Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.1051 of 2013 ====================================================== 1. KRISHNADEO MAHTO, SON OF LATE RAMUDGAR MAHTO. 2. SANJAY MAHTO @ SANJAY KUMAR MAHTO. 3. SANDEEP MAHTO @ SANDEEP KUMAR MAHTO. BOTH SONS OF KRISHNADEO MAHTO 4. ASHOK KUMAR MAHTO, SON OF LATE AYODHYA MAHTO. ALL ARE RESIDENTS OF VILLAGE AND P.O.-GARHASISAI, SUB-DIVISION-DALSINGSARAI, P.S.-VIDYAPATI NAGAR, DISTRICT-SAMASTIPUR. .... .... Petitioner/s Versus 1. THE STATE OF BIHAR. 2. RAJ KUMARI DEVI, WIFE OF RAM DAYAL MAHTO, RESIDENT OF VILLAGE AND P.O.-GARHASISAI, P.S.- SUB-DIVISION, DALSINGSARAI, VIDYAPATI NAGAR, DISTRICT-SAMASTIPUR. .... .... Opposite Parties. ====================================================== with Criminal Revision No.1019 of 2013 ====================================================== JAGDISH MAHTO, SON OF LATE AYODHYA MAHTO, RESIDENT OF VILLAGE-GARHSISAI, P.S.-VIDYAPATINAGAR, DISTRICT- SAMASTIPUR. Versus .... .... Petitioner/s 1.THE STATE OF BIHAR. 2.RAJY KUMARI DEVI, WIFE OF RAMDAYAL MAHTO, RESIDENT OF VILLAGE- GARHSISAI, P.S.-VIDYAPATINAGAR, DISTRICT-SAMASTIPUR. .... .... Opposite Parties. ====================================================== Appearance: (In CR. REV. No.1051 of 2013) For the Petitioner/s : Mr. Alok Kumar Sinha, Adv. For Opp. No.2 : Mr. R.K. Sinha No.2, Adv. Mr. Umesh Kumar Verma, Adv.
Legal Reasoning
For the State (In CR. REV. No.1019 of 2013) For the Petitioner/s : Mr. S.N. Prasad Sinha, Adv. : Mr. Rajendra Singh Shastriji, A.P.P. Mr. Jitendra Narain Sinha, Adv. Mr. K.N. Kumar, Adv. Mr. Rohit Kumar, Adv. : Mr. Rajendra Nath Jha, A.P.P. For the State ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. ORDER 4. 04-12-2013 1. Criminal Revision 1019 of 2013 has been filed by petitioner, Jagdish Mahto while Criminal Revision 1051 of 2013 2. has been filed by petitioners, Krishnadeo Mahto, Sanjay Mahto @ Sanjay Kumar Mahto, Sandeep Mahto @ Sandeep Kumar Mahto, Ashok Kumar Mahto against the judgment of confirmation dated 10.06.2013 passed by IVth Additional Sessions Judge, Samastipur in Cr. Appeal No.38 of 2012, Cr. Appeal No.39 of 2012 which were filed against the judgment of conviction and sentence dated 14.06.2012 passed by SDJM, Dalsingsarai, Samastipur in Complaint Case No.254 of 2000 holding all the petitioners guilty for the offence punishable under Section 323 of the IPC and directed each of them to undergo R.I. for six months, petitioners Jagdish Mahto, Ashok Kumar Mahto for an offence 354 of the IPC and each one was directed to undergo R.I. for one year with a further direction to run the sentences concurrently. 2. Heard learned counsel for the petitioners, learned counsel for the Opposite Party No.2 as well as learned Additional Public Prosecutor. 3. It has been submitted on behalf of petitioners that the finding arrived at by the learned trial court regarding guilt as well as sentence happens to be bad in law because of the fact that the major portion of the evidence adduced on behalf of prosecution complainant’s witnesses have been found unreliable, untrustworthy. It has further been submitted that petitioners were not at all known since before regarding proceeding of complainant (Opposite Party No.2) from her house to Vidyapati Nagar to 3. deposit Rs.3000/- since before, therefore having presence of petitioners at Dhamni Pokhar was out of imagination. It has further been submitted that out of four witnesses so examined on behalf of complainant PW-1 and PW-2 happens to be her sons and from their abnormal conduct it is difficult to accept their testimony though PW-1 subsequently did not turn up for cross- examination after charge. With regard to evidence of PW-3, the complainant herself. It is apparent that same is full of falsehood. With regard to PW-4, it has been submitted that he is the person who always come in rescue of the complainant as he stood as a witness in other cases also. 4. Then, thereafter, it has also been submitted that it is an admitted fact that both the parties are Pattidars and are residing in same house. It is also an admitted fact that both the parties are on litigating terms since before alleged occurrence and on account thereof, false implication of petitioners cannot be ruled out. Apart from this, it has also been submitted that petitioners should have been given benefit of Probation of Offenders Act in the aforesaid background. 5. At the other hand, the learned Additional Public Prosecutor as well as learned counsel for the Opposite Party No.2 submitted that the conviction under Section 354 indicates that it relates to moral turpitude and on account thereof petitioners rightly been disowned to avail privilege of Probation of Offenders 4. Act. It has also been submitted that enmity is a double edged sword and keeping the aforesaid theme in backdrop the evidences of the witnesses have properly been scrutinized by the successive courts below and found the evidence reliable with regard to Section 323 as well as 354 of the IPC. Therefore, the petitioners have been rightly convicted and sentenced. 