The importance of ocular testimony over medical evidence and the application of Section 34 of the IPC in proving common intention.

JUDGMENT :

(Sujit Narayan Prasad, J.) :

1. The instant appeal is against the Judgment of conviction and Order of sentence dated 10.06.1994 passed by the Additional Judicial Commissioner, Lohardaga in Sessions Trial No.212/111 of 1990, whereby and whereunder, the appellants, namely, Mahabir Oraon, Narayan Oraon and Budhram Oraon have been convicted under Section 302 read with Section 34 of the Indian Penal Code and they have been sentenced to suffer R.I. for life under Section 302 read with Section 34 of the Indian Penal Code.

2. The prosecution story in brief is that on 08.12.1989 at about 7:00 a.m., the informant, namely, Some Oraon, P.W. 7 along with his brothers, namely, Mangra Oraon and Sewar Oraon (deceased) went to his field for transplantation of potato and to plough their field. At about 12 o’clock in the noon, the informant’s wife, namely, Hira Orain, P.W. 3 came and reported that the accused persons, the appellants, namely, Mahabir Oraon, Narayan Oraon and Budhram Oraon have demolished the wall of the house. The informant along with his brothers ran towards their house after getting such information and when they reached their house, accused Budhram Oraon came armed with spade and threw the same upon Sewar Oraon (deceased) but it did not hit Sewar Oraon. It has been alleged that accused Mahabir Oraon came out from the house and gave spade blow on the head of Sewar Oraon, in consequence thereof he fell down and became unconscious. There was profuse bleeding from the head of Sewar Oraon.

It has been alleged that accused Narayan Oraon, appellant no.2 chased the informant for assaulting. Thereafter, the informant along with his brother Mangra Oraon and Ramdayal Oraon, P.W. 4 brought the injured Sewar Oraon to Lohardaga Hospital for treatment. Later on from Lohardaga Hospital, Sewar Oraon was referred to R.M.C.H., Ranchi where he succumbed to injury in course of treatment.

The case was registered as Lohardaga P.S. Case No.156/89.

After investigation, the Police submitted charge-sheet in the case. After commitment of the case to the Court of Session, charge was framed against the accused persons for the offence under Section 302/34 of the Indian Penal Code and the accused persons’ pleading not guilty and claiming to be tried, they were put to trial. In course of trial, 10 witnesses were examined by the prosecution, including the Investigating Officer and the Doctor, who had conducted the postmortem.

3. The instant appeal has been filed on the following grounds:-

(i) None of the witnesses have fully supported the prosecution version and without taking into consideration the aforesaid aspect of the matter, the judgment of conviction/sentence has been passed, as such, the same is not sustainable in the eye of law.

(ii) The testimony of the prosecution witnesses is not being corroborated from the medical evidence and as such, on this ground also, the prosecution case is to be vitiated.

(iii) According to Fardbeyan, Hira Orain, P.W.3 had gone to the field and informed about demolition of the wall where her husband along with two brothers came to the house and Sewar Mahto (deceased) was assaulted. But in deposition of witnesses, especially P.W.1 Jatti Orain, P.W. 2 Jatri Orain (wife of the deceased) and P.W.3 Hira Orain have stated that all three brothers were coming to take meal. Thus, from the evidence of P.W.1, P.W. 2 and P.W.3, it appears that Some Oraon, P.W.7 could not have seen the actual assault.

(iv) The fact would demonstrate that it is a case and counter case and as such, the assault took place but the same cannot be construed to be with an intention to kill and as such, Section 302 will not be attracted but that aspect of the matter has not properly been appreciated by the learned trial Court.

4. Learned counsel for the appellants on the aforesaid backdrop, has submitted that the impugned judgment is not sustainable in the eye of law.

5. Per contra, Mr. Ravi Prakash, learned Spl. Public Prosecutor has submitted that the