Jharkhand High Court
(Against The Judgment Of Conviction ... vs The State Of Jharkhand on 17 September, 2024
Author: Ananda Sen
Bench: Ananda Sen
Cr. Appeal (D.B.) No. 176 of 2006
.........
(Against the judgment of conviction dated 26.06.2004 and order of
sentence dated 28.06.2004 passed by learned Additional District and
Sessions Judge, Fast Track Court, No.1, Gumla in Session Trial No.65 of
2003). .........
Biro Kharia, S/o Haru Kharia, P.S.- Palkot, District- Gumla..... Appellant
Versus
The State of Jharkhand .... Respondent
.........
For the Appellant : Mr. Sanjay Kumar Pandey No.2, Advocate
For the State : Mr. Bhola Nath Ojha, Additional Public Prosecutor
-----------
PRESENT
Sri Ananda Sen, J.
Sri Gautam Kumar Choudhary, J.
JUDGMENT
CAV On 09.09.2024 Pronounced On 17 /09/2024
Per Ananda Sen, J.:
The instant criminal appeal is directed against the conviction of
the sole appellant under Sections 302 of the Indian Penal Code vide
judgment of conviction dated 26.06.2004 and order of sentence dated
28.06.2004, whereby he has been sentenced to undergo rigorous
imprisonment for life.
2. The prosecution case is based on the fardbeyan of Sukra Kharia
(P.W.-5). He stated that his younger brother, Budhwa Kharia went to
Palkot market and while returning at about 07.00 P.M., when he
reached near Village- Upar Khambhan, the accused, Biro Kharia, who
is his uncle, along with his wife, daughter and Lohar Kharia
assaulted Budhwa Kharia with stones and sticks on his head. When
Budhwa Kharia became seriously injured, all the accused persons
fled from there. This information was conveyed to him by the
villagers of 'Upar Khambhan'. After receiving such information, his
whole family went to the place of occurrence and he found his
younger brother injured seriously and he was not speaking. Then
they brought him to Primary Health Centre, Palkot from where the
Doctor referred him to the Sadar Hospital, Gumla. On the way he
died. It has been stated that cause of this incident was land dispute.
3. On the aforesaid fardbeyan, Palkot P.S. Case No.14 of 2002 was
registered under Sections 302/34 of the Indian Penal Code. The
police after investigation filed chargesheet against the appellant
under Sections 302/34 of the Indian Penal Code.
4. Thereafter the Court took cognizance and committed the case to
the Court of Sessions. As the appellant pleaded not guilty, charge
was framed and he was put on trial. Seven witnesses have been
examined in this case, who are as follows:-
(i) P.W.-1 Yugal Singh
(ii) P.W.-2 Gulpa Ram Negasia
(iii) P.W.-3 Ratia Kullu
(iv) P.W.-4 Sukro Devi
(v) P.W.-5 Sukra Kharia, informant of this case
(vi) P.W.-6 Dr. Ajit Kumar Agrawal
(vii)P.W.-7 Rana Vijay Kumar Singh, Investigating Officer in this case.
5. The following documents and material objects were also
exhibited by the prosecution:-
Exhibit-1 Signature of Jugal Singh on inquest report (carbon copy)
Exhibit-1/1 Signature of Ratia Kullu on carbon copy of inquest report
Exhibit- 2 Signature of Sukra Kharia on fardbeyan
Exhibit-2/1 Signature of Pairo Tirkey
Exhibit-3 Postmortem report
Exhibit-4 fardbeyan
The Trial Court after completion of the prosecution evidence
examined this appellant under Section 313 of Cr.P.C. and after
hearing the parties, convicted the appellant under section 302 of IPC
and sentence as aforesaid.
6. Challenging the judgment, learned counsel appearing on behalf
of the appellant submitted that it is the prosecution case that P.W.-2
and P.W.-3 are the eye witness. P.W.-2 stated during evidence that he
is an eye witness and seen the occurrence, but his statement cannot
be believed as the Investigating Officer (P.W.-7) in his evidence had
clearly stated that, no such statement was given by him that he had
seen the occurrence, during investigation. Further, P.W.-3 is also a
hearsay witness, who gathered the information of the occurrence
from P.W.-1, who himself was declared hostile. As per him the
statement of P.W.-4, who is the wife of the deceased to the effect that
she went to the place of occurrence and saw her husband lying in
pool of blood in injured condition, who stated before her that it is this
appellant, who had committed murder, is also not believable as in
the F.I.R. itself, the informant had not stated that the deceased made
any disclosure regarding this incidence, rather he stated that he was
not in a position to speak. Thus infact there is no other eye witness in
this case. Further, he stated that the deceased died due to an accident,
which is evident from the post-mortem report, which suggest that he
fell over some rock while cycling and the cycle was also found lying
over the deceased, when the informant and others reached the place
of occurrence. On this ground, he prays that this appeal will be
allowed.
7. Learned counsel for the State argues that from the medical
evidence and post-mortem report, it is clear that the death is
homicidal. P.W.-2 clearly stated that he had seen this appellant
assaulting the deceased. He stated that it is not necessary to divulge
the name of the person, who had informed the informant about the
occurrence and about the involvement of this appellant. P.W.-2 is
also from Upar Khambhan thus, non-mentioning his name in the
F.I.R. is not fatal.
8. The prosecution in this case through P.W.-6, the Doctor proved
that the death of the deceased is homicidal. The post-mortem report
is Exhibit-3. The Doctor found the deceased was bleeding from the
left ear and also found the following injuries:-
"(i)Bandaged head and face on opening, one unstitched lacerated wound of
about 4"x 1" brain deep vertically placed over left side of occipital region of
head with fracture of left parito occipital bone 4" size in sagittal plane. On
cut section there was subdural hematoma with laceration of brain and
meninges.
