Jharkhand High Court
Phulangi Yadav vs The State Of Jharkhand on 26 July, 2018
Equivalent citations: AIRONLINE 2018 JHA 636
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Revision No. 638 of 2008
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Phulangi Yadav --- ---- Petitioner
Versus
1. The State of Jharkhand
2. Prayag Mahto (Yadav)
3. Shibu Mahto (Yadav) ------ Opp. Parties
---
PRESENT
The Hon'ble Mr. Justice Aparesh Kumar Singh
The Hon'ble Mr. Justice Ratnaker Bhengra
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For the Petitioner : Mr. N.K. Prasad, Adv.
For the State : Mr. Anand Kr. Pandey, A.P.P.
For the Respondent No.3 : Mr. P.P.N. Roy, Sr. Adv.
Mr. Bharat Kumar, Adv.
----
By Court Heard learned counsel for the parties.
2. Petitioner has invoked revisional jurisdiction of this Court under Sections 397 and 401 of the Code of Criminal Procedure against the judgment of acquittal dated 1st August 2008 passed in Sessions Trial No.65/2007 by the learned Additional Sessions Judge, Fast Track Court, Koderma, whereunder the two accused persons/opposite party nos. 2 and 3 herein have been acquitted of the charges under Sections 302/34 of the Indian Penal Code.
3. Fardbeyan adduced as Exbt.2 was recorded on 22nd December 2006 at Purnadih Amba Chattan land at about 10.30 A.M. F.I.R. being Markacho P.S. Case No.103/2006 under Section 302/34 I.P.C. was registered on the same date at 2.15 P.M. (Exbt.4). Place of occurrence was about 30 K.M. east at Purnadih, Amba Chattan, P.S. Markacho, District Koderma. The date of occurrence is 21st December 2006 but time of occurrence was not mentioned in the fardbeyan nor in the F.I.R. The informant through his fardbeyan inter- alia alleged that on 21st December 2006 at about 11 A.M. his son Rajesh Yadav aged about 12 years had gone for grazing cattle. At 5 P.M. on the same day though the cattle returned, but his son did not return. He made search with the help of the villagers. They came near Amba Chattan tanr about 1 K.M. west from the village and found the dead body of the informant's son lying in the field of Chhattar Pandit. There were injuries on the left leg over the dorsum of the left hand, upper portion of face with abrasion on the chest. Informant came to the conclusion that his son had been assaulted and killed.
2He alleged these acts on Prayag Yadav and Shibu Yadav as they had inimical terms with him with regard to land and mine disputes. There were cases pending in the court.
4. After investigation, chargesheet was submitted under the aforesaid Sections against these two accused persons. The case was committed to the court of sessions and charges were framed thereafter. The accused persons pleaded themselves as innocent on the accusation being explained. They stated false implication in the case due to previous enmity and long litigation with the informant and the material witnesses. They further pleaded that no such occurrence had taken place. During the course of trial 12 witnesses were examined by the prosecution namely Jhagru Yadav P.W.1, Gurdi Rana P.W.2, Ram Bilash Yadav P.W.3, Babulal Rana P.W.4, Bhikhdeo Ram @ Bhikhi Ram P.W.5, Baijyanti Devi P.W.6, Bahadur Yadav P.W.7, Fulangi Yadav P.W.8, Janardan Tiwary P.W.9, Arjun Pandit P.W.10, Dr. Sudeep Kumar P.W. 11 and Dinesh Paswan P.W. 12.
5. Besides the oral evidence, signature of P.W.1 Jhagru Yadav on statement under Section 164 Cr.P.C. and on the carbon copy of inquest report of the dead body of the deceased were marked as Exbt.1 and 1/1, fardbeyan was adduced as Exbt.2, carbon copy of inquest report as Exbt.3, F.I.R. as Exbt.4, endorsement over the fardbeyan of Fulangi Yadav informant as Exbt.5 and original post-mortem report conducted by Dr. Sudeep Kumar P.W.11, the then Medical Officer of Sub-Divisional Hospital, Koderma was marked as Exbt.6.
