Allowed

Keshwar Ahir And Ors. v. State of Jharkhand

Jharkhand HC19 Sept 2018Cr.A(SJ)/220/2003

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Jharkhand examined the conviction for dacoity under Section 395 IPC. The Court found the prosecution case doubtful due to inconsistencies in medical reports, non-recovery of stolen money and watch, and failure to examine the injured victim or investigating officer, leading to the acquittal of the appellants.

What did the court decide?

The judgment of conviction and order of sentence were set aside; all four appellants were acquitted of the charges and discharged from bail liabilities.

Keshwar Ahir And Ors. Vs State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Appeal (S.J.) No. 220 of 2003

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(Against the judgment of conviction and order of sentence dated 3.2.2003 and 4.2.2003 respectively passed by the Additional District and Sessions Judge, Fast Track Court no. 1, Gumla in connection with S.T. No. 01 of 1991 arising out of Ghaghra P.S. Case no. 31 of 1990, G.R. no. 266 of 1990.

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Keshwar Ahir S/o Jatra Ahir

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Birendra Oraon S/o Baijnath Oraon

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Bal Kishun Oraon S/o Muskar Oraon

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All R/o Village-Sarango, PS-Gumla District-Gumla

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Basudeo Oraon S/o Ghuran Oraon R/o Village-Bhargaon, PS-Senha, Distt.- Lohardaga

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…… Appellants

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-Versus-

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The State of Jharkhand ...... Respondent ------

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CORAM : HON’BLE MR. JUSTICE RATNAKER BHENGRA -----For the Appellants : Mr. A.K.Chaturvedi, Advocate Mr. Amit Kumar Choubey, Advocate For the Respondent : Mr. Rajesh Kumar Mishra,A.P.P.

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By Court:

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This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 3.2.2003 and 4.2.2003 respectively passed by the Additional District and Sessions Judge, Fast Track Court no. 1, Gumla in connection with S.T. No. 01 of 1991 arising out of Ghaghra P.S. Case no. 31 of 1990, G.R. no. 266 of 1990 whereby and where under all the appellants were convicted u/s 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and composite fine of Rs. 3000/- and in default of payment of fine, appellants were to undergo rigorous Imprisonment for one year.

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2 . The case of the prosecution, in brief ,as per fardbayan dated 26.4.1990 of the informant PW-8 Bandhu Oraon, is that his elder brotherin-law Birsu Oraon ( sala ), his brother-in- law (husband of sister) along with 3-4 other persons came to his house on the occasion of Sarhul festival. Informant further stated that in the previous night after taking dinner they closed the door of the house and went to sleep at 9 p.m. At about 11 p.m. some persons came and started pushing the door as a result door broke opened and then 6-7 persons armed with lathi and bhujali entered into the house and started assaulting the family members indiscriminately. The informant with his sister Laxminia Devi came out of the house and raised alarm in the village. The dacoits assaulted the informant’s mother Sukhmania Devi, informant’s wife Budhmania Devi,

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brother-in-law Birsu Oraon ( sala ), and brother-in-law Prabhu Oraon ( sister’s husband ) and took away a sum of Rs. 20,000/- kept in a bamboo box for registry of a land. The wife and the mother of the informant identified some of the dacoits in the torch light namely Keshwar Ahir, Bipin Oraon, Bisheshwar Oraon, Bal Kishun Oraon, Ravindra Lohara and Basudeo Oraon but could not identify 2-3 dacoits. The dacoits also took away H.M.T. Sona watch of his elder brother-in-law ( Sala ).

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3 . On the basis of the fardbayan of the informant Ghaghra P.S. Case no. 31 of 1990 under section 395 of the IPC was registered against the accused persons. After completion of investigation, charge sheet was submitted under section 395 of IPC against the accused persons and after taking cognizance, the case was committed to the court of Sessions. Charge were framed against the seven accused persons under section 395 IPC. Trial was held and on conclusion of trial the learned trial court convicted and sentenced the accused persons or the appellants herein as aforesaid. Hence, this appeal.

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4 . Prosecution had examined altogether eleven witnesses in support of its case out of whom PW-8 Bandhu Oraon is the informant of this case. PW-1 Parsu Ram Singh is a formal witness who has proved the formal FIR which was marked as Ext.-1; PW-2 is Dr. J.N.P. Singh who examined the injured Birsu Oraon; PW-3 is Budhmania Devi; PW-4 is Sukhmania Devi; PW-5 is Laxminia Devi; PW-6 is Mithku Baitha; PW-7 is Mahrang Oraon; PW-9 is Biswanath Oraon; PW-10 is Chaturdhan Prasad and PW11 is Rajendra Oraon.

