Jharkhand High Court
Satwant Singh @ Mohar Singh vs The State Of Jharkhand on 4 January, 2022
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Cr. Appeal (SJ) No. 697 of 2010
(Against the judgment of conviction and the order of sentence both dated 27.07.2010, passed
by the learned 1st Additional Sessions Judge-cum-Special Judge, SC/ST (Prevention of
Atrocities) Act, Latehar in SC/ST Case No. 02 of 2007)
------
1. Satwant Singh @ Mohar Singh,
2. Balwant Singh, Both sons of Late Mungeshar Singh, residents of Village-Banpur, (Jubli Chowk), PO, PS & District-Latehar
3. Jitendra Ram @ Jeetender Kahar, son of Sarju Ram, resident of Main Road, PO, PS & District-Latehar
4. Machhindra Sao, son of Lakhan Sao, resident of Village-Pandepura, PO, PS & District-Latehar.
... ... Appellants
Versus
The State of Jharkhand ... .... Respondent
(Through V.C.)
CORAM: HON'BLE MR. JUSTICE RATNAKER BHENGRA
-------
For the Appellant : Mr. Rohit, Advocate
For the State : Mr. Tapas Roy, APP
-------
By Court:
Heard Mr. Rohit, the learned counsel for the appellants and Mr. Tapas Roy, the learned counsel for the State.
2. The present criminal appeal is preferred against the judgment of conviction and the order of sentence both dated 27.07.2010, passed by the learned 1st Additional Sessions Judge-cum-Special Judge, SC/ST (Prevention of Atrocities) Act, Latehar in SC/ST Case No. 02 of 2007, whereby and where under, the appellants were convicted under Sections 448 and 506 of the Indian Penal Code and were sentenced to undergo RI for six months under Section 448 of the Indian Penal Code and three years under Section 506 of the Indian Penal Code and both the sentences were ordered to run concurrently.
3. The case of the prosecution, in brief, as per the written report dated 13.11.2004 of the informant PW-1 Bela Martha Kujur is that on 12.11.2004 at about 01:00 pm, in the afternoon, accused Jaswant Singh, Balwant Singh, Mohar Singh, Jitendra Kahar, Nagendra Sao and Machhinder Sao, came on three motorcycles and said "chota jaati log ka mann badh gaya hai" and started searching her husband Philip Kujur.
2 Cr. Appeal (SJ) No. 697 of 2010 Informant further stated that appellants said that "saala tum aadiwasi log bahut tej ban raha hai" to which informant asked the reason for saying so, then, Jaswant Singh and Balwant Singh said abusives words to her. Accused Jaswant Singh caught her hair and pushed her. Informant further stated that appellants entered into her house and searched for her husband and on not finding her husband, they threatened wherever Philip Kujur is found, they will kill him. Thereafter, appellants went to the Lotto village, in the house of informant's sister-in-law (gotni) PW-2 Shanti Khalko and there appellant Balwant Singh asked her gotni about Philip Kujur, to which she said Philip Kujur was not here, upon which the Jaswant Singh abused her.
4. On the basis of the written report, F.I.R being Latehar P.S. Case No. 94 of 2004 dated 13.11.2004 was registered against the appellants under sections 341, 323, 354, 448, 504, 506/34 of the Indian Penal Code and Section 3(X) of the S.C./S.T. (Prevention of Atrocities) Act, 1989. After investigation charge-sheet was submitted against the appellants under Sections 341, 323, 354, 448, 504 and 506/34 of the Indian Penal Code and 3(X) of the S.C./S.T. (Prevention of Atrocities) Act, 1989 and showed Nagendra Sao dead and Jaswant Singh absconder. Cognizance of the offences were taken and the case was committed to court of Special Judge, S.C/ S.T (Prevention of Atrocities Act, 1989). Charges were framed against the appellants under sections 448, 341, 323, 354, 504 and 506 of IPC and section 3/4 of S.C./ S.T. Act, 1989 and trial was held. At the conclusion of the trial appellants herein were convicted and sentenced as aforesaid, hence, this appeal.
