Allowed

Khudia Pahan And Anr. v. State of Bihar

Jharkhand HC17 Jan 2019Cr.A(DB)/164/1996

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Jharkhand allowed the appellants' petition challenging their life imprisonment for murder. The court held the prosecution failed to establish the place and manner of occurrence, lacked an eyewitness, and failed to examine a crucial informant who disclosed the incident. Consequently, the conviction was set aside and the benefit of doubt was extended.

What did the court decide?

The impugned judgment of conviction and order of sentence were set aside. The appellants were discharged and allowed benefit of doubt.

Khudia Pahan And Anr. Vs State of Bihar — Specific Performance | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (DB) No.164 of 1996(R)

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Against the Judgment of conviction dated 03.08.1996 and order of sentence dated 07.08.1996, passed by the learned Additional Judicial Commissioner, Khunti, in S.T. No. 286 of 1995/ T.R. No.26 of 1995.

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Khudia Pahan

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Belsazar Kandulna, Both sons of Soma Pahan resident of villageJaput Janumtoli, P.S.-Rania and

District-Ranchi.

…..Appellants

Versus

The State of Jharkhand ….. Respondent

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P R E S E N T

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Hon’ble Mr. Justice Aparesh Kumar Singh Hon’ble Mr. Justice Kailash Prasad Deo

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For the Appellants : Mr. Yogesh Modi, Amicus Curiae.

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For the State : Mr. Ashok Kumar No.2, Additional Public Prosecutor

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Per Hon'ble K. P. Deo, J.:- Heard, Mr. Yogesh Modi, learned Amicus Curiae and Mr. Ashok Kumar No.2, learned Additional Public Prosecutor for the State.

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2. The instant Criminal appeal has been preferred against the judgment of conviction dated 03.08.1996 and order of sentence dated 07.08.1996, passed by the learned Additional Judicial Commissioner, Khunti, in S.T. No. 286 of 1995 / T.R. No.26 of 1995 whereby both the appellants have been convicted for the offence committed and punishable under Section 302/34 of the Indian Penal Code and awarded them Rigorous Imprisonment for life.

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3. The prosecution case, is based upon, fardbyan of Monika Dhanwar(P.W.6) w/o late Mikhail Dhanwar, resident of village Japut Barka Toli, P.S. Rania, DistrictRanchi, recorded by Assistant Sub-Inspector of Police, Silbester Barla(P.W.7) on 23.01.1995 at 14.30 Hrs at Japut Janum Toli, whereby informant has alleged that, on 22.01.1995 (Sunday) in the evening, her husband, Mikhail Dhanwar was in his house, co-villager namely, Khudia Pahan (appellant no.1) called her husband and took him to the house of his elder brother, Belsazar Kandulna (appellant no.2), but husband of the informant did not return in the night. It is stated that in search of her husband, when they reached near, Japut Janum Toli, they saw the dead body of her husband lying in front of the house of Belsazar Kandulna (appellant No.2). The

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informant started inquiring into the matter, upon which wife of Belsazar Kandulna namely, Fulkeria Kandulna has disclosed that her husband (Mikhail Dhanwar) has been killed by Khudia Pahan (appellant No.1) and Belsazar Kandulna (appellant No.2) by assaulting with danda. The informant has further stated that, there was land dispute between her husband on one side and Khudia Pahan and Belsazar Kandulna on the other side, for which several panchaity were held but the dispute was not resolved. The informant has alleged that, Khudia Pahan and Belsazar Kandulna have earlier given threatening several times with dire consequences to her husband. The informant has claimed that both have killed her husband (Mikhail Dhanwar) on Sunday at about 8.00P.M. in the evening for grabbing the land.

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4. On the basis of ' fardbeyan ' of the informant, the Police has registered First Information Report bearing Rania P. S. Case No.01 of 1995 dated 24.01.1995 under Section 302/34 of the Indian Penal Code against both the accused namely, Khudia Pahan and Belsazar Kandulna.

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5. After investigation, the Police has submitted final form vide charge sheet no.02 of 1995 dated 31.03.1995 under Section 302/34 of the Indian Penal Code against both the named accused persons, namely, Khudia Pahan and Belsazar Kandulna, citing nine charge-sheeted witnesses though Fulkeria Kandulna has not been cited as charge-sheet witness in column-6 of the charge sheet.

