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2012 DIGILAW 1142 (PAT)

Sita Ram Goswami v. State of Bihar

2012-08-17

ASHWANI KUMAR SINGH

body2012
JUDGMENT Heard Mr. Vikram Deo Singh, learned counsel for the appellant and Mr. Satya Narayan Prasad, learned A.P.P. for the State. 2. The appeal is directed against the judgment and order dated 9th March, 1999 passed in Special Trial No. 528 of 1998 by the learned 1st Additional Sessions Judge-cum-Special Judge, Purnea, by which the appellants have been held guilty for the offence punishable under Sections 323 and 341 of the Indian Penal Code as well as Section 3(i) (xiv) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, (hereinafter referred to as “the Act”). The trial court has sentenced the appellants to undergo R.I. for 2 years under Section 3(i) (xiv) of the Act, R.I. for 6 months under Section 323 of the Indian Penal Code and S.I. for one month under Section 341 of the Indian Penal Code. 3. The prosecution story in short, inter alia, is that P.W.-5 Chaitu Ram, went to offer puja on 11.8.1992 to Ram Janaki Thakurbari of his village-Ragiganj, P.S.-Sadar, District-Purnea. He, first of all, went to the well situated within the premises of the Ram Janaki Thakurbari for washing and cleaning his hands and feet. While, he was fetching water from well, appellant no. 1, who was not a member of the scheduled caste and scheduled tribe came there and insulted the informant by calling his caste name as „Chamar?. He told that he had made the well impure and snatched away the bucket from his hands. He also assaulted the informant by fist and slap repeatedly. The informant requested him to allow him to offer puja, but, both the appellants obstructed him and in the scuffle, the “puja thali” of the informant fell down on the ground. 4. The alleged occurrence is said to have taken place on 11.8.1992. The informant claims that he told about the occurrence to the co-villagers, who called for a meeting but, the appellants did not turn up. The meeting was adjourned for few days. Again, a meeting was called by the co-villagers but, the appellants did not turn up. 4. The alleged occurrence is said to have taken place on 11.8.1992. The informant claims that he told about the occurrence to the co-villagers, who called for a meeting but, the appellants did not turn up. The meeting was adjourned for few days. Again, a meeting was called by the co-villagers but, the appellants did not turn up. Ultimately, the informant went to the police station and made his oral statement which was recorded by A.S.I., Syed Shamim Ahmed on 23.8.1992 at 2 p.m., pursuant to which, Sadar P.S. Case No. 284 of 1992 was registered under Section 341 and 323 of the Indian Penal Code as well as Section 3 & 4 of the Act. One Shiv Shankar Prasad was made the investigating officer of the case. The police conducted the investigation and submitted charge sheet in the case. The court below took cognizance of the offence. Charges were framed, to which the appellants did not plead guilty and claimed to be tried. 5. In course of trial, altogether 9 witnesses have been examined. P.W. 5 Chaitu Ram is the informant of the case. P.W. 4 Birendra Kumar Paswan has been tendered even without being examined in examination-in-chief by the prosecution. P.W. 3 Satya Narayan Mandal, who is witnessed to the F.I.R., has not witnessed the incident of occurrence. He claims himself to be a witness to the panchayati, which took place subsequently. However, he is a hearsay witness on the point of occurrence too. P.W. 9 Ramphal Marandi, has proved the fardbeyan and the formal F.I.R. P.W. 2 Anandi Sah is also a witness to the F.I.R. P.W.1 Niranjan Prasad Sah, P.W. 6 Biren Kumar Sah @ Birendra Kumar Sah, P.W. 7 Gurudyal Rishi and P.W. 8 Narayan Yadav claim themselves either to be the witness to the occurrence or as person who reached at the place of occurrence immediately after the occurrence. 6. I have heard learned counsels appearing on behalf of the appellants and the State and with their assistance perused the evidence on record. I find that in the present case the alleged occurrence is said to have taken place on 11.8.1992. The matter was reported to the police after 12 days on 23.8.1992. There is no reasonable explanation for the undue delay in the institution of the F.I.R. An attempt has been made by the informant to explain the delay. I find that in the present case the alleged occurrence is said to have taken place on 11.8.1992. The matter was reported to the police after 12 days on 23.8.1992. There is no reasonable explanation for the undue delay in the institution of the F.I.R. An attempt has been made by the informant to explain the delay. In his deposition, he states that on the date of occurrence itself, in the evening, a panchayati took place at the door of one Ram Narayan Mandal. The appellant