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2018 DIGILAW 118 (JHR)

Jome Pahariya v. State of Jharkhand

2018-01-15

KAILASH PRASAD DEO

body2018
JUDGMENT : 1. Heard. learned amicus curiae and learned APP appearing on behalf of the State. 2. The present criminal appeal has been preferred against the judgment of conviction and order of sentence dated 18.09.2004 passed by learned Vth Additional Sessions Judge, Fast Track Court No.2. Godda, whereby the sole appellant. Jome Pahariya has been convicted for the offence under Section 304 Part-II of the Indian Penal Code and further awarded sentence to undergo Rigorous imprisonment for 7 years with a fine of Rs. 500/- and in default of fine, simple imprisonment for a period of 2 months. 3. The prosecution case as has been made out on the basis of the statement of one Jalia Paharin, wife of the deceased recorded by Sub-Inspector of Police, N.K. Sharma, Sundar Pahari Police Station, on 01.11.2009 alleging inter alia as follows : It is alleged that 3 days ago on Friday (i.e. 29.10.1999) in the night husband of the informant, Dewa Pahariya (deceased), brother-in-law Jome Pahariya [appellant] were taking liquor in the courtyard inside the house of the informant. It is further stated that her. husband started abusing the informant and thereafter the informant entered inside the room. It is further stated that after taking liquor, her brother-in-law went to his house which is situated beside her house as some altercation took place at the time of taking liquor. It is further stated that her husband was abusing her brother-in law. At around 11 p.m. in the night, after hearing the alarm and the abuses the son of the informant Bamna Pahariya came and said uncle, the old man is creating nuisance, assault him so that he can improve. it is further alleged that Jome Pahariya (appellant) came with lathi and assaulted, the husband of the informant. upon which the informant came and raised alarm for rescue, but no one came as the neighbours went to village fair at Damru Mela. it is alleged that her husband after sustaining injuries died and thereafter Jome Pahariya (appellant) went to his house. The informant said that third day, when villagers returned after attending mela, then she disclosed about the incident and thereafter the villagers took the dead body and both the accused persons' to the police station. The informant has said that because of non-availability of any person in the village, there is delay in informing the police. The informant said that third day, when villagers returned after attending mela, then she disclosed about the incident and thereafter the villagers took the dead body and both the accused persons' to the police station. The informant has said that because of non-availability of any person in the village, there is delay in informing the police. On the basis of the fardbeyan of the informant. police instituted First Information Report being Sundar Pahari P.S. Case No. 31 of 1999 (dated 01.11.1999) under Sections 302/109/34 of the Indian Penal Code and after investigation, charge-sheet dated 22.12.1999 against both the accused persons was submitted. 4. After investigation, cognizance was taken on 24.12.1999 and the case was committed to the Court of Sessions vide notification dated 28.01.2000 for trial. The charge has been framed against both the accused persons on 01.04.2000 under Section 302/34 of the Indian Penal Code. Both the accused persons pleaded innocence and not guilty and thus, they were put under trial. 5. The prosecution has examined altogether six witnesses including the informant and the doctor in this case. The Investigation Officer or the chowkidar has not been examined. 6. That Asna Pahariya (PW 1), Rama Pahariya (PW 2) and Guliya Pahariya (PW 3) have been declared hostile by the prosecution. 7. PW 4, Dr. Pradeep, Kumar Sinha is the Medical Officer who performed the post-mortem examination on 01.11.1999 of the Dewa Pahariya (deceased), aged about 60 years at Sadar Hospital, Godda and found : - Two injuries : - (i) swelling 3" x 2" over right upper chest and (ii) 2" x 2" over left upper chest. Doctor found both the injuries are ante-mortem in nature, but on dissection, he found right temporal scalp congested 3" x 2" skull intact, brain congested into right temporal region. Doctor found fracture of left 2nd, 3rd and 4th rib of left side of the front and fracture of 3rd, 4th rib of right side in front. Left lung lacerated 2" x 3" x l". The doctor has proved the postmortem examination written by him along with his signature and marked as exhibit-1. 8. Bali Pahariya, a co-villager has been examined as PW 5, but this witness has not been cross-examined and as such, his evidence has been expunged. 9. Jalia Paharin, informant and the wife of the deceased has been examined as PW6. The doctor has proved the postmortem examination written by him along with his signature and marked as exhibit-1. 8. Bali Pahariya, a co-villager has been examined as PW 5, but this witness has not been cross-examined and as such, his evidence has been expunged. 