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2023 DIGILAW 202 (JHR)

Kundan Gope v. State of Jharkhand

2023-02-20

SUBHASH CHAND, SUJIT NARAYAN PRASAD

body2023
JUDGMENT : I.A. No. 3358 of 2019: 1. The instant interlocutory application has been filed for condoning the delay of 20 days, which has occurred in preferring this appeal. 2. No counter to the delay condonation application has been filed. 3. Having heard the learned counsel for the parties and considering the statements made in this application, we are of the view that the appellant was prevented from sufficient cause in preferring this appeal within time. 4. Accordingly, this interlocutory application is allowed and the delay of 20 days in preferring this appeal, is hereby condoned. 5. In view thereof, the instant interlocutory application stands disposed of. Acquittal Appeal (DB) No. 8 of 2019: 6. The instant appeal under Section 372 of the Code of Criminal Procedure is against the judgment of acquittal dated 04.10.2018 passed by District and Additional Sessions Judge, III, Hazaribag in Sessions Trial No. 17 of 2011, whereby and whereunder, trial commenced for the offence under Section 147, 148, 324, 325 and 307 of I.P.C., has been found to have no substance said to have committed by the respondents and thereby the accused persons, the respondents, have been acquitted from the case as also discharged from the liabilities of their respective bail bonds. 7. The prosecution story in brief as per the information submitted by Kundan Gope, appellant herein, is that on 08.09.2010 at about 9 : 30 p.m., the brother of the informant, namely, Kuldeep Yadav and his friend Durga Gupta had gone for eating Chowmin at a shop near Banshilal Chowk. At that time, accused Lakhan Gope and his son Deepu @ Putan Yadav, accused Raju Gope @ Uma Yadav, Munna Yadav, Ganesh Yadav, Ramesh Yadav, Dablu Yadav, Umesh Yadav were sitting in ambush. The informant has further alleged that one Sarabjeet Yadav was sitting in the back seat of the motorcycle of brother of informant, whereas one Ruchu Gope was sitting on the motorcycle of Durga Gupta and when they were crossing the lane in front of Nagendra Store, all the accused persons surrounded them and they started assaulting the brother and friend of brother of the informant with sword, hockey stick and iron blade. The informant has further alleged that Sarabjeet Yadav and Ruchu Gope, who were sitting on the back seat of motorcycle of the brother of the informant and his friend Durga Gupta fled away and thereafter the accused persons assaulted the brother of the informant Kuldeep Yadav and Durga Gupta and severely injured them. The informant has further alleged that both the injured were taken to Sadar Hospital, from where they were referred to Apollo, Ranchi and both of them are going under treatment in ICU at Ranchi and they are unconscious. The informant has further alleged that prior to this occurrence, the accused persons have damaged the shop of the informant situated near Bus Stand and regarding the said occurrence, the informant had already submitted information to the police on 12.12.2009 itself. 8. The police, on the basis of the aforesaid written information, had instituted a regular police case being Hazaribagh Sadar P.S. Case No. 636 of 2010 under Sections 147, 148, 323, 324, 325, 326, 307, 427 of I.P.C. and on completion of the investigation, charge sheet was submitted and thereafter the trial commenced on the case being committed. 9. The prosecution has examined only one witness that to it was examined partly since he was not cross-examined. 10. The learned trial court after taking into consideration that the prosecution has not examined any injured persons except the part of the examination of the P.W. 1, the informant, who has claimed to have seen the occurrence but the written information submitted by the informant before the police does not disclose that the informant was present at the place of occurrence or has seen the occurrence. 11. Further, the learned trial court also considering the fact that investigating officer and the doctor have not been examined, therefore, it has been observed in the impugned judgment that save and except the part of the examination of the P.W. 1 no other witnesses have been produced by the prosecution for their examination. 12. Learned trial court, therefore, came to conclusive finding that the prosecution has completely failed to prove the charges levelled against the accused persons, as such, acquitted them by discharging them from the liabilities of their respective bail bonds. 13. Mr. Dhirendra Kr. 12. Learned trial court, therefore, came to conclusive finding that the prosecution has completely failed to prove the charges levelled against the accused persons, as such, acquitted them by discharging them from the liabilities of their respective bail bonds. 