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2023 DIGILAW 668 (JHR)

Chhoti Choudhary v. State of Jharkhand

2023-05-09

NAVNEET KUMAR

body2023
JUDGMENT : NAVNEET KUMAR, J. 1. This appeal is directed against the judgment of conviction dated 30.08.2010 and order of sentence dated 06.09.2010 passed in Sessions Trial No. 164 of 2007, in connection with Barkatha, P.S. Case No. 74 of 2004 dated 02.10.2004, registered for the offence under Section 395 of the Indian Penal Code, corresponding to G.R. No. 2413 of 2004, passed by the Court of learned Additional Sessions Judge, FTC-VII, Hazaribag, whereby and where under the sole appellant has been found guilty for the offence punishable under Section 395 of the Indian Penal Code and accordingly the appellant was convicted therein and further the learned Trial Court sentenced the appellant to undergo rigorous imprisonment for five years with a fine of Rs. 5,000/- (Rupees Five Thousand) for the offence punishable under Section 395 of the Indian Penal Code and in case of default of payment of fine the appellant was further sentenced to undergo simple imprisonment for three months. 2. The prosecution case arose out of the fardbeyan of Smt. Kunti Devi which is recorded by S.I. S.K. Das on 02.10.2004 at about 11:00 hrs. according to the fardbeyan of the informant-Smt. Kunti Devi is that on 30.09.2004, in the evening at about 6:30 P.M. when she was busy in her house and was removing grains from maize, seven youngsters entered into her house, two armed with pistol and two armed with bag of bomb and the hand of one of them was cut and other two were empty handed. On the entrance at the gate two youngsters were present and out of them one had worn turban on his head and had tied red colour thread in his right hand and another was sitting who had wearing white pant and shirt and was holding a bag and had covered his face with white towel, to whom she identified as Ajay Choudhary of Village-Chuglamo and the one who had entered into her house had put black colour on his face was Chhoti Choudhary of Village-Chuglamo. It has further been stated that after entering into the house all culprits started abusing and saying that her son had come from Bombay and has brought Rs. 3,00,000/- and one idol of gold from a ‘Seth’ where is it, bring it out. They started upsetting box and other articles and took Rs. 22,000/- kept in the box. It has further been stated that after entering into the house all culprits started abusing and saying that her son had come from Bombay and has brought Rs. 3,00,000/- and one idol of gold from a ‘Seth’ where is it, bring it out. They started upsetting box and other articles and took Rs. 22,000/- kept in the box. They confined the entire members of her family except her in a room and they took the informant with themselves and told to come to the house of Bhikhan Mahto, in the meantime miscreant Ajay Choudhary hinted with hand to go to the house of Badri Razak instead of the house of Bhikhan Mahto. Further case was that due to fear informant went alongwith them to the house of Badri Razak where she got opened the door voicing loudly. The moment his door was opened all the seven miscreants entered into his house along with her and one culprit stood up near her and one of the culprits put pistol on Badri Razak and took him in his custody and other culprits entered into the house and told that the son of Baleshwar Mahto had brought Rs. 3,00,000/- and one golden idol of a ‘Seth’ from Bombay and has kept in his house and they are the police of Bombay and have come to check. They also started upsetting the articles of the house and from a box they took the silver ornaments and before leaving the place they confined the informant and the family members of Badri Razak in a room and fled away. The cost of the looted ornaments is said to be about Rs. 12,000/- and it has also been stated that all the culprits were aged about 25-30 years. 3. On the basis of fardbeyan of the informant-Smt. Kunti Devi, the Barkatha P.S. Case No. 74/2004 was registered on 02.10.2004 under section 395 IPC and after investigation the police submitted charge-sheet Vide charge-sheet No. 03/2007 on 30.01.2007 against the present accused persons and against Sanjay Choudhary showing Sanjay Choudhary and present accused Chhoti Choudhary as absconder. Cognizance was taken by the Court of learned C.J.M. Hazaribag and after observing the formalities of the procedure, the case was committed to the Court of Sessions and later on the accused-Chhoti Choudhary was arrested and he was put on trial. Cognizance was taken by the Court of learned C.J.M. Hazaribag and after observing the formalities of the procedure, the case was committed to the Court of Sessions and later on the accused-Chhoti Choudhary was arrested and he was put on trial. Learned 1st Additional Sessions Judge, Hazaribag has framed charge on 23.04.2007 against accused Shankar Rawani under section 395 IPC and on 25.04.2008 against accused Chhoti Choudhary under section 395 IPC. The learned Trial Court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence, which is under challenge. 4. Heard learned Amicus Curiae, Mrs. Leena Mukherjee, appearing on behalf of the appellant and Mr. Rakesh Ranjan, learned counsel appearing on behalf of the State. Arguments advanced on behalf of appellant: 5. Learned counsel appearing on behalf of the appellant has submitted that the impugned judgment of conviction and order of sentence is bad in law in view of the fact that only one witness has been examined on behalf of the prosecution i.e. PW-1, who was the informant of this case and the version of PW-1, has not been corroborated by any other evidences of the prosecution and the learned Trial Court solely relying upon the deposition of the informant passed the impugned judgment of conviction and order of sentence without any cogent proof for the same. Further, the I.O. of this case has also not been examined in order to formally prove the date, time and place of occurrence and further there is no recovery of any article which are said to have been the subject matter of commission of the offence of dacoity and as such the prosecution has miserably failed to substantiate the charges levelled against this accused appellant although there were 12 