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2003 DIGILAW 967 (JHR)

Deonandan Chaudhary v. State Of Jharkhand

2003-08-08

VISHNUDEO NARAYAN

body2003
ORDER Vishnudeo Narayan, J. 1. This appeal has been directed by the appellants named above against the impugned judgment and order dated 17.2.2003 passed in Sessions Case No. 152 of 1993 by Shri Ram Babu Gupta, Additional Sessions Judge, Fast Tract Court No. II, Deoghar whereby whereunder the appellants along with co-accused Jim-medar Chaudhary were found guilty for the offence punishable under Sections 147, 149, 337, 341, 353, 323 and 225 of the Indian Penal Code and they were convicted but they were released on an executing bond of Rs. 5,000/- with two sureties for a period of two years to maintain peace and be of good behaviour. However, co- accused Jimmedar Chaudhary was released on due admonition. The appellants were, however found not guilty for the offence under Section 307 of the Indian Penal Code though no specific finding in respect thereof stands recorded in the impugned judgment. 2. The prosecution has arisen on the basis of the written report of Surya Kant Jha, A.S.I., Jasidih PS, District Deoghar (Ext. 5) lodged before the said police station on 21.5.1989 at 7.00 hours regarding the occurrence which is said to have taken place on 20th May, 1989 at 22 hours in village Chihomarni, PS, Jasidih, District Deoghar and the case was instituted against the appellants and other co-accused by drawing a formal FIR (Ext. 1) on 21.5.1989. 3. The prosecution case, in brief, is that a raiding party consisting of A.S.I., B.B. Prasad (PW 6) and constables Kailash Yadav, Ajay Kumar Singh, Jaldhar Hembram, Ajay Gopal and Hawaldar, Dinesh Kumar Singh headed by the informant had gone to village Chihomarni in connection with the investigation of Jasidih PS Case No. 58 dated 20.5.1989 for apprehending the accused persons of that case and the police party reached the said village at about 22.00 hours on 20.5.1989 and started making investigation in the case and accused Diwakar Chaudhary and Hari Chaudhary were apprehended in Jasidih PS Case No. 58 of 1989. It is alleged that all the appellants along with co-accused Jimmedar Chaudhary came there forming an unlawful assembly armed with stones and brickbats and they started pelting stones and brickbats at the police force and obstructed them from taking away the apprehended accused persons aforesaid. It is alleged that all the appellants along with co-accused Jimmedar Chaudhary came there forming an unlawful assembly armed with stones and brickbats and they started pelting stones and brickbats at the police force and obstructed them from taking away the apprehended accused persons aforesaid. It is alleged that the informant sustained injuries on his chest and ribs and other members of the raiding parties have also sustained injury on their person caused by brickbats and stones and the appellants rescued apprehended accused Hari Chaudhary from the lawful custody of the informant. The prosecution case further is that the informant along with the apprehended accused Diwakar Chaudhary anyhow managed to come to the police station. It is alleged that PW 1 Hare Krishna Chaudhary, PW 4, Shakti Chaudhary, Chandra Mauleshwar Chaudhary (since dead) and PW 2 Nazir Chaudhary have witnessed the occurrence and they have stated the name of the appellants to him as participants in the occurrence in question. 4. The appellants have pleaded not guilty to the charges levelled against them and they claim themselves to be innocent and to have committed no offence and that they have been falsely implicated in this got up case by the informant at the instance of PW 1, Hare Krishna Chaudhary and others who are inimical to the appellants prior to the occurrence and enmity between them was existing and alive on the day of the occurrence and they were on litigating terms. 5. The prosecution has in all examined seven witnesses to substantiate its case. Surya Kant Jha, the informant has not been examined in this case as he is reported dead. PW 6, B.B. Prasad, A.S.I., is the member of the raiding party and also the IO of this case. PW 3, Baikunth Chaudhary, PW 1, Hare Krishna Chaudhary, PW 4, Sakti Chaudhary and PW 2, Nazir Chaudhary have been examined for; the prosecution but PW 2 has turned hostile and he does not support the prosecution case whereas the evidence of PW 3, Baikunth Chaudhary has no relevancy in this case. PW 5, Jai Shankar Poddar is a formal witness. PW 7, Dr. PW 5, Jai Shankar Poddar is a formal witness. PW 7, Dr. Ram Gopal Singh has examined the injuries found on the person of members of the raiding party, namely, Kailash Yadav, Ajay Kumar Singh, Jaldhar Hembram , Ajay Gopal and Dinesh Kumar Singh besides PW 6, B.B. Prasad, the IO and the injury reports in respect thereof are Ext. 4 series. Four witnesses have also been examined on behalf of the defence to prove the fact that appellants Nos. 1 and 2 were in Government job posted at their respective place of posting at the time of the occurrence. 