(ii)Unstitched one lacerated wound of about 3"x ½"x ½" below left eye.
(iii)One abrasion 1"x ½" below right eye.
(iv)One lacerated wound of 1"x ½"x scalp deep over left eye-brow.
(v)Two abrasions 1"x 1" over right knee and ½"x ½" two inch below right
knee.
(vi)One abrasion 2"x ½" over left side of face."
He opined that all the above injuries were antemortem in nature
caused by hard and blunt substances. Injury No.1 was grievous and
the same was sufficient to cause death in ordinary course of nature.
The doctor further opined that the cause of death is shock due to
brain injury and hemorrhage. He further stated that these types of
injuries can be caused by stone and stick. Though in cross-
examination, he stated that the injury can also be caused due to fall
on rocky area, but considering the nature of injuries and numbers of
injuries on the person, we are not inclined to accept the argument of
the learned counsel for the appellant that death is accidental. We
hold that the death is homicidal. Thus, the prosecution has proved
the death to be homicidal.
9. Now, the next issue is whether the prosecution is able to prove
the charge against the appellant that he assaulted the deceased or
not. To prove the charge there are two main witnesses i.e. P.W.-2 and
P.W.4. P.W.-2 stated that while he was returning from the market, he
saw the appellant, his wife, daughter and another accused assaulting
the deceased with stone and stick. As per the statement of this
prosecution witness, he appears to be an eye witness. In cross-
examination, he stated that his statement was recorded by the police
during investigation. He was confronted that he had not narrated the
fact of the incident to the police during investigation to which, he
denied it. However, P.W.-7, the Investigating Officer at paragraph- 8,
specifically admitted that this witness had not stated before him
during investigation that it is this appellant and others, who
assaulted the deceased and committed the murder. Though in the
F.I.R., the informant stated that he had received information about
the fact that it is this appellant along with his family members, who
had assaulted the deceased, but surprisingly, reference of P.W.-2 is
not there in the F.I.R. From the aforesaid evidence, it is clear that for
the first time in the Court, this witness had stated about the
involvement of this appellant. Weighing his testimony, we hold that
he is not actually an eye witness to the occurrence. He is not a reliable
witness.
10. Another witness to substantiate the prosecution case is P.W.-4,
who is none, but the wife of the deceased. She states that on receiving
information about the injury and assault upon the deceased, she
along with family members went to the place of occurrence, where
she found her husband in injured condition, who stated that it is this
appellant, his wife, daughter and nephew, who had assaulted him by
stick and stone. She further stated that thereafter she took him to
Palkot Hospital and from where the Doctor referred him to Gumla,
but on the way, he died. However, P.W.-7 the Investigating Officer at
para 10 of his evidence has stated that the said witness did not
disclose before him that when she reached the place of occurrence,
her husband asked him for water and disclosed the fact and then, he
fell unconscious. Further she did not disclose also that her husband
had told her the name of the assailants. Thus, there is improvement
in her version while deposing in Court. Accordingly, to us she is also
not a reliable witness.
11. The informant is P.W.-5, who admittedly is not an eye witness.
He stated that on receiving the information, he went to the place of
occurrence where the deceased asked for water and narrated to him
that it is this appellant and others, who had assaulted him. This fact
which, he states in his evidence is surprisingly missing in the
fardbeyan. In the fardbeyan, he had not stated that the deceased was in
a position to talk when he reached the place of occurrence. He, rather
in the F.I.R. stated that the deceased was not in a position to speak.
This fact clearly suggest that this witness had developed and
improved the story and tried to introduce a dying declaration by the
deceased. This important information and disclosure of the
important fact is missing in the F.I.R., which in the very first version
of the prosecution about the offence. This makes the testimony of the
informant on this point, to be unreliable.
12. From the discussion of the aforesaid evidence, the credibility of
three witnesses i.e. P.W.-2, P.W.-3, P.W.-4 and P.W.-5 becomes
doubtful. Except these witnesses, admittedly there is no eye witness
to the occurrence and those witnesses only stated that there was a
land dispute between the parties. To prove the said land dispute
there is no other material before us save and accept the oral
statement. Since we have rejected the evidence of P.W.-2, P.W.-3 and
P.W.-5 on the ground that they are unreliable, there are no material
before us on record to come to a conclusion that this appellant had
committed the offence.
13. In absence of any credible eye witness, this case is thus based on
circumstances. However, no circumstances have been proved by the
prosecution to implicate this appellant. There is reasonable doubts in
the case of the prosecution. Thus, I acquit the appellant holding that
the prosecution has failed to prove the guilt of this appellant beyond
all reasonable doubts. The judgment of conviction dated 26.06.2004
and order of sentence dated 28.06.2004 passed by learned Additional
District and Sessions Judge, Fast Track Court, No.1, Gumla in Session
Trial No.65 of 2003 is hereby set aside.
14. Accordingly, the instant Criminal Appeal is allowed.
15. As the appellant is already on bail, he and his bailors are
discharged from the liabilities of the bail bonds.
16. Let Trial Court Records along with a copy of this judgment be
sent to the concerned trial court forthwith.
17. Interlocutory application, if any, also stands disposed of.
(Ananda Sen, J.)
Gautam Kumar Choudhary, J: I agree.
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated 17/09/2024
NAFR /R.S./ Cp 03.
