Jharkhand High Court
Piyush Pathak vs The State Of Jharkhand on 15 May, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 3758 of 2017
Piyush Pathak ............Petitioner
Vrs.
1. The State of Jharkhand
2. Prabhu Nath Singh ............. Opposite Parties
.......
CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MR. JUSTICE RATNAKER BHENGRA For the Petitioner : M/s Indrajit Sinha, Suraj Singh, Harsh Vardhan For the Opposite Parties : Mr. Krishna Shankar, A.P.P. 06/15.05.2018 Heard learned counsel for the petitioner and learned A.P.P. representing the State.
2. This petition has been preferred under Section 378(4) of the Criminal Procedure Code, 1973 seeking special leave to appeal against the judgment of acquittal dated 29.06.2017 passed in C/1-Case No. 892 of 2007 / T.R. No. 276 of 2017 by the learned Chief Judicial Magistrate, Jamshedpur where under the sole accused / opposite party no.2 herein has been acquitted of the charges under Sections 379/387 of the India Penal Code.
3. Petition is suffering from a delay of 106 days for condonation of which, I.A. No. 138 of 2018 has been preferred. Petitioner has stated that certified copy of the order was obtained on 10.12.2017 and thereafter he approached his counsel to file this application before this Court. The delay is not inadvertent. The period of limitation in filing the petition expired on 04.09.2017 but the same was filed after 106 days delay on 18.12.2017. Therefore, the delay may be condoned. Learned A.P.P. opposed the prayer for condonation of delay stating that there are no sufficient explanation for it.
4. We have also heard submission of learned counsel for the parties on merits of the prayer seeking special leave to appeal. The complainant through his complaint dated 31.05.2007 alleged that the accused till recently was his tenant at the rented premises in portion of a shop measuring 8 Ft X 7Ft in complainant's shop no. 27/1/c, Kalimati road, Sakchi, Jamshedpur. Between 18.05.2007 to 22.05.2007 accused had approached the complainant to settle the ongoing dispute between them provided that he was paid Rs. 1 Lakh to meet his daughter's wedding expenses to vacate the shop premises immediately. Complainant agreed and on 22.05.2007 made cash payment of Rs. 1 lakh, withdrawn from Dena Bank, Bistupur Branch, Jamshedpur. This was accepted by the accused who duly signed on a money receipt acknowledging the same and agreed to deliver the possession to the land lord in presence of two witnesses and thereafter vacated the shop premises. Thereafter the complainant moved in some of his goods into the portion and locked up his shop. On 30.05.2007 at 9.00 a.m., when he and his brother opened the shop, immediately the accused person along with two of his gundas entered the shop and demanded further Rs.1 lakh within -2- one hour itself. When they refused to meet his demand, the gundas on instructions of the accused forcibly restrained the complainant and his brother at knife point while the accused snatched the shop's key from the complainant's hand. He also snatched golden bracelet on complainant's wrist worth Rs.20, 000/-. The accused went into the shop portion that had been let out to him and instructed the other goons to carry away some of the articles to his vehicle standing outside, thus taking away goods belonging to the complainant worth Rs.6-7 thousand. The accused while leaving threatened the complainant to keep the money ready soon otherwise his life would be in danger. On alarm being raised by the complainant, some persons came and the accused along with two men quickly went away in their vehicle along with the stolen goods and golden bracelet. The incidence was reported to the Sakchi Police Station at once but no action was taken. So the complainant approached the Court.
5. After solemn affirmation and inquiry, finding prima facie case under Section 379/387 of the I.P.C against the accused , he was summoned to face trial by order dated 10.07.2007. After procuring his appearance, the case was posted at the stage of evidence before charge. On the basis of the evidence brought before the charge, under Section 244 Cr.P.C, charges were framed under the aforesaid sections against the sole accused on 15.07.2013 to which he pleaded not guilty and claimed to be tried. After the charge, the case was posted for evidence, which was closed on 07.04.2016 on the request of complainant. Statement of the accused was recorded under Section 313 Cr.P.C on 13.04.2016 and defence evidence was closed on 18.12.2016 as it did not wish to give any more evidence. The learned Trial Court thereafter proceeded to analyze the evidences on record in the light of the allegation made and came to the finding of acquittal of the sole accused as the complainant had failed to prove the charges beyond shadow of all reasonable doubts.
