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2018 DIGILAW 1980 (JHR)

Chhota Rama Paharia v. State Of Jharkhand

2018-08-29

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT 1. Heard learned counsel for the appellant and learned counsel for the State. 2. Appellant is aggrieved by the impugned Judgment of conviction dated 29th January 2008 and Order of sentence dated 5.02.2008, passed by the learned 6th Additional Sessions Judge, (F.T.C.-3), Godda, in S.T. No.287 of 2006 / 120 of 2007, whereby the sole appellant has been found guilty and convicted for the offence under Section 302 of the Indian Penal Code. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life for the said offence. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Brahmadev Paharia, the brother of the deceased Rama Paharia, recorded on 29.9.2006 at 11.05 A.M., at his house situated in village Gamharo, P.S. Sunder Pahari, District Godda. It is stated in the fardbeyan that on 27.9.2006, the deceased brother of the informant had gone to his relative''s place along with his wife, and on 28.9.2006, they went to his in-laws'' place, in village Goga. His wife Dohri Paharin came to village Gamharo and his brother remained there, where he took meal and liquor along with his brother-in-law. It is also stated that the accused Chhota Rama Paharia had also gone to the said village and he had also taken liquor and he left the village prior to the deceased. Subsequently, at about 7:00 P.M., the deceased also proceeded towards his village and in the way, the accused assaulted the deceased by stone, causing his death at the spot. The informant has stated that about 8.30 P.M., in the night, he was passing through that place and he saw the dead body of his brother and he also saw that the accused was sitting near the dead body. Thereafter, with the help of the villagers, he brought the dead body and the accused to his village. As to the cause of occurrence, it is stated that on the occasion of Makai Puja, chanda was collected from the villagers and there was dispute between the deceased and the accused for distribution of the money of chanda, due to which, the deceased had committed the murder. As to the cause of occurrence, it is stated that on the occasion of Makai Puja, chanda was collected from the villagers and there was dispute between the deceased and the accused for distribution of the money of chanda, due to which, the deceased had committed the murder. On the basis of the fardbeyan, Sundar Pahari P.S. Case No.32 of 2006, corresponding to G.R. No.946 of 2006, was instituted for the offence under Section 302 of the Indian Penal Code, against the accused, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offence under Section 302 of the Indian Penal code, and upon the accused''s pleading not guilty and claiming to be tried, he was put to trial. In course of trial, six witnesses were examined by the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. 5. P.W.-5 Brahmadev Paharia is the informant in the case. This witnesses has stated that while he was returning from Karmatari and reached between the village Goga and Gamharo, he found the dead body of his brother in the way with bleeding injury on his head. The accused Chhota Rama Paharia was also there. He has identified the accused in the Court stating that he had committed the murder of his brother. He has stated that he went to his village and called the villagers and by that time also, the accused was sitting near the dead body. He has stated that they brought the dead body to the house, but they left the accused there itself. The police was informed, who reached there at about 12:00 P.M., and recorded his fardbeyan. He has identified his signature on the fardbeyan and the fardbeyan was marked Ext.-2. This witness has stated that the police had questioned the accused also and the dead body was sent for post-mortem examination. He has also stated that the inquest report was also prepared, on which also, he has identified his signature. He has stated that the occurrence had taken place due to quarrel of chanda collected during Makai festival. This witness has stated that the police had questioned the accused also and the dead body was sent for post-mortem examination. He has also stated that the inquest report was also prepared, on which also, he has identified his signature. He has stated that the occurrence had taken place due to quarrel of chanda collected during Makai festival. In his cross-examination, this witness has stated that when he reached near the dead body for the first time, Chaukidar Deva Paharia, Rupa Paharia, Bara Chandi Paharia and Chhota Chandi Paharia were also present there, but they did not try to apprehend the accused. He has also stated that when he had left the village Goga, his brother was in the house of Sonia in the village Goga and thereafter, he came straight to his village without stopping anywhere. 6. P.W.-3 Sonia Paharia is the brother-in-law of the deceased. This witness has stated that on the date of occurrence, his brother-in-law, Rama Paharia and his sister Dohri Paharin had come to his village Goga. After staying there for some time, his sister went away to her village Gamharo, whereas, his brother-in-law Rama Paharia stayed back. They took meal and also they took liquor. This witness has identified the accused in the Court stating that the accused had also visited his village and there was a quarrel between the accused and his brother-in-law. At about 8.00 P.M., his brother-in-law left for his village and about 8:30 P.M., he heard that his brother-in-law was murdered. He went there and saw the dead body of his brother-in-law with injury on his head. The accused Chhota Rama Paharia was also there concealing himself. By that time, several villagers had assembled there. They brought the dead body and the accused to village Gamharo and police was informed. He has stated that the police questioned the accused also and the accused admitted his guilt before the police. In his cross-examination, this witness has stated that the accused was concealing himself at the place of occurrence and he was searched in the torch light. He has also stated that his brother-in-law had consumed two bottles of liquor and while he was going to this village, he was not able to walk properly. 