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2018 DIGILAW 149 (JHR)

Tirthu Sahu v. State Of Jharkhand

2018-01-17

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT Anil Kumar Choudhary, J. – No one turns up for the appellants in spite of repeated calls. Heard Mr. Pankaj Kumar, learned Addl. PP for the State. 2. This appeal is being taken up for consideration basing upon the materials available in the record. The case of the prosecution in brief as mentioned in the complaint filed by Sham Kanwari Devi, is that on 08.08.1996, the appellants were grazing their cattle in the field of the complainant and when the complainant protested the same, they assaulted the complainant and the appellant no. 1 also attempted to kill her by assaulting with an axe. When the complainant raised alarm, her father, uncle and brother rushed to the place of occurrence and the appellants fled away from there threatening to assault her again. Learned Chief Judicial Magistrate, Gumla took cognizance for the offence punishable under Section 323 of Indian Penal Code and Section 3(1) (xi) of The Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act, 1989 and sent the records to the designated Special Court under The Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act,1989. Upon receipt of the record by the Special Court, charges for the offence punishable under Section 323 of Indian Penal Code and Section 3 (1) (xi) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 were framed against the appellants. Upon the appellants denying the charges, they were put to trial. 3. In support of his case, the prosecution altogether examined three witnesses and from the side of defence, two witnesses were examined. P.W.-3- Sham Kanwari Devi deposed that she belongs to Oraon caste and is a member of the scheduled tribe. The occurrence took place at 12.15 P.M., six and half years prior to her being examined in the court. The appellants were grazing their cattle in her field and she protested that. The appellants assaulted her. The appellant no. 1 removed her clothes and abused her in filthy language. She sustained injuries in her hand and back. She was treated in the hospital. In her cross examination, she has stated that she was treated in hospital on police requisition. She denied having instituted Sisai P.S. Case No. 102 of 1996 for the same occurrence. The appellants are staying in the ancestral land of the P.W. 3 after constructing houses. She sustained injuries in her hand and back. She was treated in the hospital. In her cross examination, she has stated that she was treated in hospital on police requisition. She denied having instituted Sisai P.S. Case No. 102 of 1996 for the same occurrence. The appellants are staying in the ancestral land of the P.W. 3 after constructing houses. She does not know whether her father instituted any case for getting back his land from the appellants. In her cross examination she has stated that the appellants are residing at the place of occurrence for three years after constructing their house. The dispute was relating to land. She admitted that her uncle has sold the land to the appellants though his uncle has no right to sell. 4. P.W.1- Dode Oraon is the father of P.W.3. He has stated that as P.W.3 forbade the appellants to graze their cattle in her field. The appellant assaulted her causing injury. In his cross examination he has stated that the SAR case has been decreed in favour of the appellant- Tirthu. The Addl. Collector has also decreed in their (appellant''s) favour. He does not know that Tirthu has paid compensation to Tilwa - who is the brother of PW1. PW2- Somra Baitha, has stated that the occurrence took place six and half years prior to his being examined in the court. The appellants were grazing their cattle in the field of PW3. The appellants assaulted PW3. In his cross examination, he expressed his ignorance about three cases instituted for the same occurrence. 5. After closure of the evidence of prosecution, statements of the appellants were recorded under Section 313 Cr.P.C., wherein they have denied the circumstances appearing in evidence against them and pleaded innocence. 6. From the side of the defence, D.W.1- Jaleshwar Singh, who is a deed writer, has proved the complaint petition filed in complaint case no. 127 of 1996 which has been marked as Exhibit A. He has also stated that the PW3 executed Vakalatnama in that case. In his cross examination, he has stated that he did not fill up the Vakalatnama and the Advocate did not sign in his presence. DW 2- Rajendra Jha is an advocate''s clerk. He has proved the formal FIR of Sisai P.S. case No. 108 of 1996 and final form, which have been marked as Exihibit B and D respectively. 7. In his cross examination, he has stated that he did not fill up the Vakalatnama and the Advocate did not sign in his presence. DW 2- Rajendra Jha is an advocate''s clerk. He has proved the formal FIR of Sisai P.S. case No. 108 of 1996 and final form, which have been marked as Exihibit B and D respectively. 7. After consideration of the evidence and the materials in the record, the court below convicted the appellants as already indicated above. 8. So far as the offence punishable under Section 3 (1) (xi) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, the perusal of the record reveals that there is no evidence on record to suggest that the appellants are not the members of the scheduled castes and scheduled tribes, which is a sine qua non for establishing any charge punishable under any of the penal provisions of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Further there is no evidence to suggest that they assaulted the complainant with an intention to dishonor or outrage her modesty. 9. In absence of such ingredient, I have no hesitation in holding that the evidence in the record, is insufficient to establish the charges for the offence punishable under Section 3 (1) (xi) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Keeping in view the fact that there is land dispute between the parties and the admitted fact by the witnesses of the prosecution that the case in respect of the place of occurrence land has been decided in favour of the appellants both by the SAR court and the Additional collector the act of PW3 protesting against the possession of the appellants over the place of occurrence land amount to an act of aggression on the part of the complainant. There is also evidence from the side of the defence that for the same occurrence a third case has also been filed which the complainant tried to conceal but stood exposed because of the documentary evidence put forth by the defence. Because of the discussions made above this court is of the considered opinion that the conviction for the offence punishable under Section 3 (1) (xi) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not sustainable in law accordingly the same is set aside. Because of the discussions made above this court is of the considered opinion that the conviction for the offence punishable under Section 3 (1) (xi) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is not sustainable in law accordingly the same is set aside. 10. The evidence put forth by the prosecution is sufficient to establish the charge under Section 323 IPC is beyond all reasonable doubt. Accordingly, the conviction of the appellants for the offence punishable under Section 323 IPC is affirmed. But keeping in view the fact that there is land dispute between the parties and no previous conviction is proved against any of the appellants, this is a fit case where instead of imposition of sentence, the appellants be released after due admonition. 11. The appeal is allowed in part to the aforesaid extent. Let the original Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment. On receipt of the same, the court below is directed to issue notice to the appellants and on their appearance they should be released after due admonition by the trial court.