Jharkhand High Court
Rita Devi vs The State Of Jharkhand on 4 April, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
Cr. Revision No. 896 of 2007
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Against the judgment dated 27th April, 2007 passed by the Court of Additional Judicial Commissioner No. XVIth, Ranchi in Session Trial No.531 of 2005 arising out of Ranchi Sadar P.S. Case No. 105 of 2004, corresponding to G. R. No. 1998 of 2004.
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Rita Devi ....Petitioner.
-Versus-
1. The State of Jharkhand
2. Gafoor Mian @ Gafur Ansari
3. Afjal Ansari
4. Mahmood Ansari
5. Sarif Ansari
6. Kalim Ansari
7. Ishaque Ansari
8. Idrish Ansari
9. Shamim Ansari
10. Firoj Ansari
11. Nasim Ansari ....Opp. Parties.
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For the Petitioner : Mr. A. K. Kashyap, Sr. Adv.
Anurag Kashyap, Adv.
For the Opp. Party no. 2-11 : M/s. Madhulika Dasgupta
& J. Mazumdar, Advs.
For the State : Mr. Tapas Roy, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE APARESH KUMAR SINGH
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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By Court Heard learned counsel for the parties.
2. Informant is aggrieved by the acquittal of accused persons by impugned judgment dated 27th April, 2007 passed by the Court of Additional Judicial Commissioner No. XVIth, Ranchi in Session Trial No.531 of 2005. Ten accused persons/opposite party nos. 2 to 11 herein stood acquitted of the charges under Sections 148, 149, 447, 324, 307, 341, 325 read with Section 149 of the Indian Penal Code.
3. As per the case of the prosecution based on written report of informant, Rita Devi, on 11th July, 2004, the informant, her husband and family members had gone to the place of occurrence to plough the field. Suddenly, at about 7 a.m. the accused persons, Gafur Mian, Shamim, Nasim, Afzal, Ishaque and Idris armed with bhala, farsa and lathi came to 2. the field. Accused, Mahmood, Kalim, Sharif, Firoz with 4-5 persons also reached there. They began to abuse the informant, on which she protested. Accused Shamim armed with Bhujali, Mahmood with sword, Afzal with gupti, Nasim with Akain and other with lathi attacked on Munnilal Mahto, Maniram mahto, Meghnath Mahto, Santosh Mahto, Ramjit Mahto, Girdhari Mahto and Falinder Mahto and inflicted injury on them. Maniram Mahto sustained cut injury on his head, Ramjit Mahto got injury on his head, Meghnath Mahto sustained injury on his forehead and others also sustained injury on their hand, leg and back. Several persons had gathered during the occurrence and the accused persons fled away.
4. After submission of the charge-sheet cognizance was taken and the case was committed to the Court of Sessions. The accused persons pleaded innocence on being explained of the charges and claimed to have been falsely implicated due to land dispute. They also admitted that accused Afzal was seriously assaulted by the informant party. Trial commenced.
5. One prosecution witness, Sonaram Mahto was adduced on behalf of the prosecution, though as per charge-sheet five prosecution witnesses were named. The entire case rested upon the evidence of P.W.1.
6. Learned trial Court considered the evidence on record and the case of the defence and came to the finding that non-examination of the informant, alleged injured persons and Investigating Officer were fatal to the prosecution case. In such circumstances, findings of conviction on the evidence of sole witness (P.W.-1) cannot be recorded in the background of previous land dispute and admitted assault on accused Afzal Ansari. Prosecution had failed to prove the charges against the accused persons beyond all reasonable doubts and, therefore, all the ten accused persons were held not guilty and acquitted of the charges.
