The High Court · 2023
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Acquittal Appeal No. 65 of 2020 Prashant Kumar Hembrom, s/o late Jogen Chandra Hembrom, resident of At-Dhanushpuja, PO Pakur, PS Pakur (T), District Pakur (Jharkhand) …... Appellant Versus 1.The State of Jharkhand 2.Ganesh Kumar Jha, s/o Hari Shankar Jha, resident of Mohalla Birsa Chauk (Hatpara), Pakur, PO Pakur, PS Pakur (T), District Pakur, Jharkhand …... Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Appellant For the State
Legal Reasoning
: Mr. Dindayal Sahay, Advocate : Mr. Pankaj Kumar, PP Mr. Gautam Rakesh, APP --------------
Decision
O R D E R 10th May 2023 Per, Shree Chandrashekhar, J. I.A. No. 5977 of 2020 In view of the provisions under sub-section 3 to section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 [in short, SC/ST (POA) Act] which provides that an appeal against the judgment, sentence and order passed under the said Act shall be preferred within a period of 90 days, the Office has raised an objection to the maintainability of the present appeal filed against the judgment of acquittal passed in SC/ST Case No. 04 of 2014. 2. Second proviso to sub-section 3 to section 14-A provides that the High Court shall not entertain any appeal beyond the period of 180 days from the date of judgment or order. 3. No doubt this is the policy of the Legislature that any appeal beyond the period of 180 days should not be entertained by the High Court but then the powers under section 378 of the Code of Criminal Procedure are without any limitations. Therefore, this evinces no doubt that the High Court can entertain an appeal even beyond the period of limitation provided under the Statute in appropriate cases. 2 Acq. Appeal No. 65 of 2020 4. Having regard to the facts and circumstances in the case, I.A. No. 5977 of 2020 is allowed. I.A. No. 5978 of 2020 5. This interlocutory application has been filed under section 5 of the Limitation Act for condonation of delay of 180 days. 6. Not only there is no serious opposition to this application filed under section 5 of the Limitation Act, having regard to the facts and circumstances in the case, this Court deems it proper to condone the delay of 180 days in filing the present Acquittal Appeal and, accordingly, I.A. No. 5978 of 2020 is allowed. Acquittal Appeal No. 65 of 2020 7. The informant is aggrieved of the judgment dated 15th July 2019 passed in SC/ST Case No. 04 of 2014 by which Ganesh Kumar Jha has been acquitted of the charge under sections 379, 323, 341, 504 of the Indian Penal Code and section 3(1)(x) of SC/ST (POA) Act. 8. On the basis of the complaint case vide PCR No. 165 of 2012, by virtue of an order passed by the Court under section 156(3) of the Code of Criminal Procedure, Pakur (Town) PS Case No. 189 of 2012 has been registered against Ganesh Kumar Jha. 9. The trial Judge in his order dated 15th July 2019 passed in SC/ST Case no. 4 of 2014 has held as under: “11. After hearing both the sides in length, I have perused the materials on record. Looking to oral evidence of complainant victim PW-3 and his son PW-4, I find that since prior to the occurrence the parties i.e. the accused and Complainant were under criminal litigation and in between them Pakur (T) P. S. Case No. 50/12 registered u/ss 341, 307, 504 IPC in which accused Ganesh Kumar Jha is the informant and the informant of the case instant Prashant Hembrom was figured as an accused. It appears therefore that in between parties multiple criminal litigation were/are still pending. The informant complainant on oath though has tried his best to suppress the same. Though during cross examination it was detected that of course there was previous multiple criminal litigation in between the accused and the alleged victim PW3. His son PW4 in his examination-in-chief has tried best to suppress plea advanced to the effect that prior to the instant case the parties were inimical and there was/ is long standing criminal litigation between them. In para 6 the PW3 during cross examination was asked about his intimate terms and relation with PW2 Bhola Gupta @ Manjit Gupta but he made his ignorance as for the said witness in a criminal case he once was his bailer. From his narration therefore it may be inferred that to some extent PW2 was closely related to him who once was his bailer in a criminal case. From oral evidence of PW2 it would appear that the wife of victim was being kept as concubine by the accused. By saying 3 Acq. Appeal No. 65 of 2020 so an attempt was made to show that the accused was a man of mussels. On the other hand, looking to Exhibit E and Exhibit F. I find that wife of victim PW.3 in a criminal case lodged earlier in year against the accused whereby she was alleged to be the victim of molestation, had deposed nothing incriminating against him and basically due to her departure from the FIR, the accused who is tried here was acquitted by the competent Court in that very criminal case. In this context, looking to the documents brought on record as Exhibits A, B, C and D it is very much apparent that both parties against each other were are under several criminal litigations. Therefore there is no doubt at all that prior to the instant case there was definitely multiple criminal litigation in between the accused and alleged victim PW.3. Another peculiar aspect of the case is contradictory narration of victim, his son and others about the place of incident. In this context oral evidence of PW-3 and PW-4 indicate that the place where the alleged