was also having a Tangi in his hand and asked Jatru not to sow paddy and on his
refusal they started assaulting them with Basula, Baluwa and Kori and when they started making hulla then Jatru and his son ran towards the field of
Dhondhi Chick Baraik. Both the accused persons chased them and again assaulted them. Jatru and his son Birsa fell down and died. Jatru’s wife
also came there making hulla. He identified both accused. During his cross-examination he gave the details of the land. His statement was recorded
by the Magistrate also.
9. P.W.4 is Pusha Kharia. He also supported the prosecution case and narrated the occurrence at about 9 a.m. when he was ploughing on the
Kusumdon along with Eta Kharia, Jatru Oraon and Birsa Oraon, accused Roto Oraon came with Kori and Karmu with Tangi and asked Jatru Oraon
not to plough the land. On his refusal, they started assaulting Jatru Oraon and his son, then they ran towards the field of Dhondhi Chick Baraik then
both the accused persons chased and assaulted them causing their death. When they were assaulting Birso Orain (wife of Jatru) was drinking water
from the well of the field. Seeing the occurrence, she also came running but the accused persons fled away. He also stated that he has given his
statement before the Magistrate. He identified both the accused. He stated that Police had also taken his statement on the date of the occurrence at
about 8 p.m. In his cross-examination, he stated that the house of Birso is about one kilometer from Kusumdon.Â
10. P.W.5 is Bandhu Oraon. He stated that on the date of occurrence i.e. 02.06.1995 at about 9/10 a.m. he heard hulla and went towards Kusumdon.
After reaching, he saw that on the field of Dhondhi Chick Baraik, Jatru Oraon and Birsa Oraon are lying dead with profused bleeding. Birso Orain
wife of Jatru Oraon told that Roto Oraon and Karmu Oraon assaulted them. He identified both the accused. He also stated that his statement was
taken by the Police on the date of occurrence itself.
11. P.W.6 is Gandur Kharia. He stated in court that he knows the deceased Jatru Oraon and accused Roto Oraon. They are brothers and their father
died 12-13 years back. After the death of their father, these lands were partitioned by the village Panch. He was present in that Panchayti and
Kusumdon was divided half and half between both the brothers. He stated that earlier theft of Rs.1400/- was committed from the house of Jatru
Oraon and in that case Roto Oraon was an accused and thereafter Jatru Oraon started plouging that land. He identified both accused and stated that
both of them had killed Jatru and his son Birsa Oraon. In his cross-examination, he stated that the partition took place 12 years ago and many villagers
had participated in that Panchayti.Â
12. P.W.7 is Makru Kharia. He stated that the dead bodies of Jatru and Birsa were seen by the I.O. in his presence and the I.O. prepared inquest
report which was read over to him and then he signed the same. His signature has already been marked as Ext.1/2. The Police also seized the
blood stained soil and prepared seizure list in his presence. He identified his signature on the seizure list as Exts.1/4 and 1/5. He also stated that Police
recovered the Iron made Tangi with wooden Bent and Bansuli from the house of accused Roto Kharia. Both were stained with blood. The seizure list
of Tangi and Basuli were prepared in his presence. He proved his signature on the seizure list as Ext.1/6. He proved the signature of Bandhan Oraon
on the seizure list as Ext.1/7. In his crossexamination, he stated that he had signed all the documents at the time of seizure at the place from where it
was seized. None of the documents were signed by him in the police station. He denied that he has enmity with Roto Kharia.
13. P.W.8 is Chumnu Oraon, was tendered by the prosecution.Â
14. P.W.9 is Dr. Akhouri Durga Nandan Prasad. He stated that on 04.06.1995 at 12.30 p.m. he examined Roto Oraon (the accused since dead) and
found the following injuries:-
(1) Swelling over right breast suspected to be fracture X-ray was advised.Â
(2) Swelling on right knee.
  In the opinion of doctor, both the injuries were caused by hard blunt substance within 24 to 48 hours and injury no. 2 is simple in nature. He
proved the injury report as Ext.-2.
15. P.W.10 is Dr. R.K. Beck conducted post-mortem examination on the dead body of Jatru Oraon aged about 60 years on 03.06.1995 and found
following ante mortem injuries:-
 Incised wound 4†x 1 ½†x 3†on the right of upper part of neck below the right lower job. Mandible with blood coming from the wound
cutting of laryngeal cartridges, blood stained scattered on margin of clots.Â
 In the opinion of doctor, the weapon used was sharp cutting weapon may be a Tangi and it was sufficient to cause the death in ordinary course of
nature. He proved the post-mortem report as Ext.3. In his cross-examination, he stated that due to above injury spontaneous death is possible.Â
16. P.W.11 is Bandan Sahu, I.O. of the case. He stated that on 02.06.1995, he was posted as ASI and Chowkidar Jitram Singh came and informed
him about murder of Jatru and Birsa in village Bela. After Sanha Entry No.47 dated 02.06.1995 and left for the place of occurrence for ascertaining
the facts. There he recorded the fardbeyan of Birso Orain, the wife of deceased Jatru Oraon and proved the fardbeyan as Ext.4. He also proved
endorsement of Officer Incharge as Ext.4/1. Formal F.I.R.was proved as Ext. 5. He also prepared Inquest report in presence of independent
witnesses and proved as Ext.6 and 6/1. He also seized blood stained soil near the dead bodies of both the deceased and prepared seizure lists in
presence of independent witnesses and same was proved as Ext.7. Both the dead bodies were sent for post-mortem examination. He inspected the
place of occurrence and narrated about them. He stated that the field of Dhondhi Chick Baraik is at a distance of 30 yards from Kusumdon of the
deceased. He stated that the statement of the witnesses was recorded under Section 164 of the Code of Criminal Procedure before the Magistrate.
