Khedan Rawani vs The State Of Bihar (Now Jharkhand)
2025 Latest Caselaw 1696 Jhar

Jharkhand High Court

Khedan Rawani vs The State Of Bihar (Now Jharkhand) on 14 January, 2025

Author: R. Mukhopadhyay

Bench: Rongon Mukhopadhyay

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Cr. Appeal (DB) No.61 of 1997

1.   Khedan Rawani
2.   Pawan Rawani
3.   Dhiran Rawani
     All son of Late Rijhu Rawani
4.   Nathu Rawani
5.   Meghu Rawani
     Both sons of Sudan Rawani
6.   Basudeo Rawani, son of Khedan Rawani,
     all residents of village Bhurugiya, P.S. Mahuda,
     District Dhanbad.                       -----  Appellants
                              Versus
The State of Bihar (now Jharkhand)           ----- Respondent

                         PRESENT
      HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
      HON'BLE MR. JUSTICE ARUN KUMAR RAI
                         -------
For the Appellants : Mr. A.K. Kashyap, Sr. Advocate
                        Ms. Supriya Dayal, Adv.
                        Ms. Omiya Anusha, Amicus
For the State          : Mrs. Nehala Sharmin, Spl.P.P
                             -------

CAV on 09.12.2024                      Pronounced on 14/01/2025
                       JUDGMENT

Per R. Mukhopadhyay, J.

1. Heard Mr. A.K. Kashyap, learned senior counsel for the appellant and Ms. Amiya Anusha, learned Amicus and Mrs. Nehala Sharmin, learned Special P.P.

2. This appeal is directed against the judgment and order of conviction and sentence dated 21.02.1997 passed by Shri P.N. Yadav, learned Sessions Judge, Dhanbad in S.T. No. 02/1996 whereby and whereunder the appellant no. 1 has been convicted for the offence punishable under Section 302 I.P.C. while the rest of the appellants have been convicted under Section 302/34 I.P.C. and all the appellants have been sentenced to rigorous imprisonment for life.

3. The Fardbayan of Ishwarmani Rawani was recorded on 4.7.1995 in which it has been stated that on the same day at 9.30 a.m. the accused persons started abusing the inmates of the house of the informant and when the father of the informant namely Arjun Rawani returned home after performing puja in the temple the accused persons became silent. The informant thereafter went to take bath in a nearby tank and when he was coming back, he saw the accused persons and the inmates of his family engaged in a quarrel at which the informant forbade his family members not to indulge in such act. The informant thereafter went inside his house despite being prevented from entering by the accused persons. It has been alleged that the informant after entering into the house saw Ashutosh Rawani and Basudeo Rawani standing at the door of his father while Khedan Rawani was twisting the neck and mouth of the father of the informant and was assaulting on his mouth which resulted in his death. The cause of the incident is a long-standing land dispute.

Based on the aforesaid allegations, Baghmara (Mahuda) P.S. Case No. 201/1995 was instituted under Section 302 / 34 IPC. On completion of investigation, charge sheet was submitted and after cognizance was taken the case was committed to the court of Sessions where it was registered as S.T. No. 02 of 1996. Charge was framed against the accused under Section 302 / 34 IPC which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as 11 witnesses in support of its case.

5. P.W.1 Budhan Rawani has stated that he had heard that Arjun Rawani was murdered by Khedan, Sudan, Pawan and others. He has proved his signature on the seizure list of broken tooth which has been marked as Exhibit-1.