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5. PW-8 Bandhu Oraon is the informant of this case. Informant has stated in his examination-in-chief that on the day of occurrence, on the occasion of Sarhul festival his brother-in-law Birsu Oraon ( sala ) and others came to his house. They slept after taking food. Dacoits started breaking the door of his house then they woke up. Dacoits armed with balua , bhujali and lathi entered into his house by breaking open the door. They started assaulting his wife and Birsu Oraon. He fled away and raised hulla. Dacoits also assaulted his sister Laxminia. Dacoits took away Rs. 20,000/- from a bamboo box and a wrist watch. On his hulla villagers came then the dacoits fled away. His mother and wife told him the name of dacoits as Bisheshwar, Bal Kishun, Keshwar, Bilan and Basudeo. Dacoits were wearing lungi and covered their faces.

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6. PW-3 is Budhmania Devi is the wife of the informant Bandhu Oraon, she stated in her examination-in-chief that on the day of occurrence at

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about 11 p.m. in the night dacoits entered the house by breaking open the door. She further stated that the dacoit assaulted her and her brother. Bal kishun, Bisheshwar, Birendra, Basudeo and Keshwar had assaulted them. Bisheshwar was armed with bhujali and others were holding lathi . Accused persons were beating us and were asking for money. Dacoits took Rs. 20,000/- from a bamboo box and fled away. Dacoits also snatched watch of her brother. She identified the accused in the dock.

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7. PW-4 is Sukhmania Devi is the mother of the informant. PW-4 stated in her evidence that on the day of occurrence accused persons Bisheshwar, Balkishun, Birendra and Rabindra entered into her house by breaking open the door. They were armed with lathi. They took Rs. 20,000/- from a bamboo box and fled away. She in her cross-examination stated that accused persons entered forcibly in her house. All the accused had covered their face. They entered in the house when darkness prevailed in the evening.

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8. P.W.-5 is Laxminia Devi, PW-6 Mitku Baitha, PW-9 Biswanath Oraon and PW-11 Rajendra Oraon were declared hostile. P.W.-7 Mahrang Oraon is a tender witness. PW-10 Chatrudhan Prasad is an advocate clerk and formal witness, who had proved case diary of the case in the writing and signature of officer-in-charge Ezra Bodra which was marked as Ext.-3.

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9. P.W.-2 is Dr. Jadunandan Prasad Singh who had examined Birsu Oraon and found following injuries on his person: (i) swelling on left thigh 5 c.m. x 5 c.m.; (ii) Ulcer wound on right arm 5 c.m. x 3 c.m. x skin deep. It was incised wound; (iii) Erythma on both cheek. Doctor opined that all the injuries were simple in nature. Doctor proved the injury report which was marked as Ext.-2.

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ARGUMENTS ON BEHALF OF APPELLANTS :

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10 . Learned counsel for the appellants argued that this is a case u/s 395 IPC for which punishment of seven years had been imposed along with composite fine of Rs. 3,000. The entire case has been fabricated and concocted and there is no proof in the allegation regarding the offence of dacoity. He has taken the court to the evidences of prosecution witnesses. Learned counsel submitted that P.W.-1 Parsuram Singh had only proved the FIR which has been marked as Ext.1. He then referred to the evidence of PW-2 Dr. J.N.P. Singh and submitted that as per doctor’s report there is only one injured person who is Birsu Oraon but in the fardbayan it has

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been alleged that mother and wife of the informant as well as Prabhu Oraon were also assaulted and therefore, injuries sustained by them shall also to have been reflected but their names had not figured as injured in the doctor’s report which shows inconsistency in the medical report and ocular evidence.

