The High Court
Case Details
1 Cr. Appeal (S.J.) No. 376 of 2011 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.J.) No. 376 of 2011 (Against the judgment of conviction and order of sentenced dated 29.03.2011 passed by the learned Additional Distt. & Sessions Judge, F.T.C. V, Godda in S.C. Case No. 185 of 2004/ T.R. Case No. 509 of 2010, in connection with Godda(T) P.S. Case no. 171/2004 corresponding to G.R. Case no. 572/2004, Godda, at Jharkhand.) ------ Umesh Sah @ Umesh Pd. Sah … ... Appellant Versus The State of Jharkhand … … Respondent CORAM: HON’BLE MR. JUSTICE NAVNEET KUMAR ----- -------- For the Appellant For the State : Mr. Kumar Saurav, Amicus Curiae : Mrs. Ruby Pandey, A.P.P. -------- JUDGMENT-Dated: 29th March, 2023 1. At the very outset learned A.P.P. appearing on behalf of the State has furnished a report received from the officer in-charge of Godda Mufassil Thana, Godda addressed to the learned A.P.P. Mrs. Ruby Pandey informing that the notice has been properly served upon the appellant Umesh Sah @ Umesh Pd. Sah, S/o Prahlad Sah, resident of village-China Dhab, P.O. & P.S. Godda(Mufassil) District Godda and a Aadhar Card has also been annexed which is duly signed by the appellant- Umesh Sah @ Umesh Pd. Sah but despite the proper service of notice the appellant did not choose to appear and
Legal Reasoning
therefore, Mr. Kumar Saurav, who had been appointed as Amicus Curiae vide order dated 11.11.2022 is being heard on behalf of the appellant. 2. The report sent by the Officer In-Charge of the Godda Mufassil Thana, Godda dated 21.11.2022 addressed to the learned A.P.P. Mrs. Ruby Pandey, is kept on record. 3. Heard learned Amicus Curiae Mr. Kumar Saurav appearing on behalf of the appellant and learned A.P.P. Mrs. Ruby Pandey appearing on behalf of
Decision
the State and accordingly this appeal is being disposed of. 4. This appeal is directed against the judgement of conviction and order of sentence dated 29.03.2011 passed by the Court of learned Additional District & Sessions Judge, F.T.C.-V, Godda in connection with S.C. Case No. 185 of 2004, T.R. Case No. 509 of 2010, whereby and where under the appellant has been held guilty for the offence punishable under Section 354 2 Cr. Appeal (S.J.) No. 376 of 2011 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years. 5. The prosecution story arose in the wake of the written report addressed to the Officer In-Charge of Godda Mufassil Thana, Godda by the informant-P.W.8 on 10.06.2004. The allegation stated by the informant in the said written report was that on 10.06.2004 at about 8:00 A.M. when she came back to her house after taking water from the well at village- Chinadhab, P.S. Godda (M), Distt. Godda, all of a sudden the accused Umesh Sah came into her house and caught hold her with ill-motive and intention to commit rape on her but in the meantime, the minor son of the informant came into the house and when the informant and her son raised alarm Bishu Rai came there and thereafter the accused pushed the informant and her son and fled away. On the basis of the aforesaid written report of the informant Godda (T) P.S. Case No. 171/04 for the offence under Sections 448 and 354 of the Indian Penal Code was registered against the accused and after completion of the investigation the police submitted charge sheet against the accused for the offence punishable under Section 376 of the Indian Penal Code. On 29.08.2005 charge under Sections 376 & 511 of the Indian Penal Code was framed to which the accused pleaded not guilty and claimed to be tried. The learned Trial Court after conducting the full-fledged trial passed the impugned judgement of conviction and order of sentence which is under challenge in this appeal. Arguments advanced on behalf of appellant- 6. Learned Amicus Curiae appearing on behalf of the appellant has submitted that both the parties had been admittedly in the litigating terms and all the witnesses examined on behalf of the prosecution are inimical and therefore, their versions are not reliable. It is submitted that the learned court below failed to take into consideration that P.W.-1 Bishu Rai is not the eye witness and P.W.1 has stated in his cross examination that a case is running between the parties since 1984 regarding land dispute and he has further stated that several villagers had gathered over there but he cannot say the name of any, so, from the evidence it is quite clear that both the parties were on inimical terms. It is submitted by the learned counsel that P.W.-3 Suresh Kumar Pal is also not the eye witness of the alleged occurrence and in his cross-examination, he has admitted this fact that husband of the informant is the cousin brother of this witness and further he resides ½ K.M. away from 3 Cr. Appeal (S.J.) No. 376 of 2011 the house of the informant, so therefore it is highly unbelievable that he heard hulla from ½ K.M. and upon which he came there and saw the accused was fleeing away from there. It is also submitted that the leaned Trial Court has committed gross error in appreciating the evidences adduced on behalf of the prosecution and also did not consider the evidences which have been laid on behalf of the defence and passed the impugned judgement of conviction and order of sentence which is bad in law and fit to be set aside. Arguments advanced on behalf of State- 7. On the other hand learned A.P.P. appearing on behalf of the State has opposed the contentions raised on behalf of the appellant and submitted that the learned Trial Court has rightly relied upon the versions of the witnesses examined on behalf of the prosecution and particularly, the victim P.W.