Bhushan Bara v. The State of Jharkhand

Judgment

1. Heard the rival submissions of the learned counsel for the petitioners and learned counsel for the State.

2. This Criminal Revision has been preferred on behalf of the petitioners against the order dated 03.04.2023 passed by the learned Judicial Magistrate, 1st Class, Ranchi in M.P./ M.L.A. Case No.10 of 2021, arising out of Simdega Mahila P.S. Case No.19 of 2019, whereby the learned Court below has rejected the discharge application filed under Section 239 of the Code of Criminal Procedure.

The learned counsel for the petitioners has submitted that the FIR of this case was lodged by the victim herself against the nine named accused - 2 - persons, who are petitioners herein for the offence under Sections 341, 323, 354, 506 and 34 of the Indian Penal Code. The allegations made in the FIR are not supported by the statements of any of the prosecution witnesses, who were interrogated by the Investigating Officer during the investigation. Only it is the victim, who in her restatement, corroborated the prosecution story. It is also further submitted that even the Investigating Officer, who had filed the charge-sheet drawing the conclusion from the evidence collected by him that the allegations against the alleged persons are not true, but at the same time, he filed the charge-sheet without any reason for the offence under Sections 341, 323, 354, 506 and 34 of the Indian Penal Code. It is also submitted that the Investigating Officer realized his mistake and he filed the supplementary charge-sheet for the offence under Section 506 read with Section 34 of the Indian Penal Code. It is also further submitted that the offence under Section 506 read with Section 34 of the Indian Penal Code being non-cognizable offence. It is further submitted that the offence under Section 506 of the Indian Penal Code is also not made out from the evidence collected by the Investigating Officer. It is also submitted that the learned Court below has rejected the discharge petition of the petitioner without applying the judicial mind not taking into consideration the statements of the prosecution witnesses, who were interrogated during investigation, as such, the discharge application of the petitioner should have been allowed.

4. The learned APP appearing on behalf of the State conceded that though the allegations made in the FIR are supported by the victim herself in her re-statement, yet no one of the prosecution witness under Section 161 of the Code of Criminal Procedure has supported the FIR case. So far as the offence under Section 506 read with Section 34 of the Indian Penal Code is - 3 - concerned, in regard to the same, supplementary charge-sheet has been filed by the Investigating Officer and the Investigating Officer has also admitted his mistake that he had wrongly filed the charge-sheet. Yet, the only offence under Section 506 read with Section 34 of the Indian Penal Code is made out so the Investigating Officer submitted the supplementary charge-sheet. It is also conceded by the learned APP that from the re-statement of the victim, the ingredient of offence under Section 506 read with Section 34 of the Indian Penal Code is made out; but from the statement of any other witnesses, no alleged offence is made out.

5. It is settled law that while framing the charge or disposing the discharge petition of the accused, the Court has to take into consideration the allegations made in the FIR and the statement of the witnesses, who were interrogated during investigation by Investigating Officer as well as the documentary evidence collected by the Investigating Officer. At the time of framing charge, the evidence cannot be evaluated. The marshaling of evidence or appreciation of evidence is not permissible. The Court has to see whether from the allegations made in the FIR and the evidence collected by the Investigating Officer, there are sufficient ground to proceed with trial against the accused for the alleged offence, then the discharge application may be declined to allow.

6. The FIR case is that the victim gave written information to the police station concerned with these allegations that at the behest of Soni Minz one of the accused, victim went to the house of maternal uncle of Soni Minz, namely, Bhushan Bara. At the house of Bhushan Bara, he himself, his wife, namely, Josima Xaxa, Emma Bara, mother of Soni Minz, namely, Jasinta - 4 - Minz and Samir Minz (brother) all were present. All unanimously had asked the victim to change the religion of Anup, but the same was opposed by the victim. On this, all the accused persons, who were present at the house of Bhushan Bara hurled abuse in filthy words and insulted the victim and they also used derogatory word. The accused persons also hurled abuse to her mother. All the accused persons tried to disrobe her. Bhushan Bara pulled her scarf (dupatta) and threatened that she would be paraded in the village by putting the garland of the sleepers in her neck so that she could not show her face to anyone. On 05.02.2018, case was fixed for hearing in the Court. The victim also went there. All of a sudden, she started not feeling well, then she went for treatment to Sadar Hospital, Simdega. At the hospital, Pushpa Bara and her son, namely, Sonu assaulted her. Sonu also criminally intimidated her to life. When she was going outside, Suraj Gupta insulted her by stating caste related words and threatened to withdraw the case otherwise she would be raped and killed. On 07.07.2018, she went at the residence of Superintendent of Police, Simdega to meet him. When she came out, Suraj Gupta was standing outside the house. He stalked her and further used caste related words and criminally intimidated her. On 10.12.2018, outside the Court premises of Simdega, Mukhiya, namely, Bhushan Bara along with 2-3 persons were standing there and they asked to withdraw the case otherwise she along with her mother shall be finished. At some distance from that place, Jhama Bara was there on his Scooty. Bhushan Bara further criminally intimidated by saying that he would ruin her life. Bhushan Bara also threatened her that he would oust her from the society and all of a sudden, put his hand on her breast and started - 5 - laughing. When, the victim along with her mother started to move towards bus stand, Samir and Suraj abused her and also criminally intimidated her. Samir Minz also put his hand on her back in order to outrage her modesty and this FIR was lodged.

