The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No. 728 of 2004 --- (Against the judgment of conviction and order of sentence, both dated 24.03.2004 passed by learned 6th Additional Sessions Judge, Giridih in Sessions Trial No. 121/2001/14/2002.) --- 1. Budhan Sao 2. Thambi Sao 3. Chatur Sao 4. Mathur Sao 5. Kuldip Sao -Versus The State of Jharkhand --- ....Appellants . ...Respondent CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN --- For the Appellants For the Resp.-State
Legal Reasoning
: Mr. Ramawatar Sharma, Advocate : Mr. Jitendra Pandey, A.P.P 05/ 28.08.2023 --- Heard learned counsel for the parties. 2. The instant appeal is directed against the judgment of conviction and order of sentence, both dated 24.03.2004 passed by learned 6th Additional Sessions Judge, Giridih in Sessions Trial No. 121/2001/14/2002, whereby the appellant no1, Budhan Sao was convicted for the offence punishable under Sections 147 and 324 of I.P.C and has been sentenced to undergo R.I for 6 months under Section 324 I.P.C and no separate sentence has been awarded under Section 147 I.P.C; whereas appellant nos. 2 to 4, namely, Thambi Sao, Chatur Sao, Mathur Sao and Kuldip Sao were convicted for the offence punishable under Sections 147,149 and 323 of I.P.C. They had been given benefit of Section 4 of Probation of Offenders Act and they were directed to be released on furnishing bond of Rs. 5,000/- with two sureties of like amount each for maintaining peace for one year under Section 323/149 of I.P.C and no separate sentence under Section 147 I.P.C was awarded to them. 3. The prosecution case in brief is that on 06.04.2000 the informant had gone to collect Mahuwa flower, and found that the accused-appellants were also collecting Mahuwa. As soon as, she reached near the Mahuwa tree, then the accused-appellants abused her with filthy language and one of the accused-appellant, Kuldip Sao was having armed with rod assaulted on her leg. The accused, Thandi Sao snatched away Hunsuli from her neck and golden earring. The informant fled away from there out of fear. The accused- appellants having armed with lathi, rod and sward, entered in her house and 2. one of accused Budhan Sao attacked with sward on Baldeo Yadav with a view to kill him and he sustained injuries. The accused, Kuldip Sao also assaulted him with rod. Then, the accused-appellants fled away from there. 4. Learned counsel for the appellants has made following submissions: (i) The instant case is basically a counter case, which is evident from Ext.-C i.e., certified copy of F.I.R being Bengabad P.S.Case No. 28 of 2000. As a matter of fact, the informant’s husband and his associates assaulted the accused persons and one Janki Sao succumbed to death. (ii) From the defence exhibits, it is evident that the prosecution party has committed serious offence and taken life of Janki Sao, who has been made accused in the present F.I.R. Further, this Court cannot ignore the fact that the evidence/examination of witnesses has been taken after more than 2-3 years of occurrence. (iii) Learned trial court has ignored the very vital fact that this being a free fight, whether the prosecution party were aggressors and caused the death of Janki Sao or the appellants were aggressors. In a case of free fight, the learned trial court should have given a specific finding on this. (iv) Moreover, out of 9 P.Ws., P.Ws.2,4,5 and 6 were declared hostile. (v) Last but not the least, the learned trial court has ignored the vital fact that the Investigating Officer has not been examined, which led to a grave lacuna in the prosecution case, thereby creating the reasonable doubt. Relying upon the above submissions, learned counsel prays for acquittal. 5. Learned A.P.P. for the State opposed the prayer for acquittal and submits that no error has been committed by learned trial court. 6. Having heard the learned counsel for the parties and after going through the impugned judgment and the LCR it transpires that the learned trial court has not considered that this is a matter of case and counter case and that there are major contradictions in the deposition of P.Ws. P.W. 7 (informant) deposed that when she was picking mahua flowers she was assaulted by the appellants thereafter she ran towards her house to save herself and the appellants followed her to her house and when she caused alarm then Baldeo Mahto came to save her however he was also assaulted 3. with a sword, that means there are two places of occurrence, one near the mahua tree and one is the house of the informant, however P.W.9 (Baldeo Mahto) in his cross-examination has categorically stated that none of the appellants entered either the house or courtyard of the informant and when he reached the place of occurrence that is near the mahua tree he saw the informant was lying unconscious there. Thus it is a major contradiction in the story of prosecution that P.W.9 was assaulted inside the house of informant, inasmuch as, none of the appellants entered the house and further if informant was unconscious when P.W.9 reached the place of occurrence then it is highly improbable that the informant could have seen as to who and with what object P.W. 9 was assaulted. Further, P.W. 1 claiming to be eye witness deposed that when the informant (P.W.7) was picking mahua , Janki sao was forbidding her and after that other appellants reached at the place of occurrence, however P.W.7 deposed that when she reached the place of occurrence the appellants were already picking the mahua flowers . Thus P.W.1 reached the place of occurrence after P.W.7 however there is contradiction as to the point of time when the appellants reached the place of occurrence. Hon'ble Apex Court in Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra, (2010) 13 SCC 657 has categorically held that where the omission amounts to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. Further the discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. The relevant paragraph is quoted herein below. "31. Where the omission(s) amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence 4. acceptable, it cannot be safe to rely upon such evidence. (Vide State of Rajasthan v. Rajendra Singh [(2009) 11 SCC 106 : 1998 SCC (Cri) 1605] .) 32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. (Vide Mahendra Pratap Singh v. State of U.P. [(2009) 11 SCC 334 : (2009) 3 SCC (Cri) 1352] )" 7. It further transpires that P.W.7 deposed that she went to pick Mahua flowers along with her father-in-law Lahto Mahto; however for the reason best known to the prosecution, he has not been examined as he could have been the best witness of the occurrence. In this regard Hon'ble Apex Court in Mussauddin Ahmed v. State of Assam, (2009) 14 SCC 541 has categorically held that it is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act, 1872 notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence. 8. It further transpires in the opinion of P.W.8 (Doctor) that the injury number 1,2 and 3 of the informant are simple in nature and may be caused due to hard or blunt substance or may also be caused due to fall. As such, the opinion of doctor is also not clear as to the cause of injury of the informant. Further P.Ws. 2,4, 5 and 6 have been declared hostile by the prosecution. 9. In the light of the aforesaid findings I find it very difficult to rely on the prosecution case . The learned trial court did not consider the case of the prosecution on proper appreciation of the evidence, facts and the law as laid down by the Hon'ble Apex Court coupled with the fact that the Investigation Officer was not examined which prejudiced the case of the appellants. I don’t have any hesitation in holding that the prosecution case is not at all free from reasonable doubt. Accordingly, the judgment of conviction which has been impugned in this revision petition is liable to be interfered with and the appellants deserve benefit of doubt and 5. learned trial court has failed to consider the aspects discussed hereinabove. 10. Consequently, the judgment of conviction and order of sentence, both dated 24.03.2004 passed by learned 6th Additional Sessions Judge, Giridih in Sessions Trial No. 121/2001/14/2002, is hereby, quashed and set aside. 11. As a result, the instant appeal stands allowed. 12. The appellants shall be discharged from the liability of their bail bond. 13. Let a copy of this order be communicated to the trial Court and the LCR be sent to the court concerned forthwith. jk (Deepak Roshan, J)