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2018 DIGILAW 2021 (JHR)

Sekh Md. Din Islam v. State of Jharkhand

2018-09-06

KAILASH PRASAD DEO

body2018
JUDGMENT : KAILASH PRASAD DEO, J. 1. Heard, Mr. Manoj Tandon assisted by Mrs. Kumari Rashmi and Mr. Binay Kumar, learned counsels for the appellants and Mr. Nehru Mahto, learned Additional Public Prosecutor appearing for the State. 2. The instant Criminal appeal is directed against the Judgment of conviction and order of sentence, both dated 13.01.2004, passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Jamtara, in Special Case No. 12 of 1999 and 22 of 2002, whereby the accused/appellants have been convicted for the offence committed and punishable under Section 3 (x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, and awarded punishment to undergo rigorous imprisonment for two years for the offence committed and punishable under Section 3 (x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and fine of Rs. 1,000/- each and in case of default in payment of fine, the appellants shall further undergo rigorous imprisonment for six months. 3. The prosecution case, is based upon, the fardbeyan of informant, Ramu Das (PW-5), recorded by Sub Inspector of Police, Sri Kamdeo Prasad, Mihijam Police Station on 11.07.1999, at 12.30 hours, at the house of the informant, New Colony, Pokhartalla, wherein the informant has alleged that he and Renuka Devi are poor people of Harijan community. Krishan Das, husband of Renuka Devi, is helpless person and is suffering from ailments. The informant has stated that because of hard labour, they are surviving. The informant has alleged that one Sk. Md. Kanu Dayal and his two sons, namely, Sk. Md. Din Islam (appellant No. 1) and Sk. Md. Fazalegani (appellant No. 2) have been torturing the informant and Renuka Devi by abusing and saying that they belong to Harijan (chamar caste) and they will not be allowed to remain in the said Mohalla/colony. The accused persons used to call them chamar and abused them with filthy language. They also used to say that either they leave the colony or they will be thrown out of the colony. The informant has further alleged that once while his mother was coming, the accused persons have spitted over her and also threw the dirty water and mud upon her, due to which they are feeling difficulties. They also used to say that either they leave the colony or they will be thrown out of the colony. The informant has further alleged that once while his mother was coming, the accused persons have spitted over her and also threw the dirty water and mud upon her, due to which they are feeling difficulties. The informant has further alleged, that earlier the accused persons have filed false cases against them with an intention to oust them from the colony and because of such activities, the informant and Renuka Devi have given a report in the 'Harijan Cell' at Dumka for protecting themselves from the torture of the accused persons. 4. On the basis of the aforesaid fardbeyan of informant, the Police instituted First Information Report bearing Jamtara (Mihijam) P.S. Case No. 138 of 1999, dated 11.07.1999, corresponding to G.R. No. 308 of 1999 under Section 3 (x) of the S.C. & S.T. (Prevention of Atrocities) Act, 1989. 5. After investigation, the Police submitted charge-sheet vide No. 53 of 1999 dated 31.08.1999 under Section 3 (x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, against accused/appellants, Sekh Md. Din Islam (appellant No. 1) and Sekh Md. Fazalegani (appellant No. 2) and Kanu @ Kanu Dayal showing him as dead. The cognizance of the offence has been taken vide order dated 04.09.1999 and the case has been committed and transferred to the Special Court, Jamtara vide order dated 04.09.1999. The charge has been framed against both the accused/appellants on 16.12.1999 under Section 3 (x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, to which the accused/appellants have pleaded not guilty and thus, they were put under trial. 6. The prosecution has examined altogether twelve witnesses and also exhibited signature of Ramu Das, on the written report, which has been proved and marked as Exhibit-1 and formal First Information Report has been proved and marked as Exhibit-2. Nakul Mistri has been examined as PW-1, Ram Krishan Das has been examined as PW-2, Renuka Devi has been examined as PW-3, Yasoda Devi has been examined as PW-4, Ramu Das, informant of the case, has been examined as PW-5, Md. Nakul Mistri has been examined as PW-1, Ram Krishan Das has been examined as PW-2, Renuka Devi has been examined as PW-3, Yasoda Devi has been examined as PW-4, Ramu Das, informant of the case, has been examined as PW-5, Md. Kalim Ansari has been examined as PW-6, Upendra Das has been examined as PW-7, Ramautar Sharma has been examined as PW-8, Madan Das has been examined as PW-9, Shambhu Kumar Das has been examined as PW-10, Guhan Das has been examined as PW-11 and Sharat Kumar Yadav, an Advocate Clerk, has been examined as PW-12. 