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2018 DIGILAW 2228 (JHR)

Bishnu Rakshit v. State of Jharkhand

2018-10-08

KAILASH PRASAD DEO

body2018
JUDGMENT : Heard, learned counsel for the appellants, Mr. Anurag Kashyap, Advocate and Mr. Sudhir Kumar Roy, learned Additional Public Prosecutor, appearing for the State. 2. The instant Criminal appeal is directed against the judgment of conviction dated 24.08.2004 and order of sentence dated 28.08.2004, passed by the 1st Additional Sessions Judge, Bokaro, in Sessions Trial Case No. 46 of 2001, whereby, these appellants have been convicted for the offence committed and punishable under Sections 325 and 506 of the Indian Penal Code and awarded each of the convicts simple imprisonment for the period of two years for the offence committed and punishable under Section 325 of the Indian Penal Code and simple imprisonment for the period of three months for the offence committed and punishable under Section 506 of the Indian Penal Code. Both the sentences are directed to run concurrently. 3. The prosecution case, is based upon, fardbeyan of Janaki Devi (P.W1) recorded by Sub-Inspector, B. R. Bhagat of Bokaro Steel City Police Station on 12.10.1999 at 19.30 hrs, wherein, the informant has stated, that today i.e. on 12.10.1999 at around 3.00 P.M. when she was in her house, brothers of her sister-in-law (gotni) namely, Bishnu Rakshit and Pran Rakshit came to her house and began to abuse her. In the process, they had threatened her with dire consequences if she would not withdraw the criminal case lodged by her against them. When the informant refused to withdraw the case, it is alleged that both the accused persons began to assault her with lathi in their hands. It is further alleged that the accused persons have assaulted informant on her hands, feet and back and as a result of such assault, the ankle of her right leg and the thumb of her right hand got fractured and the sole of her left leg also got swelling. It is further alleged that accused persons have also assaulted her brother-in-law, Gopal Modak, who came to save her, because of that he has also sustained injury for which treatment is going on. 4. On the basis of the fardbeyan of the informant, the Police has registered First Information Report bearing Bokaro Steel City, P.S. Case No. 367 of 1999, dated 12.10.1999, under Sections 307/325/506/34 of the Indian Penal Code. 5. After investigation, the police has submitted charge sheet vide charge sheet no. 4. On the basis of the fardbeyan of the informant, the Police has registered First Information Report bearing Bokaro Steel City, P.S. Case No. 367 of 1999, dated 12.10.1999, under Sections 307/325/506/34 of the Indian Penal Code. 5. After investigation, the police has submitted charge sheet vide charge sheet no. 495 of 1999, dated 31.10.1999, under Sections 307/325/506/34 of the Indian Penal Code against both the accused persons. 6. The cognizance of the offence has been taken vide order dated 06.12.1999 and the case has been committed to the Court of Sessions vide order dated 09.02.2001. 7. The learned trial Court has framed charge against both the appellants, on 08.05.2002, under Sections 325, 307/34 and 506 of the Indian Penal Code, to which the appellants have pleaded their innocence and thus, they were put under trial. 8. The prosecution, in order to prove its case, has examined altogether six witnesses and also exhibited documentary evidence. Janaki Devi, (victim and informant of the case) has been examined as P.W.1, Gopal Modak (brother-in-law of the victim and injured witness) has been examined as P.W.2, Hanspati Modak (hearsay witness) has been examined as P.W.3, Prahlad Prasad Verma has been examined as P.W.4 and has been delcared hostile by the prosecution, Rajesh Das has been examined as P.W.5 and has also been declared hostile by the prosecution and Dr. Sharwan Kumar (Medical Officer) has been examined as P.W.6. Right hand thumb impression on fardbeyan of the informant has been proved and marked as X for identification and Medico legal case register dated 12.10.1999 at 7.40 P.M. and dated 12.10.1999 at 8.15 P.M. have been proved and marked as exhibits-1 and 1/A respectively. 9. After closure of the prosecution evidence, the statement of the appellants have been recorded under Section 313 Cr.P.C., on 21.02.2004, to which the appellants have pleaded their innocence and stated that there is no legal evidence against them. 10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has passed the impugned judgment of conviction and order of sentence. Being aggrieved at and dissatisfied with the same, the present criminal appeal has been preferred by the appellants before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence. 11. Heard, learned counsel for the appellants, Mr. Anurag Kashyap, Advocate. Being aggrieved at and dissatisfied with the same, the present criminal appeal has been preferred by the appellants before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence. 11. Heard, learned counsel for the appellants, Mr. Anurag Kashyap, Advocate. 