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2015 DIGILAW 1119 (JHR)

State of Jharkhand v. Rajendra Lohar

2015-09-16

RAVI NATH VERMA

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JUDGMENT : The appellant has questioned the legality of the judgment of acquittal dated 9th June, 2003 passed by Sub Divisional Judicial Magistrate, Gumla in G.R. Case No.784 of 1995 corresponding to T.R. No.137 of 2003 whereby and whereunder the present respondent nos.14, have been acquitted of the charges under Sections 379, 325, 147/34 of the Indian Penal Code. 2. At the instance of the informantFedrik Tirkey, Gumla P.S. Case No.218 of 1995 was instituted under Sections 147, 148, 149, 307, 325, 379 of the Indian Penal Code on the allegation that on 08.08.1995 at 3.00 p.m. while the informant was doing plantation of paddy alongwith his labour on his land pertaining to Khata No.47, Plot No.167,168,169 and 172 which he had purchased from other cosharer of the respondentaccused, in order to disturb the possession and grab the land, the respondents variously armed with Lathi, Balua came and surrounded the informant and assaulted him with Lathi on his head and on other parts of the body. Whereafter he fell down and became unconscious and when he regained his conscious, he found Rs.2000/, which he had kept in his pocket to pay wages of labour and his wrist watch, missing. 3. After due investigation, the police submitted the chargesheet in the aforesaid Sections. Thereafter the case was committed to the court of Sessions but the Sessions court finding no evidence under Section 307 of the Indian Penal Code, returned the file to the court of Chief Judicial Magistrate, Gumla for trial. Accordingly, the court concerned framed the charge against the accused persons under Sections 379, 325 and 147/34 I.P.C. 4. In order to prove the charges, the prosecution examined altogether four witnesses. Of them, P.W.1 is Fedrik Tirkey, Dr. Thomas J. Minj as P.W.2., Jairam Oraon as P.W.3, and Sitaram Oraon as P.W.4. The defence has also examined one of the witnessBalmiki Devi @ Jhario Devi and documentary evidences were also produced in court. The court below after examining the evidences available on record and hearing the parties, acquitted the accused persons from the charges levelled against them. Hence, this acquittal appeal. 5. The defence has also examined one of the witnessBalmiki Devi @ Jhario Devi and documentary evidences were also produced in court. The court below after examining the evidences available on record and hearing the parties, acquitted the accused persons from the charges levelled against them. Hence, this acquittal appeal. 5. Learned counsel representing the State while assailing the finding recorded by the court below as perverse and bad in law, seriously contended that the court below has failed to appreciate the evidence of witnesses in right perspective and even though the medical evidence fully corroborates the allegation, the court below acquitted all the accused persons. It was also submitted that there was a case and counter case and merely relying upon the judgment of the counter case in which this informant has been convicted, the court below found the entire allegation as false. Learned counsel relying upon Section 378 of the Code of Criminal Procedure in which this appeal has been preferred, submitted that this court has every power to reappreciate, review and reconsider the evidences available on record on which the order of acquittal is founded. Hence, the judgment of acquittal passed by the court below is fit to be set aside. 6. It appears from the record that by order dated 17.02.2004, notices were issued to the respondents but they refused to receive the notice and so the notices were treated as validly served on respondent nos.14. At the time of hearing of this appeal, nobody appeared on behalf of respondents. 7. After hearing the submissions of the learned State counsel, I have gone through the entire judgment and I find that the court below has rightly appreciated each and every evidence available on record. First of all, I would like to examine the evidences available on record relating to offence under Section 379 of the Indian Penal Code. P.W.1 the informant has testified that when he regained consciousness, Jairam Oraon (P.W.3) informed him that the accused persons have taken away Rs.2000/and his wrist watch but the said Jairam Oraon(P.W.3) in his entire evidence has nowhere even whispered about the fact that he had given any information as regard to the theft of Rs.2000/and wrist watch to this informant. Similarly, on the evidence relating to assault of P.W.1, the injury alleged has not been fully corroborated by the medical evidence. Similarly, on the evidence relating to assault of P.W.1, the injury alleged has not been fully corroborated by the medical evidence. The doctor (P.W.2) in his evidence has stated that all the injuries were simple except injury no.5 which was grievous in nature, but the said report of the doctor was given on the basis of the clinical examination of the informant. The finding of P.W.5 regarding grievous injury is not based on any radiological evidence. Even no XRay was done. So, there is absolutely no evidence on record to show that there was actually a fracture in the proximal end of finger of the informant. 8. So far as as the submission of learned counsel for the State relating to power of this Court is concerned, undoubtedly the legislature has given every power of reappreciating of evidences to this Court but in a case of acquittal, there is always a double presumption in favour of the accused. Firstly, the presumption of innocence under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court. Secondly, having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced and strengthened by the trial court. 9. In view of the above discussion, I do not find any force in the submissions of the learned counsel representing the State. After examining the evidences, I am also constrained to hold that there is no merit in this acquittal appeal. 10. Resultantly, this acquittal appeal is, hereby, dismissed.