6. P.W.2 Kailash Rawani has proved his signature on the seizure list which has been marked as Exhibit-1/1.

7. P.W.3 Tulsi Rawani has stated that he does not know as to how Arjun Rawani had died.

8. P.W.4 Arjun Rawani did not support the case of the prosecution and was declared hostile by the prosecution.

9. P.W.5 Iswarmani Rawani is the informant who has stated that his father was murdered on 4.7.1995. It was around 11 a.m. and he had returned home after having a bath when he was prevented from entering and was stopped at the courtyard by Sudan Rawani, Pawan Rawani, Dhiran Rawani, Nathu Rawani and Meghu Rawani. When he somehow managed to reach the door of his house he saw Khedan Rawani twisting the mouth of his father and hitting him on his mouth with fists and the sons of Khedan Rawani namely Ashutosh Rawani and Basudeo Rawani were standing inside the room with Tangi in their possession. When he raised a cry of alarm, the villagers started assembling at which the accused persons fled away. He found his father lying dead on the cot with one tooth broken. The reason for the occurrence is the dispute between both the sides with respect to a land situated in the alley. He has proved his signature in the Fardbayan which has been marked as Exhibit-1/2.

In cross-examination he has deposed that his house consists of three rooms. His father used to stay in a separate room in a common courtyard just adjacent to his house on the southern side where the houses of Sudan Rawani, Khedan Rawani, Dhiran Rawani and Pawan Rawani are situated. There are 30-35 houses in the vicinity of his house. He has deposed that Dubraj and Sahdeo had come to the place of occurrence on hearing a commotion and had found his father dead. About 3-4 days prior to the occurrence an information was given to the Panchayat that the accused persons have stopped the ingress and egress of the road. He had met the Chowkidar just prior to the incident and there was a conversation with respect to the land dispute. Sheikh Miyajan and several villagers are witnesses to his going to the pond to bath. When he returned home after bathing, he had seen

Khedan Rawani assaulting his father and after assault he left while his father continued to lie in the cot. Some blood was coming out from the mouth of his father and a tooth was found broken. His father died because his neck was wringed. He had not seen any injury on the chest of his father. At the time of the incident his family was present except his brother and they had witnessed the occurrence. Several persons of the locality had arrived on hearing the cry of alarm. He was not chased by the persons who had an axe with them. When the Police came his statement was recorded but the statements of his family members were not recorded.

10. P.W. 6 Malti Devi is the daughter-in-law of the deceased who has stated that on the date of occurrence at 11 a.m. she was in the courtyard and along with her were her husband and daughter. She had seen Khedan Rawani assaulting on the face of her father-in-law with fists and had also wringed his neck. Asu Rawani and Basu Rawani were standing at the verandah. Her father-in-law was lying on the cot when the assault had taken place. The reason for the occurrence is a dispute with respect to a road. The accused persons had fled away after committing the assault.

In cross-examination she has deposed that whatever has been stated by her had not been disclosed to the Police. Her husband had not gone to the Police Station. Despite objection by the accused persons, she and her family members used to frequent the disputed alley.

11. P.W. 7 Urmila Kumari is the granddaughter of the deceased and the daughter of the informant who has stated that it was 11 a.m. and she was in the courtyard along with her parents and her grandfather Arjun Rawani was in the cot when Khedan Rawani assaulted him on his mouth and twisted his neck. When the assault was being committed by Khedan Rawani, the accused Nathu, Meghu, Sudan, Pawan and Dhiren were encircling them while Asu and Basu were standing on the

verandah. When they started shouting the accused persons fled away. After the accused persons fled away, she went near her grandfather who was found dead and his tooth was found broken and blood was oozing out.

In cross-examination she has deposed that she was at a distance of 3-4 hands from the place where her grandfather was being assaulted. She had not given any statement to the Police. She had not disclosed to the police the incident which has been described by her in her evidence.

12. P.W.8 Mandodari is the daughter-in-law of the deceased who has stated that at the time of the incident she was standing 2-3 hands behind Khedan Rawani. She had seen Khedan Rawani assaulting her father-in-law with fists on his mouth and the sons of Khedan Rawani namely Asu and Basu were standing on the verandah with axe in their hands. She has stated that Khedan Rawani had pinned her father-in-law on the cot with his knees while assaulting him. She and the others were surrounded by Sudan, Dhiren, Pawan, Nathu and Meghu. When her father-in-law died an alarm was raised at which the accused persons fled away. When she and the others went near her father-in-law, he was found dead and blood was oozing out. The incident occurred on account of a dispute regarding an alley.