6. The scope of revision against judgment of concurrence is found out of way but whenever the successive judgments suggest glaring defect or the successive courts have erred during appreciation of evidence causing prejudice to the convicts then in that circumstance, the revisional power is found available by way of corrective measure. 7. Falsus in uno falsus in omnibus is not the sound principle of law and on account thereof, the same has been discarded during course of appreciation of evidence. For that purpose, the court has been put under obligation to separate the grain from chaff. That means to say the unreliable part of the evidence of P.Ws. will not be a ground to discard the remaining part which is found properly proved. 8. Now coming to the present case. It is apparent that PW-9, Rajkumari by way of filing of complaint petition had alleged that on 21-07-2000 while she was going to Vidyapati Nagar to deposit Rs.3000/- in a bank and was near Dhamni Pokhar, was intercepted by the accused persons (petitioners) who 5. brutally assaulted with fist and slap and during course thereof Sanjay Mahto and Sandeep Mahto pointed out Chura whereupon Krishnadeo Mahto took away Rs.3000/-. She had further alleged that Jagdish Mahto and Ashok Kumar Mahto out raged her modesty by pulling Sari. 9. From evidence of PW-4, it is evident that he had disclosed a different story by disclosing that Krishnadeo Mahto said to complainant that you are going to launch a case, which neither PW-3 nor PW-2 had spoken. He had not disclosed that accused persons have had assaulted PW-3 Raj Kumari by means of fists and slap and in likewise manner he had not named Jagdish Mahto and Ashok Kumar Mahto responsible for out raging modesty of Raj Kumari by pulling Sari rather he had stated that there was push and pull in between Krishnadeo Mahto and complainant Raj Kumari for money and during course thereof the Sari unfastened. On account thereof, his evidence is not at all found to be consisting with the narration of the complaint petition as well as did not support the finding recorded by the successive courts. 10. PW-3 is the complainant herself she had corroborated the allegation during her examination-in-chief while in para-5 of her cross-examination she had stated that she had not spoken to anybody regarding going to Vidyapati Nagar to deposit the amount. Therefore, having acknowledge with the fact that 6. complainant was to go to Vidyapati Nagar for depositing the amount by the accused has become suspicious more so when her para-6 is taken into consideration wherein she has disclosed that when she reached near the Dhamani Pokhar, she had seen all the seven accused persons present since before. In the background of aforesaid event, presence of accused also became suspicious. PW- 2 happens to be the Guddu Kumar, son of complainant. Apart from narrating the event as well as admitting series of litigation amongst them since before he had stated in para-7 that he is not remembering the distance from where he had seen his mother. He had talked with mother regarding the occurrence in the way till Vidyapati Nagar. He had not gone to Vidyapati Nagar from his house rather from Dhamani Pokhar but he is unable to say at which hour he had reached at Vidyapati Nagar. 11. When the statement of the petitioners recorded under Section 313 of the Cr.P.C. has been gone through, it is apparent that same has been recorded in most casual manner . The questionnaire so formulated by court relating to each of the petitioner happens to be wrong and further speaks that in mechanical manner the same has been performed. The date of occurrence has been shown as 21.06.2000 while the occurrence happens to be 21.07.2000. No P.O. has been disclosed. With regard to petitioner Ashok Kumar Mahto, he was not at all confronted with the incriminating material attracting section 354 7. of the IPC. Furthermore, from the statement relating to Jagdish Mahto, it is evident that neither the date of occurrence nor the place of occurrence nay the presence of other accused in association of whom the aforesaid petitioner had also assaulted the complainant has been asked for. That means to say, the incriminating material whatever been brought up by the prosecution during conduction of trial have not been confronted and on account thereof, certainly the petitioners were deprived of to explain the same causing genuine prejudice. 12. On account of aforesaid conflicting version of the prosecution witnesses in consonance with the deformity visualizing during course of statement under Section 313 of the Cr.P.C. it looks difficult to concur with the finding of the successive courts below. Consequent thereupon same are set aside. Petition is allowed. Petitioners are under custody hence are directed to be released forthwith, if not wanted in any other case. PATNA HIGH COURT DATED, THE 4th day of Dec., 2013 PRAKASH NARAYAN/ A.F.R. (Aditya Kumar Trivedi, J.)