7. The restatement of the victim was recorded in paragraph No.3 of the case diary, in which, she reiterated all these allegations, which are made in the FIR. In paragraph No.4 of the case diary, the mother of the victim, namely, Aana Ekka stated that on 02.01.2018, she at the behest of her daughter reached to the house of Mukhiya, namely, Bhushan Bara at 09:30, where Soni Minz identified her and some altercation took place between Soni Minz and the victim but no other comment was made by this witness with regard to the parents. In paragraph No.5 of the case diary, Shashi Bhushan also stated that on 02.01.2018, at the behest of Anup Bharti and Rashmi Sanchita Ekka, he reached to the house of Mukhiya, Bhushan Bara at 09:30, wherein he identified only Soni Minz and the talks were exchanged between Rashmi Sanchita Ekka and Soni Minz. Thereafter, Soni Minz called the police. Anup Bharti was called to the police station for interrogation and no other statement was given in regard to the alleged occurrence. In paragraph No.10 of the case diary, the statement of independent witness Victor Khes, in paragraph No.11 of the case diary, the statement of Kanti Khes, in paragraph No.12 of the case diary, the statement of Nistor Khes, in paragraph No.13 of the case diary, the statement of Nilima Minz were recorded. All these witnesses in their statement have not corroborated any of the allegations in regard to the several incidents, which were narrated in the FIR. In paragraph No.22 of the case diary, the statement of Birendra Roy has been recorded, he stated in regard to the occurrence - 6 - of 10.12.2018 that no alleged occurrence was taken place outside the Simdega Court Complex. In paragraph Nos.31, 32, 33 and 34 of the case diary, statement of other witnesses have been recorded in regard to the occurrence of 05.02.2018 and all these witnesses did not support the allegations in regard to the occurrence of 05.02.2018 and stated that no alleged occurrence took place there while they were present at the alleged place of occurrence.

8. In paragraph No.71 of the case diary, it has been stated by the Investigating Officer that the gist of the evidence collected by him during the investigation is that no alleged occurrence was stated by any of the prosecution witnesses, whose statements were recorded under Section 161 of the Code of Criminal Procedure during investigation and the Investigating Officer also held that the allegations against the accused persons were not true, but in the last paragraph, the Investigating Officer filed charge-sheet against all nine accused persons for the offence under Sections 341, 323, 354 and 506/34 of the Indian Penal Code.

9. From perusal of the supplementary case diary filed by Investigating Officer, it is found that the Investigating Officer admitted that mistakenly the charge-sheet was filed under Sections 341, 323, 354, 506 and 34 of the Indian Penal Code and in paragraph No.2 of the supplementary charge-sheet, the conclusion was also modified by the Investigating Officer by filing supplementary charge-sheet. Ultimately, in paragraph No.7 of the supplementary charge-sheet, the Investigating Officer gave his conclusion that the offence under Section 506 read with Section 34 of the Indian Penal code is made out; while from the statement of all the witnesses, who were interrogated during investigation, whose statements were recorded in the - 7 - case diary and none of the offence is made out against the petitioners/ accused persons in supplementary case diary. The Investigating Officer did not record the statement of any other witness rather the Investigating Officer admitting his mistake while filing the supplementary charge- sheet stated that only the offence under Section 506 read with Section 34 of the Indian Penal Code is made out. This conclusion of the Investigating Officer is not supported by the statement of any of the prosecution witnesses, who were interrogated during investigation.

10. Therefore, from the allegations made in the FIR, the statement of witnesses under Section 161 of the Code of Criminal Procedure and the evidence collected by the Investigating Officer during investigation, the alleged offence is not made out against these petitioners, as such, this Court is of considered view taking into consideration the allegations made in the FIR, which are not supported with the evidence collected by the Investigating Office during investigation in its entirety, the impugned order passed by the learned Court below in rejecting the discharge application of the petitioners bears illegality and the same needs interference. Accordingly, the order passed by the learned Court below is set-aside.

11. In consequence thereof, this Criminal Revision is hereby allowed. The petitioners are discharged from the charge framed against them. The consequence thereof is to be followed by the learned Court below.

12. Let a copy of this judgment be communicated to the learned Court below. Madhav/- (Subhash Chand, J.)