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2023 DIGILAW 63 (JHR)

Kalyani Devi v. State of Jharkhand

2023-01-19

DEEPAK ROSHAN

body2023
JUDGMENT : 1. Heard learned counsel for the parties. 2. This revision application is directed against the judgment of conviction dated 27.01.2007 passed by learned 1st Additional Judicial Commissioner, Ranchi in Cr. appeal No. 93 of 2005; whereby the judgment of conviction and order of sentence dated 28.05.2005 passed by the Judicial Magistrate, First Class, Ranchi in Complaint Case No. 192 of 1998 (T.R. No. 1289 of 2005); whereby the petitioners were found guilty for the offences punishable under Sections 323/341 IPC and each of them were sentenced to undergo S.I. for 90 days (3 months) for the offence punishable under section 323 IPC and S.I. for 15 days for the offence punishable under section 341 IPC, and all 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 cricket match was being played among several children. The son of complainant (PW5) won the match and started to celebrate, but the defeated candidate (Petitioner No.3) got agitated and hit the complainant’s son several times with bat. Pursuant to which son of complainant complained about the incident to his mother (complainant) (PW6) who went along with her son to petitioner’s house and raised objection for the act of the beating with bat. Petitioner No. 1 and 2 assaulted the complainant and pushed her out of the house. She subsequently went to her husband to narrate the incident and accordingly complainant’s husband went to the police station to file complaint. Complainant thereafter went alone from there to her home and in the meanwhile she was again assaulted and beaten by the petitioners by covering her face. She was taken to the Police Station thereafter instead of taking her to the hospital for treatment and was even restrained from going to the hospital. She was kept at the Police Station till 11 PM. 4. Mrs. J.S.Mazumdar, learned counsel for the petitioner submits that there is material contradiction amongst the prosecution witnesses. She further submits that no medical report of the hospital or evidence of injury of the date of occurrence has been brought on record to show that the complainant CW6 and CW 5 have sustained injuries which itself falsifies the case of the prosecution as the Complainant has specifically stated that she sustained injury and was treated in RMCH. She further submits that no medical report of the hospital or evidence of injury of the date of occurrence has been brought on record to show that the complainant CW6 and CW 5 have sustained injuries which itself falsifies the case of the prosecution as the Complainant has specifically stated that she sustained injury and was treated in RMCH. She further submits that the register of RMCH is also unable to prove that she was admitted for five days in RMCH for the treatment of injury caused by these petitioners and also the prosecution could not explain why the complainant was admitted in the hospital after 10 days. She further submits that CW 7 who is the clerk of the concerned hospital has clearly stated in his deposition that he does not know who made the entry in the register on the said date. She further submits that the independent witnesses have not supported the occurrence except CW4 but in the cross examination he himself said that it was Sunday and he was at home, so he did not see the occurrence and there is no eye witness to the alleged occurrence to support the occurrence. She further submits that CW 3 is the chance witness who submitted that he saw the occurrence but was unable to justify as to what he was doing 5-6 km away from his home. She lastly submits that it is nothing but a minor scuffle between the children while playing, but due to enmity, the entire family member have been implicated just to take revenge. 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 learned counsel for the parties and after going through the impugned judgments and the lower court record, it appears that the evidence produced by the prosecution are not reliable, inasmuch as, there are material contradictions in the statement of prosecution witnesses. It transpires from the deposition of C.W 1 who is the husband of the complainant that he is not the eye witness, hence cannot be relied totally. It transpires from the deposition of C.W 1 who is the husband of the complainant that he is not the eye witness, hence cannot be relied totally. Further, C.W 2 in his deposition has stated that he is the eye witness of the assault on the complainant, however C.W. 4 has categorically stated that when he reached the place of occurrence, the complainant was lying unconscious and thereafter C.W. 2 came after him. The Hon’ble Apex Court on the question of contradiction between the prosecution witnesses has laid down the law in the case of A.Shankar versus State of Karnataka, reported in (2011) 6 SSC 279, and held that if there is material contradiction in the statement of witnesses regarding the incident and it create a serious doubt about truthfulness of witnesses the same is not safe to rely. Paragraph 24 of the aforesaid judgment is quoted hereinbelow:- “24. where the omission (s) amounts to a contradiction, creating a serious doubt about the truthfulness of a witness and other witness also make material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. (vide State of Rajasthan v Rajendra Singh)” As a matter of fact the deposition of C.W. 5 can also not be relied upon, inasmuch as, he has deposed that when complainant returned home then he saw that she was injured and hence he also cannot be said to be the eye witness of the assault on the complainant. 7. Even the statement of C.W. 3 cannot be relied upon as he has deposed that he saw the occurrence but he could not justify as to what he was doing 5-6 kilometers away from his home on that day. As a matter of fact his presence at the place of occurrence has not been satisfactorily explained by the prosecution so as to make his testimony free from doubt. Reference in this regard may be made to the judgment rendered by the Hon’ble Apex Court in the case of Jarnail Singh versus State of Punjab, reported in (2009) 9 SCC 719 ; wherein the Hon’ble Apex Court has held that the evidence of chance witness requires close scrutiny and the chance witness must explain his presence at the place of occurrence adequately. In this regard para 22 of the said judgment is quoted hereinbelow: "22. In this regard para 22 of the said judgment is quoted hereinbelow: "22. The evidence of a chance witness requires a very cautious and close scrutiny and a chance witness must adequately explain his presence at the place of occurrence (Satbir v. Surat Singh [ (1997) 4 SCC 192 : 1997 SCC (Cri) 538], Harjinder Singh v. State of Punjab [ (2004) 11 SCC 253 : 2004 SCC (Cri) Supp 28] , Acharaparambath Pradeepan v. State of Kerala [(2006) 13 SCC 643 : (2008) 1 SCC (Cri) 241] and Sarvesh Narain Shukla v. Daroga Singh { (2007) 13 SCC 360 : (2009) 1 SCC (Cri) 188] ). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (vide Shankarlal v. State of Rajasthan [ (2004) 10 SCC 632 : 2005 SCC (Cri) 579} )." 8. It further transpires from the record that the prosecution has placed the hospital register of RMCH to prove that complainant was admitted to that hospital for her treatment. However C.W. 7 who is the clerk of the concerned hospital has clearly stated in his deposition that he does not know who made the entry in the register on the said date. Thus it can be said that the prosecution has not been able to prove that complainant was admitted in the said hospital and that too for five days. Prosecution has also not produced any prescription regarding treatment and also they have not examined the doctor who treated the complainant. All these lacunas casts a doubt on the story of prosecution. For the sake of arguments even if it is assumed that the entries in the register are true, the prosecution could not explain why the complainant was admitted in the hospital after 10 days. 9. On the face of the present case, it can be safely inferred that the prosecution has miserably failed to prove the alleged offence by adducing cogent and trustworthy evidence. In other words, the present case is based on a fragile and week footing with several contradictions in the evidences of prime prosecution witnesses. Consequently, the judgments of conviction and order of sentence dated 28.05.2005 passed by learned trial court and learned appellate court judgment dated 27.01.2007 are quashed and set aside. Accordingly, instant revision application stands allowed. 10. In other words, the present case is based on a fragile and week footing with several contradictions in the evidences of prime prosecution witnesses. Consequently, the judgments of conviction and order of sentence dated 28.05.2005 passed by learned trial court and learned appellate court judgment dated 27.01.2007 are quashed and set aside. Accordingly, instant revision application stands allowed. 10. Let a copy of this order be communicated to the courts below and also to the petitioners through the officer-in-charge of concerned police station. 11. Let the lower court record be sent to the court concerned forthwith.