7. In his cross-examination, this witness has stated that the accused was concealing himself at the place of occurrence and he was searched in the torch light. He has also stated that his brother-in-law had consumed two bottles of liquor and while he was going to this village, he was not able to walk properly. 7. P.W.-2 Dohri Paharin, the wife of the deceased and P.W.-4 Bara Chandi Paharia, both are the hearsay witnesses to the occurrence and upon getting the information, they had gone to the place of occurrence and had seen the dead body. P.W. 2 Dohri Paharin has stated that she was informed about the occurrence by her brother-in-law Brahmadev, i.e., the informant, and she had seen the accused also by the side of the dead body, but she did not ask him as to what had happened. She has no knowledge as to why her husband was murdered. She has identified the accused in the Court. P.W.-4 Bara Chandi Paharia has also identified the accused in the Court stating that he had concealed himself near the dead body. He is also the witness to the inquest report, on which, he has also identified his signature. To the Court''s question, this witness has stated that when he had gone to see the dead body, the wife of the deceased was in her own house. 8. P.W.-1 is Dr. Pradeep Kr. Sinha, who had conducted the post-mortem examination on the dead body of the deceased on 30.09.2006, and found the following ante-mortem injuries on the dead body:- (i) Lacerated wound of size 4" x " x " over right side of parietal scalp with fracture of right parietal bone of the scalp. (ii) Lacerated wound of size " x " x " over left side of forehead. (iii) Lacerated wound of size " x " x " over upper lip in the middle. (iv) One bruise of size 4" x 2" over back of right side of chest. On dissection - Brain was found congested with collection of large amount of blood in the right side of brain matter. Heart contained little blood in all chambers. Stomach contained undigested food material including rice. Liver, spleen and kidneys were normal. (iv) One bruise of size 4" x 2" over back of right side of chest. On dissection - Brain was found congested with collection of large amount of blood in the right side of brain matter. Heart contained little blood in all chambers. Stomach contained undigested food material including rice. Liver, spleen and kidneys were normal. He has stated that the death was caused due to shock and haemorrhage as a result of multiple injuries caused by hard and blunt substance and injury No.(i) was grievous in nature and in ordinary course of nature, it was sufficient to cause the death. He has identified the post-mortem report to be in his pen and signature, which was marked Ext- 1. In his cross-examination, this witness has stated that injuries Nos. (i) and (ii) were possible by fall on hard and blunt substance like stone. 9. P.W.-6 Om Prakash Shukla is the I.O. of the case. This witness has stated that on 29.9.2006, he was posted as Officer-Incharge in Sunder Pahari Police Station. At about 8.00 A.M., he got the information that someone was murdered in the village Gamharo. He made the sanha entry about the information and proceeded towards the place of occurrence, where he recorded the fardbeyan of the informant Brahmadev Paharia. He has proved the fardbeyan, which was earlier marked Ext.-2. He prepared the inquest report and has also proved the same, which was marked Ext.-3. He recorded the statements of the witnesses and proceeded towards the place of occurrence, which according to the I.O., is on a hill, and lonely forest lane, consisting of stones, between villages Goga and Gamharo. The place of occurrence was at a distance of about 450 yards from village Goga, and about one and half kilometers from village Gamharo. He has proved the endorsement on the fardbeyan, which was marked Ext.-2/1. He has also proved the formal FIR, which was marked Ext.-4. This witnesses has stated that he had arrested the accused Chhota Rama Paharia from Primary Health Centre, Sundar Pahari, while he was undergoing treatment. He had recorded his confessional statement also. He received the post-mortem report and after completing the investigation, he submitted the charge-sheet. In his cross-examination, this witness has stated that he had not found any blood stains at the place of occurrence, and he had not recovered anything from there. He had recorded his confessional statement also. He received the post-mortem report and after completing the investigation, he submitted the charge-sheet. In his cross-examination, this witness has stated that he had not found any blood stains at the place of occurrence, and he had not recovered anything from there. He has also stated that the accused Chhota Rama Paharia was being treated at Primary Heath Centre, but he did not enquire as to from when he was under treatment. He did not record the statement of any Doctor or any Para Medical Staff there. He has denied the suggestion of making faulty investigation. 10. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein, the accused has denied the accusation. No evidence was adduced by the defence. On the basis of the evidence on record, the accused has been convicted and sentenced by the Trial Court below as aforesaid. 11. