Paulus Kharia And Ors vs State Of Jharkhand

Shree Chandrashekhar, J

Mr. Azeemuddin, the learned A.P.P states that during pendency of the criminal appeal, appellant no.2, namely, Tarsius Kharia has passed away.

Affidavit dated 01.07.2019 has been filed by Manoj Kumar Dubey, presently posted as A.S.I. of Simdega Police Station on death of the appellant no.2, namely, Tarsius Kharia.

Accordingly, this criminal appeal qua the appellant no.2 has abated.

Seventeen persons were named as accused in Simdega P.S.Case No.134 of 1996 which was registered under sections 147, 148, 149, 302 I.P.C on the basis of the fardbeyan of Benedik Bilung recorded on 24.11.1996. After the investigation, they were sent up for trial on the charge under sections 147, 148 and 302/149 I.P.C.

During the trial, the prosecution has examined 6 witnesses; the informant is P.W.6. His mother and wife have also been examined as witnesses during the trial. Dr. C.N. Jha, P.W.4 has proved the post-mortem examination report.

The learned Judge has held that except the appellants, namely, Paulus Kharia and Tarsius Kharia other accused persons were not named by any of the eye-witnesses and, therefore, their complicity in the occurrence was doubtful. Accordingly, 15 accused persons who were sent up for trial have been acquitted by the learned Judge of the charges framed against them.

The prosecution has projected Tresa Bilung-P.W.3, Rebika Bilung-P.W.5 and the informant-P.W.6 as eye-witnesses.

The prosecution's case is that in the afternoon of 24.11.1996 when the informant alongwith his mother, father and wife were harvesting paddy crops from their "semer khet", the appellants came there and protested their harvesting the crop. When father of the informant, namely, Juel Bilung, the deceased, raised objection, both the appellants assaulted him with axe. Mother of the informant, namely, Tresa Bilung has stated that alongwith the appellants, namely, Paulus Kharia and Tarsius Kharia 10 to 15 other persons came there and they assaulted her husband. She has stated that Paulus Kharia has assaulted her husband with the blunt portion of axe and Tarsius Kharia gave him an axe blow with sharp-edge. Another eye-witness, namely, Rebika Bilung-P.W.5 has stated that the appellant, namely, Paulus Kharia gave one axe blow on the back of the neck of her father-in-law. The informant has also made contradictory statements in the court insofar as assault by the appellants upon his father, namely, Juel Bilung is concerned. P.W.1 has been declared hostile.

The learned Judge has recorded a finding that the number of injuries attributed to the appellants by the prosecution witnesses is not consistent. From the evidence of the prosecution witnesses he has found that according to P.W.3 both the appellants have assaulted Juel Bilung whereas P.W.5 and P.W.6 have spoken of only one injury to the deceased.

The Investigating Officer and the doctor who has conducted the post-mortem examination over the dead-body of Juel Bilung have not been examined during the trial.

In the aforesaid state of evidence, particularly evidence of P.W.5, who has stated in the court that the appellant, namely, Paulus Kharia has inflicted one blow on the back of the neck of Juel Bilung, we are of the opinion that conviction of the appellant, namely, Paulus Kharia under section 302/149 I.P.C is unsustainable and, accordingly, it is set-aside.

The appellant, namely, Paulus Kharia is held guilty for the offence punishable under section 325 I.P.C and he is sentenced to undergo R.I for 5 years.

Referring to the report of custody of Paulus Kharia, Mr. Azeemuddin, the learned A.P.P states that the appellant, namely, Paulus Kharia has undergone more than 6 years of sentence.

Accordingly, the appellant, namely, Paulus Kharia who is on bail is discharged of liability of the bail-bonds furnished by him.

Criminal Appeal (D.B.) No. 348 of 2001 is partly allowed.

The Court appreciates the efforts of Mr. Rahul Dev, the learned Amicus and Mr. Azeemuddin, the learned A.P.P.

The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). He shall be paid Rs.5500/- for each effective date of hearing, but subject to the cap as provided under the Notification dated 23.11.2017.

Let lower court records be transmitted to the court concerned forthwith.