5. Prosecution in order to prove its case had examined altogether four witnesses out of whom PW-1 is Bela Martha Kujur, who is the informant of the case; PW-2 is Shanti Khalko, who is the sister-in-law (gotni) of the informant; PW-3 is Mano Vikash Kujur, who is the son of the informant and PW-4 is Tepa Oraon. Here it is pertinent to note that PW-3 is a hearsay witness and PW-4 was declared hostile.
6. PW-1 Bela Martha Kujur, is the informant of the case. Informant had stated in her evidence that on 12.11.2004 at 01:00 pm, in the noon, she was in her house. Accused Jaswant Singh, Balwant Singh, Mohar Singh, Machhinder Sao, Nagendra Sao and Jitendra Kahar came abusing her husband on three motorcycles and said filthy words to her husband. Informant further stated that when she asked the reason, then, Jaswant Singh 3 Cr. Appeal (SJ) No. 697 of 2010 caught hold her hairs and dragged her out and pushed her. Thereafter, all the accused persons entered into her house in order to find out her husband and when they did not find her husband, they went away saying that wherever they find her husband they will kill him. Informant further stated that thereafter, the accused persons went to the house of her gotni PW-2 Shanti Khalkho, and there the accused persons asked her about Philip Kujur to which she replied that he did not come, then Jaswant said that he had spent 80-90 thousand rupees and wherever he will find, he will kill him. Informant had proved her written report which was marked as Ext.-1. In her cross- examination, informant had stated that there was dispute between Jaswant Singh and her husband regarding theka.
7. PW2 is Shanti Khalkho, who is the sister-in-law (gotni) of the informant. PW-2 had stated in her evidence that three years ago, on Friday, she was in her house and in the meantime accused persons Jaswant, Balwant, Mohar, Jitendra and Machhindar came there and asked her about Philip Kujur. PW-2 further stated that Jaswant said that he had spent Rs.80-90 thousand rupees and he will not leave Philip Kujur.
ARGUMENTS ON BEHALF OF APPELLANTS
8. Mr. Rohit, the learned counsel for the appellants has, first and foremost, argued that the entire case of the prosecution is based on false accusation against the appellants due to a road contract. Learned counsel has submitted that there was a dispute between husband of the informant and one of the accused Jaswant Singh over the contract of village road. Jaswant Singh had given the contract to his persons, but, the husband of the informant wanted that contract be given to local people's and, hence, there was a differences between the parties and due to this, false accusations was made against the appellants. The learned counsel for the appellants has also submitted that the husband of the informant was convicted in the case of murder of one Surendra Minj and in that murder case Jaswant Singh had given evidence against the informant's husband and due to this appellants were falsely implicated in the present case.
9. Learned counsel for the appellants further submitted that the entire case rest on the apprehension or rather misapprehension of the informant that the appellants were searching for her husband in order to kill him and, therefore, she had lodged this false case against the appellants.
4 Cr. Appeal (SJ) No. 697 of 2010 Learned counsel further submitted that prior to this, there was no any act or mischief by the appellants and hence, such apprehensions on part of the informant PW-1 Bela Martha Kujur was wrong. Learned counsel for the appellants then read out from the evidence of PW-1 informant and submitted that the entire allegation or initial allegation is only based on the aforesaid false apprehension of harm to her husband. Further, as per the written report of informant as well as evidence of informant, there is reference to holding of the informant's hair and dragging her, but, informant herself deposed that no harm was inflicted to her.
10. Learned counsel for the appellants has then referred to the evidence of PW-2 Shanti Khalko, who is the sister-in-law (gotni) of the informant, and pointed out that as per the written report, the accused or the appellants had allegedly gone to the house of PW-2, in search of informant's husband Philip Kujur. Counsel says that she is related to the informant and PW-2 has only supported the allegations of PW-1, which in turn is based only on apprehension or misapprehension of harm or injury to the informant's husband and, hence, PW-2 is not an independent witness.
11. Learned counsel for the appellants has then referred to the evidence of PW-3 Mano Vikash Kujur, and pointed out that he is the son of the informant and he is a hearsay witness because as per his evidence during the time of alleged occurrence PW-3 was in college and, therefore, his evidence cannot be relied upon. Further, in para no. 4 of his evidence, PW-3 had deposed that the accused persons or the appellants had not committed any harm or injury to him or to his father, therefore, the apprehension of PW-1 or his mother was totally misguided and, hence, a false case was lodged.