occurrence had taken place was the old police lines ground. According to PW-2 the place of incident was old police lines near Bazar Samiti. On the other hand, according to the IO PW-6 when he visited to the place of indent found it to be a Football ground at Gokulpur locality adjacent to the old police lines. About the place of occurrence, when his [PW6) attention was drawn towards Complaint Case No. 165 of 2012 his evidence is that thereunder the place of incident was found to have been mentioned as Bazar Samiti campus. The place of occurrence, according to cross examination of PW6 at para 10 was the football ground at old police lines rather the police lines ground. Therefore the P.O. in the eye of law has been disputed. On careful perusal of oral evidence of witnesses. It appears further that PW1, PW2 and PW4 who were claiming themselves to be an ocular of the incident of physical assault followed by humiliation and insult in the caste name caused by the accused, on the point of firing by the accused have whispered nothing at all. There is specific mention in the Complaint Case which is the foundation of FIR that the accused fired in the air. On the other hand looking to oral evidence of PW3 it would appear that at the place of incident when on being hulla raised by him the people of the vicinity such as PW.1, PW.2 and his son arrived and tried to intervene in the assault the accused whipped out pistol put on them due to therefore people named above out of fear escaped from there. From the evidence of IO it would appear further that no investigation about ascertaining the caste of victim was made by him. During trial, however no chit of paper was produced to show that the caste as "Hembrom" comes under the defined category of SC/ST (POA) Act. Under the given facts and circumstances where there was multiple previous criminal litigation between the parties, the evidence of PW3. his son PW4 and others who being chance witnesses had been claiming to be an eye witness, irrespective of the fact that enmity is doubt edge sword and it cuts either side, trial facing accused can not be convicted only on the materials above. Under the circumstances, considering the materials on record the accused in my point of view is entitled to be given benefit of doubt and therefore he is given the same. 12. In the ultimate analysis, accused Ganesh Kumar Jha due to paucity of clinching evidence against him is hereby acquitted from all the charges. He is on bail and due to acquittal, his sureties are discharged from the liabilities of bail bonds.” 10. This is always a difficult exercise for a criminal Court to 4 Acq. Appeal No. 65 of 2020 scrutinise the evidence of an inimical or interested witness to find out whether it is laced with motive. No doubt enmity cuts both ways but then this is a well-settled practice that when a criminal Court has to examine the testimony of an inimical witness the Court is required to exercise care and caution. 11. In “Masalti v. State of U.P.” AIR 1965 SC 202 the Hon'ble Supreme Court has held as under: “14. … There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. …………… The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard-and-fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 12. In “Ramashish Rai v. Jagdish Singh” (2005) 10 SCC 498 the Hon’ble Supreme Court has observed as under : “7...... The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. ..” 13. The case of the prosecution is that Prasant Kumar Hembrom who is the complainant and his son Pritam Kumar Hembram were walking in the Pakur Bazar Samiti Campus. In the meantime, accused Ganesh Kumar Jha along with two persons reached there and caught hold of the complainant and started abusing him in filthy language. The other two persons started assaulting by fists, slaps and kicks. Ganesh Kumar Jha took some cow-dung and forcibly pour on the face and mouth of the complainant. 14. During the trial, six witnesses were examined in support of the charge framed against the accused – the informant is PW3. The trial Judge has disbelieved PW1, PW2 and PW4 on the ground that in their evidence in the Court they have not whispered anything about firing from a pistol. The 5 Acq. Appeal No. 65 of 2020 trial Judge has observed that no investigation was carried as regard caste of the victim so as to bring in section 3(1)(x) of the SC/ST (POA) Act against the accused. The trial Judge has further noticed that the parties are at litigating terms and there is series of litigation between them. 15. In “Sheo Swarup v King Emperor” AIR 1934 PC 227(2) it has been held that the High Court while acting as an appellate Court must have due regard to the reasons which impelled the trial Court to record the judgment of acquittal. 16. In “Chandrappa v. State of Karnataka” (2007) 4 SCC 415 the Hon'ble Supreme Court has observed that a judgment of acquittal is not lightly interfered with by the High Court and unless there are compelling circumstances no interference is warranted with the judgment of acquittal. 17. In “Chandrappa v. State of Karnataka” (2007) 4 SCC 415 the Hon'ble Supreme Court has held as under: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court”. 18. Having regard to the facts and circumstances in the case, Acquittal Appeal No. 65 of 2020 is dismissed. 6 Acq. Appeal No. 65 of 2020 19. Let a copy of the Judgment be transmitted to the Court concerned through FAX. (Shree Chandrashekhar, J.) High Court of Jharkhand, Ranchi Dated: 10th May 2023 Tanuj/ NAFR (Ratnaker Bhengra, J.)