Dismissed

Gour Rana v. State of Jharkhand

Jharkhand HC20 Sept 2021Cr.Rev./364/2012

Case brief

AI extract

What is this about?

This revisional criminal petition was dismissed. The High Court found that the conviction under Sections 448 and 354 IPC was based on evidence beyond reasonable doubt by an informant and three relatives. The Court held there was no material contradiction, illegality, or failure of justice warranting interference, noting the appellate court had already reduced the sentences.

What did the court decide?

The criminal revision petition was dismissed; the bail bond was cancelled and interference was refused.

Gour Rana Vs State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Rev. No. 364 of 2012

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Gour Rana son of Ganesh Rana, resident of Village- Arajori, P.O.- Babangawan, P.S.- Sarath, District- Deoghar

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… … Petitioner

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Versus

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The State of Jharkhand … … Opposite Party

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. Arvind Kumar Choudhary, Advocate For the Opp. Party : Mrs. Niki Sinha, Advocate

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Through Video Conferencing

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07 /20.09.2021 Heard Mr. Arvind Kumar Choudhary, learned counsel appearing on behalf of the petitioner.

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2. Heard Mrs. Niki Sinha, learned counsel appearing on behalf of the opposite party- State of Jharkhand. 3. This criminal revision petition has been filed against the judgment dated 03.05.2012 passed by the learned 2^nd Additional Sessions Judge, Deoghar in Criminal Appeal No. 121/2006 whereby the learned appellate court confirmed the conviction of the petitioner under Sections 448 and 354 of Indian Penal Code, but modified and reduced the sentences of the petitioner to undergo Simple Imprisonment for three months for offence under Section 448 of Indian Penal Code and Simple Imprisonment for six months for offence under Section 354 of Indian Penal Code and dismissed the appeal with modification in the sentences.

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4. The said criminal appeal was preferred against the judgement and order of conviction dated 13.07.2006 passed by the learned Sub-Divisional Judicial Magistrate, Madhupur at Deoghar in G.R. Case No. 345/2001 (T.R. No. 204/2006) by which the petitioner was convicted for the offences under Sections 448 and 354 of Indian Penal Code and was sentenced to undergo Simple Imprisonment for six months under Section

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448 of the Indian Penal Code and Simple Imprisonment for one year under Section 354 of the Indian Penal Code and both the sentences were directed to run concurrently.

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Arguments on behalf of the petitioner

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5. The learned counsel for the petitioner submitted that the petitioner has been convicted for offence under Sections 448 and 354 of Indian Penal Code and the alleged date of occurrence is 25.08.2001 at 10 pm at night. The learned counsel submitted that there are material contradictions in the evidences of witnesses. PW – 4 has stated that she had given her statement before police on Saturday, although the FIR has been lodged on 26.08.2001, which was a Sunday. He submitted that there are material contradictions in connection with the place of occurrence also and I.O. having not been examined in the present case, the place of occurrence has not been proved. He also submitted that there is delay of 14 hours in giving written complaint to the police and the delay has not been explained.

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6. He further submitted that there were altogether eight witnesses as per charge-sheet and only four prosecution witnesses, who are closely related to each other, have been examined. Withholding of remaining four charge-sheeted witnesses, including the investigating officer of the case, has caused serious prejudice to the petitioner.

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7. The learned counsel also submitted that the reason for false implication of the petitioner is that the petitioner was a witness in a case filed in the year 1997, in which the informant party was accused and on the date of the alleged occurrence in the present case, the trial of the said case was going on. However, during the course of argument, the learned counsel for the petitioner fairly submitted that it has not come in evidence as to what was the date on which the petitioner was to be examined or was examined in the case, in which he was a witness and informant party was accused.