In cross-examination she has deposed that her statement was not recorded by the Police. The Police had not recorded the statement of any of the witnesses in her presence.

13. P.W.9 Madan Rawani did not support the case of the prosecution and was declared hostile by the prosecution.

14. P.W.10 Dr. Binod Kumar was posted as an Assistant Professor in the Department of FMT at PMCH, Dhanbad and on 4.7.1995 he had conducted autopsy on the dead body of Arjun Rawani and had found the following :-

Dislocation of left upper first incisor tooth was seen. No other external injury was found.

On dissection no injury in the sub-cutaneious tissue of the front and sides of the neck was seen. Hyoid bone, thyroid cartilage were intact. Mucosa of tratnea was normal looking. On removal of trachea and oesophagus, ecchymosis was seen on the upper Percival vertebrae soft tissue. Fracture dislocation of second, third cervical vertebra seen. Both side chambers of the heart were full with fluid blood. Bony chest cage was normal. Stomach contained about 75 gram pasty food matter. Urinary blooder was empty. Internal organs were congested. Skull meninges, brain were normal looking.

The cause of death was opined to be on account of fracture and dislocation of cervical vertebrae. He has proved the postmortem report which has been marked as Exhibit-2.

In cross-examination he has deposed that injury of dislocation found on the person of the deceased is possible by fall. If the neck of a person is pressed forcibly there will be abrasion by nails and bruises by the fingertips over the skin.

15. P.W. 11 Shyam Narayan Bhaskar was posted as an Officer In-Charge of Mahuda P.S and on 4.7.1995 at 2.10 pm he had heard a rumour that one person has been strangulated in Bhurugia Basti and after making a station diary entry he left for Bhurugiya Basti where Ishwarmani Rawani informed him about the murder of his father and thereafter his Fardbayan was recorded. He has proved the Fardbayan which has been marked as Exhibit-3. The seizure list of a broken tooth has been proved and marked as Exhibit-4. He had inspected the place of occurrence which is at Bhurugiya Basti in the roof tiled house of the informant and there are two roads for ingress and egress. The dispute is with respect to the road which is on the eastern side.

There is a room on the western side of the courtyard in which a cot is placed where the murder is said to have been committed. He had recorded the restatement of the informant and the

statement of the witnesses. The dead body was sent to PMCH, Dhanbad for post-mortem. On completion of investigation, he had submitted charge sheet. He has proved the formal F.I.R which has been marked as Exhibit-1/3. He had recorded the statement of Arjun Rawani who had stated that on hearing a commotion when he went to the place of occurrence the son of the informant had disclosed that Khedan Rawani had assaulted the father of the informant which resulted in his death. The witness Madan Rawani had stated that at 11 a.m he had seen the accused persons abusing his family members and his elder brother was objecting to such conduct. When his brother somehow managed to reach the courtyard, he started shouting that his father is being assaulted by Khedan Rawani and others.

In cross-examination he has deposed that a perusal of the statements of Malti Devi, Urmila Devi and Mandodari it clearly transpires that they are not the eyewitnesses but hearsay witnesses. None of the witnesses had stated that the death was caused due to twisting of the neck. No one had stated about climbing on the chest of the deceased or putting pressure with the elbow. Nobody had stated about some of the accused having axe in their hands.

16. The statements of the accused were recorded under Section 313 Cr.P.C in which they have denied their complicity in the murder.