6. Defence examined Ganesh Prasad in support of its case as D.W.1. He had produced the original Sanha Entry No.355, 356 and 360 dated 22nd December 2006 of Markacho P.S. Other documentary evidences were also adduced by the defence as evidence of litigating terms and previous enmity between the accused and the informant. They are the certified copies of the order sheet dated 4th March 2005 passed by the Judicial Magistrate, 1st Class, Koderma in Complaint Case No.04 of 2005/T.R. No.855 of 2005 (Exbt.A), certified copy of the Complaint Case No.04 of 2005 filed by the informant against Jhagru Mahto and 8 others (Exbt.B), certified copy of the compromise petition filed by the informant and Jhagru Mahto and 4 others dated 28th May 2005 (Exbt.C), certified copy of the ordersheet dated 7 th June 2006 passed by the learned C.J.M. in Markacho P.S. Case No.95/2005 3 (Exbt.D), certified copy of the F.I.R. and the chargesheet of Markacho P.S. Case No.95/05 filed by Prayag Gope against Jhagru Mahto, informant and others (Exbt.E and F), certified copy of the ordersheet dated 9th June 2005 passed by learned C.J.M., Koderma in Markacho P.S. Case No.02/2005, certified copies of the F.I.R. and chargesheet of the said P.S. Case filed by Banshi Yadav against Prayag Yadav, Shibu Yadav and others (Exbt.H and I respectively), certified copy of the statement of Baijyanti Devi under enquiry proceeding of Complaint Case No.04/2005 (Exbt.J), certified copy of evidence of Baijayanti Devi as C.W.1 in the said Complaint Case (Exbt.K) and three original Sanha Entries in Markacho P.S. (Exbt.L, L/1 and L/2 respectively).
7. P.W. 3, 7, 8 and 12 were treated as hearsay witnesses by the learned trial court. P.W.1, 2 and 6 were examined by the prosecution as eye- witnesses. P.W.9 and 11 were the Investigating Officer and the Medical Officer who were examined on behalf of the prosecution. P.W.5 and 10 were produced but without examination in-chief were tendered. P.W.4 did not say anything against or in favour of the prosecution.
8. Learned trial court dealt with the prosecution case about the recovery of the dead body, the manner of occurrence, the place of occurrence, the injuries found during post-mortem and the statements of the prosecution witnesses who were adduced to support the case. Learned trial court also considered the bunch of documentary evidence filed by the defence on the plea of previous enmity between the informant and the accused persons. Upon analysis of the material evidence on record at length it finally came to an opinion that the prosecution case had serious infirmities which destroy the credibility of the evidence of eye witnesses and the credibility of the statement under Section 164 of the Cr.P.C. of P.W.1 who made statement after 70 days of the occurrence. It held that the prosecution had miserably failed to prove the charge under Section 302/34 of the I.P.C. beyond the shadow of all reasonable doubt against the accused persons. Both were acquitted of the charges.
9. Learned counsel for the petitioner has, at the outset, drawn our attention to the limited scope of interference under Section 397 read with Section 401 of the Cr.P.C. He however submits that the present matter is not a case of no evidence but a case of manifest illegality committed by the learned 4 trial court in arriving at a just conclusion on consideration of the entire material evidence on record. Learned counsel submits that the learned trial court at paragraph-12 of the judgment while discussing the evidence treated the informant's wife P.W.6 and P.W.1 and 2 as eye-witness, but later on completely discredited these witnesses as having seen the occurrence. Reference is made to para-6 of the impugned judgment. It transpired to the learned court at that stage that P.W.4 is the eye-witness of the alleged occurrence. Nowhere did the learned court hold that she had falsely deposed or her statement was not acceptable. As such her testimony could not have been thrown out as untrust worthy. Learned trial court also erroneously disbelieved the testimony of P.W.1 who had seen the occurrence on the ground that the Sanha entries lodged by Chowkidar Manoj Paswan and P.W. Jhagru Yadav did not contain the name of the accused as the assailants of the deceased. The authenticity of the exhibits were highly questionable. Therefore, statement of P.W.1 should not have been discarded with reference to Exhibit-L simply on the ground that there was existence of previous inimical terms between them. P.W. 2's statement has also not been considered by the learned trial court in proper perspective without any plausible reason though he was an eye witness. The testimony of the Investigating Officer P.W. 9 and the Doctor P.W.11 supporting the injuries on the body of the deceased have also not been appreciated in the right manner which has led to perverse findings. Learned trial court has wrongly discarded the evidence of eye witnesses simply on the ground that the accused were on inimical terms with the informant previously. Learned trial court also committed a serious error in disbelieving the statement of P.W.1 recorded under Section 164 of the Cr.P.C. on the ground that it was recorded after 70 days of the occurrence. Delay in itself could not be sufficient ground to reject the statement made under Section 164 of the Cr.P.C. when he had disclosed the names of the assailants of the deceased. He belonged to a rural background and was not asked by anybody to give statement under Section 164 Cr.P.C. As such the findings of the learned trial court are wholly erroneous and contrary to the evidence on record. Therefore they are unsustainable in law as well as on facts.