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8. The learned counsel finally submitted that the alleged occurrence is of the year 2001 and accordingly, more than 20 years have elapsed. The petitioner does not have any criminal antecedent and at the relevant point of time, when the occurrence had taken place, the maximum sentence prescribed under Section 354 of IPC was two years and no minimum sentence as such was prescribed. The petitioner has also been convicted under Section 448 of IPC, but sentence of six months has been imposed under Section 354 of the Indian Penal Code and sentence of three months has been imposed under Section 448 of the Indian Penal Code. He also submitted that the defence documents have been produced i.e. Exhibit-A and Exhibit- B, but the same were not properly considered by the learned courts below and non-consideration of the same makes the impugned judgement perverse.

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Arguments on behalf of the Opposite Party-State

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9. Learned A.P.P. appearing on behalf of the State, on the other hand, opposed the prayer and submitted that there are concurrent findings recorded by the courts below after scrutinizing the materials on record. The entire evidence has been considered by the learned courts below and merely because the investigating officer and other remaining three charge-sheeted witness have not been examined, the same is not fatal to the prosecution case. She submitted that four witnesses have been examined in the present case including the victim-informant of the case. There are consistent evidences of all the four witnesses and there is no material contradictions and they have been fully cross-examined. She submitted that minor contradictions are not the material contradictions. She further submitted that the learned counsel for the petitioner has not been able to prove any material contradiction, which may have any bearing in the conviction of the petitioner.

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10. The learned A.P.P. also submitted that defence documents i.e. Ext-A and Ext.-B have also been considered, which is apparent from the impugned order passed by the learned appellate court and merely because, there was previous enmity or that the petitioner was a witness in another case of the year 1997, the same by itself cannot be a ground to presume that the impugned judgments are perverse. The learned A.P.P. also submitted that the learned courts below have considered non-examination of the investigating officer of the case and have opined that non-examination of the investigating officer is not fatal to the prosecution case. However, it is not in dispute from the side of the learned counsel for the State that at the time of occurrence, there was no minimum sentence prescribed under Section 354 of the Indian Penal Code and the maximum sentence was two years.

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Findings of this Court

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11. Prosecution case is based on the written report of the informant namely, Phula Devi alleging that on 25.08.2001 at 10 p.m. when the informant was sleeping along with her child, the petitioner entered into her room, pressed her breast and tore her blouse and on alarm, Shanti Devi and Basant Kumar Rana reached, upon which the petitioner fled away from there. On the basis of written report, Sarath P.S. Case No. 63 of 2001 dated 26.08.2001 was registered under Sections 448 and 354 of Indian Penal Code and after investigation, charge-sheet was submitted and cognizance of the offence was taken under the same sections on 16.10.2001. Thereafter, the substance of accusation under Sections 448 and 354 of Indian Penal Code was explained to the petitioner to which he denied and claimed to be tried.

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12. In course of trial, altogether four prosecution witnesses were examined by the prosecution. P.W.-1 is Budhan Rana, P.W.-2 is Basant Rana, P.W.-3 is Radhika Devi and P.W.-4 is Phula Devi who is the informant-cum-victim of the case. P.Ws.-

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1, 2 and 3 are the father-in-law, brother-in-law and mother-inlaw respectively of the informant. Signature of Basant Kumar Rana on the written report was exhibited as Exhibit-1 and order dated 13.01.1986 passed in Cr. Appeal No. 151 of 1980 was exhibited as Exhibit- 2.

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13. After closure of prosecution evidence, the statements of the petitioner were recorded under Section 313 of Code of Criminal Procedure wherein he denied the incriminating evidences put to him and claimed to be innocent. No defence witness was produced from the side of petitioner. However, the petitioner produced some documentary evidences. Exhibit-A is certified copy of order dated 19.05.1980 passed in T.R. No. 693 of 1980 and Exhibit-B is certified copy of charge-sheet filed in Sarath P.S. Case No. 52 of 1997.

