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2023 DIGILAW 489 (JHR)

Panna Lal Chouhan v. State of Jharkhand

2023-04-10

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. The instant revision application is directed against the judgment dated 23.06.2009 passed by the learned Additional Sessions Judge, Fast Track Court No. 1st, Dhanbad in Cr. appeal No. 91 of 2007; whereby the judgment of conviction and order of sentence dated 23.04.2007 passed by the learned Judicial Magistrate, 1st Class, Dhanbad in C.P. Case No. 611 of 2002 (T.R. No. 982 of 2007); whereby the petitioner was found guilty for the offences punishable under Sections 354 and 506 IPC and was sentenced to undergo R.I. for one year and to pay a fine of Rs. 500/- for the offence punishable under section 354 IPC and sentence of R.I for six months under section 506 IPC and further S.I. for 2 months in default of the payment of fine, and both the sentences were ordered to run concurrently, has been affirmed and appeal filed by petitioner was dismissed. 3. The brief facts of the case is that the complainant filed a complaint case against her husband alleging therein that on being deserted by the accused, the complainant was living separately at her parent’s house along with her minor daughter and thereafter she filed another case against the accused-husband and while she was coming to depose in that case on 29.04.2002 at about 6.45 A.M. along with her brother she found the accused along with his associates was standing near Godhar Railway siding and the accused on seeing the complainant stopped them and began abusing them and caught hold of her hair and torn her blouse with intetion to outrage her modesty and also threatened her that if she would depose against him then he will teach her a lesson. However, on raising hulla, the accused fled away on seeing the people. 4. Mrs. J.S. Mazumdar, learned counsel for the petitioner submits that there are material contradictions in the evidence of the complainant and her brother. She further submits that the complainant and her brother have stated three different places of occurrence and the brother of the complainant, the only eye witness along with the victim stated that there is no such type of place as alleged to be the place of occurrence. She further submits that the complainant and her brother have stated three different places of occurrence and the brother of the complainant, the only eye witness along with the victim stated that there is no such type of place as alleged to be the place of occurrence. She further submits that there is gross miscarriage of justice in passing the impugned judgments and there is absence of cogent, convincing and trustworthy evidence against the petitioner. She further submits that the place of occurrence as alleged in the complaint petition differs from the version of the complainant as well as the statement made by the complainant witness No. 2-the brother of the complainant and as such the complainant has failed to prove and establish the place of occurrence and in this view of the fact, the petitioner deserves to be acquitted from the charges as non-establishment of the place of occurrence casts doubt over the case of the complainant. She lastly submits that there is substantial delay in filing the complaint case and the complainant has failed to give any plausible explanation for the same. 5. Learned Addl. P.P. submits that there is no error in the findings given by the learned trial court, as such, the conviction cannot be set aside. 6. Having heard the learned counsel for the parties and after going through the LCR; it appears that there is material contradiction in deposition of main prosecution witnesses so far as the place of occurrence is concerned. It transpires from the deposition of the complainant (C.W.1) that the occurrence took place at Godhar Railway Station; however, C.W.2 deposed that the occurrence took place near Godhar Railway siding and the fact remains that there is no place as Godhar Railway station. In this regard the Hon'ble Apex Court in the case of Syed Ibrahim vs. State of A.P. (2006) 10 SCC 601 has categorically held that when place of occurrence itself has not been established it would not be proper to accept the prosecution version. For brevity the paragraph 11 is quoted herein-below: “11........Though the FIR is not a substantive evidence yet, the same can be used to test the veracity of the witness. PW 1 accepted that what was stated in the FIR was correct. For brevity the paragraph 11 is quoted herein-below: “11........Though the FIR is not a substantive evidence yet, the same can be used to test the veracity of the witness. PW 1 accepted that what was stated in the FIR was correct. When the place of occurrence itself has not been established it would not be proper to accept the prosecution version.” In yet another case the Hon'ble Apex Court in the case of Sunil Kumar Sambhudayal