did not turn up in the panchayati. Subsequently, again, a panchayati was convened after 3-4 days of the occurrence, in which too, the appellant did not turn up. Thereafter, the persons present in the meeting/panchayati expressed their inability to resolve the dispute amicably and told the informant to take appropriate steps in this regard. In cross-examination, the informant reduces the period of second meeting/panchayati from 3-4 days to 2 days. Thus, what transpires is that initially an attempt was made to resolve the issue through panchayati. However, admittedly such effort failed within two days of the occurrence, meaning thereby, that on 13.8.1992, it was clear to the informant that the matter cannot be resolved through panchayati. There is absolutely no explanation as to why the matter was not reported to the police for about ten days, thereafter. The undue delay in the institution of the F.I.R. creates serious doubt about the veracity of the prosecution case. The Apex Court, in the case of Kishan Singh vs. Gurpal Singh, since reported in (2010) 8 SCC 775 in para 21 and 22 held as under:- “21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant’s case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. 22. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. 22. In cases where there is a delay in lodging an FIR, the court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the civil court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and prosecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case.” 7. I further find from the evidence on record that the independent witnesses named in the F.I.R., such as, Sitaram Paswan, Ram Narayan Mandal, Dhirendra Prasad & Rajendra Prasad Sah have not been examined by the prosecution in course of trial. There is no reasonable explanation for their non-examination by the prosecution in trial. 8. I further find that neither the police officer, who recorded the fardbeyan nor the investigating officer, who conducted the investigation of the case, has been examined by the prosecution in course of trial. There is no explanation, whatsoever, for their non-examination. The attention of the witnesses examined on behalf of the prosecution has been drawn towards their previous statements made before the police. The non-examination of the investigating officer has certainly prejudiced the defence, as the defence could not take out the contradiction in absence of the investigating officer being examined in court. 9. I further notice that the informant has categorically stated in cross-examination that when the incident of occurrence took place, none, except him and the appellants were present at the place of occurrence. 9. I further notice that the informant has categorically stated in cross-examination that when the incident of occurrence took place, none, except him and the appellants were present at the place of occurrence. Thus, the informant himself rules out the possibility of any other witness being present at the place of occurrence when the occurrence took place. Under such circumstance, when several other witnesses come forward before the court in course of trial and depose that they were present when the occurrence took place their presence become doubtful. 10. Another interesting aspect in this case is that in the F.I.R., the time of occurrence is not mentioned. The informant while being examined in court states that the occurrence took place on 11.8.1992 about 8 a.m., whereas, the other witnesses who claim to have reached at the place of occurrence and witnessed the occurrence state that the occurrence took place at 7 a.m. on 23.8.1992. The witnesses are also not consistent on the point of participation of the persons in the panchayati. P.W.-1 Niranjan Prasad Sah states that in the panchayati which subsequently took place after few days, the local M.L.A. was present. The other witnesses have not even whispered that the local M.L.A. was also present in the panchayati. A suggestion has been given to all the witnesses examined on behalf of the prosecution, who claim to be eye-witnesses to the occurrence that the appellants were falsely implicated at the instance of one Badri Sah, a co-villager with whom they were on inimical terms. The witnesses have denied the suggestion. 11. From the discussions made and the reasons assigned, hereinabove, the impugned judgment and order passed by the trial court cannot be sustained as the prosecution has failed to prove its case beyond reasonable doubt. In the result, I set aside the impugned judgment and order dated 9th March, 1999 passed in Special Trial No. 528 of 1998 by the learned 1st Additional Sessions Judge-cum-Special Judge, Purnea, and acquit the appellants of the charges framed against them. The appellants, who are already on bail are discharged from the liabilities of their bail bonds.