1 | P a g e Criminal Appeal (DB) No. 140 of 1998 (R) Against the judgment and order of conviction and sentence dated 31.03.1998 (sentence passed on 04.04.1998) passed by Shri Vishwanath Prasad Singh, learned Additional Judicial Commissioner, Lohardaga in Sessions Trial No. 315 of 1994 Milad Pawaria, son of Hakim Pawaria, resident of Pandra, P.S. Kuru, District Lohardaga ... Appellant Versus The State of Bihar (now Jharkhand) … Respondent ---- PRESENT HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE ARUN KUMAR RAI For the Appellant : Mr. Rakesh Kumar, Advocate For the Respondent : Mr. Satish Prasad, A.P.P. CAV on 28.11.2024 Delivered on 14.01.2025 ---- Rongon Mukhopadhyay, J. : 1. Heard Mr. Rakesh Kumar, learned counsel for the appellant and Mr. Satish Prasad, learned A.P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 31.03.1998 (sentence passed on 04.04.1998) passed by Shri Vishwanath Prasad Singh, learned Additional Judicial Commissioner, Lohardaga in Sessions Trial No. 315 of 1994, whereby and whereunder, the appellant has been convicted for the offence punishable u/s 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. 3. The fardbeyan of Daulat Pawaria was recorded on 07.02.1994 in which it has been stated that the son of the informant Shakir Pawaria along with the villagers Rozamat Pawaria, Noor Mohammad Pawaria and Bakshu Pawaria had gone to the jungle to collect fire wood and the informant came to know that his son has been murdered. At this information, the informant along with Jagua Pawaria had gone to the place of occurrence and came to know from the persons who were accompanying his son that Milad Pawaria (Appellant) had stabbed the son of the informant who died. It has been stated that the daughter of the accused who was married to Sharief Pawaria and the accused 2 | P a g e was keeping his daughter with him for the last three years and a court case was also pending. It has been alleged that on the instigation of Kasim Pawaria and Jainul Ansari, the accused had committed the murder of the son of the informant. Based on the aforesaid allegations, Kuru P.S. Case No. 09/1994 was instituted against Milad Pawaria, Jainul Pawaria and Kasim Pawaria u/s 302/109/120B of the Indian Penal Code. On conclusion of investigation charge-sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 315 of 1994. Charge was framed u/s 302 of the I.P.C. and 120B I.P.C. against Milad and against the rest two accused u/s 302/34 of the I.P.C. and Section 120B I.P.C. which were read over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried. Vide the impugned judgment dated 03.02.1998, Kasim Pawaria and Jainul Pawaria have been acquitted by the learned trial Court. 4. The prosecution has examined as many as eleven (11) witnesses in support of its case. P.W. 1 Dr. Sunil Minz was posted as a Civil Assistant Surgeon in Sadar Hospital, Lohardaga and on 07.02.1994 he had conducted autopsy on the dead body of Shakir Pawaria and had found the following:- Rigor mortis was present all over the four limbs. Mouth was partially open. Mud was present on upper lip, lower lip, on left side of face, forehead and lower limbs. Cloths worn was victim contained blood stains and hole were related to the injuries:- i) Piercing wound about 1" x 2" x thoracic cavity deep on the left side of the chest between Sth & 6th ribs about 3" lateral to the steam with blood. Blood had came out of the wound and it was of dark colour. Margins were incised. On internal examination the following findings were recorded. 3 | P a g e Muscle over the thorasic cavity on left side was contused. Hole was present between 5th and 6th ribs in relation to the internal injury. Pericardium contained hole. Left chamber of heart contained hole and above 1/2" x 1/4". Thorasic cavity was full of dark coloured blood. Right and left chambers were empty. Lungs was pale. Livers, spleen and kidneys were all pale. Stomach contained rice and dal. Bladder was empty. Cravial cavity was pale and intact. The injury was ante mortem in nature caused by hard and pointed weapon such as dagger. Time elapsed since death was 8-10 hrs. since the time of P.M. Examination. The cause of death was opined to be due to shock and haemorrhage as result of the above noted injury. The postmortem report has been proved and marked as Ext. 1. P.W. 2 Md. Israin has stated that about a year back at 10 a.m., he saw a crowd near East of Pandra Idgah and when he went there, he found the dead body of Shakir. He had put his signature on the inquest report. The inquest report has been proved and marked as Ext. 2. P.W.3 Lal Gopal Nath Sahdeo has stated that on seeing several persons running he had gone towards the Idgah and had found the body of the son of Daulat Pawaria lying. He has proved his signature in the inquest report which has been marked as Ext. 2/1. P.W. 4 Bakshu Pawaria has stated that about a year back at 8 a.m., he was going to the jungle and he was accompanied by Rozamat Pawaria, Shakir Pawaria and Noor