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14. P.W.-4 deposed that at the time of occurrence, she was with her child and the petitioner had outraged her modesty and had held her breast upon which, she raised alarm. She further deposed that the petitioner pushed her saree into her mouth and when she raised the alarm, the other persons present in the house had come which included her mother-in-law, father-inlaw, brother-in-law and sister-in-law. She claimed to identify the petitioner. During her cross-examination, she stated that she was in the room with her child and her brother-in-law and sister-in-law were not there. The room in which she was sleeping did not have a courtyard ( verandha ). She also stated that there are three rooms and in one room, her father-in-law, mother-in-law and brother-in-law were sleeping and in the other room, her sister-in-law was sleeping. She also stated that when the petitioner entered her room, there was no conversation. She further deposed that initially she had seen the petitioner in Dhaba . She also stated that when she raised alarm, the petitioner ran away and the other persons in the house had seen the petitioner running away. She admitted that there is

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inimical relationship between her family and the family of the petitioner.

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15. This Court finds that the informant-victim-P.W.-4 has fully supported the prosecution case stated in her written report and the evidence of the informant has been corroborated by the P.W. 3 – the mother–in-law, P.W. 2- the brother-in-law and P.W. 1- the father-in-law of the informant and all three have stated that they had seen the petitioner running away from the place of occurrence. This Court further finds that there is consistent evidence on record so far as the place of occurrence is concerned and the description of the place of occurrence has come even in the cross-examination of P.W. 4.

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16. The P.W. 1 had also stated that his son had caught hold of the leg of the petitioner while he was running away, but he somehow managed to run away. In his cross-examination, he also admitted that there is land dispute between the two families and in the year, 1978, P.W. 1 was convicted in a case filed by the father of the petitioner, but was acquitted by the learned appellate court. He expressed his ignorance regarding case instituted in the year 1997 under Section 307 of Indian Penal Code by the police where the family members of the petitioner were the witnesses. He also rejected the suggestion that he had filed the case on account of inimical relationship between the parties.

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17. The learned trial court considered the evidences on record and recorded that all the prosecution witnesses have fully supported the prosecution case and there is no material contradiction in their evidence and non-examination of the investigating officer is not fatal to the prosecution case. The learned trial court convicted the petitioner under Sections 448 and 354 of Indian Penal Code and sentenced him as mentioned above.

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18. So far as the learned appellate court is concerned, the specific case of the petitioner before the learned appellate court was that the trial court had not appreciated the evidences properly and there are vital contradictions in the evidences of the witnesses and also that the prosecution witnesses are near relation of the informant and there is no independent witness in the case. It was further case of the petitioner before the learned appellate court that, one of the charge-sheeted witnesses i.e. the sister-in-law of the informant namely, Shanti Devi was not examined, although she had come at the time and place of occurrence and that the investigating officer of the case was not examined which has caused prejudice to the appellant (petitioner herein). The point of delay in filing the First Information Report was also considered that the alleged occurrence had taken place at dark night and there was no mean to identify the petitioner by the prosecution witnesses were also argued. It was also argued before the learned appellate court on behalf of the petitioner that the sentence imposed upon the petitioner is excessive.

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19. The learned appellate court considered each and every aspect of the aforesaid submissions advanced on behalf of the petitioner and recorded its finding at Para-5. The learned appellate court also considered the two exhibits of the appellant (petitioner herein) as Exhibits-A and B and also the argument that due to enmity and previous litigation, the petitioner was falsely implicated. The learned appellate court recorded that Exhibit- A goes to show that father-in-law of the informant was convicted by the learned Judicial Magistrate, Deoghar, but Exhibit-1 goes to show that in appeal against the aforesaid conviction, the father-in-law of the informant was acquitted. The learned appellate court also considered Exhibit-B and recorded that it goes to show that a case had been filed by Kedar Ram against the father-in-law of the informant, in which

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the petitioner is a witness. However, the learned appellate court was of the view that in the light of the evidences of prosecution, it is not believable that the petitioner was falsely implicated in the present case due to previous litigation and being witness in a case against father-in-law of the informant. The learned appellate court also recorded that the witnesses of the prosecution in their statements have clearly proved that at the time of occurrence, the appellant entered in the room of the house of the informant where the informant was with her child and the petitioner, after putting saree in her mouth, caught her and pressed her breast. The learned appellate court recorded that the prosecution has been able to prove the case against the petitioner beyond all reasonable doubt.