-8 and the doctor P.W.-10 and passed the impugned judgement of conviction and order of sentence and there is no legal evidence to interfere into the impugned judgement of conviction and order of sentence and therefore, this appeal is fit to be dismissed being devoid of merit. APPRAISAL & FINDINGS 8. Having heard the parties, perused the records of this case including the Lower Court Records. 9. It is an admitted case of the prosecution that both the parties had been in litigating terms and there was a landed property dispute between both the parties and therefore, all the witnesses examined on behalf of the prosecution are inimical and therefore, a larger degree of caution and care is needed to appreciate the evidences adduced on behalf of the prosecution and the defence in view of the settled law that enmity is a double edged weapon and possibility of false implication and also committing the offence are imminent 10. In order to substantiate its case, the prosecution has been able to examine 11 witnesses which are as under: I. P.W. 1 Bishu Rai is the villager and he stated that he came to know about the occurrence by the informant. He is not an eye witness of the occurrence but he saw while the accused was fleeing from the house of the prosecutrix. II. P.W.2 Hari Shankar Sah has also claimed to come at the place of occurrence on hearing alarm of the informant. III. P.W. 3 Suresh Kumar Pal is the cousin of the informant’s 4 Cr. Appeal (S.J.) No. 376 of 2011 husband. IV. P.W. 4 Ganesh Mandal has not supported the prosecution case and he has stated that at the time of occurrence the informant and the wife of the accused were quarrelling regarding the land and he pacified both parties and went away from the place of occurrence. V. P.W. 5 Rakesh Rai is the son of the informant and he has claimed to be an eye witness of the occurrence. VI. P.W. 6 Bishnu Sah has been tendered by the prosecution and he has stated nothing about the prosecution case. VII. P.W. 7 Onkar Sah has turned hostile and he has not supported the prosecution case. VIII. P.W. 8 Rekha Devi is the informant herself. IX. P.W. 9 Vinay Kumar Pal is another relative of the informant and he has claimed to be an eye witness of the occurrence. X. P.W. 10 Dr. Nirmala Besra has examined the informant and she has proved the medical certificate issued by her. XI. PW. 11 Ram Swaroop Baitha is the I.O. of the case. Apart from the oral evidences the following documentary evidences have also been proved on behalf of the prosecution: Exhibit-1, i.e. injury report of Rekha Devi, Exhibit-2, i.e. Endorsement on the fardbeyan of the informant and Exhibit-3 i.e. signature of officer-in-charge on formal F.I.R. On the other hand the defence has also examined one witness i.e. D.W.- 1 Suresh Pandit who has proved the police report of Godda (M) P.S. 79 of 2004, which has been marked as Exhibit-D and besides this the defence has filed several documents in support of their defence which are as under: Exhibit-A- certified copy of order sheet dated 16.10.1998 passed in Settlement Case no. 22/98, Exhibit-B- certified copy of order dated 02.06.2008 passed in R.E. case no. 60/2007-08, Exhibit-C-certified copy of order dated 16.10.1998 passed by Settlement Officer in case no 23/1998, Exhibit-E- certified copy of the Amin report which was submitted in Case no.717 dated 26.10.2006 by Badal Mandal Exhibit- E/1 certified copy of map dated 07.01.2008 prepared by Badal Mandal Ameen and Exhibit-E/2- certified copy of report of measurement addressed to Sub-divisional Officer, Godda. 5 Cr. Appeal (S.J.) No. 376 of 2011 11. It is found from the testimonies of P.W.-1, Bishu Rai, P.W.2, Hari Shankar Sah and P.W.-3, Suresh Kumar Pal, that they are hearsay witnesses and what they have stated in their respective depositions came to be known from the version of the informant i.e. P.W.-8. All these witnesses i.e. P.W.-1, P.W.-2 and P.W.-3 have stated that the victim P.W.-8 was raped by the appellant but the learned Trial Court did not find the charge of commission of the offence of rape by the appellant true as the evidences adduced on behalf of the prosecution are not substantiated and the appellant has been acquitted from the charges of 376/511 of the IPC and therefore, the credibility of the version of P.W.-1, P.W.-2 and P.W.-3 has shaken the very genesis of the case of the prosecution in view of the fact that it is an admitted case that there had been a landed property dispute between both the parties as stated by the victim herself in para-4. The victim at para-8 has also stated that at the time of occurrence her son Rakesh Pal who was aged about eight years came into the house and the said son of the informant had been examined as P.W.