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2017 DIGILAW 1078 (JHR)

Namlen Toppno v. State of Jharkhand

2017-07-10

RONGON MUKHOPADHYAY

body2017
ORDER : RONGON MUKHOPADHYAY, J. 1. Heard Mr. Amiya Kunal, learned counsel appearing on behalf of the petitioners and Mr. Shekhar Sinha, learned A.P.P. for the State. 2. This application is directed against the judgment dated 29.10.2004 passed by the learned Additional Judicial Commissioner, FTC No. VI, Ranchi in Criminal Appeal No. 64 of 2004 whereby and whereunder the judgment and order of conviction and sentence dated 28.2.2004 passed by the learned Judicial Magistrate, 1st Class, Ranchi in Complaint Case No. 138 of 1999 convicting the petitioners for the offence under Sections 147 and 323 of the I.P.C. and releasing them after due admonition under the provision of Probation of Offenders Act has been affirmed. 3. The allegation made in the FIR is that in the year 1983, Kaushal May Tiru, the then Secretary of G.E.L. Church, Kalyanpur has purchased 90% decimals of land through registered sale deed for making graveyard. It is alleged that members of Hesag Branch of G.E.L. Church tried to capture the land and the matter was reported to the Deputy Commissioner, Ranchi. Further allegation has been levelled that on 16.2.1999 all the accused persons variously armed had tried to capture the graveyard and resultantly, the complainant and other persons were assaulted. Investigation culminated in submission of charge-sheet and after taking of cognizance, charges were framed for the offences under Sections 147, 148 & 323 of I.P.C. Since the prosecution has been able to prove its case beyond all reasonable doubt, the learned Judicial Magistrate, 1st Class, Ranchi on 28.2.2004 had convicted the petitioners for the offences under Sections 147 & 323 of I.P.C. The petitioners preferred an appeal being Criminal Appeal No. 64 of 2004 which however was dismissed by the learned Additional Judicial Commissioner, FTC-VI, Ranchi by the judgment dated 29.10.2004. 4. It has been stated by the learned counsel for the petitioner that all the witnesses have consistently stated that at the time of the incident, it was a dark night and no source of identification have been disclosed by any of the witnesses. It has further been stated that both the factions of the Church were on inimical terms with respect to possession of the graveyard for which a proceeding under Section 107 was also instituted. It has further been stated that both the factions of the Church were on inimical terms with respect to possession of the graveyard for which a proceeding under Section 107 was also instituted. He further submits that although the occurrence had taken place on 16.2.1999, but the complaint case was instituted on 5.3.1999 and no plausible explanation has been given by the prosecution for such delay. He further submits that previous enmity apart from the fact that identification of the petitioners of having taken part in assault is itself doubtful, the petitioners should have been given the benefit of doubt by the learned trial court. 5. Learned A.P.P. for the State opposed the prayer. 6. It appears that in course of trial 7 witnesses were examined on behalf of prosecution. P.W. 1-Julius Kandir has stated about the attempts made by the petitioners for forcible occupying the graveyard. This witness has stated that Royan Bage (petitioner no. 8) had given lathi blow on the head of the complainant. He further stated that at the time of occurrence, there was darkness. P.W. 2-Hepear Topno has stated that about 30 to 40 persons gathered and the complainant was also assaulted with a lathi by the petitioner no. 8. This witness has also stated that a proceeding was initiated under Section 107 of Cr.P.C. which subsequently came to a close. He has further stated that the occurrence had taken place in a dark night. P.W. 3-Amrit Kullu has stated that he has visited the place of occurrence after 15 minutes. P.W. 4-Amrit Mundari has disclosed the complainant was assaulted by the petitioner no. 8. This witness has claimed to have been assaulted by Mansukh and Marshal Barla. He has also admitted that no means of light was present at the time of incident. P.W. 5-Nistar Baa has also stated about the assault committed by the petitioners. P.W. 6-Alfrida Daniel is a hearsay witness. P.W. 7-Anand Daniel is the complainant who has stated that he was assaulted by the petitioner no. 8. However, this witness has not stated anything about the source of identification of the petitioner no. 8. This witness has also stated having earlier participated in a proceeding under Section 107 of Cr.P.C. 7. The defence has examined as many as 3 witnesses countering the prosecution case. D.W. 1-Jay Mangal Herang submits that no occurrence had taken place on 16.2.1999. However, this witness has not stated anything about the source of identification of the petitioner no. 8. This witness has also stated having earlier participated in a proceeding under Section 107 of Cr.P.C. 7. The defence has examined as many as 3 witnesses countering the prosecution case. D.W. 1-Jay Mangal Herang submits that no occurrence had taken place on 16.2.1999. D.W. 2-Hanan Purti has stated that Marshal Barla has falsely been implicated as he cannot see in darkness. D.W. 3-Jyostin Kolgadi has also stated on similar terms as that of D.W. 2. 8. The evidences of witnesses thus suggest that on account of dispute arising on account of possession of the graveyard, 30 to 40 persons assembled and the petitioner no. 8 had assaulted the complainant with a lathi whereas the other persons were also identified. However, none of the witnesses have disclosed about the source of identification of the petitioners. The evidence of the witnesses clearly reveals that it was a dark night when the occurrence had taken place as it is said that the occurrence is said to have taken place at 8 PM. Absence of any source of light as could be disclosed by any of the witnesses would make the identification of the petitioners doubtful. It is also an admitted fact that earlier a proceeding under Section 107 of Cr.P.C. was in existence between two factions of church with respect to the graveyard and therefore, the false implication of the petitioners also cannot be ruled out in view of the aforesaid circumstances. The learned trial court has merely relied upon the oral evidence of the witnesses without delving deep into the actual identification of the petitioner by the witnesses. The learned trial court also did not consider this aspect of the matter while convicting the petitioners under Sections 147 & 323 of I.P.C. Since the prosecution has not been able to prove its case beyond all reasonable doubt, the petitioners deserves acquittal from the criminal prosecution. 9. Accordingly, the impugned judgments dated 29.10.2004 and 28.2.2004 are set aside. This application is allowed. The petitioners are discharged from the liabilities of their bail bonds.