Mohammad. All were going on bicycles; he and Rozamat ahead of the rest two by about 100 yards. Milad Pawaria was coming from the West. All of a sudden Shakir gave out a cry of alarm and he saw Shakir fleeing away. When he turned back towards Shakir, he found Shakir lying on the ground and his wearing apparels had blood in them. Several persons had assembled. Shakir had died by then. In cross examination he has deposed that he was going towards the West while Milad was coming from the West and had crossed him. There are four houses at the place of occurrence and the inmates were present in the said houses. He had not seen anyone coming out from the house when Shakir 4 | P a g e raised a cry of alarm. He has deposed that the police had not recorded his statement. P.W. 5 Noor Mohammad has stated that he was going to the jungle and Bakshu, Rozamat and Shakir were with him. Shakir was going with them. When he reached about 10 Degs from the graveyard, Milad Pawariya had come. When Shakir shouted, he saw Milad assaulting Shakir with a knife. When he raised a cry of alarm several persons had assembled. Shakir had fallen on the ground while Milad had fled away. Due to fear, he did not disclose anything. Later on when the parents of Shakir came, he had disclosed about the incident to them. In cross examination he has deposed that he knows Milad from childhood. Shakir had run for 100 Degs before falling down. He out of fear had distanced himself and after some time left for his house. He had once again come to where Shakir was lying and 4-5 persons were present at the said place. He had disclosed about the incident to his mother. He had not gone to any other house. His statement was recorded in the Police Station. P.W. 6 Rozain Pawariya has stated that the occurrence is of 13-14 months back on a Monday in the month of February and he was going to the jungle to collect fire wood along with Bakshu Pawariya, Shakir Pawariya and Noor Mohammad. All were going on bicycle. He was in the front followed by Bakshu thereafter Shakir and Noor Mohammad was at the last. When he had reached the house of Khurshid, Shakir and Noor Mohammad had reached the house of Bilua, they had seen Milad coming from the opposite direction. When he and the others had gone ahead, he heard the cry of alarm of Shakir who after a few paces had fallen down and when he went near Shakir, he found him dead. In cross examination he has deposed that they were 500 meters from the village, when the incident had taken place. He had informed about the incident to Siraj Pawariya and Alauddin Pawariya as well as the others. P.W. 7 Upendra Baitha has proved his signature in a document which has been marked as Ext. 2/3. 5 | P a g e In cross examination he has deposed that he does not have any knowledge about the case. P.W. 8 Arbind Azad has stated he was posted as a Judicial Magistrate at Lohardaga and on 09.02.1994 on the orders of the Chief Judicial Magistrate, he had recorded the 164 Cr.P.C. statements of Bakshu Pawariya, Rozamat Pawariya and Noor Mohammad. He has proved the 164 Cr.P.C. statements which have been marked as Exts. 3, 3/1 and 3/2. P.W. 9 Khurshid Alam has proved his signature which has been marked as Ext. 2/3 and the signature of Gopal Nath Shahdeo on the seizure list of blood stained earth which has been marked as Ext. 2/4. P.W. 10 Nageshwar Sahu is also a formal witness, who has identified his signature on the seizure list of knife which has been marked as Ext. 2/5. P.W. 11 Daulat Pawariya is the informant and the father of the deceased who has stated that his son along with Rozamat, Bakshu and Noor Mohammad had gone to the forest to collect fire wood. He later on came to know that his son has been murdered at which he went to the place of occurrence and saw the dead body of his son. Rozamat and Bakshu had disclosed that Milad was hiding and he had given a knife blow on the chest of his son. The police had come and recorded his fardbeyan, which has been signed by him and he has proved the signature which has been marked as Ext. 2/6. The reason for the occurrence is the case between his son and the daughter of Milad who was his daughter-in-law. Milad did not permit his daughter to come to her matrimonial house. About 8 days prior to the occurrence, Kalim had confided in him that Milad will commit his murder and the murder of his family members. He had proved his signature in the seizure list of knife which has been marked as Ext. 2/7. In cross examination he has deposed that Sharief had solemnized marriage. There was no divorce between Sharief and the daughter of Milad. He had not made any complaint to the Anjuman regarding the dispute between them. Kalim had disclosed before several persons in the market about the threat perception from Milad. 