7. After closure of the prosecution evidence, the accused/appellants have been examined under Section 313 Cr.P.C. on 06.09.2002, to which they have pleaded that they have been implicated in a false case and they will give evidence in their defence. The defence has not examined any witness, but has adduced documentary evidence as Exhibits up-to Exhibit-F. Certified copy of the Complaint Petition bearing P.C.R. Case No. 413 of 1995 has been proved and marked as Exhibit-A, Certified copy of the judgment of P.C.R. Case No. 413 of 1995 has been proved and marked as Exhibit-B, Order-sheets of Crl. Misc. Case No. 737 of 1998 has been proved and marked as Exhibit-C, Police report in Crl. Misc. Case No. 737 of 1998 has been proved and marked as Exhibit-D, Complaint petition of P.C.R. Case No. 5 of 1984 has been proved and marked as Exhibit-E and judgment of P.C.R. Case No. 5 of 1984 has been proved and marked as Exhibit-F. All these documents have been exhibited without any objection. 8. The learned trial court, after hearing learned counsel for the parties and perusing the records, has passed the impugned judgment of conviction and order of sentence. Being aggrieved at, and dissatisfied with the impugned judgment of conviction and order of sentence, both the accused/appellants have preferred the present Criminal Appeal before this Hon'ble Court, which was admitted on 11.03.2004 and the provisional bail granted by the learned trial court was confirmed. 9. Heard, Mr. Manoj Tandon assisted by Mrs. Kumari Rashmi and Mr. Binay Kumar, learned counsels appearing for the appellants. Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in eyes of law, as the charge has been wrongly framed by the learned trial court. 9. Heard, Mr. Manoj Tandon assisted by Mrs. Kumari Rashmi and Mr. Binay Kumar, learned counsels appearing for the appellants. Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in eyes of law, as the charge has been wrongly framed by the learned trial court. Learned counsel for the appellants has drawn attention of this Court towards the charge, which has been framed under Section 3(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Learned counsel for the appellants has submitted, that from perusal of framing of charge, it appears that there is no specific averment with regard to place of occurrence and time of occurrence, nor the date, which has been alleged to be the date of occurrence, has not been supported by the prosecution witnesses. Learned counsel for the appellants has further, submitted that the First Information Report was lodged on 11th July, 1999 and the charge has also been framed with respect to the alleged occurrence dated 11th July, 1999, but from the perusal of the First Information Report, it appears that it was lodged on the basis of the fardbeyan of informant (PW-5 Ramu Das) and in his deposition as PW-5, there is no averment with respect to any alleged occurrence took place on 11th July, 1999 and as such, the charge has not been properly framed on the facts as well as on law and the conviction of the appellants under Section 3(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, is also not in consonance with the provisions of the aforesaid Act. The provisions of the Act says about Section 3(i)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, as such, no Section 3(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, is there in the Act. Learned counsel for the appellants has further, submitted that the present case has been filed with a view to malign these appellants, as the father of these appellants had filed a criminal case against the informant, in which the informant has been convicted, as admitted by the informant in his deposition as PW-5 and the other prosecution witnesses. Learned counsel for the appellants has further, submitted that the present case has been filed with a view to malign these appellants, as the father of these appellants had filed a criminal case against the informant, in which the informant has been convicted, as admitted by the informant in his deposition as PW-5 and the other prosecution witnesses. The informant with ulterior motive has filed the present case soon after the judgment of conviction to take revenge and as such, there is material contradiction in the evidence of the prosecution witnesses. Mr. Manoj Tandon, learned counsel for the appellants has further, submitted that the basic ingredients for constituting an offence i.e. public view is also missing in the present case. Learned counsel for the appellants, while referring the entire evidence adduced by the prosecution witnesses, has submitted that none of the prosecution witnesses have said about specific date and time of the occurrence nor they have witnessed the occurrence to bring the prosecution case in public view. Learned counsel for the appellants has further, submitted that the informant in his fardbeyan or his deposition, as PW-5, has never disclosed about the persons who have witnessed the occurrence. The occurrence was not committed in public view to insult the informant and as such, the basic ingredients for constituting an offence is completely lacking in this case and as such, the impugned judgment of conviction and order of sentence cannot sustain in the eyes of law. Learned counsel for the appellants has further, submitted that if the evidence of the prosecution witnesses are examined, it appears that there are vital contradictions in their depositions. As per evidence of Nakul Mistri (PW-1), who has given contradictory version in his examination-in-chief by alleging that Sk. Md. Kanu Dayal, one of the accused of