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2018 DIGILAW 2007 (JHR)

Sahdeo Mahto v. State of Jharkhand

2018-09-04

ANANT BIJAY SINGH

body2018
JUDGMENT : Anant Bijay Singh, J. Heard learned counsel for the petitioner and learned APP for the State. 2. Initially the present criminal revision application was filed on behalf of the two petitioners namely, Lok Nath Mahto and Sahdeo Mahto being aggrieved and dissatisfied with the judgment dated 15.06.2002 passed by Sri Ravindra Prasad Ravi, the learned 8th Additional Sessions Judge, Hazaribagh in Criminal Appeal No. 110 of 1994 whereby the learned Sessions Judge has been pleased to dismiss the appeal confirming the judgment of conviction and order of sentence dated 26.04.1994 passed by Sri Narendra Bahadur Singh, the learned Judicial Magistrate, Ist Class, Hazaribagh in Sadar P.S. Case No. 68 of 1991, G.R. Case No. 2183 of 1991, T.R. No. 440 of 1994, whereby and whereunder they were sentenced to undergo two years R.I under sections 411 of the Indian Penal Code. 3. The criminal revision was admitted for hearing under order dated 06.09.2002 and during pendency of the revision, the petitioners namely, Lok Nath Mahto and Sahdeo Mahto were admitted on bail and L.C.R was called for. 4. Further, on 30.01.2018 submission was made that petitioner-Lok Nath Mahto has died during pendency of this revision. Thereafter, report was called from the court concerned which was received and after perusing the report of the court below it revealed that petitioner Lok Nath Mahto died on 01.01.2015 and death certificate was also produced. Accordingly, under order dated 24.04.2018, the name of the petitioner Lok Nath Mahto was directed to be deleted from the array of the parties and the criminal revision was confined to the petitioner Sahdeo Mahto only. 5. Learned counsel for the petitioner today placed the judgment passed by the Hon'ble Supreme Court in the case of Bhagwan Singh Vs. State of Haryana ( AIR 1976 SC 202 ) which has been relied upon by both the courts below and submitted that from careful scrutiny of the aforesaid judgment, it reveals that the law laid down regarding relying on the evidences of the witnesses who have been declared hostile, has not been considered correctly. 6. In the judgment of Bhagwan Singh (Supra), the Hon'ble Supreme Court has held as follows: “8. We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case. 6. In the judgment of Bhagwan Singh (Supra), the Hon'ble Supreme Court has held as follows: “8. We have carefully perused the evidence of Jagat Singh, who was examined in the trial after more than a year of detection of the case. The prosecution could have even avoided requesting for permission to cross-examine the witness under Section 154 of the Evidence Act. But the fact that the court gave permission to the Prosecutor to cross-examine his own witness, thus, characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. We are satisfied in this case that the evidence of Jagat Singh, but for whose prompt assistance the case would not have seen the light of day and whose statement had immediately been recorded by the D.S.P. is amply corroborated by other evidence mentioned above to inspire confidence in his testimony. Apart from that the fact of recovery of the gold coins in the pocket of the appellant gave a seal of finality to the truth of the charge against the appellant. If Jagat Singh had accepted the bribe he would have been guilty under Section 161 I.P.C. There is, therefore, clear abetment by the appellant of the offence under Section 161 I.P.C. and the ingredients of Section 165-A I.P.C. are established against him.” 7. Whereas in the instant case, both the courts below in their judgments have relied on the evidence of the informant George Schwart Zel (German resident), who has witnessed the occurrence and whose statement has been recorded under Section 164 of the Cr.P.C. The appellate court also relied upon the reasoning of the trial court with regard to Section 32 of the Evidence Act and upheld the judgment of the trial court, but both the courts below have failed to conceive the reasoning with regard to Section 32 of the Evidence Act given by the Hon'ble Supreme Court in the judgment of Bhagwan Singh (Supra). So, there is non-application of mind by both the courts. 8. Learned APP relying upon the judgment submitted that there is concurrent finding of both the courts below and there is no merit in this revision and hence it is fit to be dismissed. 9. So, there is non-application of mind by both the courts. 8. Learned APP relying upon the judgment submitted that there is concurrent finding of both the courts below and there is no merit in this revision and hence it is fit to be dismissed. 9. After hearing the parties and on careful perusal of the records and evidences, I find considerable force in the submission of the petitioner that the judgment relied upon by both the courts below is not applicable in the instant case and both the courts below have failed to exercise their jurisdiction vested upon them. 10. In the facts and circumstances of the case, this criminal revision is allowed and the impugned judgment dated 15.06.2002 passed by 8th Additional Sessions Judge, Hazaribagh in Criminal Appeal No. 110 of 1994 confirming the judgment and order of conviction dated 26.04.1994 passed by learned Judicial Magistrate, 1st Class, Hazaribagh in G.R. No. 2183 of 1991 and T.R. No. 440 of 1994 is hereby set aside and the petitioner is discharged from the liabilities of his bail bonds. 11. Let a copy of this order be sent to the court below and also LCR be transmitted to the court below forthwith.