charge-sheeted witnesses and only one i.e. the informant had been examined and he is highly partisan witness as suggested in the cross-examination on behalf of the appellant that there has been enmity between them because of the landed property dispute which had arisen due to the cultivation of the land. Further, it has also been submitted that the informant PW-1, Kunti Devi was persistently demanding buffalo from the accused-appellant who had denied and therefore, this false case was instituted and none of the witnesses has come forward on behalf of the prosecution to substantiate the charges levelled against the appellant and therefore, the impugned judgment of conviction and order of sentence is bad in law and fit to be dismissed. Arguments advanced on behalf of State: 6. On the other hand the learned counsel appearing on behalf of the State does not deny the fact that only one witness in this case has been examined i.e. PW-1, Kunti Devi who was the informant of this case. Further, it has been submitted that on the deposition of PW-1, it is found that she has fully supported the case of the prosecution as set out in the F.I.R. and therefore, the learned Trial Court has rightly relied upon the versions of PW-1, and passed the impugned judgment of conviction and order of sentence. Further, it has also been submitted that the defence of enmity due to land dispute has been denied by the informant PW-1 in her deposition in the cross-examination when the same was suggested as a defence on behalf of the appellant and therefore, this appeal is fit to be dismissed being devoid of merit. APPRAISAL & FINDINGS 7. Having heard the parties, perused the records of this case including Lower Court Records. 8. It is found that the oral evidence of the sole witness PW-1, Kunti Devi, who is the informant of the present case, has been adduced on behalf of the prosecution. It is further found that there is no corroboration of the version of the informant i.e. PW-1. It is also found from the deposition of PW-1, vide para-5 that other family members’ alongwith the Gotias of this witness were also present but they have not been examined in this case nor any independent witness of the village has been examined to support the case of the prosecution. It has also been taken into defence by putting suggestion before this witness PW-1 in her cross-examination that due to land dispute the accused-appellant Chhoti Choudhary had been implicated in this case although PW-1 has denied the same. 9. It has also been taken into defence by putting suggestion before this witness PW-1 in her cross-examination that due to land dispute the accused-appellant Chhoti Choudhary had been implicated in this case although PW-1 has denied the same. 9. It has also been found from the deposition of PW-1 that the co-accused person who had faced the trial namely, Shankar Rawani, has neither been named by the informant PW-1, in her evidence nor he has been identified by her in the Court and since it is a case of dacoity and no other accused persons had faced the trial and the co-accused who had faced the trial alongwith this appellant i.e. Shankar Rawani has been acquitted. 10. Further it is also been found that the I.O. in this case has not been examined. The valuable right of the accused appellant in order to draw the attention of the I.O. with respect to any inconsistency or contradiction in the deposition of the witnesses examined on behalf of the prosecution with their earlier statements has been denied for want of examination of the I.O. Further, neither the formal place of occurrence, nor the time or date of occurrence has ever been proved by the I.O. due to his non-examination and thus the non-examination of the I.O. has definitely caused prejudice to the defence of the appellant. 11. In the present case where the defence has been taken on behalf of the appellant i.e. enmity, that has also not been brought to the knowledge of the I.O. as to whether the investigation in that respect has been done or not, in absence of examination of the I.O. and thus on the sole version of the informant i.e. PW-1, the conviction is bad in law as the learned Trial Court has accepted the version of PW-1 as a sacrament document relying blindly without any corroboration and substantiation by any one of the witnesses examined on behalf of the prosecution although there were 12 witnesses who have been cited as a witness on behalf of the prosecution in the charge-sheet. It is also found that neither any seizure list nor any depositions of seizure list witnesses have been brought on record and as such the impugned judgment of conviction and order of sentence is wholly misconceived in absence of cogent evidence. 12. It is also found that neither any seizure list nor any depositions of seizure list witnesses have been brought on record and as such the impugned judgment of conviction and order of sentence is wholly misconceived in absence of cogent evidence. 12. In the backdrop of the aforesaid appraisal of the evidences adduced on behalf of the prosecution, it is well founded that the impugned judgment of conviction and order of sentence passed against the sole appellant is bad in law and accordingly the impugned judgment of conviction dated 30.08.2010 and order of sentence dated 06.09.2010 passed against the appellant by the Court of learned Additional Sessions Judge, FTC-VII, Hazaribag, in Sessions Trial No. 164 of 2007, in connection with Barkatha, P.S. Case No. 74 of 2004, corresponding to G.R. No. 2413 of 2004, is hereby set aside. 13. This appeal is allowed. 14. Accordingly, the sole appellant namely Chhoti Choudhary is discharged from the liabilities of the bail bonds in this case and he is acquitted from the charges levelled against him. 15. Let the Lower Court Records be sent back to the Court concerned along with a copy of this judgment. 16. Smt. Leena Mukherjee, has appeared in this case on behalf of the appellant as Amicus Curiae and she has successfully assisted this Court. 17. Member Secretary, JHALSA, is directed to pay a sum of Rs. 5,500/- (Rupees Five Thousand Five Hundred) on each date of her appearance, subject to the maximum ceiling as per the rules and regulations of JHALSA. 18. Let a copy of this order be sent to the Member Secretary, JHALSA, for it compliance.