this case and now dead, has said to wife of Guhan Das (PW-10) that being a chamar, she has become a brahmin. This version has not been stated by the informant or any of the prosecution witnesses. Further-more, this witness has neither been named by the informant, as a person, who has witnessed the occurrence nor by any prosecution witnesses. Ram Kirshan Das has been examined as PW-2. This version has not been stated by the informant or any of the prosecution witnesses. Further-more, this witness has neither been named by the informant, as a person, who has witnessed the occurrence nor by any prosecution witnesses. Ram Kirshan Das has been examined as PW-2. He is a completely blind person, but he says that while his wife was returning after taking bath, Kanu Dayal abused his wife by taking the name of caste and threw mud upon her. This witness has further stated that his sons disclosed before him that sons of Kanu Dayal are calling them chamar, but has categorically stated that the occurrence of throwing mud was committed 5-6 months ago, but he could not say the exact date of the alleged occurrence. This witness has further stated that Kanu Dayal has died. Renuka Devi, wife of Ram Krishan Das (PW-2) has been examined as PW-3. This witness has stated that occasionally Kanu Dayal and his sons used to come to her house and asked her to do work without any money, upon refusal, she was abused by taking name of her caste. This witness has categorically stated during her cross-examination, she has never stated before the Police that 7-8 months ago, while she was coming, she was abused by taking name of her caste and by throwing mud by Kanu Dayal. Yasoda Devi has been examined as PW-4. This witness has stated that 8 -9 months ago, son of Kanu Dayal, namely, Md. Fazalegani threw mud upon her, when she made protest, she was abused by taking the name of her caste and by threatening that earlier they have filed a case against the male members and now they will file a case against the female members also. Ramu Das, informant of the case has been examined as PW-5. This witness has stated in his evidence that for an occurrence committed in the month of July, 1999, he has filed a case against the accused persons, who were torturing him since the year 1982 and used to abuse him by taking name of his caste. The persons who involved are, Late Kanu Dayal, and his sons, namely, Sk. Md. Din Islam (appellant No. 1) and Sk. Md. Fazalegami (appellant No. 2). The persons who involved are, Late Kanu Dayal, and his sons, namely, Sk. Md. Din Islam (appellant No. 1) and Sk. Md. Fazalegami (appellant No. 2). This witness has further stated that fardbeyan was recorded by the Police and he has put his signature on the same, which has been proved and marked as Exhibit-1. This witness has sated in Para-9 of his cross-examination that no drainage has been constructed by the Government in their colony, which is under the N.A.C. This witness has further stated in Para-11 of his cross-examination that for the occurrence committed in the year 1982, no First Information Report was lodged, but for the occurrence committed in the year 1999, fardbeyan was given to the Police and thereafter, the Sub Inspector of Police also came for enquiry, and if the same is required, he will produce the document in support of his contention. This witness has admitted in Para-12 of his cross-examination that in the case filed by the accused persons, he has been convicted and has also preferred an appeal against the judgment of conviction. Learned counsel for the appellants has further, submitted that fardbeyan has not been proved rather signature on the fardbeyan has been proved and marked as Exhibit-1. Further-more, the informant has admitted the enmity between the parties and his conviction in a case, which has been lodged by the accused persons. Learned counsel for the appellants has further, submitted that as per the prosecution case, the mud was thrown after taking from the drainage, but as per the statement of the informant particularly in Para-9 of his cross-examination, where the informant has categorically stated that there is no drainage in their mohalla/colony constructed by the Government. Learned counsel for the appellants has further, submitted that as per the prosecution case, the mud was thrown after taking from the drainage, but as per the statement of the informant particularly in Para-9 of his cross-examination, where the informant has categorically stated that there is no drainage in their mohalla/colony constructed by the Government. Subsequently the informant has admitted in Para-11 of his cross-examination that for the incident of the year 1982, no case was lodged, but for the occurrence of the year 1999, he has filed a case and he can produce the documents, if so required, but neither such documents have been brought on record nor the Investigating Officer has been examined in this case to support this version of the informant and as such, non-examination of the Investigating officer has caused serious prejudice to the appellants, as the appellants have not been provided an opportunity to elucidate the fact by cross-examining the Investigating officer and as such, the present case is nothing, but a malicious prosecution at the hands of the informant (Ramu Das), who has been convicted in