Research › Search › Judgment

Jharkhand High Court · body

2006 DIGILAW 281 (JHR)

JOME PAHARIA v. STATE OF BIHAR

2006-03-28

N.DHINAKAR, R.R.PRASAD

body2006
Judgment : N. DHINAKAR, C. J. AND R. R. PRASAD,J. ( 1 ) THE appellants 1 to 5 have been arrayed as A-2, A-1, A-5 and A-3 before the sessions Judge, Pakur. In this judgment, they will be referred as A-1 to A-5 in the same order as they were arrayed before the Sessions Judge, for the sake of convenience. ( 2 ) ACCUSED 1 to 5 were charged under Sections 147, 302/ 149 and 201 of the Indian Penal Code and the allegation against them in the said charge is that they after forming an unlawful assembly, caused the death of the deceased, Nizri paharia and thereafter burnt the body in order to screen the offence. ( 3 ) THE learned trial Judge, finding the accused-appellants guilty, as charged, sentenced each one of them to undergo one year rigorous imprisonment for the offence under Section 147 of the Indian penal Code, seven years for the offence under Section 201 of the Indian Penal Code and imposed life imprisonment for the offence under Sections 302/149 of the Indian Penal Code. The appeal is against the said conviction and sentence. ( 4 ) PW 7, Chhota Nigri Paharia, is the nephew of the deceased, Nizri paharia. He was the resident of village chhota Pagtoti. On 25. 3. 1988 he went to the village Bara Ajgo where the deceased was residing and found the entire village in intoxication. The deceased, Nizri paharia, was found to be in a highly intoxicated stage. He returned to his village and on 26. 3. 1988 he went back to the village of his uncle. He could not find his uncle. He inquired from the sister of the deceased Nizri Paharia and other villagers but they could give the details as to the whereabouts of the deceased, Nizri paharia. While he was searching for his uncle, A-1, A-2 and A-3 told him that no useful purpose will be served in searching for his uncle as he has already left for the other world. PW 7 returned to the village to continue to search for his uncle. Later, coming to know that a dead body had been thrown into dhawanala, which was at some distance of village dumgu, he went there where he met his brother-in-law, Ome Paharia and Baidi paharia. They went to Janodhab Nala and found scalp bones and blanket. Ext. PW 7 returned to the village to continue to search for his uncle. Later, coming to know that a dead body had been thrown into dhawanala, which was at some distance of village dumgu, he went there where he met his brother-in-law, Ome Paharia and Baidi paharia. They went to Janodhab Nala and found scalp bones and blanket. Ext. 2 / fardbeyan, was thereafter given on 7. 4. 1988 at 11. 00 p. m. After the registration of FIR, Ext. 2/1, investigation was taken up by PW 8, who conducted inquest, which stands marked as Ext. 4. As there was no dead body and only scalp bone was recovered, they were seized along with blanket and the seizure list stands marked as Ext. 3. Two lathis, which were seen at the place were also seized under the said seizure list. ( 5 ) AFTER the completion of investigation final report was filed. The appellants denied the entire prosecution case, when they were questioned under Section 313 of the Code of Criminal Procedure. ( 6 ) THE learned counsel appearing for the appellants submits that the prosecution has not only failed to establish that the scalp bones and the blanket belonged to the deceased and that he was murdered and burnt, it also failed to establish that Nizri Paharia was murdered by the appellants. Counsel submits that the answer given by PW 5 in the cross-examination will show that he was not an eyewitness, as claimed by the posecution, and in any event, the conduct of PW 5 in not informing the occurrence to the villagers even though the entire villagers were searching for the deceased and coming out with a version at a later stage that the deceased informed him that he was beaten by the accused 1 to 3 cannot be believed for finding the appellants guilty. ( 7 ) ON the above contention, we have heard Mr. Arbind Kumar Jha, learned APP for the State. ( 8 ) THE case of the prosecution is that Nizri Paharia died on account of homicidal violence but it could not succeed in establishing the said fact. According to PW 7, the nephew of the deceased, his uncle was found missing since 25. 3. 1988 and later on 7. 4. Arbind Kumar Jha, learned APP for the State. ( 8 ) THE case of the prosecution is that Nizri Paharia died on account of homicidal violence but it could not succeed in establishing the said fact. According to PW 7, the nephew of the deceased, his uncle was found missing since 25. 