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20. Before this Court also, the same arguments have been advanced as were advanced before the learned appellate court. This Court finds that the learned appellate court has passed a well-reasoned judgement considering the arguments of the petitioner as well as the defence documents. The plea of false implication on the basis that the petitioner was a witness in a case against the father-in-law of the informant, has been rejected by the learned appellate court by well-reasoned order. This Court also finds that admittedly no date regarding recording of evidence of the petitioner in the case in which the father-in-law of the informant was an accused, has been brought on record from the side of the defence and merely because the petitioner was a witness in one of the cases against the father-in-law of the informant, the same by itself is not sufficient to conclude any false implication, that too in revisional So far as jurisdiction. argument regarding contradiction with regards to the day being Saturday as stated by PW – 4, although the FIR has been lodged on 26.08.2001, which was a Sunday is concerned, the same is not a material contradiction at all when the learned courts below have

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considered all the materials on record and have given concurrent findings. So far as the argument that four chargesheeted witnesses have not been produced is concerned, the same has no bearing in the case as the learned courts below have convicted the petitioner on the basis of the witnesses examined in the court including the victim of the case who has been thoroughly cross examined by the defence and has also considered the defence evidence.

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21. The Hon’ble Apex Court has explained the power of revisional court in the case of “ Jagannath Choudhary and others Vs. Ramayan Singh and Another” reported in (2002) 5 SCC 659 at Para-9 as under:-

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“9. Incidentally the object of the revisional jurisdiction as envisaged under Section 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of (sic or) apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some underserved hardship to individuals. (See in this context the decision of this Court in Janata Dal Vs. H.S. Chowdhary) . The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same has been an appeal, the applicant would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no

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failure of justice, interference cannot be had in exercise of revisional jurisdiction.”

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22. The revisional power is further explained in the case of R amesh Kumar Bajaj reported in (2009) 1 JCR 684 (Jhar) at para. 13 as follows:

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“ It is well settled that revisional interference may be justified where:

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(i) the decision is grossly erroneous.

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(ii) there is no compliance with the provisions of law.

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(iii) the finding of fact affecting the decision is not based on evidence.

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(iv) material evidence of the parties is not considered and

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(v) judicial discretion is exercised arbitrarily or perversely.”

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23. In the case of “ Duli Chand v. Delhi Administration”, (1975) 4 SCC 649 , the Hon’ble Supreme Court, while considering the scope of revisional power, held in paragraph-5 as follows:

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"5. The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse."

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24. In view of the aforesaid discussions and findings and considering the entire facts and circumstances of this case, this Court is of the considered view that the learned courts below have passed well-reasoned judgements considering every aspect of the matter and every argument advanced on behalf of the petitioner while convicting the petitioner under Sections 448

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and 354 of Indian Penal Code. There being no perversity or illegality in the impugned judgements, no interference is called for in the conviction of the petitioner.

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25. This Court further finds that the learned appellate court has already taken a lenient view by reducing the sentences of the petitioner in both the offences and in such circumstances, no further reduction in the sentences is warranted.

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26. Accordingly, this criminal revision petition is hereby dismissed .

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27. Bail bond furnished by the petitioner is cancelled.

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28. Interim order, if any, stands vacated.

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29. Pending interlocutory application, if any, is also dismissed as not pressed.

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30. Let the lower court records be immediately sent back to the learned court below.

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31. Let a copy of this Judgment be communicated to the learned court below through ‘e-mail/FAX’.