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2018 DIGILAW 229 (JHR)

Kuldeep Sao v. State of Jharkhand

2018-01-29

RATNAKER BHENGRA

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JUDGMENT : RATNAKER BHENGRA, J. This present appeal is directed against the judgment of conviction dated 9.12.2009 and order of sentence dated 15.12.2009 passed by learned Additional Session Judge, F.T.C.-I, Palamau in S.T. No. 200/2008 with S.T. No. 401/2008, arising out of Lesliganj P.S. Case No. 98/2006, corresponding to G.R Case No. 1694/2006 whereby and whereunder both the appellants have been convicted under Sections 147, 148, 436/149 and 380 of the IPC and sentenced to R.I. for seven years and fine of Rs. 3,000/- and in default of payment of fine three months S.I. under Section 436 of the IPC, R.I. for three years and fine of Rs. 1,000 and in default of payment of fine one month S.I. under Section 380 of the IPC and R.I. for two years under Section 148 of the IPC and all the sentences of each convict ordered to run concurrently. 2. The brief facts of the case of the prosecution is that Lesliganj P.S. Case No. 98/06 dated 8.12.06 was registered under Sections 147. 148. 149. 379. 448. 427. 436 and 435. IPC and 17 C.L.A. Act against above noted both accused persons along with 23 other named accused persons on the basis of the written report of informant Sudeshwar Prasad Singh @ Buddhu Singh in which he had alleged that at about 11 p.m., at night on 4.12.2006 both above noted accused persons along with 23 other named accused persons whose names have been given in the written report, all armed with guns and rifles broke open the door of his house, entered inside the house, tied his hands, took out attachi containing ornaments and took the informant and others out of the house and after sprinkling petrol, set fire in his residential house as well as burnt other things to ashes. Thereafter, they also burnt the house of ex-mukhiya Kamla Prasad Singh. He suffered a loss of about Rs. Five lacs because of the same. 3. On the basis of written report of informant Lesliganj P.S. Case No. 98 of 2006 was registered under Sections 147, 148, 149, 379, 448, 427, 436 and 435. IPC and 17 CLA Act. After investigation of the case charge-sheet was submitted against accused. Thereafter the case was committed to the Court of Sessions and charges were framed to which they pleaded not guilty and claimed to be tried. 4. IPC and 17 CLA Act. After investigation of the case charge-sheet was submitted against accused. Thereafter the case was committed to the Court of Sessions and charges were framed to which they pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined six witnesses. Two more witnesses were examined as Court witnesses. After the evidence for the prosecution, statements of both the accused persons were recorded under Section 313 of the Cr PC in which they denied the circumstances that have appeared against them in evidence and have claimed their innocence. 5. Trial was conducted, and at the conclusion of the trial, the appellants were convicted and sentenced as aforesaid. Hence, this appeal. 6. PW 6 Sudeshwar Prasad Singh, the informant has deposed that he was sleeping at the said time when the door was broke open by 22-25 persons and they pushed his brother, sister and him out side. They threw petrol on the house and burnt the house and also burnt the Mukhiya’s house. He further deposed the other accused including these two appellants were present during the incident. He further deposed that his brother Muneshwar wrote written report and he signed on it and he proved his signature on it which was marked as Ext.1. He deposed that the police had taken his restatement. He further deposed that both the two appellants facing trial were from his village. He has deposed that he knows the mother of these appellants whose name was Kunti Devi and he does not know whether Kunti Devi lodged a complaint case against them nor does he have any knowledge of any compromise. He further deposed that he does not know about the blowing up of the appellants house by the extremist and whether case was lodged by Kunti Devi. He further deposed that no one came out because of gun and rifles but people came out after the accused left. He further said that during the time, they had taken contract over a building of school and there was no dispute regarding labourer. He further said that he did not say his sister and brother were taken out of the house. He further deposed that the police had came after a short time and he had showed the police the burnt door. When police came his brother and sister were present. 7. He further said that he did not say his sister and brother were taken out of the house. He further deposed that the police had came after a short time and he had showed the police the burnt door. When police came his brother and sister were present. 7. PW I, Imamuddin Ansari, who is a co-villager. He deposed that incident was of two years ago and that Buddhu Singh and Mani Shankar had contract and “party people” were asking for levy, but they did not give the levy. He further deposed that because levy was not given by Buddhu Singh so his house was burnt. However, who did the occurrence, he does not know. This witness further deposed that he did not recognize the appellants. 