12. Learned counsel has then referred to the evidence of PW-4 and pointed out that it is apparent from the evidence of this witness that he is not at all an eyewitness to the case as alleged. Further, he was declared hostile and, therefore, his evidence should not be taken into consideration for sustaining the conviction of the appellants herein.
13. Learned counsel further submitted that PW-1 has stated in her evidence that there were 100 houses in Upar Lotto village, but, no one was put forward by the prosecution as a witness. Learned counsel submits that from this crowded village, it would be easy to procure an independent witnesses to support the allegations against the appellants, however, none of 5 Cr. Appeal (SJ) No. 697 of 2010 the people's from nearby were examined as a witnesses which creates doubt in the prosecution case. Learned counsel further submits that informant's husband was also not examined and his examination was crucial, because, there was dispute between the informant's husband and one of the accused Jaswant Singh, over contract of road. But, prosecution did not examine the informant's husband as a witness in the case, which creates doubt.
14. Once again, referring to the evidence of PW-2, learned counsel pointed from para-4 of her evidence and submitted that she had only come to know the accused persons on the date of occurrence itself and this means she did not know the accused persons or the appellants herein from before and, therefore, only on the allegation of PW-1 informant, PW-2 had supported the allegations in her evidence against the appellants. Further, PW-2 has also deposed that she had not informed any of her co-villagers and this is so because no such incident as alleged had occurred.
15. Learned counsel has also argued that due to non-examination of the Investigating Officer, prejudice was caused to the appellants, because, it was only on the basis of the examination of the Investigating Officer, truthfulness about the allegations may have come out. Learned counsel has submitted that due to non-examination of the Investigating Officer, the place of occurrence and when and how the incident happened, all becomes very doubtful.
16. Learned counsel further argued that motive for committing offence being there, as argued by the learned counsel for the State, cannot be considered sufficient. Learned counsel has also argued that in the facts and circumstances of the case and that there is prior differences or enmity, motive would cut both ways. Counsel submits that he has already pointed out that in the murder of one Surendra Minj, Jaswant Singh was one of the witnesses and the husband of the informant was convicted, therefore, there was a high degree of motive on the part of the informant side to make false allegations against the accused or the appellants herein. Learned counsel has relied on the Judgment of Umesh Sharma v. The State of Jharkhand reported in 2019 (2) East Cr.C 426 (JHR) by this court.
17. Finally, without admitting the guilt of the appellants, learned counsel for the appellants has also submitted that the case is of the year 2004 and till now 17 years have passed for what can be considered as minor offences and the appellants have already faced hardships of trial and also 6 Cr. Appeal (SJ) No. 697 of 2010 appeal. Learned counsel also submitted that the appellants had no any prior antecedents or negative case records at the time of occurrence and they may be allowed the benefit of Probation of Offenders Act.
ARGUMENTS ON BEHALF OF STATE
18. Mr. Tapas Roy, the learned APP, on the other hand, argued that there was rivalry between the appellants and the informant's husband regarding construction of village road which is apparent from para- 7 and para- 8 of the evidence of the informant PW-1. The learned APP further submitted that due to this the informant's husband was disliked by the appellants and it shows the motive of the appellants actions against the informant's husband.
19. Learned APP has also submitted that it has been argued by the learned counsel for the appellants that the place of occurrence cannot be proved because of the non-examination of the Investigating Officer, but, there is not only one place of occurrence, in fact, there are two places of occurrence and it can be said that trespass had taken place in the house of both PW-1 as well as PW-2 and also in both places the husband of the informant was searched and at both the places threatenings were made, therefore, both the places can be considered as the places of occurrence for which there was conviction under Sections 448 and 506 of the Indian Penal Code. Learned APP has further submitted that PW-1 and PW-2 are not unreliable witnesses and, therefore, the evidence of PW-1 and PW-2 cannot be discarded.
20. Regarding the evidence of PW-3, the learned APP has pointed out that though he is a hearsay witness, he concurred about the occurrence and in his cross-examination, he has deposed that his family feared for the safety after the incident since appellants were searching for his father.
