Bonj Balmuchu v. The State of Jharkhand
Case Details
Cr. Appeal (S.J.) No. 34 of 2023 (Against the judgment of conviction dated 16.11.2022 and order of sentence dated 21.11.2022 passed by learned Addl. Sessions Judge-I, West Singhbhum at Chaibasa in Sessions Trial No. 204 of 2019 arising out of Tonto P.S. Case No.16 of 2015) ----- Baidnath Balmuchu @ Bonj Balmuchu Versus The State of Jharkhand … …. Appellant … …. Respondent P R E S E N T CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ----- For the Appellants For the State : M/s Manoj Kr. Choubey & Jayant Kr. Pandey, Advocates : Mr. Rajneesh Vardhan, APP By Court :
Legal Reasoning
Heard the parties. ----- 1. The judgment of conviction and order of sentence under Section 147, 148, 427/149 and 353/149 of Indian Penal Code is under challenge in the instant appeal. 2. Block Development Officer-cum-Circle Officer is the informant of the case. As per FIR, he was deputed to maintain law and order in ACC cement plant of Chaibasa. Agitators were bent upon stopping water supply to the plant. Water supply was stopped which was resumed shortly, and thereafter they again stopped the supply. On 18.06.2015 water supply was resumed against which an unlawful assembly gathered to take control of the pump house and disrupt the water supply. At 4.30 p.m an unlawful assembly of 150-200 persons variously armed with lathi, danda and other traditional arms attacked the police party and tried to take control of the pump house. Females were put forward and the male members resorted to brick batting and instigating from the rear side. In the said attack police personnel were injured. 3. On the basis of written report Tonto PS Case No. 16 of 2015 was registered against altogether against 36 named accused persons and 100 to 150 unknown persons. Police on investigation found the case true and submitted charge sheet under Sections 147/148/149/307/337/427/353/120B of the Indian Penal Code against six persons including these appellants. After cognizance, charges were framed and the appellants were put on trial. 4. Altogether thirteen witnesses were examined on behalf of the prosecution and the relevant documents including the injury reports were adduced into evidence, marked as exhibits. After prosecution evidence, the statements of the appellants have been recorded under Section 313 Cr.P.C. The defence is of innocence. 5. Judgment of conviction and order of sentence has been assailed on the ground that the judgment of conviction and order of sentence has been passed merely on the basis of conjecture and surmises. All the witnesses examined are official witnesses and no 1 independent witness has been examined. Further, it is said that the door of the pump house was damaged but nothing has been seized. John Miran Munda was not even present in the unlawful assembly as per deposition of PW 1 in para 22. PWs 6 to 9 are injured witnesses but injury report do not corroborate the testimony regarding injury sustained by them and they have stated that their statement was not recorded by the police. 6. Learned counsel for the State has defended the impugned judgment of conviction and order of sentence and submitted that injured witnesses have fully supported the case and they have deposed that these appellants, by forming unlawful assembly, in order to block water supply to ACC cement company, attacked the police party in which they sustained injury for which they were treated in Sadar Hospital. Appellants are named in the FIR and were arrested on spot there is direct evidence against them that they were part of the unlawful assembly which disrupted water supply to the cement company, and when police went there to clear the unlawful assembly, they attacked the police party. 7. In the present case, FIR was registered by the Block Development Officer-cum- Circle Officer on the very same day of the incidence without any delay. The informant (PW-1) has deposed that on 17.06.2015 an attempt was made by protesters to stop the water supply. On receiving this information from the officer in charge of the Police station he went there. They tried to reason with the mob, and requested them to allow uninterrupted water supply in the mining area. Without paying any heed to the entreaties made, the agitators stopped water supply. It was on the letter of the Director of the Company that administration had to intervene to remove the protestors. Agitators informed him, that it has been conveyed by John Miran Munda that so long as their demands are not met, water supply will not be resumed. A demand was made for release of the four persons who had been taken into judicial custody. It has been deposed by this witness that John Miran Munda had played a leading role in precipitating the trouble. At around 4.30 the unlawful assembly of 150 to 200 persons armed with deadly weapon in order to stop the water supply attacked the Police party. Police used light force in self-defence. Police constable Suresh Manki was injured by the shot of arrow. In the scuffle that took place uniform of some of the police personnel was torn. Five persons arrested on spot were Amar Laguri, Putkar Hessa, Sikandar Balmuchu,Satari Khandait and Baunj Balmuchu. Testimony of other witnesses are also on the same line. More particularly the evidence of the injured witnesses who have been examined as PW-6 to PW-9. It is settled law that the testimony of injured witness is to be accorded a higher degree of 2 credence. All these witnesses were injured in the incidence is corroborated by the testimony of the Doctor (PW-10) who examined them on the very same day. PW-6 has deposed that villagers had resorted to stone pelting in which they sustained injury and were treated in the Sadar Hospital Chaibasa. These witnesses have candidly admitted that their statements were not recorded by the Police and they did not know personally the name of the investigating officer. None of these witnesses have named any of the accused persons, but have fully