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2016 DIGILAW 1574 (JHR)

Pawan Kumar Srivastava v. State of Jharkhand

2016-11-22

RONGON MUKHOPADHYAY

body2016
JUDGMENT : Heard Mr. Rahul Kumar, learned counsel appearing for the petitioner and Mrs. Sadhna Kumar, learned APP appearing for the State. 2. This application is directed against the judgment of conviction and the order of sentence dated 31.01.2007 passed by the learned Judicial Magistrate, 1st Class, Dhanbad in G.R. No. 1348 of 2002 arising out of Baghmara (Sonardih) P.S. Case No. 103 of 2002, whereby the petitioner has been convicted for the offences punishable u/s 147/353/323/341/504 I.P.C. and has been sentenced to undergo imprisonment for 10 months for the offence u/s 147 IPC, simple imprisonment for 15 days for the offence u/s 341 I.P.C., simple imprisonment for five months u/s 323 I.P.C., rigorous imprisonment for ten months u/s 353 I.P.C. and ten months rigorous imprisonment u/s 504 I.P.C. All the sentences were to run concurrently. A further challenge has been made to the judgment dated 27.01.2015 passed in Criminal Appeal No. 40 of 2007 by learned Sessions Judge, Dhanbad by which the judgment of conviction and the order of sentence passed by the learned trial court was affirmed. 3. The prosecution story reveals that on 07.06.2002 when the informant was working at the gallery of non coking coal, the accused Gaur Chand Bouri along with 40-50 persons came and started abusing him. On being protested by the informant, Gaur Chand Bouri had asked him as to why attendance of two pump khalasi had been stopped which was duly replied by the informant. On hearing such reply, Gaur Chand Bouri and the persons accompanying him including the petitioner started abusing and assaulting the informant which was witnessed by one Sobhajit Singh and Muni Nath Singh. The informant, trying to save himself, had left with the project officer to the Police Station, where Gaur Chand Bouri reached subsequently and the informant was slapped which caused him injury. Based on the aforesaid information, Baghmara (Sonardih) P.S. Case No. 103 of 2002 was registered. After investigation charge-sheet was submitted u/s 147, 341, 323, 353 and 504 I.P.C. pursuant to which cognizance was taken and the substance of accusation was u/s 147, 341, 323, 353 and 504 I.P.C. was explained to the petitioner and one Gaur Chand Bouri, who faced trial. 4. After conclusion of the trial, the learned Judicial Magistrate, 1st Class, Dhanbad had convicted the petitioner for the offences punishable u/s 147/353/323/341/504 I.P.C. and sentenced him accordingly. 4. After conclusion of the trial, the learned Judicial Magistrate, 1st Class, Dhanbad had convicted the petitioner for the offences punishable u/s 147/353/323/341/504 I.P.C. and sentenced him accordingly. The judgment passed by the learned trial court was subsequently affirmed by the learned appellate court by judgment dated 27.01.2015. 5. Mr. Rahul Kumar, learned counsel for the petitioner has submitted that Gaur Chand Bouri is the main assailant and so far as the petitioner is concerned he was never a member of the unlawful assembly as no specific role has been assigned to the petitioner. Learned counsel further submits that in absence of any common object, the learned trial court could not have convicted the petitioner and which also could not have been affirmed by the learned appellate court. Learned counsel further submits that eye witness Muni Nath Singh (PW 1) and Surendrajot Singh Mahli (PW 4) had concentrated their evidence only with respect to the role played by Gaur Chand Bouri and has clearly excluded the petitioner from either of being a member of unlawful assembly or of having a common object in disrupting the official work or of committing assault upon the informant. Learned counsel further submits that the learned trial court as well as the learned appellate court had completely misdirected themselves as no finding has been given with respect to the common object or with respect to the exact role played by the petitioner and in fact it has juxtaposed the role of Gaur Chand Bouri while convicting the petitioner only u/s 147/323/341/504 I.P.C. and dismissing the appeal. Learned counsel therefore submits that since no material had been collected during investigating or during trial which could prove the culpability of the petitioner, this revision application deserves to be allowed. 6. Mrs. Sadhna Kumar, learned APP has supported the impugned order and has submitted that with respect to stoppage of attendance of two pump Khalasi, the petitioner and Gaur Chand Bouri, by forming an unlawful assembly, abused and assaulted the informant. 