-5 i.e. Rakesh Pal who stated that the appellant had committed rape with the victim P.W.-8 but that has not been proved by the prosecution and thus this witness is also not trustworthy witness whose version has not been corroborated and substantiated during the course of trial as founded by the learned Court below. Even admittedly the case of the prosecution as emanating categorically from the versions of the victim in her statement as embodied in the FIR itself was that it was not a case of 376/511 of the IPC. 12. P.W.-8, the victim in para-4 & 5 categorically stated that there had been litigations between both the parties and prosecution under Section 107 Cr.P.C. was also initiated between both the parties. The defence has also drawn the attention of the victim P.W.-8 vide para-11 where she had denied the suggestion that her husband Mantu Pal did not want to adduce evidence in this case because this case was false and fabricated. And in fact her husband Mantu Pal has not been examined in this case and therefore, the defence taken on behalf of the appellant is substantiated inasmuch as the statements of the victim is also not reliable and trustworthy in view of major inconsistencies and contradictions found in earlier statements as stated in the FIR and that of in her depositions before the court as rightly appreciated by the learned court below but erred in holding the guilt for the offence punishable under section 354 of the IPC. And therefore, the testimony of the victim P.W.-8 becomes doubtful. 6 Cr. Appeal (S.J.) No. 376 of 2011 13. P.W.4 Ganesh Mandal & P.W.-7 Onkar Sah have been declared hostile. As a matter of fact when P.W.-4 Ganesh Mandal stated in his examination in chief that there was a dispute between the wife of Mantu Pal (Victim) and the wife of the appellant and her mother with respect to the boundary wall of landed property, then this witness intervened and got them pacified and when this witness stated in his examination in chief the aforesaid version that a quarrel was going on between both the parties including their family members (victim, wife of the appellant and her mother) and then he intervened and pacified the quarrel, and then he had been declared hostile and therefore the declaration of hostile by the learned Trial Court below is non application of judicial mind inasmuch as when this witness started speaking the truth he had been declared hostile although he had been called by the prosecution to be cross-examined on behalf of the prosecution. Similarly P.W.-7 also when started speaking the truth about the quarrel between both the parties then he had also been declared hostile. 14. Further P.W.-6 Bishnu Sah has been tendered for the reasons best known to the prosecution. P.W.-9 is Vinay Kumar Pal, who is the interested witness and he has also admitted the fact that there had been dispute between both the parties and in para-9 he has totally falsified the case of the prosecution that the appellant had tried to outrage the modesty of victim P.W.-8, where he simply stated that he had stated to the police that there had been a quarrel between both the parties and thus the entire case of the prosecution has been falsified by P.W.-9. This is a fundamental principle of the criminal jurisprudence that it is a discretion of the court to permit a witness to be cross-examined by a party calling him. The said judicial discretion must be exercised judiciously and properly in the interest of justice. The Court will not normally allow a party to cross-examine his own witness and declare the same hostile unless the court is satisfied that the statement of the witness indicates an element of hostility or that he has resiled from a material statement which he made before an earlier authority. Merely because in a trial court a witness in an unguarded moment speaks the truth, which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine his own witnesses cannot be allowed. The contingency of permitting the cross-examination of the witness by the party 7 Cr. Appeal (S.J.) No. 376 of 2011 calling him is an extra ordinary phenomenon and permission should be given only in special cases. In the present case, the trial court wrongly exercised its discretion in declaring P.W.4 Ganesh Mandal & P.W.-7 Onkar Sah hostile permitting the prosecution to cross examine them when both of them seemingly started speaking truth in the light of the defence taken by the appellant and the evidences adduced on his behalf. It is a well settled principle of law that merely because a witness is declared hostile, it does not make him unreliable so as to exclude his evidence from consideration altogether. The prosecution cannot derive any strength or support from the weakness of the defence case. The Court below has erred in basing conviction of the appellants on the testimony of mainly PW – 8 (victim) ignoring the important admissions made in favour of the accused by other material prosecution witnesses, some of whom were declared hostile as discussed in the foregoing paragraphs. In the present case this Court finds that the defence version was rendered probable by the testimony of the witnesses as well as the documents. The defence has also examined one witness i.e. D.W.