a case filed by the father of the appellants. Md. Kalim Ansari has been examined as PW-6. The learned counsel for the appellants has further submitted that PW-6 has given a contradictory version in his examination-in-chief by stating that he saw that drainage was blocked by putting some bricks although the informant, Ramu Das (PW-5) has admitted in Para-9 of his cross-examination, that there is neither any drainage constructed by Government nor the prosecution has brought any material on record to the effect that they have constructed a drainage by their own cost at the place of occurrence, as such, this witness seems to be highly interested witness who has exaggerated the prosecution case. Further-more, this witness has admitted during his cross-examination at Para-4 that he has heard about the occurrence, but has not seen any occurrence through his own eyes. Upendra Das has been examined as PW-7. This witness has categorically stated in Para-5 of his cross-examination, that he cannot say about the date and time of occurrence. Ramautar Sharma has been examined as PW-8. He is also a hearsay witness and has categorically admitted in Para-4 of his cross-examination that he has not seen occurrence through his own eyes. Madan Das has been examined as PW-9. This witness has categorically stated in Para-5 of his cross-examination, that he cannot say about the date and time of occurrence. Ramautar Sharma has been examined as PW-8. He is also a hearsay witness and has categorically admitted in Para-4 of his cross-examination that he has not seen occurrence through his own eyes. Madan Das has been examined as PW-9. He is brother-in-law of the informant (Ramu Das), but the credential of this witness is highly doubtful, when this witness has stated in last line of Para-4 of his cross-examination, that there is no litigation pending between the parties. Learned counsel for the appellants, Mr. Manoj Tandon has further, submitted that the evidences of the witnesses are contradictory to each other and the credential of this witness (Madan Das-PW-9) is doubtful, as the informant has stated, that a case was filed by the father of the accused against him and he has been convicted in the said case, but this witness, Madan Das (PW-9) is disputing such admitted facts. Shambhu Kumar Das has been examined as PW-10. This witness has stated in Para-4 of his cross-examination that he could not say about the date and time of any occurrence of the past nor he could say the date and time of the present occurrence and also admitted in Para-8 of his cross-examination that there is case between the informant and the accused persons, which is pending since long. Guhan Das has been examined as PW-11. This witness has admitted in Para-3 of his cross-examination about earlier cases filed by the father of the appellants, in which the informant and others have been convicted on 07.06.1999. This witness has stated that the accused persons have spitted over his wife and also abused her, but his wife, Yasoda Devi, who has been examined as PW-4, has categorically stated that sons of Kanu Dayal has thrown mud upon her, but she has not stated or alleged against any of the accused who have spitted upon her. Learned counsel for the appellants has further, submitted that as per the other prosecution witnesses, the allegation of throwing mud is upon Kanu Dayal and others. First time, Yasoda Devi (PW-4) has alleged that the son of Kanu Dayal, namely, Fazalegani (appellant No. 2) has thrown mud upon her. Learned counsel for the appellants has further, submitted that as per the other prosecution witnesses, the allegation of throwing mud is upon Kanu Dayal and others. First time, Yasoda Devi (PW-4) has alleged that the son of Kanu Dayal, namely, Fazalegani (appellant No. 2) has thrown mud upon her. Learned counsel appearing for the appellants, thus submitted that from the perusal of evidence of Guhan Das (PW-11), it appears that he is a hearsay witness who has also been convicted in a case filed by Kanu Dayal, the father of the appellants and the credential of this witness is also doubtful, as the incident which he has described in his cross-examination is contradictory to the statement of his wife (PW-4) and as such, the evidence of this witness is not reliable for convicting the appellants. Sharat Kumar Yadav, an Advocate Clerk has been examined as PW-12. He has proved the Formal First Information Report bearing the signature of the officer-in-charge, Jamtara, Satish Chandra Das, which has been marked as Exhibit-2. The fardbeyan recorded by A.S.I. Kamdeo Prasad has been proved and marked as Exhibit-1. 10. Heard, Mr. Nehru Mahto, learned Additional Public Prosecutor appearing for the State. Learned Additional Public Prosecutor appearing for the State, while supporting the impugned judgment of conviction and order of sentence, has submitted that the same has been passed by the learned trial court on the basis of the material available on record, as such, the learned trial court has rightly convicted the appellants. Learned counsel for the State has vehemently argued this case and submitted that non-examination of the Investigating officer has not caused any prejudice to the appellants, as the appellants have never filed an application to cross-examine the Investigating officer as a Court witness. Learned counsel for the State has further submitted that the informant being a member of weaker section of the society has been tortured since long by the appellants and their father and after being tortured for long time, the informant has filed a case against the appellants, as such, the learned trial court has rightly convicted the appellants. 