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2014 DIGILAW 317 (PAT)

Arjun Rajak v. State of Bihar

2014-03-06

DHARNIDHAR JHA

body2014
JUDGMENT : Dharnidhar Jha, J. None appears today also on behalf of the appellants. The Court has requested Sri Neeraj Kumar Sanidh who is present in Court room to assist it as amicus curiae. 2. The present appeal arises out of the judgment of conviction dated 14.8.2000 by which the learned 1st Additional Sessions Judge, Munger held the present appellant, Arjun Rajak as also Jagdish Rajak, Dularchandra Rajak, Sahadeo Rajak and Dilip Rajak guilty of committing offence under Section 323 of the Indian Penal Code. It may be pertinent to note that the present appellant along with the above named four others had been put on trial by the learned Judge by being charged with commission of offences under Sections 307/149, 448, 323 of the Indian Penal Code. The appellant and other accused persons were acquitted of all the charges except that of under Section 323 of the Indian Penal Code. After hearing the convicted persons under Section 235 of the Code of Criminal Procedure the learned Judge directed each of them to execute a bond of being good conduct in the sum of Rs. 5,000/- with two sureties of the like amount each for a period of one year or else to appear to receive sentence if they were found wanting on good conduct and behaviour as well. 3. Except the present appellant Arjun Rajak, the other four convicts did not prefer any appeal. As such, a preliminary objection was agitated by the learned amicus curiae as to whether this Court should also examine the vires of the judgment in absence of an appeal filed by convicts other than the present appellant. I propose to answer the issue at the right place. 4. First the facts. On a dispute for flowing drain water, the parties, who were close neighbours, had a fight and it appears from the allegation that the five convicts, armed with lathi, entered inside the aangan of informant, PW 7 not only to assault him but also to assault his other family members like Subodh Rajak (PW 7) and his daughter Savitri Devi (PW 9) and Lalita Kumari (PW 8). 5. It was a one line F.I.R. lodged at the police station to the above effect upon which the investigation was taken up and it ultimately resulted in submission of the charge-sheet which lastly resulted in the impugned judgment. 5. It was a one line F.I.R. lodged at the police station to the above effect upon which the investigation was taken up and it ultimately resulted in submission of the charge-sheet which lastly resulted in the impugned judgment. The acquittal of the accused persons under Sections 307 and 448 of the Indian Penal Code was on account of the fact that neither the doctor was examined nor the medical report was produced nor the Investigating Officer was produced for his evidence. 6. What was contended by the learned amicus curiae was that there was a consistency in the evidence of nine witnesses examined by the prosecution that the accused persons came into the aangan of the informant PW 7 and wielded their lathis to inflict blows to the informant and his family members, but what was submitted in that context was that the witnesses have admitted that the accused persons had also filed a case and as may appear from the evidence of Radha Kumari or others they had also been admitted into the hospital for the examination and treatment of their injuries. Submission was that specific and direct questions were put to the witnesses as to had they assaulted the accused persons and they denied to have done so and, thus, they appeared making false statements on one of the most important aspects of the case. 7. The learned Additional Public Prosecutor has also raised a preliminary objection regarding maintainability of such appeals in which the terms of imprisonment inflicted upon, as a matter of fact, is within the limit or up to the limit as laid down by Section 376 of the Code of Criminal Procedure. 8. I want firstly to point out that Section 374 of the Code of Criminal Procedure creates a right in a person convicted of an offence to appeal against his conviction. In case the trial held by the Sessions Judge or even by the Additional Sessions Judge, the appeal has to be filed before the High Court except if the trial has been held by the Assistant Sessions Judge and a sentence of imprisonment not exceeding seven years have been passed upon the convict, in which case the appeal has to be presented before the Court of Sessions. But, at any rate, what appears from the provisions of Section 374 of the Code of Criminal Procedure is that a right of appeal automatically accrues to a convicted person merely on account of being convicted of committing an offence. The sentencing jurisdiction of a Court and thereby baring the presentation of appeals, as appears from the provisions of Section 376 of the Code of Criminal Procedure, might be there, but even in that ease an appeal could be filed to challenge the conviction in spite of the period of sentence which could act as a bar in maintaining an appeal. As per the provisions of Section 376 of the Code of Criminal Procedure, it may again be challenged on the ground of severity. Thus, even if there is a bar in the Code of Criminal Procedure limiting the right to appeal as in view of the period of sentence passed upon a convict as per the provision of Section 376 of the Code of Criminal Procedure, the convict has a light to appeal