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, as there is no eyewitness to the occurrence, to have seen the accused committing the murder of the deceased. The only evidence is that the accused was also present near the dead body, and two witnesses have stated that he was concealing himself, whereas others have not stated like that. Learned counsel accordingly, submitted that there is absolutely nothing on the record to show that the accused had committed the murder of the deceased. 12. Learned counsel for the State on the other hand has opposed the prayer, submitting that the witnesses have stated that due to previous enmity for distribution of money of chanda, the accused had committed the murder of the deceased. The accused was found at the place of occurrence itself, along with the dead body, and the ocular evidence of the witnesses is fully corroborated by the medical evidence of P.W.-1 Dr. Pradeep Kr. Sinha, and the post-mortem report proved by him as Ext.-1. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 13. Having heard learned counsels for both the sides and upon going through the record, we find that there is no eyewitness to the occurrence of murder. Learned counsel accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 13. Having heard learned counsels for both the sides and upon going through the record, we find that there is no eyewitness to the occurrence of murder. There is only circumstantial evidence against the accused, but the chain of circumstances has lot of broken links, giving several hypothesis to the occurrence. The only evidence against the accused is that he was found sitting near the dead body, or concealing himself near the dead body. There is no evidence that the accused had made any extra judicial confession before any of the villagers who had assembled there, and even though, it is stated in the FIR that the accused was also apprehended and brought to the village, but the informant P.W.-5 Brahmdev Paharia has stated that they had brought only the dead body to the village and had left the accused there. He has stated that when he saw the dead body he went to his village and called his villagers, and by that time also the accused was still sitting there, whereas, in his cross-examination he has stated that when he reached the place of occurrence for the first time, four persons were already there. The evidence of the I.O., P.W.-6 Om Prakash Shukla, also shows that the accused was apprehended from Primary Health Centre, while he was undergoing treatment and the I.O. has admitted that he did not make any enquiry as to from when the accused was undergoing treatment. There is no evidence that the accused was also found to be injured, and there is no material on record to show for what ailment he was undergoing treatment. P.W.-3 Sonia Paharia, who is the brother-in-law of the deceased, has clearly stated that before leaving his house, the deceased had consumed two bottles of liquor and while he was going to his village, he was not able to walk properly. The Doctor P.W.-1 Dr. Pradeep Kr. Sinha, has stated that injuries Nos. (i) and (ii) were possible by fall on hard and blunt substance like stone. The I.O., P.W.-6 Om Prakash Shukla has stated that place of occurrence is on a hill, and lonely forest lane, consisting of stones. The Doctor P.W.-1 Dr. Pradeep Kr. Sinha, has stated that injuries Nos. (i) and (ii) were possible by fall on hard and blunt substance like stone. The I.O., P.W.-6 Om Prakash Shukla has stated that place of occurrence is on a hill, and lonely forest lane, consisting of stones. There is no recovery of any weapon of offence, or even any blood stained stone in this case. Though the I.O. has stated that the accused had confessed his guilt before him, but that cannot form the basis of conviction of the accused. The circumstances proved in the case give rise to several probabilities to the death of the accused, and as such, only on the basis of the evidence that the accused was also present near the dead body, the accused could not have been found guilty and convicted for the offence of murder. We are of the considered view that the prosecution has failed to bring home charge against the accused beyond all reasonable doubts, and it is a fit case, in which, the accused ought to have been given at least the benefits of doubt. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law. 14. For the foregoing reasons, the impugned Judgment of conviction dated 29th January 2008 and Order of sentence dated 5.02.2008, passed by the learned 6th Additional Sessions Judge, (F.T.C.-3), Godda, in S.T. No.287 of 2006 / 120 of 2007, convicting and sentencing the accused appellant Chhota Rama Paharia, for the offence under Section 302 of the Indian Penal Code, are hereby, set-aside. The appellant Chhota Rama Paharia is in custody undergoing the sentence. He is directed to be released and set at liberty forthwith, if his detention is not required in any other case. 15. Before parting with this Judgment, we wish to record that P.W.-2 Dohri Paharin is the victim of crime in the case, and she has lost her husband. We are of the considered view that she should be adequately compensated under the Victim Compensation Scheme, under Section 357-A of Cr.P.C. We accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take appropriate steps in consultation with the concerned DLSA, so that adequate compensation may be given to the victim P.W.-2 Dohri Paharin at the earliest. We are of the considered view that she should be adequately compensated under the Victim Compensation Scheme, under Section 357-A of Cr.P.C. We accordingly, direct the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, to take appropriate steps in consultation with the concerned DLSA, so that adequate compensation may be given to the victim P.W.-2 Dohri Paharin at the earliest. Let a copy of this Judgment be sent to the Member Secretary, Jharkhand State Legal Services Authority, Ranchi, for the needful. 16. This appeal is accordingly, allowed. Let the Lower Court Record be sent back to the Court concerned forthwith, along with a copy of this Judgment.