Suna Kharia S/o Late Cherruh Kharia vs State Of Jharkhand

Rajesh Kumar, J

Heard Mr. K.S.Nanda, learned counsel for the appellant and Mr. Manoj Kr. Mishra, learned A.P.P., appearing for the State.

This appeal is directed against the judgment of conviction dated 30.08.2007 and order of sentence dated 31.08.2007 passed by Sri Prasanna Kuma Dubey, learned Sessions Judge, Gumla in Sessions Trial No. 06 of 2007 (arising out of Palkot P.S. Case No.24 of 2006, G.R. Case No.336 of 2006) whereby and whereunder the appellant has been convicted for the offence under Section 304 of the Indian Penal Code and has been sentenced to undergo R.I. for five years.

The criminal law has put into motion by lodging an F.I.R. being Palkot P.S. Case No.24 of 2006 against the appellant. The F.I.R. has been lodged on the fardbeyan of the informant, namely, Mangu Kharia. The brief fact of the case is that Mangal Kharia father of the informant had gone to the house of the appellant, namely, Suna Kharia at the request of the appellant on the occasion of Sarhul festival on 12.04.2006. At the house of the appellant they took Hadia and celebrated the festival by singing and dancing. At about 8.00 P.M, Pandey Kharia of Korkot Toli came to the informant and gave information that the appellant has assaulted his father with Danda and Slaps due to that his father has become senseless. On getting this information, the informant came to the house of the appellant and found his father senseless on the road. Somari Devi (P.W.-3) was giving water to him for drink and she disclosed that after taking drinks there was a quarrel in which the appellant has assaulted Mangal Kharia by Slaps and Danda which caused injury on his ear and cheek. Due to injury, bleeding started and Mangal Kharia became senseless. The appellant took Mangal Kharia on a Tempo to Sadar Hospital for treatment and during the course of treatment on 16.04.2004 at about 5 P.M. Mangal Kharia died at Hospital. After the death, the appellant brought the dead body of deceased (Mangal Kharia) at his house. He told the informant and other people that they will not speak about the real fact but they had to give another story that the deceased was in drunken condition and he fell down in that condition and due to that he died.

On the basis of said allegation, the police after investigation has submitted the final form under Section 304 of IPC and accordingly cognizance has been taken and the case has been committed to the court of Sessions. On conclusion of trial, the appellant has convicted under Section 304-II of the IPC to which appellant has pleaded not guilty and claimed to be tried.

To substantiate the prosecution story, altogether fourteen witnesses have been examined.

P.W.-1-Rashna Kerketa @ Kharia who is a local resident was present at the place of occurrence. She has declared hostile.

P.W.-2-Pandey Kharia is a co-villager, who has deposed that he was not present on the day of incident. He has declared hostile.

P.W.-3- Somari Devi has stated that the deceased was not assaulted but she deposed that the occurrence took place on the occasion of Sarhul festival. She has also declared hostile.

P.W.-4- Pusha Kharia is a hearsay witness. He has deposed that he had not seen the assault being committed by anyone.

P.W.-5-Munda Kharia has deposed that he has no knowledge about the assault on the deceased. He has also declared hostile.

P.W.-6- Atwa Kharia is a hearsay witness. He has deposed that the appellant has told him that he has assaulted Mangal Kharia by danda and slap. He has denied the illness of Mangal Kharia.

P.W.-7- Mangu Kharia is the informant and son of the deceased. He has given information to the police regarding the occurrence. He has put his signature on the fardbeyan marked as Ext.-1

P.W.-8- Medical Officer, who has conducted the post mortem of the dead body of Mangal Kharia and found that his injuries were ante-mortem in nature and grievous caused by hard and blunt substance may be lathi. The cause of death is due to shock and internal hemorrhage. He has proved the post mortem report (Ext.-2) He has also admitted that the injuries may be possible by fall on rocky substance from certain height.

P.W.-9- Baiju Uraon is the I.O. of this case, who has stated that he was informed that Mangal Kharia has been assaulted and his treatment is going on at Hospital where he died on 16.04.2006. He has proved the formal F.I.R. (Ext.-5). During his examination, he has not named the source of information.

P.W.-10- Ajay Prasad is another I.O. who has conducted further investigation and submitted the charge-sheet.

P.W.-11- Turi Kharia is the hearsay witness, P.W.-12-Sudhni Kharia and P.W.-13- Hawra Kharia are the hearsay witness and they have not stated regarding any occurrence.

P.W.-14- Langtu Kharia has been declared hostile.

There are only two materials available against the appellant:-

i. P.W.-6 who has deposed that the appellant has confessed before him that he has assaulted the victim with danda and slaps, but the I.O. has been confronted such statement and he has denied such statement has been made.

ii. He has been seen alongwith the deceased and they both have taken hadia together. Except above two materials, there is no other material against the appellant.

It has been submitted by the learned counsel for the appellant that it is case of no evidence. Only the so-called confession has not been corroborated by the I.O. as no such statement has been made before the I.O. and as such it cannot be relied upon.

It has been further submitted that the nature of injury may be due to fall also. It has been submitted that in the absence of any cogent material, the conviction is bad in law.

On the other hand, learned counsel for the State has supported the judgment of conviction and submitted that there is an extra-judicial confession and both the person have been seen together before death.

Having heard the learned counsel for the parties and from perusal of record, it appears that it is a case of circumstantial evidence. In the case of circumstantial evidence, the chain of the circumstances must be complete and that can be explain only by the guilt of the accused. In the present case, they have taken hadia together, but there is no definite opinion that the nature of injury caused by lathi or other substance rather he has considered to the suggestion that it may be due to fall upon hard and blunt substances with a certain height.

So far as confession is concerned, since, for the first time it has been stated before the Court and that too without disclosing the same before the I.O. is not acceptable.

In view of the above discussion, this Court finds that there is no evidence connecting this appellant with the alleged crime.

In that view of the matter, the judgment of conviction dated 30.08.2007 and order of sentence dated 31.08.2007 passed by the learned Sessions Judge, Gumla in Sessions Trial No. 06 of 2007 (arising out of Palkot P.S. Case No.24 of 2006) is hereby set aside.

The appellant is on bail and as such he is discharged from the liability of the bail bonds.

In the result, the appeal stands allowed.

Let the Trial Court Records be sent back to the Court concerned forthwith, alongwith the copy of this Judgment.