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Jharkhand High Court · body

2018 DIGILAW 2709 (JHR)

Jethu Singh v. State of Jharkhand

2018-12-11

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT : 1. Heard the parties. 2. This appeal has been preferred by the appellants being aggrieved by the Judgment of conviction and order of sentence dated 10.1.2006 passed by the learned Additional Sessions Judge, (FTC)-IX, Giridih, in Sessions Trial No. 104 of 1997 whereby and whereunder, the appellants, Jethu Singh and Bhuneshwar Singh have been held guilty and sentenced as mentioned in the table below : Accused Conviction under Sections Sentence Both Jethu Singh and Bhuneshwar Singh Section 147 of IPC R.I. for two years. Section 341 of IPC S.I. for one month. Section 342 of IPC R.I. for one year. Section 323 of IPC R.I. for one year. Section 325 of IPC R.I. for five years with fine 3. The case of the prosecution as unfolded in the fardbeyan of the informant PW3- Govind Prasad Mehta in brief is that on 06.08.1995, the informant with five labourers while working in his field at about 2.00-3.00 PM, suddenly a person came there wearing Khaki uniform with black cap and blew whistle . Thereafter, two persons with Khaki dress reached there. One was with a black cap and the other was with red cap reached there from the side of the field. Two persons who were wearing lungi and vest also came to the place of occurrence field. Out of the three persons, who were in Khaki uniform, one was armed with gun and one was armed with rifle like police and the third one was having a stick (lathi). The persons wearing lungi and vest were of village Adwara and are the appellant-accused persons of this appeal. All the five persons together tied the hands of the informant on his back side and assaulted him with stick and butt of the gun. While assaulting, they forbade the informant to come to the said field. The informant somehow, managed to reach the house of Ram Narayan Singh and claimed to identify the three persons who were in uniform. The informant fell near the house of Ram Narayn Singh and became senseless. On regaining the sense, the informant found himself in the house of Nakul Singh. On the basis of the fardbeyan of the informant, police registered Bagodar P.S. case No. 174 of 1995 and took up the investigation of the case. Upon completion of the investigation, police submitted the police report. 4. On regaining the sense, the informant found himself in the house of Nakul Singh. On the basis of the fardbeyan of the informant, police registered Bagodar P.S. case No. 174 of 1995 and took up the investigation of the case. Upon completion of the investigation, police submitted the police report. 4. Upon commitment to the case to the Court of Session and charges for the offences punishable under Sections 147, 341, 342, 323, 305 and 307 of IPC were framed against the appellant-accused persons and upon the appellant-accused persons pleading not guilty to the charges, they were put to trial. 5. In support of its case, the prosecution has altogether examined seven witnesses. Out of the seven witnesses examined by the prosecution P.W.3- Govind Prasad Mehta is the informant of the case. He has stated that the occurrence took place on 06.08.95. At the time of the occurrence, he was in his field. The occurrence, took place at about 3.00-4.00 PM. Five persons came from the southern side. The first person came and blew whistle. Thereafter, two persons came in uniform. Then, another set of two persons came. One was armed with rifle and other was armed with gun. Third person was having a small arm with him. Jethu Singh was armed with bhala (a heavy sharp cutting weapon). He was wearing a lungi and vest. The other person was Bhuneshwar Singh. The persons who were armed with rifle and gun fired one shot each and assaulted PW3 with butt of the gun. PW 3 was assaulted on his left hand with tangi and little finger of his left hand with stick. They assaulted below the left hand, shoulder with the butt of the gun. PW3 was assaulted all over his body. He also sustained injury above the right eye. They threw PW3 in bushes. After assaulting him, they untied the hands of PW3. After some time, when PW3 felt better, he dragged himself up to the house of Ram Narayan Singh and fell down there and became senseless. When PW3 regained the sense, he found himself in the house of Post Master Nakul Singh. The police recorded the statement of PW3 at Adwara in the morning of 7th and PW3 signed on his statement. On being proved by him, his signature on the fardbeyan was marked as Exhibit 1. When PW3 regained the sense, he found himself in the house of Post Master Nakul Singh. The police recorded the statement of PW3 at Adwara in the morning of 7th and PW3 signed on his statement. On being proved by him, his signature on the fardbeyan was marked as Exhibit 1. In his cross -examination, PW3 has stated that he does not have quarrel with the appellant–accused persons. He knew Bhuneshwar Singh before the occurrence. He heard about the name of Bhuneshwar Singh from his associates. He cannot say why he was assaulted. In paragraph 10 he has stated that in the house of Nakul Singh, Nakul Singh and his family members was present to whom he disclosed about the occurrence. His brother Nunu Lal Mehta informed the police. PW3 purchased the land from Nakul Singh. 