Both accused persons Roto Oraon and Karmu Oraon were arrested by him. He had seized blood stained Tangi and Basuli from the house of accused
in presence of witnesses which have been marked as Ext. 7/1. After investigation charge-sheet was submitted. He stated that he has recorded
separately the statement of Bandhu Oraon Telga, Dukeshwar and Gandur Kharia in his diary.
17. P.W.12 is Dr. Manibhushan Prasad. He stated that on 03.06.1995 at 1 p.m. he conducted the post-mortem examination on the dead body of Birsa
Oraon aged about 35 years and found the following injuries:-
 Incised wound over right parietal region 4†x 1†upto bone deep middle fraction of right parietal bone had laceration of brain.Â
  The injury was grievous in nature and sufficient to cause death in ordinary course. Cause of death was hemorrhage and shock. He proved the
post-mortem report as Ext.8.Â
 In his cross-examination, he stated that after the above injury a person can move to some distance. The injury was caused by a sharp weapon.
18. P.W.13 is Sri A.N. Upadhyay, Judicial Magistrate, 1st Class, Gumla. He stated that on 17.06.1995 on the direction of Chief Judicial Magistrate,
Gumla he recorded the statements of witnesses Etwa Kharia and Pusha Kharia under Section 164 of the Code of Criminal Procedure. After being
satisfied that the witnesses were giving voluntary statement and were not under any pressure. Both the witnesses were presented before him by the
I.O. who also identified them and after that he left the court room. Thereafter statements under Section 164 of the Code of Criminal Procedure of
both witnesses were recorded. He proved these statements of both the witnesses as Exts. 9 and 9/1.Â
19. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. The defence has
not adduced any witness in this case. On the basis of the evidence on record, the sole appellant has been found guilty, and convicted and sentenced by
the Trial Court below.Â
20. Learned counsel for the appellant submitted that the wife of deceased was not present as she had gone for drinking water from the well therefore
she is also not an eye witness of the occurrence. He further submitted that other witnesses were also not present so their evidences cannot be relied
upon. None of the witnesses have stated that which accused assaulted at what part of body by what weapon, therefore, accused is entitled for the
benefit of doubt. He relied on a decision of Sanjay Gari & Ors. Versus State of Jharkhand reported in 2018(2) JBCJ-600 (HC) in which it has been
held that the witnesses have not stated that deceased was assaulted by whom and by what weapon and on what part of body. The eye witnesses
have made only omnibus allegation of assault against all accused persons without stating which of accused had assaulted deceased, by what weapon
and on which part of the body. 21. Learned Additional P.P. appearing on behalf of State submitted that the eye witnesses examined as P.W.1-
Birso Orain , P.W.3- Eta Kharia and P.W.4 Pusha Kharia have fully supported the case which is also fully supported by the evidence of the doctors
who conducted post-mortem upon the deceased. He further submitted that the blood stained weapon used in this case by the accused persons were
seized from the house of the accused therefore, the prosecution have able to prove the charges leveled upon accused persons beyond any doubt.Â
22. From record it appears that appeal was filed by both convicts but during pendency of appeal convict Roto Oraon died in the year 2014, after
receipt of information from concerned Police station appeal relating to Roto Oraon abated, vide order dated 12.04.2018.
23. Having heard learned counsels for both the sides and upon going through the record, we find that the occurrence had taken place over the land
which was being ploughed by the deceased where informant and other witnesses were also present. There is consistency in the evidences of the eye
witnesses and all have stated that the deceased were attacked with Tangi and Basuli. These weapons were also seized from the house of accused
persons in presence of independent witness and the same was corroborated by the evidence of the I.O. The statement of witnesses recorded under
Section 164 Cr.P.C. were also brought on record which amply proves prosecution version. The witnesses have narrated the occurrence and they
stood the test during lengthy cross-examination. No ambiguity was found and all the witnesses corroborated the factum of assault resulting to
spontaneous death of deceased persons. The report of the post-mortem also corroborated the prosecution case. The decision relied upon by the
counsel for the appellant is not applicable in this case as the witnesses have proved the prosecution case beyond all reasonable doubts.
24. For the foregoing reasons, we do not find any illegality in the impugned Judgment of conviction dated 20.05.1996 and Order of sentence dated
21.05.1996, passed by the learned 1st Additional Sessions Judge, Gumla, in Sessions Trial No. 236 of 1995, convicting and sentencing the appellant
Karma Oraon, for the offence under Section 302 of the Indian Penal Code, which, we hereby, affirm. The appellant Karma Oraon is already in
custody undergoing the sentence.Â
25. We are also of the considered view that victim of this case i.e. Birso Orain, if she is alive should be adequately compensated under the victim
compensation scheme under Section 357-A of the Cr.P.C. We, accordingly direct the Member Secretary, Jharkhand Legal Services Authority, Ranchi
to take appropriate action in this matter, in consultation with concerned District Legal Services Authority, so that P.W.1-Birso Orain, if she is alive
may be duly compensated under the victim compensation scheme at the earliest. Let a copy of this Judgment be sent to the Member Secretary,
JHALSA, Ranchi for the needful.
26. We do not find any merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned
forthwith, along with a copy of this Judgment.Â
