- (1.) Cr. Appeal (DB) No. 83 of 2004: 1. Learned counsel appearing for both the sides submitted that this appellant (original accused no.1 of Sessions Trial No. 93 of 2003), namely, Koyo Paharia, has expired on 22nd January, 2013 and hence this appeal [Cr. Appeal (DB) No. 83 of 2004] may be disposed of, as abated.
(2.) In view of the aforesaid submission, this appeal is disposed of, as abated, because the death of the sole appellant, namely, Koyo Paharia, has taken place on 22nd January, 2013. Cr. Appeal (DB) No. 1809 of 2003: 1. This appeal has been preferred by the original accused no.2 of Sessions Trial No. 93 of 2003, namely, Sancha Paharia, against the judgment and order of conviction and sentence both dated 15th October, 2003, passed by learned 7th Additional Sessions Judge (F.T.C. No.4), Godda, in Sessions Case No. 93 of 2003, arising out of Boarijore P.S. Case No. 11 of 2001, whereby, the sole appellant, namely, Sancha @ Surja Paharia, has been convicted for the offence under Sections 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life for causing murder of one Budhawa Paharia. Further, a fine of Rs.2,000/- has also been imposed upon him and in default of payment of fine, the appellant has been sentenced to undergo rigorous imprisonment for six months. Facts of the case:-GEETIKA V/S STATE OF PUNJAB AND OTHERS, 2014 2 SCT 141 2. If the case of the prosecution is unfolded, the facts are as under: On 2.02.2001 at 1.30 P.M. the informant Surji Paharin (P.W-4) gave her fardbeyan to police that her husband Budhawa Paharia (deceased) was allotted one Indira Awas from Boarijore Block and for this some money was allotted to her husband by Block for making house. The informant further alleged that seven persons of her village were also allotted Indira Awas. When construction of Indira Awas was going on, informant's co-villagers, namely, Koyo Pahariya, Budhwa Pahariya, Sancha Pahariya and Samay Pahariya (accused persons) were in anger after seeing Indira Awas. For construction of Indira Awas, Koyo Paharia and other aforesaid persons were intending to act as an agent but the same was not given to them. Due to this anger, Koyo Pahariya, Budhwa Pahariya, Sancha Pahariya and Samay Pahariya came to the house of informant at night on 31.01.2001 (Wednesday) and took her husband with them and in the morning Suriya Paharia informed the informant that Budhawa Paharia was killed by the aforesaid accused persons after pressing his chest and neck and dead body of Budhawa is lying in the cot inside the house of Koyo Paharia and after committing murder they had fled away from the village. Hearing this, the informant with other persons of her Tola went to the house of Koyo Paharia and saw her husband lying dead on a cot and blood was coming out from his mouth and nose and serum was coming out from the mouth. Chest and neck was swollen. The informant further alleged that Koyo Pahariya, Budhwa Pahariya, Sancha Pahariya and Samay Pahariya had killed her husband by pressing his chest and neck. Summary of Prosecution Witnesses:- P.W-1 Budhni Paharin She is the Hearsay witness as per Para-4 of her deposition. P.W-2 Surya Pahariya He deposed in Para 1 of his deposition that he saw the accused persons taking Budhawa Pahariya on the date of occurrence. P.W-3 Kotu Somay Pahariya He deposed in Para -2 of his deposition that in his presence the accused persons take away Budhawa Pahariya on the date of occurrence. P.W-4 Surji Paharin She is the informant of this case and is wife of deceased Budhawa Pahariya. She deposed in Para 1 of her deposition that the accused persons had taken away her husband and killed him and at that time she was alone in her house. P.W-5 Laxman Prasad Declared Hostile witness. P.W-6 Dr. Sunil Kumar Jha He is the doctor who has conducted the Post-mortem of the dead body of Budhawa Pahariya and has proved the Post-mortem report i.e marked as Ext.1 Arguments of the appellant:-
(3.) It is vehemently submitted by the learned counsel for the appellant that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses and this aspect of the matter has not been properly appreciated by the learned trial court and hence, the impugned judgment and order of conviction and sentence, passed by the learned trial court court deserves to be quashed and set aside. It is further submitted by the learned counsel for the appellant that there is no eye witness of the incident and the case of the prosecution is based upon the circumstantial evidence. Neither the chain of circumstance has been completed nor the circumstances of even incomplete chain have been proved beyond reasonable doubts. The whole case of the prosecution is based upon the last seen together theory. PW 4, who is wife of deceased- Budhawa Paharia, is the informant in this case. As per the First Information Report, PW 4 was informed by PW 2 about the death of her husband, namely, Budhawa Paharia, and hence PW 4 is a hearsay witness. It is submitted by the learned counsel for the appellant that PW 1 is also claiming that she was present in the house of PW 4, when the accused persons had called the deceased and taken him with them whereas looking to the deposition of the informant, there are major omissions, contradictions and improvements about this aspect of the matter. PW 4 has stated in paragraph no. 2 of her deposition that she had informed PW 2 about the death of her husband whereas in the First Information Report, the facts are otherwise. Likewise, in paragraph no. 7 of her deposition, this PW 4, who is informant, has stated that accused-Koyo Paharia had informed her about the death of her husband-Budhawa Paharia, but, this vital aspect of the matter has also not been stated in the First Information Report. In paragraph no.1 of her deposition, this PW 4 has stated that her husband was called by the accused persons and by that time, there was nobody in the house whereas PW 1 has stated that she was present in the house of PW 4. All these aspect of the matter are highly relevant, because PW 4 is the wife of the deceased and she is a highly interested witness. PW 4 being close relative of the deceased, her examination-in-chief as well as cross-examination must be viewed by by this Court with all circumspections and with all scrutiny.;