6. PW1- Nakul Lal Singh was a former Post Master. He stated that the occurrence took place on 06.08.1995 at about 2.30 to 3.00 PM. He heard the sound of firing while standing at his door. He proceeded towards the place from where sound was coming. He saw that five persons were assaulting PW3 with stick and gun. His hands were tied. Out of the assailants, PW1 identified the appellant accused persons- Jethu Singh and Bhuneswar Singh but he could not identify the rest three persons. The assailants untied hands of PW3 and were talking amongst themselves that PW3 is dead. In his cross-examination, he has stated that the appellant accused persons are own brothers. He knows both the appellant accused persons since childhood. The place of occurrence is about ½ km from his house. It takes 10-15 minutes to reach the field from the house of PW1. His attention was drawn towards the statement made by him before the police, to which he denied. In paragraph 18, he has stated that he watched the occurrence for about five minutes and thereafter he went back to his house. 7. PW2- Kalpur Mahta has stated that the occurrence took place about the year 1994 in the month of Sawan at about 4.00 PM. He was in his field. He saw 5-7 persons with their head tied in towel (gamchi) came there. Jethu Singh was armed with Bhala and rope. Bhuneshwar Singh was armed with lathi and tangi and others were armed with stick and lathi. He was in his field. He saw 5-7 persons with their head tied in towel (gamchi) came there. Jethu Singh was armed with Bhala and rope. Bhuneshwar Singh was armed with lathi and tangi and others were armed with stick and lathi. The appellant- accused persons asked PW3 why he was working there at which PW3, told that since the field belongs to him, he will work there. There was hot exchange of words. Bhuneswar Singh and Jethu Singh tied the hands of PW3 and made him fell down by assaulting him and threw him over bushes and fled away. PW2 fled away towards the hill and came to his house and intimated in the police station. Lal Khandis (leftist extremists) were with the appellant accused persons. They were armed with rifles. He identified the appellant accused persons in court. In his cross-examination, PW2 has stated that he saw the occurrence with his own eyes as he was standing there. He was cross-examined vis-à-vis his statement recorded before the police. He knew Bhuneswhar Singh and Jethu Singh before the occurrence. 8. PW4- Mahesh Singh has stated that the occurrence took place at about 9 years prior to his examination in the court. At 10.00 AM, PW3 was working in his field along with PW4 and four laborers. Two persons in police dress came there and two persons wearing lungi also came there. They were armed with rifle, gun and lathi. They fired and after catching hold of Govind, tied him with a rope and assaulted him. Out of fear, PW4 went towards jungle. In his cross-examination, PW4 has stated that there was quarrel between PW3 and the appellant –accused persons in respect of the place of occurrence land. 9. PW5- Chatu Lal Gupta is part I.O. of the case. He has only submitted the charge sheet in the case. On being proved by him, the fardbeyan of the informant has been marked as Exhibit 2. In his cross-examination, he has stated that he has not done anything notable in connection with the investigation of the case. 10. PW 6- Kedar Rai, is the formal witness. He is an advocate clerk. On being proved by him, the formal FIR has been marked as Exhibit 3. In his cross-examination, he has stated that the same was not written in his presence. 10. PW 6- Kedar Rai, is the formal witness. He is an advocate clerk. On being proved by him, the formal FIR has been marked as Exhibit 3. In his cross-examination, he has stated that the same was not written in his presence. PW6 has also been examined again as PW7 and he has further identified the requisition for injury report, which was marked as Exhibit 4 and the injury reports of Dr. S. Jha and Dr. T. Prasad which were marked as Exhibit 5 and 6 respectively. The X-ray plate in the name of Govind Mehta on being identified by PW7 has been marked as Exhibit 7. In his cross-examination, he has stated that he has neither worked with Dr. S. Jha nor with Dr. T. Prasad nor he has any personal knowledge about the documents identified by him. 11. After closure of the evidence of the prosecution, the statements under Section 313 Cr.P.C. of the appellant-accused persons were recorded wherein they denied the allegations made against them. 12. Taking into consideration the evidence in the record, learned court below convicted and sentenced the appellants-accused persons as already indicated above. 