against the conviction and he very well may also question the severity of the sentences passed upon him. This is the view of the Court and this view of mine appears in consonance with the provisions of the Code of Criminal Procedure in Chapter XXIX. In addition to the above, what also has to be considered in the case where a trial Court has not inflicted any substantive sentence of imprisonment or of fine and has chosen to release the convict in the light of the provisions of the Probation of Offenders Act that the special provisions of the Probation of Offenders Act has to prevail. This appears very clear from two provisions of the Code of Criminal Procedure, that is, Sections 4 and 5. Section 4 of the Code of Criminal Procedure reads as under : "4. Trial of offences under the Indian Penal Code and other laws.-(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." 9. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." 9. As may appear from sub-section (1), all offences under the Indian Penal Code have to be tried, investigated into and otherwise dealt with as per the provisions of the Code of Criminal Procedure, but if there is any other law which prescribes certain penalty after defining certain offences in addition to the Indian Penal Code then those offences may also be tried and investigated into and may also be dealt with as per the Code of Criminal Procedure, but if there is a separate provision for inquiring into or trial of such offence then that special provisions under that special Act has to be followed. This becomes more clear when one considers the provisions of Section 5 of the Code of Criminal Procedure which reads as under: "5. Saving.-Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." 10. It may appear from reading of the two provisions, i.e., Sections 4 and 5 of the Code of Criminal Procedure, that if there is a special Act creating some special provisions or special form of procedure, conferring some special powers or jurisdiction, which may appear contrary to the Code of Criminal Procedure, then that special form or procedure laid down in that special law has to be followed and the provisions of the Code of Criminal Procedure could not be attracted. If one could have considered the provisions of Probation of Offenders Act, one may conclude that that Act being a special law having its special aim and objects so as to deal with some special class of offenders who are being convicted after trial, the provisions of the Probation of Offenders Act, so far it is in conflict with those of the Code of Criminal Procedure shall have overriding effect over the provisions of the Code of Criminal Procedure. This is the reason that even if the Code of Criminal" Procedure could have created a bar as was pointed out by the learned Additional Public Prosecutor in maintaining the present appeal, it was very much maintainable by virtue of Section 11 of the Probation of Offenders Act. I may point out again that procedures are always the hand-maid of justice; they are never road blocks and if there appears to be a road block, then in that case the Court must shut it out and define its own procedure so as to doing complete justice between the parties. There might be many situations where we may not find any particular provision specifying as to how to deal with that particular situation. Here could be the role for a Court and a Judge to imagine" his procedure so as to impart justice fully, completely and fairly. These are the reasons which take care of the submissions on the maintainability of the present appeal. 11. As regards the issue raised by Sri Neeraj Kumar Sanidh, learned amicus curiae appearing on behalf of the appellant regarding non-filing of the appeal by four convicts other than the present appellant, the Court was to refer to Section 380 of the Code of Criminal Procedure which creates a special right to appeal to persons convicted in a trial and what may appear from consideration of that provision is that it is a very special provision which was probably designed only to answer situations which has presently appeared in the present appeal. Being convicted is a great stigma for any person. In a civilized society like ours, where the rule of law is the crux of the whole framework of administration of justice, the Legislature appears to have visualized that even if some persons or any person who had been convicted in a joint trial, have chosen not to prefer an appeal, the stigma may not be allowed to remain indelibly attached to such a convicted person and endeavour must be made to erase the stigma if need be. This is the provision which definitely creates a representative right into another accused who was tried and convicted simultaneously with the other who might not have preferred an appeal, to challenge the very merit of the judgment of conviction. What I want to point out is that the provision creates some sort of right to file representative. This is the provision which definitely creates a representative right into another accused who was tried and convicted simultaneously with the other who might not have preferred an appeal, to challenge the very merit of the judgment of conviction. What I want to point out is that the provision creates some sort of right to file representative. litigation in one of the many convicted persons to represent the interest of all convicted persons to challenge the judgment of conviction which need appears felt by the Legislature to entitle any of the persons convicted, if all such convicted persons are not filing an appeal, to challenge the conviction by preferring the appeal and if the appeal has to be heard, then it has to be heard as if the whole judgment against all the convicted persons is being challenged. It is a very important provision in the Code of Criminal Procedure and the Courts have to value it as the approach is really democratic. 