13. Mr. Dhirendra Kr. Deo, learned counsel for the appellant, informant, has submitted that the learned trial court has not appreciated the fact while acquitting the respondents even though there was failure on the part of the investigating officer in not producing the P.W. 1 for his cross-examination or not producing the doctor, as such, for the laches committed on the part of the investigating officer, the culpability of the respondents as has been shown by the informant in the written report, first information report, cannot be discarded. 14. It has, therefore, been submitted that the learned trial court has committed serious irregularity in passing the judgment of acquittal against the respondents for the laches committed on the part of the investigating officer, therefore, the judgment impugned requires interference and the same is fit to be quashed and set aside. 15. Mr. Pankaj Kumar, learned Public Prosecutor has submitted by referring to the finding recorded by the learned trial court that the same cannot be said to suffer from error since the P.W. 1, the informant, although was produced for his examination-in-chief but he has not been produced for his cross-examination and basis upon which, the learned trial court has found that the prosecution has completely failed to prove the charges. Therefore, submission has been made that although the processes for securing the appearance of the material witnesses including the investigating officer and the doctor, the official witnesses, have been taken by the court but they have not turned up for their examination/cross-examination. 16. Learned PP further submits that the appellant-informant, at the appropriate stage, has not approached the appropriate court of law for passing appropriate order, as such, now these points cannot be allowed to be taken by the appellant that there is laches on the part of the investigating officer when the stage to take this ground is already crossed. 17. This Court has heard the learned counsel for the parties, perused the impugned judgment. 17. This Court has heard the learned counsel for the parties, perused the impugned judgment. As per the prosecution story, the allegation of commission of assault upon the brother of the informant and his friend as also damaging the shop of the brother of the informant has been made and the charge sheet has been submitted against the respondents finding their culpability in commission of the crime as alleged. 18. The prosecution although has made reference of 8 witnesses altogether but only P.W. 1 was produced for his examination. He has been examined but subsequent thereto, he has not turned up for his cross-examination. 19. The impugned judgment suggest that ample opportunity was given to the prosecution since the case remained pending for evidence of the prosecution continousouly from 03.03.2011 to 27.09.2018, i.e., for more than the period of 7 years. The learned trial court has further observed in the impugned judgment that the P.W. 1, who was examined on 13.01.2016 was not discharged as the cross-examination of P.W. 1 was deferred as cost of Rs. 100/- on that day but thereafter, the P.W. 1 never turned up for cross-examination and the record show that subsequently, a petition was filed on behalf of the defence on 28.11.2016 to expunge the evidence of P.W. 1 which was allowed by the court on 28.11.2016 itself. 20. It is evident from the material available on record as would appear from the impugned judgment that save and except the P.W. 1 was produced out of 8 witnesses. P.W. 1 although was examined but not turned up for his cross-examination and subsequently, even his testimony as recorded in the examination-in-chief had been expunged vide the order passed by the learned trial court on 28.11.2016, therefore, it will be said that the prosecution has failed to produce any witness in support to show the culpability of the respondents. 21. The learned trial court on this pretext has come to the conclusive finding that the prosecution has completely failed to prove the charges which led the learned trial court to take a view to acquit the respondents. 22. The position of law is well settled that the allegation of commission of offence if at all proved beyond all shadow of doubt then only there can be conviction of the person concerned against whom the allegation of commission of crime has been levelled. 22. The position of law is well settled that the allegation of commission of offence if at all proved beyond all shadow of doubt then only there can be conviction of the person concerned against whom the allegation of commission of crime has been levelled. Herein, it is evident from the facts of the given case that the prosecution has produced no witness to prove the charge. Therefore, this Court is of the view that in such circumstances if the judgment of acquittal has been passed by the learned trial court, which is impugned in this acquittal appeal, the same cannot be said to suffer from error. 23. Accordingly, the instant appeal fails and stands dismissed. 24. Pending interlocutory application(s), if any, also stands disposed of. 25. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.