10. Learned counsel representing the accused/opposite party nos. 2 and 3 has supported the findings. He submits that it cannot be argued that the learned trial court has over looked any admissible evidence or taken into 5 account any inadmissible evidence to come to a finding. Every element of the offence right from the stage where the informant alleged that the deceased had gone to graze cattle and did not return, the place of occurrence, the manner of occurrence as described by the P.W.s, the kind of injuries found during post mortem by P.W.11 not corroborating the statements of eye-witnesses and the voluminous documentary evidences showing existence of serious and persistent enmity between the informant and the accused persons have been taken into regard. Learned counsel has placed reliance on the judgment of the Apex Court rendered in the case of K. Chinnaswamy Reddy Vs. State of A.P. & Anr. reported in AIR 1962 (SC) 1788 specifically paragraph-7. Learned counsel has also placed reliance on the case of Jagannath Choudhary & Ors. Vs. Ramayan Singh & Anr. reported in (2002) 5 SCC 659 where also the case of K. Chinnaswamy Reddy (supra) has been followed. He submits that interference by High Court with a judgment of acquittal in revision can be made only in exceptional cases of gross miscarriage of justice, manifest illegality or perversity and not merely because another view was possible. The petitioner has failed to show that learned trial court had ruled out the evidence which was admissible or admitted evidence which was inadmissible or that it had no jurisdiction to try the case. The case of the petitioner does not come in any of these exceptional grounds calling for interference.
11. We have considered the learned counsel for the parties at length, gone through the impugned judgment and also the relevant material evidence on record. We have also perused the judgments cited at the bar.
12. We proceed to examine whether the findings of the learned trial court are vulnerable to be interfered on any of the exceptional grounds permissible in the revisioinal jurisdiction of this Court.
13. P.W.1 who claimed to be an eye-witness stated having heard sound of cry of a child from inside a boundary and went there and saw the accused no.2/opposite party no.3 teasing the head of the victim boy while the other accused had put his leg on his chest and at the same time opposite party no.3 had also caught hold of his leg. He also claimed to have seen opposite party no.2 having thrown a rod. Thereafter this witness fled away, stated to have come back to his house and narrated the incidence to the villagers but did not inform the Police due to fear. According to his statement the occurrence took place near Amba Chattan which is 3 K.M. away from the 6 village. The dead body was recovered from the field of Chhattar Pandit. He was witness of the inquest report. His signatures are Exbt.1 and 1/1. He admitted litigating terms with the informant but it was compromised. However, the case against the accused was going on. He further stated that after seeing the occurrence he had not given the information either to the Police or to the other person. He could not say as to after how many days he had stated this to the Police. He further stated that he had seen the accused persons about 10 ft. away, but had not talked with any of the accused. He had stayed for about 5-7 minutes. He further stated having gone to the Police Station on the next date of the occurrence, but the informant had not accompanied him. He had no written proof of his arrival at the Police Station. Police had recorded his statement after he recorded in the Court.
14. P.W.2 in his deposition stated that while returning back after picking up cow dung he arrived near a boundary and heard the cry of the child. He went near and saw the opposite party no.3 teasing the head of the son of the informant while opposite party no.2 standing on his chest and one Suggi Mahto was also teasing his leg and till that time the boy had died. He fled away thereafter. He stated that boundary was about 100-150 meters away from the path. He did not talk with the person present inside the wall neither went inside the boundary. He further stated that he did not inform the informant about the occurrence, but he had raised alarm about the occurrence in the village when many persons were present. However, he could not disclose the name of any of these villagers. Learned trial court found that though he had appeared as an eye witness but he never talked with the accused or narrated the occurrence to the informant on the same date. He had also not stated before the Police about the occurrence and on the basis of the statement of the informant he had given statement before the Court prior to the date of his deposition in the session case.