12. Now coming to the merits of the appeal it appears that as many as nine persons came forward to support the prosecution story that five accused persons armed with lathi trespassed into the courtyard of the informant to deal blows not only to him, but also to his family members which included as many as four ladies of the house. The oral evidence indicates that they were bearing injuries on account of the same being inflicted by the convicted persons. I have in my mind Section 39 of the Indian Penal Code which defines the word "voluntarily" as an effect caused intentionally by using a means or causing such effect by any means with knowledge that the means used shall cause the effect. What I discern after considering the definition of word "voluntarily" is that the word "means" denotes' the weapon with which they had come to assault and the effect connotes the resultant injury. Thus, the injury or use of a weapon which appears from the language of the Section, even if available may not be sufficient to brand the act as voluntary unless the necessary intent to cause the effect by employment of the means is established from the evidence adduced by the prosecution. Thus, the injury or use of a weapon which appears from the language of the Section, even if available may not be sufficient to brand the act as voluntary unless the necessary intent to cause the effect by employment of the means is established from the evidence adduced by the prosecution. This is the reason that I hold the view that when the prosecution is consistently putting up a story of using a particular weapon for assaulting someone, then the prosecution is under some obligation to produce the supporting medical evidence. I am very much alive to some of the legal pronouncements that in a case under Section 323 of the Indian Penal Code, production of the medical evidence was not the sine qua non, but I have also a strong belief in the principle that if the act is voluntary, it has to be shown in the manner as required by Section 39 of the Indian Penal Code. What I mean to note is that the effect (i.e., injury) caused by the employment of the means (i.e., by a particular weapon) has to be shown by evidence really has to be shown to justify the conviction. As such, in absence of the medical evidence even in a case of Section 323 of the Indian Penal Code, if the case indicated that the injured had been examined by the medical man, I have to be very-very slow in upholding the conviction of a person under Section 323 of the Indian Penal Code. This is one aspect of the case which I have considered as deeply as it was required to be considered. 13. The other aspect was that the witnesses themselves admitted that the accused persons were also injured. It was not an unqualified admission, it appears impliedly admitted by them as some of the witnesses stated that the accused persons were also admitted into the hospital simultaneously while they had also been admitted there. Witnesses also stated that they also lodged a case almost simultaneously as they had done. It was not an unqualified admission, it appears impliedly admitted by them as some of the witnesses stated that the accused persons were also admitted into the hospital simultaneously while they had also been admitted there. Witnesses also stated that they also lodged a case almost simultaneously as they had done. They have, of course, denied or not admitted that the accused persons had been assaulted either by them or by anyone in the course of the same transaction, but is not it the principles of criminal jurisprudence that if five facts were pleaded by the defence out of which four had been found patently false and if the fifth fact has been probabilzed partially, then the accused gets acquitted on account of benefit of doubt. One may refer to Vivekanand Mishra v. State of Bihar, 2008 (2) East Cr C 449 (Pat) : 2008 (2) PLJR 764 in this behalf which deals with ample detail and clarify the meaning of proof beyond reasonable doubt and the success of the defence on tilt of probability towards its story or plea. Going by the principle, I find myself unable to uphold the conviction of the appellant. 14. I hold that the judgment impugned was fit to be sustained on facts of the case and the benefit of doubt may be given to the appellant. The benefit of the present finding must also accrue to the other convicts and, accordingly, they are also acquitted with the present appellant. 15. In the result, the appeal is allowed. The judgment of conviction and the order of sentence passed against appellant, namely, Arjun Rajak is hereby set aside. The appellant is on bail. He shall stand discharged from the liability of his bail bond. 16. The Court appreciates the assistance rendered by Sri Neeraj Kumar Sanidh, learned amicus curiae and desires that he be paid, one fee for arguing the appeal by the High Court Legal Services Committee for which purpose let the copy of the first and last pages of the judgment be made available to Sri Neeraj Kumar Sanidh. Appeal allowed.