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2013 DIGILAW 1185 (JHR)

Faguwa Oraon v. State of Bihar (New Jharkhand)

2013-10-28

H.C.MISHRA

body2013
JUDGMENT H.C. Mishra. J. - Heard learned counsel for the petitioners and learned counsel for the State. 2. The petitioners are aggrieved by the Judgment dated 29.1.2000 passed by the learned 1st Addl. Sessions Judge, Gumla, in Criminal Appeal No.8 of 1995, whereby the appeal filed against the Judgment of conviction and Order of sentence dated 24.1.1995, passed by Sri S.B. Ram, learned Judicial Magistrate, 1st Class, Gumla, in C.R No. 373 of 1990/T.R. No.145 of 1995, convicting and sentencing the petitioners has been dismissed by the learned Appellate Court below. It may be stated that the petitioner No.3 Ghansia Oraon @ Gharia Oraon has been found guilty for the offences under Sections 324, 148 and 448 of the Indian Penal Code, and upon hearing on the point of sentence, he has been sentenced to undergo simple imprisonment for six months for the offence under Section 324 of the Indian Penal Code, simple imprisonment for two months for the offence under Section 148 of the Indian Penal Code and simple imprisonment for one month for the offence under Section 448 of the Indian Penal Code, whereas, rest of the petitioners have been found guilty and convicted for the offences under Sections 323, 147 and 448 of the Indian Penal Code, and they have been sentenced to undergo simple imprisonment for three months for the offence under Section 323 of the Indian Penal Code, simple imprisonment for two months for the offence under Section 147 of the Indian Penal Code and simple imprisonment for one month for the offence under Section 448 of the Indian Penal Code each, and all the sentences have been directed to run concurrently. The appeal filed against the said Judgment of conviction and Order of sentence has been dismissed by the learned Appellate Court below. Hence this revision application. 3. According to the prosecution case, it is alleged that on 5.6.1990, the petitioners and one Jhatru Oraon, forming unlawful assembly and variously armed, came to the house of the informant and dragged the informant from the door of his house and assaulted him. When the daughter of the informant came to his rescue, she was also assaulted by sharp cutting weapon by Ghansia Oraon @ Gharia Oraon, causing injuries on her. Upon alarm raised, Kapil Singh, Bajo Singh and other villagers came to their rescue, whereupon the accused persons fled away. When the daughter of the informant came to his rescue, she was also assaulted by sharp cutting weapon by Ghansia Oraon @ Gharia Oraon, causing injuries on her. Upon alarm raised, Kapil Singh, Bajo Singh and other villagers came to their rescue, whereupon the accused persons fled away. It is alleged that the occurrence had taken place due to previous enmity. The prosecution case was instituted on the basis of the written information given by the informant Taju Singh, on the basis of which, police case was instituted and investigation was taken up. After investigation, the police submitted the chargesheet against the petitioners, on the basis of which, cognizance was taken against them and ultimately, the petitioners were put to trial. 4. In course of trial, the prosecution has examined seven witnesses, including the informant and his daughter, who were examined as PW 2 and PW 1 respectively. Both these witnesses have supported the prosecution case, but they have stated that they were inside the house, when the petitioners entered the house and assaulted them. The informant PW 2 has also proved the written information submitted by him, which was marked as Ext-1 and he has also stated that occurrence had taken place due to previous enmity. PW 3 and PW 4 are the Doctors, who had examined the injuries of the informant and his daughter and their injury reports were proved as Ext2 Series. PW 5 Puneshwar Prasad is a formal witness, who has proved the formal FIR as Ext-3. PW 6 Kapil Singh, who is said to have gone to the place of occurrence on the alarm raised by the informant, has not supported the prosecution case and he has turned hostile. Similarly, PW 7 Vijay Nath Singh has only been tendered by the prosecution. The Investigating Officer of the case has not been examined, and even the wife of the informant, who was named as witness in the charge-sheet, was not examined in the case. On the basis of the evidence on record, the Court below has found the petitioners guilty, and convicted and sentenced them as aforesaid and the appeal filed against the said Judgment of conviction and Order of sentence was also dismissed by the Appellate Court below. 5. On the basis of the evidence on record, the Court below has found the petitioners guilty, and convicted and sentenced them as aforesaid and the appeal filed against the said Judgment of conviction and Order of sentence was also dismissed by the Appellate Court below. 