6. Mrs. Sadhna Kumar, learned APP has supported the impugned order and has submitted that with respect to stoppage of attendance of two pump Khalasi, the petitioner and Gaur Chand Bouri, by forming an unlawful assembly, abused and assaulted the informant. Learned counsel has also referred Section 149 of the Indian Penal Code and has submitted that since persons including the petitioner had assembled, it can be deduced that there was a common object even if the petitioner had not actively participated and therefore the petitioner has rightly been convicted by the learned trial court for the offences punishable u/s 147/353/323/341/504 I.P.C., which has been affirmed by the learned appellate court. 7. After hearing the learned counsel for the parties, it appears that the F.I.R. had specified the name of the petitioner as being a part of the assembly which had gathered under the leadership of Gaur Chand Bouri for asking the informant as to why attendance of two pump Khalasi had been stopped. The prosecution in course of trial examined four witness although six witnesses had been arrayed in the charge-sheet. PW 1 Muni Nath Singh, PW 2 Ashit Kumar Pandey and PW 4 Surendrajot Singh Mahli all are said to be witnesses to the occurrence and PW 4 is a Doctor who had examined the informant (PW 2). PW 1 Muni Nath Singh has merely stated about the presence of the petitioner along with Gaur Chand Bouri and 40-50 persons and subsequently there was a exchange of hot words which subsequently resulted into assault by Gaur Chand Bouri to the informant. PW 2 has supported what has been stated in the F.I.R. PW 4 Surendrajot Singh Mahli had stated about the informant which he had received from Ashit Kumar Pandey (PW 2) with respect to assemblage of 30-40 persons in the colliery. This witness had further stated about the assault committed by Gaur Chand Bouri upon the informant. PW 3 is Dr. Pramod Kumar Das had examined the informant and found swelling and readness over eyelids and inferior orbital margin of right eye and Tenderness over bridge of the nose. He further opined that aforesaid injury could result when falling down to the ground. 8. PW 3 is Dr. Pramod Kumar Das had examined the informant and found swelling and readness over eyelids and inferior orbital margin of right eye and Tenderness over bridge of the nose. He further opined that aforesaid injury could result when falling down to the ground. 8. Thus the evidence of the eye witness PW 1, 2 and 4 would suggest that several persons had assembled under the leadership of Gaur Chand Bouri and the petitioner was also present in the said assembly. After arrival of the persons the situation got out of hand on account of the attitude shown by Gaur Chand Bouri which resulted in scuffle and subsequent assault upon the informant (PW 2). Nothing has been elicited by the prosecution from the witnesses that the petitioner had also assembled with a common object or with a view to cause assault upon the person who were present in the office. Although the learned appellate court has dealt with Section 353 I.P.C., but has not given any specific finding as to what caused the learned appellate court to affirm the judgment of conviction and the order of sentence passed by the learned trial court. As regards to the other penal provisions are concerned, learned trial court has not properly appreciated the evidence with respect to common object as the petitioner and other persons, who had assembled with Gaur Chand Bouri, but without any common object of causing abuse and assault, as they were merely passive players, who had been included by the informant of actively participating with a common object to create ruckus within the factory premises. 9. Since neither the learned trial court nor the learned appellate court had properly appreciated the material available on record, the evidence of the witnesses during trial and the evidence with respect to any role played by the petitioner as well as the evidence of any common object, the judgment of conviction and the order of sentence passed by learned trial court and affirmed by learned appellate court is not sustainable in the eye of law. Accordingly, having found merit in this application, the same is allowed and the judgment of conviction and the order of sentence dated 31.01.2007 passed by the learned Judicial Magistrate, 1st Class, Dhanbad in G.R. No. 1348 of 2002 arising out of Baghmara (Sonardih) P.S. Case No. 103 of 2002, affirmed by learned Sessions Judge, Dhanbad by judgment dated 27.01.2015 passed in Criminal Appeal No. 40 of 2007, is set aside. The petitioner is discharged from the liability his bail bond.