7. P. W.-1, in his cross-examination, had stated that the place of occurrence was a land being cultivated by the accused persons for 8-10 years prior to the occurrence. The occurrence took place in the field of Ghadda Par on 11th July, 2004 at about 7 a.m. According to him, Ramjit Mahto, Meghnath Mahto,Krishna Mahto, Halindra Mahto, Maniram mahto,Munnilal Mahto, Santosh Mahto, Girdhari Mahto, Sanjay Mahto, 3. Rita Devi, Lalmani Devi and Raso Devi all had gone to plough the field, then the accused persons Gafur Ansari, Afzal, Mahmood, Ishaque, Idris , Shamim, Nasim, Firoz, Sharif and Kalam reached there with Bhujali, Farsa, Ballam and Akin and began to assault, as a result of assault, Maniram, Ranjit Mahto, Halindra, Meghnath, Santosh and Munilal became injured. Learned trial Court found that the prosecution witness no. 1 had made a vague statement in the sense that he failed to disclose as to which accused carried which weapon of assault as alleged in the written report. He also failed to state as to on which part of the body, Maniram Mahto and others sustained injuries as alleged in the written report. P.W.-1 had failed to corroborate the instances of assault by the individual accused persons through the weapon of offence upon the injured persons, who were individual members of the informant party.
8. Learned trial Court also found that P.W.-1 was the son of the alleged injured, Maniram Mahto, but he had not stated as to where the injured persons including his father got treatment of their injuries. Any doctor had not been cited as witness by the Investigating Officer in the charge-sheet. No other witness turned up to depose in support of the prosecution. In absence of Investigating Officer's evidence, the place of occurrence could not be established. Other important material evidence relating to injuries on the alleged members of the informant party i.e, whether memo of injury was prepared or not, injury reports were not adduced as evidence before learned trial Court. Non-examination of these vital witnesses caused a serious lacunae in the prosecution case. Learned trial Court also took note of the criminal case i.e. Sadar P.S. Case No.106 of 2004, in which the informant party were accused and were enlarged on bail. P.W.-1, in his cross-examination, had also accepted that during the course of occurrence on 11th July, 2004, Afzal Ansari was also assaulted by 8-10 persons including Munnilal Mahto, which led to institution of Sadar P. S. Case No.106 of 2004. The manner in which the prosecution failed to adduce any other material evidence to establish such serious charges of assault by the accused party by forming an unlawful assembly, led the trial Court to disbelieve the case of the prosecution and acquit the accused persons.
4.9. Learned Senior Counsel representing the informant/petitioner submits that conduct of trial was not in a proper manner. Learned trial Court did not take adequate step for production of the prosecution witnesses as would be revealed from bare perusal of the Lower Court Records and order-sheets of the case. The order-sheets of the trial court have been annexed to the petition and placed before us. Learned Senior Counsel submits that it was the duty of the trial Court in terms of Chapter- VI of Code of Criminal Procedure to take steps first by issuing summons, on failure of service of summons, to issue warrant of arrest and, if the prosecution witnesses were evading arrest, to proceed to issue process for declaration of the witnesses as absconder and attachment of their property to ensure their appearance. Learned trial Court, however, did not wait for execution report of warrant of arrest and simply sent letters to Senior Superintendent of Police for production of Investigating Officer and later on, to the Director General of Police, but did not follow it up. Only one prosecution witness was adduced on 14th February, 2007 and was discharged. Only two months thereafter, the prosecution evidence was closed on 24th April, 2007. The statement of the accused persons were recorded under Section 313 Cr.P.C on 25th April, 2007 and the judgment was finally delivered on 27th April, 2007 itself acquitting the accused persons. The trial Court should not have been a silent spectator, but should have taken a serious note of non-appearance of the witnesses for the prosecution, so that the trial did not end up in a mockery in spite of such serious charges of assault and injuries sustained by several persons on their head also. The material on record also revealed that there was occurrence on the said date and counter case had also been filed on behalf of the accused persons against the informant. The fate of the counter case however is not known. Learned Senior Counsel further submits that for failure of the Investigating Officer, the accused persons charged of serious offences should not have been let go in such fashion. Therefore, there has been a miscarriage of justice. The matter deserves to be remanded to learned trial Court to conduct the trial afresh to arrive at a proper finding.
10. Learned counsel for the private opposite parties has opposed the prayer and submits that learned trial Court has rightly acquitted the 5. accused persons as the prosecution had failed to adduce any other witnesses apart from only one Prosecution Witness No.1. Testimony of P.W.1 was also vague and he could not attribute specific instances of assault and at which part of the body on the individual members of the informant party by individual accused persons and the weapon used. Learned trial Court took sufficient steps for production of the prosecution witnesses but could not have waited indefinitely to prolong trial. The accused were also represented during the trial.