5. Learned counsel for the petitioners has submitted that the impugned Judgments passed by the Courts below are absolutely illegal, inasmuch as, the independent witnesses have not been examined in the case and the enmity between the parties is admitted in the FIR itself. It has further been submitted that the investigating Officer of the case has not been examined, which has caused serious prejudice to the defense, and in the facts and circumstances of this case, the prosecution has not been able to prove the charge against the petitioners beyond all reasonable doubts. As such, it was not proper for the Courts below to have convicted and sentenced the petitioners only on the basis of the evidence of the interested witnesses; i.e., the informant and his daughter particularly, when no independent witness has supported the case and even the wife of the informant has not been examined in the case. Learned counsel has accordingly, submitted that the impugned Judgments passed by the Courts below cannot be sustained in the eyes of law. 6. Learned counsel for the State, on the other hand, has submitted that there is no illegality in the Judgments passed by the Courts below, inasmuch as, the injured witnesses have fully supported the case and the injuries on both the injureds have been proved by the Doctors, PW 3 and PW 4. Learned counsel has accordingly, submitted that there is no illegality and/or irregularity in the impugned Judgments passed by the Courts below, worth interference in the revisional jurisdiction. 7. After having heard learned counsels for both the sides and upon going through the record, I find that in the FIR there is clear allegation against these petitioners to have dragged the informant from the door of his house and to have assaulted him and when his daughter came to his rescue. she was also assaulted. 7. After having heard learned counsels for both the sides and upon going through the record, I find that in the FIR there is clear allegation against these petitioners to have dragged the informant from the door of his house and to have assaulted him and when his daughter came to his rescue. she was also assaulted. This clearly shows that there is no allegation against these petitioners to have entered the house of the informant, and to have assaulted him, but both the witnesses, PW 1 Budhani Kumari and PW 2 Taju Singh have stated that the petitioners entered the house and they assaulted them. Thus, there is a material improvement in the prosecution story. In my considered view, the examination of the Investigating Officer was necessary in the case for proving the place of occurrence, which has not been done and this has caused serious prejudice to the defense, as on the basis of allegation made in the FIR. no offence is made out against these petitioners under Section 448 of the Indian Penal Code, as according to the prosecution case, the informant was dragged from his door only and the petitioners had not committed any criminal trespass in the house of the informant, but in their evidence, PW 1 and PW 2, who are the informant and the informant's daughter, made material improvement in the prosecution story stating that the petitioners entered into the house and committed the offence. Similarly, I find that there is allegation in the FIR that the petitioners along with one Jhatru Oraon had gone to the house of the informant and had committed the offence there, but none of the witnesses have stated about the presence of Jhatru Oraon and said Jhatru Oraon has been acquitted by the trial Court. Thus, only four persons remained, who allegedly committed the offence, and accordingly, there could neither be any unlawful assembly, nor the offence of rioting is made out against the petitioners. Accordingly, the conviction and sentence of the petitioners for the offence under Sections 147 and 148 of the Indian Penal Code also, cannot be sustained in the eyes of law. 8. Accordingly, the conviction and sentence of the petitioners for the offence under Sections 147 and 148 of the Indian Penal Code also, cannot be sustained in the eyes of law. 8. In the facts and circumstances of this case, I find that material improvements in the prosecution case have been made by both the witnesses, namely, PW 1 Budhani Kumari and PW 2 Taju Singh, and in absence of the corroboration of their evidence by any independent witnesses, as also in view of the admitted enmity between the parties, it was not safe for both the Courts below to place reliance solely on their evidence for convicting and sentencing the petitioners. In my considered view, even though PW 1 Budhani Kumari and PW 2 Taju Singh have supported the prosecution case, but the prosecution failed to prove the charge against the petitioners beyond all reasonable doubts, and in the facts of this case, the petitioners were entitled at least to the benefit of doubt. As such, the impugned Judgments passed by both the Courts below cannot be sustained in the eyes of law. 9. Accordingly, the impugned Judgment dated 24.1.1995, passed by Sri S.B. Ram, learned Judicial Magistrate 1st Class, Gumla, in G.R No. 373 of 1990/T.R No. 145 of 1995, as also the Judgment dated 29.1.2000 passed by the learned 1st Addl. Sessions Judge, Gumla, in Criminal Appeal No. 8 of 1995, are hereby set aside. The petitioners are given the benefit of doubt and they are acquitted of the charge. The petitioners are on bail and they are also discharged from the liabilities of their respective bail bonds. 10. This criminal revision application is accordingly, allowed. Let the Lower Court Records be sent back forthwith. Application allowed.