15. P.W.3 learnt about the incidence from P.W.2. He had seen the dead body of the boy in the house of the informant. He accepted about the previous enmity between the accused and the informant. In his cross- examination he stated that on that date the son of the informant had not gone for grazing cattle in his presence. The witness P.W.1 was his own brother and informant was his cousin. He is a partner with the informant in the mines business. P.W.4 stated that on the date of occurrence he was coming back after 7 grazing his buffalo. He had seen the Police going towards the house of the informant and following them he saw the dead body of the son of the informant there. He did not say anything about the occurrence as alleged by the prosecution. P.W.5 was tendered for his cross-examination. P.W.7 had seen the dead body of the deceased. He was declared hostile. P.W.10 was also tendered by the prosecution. P.W.8, informant stated that his son after taking meal, had gone to graze cattle and did not return till 4 P.M. His wife P.W.6, P.W.1 and P.W.2 had informed him that his son was killed and thrown by the accused and one Suggi. Thereafter he had gone to the field of Chhattar Pandit and found his son lying dead. He further stated that his wife, P.W.1 and 2 were the persons who had witnessed his son who was going for grazing the cattle. He had further stated that he had seen the occurrence by his naked eye. He stated in his cross-examination that he had litigating terms with the accused persons about 5-6 years ago. Learned trial court found that P.W.8 in his examination-in-chief and first para of his cross-examination had stated having come to know about the death of his son from his wife P.W.6, P.W.1 and 2 but later on stated having himself seen the occurrence from his naked eye. From his statement it further transpires that the dead body was found in the field of Chhattar Pandit at Amba Chattan. P.W. 6 the informant's wife stated that her son had gone for grazing the cattle but did not return. He was searched for, but none of the persons disclosed anything. In course of searching her son, they reached Amba Chattan where she found that after killing her son his dead body was thrown in a field. She further stated that the accused persons and one Suggi Yadav had killed her son. She also stated having seen the accused persons killing her son and that on her alarm they fled away. She stated having stayed for half an hour at Amba Chattan and at that time she had seen the accused persons carrying her son and both of them had thrown him in a field. These acts were seen from a distance of 10 meters. She further stated that while she was going towards her house, she met with her husband and villagers on the way and thereafter brought the dead body of her son at her house. She accepted land dispute and litigating terms with the accused four years prior to the occurrence in her further cross-examination. The learned trial court did record that this witness appears to be an eye-witness to the alleged occurrence. P.W.9 the Investigating Officer at para-5 was very specific that the dead body was seen in the field of Chhattar Pandit near Amba Chattan 8 and from that place it was sent for post-mortem examination. This piece of evidence supported the fact that the dead body was recovered from Amba Chattan. The story of bringing the dead body from the field of Chhattar Pandit at Amba Chattan to the house of informant was a development of the prosecution which could not be substantiated and corroborated by the evidence of P.W.s. Inquest report (Exbt.3) was prepared in the field of Amba Chattan. The fardbeyan of the informant was recorded at Amba Chattan. The Investigating Officer at para-25 of his deposition had specifically stated that during course of investigation not even a single witness had given statement to him that he had seen the deceased with his cattle for grazing them nor any witness had deposed that he has seen the deceased with the cattle going for grazing towards forest or elsewhere. The statement of the informant alone that his son had gone for grazing purpose could not be substantiated by any of the P.Ws. The post-mortem report adduced by the Medical Officer P.W.11 stated about fractured survical bone, bruise over right and left mastoid region, lacerated wound and punctured wound over left dorsum of hand, lacerated wound over medial part over left tebia below knee. In his opinion the cause of death was asphyxia due to strangulation. In his cross-examination he did not state about any teasing of neck or throatling. He did not find any sign of finger and thumb on the neck. His chest was normal. No sign of pressing the chest was found on his chest. As such the manner of occurrence described by P.W.1, 2 and 6 did not corroborate the evidence of the expert medical witness.