6. In view of the evidence oral and documentary on the record the learned court below came to the finding of the guilt of the appellants and convicted them but released them on execution of probation bond as stated above. 7. Assailing the impugned judgment as perverse and against the weight of the evidence on the record it has been submitted that there is no iota of legal evidence on the record to substantiate the prosecution case in view of the fact that Surya Kant Jha, the informant, could not take the witness box as he had died during the pendency of this case and other members of the raiding party have also not been examined in this case by the prosecution and they have been deliveratly withheld in this case and PW 6, B.B. Prasad has not deposed that he has sustained injuries in the occurrence in question by stones and brickbats said to have been thrown by the appellants in his evidence on oath whereas PW 7, Dr. Ram Gopal Singh has deposed to have examined him and has issued injury report (Ext. 4/6) in respect thereof which casts a cloud of suspicion to the very warp and woof of the prosecution case and it appears that the entire prosecution case is a got up one at the instance of PW 1 and PW 4. Ram Gopal Singh has deposed to have examined him and has issued injury report (Ext. 4/6) in respect thereof which casts a cloud of suspicion to the very warp and woof of the prosecution case and it appears that the entire prosecution case is a got up one at the instance of PW 1 and PW 4. It has further been submitted that the informant were not known and acquainted with the appellants prior to the occurrence and there was no means of identification available at the alleged place of occurrence and the names of the appellants were disclosed to the informant by PW 1, Hare Krishna Chaudhary, PW 4, Shakti Chaudhary, PW 3, Baikunth Chaudhary and PW 2, Nazir Chaudhary who are the sworn enemies of the appellants being on litigating terms with them much prior to the occurrence in question and said Baikunth Chaudhary is the informant of Jasidih PS Case No. 58 of 1989 instituted against some of the appellants and others and as such the testimony of PW 1, Hare Krishna Chaudhary and PW 4, Shakti Chaudhary is not worthy of credit and is fit to be brushed aside in this case. Lastly it has been contended that the learned Court below did not meticulously consider the evidence on the record in proper perspective and has committed a manifest error in coming to the finding of the guilt of the appellants and viewed thus the impugned judgment is unsustainable. 8. The learned APP has submitted that admittedly there are certain lacunas in the prosecution case due to the non-examination of the members of the police force who had sustained injuries in the occurrence but PW 1 and PW 4 in their evidence on oath have supported the prosecution case in material particulars and in this view of the matter the impugned judgment does not suffer with any illegality. 9. It will admit of no doubt that an occurrence had taken place on 20.5.1989 at 16.00 hours in village Chihomarni and Jasidih PS Case No. 58 of 1989 was instituted against Hari Chaudhary and Diwakar Chaudhary besides others on the basis of the written report of PW 3, Baikunth Chaudhary and the informant along with the police party had gone to the said village for making investigation in the said case and they had reached there at 22.00 hours on that day. PW 6 Bipin Prasad is one of the members of the raiding party which had gone to the said village for investigation of the aforementioned case. He has deposed in para 1 of his evidence that the place of occurrence is the gair-mazarua land by the side of the road which runs from north to south and there are several trees in the said land. He has also deposed that the appellants had thrown brickbats and stones at the police force from east as well as from north at the said place as a result of which the members of the raiding party had sustained injuries on their person. PW 6, however does not whisper in his evidence on oath regarding the persons who were the members of the said police force which had gone to the place of occurrence as well as about himself having received injuries on his person as a result of brickbats and stones thrown at him by the appellants. He also does not whisper in his evidence on oath regarding the names of the appellant who have participated in the alleged occurrence. There is also no means of identification available at the place of occurrence in course of the occurrence and PW 6 had no occasion at all to see the appellants throwing brickbats and stones at the police force. However, the names of the appellants finds mentioned in the written report of the informant Surya Kant Jha (since dead) and there is specific averment therein that PW 3, Bainkunth Chaudhary, PW 