21. Regarding the prejudice caused due to non-examination of the independent witness, the learned APP submitted that no prejudice was caused to the appellants as there were no contradictions in the evidences of the prosecution witnesses or the untrustworthiness or unreliability on the part of the prosecution witnesses. Further, the learned APP has said that only the ground that the witnesses are related to each other cannot be the basis of the evidences being rejected. The learned APP further submits that very often in many cases, when house trespass occurs it is only the residents, who 7 Cr. Appeal (SJ) No. 697 of 2010 are the witnesses and, therefore, it is but natural that the inmates will be first and foremost related to family witnesses and, therefore, their evidence cannot be discarded.
FINDINGS
22. I have heard the learned counsels, gone through the records of the case and the evidences. In this case appellants are convicted and sentenced under sections 448 and 506 of IPC.
23. On going through the evidence, I find that informant PW-1 Bela Martha Kujur and her sister-in-law (gotni) PW-2 are the material witnesses in this case. I have gone through the written report of the informant PW-1 as well as her deposition. Informant deposed that appellants had entered into her house, in search, of her husband Philip Kujur and when they did not find her husband, then they threatened the informant that wherever they find her husband they will kill her husband. Thereafter, appellants went to the house of the sister-in-law (gotni) of the informant, who is PW-2 and there also they started searching for informant's husband. PW-2 also in her evidence, corroborated the statement of the informant by stating that appellants came to her house in search of informant's husband and not finding him, they said that they had spent 80-90 thousand rupees and they will not spare the husband of the informant. Further, from the deposition of both PW-1 and PW-2, I find that both have specifically named the appellants herein that appellants had entered into the informant's house. I also find from the deposition of both the witnesses PW-1 and PW-2 that they had identified the appellants in the court during the trial and neither the appellants identification were challenged nor PW1 and PW2 were cross-examined on the point of identification. Hence, the facts remains that appellants identification remained unchallenged. Hence, I come to the conclusion that all the appellants entered into the house of the informant forcefully in search of the informant's husband and on not finding him, appellants threatened the informant that they will kill her husband. Therefore, prosecution has proved the charges against the appellants under sections 448 and 506 of IPC.
24. Learned counsel for the appellants has raised an argument that non-examination of Investigating Officer has caused prejudice to the appellants. But, ongoing through the evidences of both the informant PW-1 and her sister-in-law PW-2, I find that both these witnesses remained 8 Cr. Appeal (SJ) No. 697 of 2010 consistent throughout their evidences and hence, no prejudice was caused to the appellants due to non-examination of Investigating Officer. The judgment of Umesh Sharma (Supra), relied on by the learned counsel for the appellants is not applicable in the facts and circumstances of the case on hand as in Umesh Sharma (Supra) case, appellant therein was convicted under sections 325, 341 of IPC along with 448 of IPC by the learned trial court and this court had allowed the appeal by giving benefit of doubt on the ground that no document regarding the treatment was produced to show the nature of injury and treatment given to the victim in the hospital. But, in the case on hand, the facts are different and conviction are under sections 448 and 506 of IPC. Both the material witnesses PW-1 and PW-2 have given concrete evidence and appellants identification before the learned court remained unchallenged.
25. Accordingly the impugned judgment of conviction dated 27.07.2010, passed by the learned 1st Additional Sessions Judge-cum- Special Judge SC/ST (Prevention of Atrocities) Act, Latehar in SC/ST Case No. 02 of 2007 is sustained and upheld.
26. So, far as sentence is concerned, I have noted the mitigating circumstances submitted by the learned counsel for the appellants. I find that the occurrence is of the year 2004 and till now almost 17 years have passed and the offence is not very major in nature. Appellants have suffered rigors and vigour of trial and have undergone some custodial sentence and hence at this stage the period already undergone by the appellants are considered as sentence sufficiently served. But, appellants shall pay a consolidated compensation amounting to Rs.10,000/- to the informant within a period of three months from the date of receipt of copy of this judgment, failure to pay the consolidated compensation amount would result in SI of one month each. The compensation amount may be deposited in the learned court below and the appellants shall be discharged from the liability of bail bonds after payment of the compensation amount. The concerned court below shall carry out the order of this court.
27. Accordingly, Criminal Appeal (SJ) No. 697 of 2010 is dismissed with above modification in sentence.
(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 04th January, 2022 Sharda/Madhav-NAFR