9. Jalia Paharin, informant and the wife of the deceased has been examined as PW6. This witness has been examined through the interpreter as this witness speaks only Pahariya language. The informant during his examination-in-chief-has stated that the occurrence took place 5 years ago and her husband Dewa Pahariya has been killed by Jome Pahariya. This witness has stated that Jome Pahariya has assaulted him on head, as he is a bad man and due to assault her husband died. She further states that the old man was taken out from her house by Jome Pahariya for assaulting. This witness has stated that Bamria Pahariya, co-accused is her son, but he was not involved in the assault. Her husband died and thereafter she went to the police station and on the basis of the statement, the F.I.R. was lodged and the same was read over and explained to her and after seeing, she put her thumb impression. During cross-examination, this witness has stated that at the time of occurrence, all three were taking liquor, she asked not to quarrel and thereafter she went inside the room to sleep. This witness has further stated that she was taken out of her room, but the Court has recorded that she could not understand that when she was taken out of her house and after great persuasion she could say only in the morning. This witness has stated that she asked not to quarrel by giving signal. She has further stated that dead body remained in the house for four days as all the villagers went to fair and after one month of occurrence, she went to the police station. The body was decomposed. 10. After recording the statement of the accused under Section 313 of the Criminal Procedure Code, the matter was heard by the learned trial Court and the learned trial Court has convicted the appellant for the offence committed under Section 304 part II of the Indian Penal Code and awarded Rigorous imprisonment for 7 years with a fine of Rs. 500/- and in default of fine, simple imprisonment for a period of 2 months. 11. 500/- and in default of fine, simple imprisonment for a period of 2 months. 11. Heard Sri Rajesh Kumar Dubey, learned amicus curiae. who has argued that in this case F.I.R has not been proved nor Investigating Officer has been examined and even chowkidar has not been examined. The entire case' depends on the 'fardbeyan' of PW 6 (informant) and her statement cannot be relied upon for convicting a person under Section 304 Part II of the Indian Penal Code as the 'fardbeyan' of the informant was recorded by Sub-Inspector of Police, N.K. Sharma without assistance of any interpreter, but when this witness, PW 6 was examined in the Court, it was found, that this witness could only understand the 'pahariya' language and thus, with the help of a chowkidar, a villager, the informant has been examined and as such, non-examination of the Investigating Officer coupled with the fact that F.I.R. has not been proved, the conviction of the appellant cannot sustain in the eyes of law. The learned counsel has further argued that non-examination of the Investigating Officer has caused great prejudice to the appellant as the informant during her cross-examination has admitted that Jome Pahariya (appellant) took the Dewa Pahariya out of the house and as such, non-examination of the Investigating Officer has caused prejudice to the appellant so as to give some light on the place of occurrence and thus, the place of occurrence in this case has not been proved. 12. Heard, Mr. P.K. Appu, learned Additional Public Prosecutor, who has supported the prosecution case and submitted that the informant is the eye-witness to the occurrence and has stated that Jome Pahariya has assaulted the deceased by lathi. Mr. Appu has submitted that there is no illegality in the judgment of conviction and order of sentence warranting any interference from this Hon'ble Court. 13. Mr. Appu has submitted that there is no illegality in the judgment of conviction and order of sentence warranting any interference from this Hon'ble Court. 13. Heard learned amicus curiae and learned Additional Public Prosecutor and on perusal of the records, it appears that in the present case the informant PW 6 is the only eye-witness to the occurrence but her statement itself creates doubt about the place of occurrence and her being an eye-witness to the occurrence as this witness has stated during examination-in-chief that the old man was taken out of the house and she has further stated that her son was not involved in this case which has contradicted her earlier statement made in the 'fardbeyan'. It is true that non-examination of the Investigating Officer and chowkidar has caused serious prejudice to the appellant as the appellant could not get an opportunity to cross-examine the Investigating Officer with respect to the place of occurrence and the manner of occurrence as alleged by the prosecution. Apart from this, the doctor during post-mortem has not found any material in the abdomen to substantiate, the allegation of the informant that soon before the occurrence, the deceased had taken liquor rather the doctor has found digested food, considering all these aspects of the matter and going through the record, the impugned judgment of conviction and order. of sentence dated 18.09.2004 passed by learned Vth Additional Sessions Judge, Fast Track Court No.2, Godda cannot sustain in the eyes of law and as such, the same is accordingly, set aside. The appellant is acquitted of the charge under Section 304 Part II of the Indian Penal Code by giving benefit of doubt. Hence, the appellant is discharged from the liabilities of his bail bonds. 14. Accordingly, the instant appeal stands allowed. 15. Let L.C.R. be sent to the Court concerned along with a copy of this judgment. 16. Before parting with, this Court records appreciation of Sri Rajesh Kumar Dubey, learned amicus curiae for giving proper assistance. Member Secretary, JHALSA, Ranchi, is hereby directed to pay remuneration to the learned amicus curiae. Appeal allowed.