6 | P a g e P.W. 12 Jairam Sharma was posted at Kuru P.S. and on 07.02.1994 Choukidar Azimuddin had given an information that a person has been murdered near Pandra Idgah. On the order of the Officer-in-Charge of Kuru P.S., he had gone to the place of occurrence and found a dead body which was of Shakir Pawariya as disclosed by Daulat Pawariya. He had recorded the fardbeyan of Daulat Pawariya which has been marked as Ext. 3. He has proved the carbon copy of the inquest report which has been marked as Ext. 4. He had inspected the place of occurrence which is in a meandering road between the houses of Hakim Pawariya and Khurshid Mian. Blood was found splattered over the said place. He has proved the seizure list of blood stained earth which has been marked as Ext. 5. He has also proved the formal F.I.R. which has been marked as Ext.-6. On 09.02.1994, he had got recorded the 164 Cr.P.C. statement of Rozamat Pawariya, Noor Mohammad Pawariya and Bakshu Pawariya in Court. He had recorded the statements of the witnesses on the very first day. He has stated that on 10.02.1994, he had arrested Milad and on his confession, the knife used in the murder was recovered from the drain situated in his courtyard. He has proved the seizure list of seized knife, which has been marked as Ext. 7. On completion of investigation, he had submitted charge sheet. In cross examination he has deposed that on the disclosure of Choukidar Azimuddin, he had made a Station Diary Entry. He had not recorded the statement of Azimuddin, nor he has been cited as a witness. He had not sent the seized knife to the Forensic Science Laboratory. He has deposed that there was a proceeding u/s 107 Cr.P.C. between the informant and the family of the accused. 5. The statement of the accused/ appellant was recorded under Section 313 Cr.P.C. in which he has denied his complicity in the murder. 6. The defence has examined two witnesses in support of its case. D.W. 1 Md. Kalim has stated that with respect to the marriage of the son of Daulat Pawariya and the daughter of Milad Pawariya, a Panchyati was held at Pandra Village. 7 | P a g e D.W. 2 Sanjay Kumar has proved Kuru P.S. Sanha Nos. 142 and 146 dated 07.02.2014 which have been marked as Ext. A and Ext. A/1. 7. It has been submitted by Mr. Rakesh Kumar, learned counsel for the appellant that there are major contradictions in the evidence of PW-4, PW-5 and PW-6 who claimed themselves to be the eye witnesses. It has been submitted that the information given by the Choukidar, namely, Azimuddin should have been treated as a First Information Report. Mr. Kumar has also submitted that the knife recovered on the purported confession of the appellant was never sent to the F.S.L. for forensic examination. 8. Mr. Satish Prasad, learned APP has submitted that the evidence of the eye witnesses clearly indicate about the appellant committing the murder of Shakir Pawariya which has been corroborated by the postmortem report. 9. We have heard the submissions of the learned counsel for the respective sides and have also perused the trial court records. 10. PW-4, PW-5 and PW-6 are the witnesses who had accompanied Shakir Pawariya and all were going to the jungle to collect fire wood. PW-4 and PW- 5 have stated about the appellant coming when they were going towards the jungle. It is their consistent evidence that the deceased was bringing up the rear. There was a cry of alarm and while PW-4 has stated about seeing Shakir fleeing away and falling down PW-4 has stated about seeing the assault committed upon Shakir Pawariya with a knife by the appellant. PW-5 was with the deceased while the other two eye witnesses were just ahead of the deceased. Similarly PW-6 had seen the appellant coming from the opposite direction and all of a sudden the cry of alarm of Shakir attracted his attention and he had seen Shakir falling down on the ground and subsequently breathing his last. Barring a few minor contradictions and inconsistencies, the evidence of PW-4, PW-5 and PW-6 cannot be doubted with respect to the presence of the appellant and the death of Shakir Pawariya. Admittedly, there was no other person in the locality, except PW-4, PW-5, PW-6, the deceased Shakir Pawariya and the appellant. It also appears that the knife used in the murder was recovered from the drain situated in the courtyard of the house of the appellant at his instance. Moreover, the allegation of assault with a 8 | P a g e knife upon the deceased has been corroborated by the postmortem report as a piercing wound was detected on the left side of the chest. There is no allegation of assault with the knife multiple times which further enhances the case of the prosecution. 11. In view of the direct nature of evidence against the appellant of committing the murder of Shakir Pawariya which has rightly been appreciated by the learned trial court, we are not inclined to entertain this appeal, which consequently stands dismissed. Pending I.As., if any stand closed. 12. Since the appellant is on bail, he is directed to surrender immediately and forthwith to serve out the rest part of his sentence. (RONGON MUKHOPADHYAY,J.) (ARUN KUMAR RAI, J.) Jharkhand High Court, Ranchi Dated the 14th January, 2025 MK/N.A.F.R.