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6. The cognizance of the offence has been taken under Section 302/34 of the Indian Penal Code against both the accused persons vide order dated 06.04.1995 and the case has been committed to the Court of Sessions vide order dated 10.05.1995.

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7. The learned trial Court has framed charge against both the accused persons on 26.06.1995, under Section 302/34 of the Indian Penal Code, to which both the accused persons have pleaded themselves to be innocent and thus, they were put under trial.

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8. The prosecution, in order to prove its case, has examined altogether seven prosecution witnesses and also exhibited a number of documentary evidence up to exhibits five in support its case.

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Marshal Dhanwar has been examined as P.W.1, Nikolas Barla has been examined as P.W.2, Thomas Dhanwar has been examined as P.W.3, Redan Kandulna has been examined as P.W.4, Dr. Sudhir Kumar Shandilya, Medical Officer, has been examined as P.W.5, Monika Dhanwar, informant of the case and wife of the deceased, has been examined as P.W.6 and Silbester Barla, A.S.I. and Investigating Officer of the case, has been examined as P.W.7.

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Signatures of Marshal Dhanwar (P.W.1) and Redan Kandulna (P.W.4) on inquest report have been proved and marked as Exhibits-1 and 1/1 respectively, postmortem report of the deceased, Mikhail Dhanwar has been proved as Exhibit-2 by Dr. Sudhir Kumar Shandilya, Medical Officer, who has conducted the postmortem of the deceased, fardbeyan of the informant recorded by A.S.I., Silbestar Barla in presence of Fulkeria Kandulna and Redan Kandulna has been proved and marked as Exhibit-3, formal First Information Report has been proved by the Investigating Officer and the same has been marked as Exhibit-4 and inquest report has also been proved by Investigating Officer, A.S.I. Silbestar Barla, which has been marked as Exhibit-5.

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9 . After closure of prosecution evidence, statement of both the accused persons/ appellants was recorded under Section 313 Cr.P.C. on 04.07.1996, to which they have pleaded that they are innocent and have denied about their involvement in the occurrence and they have categorically denied that wife of accused/appellant no.2 has not stated anything to the informant, which has been alleged against them.

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10 . After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has convicted both the accused persons namely, Khudia Pahan and Belsazar Kandulna for the offence committed and punishable under Section 302/34 of the Indian Penal Code and awarded them Rigorous Imprisonment for life.

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Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have jointly preferred the present criminal appeal before this Hon’ble Court, assailing the same.

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11 . Heard, Mr. Yogesh Modi, learned Amicus Curiae.

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Learned Amicus Curiae has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law.

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Learned Amicus Curiae has submitted that there is no eye witness to the occurrence and as per the fardbeyan of the informant (P.W.6- Monika Dhanwar), she could get information, as disclosed by Fulkeria Kandulna, wife of Belsazar Kandulna (appellant No.2) though Fulkeria Kandulna has not been examined in this case nor she has been cited as a charge-sheet witness by the Investigating Officer.

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Learned Amicus Curiae has further submitted that wife of Belsazar Kandulna (appellant No.2), Fulkeria Kandulna has also not been examined under

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Section 311 Cr.P.C., as such, there is no material against the appellants. Learned Amicus Curiae has further submitted that Marshal Dhanwar (P.W.1) is cousin of the deceased and he is a hearsay witness. This witness is also an inquest witness, who has proved his signature and signature of Redan Kandulna (P.W.4) on the inquest report, which have been marked as Exhibit-1 and Exhibit-1/1 respectively. Nikolas Barla has been examined as P.W.2. This witness is also a witness, who saw the dead body of Mikhail Dhanwar (deceased) but has stated that near the dead body, no blood was found. This witness has further stated that Mikhail Dhanwar (deceased) has sustained injuries on his jaw and both hands, but same were not bleeding injuries. Thomas Dhanwar has been examined as P.W.3. This witness is also a hearsay witness. This witness has stated that he has seen bleeding injury near the eyes of the deceased. Redan Kandulna has been tendered by the prosecution. He is another inquest witness, who has been examined as P.W.4. Dr. Sudhir Kumar Shandilya is the Medical Officer who has conducted post-mortem on the dead body of the deceased (Mikhail Dhanwar) on 24.01.1995 at 3.30 P.M. and found the following injuries :-

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(i) Both nostrils and ear plugged with clotted blood.