13. Mr. Yogesh Modi, learned counsel for the appellants submits that learned court below failed to appreciate the evidence in the record in its correct perspective and failed to take into account the fact that the prosecution has improvised its case from the initial case made out in the fardbeyan. It is further submitted by Mr. Modi that learned court below erred by not considering the major contradictions in the testimonies of the witnesses of the prosecution as the testimony of PW3 that he narrated the occurrence to PW1, rules out that the PW1 was the eye witness of the occurrence as claimed by him and the learned court below also failed to consider the discrepancy in the description of the number of the accused persons as though PW2 has stated that they were 5-7 accused persons, PW4 has stated that there were only four accused persons. It is submitted that there is also major contradictions in the testimonies of the witnesses in respect of the arms which allegedly accused persons were holding and that there is no specific evidence of any assault against the appellant-accused persons and the allegation of assault against them is general and omnibus in nature. Mr. It is submitted that there is also major contradictions in the testimonies of the witnesses in respect of the arms which allegedly accused persons were holding and that there is no specific evidence of any assault against the appellant-accused persons and the allegation of assault against them is general and omnibus in nature. Mr. Modi further submits that learned court below committed grave error in relying upon the medical report which was marked as Exhibit upon identification by advocates’ clerk who has no medical knowledge nor had any occasion of any personal knowledge about the contents therein. It is further submitted by Mr. Modi that since the attention of the witnesses were drawn at length vis-à-vis their statements made before the I.O. in their respective cross-examination. The non-examination of the main I.O. of the case, without any plausible reason, has deprived the appellants of the opportunity of taking out the contradictions made in the statement of the prosecution witnesses in the court vis-à-vis, the statement made before the police and the place of occurrence also could not be proved and thus, in this case, the defence has been highly prejudiced because of the non-examination of the I.O. It is further submitted by Mr. Modi that there is delay in lodging the FIR as though the alleged occurrence took place on 06.08.1995, the same was reported to police on 07.08.1995 at 5.00 AM and forwarded to the court on 08.08.97. It is submitted that the case put forth by the prosecution creates doubt about the occurrence itself as the prosecution witnesses except PW4 have suppressed the dispute regarding the place of occurrence land between the PW3 and the appellant accused persons, which has been categorically admitted by PW4, hence, it is submitted that the appellant–accused persons be acquitted by at least giving them the benefit of doubt. 14. It is submitted by learned Addl. 14. It is submitted by learned Addl. PP that PW3 has categorically stated about the assault made by five persons including the appellant –accused persons and his testimony is corroborated by the testimonies of PWs 1, 2 and 4, hence, it is submitted that the evidence in the record is sufficient to establish each of the charges for which the appellant–accused persons have been convicted and the sentence appears to be proper in view of the evidence in the record, hence, it is submitted that learned court below having rightly convicted and sentenced the appellants, this appeal being without any merit be dismissed. 15. Having heard submissions made at the Bar and after going through the evidence in the record, it is pertinent to mention here that there is improvisations and exaggerations in the case of the prosecution , which is apparent from the fact that though in the fardbeyan, there was no allegation against the appellant –accused persons being armed in any manner, the prosecution witnesses deposed in court about the appellant-accused persons being armed but there is discrepancy in their testimonies also in this respect as has already been indicated above as by which weapon, they were armed with. Further, there is discrepancy regarding the number of assailants as PW2 has stated that there were 5-7 persons, PW4 has stated that there were only 4 persons and PWs 1 and 3 have stated that there were 5 persons. It remains unexplained why the other three accused persons have not been apprehended in connection with the case, though there is