Ajit Kharia vs State of Jharkhand

Heard, Mr. K. S. Nanda, learned counsel appearing for the appellant and Mr. Satish Kumar Keshri, learned counsel appearing for the State.

The instant Criminal appeal has been preferred by the sole appellant, Ajit Kharia being aggrieved and dissatisfied by the Judgment of conviction and

order of sentence, both dated 26.11.2012, passed by Sri Om Prakash Pandey, the learned Principal Sessions Judge, Gumla, in Sessions Trial No.179

of 2005 (arising out Basia P.S. Case No.15 of 2005 corresponding to G.R. No.249 of 2005), whereby the sole appellant, Ajit Kharia has been

convicted for the offence punishable under Section 302 of the Indian Penal Code and awarded rigorous imprisonment for life and fine of Rs.1,000/-

and in default of payment of fine, to further undergo simple imprisonment for six months.

The instant criminal appeal was filed on 04.02.2013 and further under order dated 27.11.2013, the same was admitted and L.C.R. was called for,

from the trial court.

The case of the prosecution, as unfolded in the 'fardbeyan' of informant, Nandi Kharia (P.W.6), recorded on 26.04.2005 at 7.45 a.m. by S.I., Ram

Awadh Paswan, alleging therein that, on the preceding night i.e. 25.04.2005 at 4.00 p.m., the husband of the informant, Chemo Kharia, on the eve of

'Sarhul festival' went to visit mela at Moreng Pahan Toli along with other people of the village. It is further alleged, that Inda Kharia- P.W.5 (brother-

in-law of the informant) had also visited the mela and in the evening at 8 p.m., Sawna Kharia- P.W.2 (co-villager) and his wife, Rajo Kharian (P.W.1)

came and disclosed, that Chemo Kharia was surrounded by the appellant (Ajit Kharia) near Panchghanta Talab, in the field of Bhairaw Kharia and

Ajit Kharia was carrying 'Dauli'. On hearing this, the informant along with brother-in-law, Inda Kharia and cousin brother-in-law, Birsa Kharia went

to the place of occurrence, saw Ajit Kharia fleeing away towards the pond and one person was lying in the field of Bhairaw Kharia. Informant

noticed that her husband received injury on the neck and blood was oozing out and found that her husband was dead. Motive behind the occurrence

was land dispute between the parties.

  On the basis of the aforesaid 'fardbeyan' of Nandi Kharia, informant, the Police instituted First Information Report bearing Basia P.S. Case No.

15 of 2005 (dated 26.04.2005), corresponding to G.R. No.249 of 2005 under Section 302 of the Indian Penal Code against the accused/appellant (Ajit

Kharia).

After investigation, the Police submitted charge-sheet against the sole appellant/accused, named in the First Information Report vide Charge-sheet

No.30/05 dated 21.07.2005 under Section 302 of the Indian Penal Code.

The cognizance of the offence has been taken vide order dated 28.07.2005Â and the case has been committed to the Court of Sessions vide order

dated 08.08.2005. The charge has been framed against the appellant/ accused under Section 302 I.P.C. on 29.08.2005, to which the appellant/accused

pleaded his innocence and thus,he was put under trial.

During the course of trial, the prosecution, in order to prove its case, has examined altogether eleven witnesses and also adduced a number of

documentary evidences as Exhibits.

Rajo Kharian has been examined as P.W.1, Sawna Kharia has been examined as P.W.2, Dr. Ajit Kumar Agrawal (Medical officer) has been

examined as P.W.3 and he has performed the post- mortem examination of the dead-body of the deceased and the same has been proved and marked

as Exhibit-2, Birsa Kharia has been examined as P.W.4, Inda Kharia has been examined as P.W.5, Nandi Kharian (informant and wife of the

deceasedChemo Kharian) has been examined as P.W.6, Sanjay Kumar Sahu, a seizurelist witness has been examined as P.W.7, Dipit Sahu, an

inquest witness has been examined as P.W.8, Shiv Lal Sahu, also an inquest witness has been examined as P.W.9, Nanka Lohra, a seizure witness of

'Dauli' has been examined as P.W.10, Ram Awadh Paswan, Sub Inspector of Police and I.O. Of the case has been examined as P.W.11.

Statement of witness, Sawna Kharia (P.W.2) recorded under Section 164 Cr.P.C., has been proved and marked as Exhibit-1, post- mortem report

has been proved and marked as Exhibit-2, endorsement of Sanjay Sahu on the seizure-list has been proved and marked as Exhibit-3, endorsement

of Nanka Lohra (P.W.10) on the seizure-list has been proved and marked as Exhibit-3/1, fardbeyan of the informant has been proved and marked

as Exhibit-4, Inquest report  has been proved and marked as Exhibit-5, confessional statement of appellant/accused, Ajit Kharia leading to

recovery of 'Dauli' from well has been proved and marked as Exhibit-6, entire seizure list has been proved and marked as Exhibit-7 and the formal

First Information Report has been proved and marked as Exhibit-8.

Defence has examined three witnesses, Jareli Kharian has been examined as D.W.1, Sukra Kharia has been examined as D.W.2 and Arjun Singh has

been examined as D.W.3.