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(ii) Half inch diameter abrasion below left eye.

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(iii) Diffused haematoma of face.

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(iv) Haematoma of about 1” x 1/2” over right parietal region.

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On opening of cranial cavity, there is a big blood clot underlying the external injury No.IV. Cranial cavity full with blood mixed fluid with fracture of right parietal bone.

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All the injuries were ante-mortem and caused by hard blunt object may be

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lathi.

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Cause of death-Head injury with shock and haemorrhage. Time since death within 60 hours and the Post-Mortem Report in his hand-writing bearing his signature, which has been proved and marked as Exhibit-2.

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During cross-examination this witness has stated that there was internal hemorrhage in the head injury. The Medical Officer has not found blood over the outer level of haematoma on the head. The head injury found is not possible, if one strikes against a hard and blunt object. Abrasion may be caused, if one strikes against a wall or any hard object.

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Monika Dhanwar is the informant and wife of the deceased, has been examined as P.W.6., but she is not an eye-witness to the occurrence rather on the basis of the disclosure made by wife of Belsazar Kandulna (appellant No.2), namely Fulkeria Kandulna, she has alleged against these appellants. Though Fulkeria Kandulna has not been examined in this case. Silbester Barla, Investigating Officer

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of the case, has been examined as P.W.7. This witness has stated that on 23.01.1995, Chowkidar, Gabrial Munda of 2/4 bit has informed him about the murder in the Village- Japut Janum Toli and after receiving information Station Diary entry was made. In the morning at around 10.00 A.M., Chowkidar informed him about the same, though the same has not been made entry in the case diary. This witness has stated that fardbeyan of the informant was recorded in presence of Fulkeria Kandulna, wife of the appellant No.2 and Redan Kandulna (P.W.4) by him and the investigation was also conducted by him. He has also proved inquest report signed by Redan Kandulna (P.W.4) and Marshal Dhanwar (P.W.1) as Exhibits 1 and 1/1 respectively.

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Learned Amicus Curiae has further submitted that from perusal of the evidence of the prosecution witnesses, it appears that there is no eye-witness to the occurrence rather as per the prosecution case, the entire prosecution witnesses who have been examined in this case are hearsay witnesses as they have gathered information from Fulkeria Kandulna, wife of Belsazar Kandulna (appellant No.2), who has not been examined in this case. The Investigating Officer has not cited Fulkeria Kandulna as a charge-sheet witness nor she has been examined under Section 311 Cr.P.C.

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Learned Amicus Curiae has thus submitted that seeing no evidence againt the accused persons/appellants, the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law.

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Learned Amicus Curiae has further submitted that signature of Fulkeria Kandulna on the fardbeyan is not a substantial piece of evidence for holding the appellant guilty in absence of examination of Fulkeria Kandulna in the present case.

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Learned amicus curiae has further submitted that the place of occurrence has not been established nor the manner of occurrence has been proved. The prosecution has also failed to bring the weapon of assault on record. The inquest report was prepared at a place, which is under the ‘Imli’ tree. Under the aforesaid circumstances, the appellants who are in litigating term with the informant because of land dispute, cannot be convicted under Section 302/34 I.P.C. without having any eye-witness or proving the place of occurrence or manner of occurrence, as no eyewitness has been examined in this case and the chain of circumstances is also not proved beyond all reasonable doubt.

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Learned Amicus Curiae has thus, submitted that the appellants are entitled for benefit of doubt and the impugned judgment of conviction and order of sentence

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is bad in law as well as on the fact which cannot sustain in the eyes of law.

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12 . Heard, Mr. Ashok Kumar No.2 learned Additional Public Prosecutor appearing for the State.

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Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned trial court on the basis of the materials available on record.

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Learned counsel for the State has submitted that Monika Dhanwar (P.W.6), wife of the deceased has categorically stated that her husband (Mikhail Dhanwar) was called by Khudia Pahan (appellant No.1) to meet his elder brother, Belsazar Kandulna (appellant No.2) and thereafter her husband has not returned.

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Learned counsel for the State has submitted that wife of Belsazar Kandulna (appellant No.2), namely, Fulkeria Kandulna has disclosed the occurrence before the informant and other prosecution witnesses and the deceased has also sustained injuries caused by hard and blunt substance on head and other vital parts of the body, as such, the impugned judgment of conviction and order of sentence passed by the learned trial court on the basis of the materials available on record, does not warrant any interference by this Hon’ble Court.