specific allegation against them of more serious nature, as they were allegedly armed with fire arms and some of the prosecution witnesses even went to the extent of deposing that they fired also. Perusal of the deposition of PW3 reveals that he has not attributed any specific overt act to the appellant-accused persons in the assault made upon him. He has specifically mentioned that appellant-accused Jethu Singh was armed with bhala and one rope and he has not stated anything to suggest that appellant-accused Bhuneshwar Singh was armed with any weapon. He has specifically stated the he was assaulted with butt of a gun. It is pertinent to mention here that neither of the appellant-accused persons was armed with gun. He has specifically stated the he was assaulted with butt of a gun. It is pertinent to mention here that neither of the appellant-accused persons was armed with gun. Further he has stated that he was assaulted with tangi and his evidence shows that neither of the appellant-accused persons was armed with tangi and he has lastly stated that he was assaulted with lathi but he has not stated that either of the appellant-accused persons was armed with lathi, hence, from the evidence of PW3, it is apparent that he has not whispered a word about the specific assault made by the appellant-accused persons. He has not even stated like other prosecution witnesses that either of the appellant-accused persons or both of them tied his hands. Further, as already indicated above, PW3 has suppressed the fact that he was having land dispute with the appellant-accused persons in respect of the place of occurrence land. In the absence of examination of the doctors, learned court below certainly erred in relying upon opinion of the doctor mentioned in the injury reports which came on record through an advocates’ clerk who had no personal knowledge about the contents therein more so because there is absolutely no evidence in the record to suggest as to why the doctors were not examined in the case. Further, as rightly submitted by Mr. Modi, though attention of the prosecution witnesses were drawn in their respective cross-examination vis-à-vis their statements under Section 161 Cr.P.C. extensively yet, the defence could not bring into the record, the evidence regarding the contradiction in the testimonies of such witnesses vis-à-vis their statements under Section 161 Cr.P.C., because of non-examination of the I.O. In the absence of the examination of the I.O., the place of occurrence could also not be proved. Though there is allegation of firing shots using of several fire arms but there is no evidence in the record to suggest that any of the weapon of offence was seized. In the absence of the examination of the I.O., there is no evidence in the record, as to why no effort was made to apprehend the alleged other assailants though there are specific and graver allegations against them than the appellant-accused persons. In the absence of the examination of the I.O., there is no evidence in the record, as to why no effort was made to apprehend the alleged other assailants though there are specific and graver allegations against them than the appellant-accused persons. Under such circumstances, this court is of considered view that appellant-accused persons have been prejudiced by non-examination of the I.O. So far as the offence punishable under section 147 of the Indian Penal Code is concerned, it is pertinent to mention here that there is no evidence of any common object as it is the case of the prosecution that the assails came from separate direction. The evidence of PW4 shows only four assailants were there. The PW3 deposed that he did not know why he was assaulted. Thus the evidence in the record is insufficient to establish the charge for the offence punishable under section 147 of the Indian Penal Code. 16. In view of the discussions made above this court is of the considered view that this is a fit case where the appellant-accused persons be acquitted by giving them the benefit of doubt. Accordingly, the appellant-accused persons- Jethu Singh and Bhuneshwar Singh are acquitted of all the charges by giving them the benefit of doubt and the Judgment of conviction and order of sentence dated 10.1.2006 passed by the learned Additional Sessions Judge, (FTC)-IX, Giridih in Sessions Trial No. 104 of 1997 being not sustainable in the law, is set aside. Perusal of the record reveals that the appellant-accused persons- Jethu Singh and Bhuneshwar Singh are in custody. In view of their acquittal, they are directed to be released from custody forthwith unless their detention is required in connection with any other case. 17. In the result, this appeal is allowed. 18. With the disposal of this appeal, all pending interlocutory applications in this appeal are disposed of. 19. Let a copy of this Judgment be sent back to the Court concerned forthwith.