3. 1988 and later on 7. 4. 1988 when he came to know that his uncle had been murdered, went to the village and found a blanket and scalp bone near a Nala. Neither the wife of the deceased nor PW 7, the nephew of the deceased, or any of the witness identified the blanket as the blanket of the deceased and, therefore, the persons of blanket near some bone and scalp will not conclusively establish that the deceased was wearing a blanket and was murdered, cremated and that the blanket of the deceased was left at that place. ( 9 ) THE case of the prosecution, as could be seen from the. evidence of PW 7 is that on 25. 3. 1988 he went to the village where his uncle was residing and finding his uncle and other villagers in intoxicated stage, returned to his village and later went back to the village of his uncle but could not find him. PW 7 claimed in his evidence that he searched for his uncle and asked the villagers as to the whereabouts of the deceased and that the villagers could not give any answer about the missing of his uncle. According to him, on 7. 4. 1988, on coming to know that his uncle had been murdered, he went to the village, met pw 5 and that PW 5 told him that he saw accused-1 to 3 beating the deceased. According to him, he laid Ext. 2, the fardbeyan, at the police station. PW 5, who was projected as an eyewitness by the prosecution, claimed that he saw the appellants beating the deceased. PW5 in his cross-examination, came out with a different version that he did not see the actual occurrence but was informed by the deceased that he was beaten by the accused 1 to 3. We do not accept the evidence of PW 5 for two reasons : (A) PW 5 did not inform anyone about the occurrence till 7. 4. 1988, even though according to him, he saw the accused beating the deceased. We do not accept the evidence of PW 5 for two reasons : (A) PW 5 did not inform anyone about the occurrence till 7. 4. 1988, even though according to him, he saw the accused beating the deceased. He did not also offer any explanation in his evidence as to what prevented him from giving information to PW 7, who was searching for his uncle and the villagers, including the wife of the deceased. It is strange that a person, who had seen a person being beaten to death, would keep quite without informing anyone in the village for about twelve days; (B) Second reason for us to reject his evidence is the answer given by him in the cross-examination. ( 10 ) WE have already referred the evidence of PW 5 and answer given by him in the cross-examination. He has stated in the cross-examination that he did not actually witness the occurrence but was informed by the deceased that he was beaten by accused-1 to 3. If the deceased was alive and informed pw 5 that he was beaten by A-1 to A-3 then we are unable to understand as to how the prosecution could rely upon the evidence, for the Court to hold that the deceased was murdered and body was burnt. At this stage, we cannot but refer to the contradictory stand of the prosecution. The prosecution by marking ext. 3, the seizure list, which according to PW 8 was prepared for the seizure of blanket, scalp bone and lathis, wanted to make it appear as if the body was burnt but the charge as framed by the Court indicate that the deceased, after the murder, was thrown into a Channel. Whether the prosecution wanted to show that the deceased was beaten to death and his body was burnt or whether dead body was thrown into a Channel, the fact remains that there is no evidence as to what happened to the deceased after 25. 3. 1988, since the evidence of PW 5 is not only artificial but also contradictory as he contradicts himself in the cross-examination by coming out with an answer, which destroys his evidence given in examination-in-chief. 3. 1988, since the evidence of PW 5 is not only artificial but also contradictory as he contradicts himself in the cross-examination by coming out with an answer, which destroys his evidence given in examination-in-chief. ( 11 ) THE conduct pf PW 5, in not informing anyone, if he was really an eyewitness about the occurrence, and the prosecution not having established the fact that the appellants are responsible for the murder of the deceased by any acceptable legal evidence, the conviction of the appellants cannot be sustained. We allow the appeal by acquitting the accused-appellants. ( 12 ) THE appeal is allowed and the judgment and order of conviction and sentence imposed upon the appellants is set aside. It is reported that all the appellants are on bail, they are discharged from the liabilities of bail bonds. Appeal allowed. --- *** --- .