16. All these evidence taken together more specifically that of P.W.1, 2 and 6 as also discussed above, led the learned trial court to come to a conclusion that there were no eye-witnesses of alleged occurrence on the date of recovery of the dead body nor a single witness had disclosed anything against the accused persons before the Police. It further transpires from the statement of P.W.9 that P.W.1 and 2 had business relation with the informant concerning mines, chips and stone. There were ample evidence on record either oral or documentary also to show that the informant and the witnesses were on inimical term with the accused persons with regard to mines business as well as the land dispute. Their evidence also differed on the point of recovery of dead body and sending the same for post-mortem examination. Exbt.2 and 4 read with statement of P.W.9 showed that fardbeyan was recorded at Amba Chattan land but P.W. 8 stated that Police had come to his 9 house where the fardbeyan was recorded. The statement of other P.Ws. were also recorded at that very place. P.W.5 and P.W.10 in whose presence the fardbeyan was recorded, were tendered. These material evidence on record have been considered by the learned trial court at length to arrive at a finding that the prosecution case suffered from serious infirmities and was not established beyond all reasonable doubts. It further transpires that a Sanha Entry was made on 22nd December 2006 at 8.30 A.M. by the Chowkidar (Exbt.L) who along with P.W.2 had come to the Police Station and informed that son of the informant had been murdered and the dead body was lying at Purnadih. Exbt.L/1 shows that after recording the Sanha the Investigating Officer along with the Sub-Inspector, Chowkidar and P.W.1 had proceeded for necessary action towards place of occurrence. However, neither the Chowkidar nor P.W.1 had disclosed the name of the assailants nor he had disclosed that he had seen the occurrence by his naked eye. These circumstances and evidence of P.Ws. together with documentary evidence of the defence support the finding of the learned trial court that the P.W.1, 2 and 6 were later on adduced as eye-witnesses though they were not actually witnesses to the crime.
17. The contour in which this Court exercises revisional jurisdiction is limited. Interference in the finding of acquittal are made by the High Court only in exceptional cases of gross miscarriage of justice, manifest illegality or perversity and not merely because another view was possible. The judgment relied upon by the opinion of the Apex Court at para-7 in the case of K. Chinnaswamy Reddy and also followed in the case of Jagannath Choudhary & Ors. (both supra) provide ample guiding light for this court in such circumstances. We may also profitably rely upon the opinion of the Apex Court in the case of Venkatesan Vs. Rani & Anr. reported in (2013) 14 SCC 207, para- 9 and 10, reproduced hereunder :
"9. The observations in para 9 in Vimal Singh v. Khuman Singh would also be apt for recapitulation and, therefore, are being extracted below: (SCC pp. 226-27) "9. Coming to the ambit of power of the High Court under Section 401 of the Code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the 10 instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial."
10. The above consideration would go to show that the revisional jurisdiction of the High Courts while examining an order of acquittal is extremely narrow and ought to be exercised only in cases where the trial court had committed a manifest error of law or procedure or had overlooked and ignored relevant and material evidence thereby causing miscarriage of justice. The reappreciation of evidence is an exercise that the High Court must refrain from while examining an order of acquittal in the exercise of its revisional jurisdiction under the Code. Needless to say, if within the limited parameters, interference of the High Court is justified the only course of action that can be adopted is to order a retrial after setting aside the acquittal. As the language of Section 401 of the Code makes it amply clear there is no power vested in the High Court to convert a finding of acquittal into one of conviction."
18. After anxiously applying ourselves to the evidence on record we do not find that the impugned judgment suffers from any such glaring illegality or has caused miscarriage of justice or that the learned trial court had illegally shut out the evidence which otherwise ought to have been considered or that a material evidence which clinches the issue had been overlooked. There are no perversity in the findings of the learned trial court. Reappreciation of the evidence is an exercise which this Court must refrain from while examining an order of acquittal in the exercise of revisional jurisdiction under the Code.
19. In the light of these salutary principles when the material evidence on record is analysed, we find that the prosecution had miserably failed to establish its case beyond shadow of all reasonable doubts. As such, no case is made out for interference in the matter in our revisional jurisdiction. Accordingly, this petition is dismissed.
(Aparesh Kumar Singh, J.) (Ratnaker Bhengra, J.) High Court of Jharkhand at Ranchi Dated 26th July 2018 Shamim/