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2015 DIGILAW 845 (JHR)

Neman Parahiya v. State of Jharkhand

2015-07-23

P.P.BHATT, VIRENDER SINGH

body2015
JUDGMENT : Per Virender Singh, C.J. Vide our short order of even date, the appeal already stands allowed. This is a detailed judgment. 2. Neman Parahiya, his wife Kaulasiya Devi and son Mahendra Parahiya stand convicted vide impugned judgment dated 7th August, 2003 for the charge of Section 302/34 IPC for allegedly committing murder of one Naresh Parahiya, real brother of Kaulasiya Devi, on 23rd October, 1999 at 10.00 a.m. in the fields of Somar Parahiya and have been sentenced to undergo imprisonment for life. Aggrieved of the said judgment of conviction and sentence, they have preferred the instant appeal through jail, which is registered as Cr. Appeal(Jail) No. 1463 of 2003. 3. Record reveals that Kaulasiya Devi is on bail as her substantive sentence stands suspended by the Court vide order dated 11.11.2003. Neman Parahiya and Mahendra Parahiya are stated to be in jail for last 2 more than 13 years. Priority has been given to this appeal for that reason only. 4. Since it is a Jail Appeal, Ms Amrita Banerjee has been appointed as Amicus Curiae to assist the Court on behalf of all the three appellants. 5. Heard Ms Amrita Banerjee and Mr.Pankaj Kumar, learned Additional Public Prosecutor. Record also perused. 6. Date of occurrence is 23.10.1999 at 10.00 a.m., whereas the first information report with regard to commission of offence was lodged by Phulmatiya Devi (PW-1) wife of the deceased on next date i.e. 24.10.1999 at 7.00 a.m. Autopsy on the body of the deceased was conducted on 25.10.1999 at about 8.00 a.m. While examining the deceased, doctor of autopsy observed as under : External examination Putrefaction with maggots and orifices. Pilling of skin due to putrefaction at places was found and an anti-mortem incised wound over middle of head, placed transversely 15 cm x 4 cm cavity deep with protruding brain matter, with no ligature mark. Internal Examination Brain laceration with blood clot around was found. Examination of other body cavity revealed no sign of injury. Opinion Time elapsed between death and postmortem as observed by the doctor is 3-5 days, whereas the cause of death in his opinion was the head injury. 7. Internal Examination Brain laceration with blood clot around was found. Examination of other body cavity revealed no sign of injury. Opinion Time elapsed between death and postmortem as observed by the doctor is 3-5 days, whereas the cause of death in his opinion was the head injury. 7. PW Phulmatiya Devi, when approached the police for recording the FIR, she claimed herself to be an eye witness to the occurrence alleging that her husband (deceased) on the fateful day had gone to plough the field of Somar Parahiya and when he was ploughing the field, elder sister of the deceased, namely, Kaulasiya Devi, brother-in-law- Neman Parahiya (her husband) and nephew Mahendra Parahiya (her son) reached there and started assaulting the deceased. It is further alleged that Kaulasiya Devi caught hold of the deceased and Neman Parahiya and Mahendra Parahiya gave axe blow repeatedly on the head of deceased, resultantly he had fallen on the ground and died at the spot itself. She projects Somar Parahiya, Sheonath Parahiya, Sipahi Parahiya, Binod Parahiya, Basudeo Yadav and Md. Sahid Ansari as witnesses to the occurrence. 8. If one looks at the complete chart of prosecution, in all nine witnesses have been examined. The above narrated eye witnesses to the occurrence have not been produced by the prosecution. 9. In order to prove charge against all the three accused persons, prosecution is banking upon the evidence of Phulmatiya Devi(PW-1) wife of the deceased only, who when stepped into the witness box gave a twist to the main occurrence stating that in fact her husband was caught hold of by Kaulasiya Devi and Neman Parahiya, whereas Mahendra Parahiya had given a Tangi blow. She did not state that Neman Parahiya and Mahendra Parahiya were giving continuous blows on the person of the deceased as she stated before police at the time of lodging of FIR. It appears that this improvement was made in order to correlate only one injury on the person of the deceased. 10. Be that as it may, the main damaging factor which is staring at the prosecution is the postmortem report, wherein doctor of autopsy has opined the time between the death and postmortem as 3-5 days. It appears that this improvement was made in order to correlate only one injury on the person of the deceased. 10. Be that as it may, the main damaging factor which is staring at the prosecution is the postmortem report, wherein doctor of autopsy has opined the time between the death and postmortem as 3-5 days. The condition of body as reflected in the postmortem report also indicates that occurrence does not turn out to be of 23rd October, 1999 as alleged by the sole eye 4.witness to the occurrence, who is none but wife of the deceased and most interested witness of the prosecution. All these factors, when seen in its right perspective, make the presence of Phulmatiya Devi (PW-1) at the time of occurrence highly doubtful and once we found her presence to be doubtful at the time of alleged occurrence, perhaps prosecution has no other evidence to bank upon. 11. Another factor, which is also disturbing in this case is that the occurrence is shown to have taken place in the field of Somar Parahiya and Sheonath Parahiya, whereas these two witnesses were never examined by the investigating agency in this case and that appears to be the reason that they do not figure in the list of witnesses. They were the most important witnesses of the prosecution but unfortunately withheld by the prosecution. 12. In the present set of evidence available on trial court record, it appears to be a case of no evidence, much less conclusive evidence to prove the charge. 13. In our considered view, nothing remains to be discussed further in this case. 14. The net result is that prosecution has miserably failed to prove its case against any of the three appellants beyond shadow of reasonable doubt, as such all the three appellants, namely, Neman Parahiya, Kaulasiya Devi and Mahendra Parahiya deserve to be acquitted of the charge of Section 302/34 IPC. Ordered accordingly. 15. The appeal on hand thus stands allowed in toto. Since appellants Neman Parahiya and Mahendra Parahiya are in custody for last 13 years, they shall now be released forthwith, if not required in any other case. Appellant- Kaulasiya Devi, who is stated to be on bail, during pendency of the instant appeal, shall be discharged of the bail bonds submitted by her. 16. Since appellants Neman Parahiya and Mahendra Parahiya are in custody for last 13 years, they shall now be released forthwith, if not required in any other case. Appellant- Kaulasiya Devi, who is stated to be on bail, during pendency of the instant appeal, shall be discharged of the bail bonds submitted by her. 16. Registry is directed to intimate the Jail Superintendent concerned of the outcome of the appeal without any delay. The trial court shall also be intimated accordingly. 17. A sum of Rs.3300/- (Rupess three thousand and three hundred) shall be given to Ms. Amirta Banerjee (Amicus Curiae) by the State for rendering assistance to the Court as Amicus Curiae on behalf of the appellants. Appeal allowed.