11. Learned counsel for the State has defended the impugned judgment.
12. We have considered the submission of learned counsel for the parties at length and gone through the impugned judgment as also relevant materials cited on behalf of counsel for the petitioner from the Lower Court Records, more specifically the order-sheet of the case. We have taken note of the detailed evidence of P.W.1 as above. From the order- sheets of learned trial Court, we find that charges against the accused persons were framed on 16th January, 2006 and the matter was posted on 28th February, 2006. Trial Court had directed appearance of the prosecution witnesses on the next date i..e 21 st April, 2006. Though the accused persons were represented, but none of the prosecution witnesses appeared on the said date. On the next date also i.e. 2nd June, 2006, none of the prosecution witnesses appeared. Thereafter on the next date i.e. 11th July, 2006 learned trial Court proceeded to issue warrant of arrest against the prosecution witness nos. 1 to 7 and also issued letter to Senior Superintendent of Police to ensure appearance of Investigating Officer. Despite that on the subsequent dates i.e. 31st July, 2006, 19th August, 2006, 27th November, 2006 and 30th November, 2006, none of the prosecution witnesses appeared. The trial Court again took note of warrant of arrest issued on 30th November, 2006 and subsequently on 6th January, 2007 wrote letter to Director General of Police as well, to ensure that adequate steps are taken by the prosecution for adducing evidence. It was thereafter on 14th February, 2007 P.W.1, Sonaram Mahto appeared and was examined and cross-examined and thereafter discharged. The matter was again adjourned for another date i.e. 24th March, 2007. On the next date learned A.P.P. was again directed to take steps for production of remaining 6. witnesses. However, again on 7th April, 2007 none of the prosecution witnesses appeared. Learned trial Court gave a last chance for the prosecution to adduce their evidence. Thereafter on 24th April, 2007 the prosecution evidence was closed. The statement of the accused persons were recorded under Section 313 Cr. P. C on 25th April, 2007. Learned trial court in such circumstances, felt constrained in the absence of the prosecution witness to come to a finding of guilt against the accused persons, as there was no cogent material evidence on record to nail the accused persons of such serious charges. The discussion of the material evidence on record made above also shows that neither P.W.-1 attributed the specific instance of assault by any of the accused persons with particular weapon of assault upon individual members of the informant party, nor any medical report relating to injuries were adduced as evidence. P.W.-1 was the son of injured Maniram Mahto, but surprisingly the injured persons themselves never appeared to support the prosecution case. Though the prosecution had named several persons as having been injured and were also shown as charge-sheet witnesses but none of them appeared to depose in support, despite all the steps taken by the learned trial to ensure their presence. It was the duty of the prosecution to seek declaration in terms of Section 82 of the Code of Criminal Procedure and process for attachment of the property of the witnesses by making a proper application showing sufficient grounds that the prosecution witnesses were deliberately avoiding arrest despite issuance of warrant of arrest. [See: Md. Nazrul Islam Vs. State of Assam; 2008 SCC Online Gau 78, para 21]. In such circumstances, learned trial court had no other option but to acquit the accused persons of the charges. Upon consideration of these facts and totality of circumstances, we do not find that procedure adopted by trial Court suffers from such irregularity or illegality which has vitiated the trial. It is well settled that this Court in exercise of revisional powers under Section 397 read with Section 401 Cr. P. C cannot act as a court of appeal to reappraise the evidence. However, perversity of finding or illegality, impropriety in conduct of proceedings committed by learned trial Court can be looked into in revisional jurisdiction. See: [(2013) 11 SCC 668; Kumar and others vs. Karnataka Industrial 7. Cooperative Bank Limited and another and (2013) 14 SCC 207, Paras 9 & 10; Venkatesan v. Rani)].
13. However, on consideration of all these facts, we do not find any such serious error on the part of learned trial Court in arriving at the impugned finding, which has rendered the impugned judgment perverse.
14. We, therefore, do not find any merit in this petition. Accordingly, the revision petition is dismissed.
(Aparesh Kumar Singh,J) (Ratnaker Bhengra, J) Jharkhand High Court, Ranchi Dated 4th April, 2018 Jk/NAFR