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2018 DIGILAW 2069 (JHR)

Chari Paharia v. State Of Bihar (now Jharkhand)

2018-09-13

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT 1. Heard learned counsel for the appellant Chari Paharia and the learned counsel for the State. 2. Pursuant to our Order dated 19.04.2018, whereby the bailable warrants were issued against the appellants in Cr. Appeal (D.B) No.579 of 1994, the execution reports have been received from the Trial Court below, which show that the appellants, Dewa Paharia, Jalia Paharia and Shobhana Paharia are dead. As such, Cr. Appeal (D.B) No.579 of 94 stands abated, so far as those appellants are concerned. 3. With respect to the appellant No.2, Lokna Paharia, Cr. Appeal (D.B) No.579 of 94, it is stated that his whereabouts are not known, and as such, the Court below has issued non-bailable warrant against him. 4. We have heard learned counsel appearing for the appellant, Chari Paharia in Cr. Appeal (D.B) No.101 of 1996, and we have heard these appeals and have gone through the record, with respect to both the surviving appellants, viz., Chari Paharia and Lokna Paharia, with the help of learned counsels for both the sides. 5. The surviving appellants Chari Paharia and Lokna Paharia are aggrieved by the impugned Judgment of conviction dated 30.09.1994 and Order of sentence dated 01.10.1994, passed by the learned Additional Sessions Judge, Pakur, in Sessions Case No. 119 of 1988 / 36 of 1992, whereby, so far as they are concerned, they have been found guilty and have been convicted and sentenced for the offences under Sections 302 / 149 and 147 of the Indian Penal Code. Upon hearing on the point of sentence, they have been sentenced to undergo Rigorous Imprisonment for life for the offence under Sections 302 / 149 of the Indian Penal Code, and Rigorous Imprisonment for a period of two years, for the offence under Section 147 of the Indian Penal Code, and both the sentences were directed to run concurrently. 6. The prosecution case was instituted on the basis of the F.I.R. lodged by the informant, Baida Paharia, the brother of the deceased, Chango Paharia, who had gone to the Police Station, along with the dead body of the deceased on 11.06.1987, in which, it is stated that there was enmity between the informant''s family and Dewa Paharia, Kalu Paharia and Lokna Paharia, due to which, wherever they met, there used to be fight between them. On 09.06.1987, they had gone to attend a feast in the house of Mukhiya of the Village of Anibhitha, and at about 4:00 A.M in the morning, the accused persons, Jalia Paharia, Dewa Paharia, Kalu Paharia, Lokna Paharia, Chipru Paharia, Sobhna Paharia and Chari Paharia surrounded the informant, and Jalia Paharia assaulted him by lathi, whereupon he fled away and concealed himself along with Baidi Paharin, in a bush, and they saw that Dewa Paharia assaulted his brother, Chango Paharia by knife, causing injury on his head, and other accused persons also assaulted him by lathi, causing his death at the spot. Thereafter, the accused persons fled away. The accused persons also assaulted Baidi Paharin, the daughter of the deceased. On the basis of the FIR lodged at the Police Station, Litipara P.S Case No.27 of 1987, corresponding to G.R Case No.228 of 1987, was instituted for the offences under Sections 147, 148, 302 and 323 of the Indian Penal Code, against all the named accused persons, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 7. After commitment of the case to the Court of Session, charge was framed against these accused appellants, for the offences under Sections 147, 302 / 149 of the Indian Penal Code, and upon these accused appellants'' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, eight witnesses were examined by the prosecution, out of whom, P.W.-3 Bamna Paharia and P.W.-5 Chikna Paharia have turned hostile. P.W.-8 Surja Paharia had only been tendered by the prosecution. Even the I.O. and the Doctor, conducting the post-mortem examination upon the dead body of the deceased, have not been examined by the prosecution, nor the post-mortem report and the inquest report of the dead body, have been proved by the prosecution. Only the F.I.R has been proved by one formal witness, P.W.-1 Raghunath Mandal. 8. P.W.-2 Kalidas Paharia has supported the case only to some extent, as hearsay witness, stating that he had given the feast in which several persons had come, and in the morning, Baidi Paharin, the daughter of the deceased informed him that her father, Chango Paharia was assaulted by some Paharias. She informed him that the deceased was assaulted by Dewa Paharia, Lokna Paharia, Chari Paharia and Others also, whose names, he did not remember. 9. She informed him that the deceased was assaulted by Dewa Paharia, Lokna Paharia, Chari Paharia and Others also, whose names, he did not remember. 9. P.W.-4 Chandra Shekhar has stated that he had seen the two groups of Paharias, fighting amongst themselves and thereafter, he went away. He has not stated anything about the occurrence of murder. 10. P.W.-6 Baida Paharia, the informant, and P.W.-7 Baidi Paharin, are the brother and the daughter respectively, of the deceased, who are the only witnesses to have supported the prosecution case as eyewitnesses to the occurrence, stating that the accused Dewa Paharia had assaulted the deceased by knife, and the others, including Chari Paharia and Lokna Paharia, had assaulted the deceased by lathi, causing his death. 11. The fact, however, remains that so far as the allegation of assault by knife is concerned, it is against the accused, Dewa Paharia only, and his appeal Cr. Appeal (D.B) No.579 of 94, has abated so far as he, and the other appellants reported to be dead, are concerned. So far as these two appellants are concerned, though there is allegation against them of assault by lathi, but the case is supported only by the informant, who is the brother of the deceased, and the daughter of the deceased, examined as P.W.6 and P.W.7 respectively, and the enmity between the two families is an admitted fact, and it is stated in the FIR itself, that whenever the two families met, they used to fight. Even the witness P.W.-4 Chandra Shekhar Paharia has stated that he had seen the fighting going on between both the parties. This apart, even the I.O and the Doctor conducting the post-mortem examination upon the dead body of the deceased, have not been examined in the case, and the post-mortem report and the inquest report of the dead body have not been proved by the prosecution, which could show, whether any injury caused due to assault by lathi was there on the dead body of the deceased or not. 12. 12. We are of the considered view that so far as the appellants, Chari Paharia and Lokna Paharia are concerned, the prosecution has not been able to prove the charges against them beyond all reasonable doubts, and they are entitled to be given at least the benefits of doubt, even if the two witnesses, closely related to the deceased, have supported the prosecution case. As such, their conviction and sentence cannot be sustained in the eyes of law. 13. Accordingly, the impugned Judgment of conviction dated 30.09.1994 and Order of sentence dated 01.10.1994, passed by the learned Additional Sessions Judge, Pakur, in Sessions Case No. 119 of 1988 / 36 of 1992, whereby, so far as the appellants, Chari Paharia and Lokna Paharia, have been convicted and sentenced for the offences under Sections 302 / 149 & 147 of the Indian Penal Code, are hereby, set aside. Both these appellants are given the benefits of doubt and they are acquitted of the charges. The appellant, Chari Paharia, is on bail, and he is discharged from the liabilities of his bail bond. Against the appellant, Lokna Paharia, the non-bailable warrant has been issued by the Trial Court below, which hereby, stands recalled. 14. Both these appeals are accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.