11. Heard, Mr. Manoj Tandon assisted by Mrs. Kumari Rashmi and Mr. Binay Kumar, learned counsels appearing for the appellants and Mr. 11. Heard, Mr. Manoj Tandon assisted by Mrs. Kumari Rashmi and Mr. Binay Kumar, learned counsels appearing for the appellants and Mr. Nehru Mahto, learned Additional Public Prosecutor appearing for the State and perused the entire records including the First Information Report, the charge framed against the appellants and the evidence of all the prosecution witnesses, exhibits up-to Exhibit-2 proved by the prosecution and statement of accused/appellants recorded under Section 313 Cr.P.C. and the defence documents up-to Exhibit-F as well as the impugned judgment of conviction and order of sentence. From perusal of the material available on record, it appears that neither the informant (PW-5) nor the other prosecution witnesses have stated that any occurrence was committed in public view nor a single witness has witnessed the occurrence, while the occurrence was committed by the accused/appellants against the informant, rather the witnesses have stated that the father of the appellants, Kanu Dayal has thrown mud upon Yasoda Devi (PW-4), but they could not say about date and time of throwing such mud by Kanu Dayal, who is now dead. The witnesses examined on behalf of the prosecution could not establish, the exact date and time of the occurrence, coupled with the fact that non-examination of the Investigating officer has caused serious prejudice to the appellants, as they have not been afforded an opportunity to cross-examine him to elucidate all facts, which are essential and relevant for adjudication of the present criminal case. It appears from the record that the informant (PW-5-Ramu Das) has filed this case soon after his conviction along with another witness, Guhan Das (PW-11) in a case filed by Kanu Dayal, father of the appellants and there are vital contradictions in the evidence of the prosecution witnesses. As per the prosecution witnesses, there is no drainage in their Mohalla and as such, the prosecution has failed to establish that from which drainage the mud was taken by one of the accused, Kanu Dayal, who died subsequently, which was thrown by him on Yasoda Devi (PW-4), mother of the informant. In absence of strict proof under the Special Act, where stringent punishment is there, the Court must take a serious view and scrutinize the evidence properly. In absence of strict proof under the Special Act, where stringent punishment is there, the Court must take a serious view and scrutinize the evidence properly. From perusal of the evidence, it appears that charge has been framed against the appellants under Section 3(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 where, no specific time or place of alleged occurrence has been mentioned. Further more, 3(x) is not a section to be charged, it ought to have been Section 3(i)(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. It appears to the Court that the Act has been framed and enacted in the year 1989, but some of the incidents alleged to have been committed prior to the year 1989. Under the aforesaid background coupled with the fact that the evidence of the prosecution witnesses is contradictory to each other. This Court is of the opinion that under the Special Act, the appellants cannot be convicted, as the place of occurrence, time of occurrence or manner of occurrence have not been proved by the prosecution nor evidence has been brought on record to establish that the appellants have committed occurrence in public view, which is also lacking in the present case. From perusal of the entire evidence brought on record, no date and time of occurrence has been alleged in the fardbeyan or deposition of the informant (Ramu Das) who has been examined as PW-5. The learned trial court has committed an error while framing of charge coupled with the fact that non-examination of the Investigating officer has caused serious prejudice to the appellants nor prosecution has brought evidence with respect to public view and as such, the appellants deserves to be acquitted of the charge and conviction under Section 3(x) of the Scheduled Caste and Scheduled Tribe(Prevention of Atrocities) Act, 1989, as father of these appellants filed a case in which the informant has been convicted and there is inherent lacunae in prosecution case. 12. Accordingly, the Judgment of conviction and order of sentence, both dated 13.01.2004, passed by the learned 1st Additional Sessions Judge-cum-Special Judge, Jamtara in Special Case No. 12 of 1999 and 22 of 2002, is hereby set aside. 13. Accordingly, the present Criminal appeal stands allowed. 14. The appellants, who are on bail, are discharged from the liability of their bail bonds. 15. 13. Accordingly, the present Criminal appeal stands allowed. 14. The appellants, who are on bail, are discharged from the liability of their bail bonds. 15. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.