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2017 DIGILAW 1033 (JHR)

Sobha Rani Das v. Shiv Charan Ravidas

2017-07-05

APARESH KUMAR SINGH, B.B.MANGALMURTI

body2017
ORDER : Heard counsel for the parties. 2. Petitioner seeks leave to appeal against the order of acquittal passed in C.P. Case No.969/2007 by the learned Judicial Magistrate, 1st Class, Dhanbad dated 23rd July 2014. The complainant alleged that after the death of her husband Late Sarat Chandra Ravidas in a road accident on 8th March 2007, her step sons Shiv Charan Ravidas, Shambhu Charan Ravidas and one Sadhna Das with whom Shiv Charan Ravidas solemnized marriage within 10-12 days of his father's death, threatened her to leave the house. All the accused persons live in another house separately from the complainant's house. On 20th March 2007 at 11 A.M. all accused persons came in her house armed with iron rod, lathi and assaulted her by which she sustained severe injuries on her body. Again on 12th June, 2007 all accused came to her house to extort properties, land documents, service documents, LIC Certificates, etc. and assaulted her. The complainant alleged that after her marriage with Sarat Chandra Ravidas, ornaments such as a gold chain, two ear rings and two finger rings of a value of Rs.20,000/- were handed over to Shiv Charan Ravidas to be kept in safe custody. On being demanded, the accused persons refused to return the same. All the accused persons assaulted the complainant again on the very same day at 6:30 P.M. and put away all her belongings like Sarees, dress materials and steel utensils worth Rs.20,000/-. Though local Police was informed, but no action was taken nor any case was instituted on the basis of her complaint. The instant case was registered on 18th June 2007 under Sections 323, 324, 379, 406/34 of the Indian Penal Code. 3. After inquiry the learned court of Judicial Magistrate, 1st Class, Dhanbad found prima-facie case under Sections 323/406 of the I.P.C. Processes were issued thereafter. Since accused persons pleaded not guilty, the trial commenced. Four witnesses were examined on behalf of the complainant and four also on behalf of the accused as defence witnesses. 4. Learned counsel for the petitioner contends that the evidence adduced on behalf of the complainant has not been considered by the learned trial court in proper perspective. Since accused persons pleaded not guilty, the trial commenced. Four witnesses were examined on behalf of the complainant and four also on behalf of the accused as defence witnesses. 4. Learned counsel for the petitioner contends that the evidence adduced on behalf of the complainant has not been considered by the learned trial court in proper perspective. The incidence of assault has been disbelieved on mere ipse dixit, such as the statement of C.W.1-Prabodh Chandra Ravidas has not been accepted only on the ground that he was about 5'3” tall while the wall between their houses was 5'6” of height. As such C.W.1 could not have seen any such occurrence taking place at her house. Similarly the learned trial court has disbelieved the incidence of assault being guided by the fact that though allegations of assault using rod and Danda have been made, but she was not able to file any paper of treatment or steps undertaken by the Doctor therein. In respect of the charges under Section 406 of the I.P.C. also, the learned trial court has erroneously disbelieved the material evidence simply being guided by the fact that no such evidence of entrustment of the property to the accused persons was conclusively proved by her. It is submitted that the judgment suffers from errors of appreciation of evidence and finding of acquittal, therefore, is bad in law. The petitioner, therefore, be granted leave to appeal. 5. Learned counsel for the opposite parties-accused persons has defended the impugned judgment. It is submitted that conviction in a criminal case is to be recorded only after proof of the charges beyond all reasonable shadow of doubt. The nature of evidence adduced by the complainant does not inspire any confidence for the learned trial court to have arrived at a finding of guilt against the accused persons. Therefore, the prayer to grant leave to appeal should be refused as the accused persons have now double presumption of innocence. 6. We have considered the submissions of the counsel for the parties and gone through the impugned judgment as well. 7. From perusal of the impugned judgment, it appears that the learned trial court did not find any material evidence to reach to a finding of guilt against the accused persons for the offence under Section 323 or 406 of I.P.C. for that matter. 7. From perusal of the impugned judgment, it appears that the learned trial court did not find any material evidence to reach to a finding of guilt against the accused persons for the offence under Section 323 or 406 of I.P.C. for that matter. The incidence of assault of a serious nature alleged by the complainant obviously needed to be established through cogent evidence which the complainant failed to do. Ingredients of Section 323 of I.P.C. were also to be established by cogent evidence. Statements by the witnesses of the complainant on that count have not been able to prove the charges beyond all reasonable shadow of doubt. Even in respect of the charges under Section 406 of the I.P.C., the learned trial court has, upon appraisal of the evidences, not found any clinching evidence so as to fulfill the ingredients of the offence under Section 406 of the I.P.C. 8. Therefore, on consideration of the submissions of the counsel for the parties and on perusal of the materials on record and the impugned judgment, we do not consider it proper to grant leave to appeal to the petitioner, as prayed for. Accordingly, the instant petition is dismissed.