1, Hare Krishna Chaudhary, PW 4, Shakti Chaudhary and PW 2, Nazir Chaudhary besides Chandra Mauleshwar Chaudhary have told him the name of the appellants who are said to have thrown brickbats and stones at them. PW 6 is also conspicuously silent in his evidence on oath regarding the rescue of Hari Chaudhary by the appellants from the lawful custody of the informant and others. Therefore, the testimony of the PW 6 does not support the prosecution case in material particulars. PW 1, Hare Krishna Chaudhary has deposed that the police force headed by the informant had come to the place of occurrence in connection with the investigation of Jasidih PS Case No. 58 of 1989 and they had apprehended Hari Chaudhary and Diwakar Chaudhary. Therefore, the testimony of the PW 6 does not support the prosecution case in material particulars. PW 1, Hare Krishna Chaudhary has deposed that the police force headed by the informant had come to the place of occurrence in connection with the investigation of Jasidih PS Case No. 58 of 1989 and they had apprehended Hari Chaudhary and Diwakar Chaudhary. His evidence is further to the effect that all the appellants came there and they started pelting stones and brickbats on the police and they managed to rescue Hari Chaudhary and they had also thrown brickbats and stones at the police force causing injury to the members of the said police force. The evidence of PW 4, Shakti Chaudhary in his examination in chief corroborates the testimony of PW 1. Both these witnesses are closely related with each other and there was enmity existing and alive between PW 1 and PW 4 and others on the one hand and the appellants on the other hand much prior to the occurrence in question and the said enmity still existed on the day of the occurrence and the case was lodged by PW 3, Baikunth Chaudhary against some of the appellants and others. Para 4 of the testimony of PW 1 indicates that both the parties were at daggers drawn and they were the sworn enemies of the appellants. PW 1 and PW 4, however, does not state in their evidence on oath that they had disclosed the names of the appellants to the informant as participant in the occurrence in question. The evidence of PW 1, that he had seen the appellants throwing brickbats and stones at the police force appears to be highly improbable and equally unacceptable in view of the fact that there was no means of identification and the occurrence had taken place at 10.00 oclock in the night where there were large numbers of trees. PW 4 in para 3 of his cross-examination has deposed that the occurrence has taken place only 10 minutes after the sunset and it appears that this witness has no occasion at all to witness the occurrence and therefore, his testimony is fit to be brushed aside. He also claims to have sustained injuries in the occurrence in question but there is no evidence in respect thereof to support his case. He also claims to have sustained injuries in the occurrence in question but there is no evidence in respect thereof to support his case. Therefore, PW 1 and P,W 4 are highly interested and partisan witnesses having animus to depose falsely against the appellant with a view to falsely implicate them in this case due to the enmity existing and alive between them. And last but not the least though PW 7, the medical witness has found existence of the injuries on PW 6, B.B. Prasad, besides the informant Surya Kant Jha, Kailash Yadav, Ajay Kumar Singh, Jaldhar Hembram, Ajay Gopal and Dinesh Kumar Singh when he had examined them at 4.00 hours on 21.5.1989 i.e. soon after the occurrence but surprisingly enough they are not forthcoming to support the prosecution case that they had sustained injuries in the occurrence in question. Even PW 6, B.B. Prasad does not whisper that he had sustained injuries in the occurrence as a result of brickbats and stones thrown at him by the appellants. The averment made in the written statement of Surya Kant Jha, the informant can never be taken as a substantive piece of evidence to be used against the appellants. Therefore, there is no legal and reliable evidence on the record to substantiate the prosecution case and the false implication of the appellants in this case cannot be totally ruled out at the instance of PW 1 and PW 4. The defence version appears to be natural and probable in the facts and circumstances of this case. The learned Court below did not consider the evidence on the record meticulously in proper perspective and has materially erred in coming to the finding of the guilt of the appellants and viewed thus the impugned judgment cannot be sustained. 10. I, therefore, see merit in this appeal and it succeeds. The appeal is hereby allowed. The impugned judgment of the learned Court below is set aside and the appellants are not found guilty and they are, accordingly, acquitted and also discharged from the liability of the probation bond, if they have already executed the same.