Learned counsel appearing for the appellant, while referring to the evidence of the informant, Nandi Kharian and her 'fardbeyan' (Exhibit-4), has

submitted, that the informant (P.W.6) has categorically stated, that she has learnt about the occurrence from the witnesses, Sawna Kharia (P.W.2)

and his wife, Rajo Kharian (P.W.1), who after returning from mela, disclosed, that Ajit Kharia has surrounded her husband and he was carrying

'Dauli'. Informant (P.W.6) went to the place of occurrence and noticed that accused, Ajit Kharia was fleeing away carrying 'Dauli†in his hand. She

further noticed that her husband (Chemo Kharia) was lying in the field of Bhairav Kharia haing bleeding injury on the neck, but in her evidence in the

court as P.W.6, informant has stated that she went to the place of occurrence and noticed that her husband was lying there and had injuries on his

neck and cheek. She also admitted that there was a land dispute between the parties. As such, there are contradictions in the fardbeyan of the

informant (Exhibit-4) and her evidence in the court as P.W.6.

Learned counsel appearing for the appellant, while assailing the evidence of the informant- P.W.6 (Nandi Kharian), has submitted that in the

'fardbeyan', which is basis of the First Information Report, informant has stated that she went to the place of occurrence and she noticed that the

appellant/accused (Ajit Kharia) fleeing away from the place of occurrence along with 'Dauli', but in her evidence as P.W.6, she has not stated this

fact. She (informant) has categorically stated in Para-7 of her cross-examination, that she has not seen the appellant/accused (Ajit Kharia) assaulting

her husband. Further, while referring to the evidence of Rajo Kharian (P.W.1), informant has stated that Rajo Kharian (P.W.1) has seen the

appellant/accused (Ajit Kharia) fleeing away with 'Dauli', but she (Rajo Kharian- P.W.1) has also stated in her cross-examination at Para-6 to the

effect, that one another person was also there, who assaulted Chemo (deceased). So, it is submitted that she (P.W.1) has improved her version. Her

evidence as P.W.1 is in contradiction with the evidence of the informant (P.W.6). Similar is the evidence of P.W.2 (Sawna Kharia), whereinÂ

he  has also stated, that along with Ajit there was another person, but he could not identify him and Ajit was carrying 'Dauli', His evidence

(P.W.2- Sawna Kharia) is also in contradiction to the evidence of the informant (P.W.6). This witness (P.W.2) has stated that he noticed the wound

on the head of the deceased. Though this is not stated by the informant (P.W.6) about the head injury. So, P.W.(2) has improved his version. So far,

evidence of P.W.7 (Sanjay Kumar Sahu) is concerned, this witness in his evidence has stated that he has put his signature on the seizure-list and the

same has been marked as Exhibit-3, whereby, 'Dauli' was recovered in his presence, but he has also mentioned about the 'Bhujali. He (P.W.7) has

stated in his cross-examination, that the Investigating officer has taken his signature on the paper and the same was marked as Exhibit- 3. Similar is

the statement of P.W.8 (Dipit Sahu), who is an inquest witness. P.W.10 (Nanka Lohra), who has signed in the seizure-list and the same has been

proved and marked as Exhibit- 3/1, wherein 'Dauli' was recovered.

On 26.04.2005, while Doctor (P.W.3- Dr. Ajit Kumar Agrawal) was posted atSadar Hospital, Gumla and at 3.40 p.m., he conducted post- mortem

examination on the person of deceased, Chemo Kharia, aged 40 years, S/o of Late Chitha Kharia, resident of Village- Morengdih Toli, P.S.- Basia,

Distt :Gumla. Body was brought and identified by Chowkidar. The following antemortem injuries were found :-

(i) one incised would of about 4â€​x1â€​x2â€​ over left side of lower neck withcutting of blood vessels and soft tissues underneath.

(ii) one incised would of about 6â€x2â€x3†over fight face below right earextending posteriorly upto occipital region of skull and anteriorly up to angle

of mouth with cutting of occipital bone right side maxillary bone and mandible with laceration of all blood vessels nerves and soft tissues. (iii) one

incised wound of about 5â€x1½ “x2†over right side lower neck lateral aspect with cutting of all vital structures bloodvessels and nerves and

soft tissues of underlying neck with partial cut of cervical vertebra no.5.

All above injuries are ante -mortem in nature grievous and caused by sharp cutting edged weapon which may be a dauli (Dabia). Doctor has opined

that injury Nos. (I), (ii) and (iii) are sufficient to cause death in ordinary course of nature either singly or in combination with above mentioned injuries.

Cause of death- Haemorrhage & shock.

Time since death from Post-mortem- 12 to 24 hours.

Stomach was empty.

The post-mortem report has been proved and marked as Exhibit-2.

Doctor (P.W.3) in his cross-examination, has stated, that injury can be caused by one weapon or by several sharp-cutting weapons.