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11. Learned counsel then referred to the evidence of PW-3 Budhmania Devi, who is the wife of informant. She has deposed that she put off the lamp and then slept. Counsel for the appellant said that there is no reference in the deposition of the torch which is mentioned in the FIR for identification of the accused persons. This witness has further deposed that some of the dacoits had covered their faces but learned counsel submitted that there is no whisper of anybody covering their faces. In fact, as per fardbeyan informant side have straightway identified the accused persons and hence, there is discrepancy in the evidence of PW-3 regarding covering of faces. This witness had further indicated that one of the accused Balkishun is her devar or younger brother-in-law. Regarding Rs. 20,000/- this witness has deposed that it was earned by her brother Birsu Oraon. Here counsel for the appellant pointed out that however in the FIR the informant claimed to be his money which was paid to him for compensation of land which pertains to some mines. Counsel therefore, submitted that this money either belongs to the informant or to Birsu Oraon but it cannot be of both of them.

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12. Learned counsel has then taken the court to the evidence of PW-4 Sukhmania Devi, who is the mother of the informant. She had deposed that all the accused had lauki and tenga in their hand which counsel said that it is a type of small knife and stick but in the FIR there is reference to bhujali and stick which shows inconsistency in the weapons used. He further submitted that only Rs. 20,000/- was looted and there is no mention of any watch being looted which is also shows inconsistency with the fardbeyan and there is no reason as to why the watch was not mentioned by her because watch is also a valuable piece of item. This witness deposed that Rs. 20,000/- belongs to her and she earned that money by herself and hence counsel submitted that there is also inconsistency so far as to whom money belongs to. This witness further deposed that faces of the accused were covered but in the FIR it is not mentioned that the faces of the accused were covered then question of identification would not arise. Counsel said that this witness had deposed

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that occurrence is of evening after the sunset however, in the FIR the time of occurrence is indicated as 11 p.m. in the night hence, there is discrepancy in the time of occurrence also. Another important aspect that has been deposed by this witness is that the police had not questioned her and hence counsel said that if she was not questioned u/s 161 Cr.P.C. it indicates that there is no serious allegation.

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13. Learned counsel further submitted that PW-5 Laxminia Devi who is the sister of the informant was declared hostile by the prosecution as she had deposed that when she returned her house her mother and bhabhi had not told her about identification of any of the accused. Learned counsel said that it is very strange that when she returned her mother and bhabhi had not told her about the identity of any of the accused which creates doubt in the FIR and the other prosecution witnesses.

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14 . Learned counsel then referred to the evidences of PW-6 Mitku Baitha and said that he had been declared hostile because he did not know anything about the case. Learned counsel also referred to the evidence of PW-7 Maharang Oraon and said that he was simply tendered therefore, not of much relevance.

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15 . Learned counsel then referred to the evidence of the informant Bandhu Oraon and pointed out that there is variation in FIR about number of dacoits. Learned counsel submitted that at least the informant should be knowing as to how many dacoits had taken part in the dacoity, which creates much doubt in the entire allegations. This witness had deposed that dacoits assaulted his wife but it has come in the FIR that he had fled away and therefore it is unbelievable that he had seen the occurrence and therefore, his version is not trustworthy and reliable. Informant had deposed that Laxmania was also assaulted, counsel for the appellant again pointed out that as per FIR she had fled away from the place of occurrence which also creates doubt in the evidence of informant. In his cross-examination informant deposed that Bal Kishun is not his relative, learned counsel said that on the other hand his mother deposed that all five accused persons were her relatives. Therefore, there is confusion regarding the relationship between both sides. However, from the entire evidence it appears that they are from the same village and same family and there is only domestic dispute resulting in the case of alleged dacoity.

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16 . Learned counsel then referred to the evidence of PW-9 Bishwanath

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Oraon and said that he had been declared hostile. PW-10 is Chhatrudhan Prasad is an advocate clerk and he had simply proved the case diary and PW-11 Rajendra Oraon had also been declared hostile.

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17 . Learned counsel further submitted that first and foremost the entrie case is fabricated and concocted particularly because the amount of Rs. 20,000/- is contested amongst themselves as to whom it belongs and even the watch has also not been recovered. He further said that in the FIR it is indicated that more than one person were assaulted but in the medical report only one person is shown as injured. Therefore there is also inconsistency about number of persons assaulted. It is a case of family dispute but definitely not a case of section 395 IPC and so no case is made out. He has also said that it was a dark late night and whether identification is done by lamp or torch light is also doubtful and so identification of any of the appellant is also doubtful. The time of occurrence is also doubtful. Counsel further submitted that there is no recovery of the Rs. 20,000/- or HMT watch even though the case was registered on 26.4.1998 and date of occurrence was 25.4.1998 and all the persons were belongs to same village but no recovery was made because nothing had been looted.