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 the eyes of law. Learned counsel for the appellants has further submitted, that prosecution case is only based upon the statement of the informant, Janaki Devi (P.W.1), as P.W.2 Gopal Modak, who is brother-in-law of the informant, has not supported the prosecution case and has been declared hostile by the prosecution. Hanspati Modak (P.W.3) is a hearsay witness. P.W.4, Prahlad Prasad Verma and P.W.5, Rajesh Das have also been declared hostile by the prosecution. Learned Counsel for the appellants has further submitted, that Dr. Sarwan Kumar(P.W.6) has proved the injury reports of Janaki Devi (P.W.1) and Gopal Modak(P.W.2), which have been marked as exhibits-1 and 1/A respectively, but none of the injury mentioned in the injury reports show any fracture injury. The Dr. Sarwan Kumar (P.W.6) has referred patient before orthopedic doctor but injury report of orthopedic doctor has not been brought on record as such, the conviction of the appellants in absence of injury report of orthopedic doctor and non-examination of the investigating officer cannot sustain in the eyes of law. Learned Counsel for the appellants has further submitted, that statement of the informant Janaki Devi is the sole basis for conviction of the appellants but the evidence brought by Janaki Devi as P.W.1 is contrary to the statement made by informant Janaki Devi in her fardbeyan and as such, the conviction of the appellants on the sole testimony of P.W.1, which is itself contradictory in nature cannot sustain in the eyes of law. Learned counsel for the appellants has drawn attention of this court towards, the First Information Report, where the informant has alleged that, she was assaulted by both the accused persons by means of lathi, causing fracture of her right ankle, swelling of sole of her left leg and fracture of the thumb of left hand. This witness has further alleged that when her brother-in-law Gopal Modak came for rescue, he was also assaulted. This witness has further alleged that when her brother-in-law Gopal Modak came for rescue, he was also assaulted. The informant has alleged that, occurrence took place as the accused persons, were asking this witness to withdraw the case of muder of her husband, but as a matter of fact that case was filed by brother-in-law of present informant. Learned Counsel for the appellants has drawn the attention of this court towards para-18 of the cross-examination of the P.W.1, where the informant has categorically stated that, the initially the accused persons have assaulted her brother- in-law, Gopal Modak and subsequently, they have assaulted the informant, which is contrary to the fardbeyan of the informant. Learned Counsel for the appellants has further submitted, the doctor (P.W.6) has found four injuries on the person of the informant. These injuries are as follows:- 1. small bleeding puncture wound 1 c.m., 3” above ankle joint on right leg. 2. Blunt trauma on the left foot. 3. Blunt trauma on the left index finger. 4. Abrassion on left knee joint. Learned Counsel for the appellants has further submitted, that the patient was referred to orthopedic doctor, Dr. B. Sharma. But said doctor has not been examined nor the medical paper of the victim issued by Dr. B. Sharma has been brought on record. Learned Counsel for the appellants has further submitted, that from perusal of the injury report and comparing the same with evidence of P.W.1 as well as her fardbeyan, there is vital contradiction in the prosecution case and as such, the appellants cannot be convicted on the basis of sole testimony of the informant. Learned Counsel for the appellants has further submitted, that under the aforesaid background and in absence of examination of the investigation officer or Dr. B. Sharma, orthopedic doctor and non-availability of any document to suggest, that informant has sustained any fracture injury, which may be considered as grievous in nature as defined under Section 320 of the Indian Penal Code, the appellants cannot be convicted under Sections 325 and 506 of the Indian Penal Code considering the fact that informant (P.W.1) has also lodged a case of rape against the appellants prior to this case. Under the aforesaid circumstance, in the background of animosity between the parties, the appellants cannot be convicted without having any legal material on record. 