17. It has been submitted by Mr. A. K. Kashyap, learned senior counsel for the appellant assisted by Ms. Omiya Anusha that though P.W. 6, P.W. 7 and P.W. 8 claim themselves to be the eyewitnesses, but the evidence of P.W.11 clearly reveal that they are hearsay witnesses who have developed their case during trial. P.W. 5 who is the informant has exaggerated his version in his evidence during trial. Mr. Kashyap has referred to the evidence of P.W. 10 while submitting that no sign of pressure over neck was found in the autopsy report. No external or internal injuries were found on the chest as per the evidence of

P.W. 10 which rules out the purported pressure created by the appellant Khedan Rawani with elbows and knees. The deceased was aged 72 years and he might have fallen down on the ground and had sustained injuries which resulted in his instantaneous death. He has submitted that if the intention was of committing the murder of Arjun Rawani, the same could have been executed by the other accused persons who were said to be present with Lathis and Tangis.

18. Mrs. Nehala Sharmin, learned Special P.P has submitted that P.W.5, P.W.6, P.W.7 and P.W.8 have clearly stated about the role played by the appellants in committing the murder of Arjun Rawani which fact has been correctly appreciated by the learned trial court.

19. We have heard the learned counsel for the respective sides and have also perused the trial court records.

20. The Fardbayan of the informant reveals that when he came home after having a bath and though he was prevented from entering his house by the accused persons, he managed to get inside where his father was found being assaulted by Khedan Rawani with fists on mouth and he had also twisted the neck of the father of the informant which resulted in his death. The informant who has been examined as P.W.5 has though reiterated his version depicted in the Fardbayan but he has not mentioned the presence of his family members at the time of the incident. P.W.6, P.W.7, P.W.8 and P.W.9 are related to P.W.5 and though P.W.9 has been declared hostile by the prosecution but P.W.6, P.W.7 and P.W. 8 claim themselves to be the eyewitnesses. However, these witnesses have stated about not disclosing the facts in their statements before Police which has been cemented by the evidence of the investigating officer (P.W.11) who has stated about P.W.6, P.W.7 and P.W. 8 being not the eyewitnesses to the occurrence. Therefore, the evidence of P.W.6, P.W.7 and P.W.8 can be conveniently diluted from their status of being the eyewitnesses.

In order to consider the evidence of P.W.5, the sole eyewitness to the occurrence, we have given our anxious consideration to the evidence of P.W.10 and the post-mortem report. It is the case of the prosecution that Khedan Rawani had assaulted with fists on the mouth of the deceased resulting in dislocation of a tooth and twisting of the neck. The post-mortem report indicates that no external injury was found on the person of the deceased. No injury was found on the neck and the hyoid bone and the thyroid cartilage were found intact. This would lead us to assume that the evidence of P.W. 5 is exaggerated as it does not find corroboration from the post-mortem report except the broken tooth. P.W. 10 on a suggestion put forward by the defence has stated that injury on the cervical may be caused by fall. We must also take into consideration that the deceased was aged 72 years at the time of his death. The witnesses have consistently stated about an enmity between the deceased and the accused over the right of ingress and egress of an alley. It is also important to take notice of the fact that the sons of Khedan Rawani were present in the verandah with axes in their possession and if at all the intention was there to commit the murder of Arjun Rawani, the other avenues could have been explored considering the options the appellants had, but save and except Khedan Rawani who assaulted the deceased on his face, the other appellants had an absolutely passive role in the incident. The evidence of P.W. 5 cannot be discarded of being an eyewitness account but at the same time, his version appears to be inflated regarding the manner of assault. In such scenario the appellants at best can be convicted for the offence punishable under Section 304 Part-II, IPC.

21. We, therefore, on the basis of the discussions made herein above modify the order of conviction of the appellant Khedan Rawani to one under Section 304 Part II IPC and consequently the sentence is also modified to the period already undergone by him in custody.

22. So far as the rest of the appellants are concerned, no specific role has been attributed to them and they were merely present at the place of occurrence. As we have held above, there was no intention nor common intention to commit the murder of Arjun Rawani. The conviction of these appellants is also modified to one under Section 304 Part II, IPC and are sentenced to the period already undergone by them.

23. This appeal is disposed of with the aforementioned modification in the conviction and the sentence.

(Rongon Mukhopadhyay, J.)

(Arun Kumar Rai, J.)

Shamim/-