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2010 DIGILAW 680 (JHR)

Dwarika Rai v. State of Jharkhand

2010-06-28

PRASHANT KUMAR

body2010
By Court.-This appeal is directed against the judgment of conviction dated 22.4.2002 and order of sentence dated 24.4.2002 passed by Special Judge, Giridih in T.R. No. 92 of 2001 corresponding to Birni P.S. Case No. 5 of 1995 wherepy and whereunder the appellant was convicted under Section 3(1)(XI) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1-989 (hereinafter referred to as the 'Act') and Sections 448/ 354 of the I.P.C. and sentenced to undergo rigorous imprisonment for three years under Section 3(1)(XI) of the Act and six months for the offence under Section 448 of the I.P.C. No separate sentence awarded under Section 354 of the I.P.C. 2. The case of prosecution, in short, is that in the evening of 16.1.1995 some altercation took place• in between the appellant's son and informant's son. It is then alleged that on the same day in the evening at about 7:00 p.m. appellant entered into the house of informant and abused her. It is further alleged that when the informant and her sister-in-law objected, appellant pulled the informant and outraged her modesty. Accordingly, present case instituted under Sections 448, 354 and 506 of the I.P.C and Section 3 of the Act and police investigated the case. Then, after completing the investigation, police submitted charge-sheet against the appellant under the aforesaid Sections. It then appears that C.J.M., Giridih took cognizance of the offence, thereafter sent the case to the Special Judge, Giridih (Atrocities Act) for trial. 3. Learned Special Judge vide order dated 6.7.1999 framed charges against the appellant under Sections 448/354 of the I.P.C and Section 3(1)(XI) of the Act. The said charges read over and explained to the appellant, to which he pleaded not guilty and claimed to be tried, Thereafter, altogether five witnesses examined on behalf of prosecution. After close of the case of prosecution, statement of appellant recorded under Section 313 of the Cr.P.C. in which his defence is of total denial. Learned court below, after considering the evidence available on record, convicted and sentenced the appellant as stated above, against that present appeal filed. 4. While assailing the impugned judgment of the court below, it is submitted by Mr. Shree Nivas Roy, learned counsel for the appellant that in the instant case, it is an admitted position that all the prosecution witnesses are inimical to the appellant because of previous land dispute. 4. While assailing the impugned judgment of the court below, it is submitted by Mr. Shree Nivas Roy, learned counsel for the appellant that in the instant case, it is an admitted position that all the prosecution witnesses are inimical to the appellant because of previous land dispute. It is further submitted that from perusal of evidences available on record, it is clear that all the prosecution witnesses are related to each other and they have tried to develop the prosecution story from stage to stage with a view to get the appellant convicted in the present case. It is submitted that from the materials available on record, no offence under Section 3(1)(XI) of the Act is made out. Thus, the conviction of the appellant by the court below is wholly illegal. 5. On the other hand, learned Additional P.P. appearing for the State supported the impugned judgment and said that the informant is a harijan and dhobi by caste. It is submitted that she has been abused and assaulted by appellant with a view to outrage her modesty. Therefore, offence under Section 3(1)(XI) of the Act is made out. Thus, there is no illegality in the impugned judgment. 6. Having heard the submissions, I have gone through the record of the case. P.W.-1 Jaideo Kumar is the son of informant, P.W.-2 Janki Kumari is the daughter of informant, P.W.-3 Sangita Devi is the sister-in-law of informant whereas P.W.4 is the informant herself. P.W.-S Manoj Kumar Singh is the officer-in-charge. From perusal of evidences of P.Ws.-1, 2, 3 and 4, it appears that they have strain relation with the appellant from before due to land dispute. Thus, law requires that the evidences of aforesaid inimical witnesses be scrutinized with all care and caution and if on such scrutiny, their evidences inspire confidence, then only same be made basis for convicting the appellant. Keeping in view the aforesaid law, I scrutinized the evidences available on record. P.W.-1 and P.W.-2 stated that the appellant has assaulted the informant taking into consideration that she belongs to lower caste. However, it appears from the statement of Investigating Officer (P.W.-S) that P.W.-1 and P.W.-2 were making the aforesaid statement for the first time in the Court. These witnesses had not stated before the I.O. as to why appellant assaulted the informant. Thus, it is apparent that they were trying to make development in prosecution story. However, it appears from the statement of Investigating Officer (P.W.-S) that P.W.-1 and P.W.-2 were making the aforesaid statement for the first time in the Court. These witnesses had not stated before the I.O. as to why appellant assaulted the informant. Thus, it is apparent that they were trying to make development in prosecution story. P.W.-3 is the sister-in-law of the informant. She stated that Dwarika Rai (appellant) came at about 7:00 p.m. and abused the informant by saying that she belongs to dhobi community and thereafter outraged her modesty. However, Investigating Officer categorically stated in his deposition that she did not say so before him and he proved the contradictions in the statements of P.W.-3. P.W.-4 informant has made material development in the case of prosecution. She stated that Dwarika Rai came to her house in the evening at about 7:00 p.m. and outraged her modesty by saying that she belongs to harijan community. From perusal of fardbeyan, it is clear that she had not made such allegations. In the deposition she has also stated that Dwarika Rai had torn her blouse and tried to denude her by opening her saree, but no such statement was made in the First Information Report. 7. As noticed above, it is an admitted position that there is enmity between the parties. The informant and other witnesses stated that during the occurrence so many villagers arrived at place of occurrence after hearing the cry of P.W.-4. It is worth mentioning that none of the witnesses produced in the trial court to support the version of informant. Thus, in my view, in the instant case non-examination of independent witness is fatal for the case of prosecution. 8. Considering the aforesaid facts and circumstances of the case, I find that the prosecution has not been able to prove the case levelled against the appellant beyond the shadow of all reasonable doubts. Under the said circumstance, the impugned judgment of conviction and order of sentence cannot be sustained. 9. In the result, this appeal is allowed. The impugned judgment of the court below is set aside. The appellant is acquitted from the charges levelled against him. The appellant is on bail. Thus, he is discharged from the liabilities of the bail bond furnished by him.