8. PW 2 Rookdeo Mahto. He is also a co-villager and he said that incident is of about 1 and 1/2 years ago. He said that at 3 a.m. in the morning when he was going for nature calls then he saw the red light. In the morning, he came to know that Kamla Singh and Buddhu Singh’s house was burnt. He further said that Chavinath Singh and Buddhu Singh had previous land dispute amongst themselves. Manis Shankar had taken contract for road and levy was demanded by extremist. This witness further deposed that he did not recognize the appellants. 9. PW 3 is Baijnath Sharma. He deposed that the house of Buddhu Singh and Kamla Singh was burnt. Alarm was made that extremist had burnt the house. The house doors and grain was burnt but he does not know by whom. 10. PW 4 is Basant Kumar Verma. He deposed that the incident is of two years ago and of 12 0’clock in the night and at that time, he was at home. In the morning, he came to know that Buddhu Singh and Mani Singh house was burnt. However, he does not know who burnt the house and why the incident happened, he does not know. He had told the Dy. S.P. that Chavinath Singh and Sudheshwar Singh had land dispute between them and both are relatives. He also deposed that he did not recognize the accused persons. 11. PW 5 is Bairangi Yadav. He is a hearsay witness. 12. CW 1 is Muneshwar Kumar Singh. He is a Court witness. He had told the Dy. S.P. that Chavinath Singh and Sudheshwar Singh had land dispute between them and both are relatives. He also deposed that he did not recognize the accused persons. 11. PW 5 is Bairangi Yadav. He is a hearsay witness. 12. CW 1 is Muneshwar Kumar Singh. He is a Court witness. He deposed that the incident occurred on 4.12.2006 at 11 0’clock at night and he was sleeping in his house and his brother and sisters were also there. He named many accused persons including these two appellants. He deposed that door was broke open and that the inmates of the house were put out side. Nasim had one gallon of petrol and he put fire to his khaliyan and house. He further deposed that accused persons then went to the house of Kamla Singh and also burnt his house. He does not know why they did this and he claimed to recognize the appellants. In his cross-examination, he deposed that his house is at a distance of 1/2 k.m., from the appellants’ house and there is no visiting terms with the appellants. He does not know the mother of the appellants but their father’s name is Ramdeo Sao. He further deposed that he does not know whether appellants mother had lodged a case of house trespass or Section 457 of the IPC. He further deposed that on 5.12.2006, police had come but police had not recorded his statement. He was deposing for the first time in the Court. He deposed that he did not show door to the police because the house had been burnt and that they had not tried to put off the flames. The house of Kamla Singh is at a distance of 150 ft. away and in between Latif Mian and Abdul Mian lived. In paragraph 22, he denied that there is enmity with Dilip Sao and Kuldeep Sao and due to that they have lodged a case because their mother had lodged a case against them. However, he deposed in para 22 that between them land dispute is going on. 13. CW 2 is Rambha Devi. She is also a Court witness. In her deposition, she named many of the accused including the current appellants. However, he deposed in para 22 that between them land dispute is going on. 13. CW 2 is Rambha Devi. She is also a Court witness. In her deposition, she named many of the accused including the current appellants. This witness deposed that Kuldeep Sao and Dilip Sao had taken the brothers out of the house and Ramdeo Sao had taken the jewellery box and then Ramdeo Sao ordered to burn the house and said that if they give evidence then they will bum their children and also their in-laws place and then they burnt the khaliyan. Then went to Kamal Singh’s house and burnt his house. This witness, further deposed that she does not know the name of the appellants’ mother and that she had never met her. She further deposed that she has lived in village since her birth. Kuldeep Sao’s mother does not come to their house. The two accused persons came to their house for the first time at the time of incident. When her brother Sudheshwar was being tied, both she and Munesliwar did not raise any alarm. She further deposed that she does not know whether Kunti Devi had lodged case for trespass against her brother and she does not know whether any dispute between both the sides exists. 14. Counsel for the appellant argued that the appellants are co-villagers and they should be well known in the village. However, names of both the appellants do not figure in any specific role and only to the extent that they had taken them out side the house. This has come in the evidence of CW 2 who is the sister of PW 6. Regarding petrol and that it was carried and use to set aflame the house, that refers to another person. Counsel for the appellants has then argued that PW I, PW 2, PW 3 and PW 4 have either referred to extremists in general or that they did not recognize the accused persons and they do not allege any specific action, including the appellants. PW 5 is only a hear say’ witness. Counsel says that all these PW 1 to PW 5 are independent witnesses but they have not said anything incriminating against the appellants. PW 5 is only a hear say’ witness. Counsel says that all these PW 1 to PW 5 are independent witnesses but they have not said anything incriminating against the appellants. He