6. The complainant examined four witnesses namely C.W.1, complainant himself; C.W.2 Rakesh Meghani; C.W.3 Mayur Pathak and C.W.4 Balaji Patel. C.W.2 exhibited receipt of delivery of possession dated 22.05.2007 and his signature there on as Ext. 1 and 1/1. The money receipt dated 22.05.2007 was also exhibited as Ex. 2. The accused examined himself as D.W.1. C.W.1 and C.W.3 were the complainant and his brother who did not turn up before the Court in the stage after charge for their cross examination by the defence. Therefore, their statements were not taken into consideration. Learned Trial Court thereafter analyzed the evidences of C.W.2 and C.W.4. C.W.2 deposed that he knew Piyush Pathak and P.N. Singh and in his presence the agreement took place on 22.05.2007 for vacating the shop and for which Piyush Pathak gave Rs.1 Lakh to P.N.Singh. Money receipt was prepared thereon in his presence, -3- which carried the signature of accused P.N.Singh and one R. Ganeshan. The shop was vacated on the same day. On 30.05.2007 he got phone call from the complainant that the accused and his men came to his shop and they were threatening him and demanding Rs. 1 lakh showing knife and that they snatched away his bracelet and the key of the shop and threatened of dire consequence. In cross examination, he stated that he used to supply goods to Piyush (complainant) for the last 3-4 years. He was having trade relationship with the complainant. He got information regarding occurrence dated 30.05.2007 through the complainant on telephone but did not go to the place of occurrence and did not give information regarding said occurrence to nearby shopkeepers. A lot of criminal and civil cases were going on between both the parties.
C.W.4 in his examination - in - chief stated that the complainant was having a spare parts shop in Sakchi. He was in the shop on 30.05.2007 at 9.00 a.m. when he saw that 2-3 persons were talking with Piyush Pathak as if they were fighting and they were asking for money and then P.N.Singh lifted the key and two others one having knife, snatched away bracelet of Piyush from his hand. Further some parts kept on the table were also lifted away. Complainant started shouting and some people gathered there, then the accused persons fled away. Further he had claimed to identify the accused on seeing him. In cross examination he had stated that he and the complainant resided in the Contractors area. However, he did not intervene in the fight. The distance from the contractor's area, Bistupur to main road Sakchi is 4-5 KM. In para 16 he had stated that he could not state the look of the persons standing in the shop of the complainant. In para 20 he had stated that he could not say what parts were kept on the table. In para 27 he had stated that he did not know the accused prior to the occurrence.
7. Learned Trial Court on consideration of these materials evidence found that the complainant and his brother, who were allegedly the victim of the crime did not appear after framing of the charge for cross examination by the defence. C.W.2 appeared to be interested witness and also not at the site, rather he came on telephonic information. C.W.4's testimony of the alleged occurrence also appeared to be doubtful as it was not established as to how he came to know about the alleged occurrence when he was at his garage at Sakchi. It also appeared that there were lot of cases pending between the parties and admittedly the accused was the tenant in the said shop. D.W.1 in his examination-in-chief had stated that on 23.05.2007 the complainant and his brother put a lock above his lock in his shop with a purpose to capture the shop and a complaint was made in the police station, but no action was taken, then Misc. Case No. 319 of 2007 under Section 144 Cr.P.C was filed in the Court of S.D.O and on -4- 25.07.2007, Order was passed in his favour for opening the lock by Sakchi Police but the said order was set aside in criminal revision. Thereafter he filed injunction petition before the Court of Munsif. The money receipt regarding delivery of possession filed by the complainant was forged. Again on 31.05.2007 he was forcibly dispossessed from the shop and his articles were stolen away. He denied the occurrence dated 30.05.2007. This material evidence led to the learned Trial Court to disbelieve the entire story put up by the complainant, as a result of which, accused person was acquitted.
8. Learned counsel for the petitioner has not been able to dislodge the findings of acquittal rendered by the learned Trial Court on close scrutiny of evidence on record. When the complainant and his own brother who were main material witness failed to turn up for cross examination after framing of the charge, learned Trial Court had ample reason to acquit the accused person. The testimony of remaining two complainant's witnesses did not appear to be credible and reliable.
9. Learned A.P.P. has supported the findings of the learned Trial Court and submitted that the complainant has miserably failed to prove the charges beyond all reasonable doubts.
10. Having regards to the material discussion made herein above, we find that the petitioner has particularly no explanation for seeking condonation of delay of 106 days in approaching this Court. At the same learned counsel for the petitioner has also not been able to discredit the findings of acquittal by the learned Trial Court on merits. We therefore, do not find sufficient reason to condone the delay in filing the instant petition. Accordingly, prayed made in I.A. No. 138 of 2018 is rejected.
11. Consequently, the instant petition also stands dismissed.
(Aparesh Kumar Singh, J.) ( Ratnaker Bhengra, J.) A.Mohanty