supported the incidence in which the local villagers attacked the police party causing simple injuries to them. Their testimony does not suffer from exaggeration and has a ring of truth. There is nothing on record to suggest that they were actuated by any desire to implicate the accused persons falsely in the incidence. There is no reason to doubt the truthfulness of their account, only for the reason that their statements were not recorded by the police. The laches on the part of investigating officer to record the statement of the witness cannot be the sole ground to disbelieve the otherwise account as given by the witness. It has been held in State of Rajasthan Vs. Kishore [1996 SCC (Cri ) 646], it was held that the real fact that I.O. committed illegality or irregularity during course of investigation would not cast doubt on the prosecution case nor trust worthy or reliable evidence can be cast aside to record acquittal on that count. So unless serious prejudice is caused to the accused because of the latches in investigation, no adverse inference can be drawn. 8. From combined reading of the deposition of witnesses, there cannot be any doubt about the incidence which took place, when the agitators instigated by their leader John Miran Munda to stop the water supply in the mines of ACC Cement Company. None of the witness has deposed that he was present at the place of occurrence, although they have stated that he was the man behind the agitation who had incited the mob to stop the water supply which became the cause for attack on police party. PW-1 has deposed that John Miran Munda was the agent provocateur. 9. Section 149 prescribes for constructive criminal liability for all members of an unlawful assembly, where an offence is committed by any member of such an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object. It would thus be noticed that one of the essential ingredients of section 149 is that the offence must have been committed by any member of an unlawful assembly. Membership of the unlawful assembly is the fundamental ingredient of the offence. Appellant was arrested on spot and there is sufficient evidence that he was member of the unlawful assembly that attacked the police party and deterred them from discharge of their official duty and also committed criminal mischief by 3 resorting to acts of vandalism and damaging the gate of the pump house. Injuries sustained by the police party are simple in nature and no single grievous injury was caused to anyone. Therefore, injury reports do not suggest that any deadly weapon was used in the assault. Appellant Bonj Balmuchu is convicted for the offences under Sections 147, 427 and 353/ 149 of the IPC. 10. In the present case all the accused persons are charged under Section 120 B of the IPC, with Johan Miran Munda, who has been deposed to be the leader and the mind behind the violent agitation to stop water supply to the company mines. The evidence against him is the testimony of PW-1 the informant of the case, who has deposed that it was this accused on whose behest the agitation was being made. He did not come on spot to join the protesters, but PW-1 in para-3 has deposed that it was being carried under the banner of his party. In para-5 it has been deposed that the crowd said that their leader was John Miran Munda and unless their demand was met they will not allow water supply. In Para-8 also it has been deposed that role of this accused was prime in the incidence. In Para-17 he has deposed that John Miran Munda had been agitating to ensure payment of minimum wages to the labours. 11. Statement of the agitators made to the informant at the time of incidence, wherein they stated that the co-accused, John Miran Munda was their leader and unless the demand was met, they will not call off the agitation. This statement made by the co- accused will come within the meaning of Section 10 of the Evidence Act and will be admissible against accused John Miran Munda. This appellant is named in the FIR and there is direct and specific allegation against him that he had instigated the mob to resort to picketing, stopping the water supply to ACC Company and the unlawful assembly had gathered there to stop the water supply. Attack on the police party was the culmination of the agitation, when police party went to clear the unlawful assembly. 12. While considering the criminal charge, motive of the persons involved is not normally a relevant consideration, except in cases based on circumstantial evidence. Motive of an offence whether it is vile or it is high, is not that relevant at the stage of appreciation of evidence. It may be a mitigating or attributing factor at the stage of sentencing. In the present case it has come in evidence that the accused persons were agitating for minimum wages. Whether they were being given minimum wages or not, is beyond consideration in the present criminal trial and there is no evidence to draw any inference regarding it. Even if it is assumed that the demands were just, even then it cannot be a ground to commit criminal offence of criminal mischief, forming unlawful assembly with deadly weapon and attacked the Police party thereby obstructing them in the exercise of their official duty. The appellant 4 Baidnath Balmuchu @ Bonj Balmuchu is accordingly held guilty for offence of criminal conspiracy along with other accused person(s) who were acting on behest of co-accused, John Miran Munda to commit the offence and is accordingly sentenced for the offence under Sections 120B of the IPC. On the point of sentence considering the overall facts and circumstance of the case, absence of any past conviction, instead of sentencing them he is given the benefits of Section 3 of the Probation of Offenders Act, 1958 and is directed to be released on admonition. This Cr. Appeal is dismissed with modification of finding and sentence. (Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated, the 08th May, 2024. AFR/ sandeep 5