Gupta and Others vs. State of Maharashtra, 2010) 13 SCC 657 held that when there are discrepancies in the evidence of eyewitness and are found to be in conflict or in contradiction with other evidences in such circumstance witnesses may not inspire confidence and in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt. For brevity the paragraph 32 is quoted herein-below: “32. The discrepancies in the evidence of eyewitnesses, if found to be not minor in nature, may be a ground for disbelieving and discrediting their evidence. In such circumstances, witnesses may not inspire confidence and if their evidence is found to be in conflict and contradiction with other evidence or with the statement already recorded, in such a case it cannot be held that the prosecution proved its case beyond reasonable doubt.” 7. It further transpires that no independent witness has been examined by the prosecution to prove the occurrence itself. In this regard reference may be made to the alleged time of occurrence; which is 6.45 a.m. in the morning in the month of April. So, by accepting the time and place of occurrence, it is not acceptable that the alleged offence has been committed and no independent witness is there to corroborate the offence. 8. It further transpires from the cross-examination of the complainant herself that at the time of deposition she was in jail in connection with Session Trial Case No. 564 of 2002 since last two years, on the basis of allegation that she had killed her Bhabhi. This clearly goes to so that she herself was accused and facing trial of a murder case. Further, in the instant case the alleged cause of action was 29.04.2002 at about 6.45 a.m. However, the complaint petition has been lodged on 09.05.2002, thus there is a delay of almost 10 days. This clearly goes to so that she herself was accused and facing trial of a murder case. Further, in the instant case the alleged cause of action was 29.04.2002 at about 6.45 a.m. However, the complaint petition has been lodged on 09.05.2002, thus there is a delay of almost 10 days. In the case under section 354/506 IPC, the delay of 10 days in lodging the complaint appears to be mala-fide, inasmuch as, the criminal antecedent of the complainant is also not fair and the delay has not been explained at all which leads to an impression that the entire prosecution is non-trustworthy. 9. It further emerges from the judgment of trial court that the learned trial court has not given any weightage on the defense witness who happened to be at the place of alleged occurrence. He has categorically stated in his deposition that when he was coming to Dhanbad Court on 29.04.2002 he met with his maternal aunty Rekha Devi (Complainant) and her brother where she disclosed that she was going to the Court and on his saying that he was also going to the Court they came together at Court in same vehicle and after about 10 to 15 days when he met his maternal uncle (petitioner), he told him that a false case has been instituted by the complainant. The learned trial court should have given weightage to the defense version; moreover, as stated hereinabove though F.I.R is not substantive evidence yet the same can be used to test the veracity of the witness. The learned trial court as well as the learned appellate court have failed to look into all these aspects and mechanically convicted the petitioner. 10. In the case at hand there is absolutely no proper evidence to prove the veracity of the place of occurrence or the occurrence itself. I find it very difficult to rely on the prosecution case. The learned courts did not consider the case of the prosecution on proper appreciation of the evidence, facts and circumstances. As a matter of fact, the prosecution case is not at all free from reasonable doubt. There are several loose ends in the prosecution case which cannot be joined together in order to record conviction of the petitioner. The learned courts did not consider the case of the prosecution on proper appreciation of the evidence, facts and circumstances. As a matter of fact, the prosecution case is not at all free from reasonable doubt. There are several loose ends in the prosecution case which cannot be joined together in order to record conviction of the petitioner. Accordingly, the judgment of conviction which has been impugned in this revision petition is liable to be interfered with and the petitioner should be given benefit of doubt. 11. Consequently, the judgments of conviction and order of sentence dated 23.04.2007 passed by learned trial court and judgment dated 23.06.2009 upheld by the learned appellate court, are hereby, quashed and set aside. Accordingly, the instant revision application stands allowed. The petitioner shall be discharged from the liability of his bail bonds. 12. Let a copy of this order be communicated to the courts below and the lower court record be sent to the court concerned forthwith.