From perusal of evidence of prosecution witnesses, P.W.1 (Rajo Kharian) and P.W.2 (Sawna Kharia), two persons were assaulting the deceased

(Chemo Kharia) in contradiction to the evidence of P.W.6, as such, this Court doubts over the prosecution case.

Learned counsel for the appellant has further referred to the evidence of P.W.11 (Ram Awadh Paswan), Sub Inspector of Police and

Investigating officer of the case. The occurrence is of 25.04.2005. He received information on 26.04.2005, that one person has been murdered at

Morengdoh Toli. He went to the place of occurrence to cross-examine the said fact, as such, he recorded the statement of Nandi Kharia (P.W.6),

wife of Chemo Kharia (deceased) in the handwriting of A.S.I., Parsuram Rai (not examined) and has been marked as Exhibit-4. A.S.I. Parsuram Rai

also prepared the inquest report. Signature of P.W.11 is on the carbon-copy of inquest report and the same has been marked as Exhibit-5. He

recorded the restatement of the informant -P.W.6 (Nandi Kharia). He also recorded the statement of the witnesses, Inda Kharia, Birsa Kharia,

Sawna Kharia, Rajo Kharia, Shivlal Sahu and Dipti Sahu and also visited the place of occurrence. According to this witness (P.W.11), place of

occurrence is situated near Panchghanta Talab in the field of Bhairav Kharia, of Village- Moreng. In the east of place of occurrence is empty land of

Sukku Kharia, in the west is kacchi road and Pachhghanta talab, in the north is empty land of Gujar Kharia and Konatoli Village and in the south is

Kacchi road, empty land of Etwa Kharia and Moreng village. He arrested the accused, Ajit Kharia at his house. He recorded the confessional

statement of the accused which has been written in the handwriting of A.S.I., Parsu Ram and the same bears signature of this witness (P.W.11) and

has been proved and marked as Exhibit-6. Pursuant to the confession of accused, 'Douli' was recovered from the well and the seizure-list was

prepared also in the hand-writing of A.S.I., Parsu Ram and entire seizure list has been proved and marked as Exhibit-7. After receiving post- mortem

report, he submitted final form. This witness has stated in Para-9 of his cross-examination, that Rajo Devi has stated in her evidence, that along with

accused, Ajit Kharia, one another person was also there which she (P.W.1) could not recognize and P.W.11 has also not made investigation for the

aforesaid fact. Birsa Kharia (P.W.4) has stated that there was land dispute between the accused, Ajit and deceased (Chemo) and before this

occurrence, hot exchange of words have taken place between the deceased and the appellant (Ajit Kharia), at some point of time.

Learned counsel for the appellant has submitted that as per the witnesses and statement made under Section 161 Cr.P.C. and witnesses, P.W.1

and P.W.2 have categorically stated that along with the appellant, Ajit Kharia there was one another person and no investigation was made by the

Investigating officer and Investigating officer (P.W.11) has admitted this fact. This creates serious doubt on prosecution case. It is further submitted,

that on confession of appellant, the 'Dauli' was recovered from the well, but the same was not sent for examination, in order to ascertain the fact that,

it is the weapon of assault. So, it was submitted that the prosecution has not proved its case beyond all reasonable doubts.

Learned counsel appearing for the State while supporting the impugned judgment of conviction and order of sentence, has submitted, that in view

of the evidence of the informant (P.W.6) coupled with the confession made by the accused/appellant led to recovery of 'Dauli' and also the land

dispute between the parties, the prosecution has proved its case beyond all reasonable doubt.

After hearing the learned counsel appearing for the parties and on perusal of records and in view of discussion made herein- above of the

witnesses oral as well as documentary, this Court is of the considered view, that the informant- P.W.6 (wife of the deceased- Chemo Kharia) in her

crossexamination, has categorically stated that she has not seen the appellant assaulting her husband and she has also not stated in her evidence that

she has seen the accused/appellant fleeing away carrying 'Dauli', who has changed the version and manner of occurrence. Similarly from perusal of

evidence of P.W.1 and P.W.2, it appears that they have also stated presence of one another person, who was accompanied with the appellant and

improved the prosecution case.

Further, the weapon of assault has not been established by the prosecution beyond all reasonable doubt, although pursuant to the confession made

by the accused/appellant, 'Dauli' was recovered, but the investigating officer has not sent the same for examination to the Forensic Science

Laboratory to establish that the 'Dauli' was used for commission of crime.

Taking all the facts and circumstances of the case, the prosecution has failed to prove its case beyond all reasonable doubt, as such, the judgment of

conviction and order of sentence is not sustainable in the eyes of law.

In the result, the Judgment of conviction and order of sentence, both dated 26.11.2012, passed by Sri Om Prakash Pandey the learned Principal

Sessions Judge, Gumla, in Sessions Trial No.179 of 2005 (arising out Basia P.S. Case No.15 of 2005 corresponding to G.R. No.249 of 2005), is hereby

set aside by giving benefit of doubt. The appellant, named above, who is in custody, is directed to be released forthwith, if not wanted in any other

case.

Accordingly, the instant appeal stands allowed.

Let the L.C.R. along with a copy of this judgment be sent to the concerned trial court forthwith.