TIJNA KHARIA Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) This appeal has been directed against the judgment of conviction and sentence dated 18.9.2006 and 19.9.2006 respectively, passed by learned 1st Addl. Sessions Judge, Gumla in connection with Sessions Trial No. 119 of 2004, corresponding to Sisai (Bharno) P.S. Case No. 9 of 2004, G.R. Case No. 45 of 2004 whereby learned 1st Addl. Sessions Judge, Gumla has held the appellant guilty for the offence punishable under Sec. 302 of the Indian Penal Code and sentenced him to undergo R.I. for life and also to pay fine of Rs. 1,000/ -. The case of prosecution, in brief, is that on 21.1.2004 at about 6.30 a.m. the appellant with Ratia Kharia (deceased) and Budhani Khariain (deceased) were sitting under a tamarind tree and they were warming themselves by fire. It was a winter morning. It is alleged that appellant Tijna Kharia suddenly caused injury to Ratia Kharia by means of tangi which he was having in his possession. Budhani Khariain intervened to save her son Ratia but she was also inflicted with tangi blow by the appellant. Hearing hulla when Chumai Khariain (wife of Ratia) rushed to save her husband and mother -in -law, she was also given same treatment and the appellant hurled tangi blow causing injury to Chumai Khariain too. After sustaining injury all the three; Ratia Kharia, Budhani Khariain and Chumai Khariain died at the spot. The occurrence was witnessed by the informant and other villagers who assembled after hearing alarm raised by the deceased. Thereafter appellant Tijna Kharia confined himself in the house of Mangru Kharia and bolted the door from inside. The witnesses and the villagers kept the said house under vigil and informed the police. The appellant was apprehended by the police who overpowered him after breaking open the door of the house of Mangru. The appellant was having bloodstained tangi with him at the time of his arrest. Fardbeyan of Birsa Kharia was recorded on 21.1.2004 at 11.30 hours and Sisai (Bharno) P.S. Case No. 9 of 2004 dated 21.1.2004 under Sec. 302 of the Indian Penal Code against sole appellant was registered. The Investigating Officer took the charge of investigation at the spot and proceeded ahead. The statement of witnesses were recorded, seizure list of bloodstained axe and bloodstained earth were prepared. The I.O. also prepared inquest report and sent the dead bodies for post mortem examination. After concluding investigation, charge -sheet was submitted. Accordingly, cognizance was taken and the case was committed to the court of sessions and registered as S.T. No. 119 of 2004.

(2.) The charge under Sec. 302 of the Indian Penal Code against the appellant was framed, content of the charge was read over and explained to which appellant did not plead guilty and claimed to be tried. The prosecution, in order to substantiate the charge, has examined altogether ten witnesses and proved documents. The learned Addl. Sessions Judge, at the conclusion of trial, held the appellant guilty for the offence punishable under Sec. 302 of the Indian Penal Code and sentenced him, as indicated above.

(3.) The appellant has assailed the impugned judgment on the ground that Birsa Kharia PW -3 (informant) is not an eye witness which is apparent from the statement of PW -4. According to statement of PW -4 he was the person who first reached to the place of occurrence but according to informant there was only one eye witness present at the spot and he is Mangru Kharia who had given his L.T.I. on the fardbeyan. The informant did not name PW -4 that he was present at the time of occurrence. Likewise, PW -4 Charkhu Sahu did not say that informant was present. The prosecution has projected four eye witnesses including the informant and they are PW -3, PW -4, PW -6 and PW -7 but the statement of so -called eye witnesses is not consistent about the manner of occurrence. On close perusal of the deposition of aforesaid witnesses, it would reveal that they had not seen the occurrence rather they reached at the place of occurrence when the assault was over and the appellant also was not present at the scene of occurrence. Unfortunately, Mangru who has been named as eye witness in the fardbeyan died and therefore he could not be examined. Had he appeared in the dock, true story would have come out. The statement of eye witnesses are also not reliable on the ground that the appellant along with deceased Ratia and Budhani were jointly warming themselves by sitting near the fire which indicates that they were sitting in a cordial atmosphere. The prosecution is completely silent on the point as to what instigated the appellant to start assaulting deceased Ratia. This goes to show that the manner of occurrence as brought on record by the prosecution is not believable and prosecution witnesses have not given the true picture. The blood -stained axe or bloodstained earth collected from the place of occurrence had not been sent to Forensic Science Laboratory for its chemical examination. Only production of axe alleged to have been used for committing murder is not sufficient to prove this fact that axe was stained with human blood. In the circumstances, the appellant at least, needs benefit of doubt.