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ARGUMENTS ON BEHALF OF STATE :

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18. Learned A.P.P. has vehemently argued out the case on behalf of state and referred to the evidence of PW-3 and pointed out that there is no doubt that occurrence took place and that PW-3 was also inside the house who had named five accused persons and also identified them. So there is definite and clear cut identification of the appellants. She had also deposed that Bisheshwar was carrying a bhujali and rest of them had lathi and they had taken the money and the HMT sona watch and fled away. She had clearly stated about looting of money amounting to Rs. 20000/and watch. Learned counsel then referred to the other main witness who is the informant PW-8 and pointed out that he had deposed that five persons had entered his house and they had committed assault and looted Rs. 20,000/- and thus tried to establish that the said money was his and he had withdrawn it from the bank in two installments and some of the money was earned by selling rice grains. So, counsel for the State-APP said that the source of money is also indicated and he was also willing to submit passbook to prove the ownership of the money. Hence, ownership of the money cannot be contested. Therefore, the allegations against the

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appellants are fully established and therefore, conviction and sentence needs to be sustained.

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FINDINGS:

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19. Having heard both the counsels, gone through the record and in the facts and circumstances of the case I, find that:

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(i) The prosecution case is doubtful because in the FIR it is stated that the wife and mother of the informant both had recognized some dacoits such as Keshwar Ahir, Vilan Oraon, Bal Kishun Oraon, however the mother of the informant-PW-4 in her cross-examination says all the accused had their faces covered, and it was also dark. PW-3 Budhmania Devi has deposed in para 4 of her evidence that some dacoits had half their faces covered. Based on the aforesaid, being dark and faces probably covered as per evidences, identification of the appellants may be doubtful. Also, when PW-5 Laxminia Devi who is the sister of the informant returned home after the dacoity then her mother (PW-4) and bhabhi (PW3) did not say anything about the identities of the dacoits.

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(ii) Another aspect in this case of dacoity is what is looted. Here the allegation is for looting Rs. 20,000/- and a watch. What is problematic is that the amount of Rs. 20,000/- is attributed to have belonged to two different persons. In the FIR, the informant, PW-8 has claimed that the money is his and it was paid to him for the compensation of some land for mines. PW-3, however has said in her cross-examination that this money was earned by her brother Birsu Oraon. So this is discrepancy as to whether it was earned or compensation, and also as to who it belongs to. Therefore, some doubts is further raised about the allegations and one can be inclined to the appellant's defence that the allegations are manufactured.

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(iii) Birsu Oraon brother-in-law ( sala ) of the informant was said to be injured during the dacoity. His injury report Ext.-2 is on the record and PW2 doctor has stated that all the injuries caused to Birsu Oraon was simple in nature. But, the said injured Birsu Oraon was not examined as prosecution witness. In the absence of his examination how can it be concluded that Birsu Oraon or the brother-in-law ( sala ) of the informant was injured in course of dacoity. Injured Birsa Oraon is a material witness and his non-examination makes the prosecution case doubtful.

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(iv) Appellants have been convicted under section 395 of IPC but alleged robbed money of Rs. 20000/- and wrist watch was not recovered. Even the investigating officer of the case was also not examined. Hence,

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non- recovery of alleged robbed money of Rs. 20000/- and wrist watch and failure of the prosecution to prove the place of occurrence and due to non-examination of investigating officer makes the prosecution case even more doubtful.

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20. Hence, prosecution has failed to prove the charge against the appellants under section 395 of IPC beyond reasonable doubt.

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21 . Accordingly, based on the aforesaid reasonings, this court thinks it inappropriate to sustain and uphold the judgment of conviction and order of sentence dated 03.2.2003 and 04.2.2003 respectively passed by the learned court below in S.T. No. 01 of 1991 arising out of Ghaghra P.S. Case No. 31 of 1990, G.R. No. 266 of 1990 and is set aside. Accordingly, all the four appellants are acquitted of the charges levelled against them and they are discharged from the liabilities of their bail bonds.

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22. Accordingly, appeal stands allowed.

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(RATNAKER BHENGRA,J)

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Jharkhand High Court,Ranchi dated:19.9.2018(Nibha)/NAFR

Keshwar Ahir And Ors. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Keshwar Ahir And Ors. v. State of Jharkhand

Case brief

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What did the court decide?

What the court decided

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