-1 in order to show that both the parties were in litigating terms and a number of cases were pending between both the parties. Some documentary evidences have also been adduced on behalf of the defence vide Exhibit-A, B, C, D, E, E/1 and E/2 in order to show that both the parties were on litigating terms and both were inimical to each other which are further substantiated by the depositions of P.W.10 and P.W.11. 15. P.W.-10 Dr. Nirmla Besra is the doctor and she had stated that she had found the following injuries: i. Superficial abrasion about 4”x1/4”x skin deep above the back of forearm; ii. Superficial abrasion about 4”x skin deep above the left leg 3 c.m. above ankle joint. According to the Doctor both injuries were in process of healing and superficial crush was present. Injury was simple in nature caused by hard and blunt substance. Thus P.W.-10 Dr. Nirmla Besra has also falsified the case of the prosecution that there was no definite opinion regarding the sexual intercourse and the learned Trial Court has rightly acquitted the appellant for 8 Cr. Appeal (S.J.) No. 376 of 2011 the offence punishable under Section 376/511 of the Indian Penal Code under which the charge was framed. 16. P.W.-11 Ram Swaroop Baitha is the I.O. who has admitted this fact in para-13 of the cross-examination that there had been a landed property dispute between both the parties and a detailed report to that effect has been mentioned at para-39 & 41 of the case diary. He has proved the endorsement made by the officer-in-charge regarding the institution of the case on the written report of the informant and same has been marked as Ex.2. He has also proved formal F.I.R. of the case which has been marked as Ext.3. He has also proved two requisition issued by him for the injury report of the victim lady issued by him on 10.06.2004 and again on 10.06.2004 and same has been marked as Ext. A and A/1 for defence purpose. 17. In view of the aforesaid discussions of the evidences adduced on behalf of the parties, it is well founded that it is an admitted case of the prosecution that both the parties are neighbours and they have a common courtyard. It is also an admitted case of the prosecution that there was a landed property dispute between both the parties and number of cases were pending between both the parties, which is evident from the documentary evidences adduced on behalf of the defence vide Exhibit-A to Exhibit-E series. 18. The husband of the victim has not been examined in this case and the attention of the victim has also been drawn to that effect in the cross- examination by the defence suggesting that since the false case was instituted and therefore, her husband did not want to adduce the evidence in this case and in fact the husband of the victim, Mantu Pal has not been examined. Even the I.O. in this case has admitted this fact that both the parties had been in litigating terms and a detailed report to that effect has been set out in the case diary. 19. The learned Court below did not appreciate the evidences in a balanced manner adduced on behalf of both the parties and did not take into consideration the evidences recorded by both the parties during the course of trial. 20. The versions of all the prosecution witnesses and even the version of the victim with respect to the commission of the offence of attempt to rape has not been substantiated and the appellant has been acquitted by the learned Court below during the course of trial and therefore in view of the evidences 9 Cr. Appeal (S.J.) No. 376 of 2011 as discussed in the forgoing paragraphs it is found that the benefit of doubt goes to the appellant even for his involvement in the commission of the offence of outraging the modesty of the victim and accordingly the impugned judgement of conviction and order of sentence is found to be bad in law due to the lack of convincing and cogent evidence. 21. In the result the impugned judgement of conviction and order of sentence dated 29.03.2011 passed against the appellant by the Court of learned Additional District & Sessions Judge, F.T.C.-V, Godda in connection with S.C. Case No. 185 of 2004, T.R. Case No. 509 of 2010, in connection with Godda (T) P.S. Case no. 171/2004 corresponding to G.R. Case no. 572/2004, is hereby set aside. 22. In view of the aforesaid discussion, this appeal is, allowed. 23. The appellant is acquitted and he is discharged from the liability of bail bonds. Let the Lower Court Records be sent to the Court concerned. 24. Let a copy of this judgement be transmitted to the Member Secretary, JHALSA, Ranchi in order to make payment of the professional fees to the learned Amicus Curiae, Mr. Kumar Saurav, Legal Aid Defence Counsel, in the light of the order dated 11.11.2022 passed by this Court. Jharkhand High Court, Ranchi, Dated the 18.01.2023/NAFR J.Minj (Navneet Kumar, J.)