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13 . Heard, Mr. Yogesh Modi, learned Amicus Curiae and learned counsel for the State, Mr. Ashok Kumar no.2, learned Additional Public Prosecutor and perused the materials brought on record including the First Information Report, framing of the charge, evidence of seven prosecution witnesses, five prosecution exhibits, the statement of the appellants recorded under Section 313 Cr.P.C. as well as the impugned judgment of conviction and order of sentence. This Court has perused the materials brought on record and it appears that there is no eye-witness to the occurrence, as the informant has categorically stated that she learnt about the occurrence from Fulkeria Kandulna, wife of Belsazar Kandula (appellant No.2). Fulkeria Kandulna has stated before the informant and other witnesses that her husband, Belsazar Kandulna(appellant No.2) and her brother-in-law, Khudia Pahan (appellant No.1) have assaulted the husband of the informant by means of lathi due to which, he has died, but said Fulkeria Kandulna has not been examined in this case nor the Investigating officer has cited her as a charge-sheet witness nor the learned Trial Court has examined her, as a Court witness under Section 311 Cr.P.C. Inquest report shows that dead body of deceased (Mikhail Dhanwar) was found near the house of Balu Pahan under a ‘Imli’ Tree though prosecution has failed to establish that house of Balu Pahan is situated near the house of Belsazar Kandulna (appellant No.2). Balu Pahan has not been examined in this case nor any person of VillageJanum Tola has been examined in this case. The place of occurrence has not been

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proved as the prosecution witnesses have not found any blood or blood stained soil near the dead body nor the prosecution has been able to prove the place of occurrence by showing any piece of evidence of violence at the place of occurrence. The weapon of assault has not been seized nor produced in the Court. On the basis of post-mortem report (Exhibit-2), it appears that the Medical Officer (P.W.5- Dr. Sudhir Kumar Shandilya) has admitted during cross-examination that there was internal hemorrhage in the head injury. He did not find blood over the outer level of haemotoma on the head. The head injury found is not possible if one strike against a hard and blunt object. Abrasion may be caused if one strike against a wall or any hard object. Under the aforesaid circumstances, this Court is of the opinion that injury No.(iv) Haematoma of about 1”x1/2” over right parietal region is not possible if one strikes against a hard and blunt object as opined by the Doctor (P.W.5) because the Doctor has not found blood over the outer level of haematoma on the head.

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Under the aforesaid circumstances, this Court is of the view that in absence of any eye-witness to the occurrence and in absence of examination of Fulkeria Kandulna coupled with the fact that injury found on the person of the deceased which was fatal in nature, cannot be attributed to lathi nor the said lathi, being a weapon of assault has been seized by the Police as such, the appellants deserve to be acquitted from the charge and conviction under Section 302/34 of the Indian Penal Code by extending the benefit of doubt, as admittedly the informant had land dispute with these appellants and false implication of these appellants cannot be ruled out.

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The prosecution has not been able to prove its case against the appellants beyond all reasonable doubt, as such, the impugned Judgment of conviction dated 03.08.1996 and order of sentence dated 07.08.1996, passed by the learned Additional Judicial Commissioner, Khunti, in S.T. No. 286 of 1995/ T.R. No.26 of 1995 is hereby set aside.

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14. Accordingly, the present criminal appeal is allowed.

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15. The appellants who are on bail, are discharged from the liabilities of their bails bonds.

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16. Before parting with this judgment, we appreciate the valuable assistance rendered by Mr. Yogesh Modi, learned amicus curiae in disposal of the present Criminal Appeal. The Member Secretary, Jharkhand High Court Legal Services Committee, Ranchi is directed to release admissible legal remuneration to the learned Amicus Curiae within four weeks from the date of production of a copy of

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the judgment along with an application.

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

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(Aparesh Kumar Singh, J.)

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(Kailash Prasad Deo, J.)

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Jharkhand High Court, Ranchi. Dated 17^th January, 2019. sandeep/Jay

Khudia Pahan And Anr. v. State of Bihar

Case brief

What is this about?

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Khudia Pahan And Anr. v. State of Bihar

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