12. Heard, learned counsel for the State, Mr. Under the aforesaid circumstance, in the background of animosity between the parties, the appellants cannot be convicted without having any legal material on record. 12. Heard, learned counsel for the State, Mr. Sudhir Kumar Roy, Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence has been passed by the learned trial Court on the basis of material available on record. Learned counsel for the State has further submitted, that informant has supported the case as made out in the fardbeyan and the doctor has also found injury on legs of the informant though there is some minor contradiction with regard to the place of injury on the person of the victim, as such impugned judgment of conviction and order of sentence, does not require any interference by this Hon’ble Court. 13. Heard, learned counsel for the appellants Mr. Anurag Kashyap, Advocate and Mr. Sudhir Kumar Roy, learned Additional Public Prosecutor appearing for the State and perused the records, i.e First Information Report, framing of the charge, evidence of six prosecution witnesses, two exhibits of the prosecution side and the statement of the appellants recorded under Section 313 Cr. P. C. as well as impugned judgment of conviction and order of sentence. This Court has scrutinized the evidence of the prosecution witnesses. From perusal of the evidence of the prosecution witnesses, it appears that P.W.2, Gopal Modak has not supported the prosecution case though he has been cited as injured witness but has been declared hostile by the prosecution. P.W. 3 Hanspati Modak is a hearsay witness. P.W.4 Prahlad Prasad Verma and P.W.5 Rajesh Das have been declared hostile by the prosecution as such, the evidence of the informant, Janaki Devi (P.W.1) and evidence of Dr. Sarwan Kumar (P.W.6) are only relevant for adjudication of the present appeal. From evidence of P.W.1 Janaki Devi, it appears that, there are vital contradictions in her fardbeyan and in her deposition as P.W.1. As per the statement made in her fardbeyan, she was initially assaulted by the accused persons but while cross-examining in the Court as P.W.1, she has stated in para-18 that initially her brother-in-law, Gopal Modak was assaulted by the accused persons though Gopal Modak(P.W.2) has already been declared hostile by the prosecution. As per the statement made in her fardbeyan, she was initially assaulted by the accused persons but while cross-examining in the Court as P.W.1, she has stated in para-18 that initially her brother-in-law, Gopal Modak was assaulted by the accused persons though Gopal Modak(P.W.2) has already been declared hostile by the prosecution. The informant has claimed that, she was assaulted on her hand, leg and back but the injury report, which has been marked as exhibit-1, does not show any injury on the back of the informant. The informant while deposing as P.W.1 has stated, that she was indiscriminately assaulted by the accused persons on the back but the doctor has not found any injury on the back of the informant. Since the conviction of the appellants have been passed on the basis of evidence of P.W.1 by the learned trial Court, this court has scrutinized the evidence of the informant (P.W.1) and compared the same with fardbeyan and injury report. From perusal of the same there appear vital contradiction with regard to manner of occurrence and the injury sustained by the informant on her person. This Court has also noticed that the investigating officer has not been examined in this case and as such, this Court is extending the benefit of doubt in favour of the appellants as there are major contradictions in the evidence of the informant from her own fardbeyan. Under the aforesaid background, as discussed above, this Court is of the opinion that the impugned Judgment of conviction and order of sentence, cannot sustain in the eyes of law. Accordingly, the impugned judgment of conviction dated 24.08.2004 and order of sentence dated 28.08.2004, passed by learned 1st Additional Sessions Judge, Bokaro, in Sessions Trial Case No. 46 of 2001, arising out of Bokaro Steel City, P.S. Case no. 367 of 1999 corresponding to G. R. case no. 1218 of 1999, is hereby set aside by giving benefit of doubt. 14. In the result, the instant criminal appeal stands allowed. 15. The appellants, who are on bail, are discharged from the liability of their respective bail bonds. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. Appeal Allowed.