has then also argued that the place of occurrence and the police station is only at a distance of 7 k.m., easily accessible by common mode like cycle and motorcycle but the FIR was lodged on the next day at 9.30 a.m., and this delay was done only to manufacture and concoct the case. Counsel for the appellants has then argued that in para 16 of the evidence of Sudheshwar, there is reference to the house of the appellants being blown up by the extremists and therefore argued that if the appellants house themselves was blown up by the extremists then how can the appellants themselves be extremists themselves. Counsel for the appellants has also pointed out to para 20 of the evidence of CW 2 where there is a reference to Section 457, IPC case that has been lodged by the Kunti Devi, mother of the appellants and that though CW 2 has denied having knowledge of this case, counsel for the appellants says the said case existed from before and there was inimical term between both the parties and hence the case was lodged against the appellants by the informant. Counsel has also pointed out one minor inconsistency in the evidence of CW 1 at para-16 where, he said that door was not shown because house was burnt, however, in written report it was said that the door was broken. 15. Learned counsel for the State, learned APP has submitted that all the independent witnesses PWs 1 to PW 4 had at least proved the occurrence and the place of occurrence including the PW 5 though they may not have directly named the appellants or other accused. PWs 1 to 4 also mentioned about the enmity and therefore, the occurrence has taken place because of motive of enmity. He has also argued in the FIR several persons have been named including these appellants, so at the first instance itself the appellants have been named, so it cannot be said that it is a concocted case. PWs 1 to 4 also mentioned about the enmity and therefore, the occurrence has taken place because of motive of enmity. He has also argued in the FIR several persons have been named including these appellants, so at the first instance itself the appellants have been named, so it cannot be said that it is a concocted case. Regarding the evidence of PW 6, who is informant, APP has submitted that he has fully supported the case of the prosecution and named these two appellants, hence they are fully involved in the offence alleged for. Learned counsel further said that CW 1 and CW 2 are reliable and trustworthy witnesses and it has come that they were present at home and no where it has been said that they were not present at home or at the time of occurrence. Hence by the evidence of CW 1 and CW 2 itself, the offences can be made out against the appellants. FINDINGS 16. Having heard counsel for both the sides, going through the case records and considering the facts and circumstances of the case, the incident took place in the background of differences, dispute and even enmity between the parties. It has come that the parties belong to the same village and witnesses have admitted that they were not on visiting or talking terms. Normally, in the villages, people know each other and are in visiting or talking terms. From the evidence of the witnesses, it seems there was element of cordiality lacking in the relationship of the parties. Moreover, the appellants have referred to the house trespass case and claimed inimical terms and for which this case was lodged against them. The witnesses have, on the other hand, sought to deny the case. The enmity between the parties has been referred to by the counsel for the appellants by referring to the evidence of PWs 1 to 4. In a case of enmity, it is a matter that cuts both ways and any of the party can be aggressors. Hence, in this case when all the independent witnesses have not made any categorical identification of any of the accused or the appellants and only the accusations of the interested party or the informant side is there, then a lot would depend on the truthfulness and reliability of the interested witnesses. Hence, the case would rest on circumstantial evidences. Hence, in this case when all the independent witnesses have not made any categorical identification of any of the accused or the appellants and only the accusations of the interested party or the informant side is there, then a lot would depend on the truthfulness and reliability of the interested witnesses. Hence, the case would rest on circumstantial evidences. In this case, I see that the 1.0. was not examined and in this case it would have been crucial for the 1.0. to have been examined who could have thrown more light on the basis of the investigation made regarding the place of occurrence, manner of occurrence and the evidences of the witnesses. In the absence of concrete witnesses and only evidence of the interested parties from the informant side as well as the lack of examination of the 1.0. leads me to give benefit of doubt to the appellants. 17. Hence, the appellants are acquitted of the charges under Sections 147, 148, 436/149 and 380 of the IPC. Accordingly the judgment of conviction and order of sentence dated 9.12.2009 and 15.12.2009 respectively passed by the learned Additional Sessions Judge, F.T.C.-I, Palamau in S.T. No. 200/2008 with S.T. No. 401 of 2008 is set aside. Appellants are discharged from the liabilities of their bail bonds. 18. Accordingly, both these appeals are allowed. Appeals allowed.