Ashish Dutta and Ors. Vs the State of Jharkhand and Anr.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Revision No. 869 of 2015

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Ashish Dutta son of Late Hari Chandra Dutta, resident of VillagePoraiyahat, Bengali Tola, P.O. & P.S. Poraiyahat, District-Godda

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Akal Dey @ Akal Chandra Dey son of late Anandi Dey

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Janki Devi wife of Akal Dey @ Akal Chandra Dey. Both 2 and 3 are resident of village Kusdiha P.O. and P.S. Ramgarh, District - Dumka …… Petitioners

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Versus

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The State of Jharkhand

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Manisha Devi wife of Anand Dutta, Village-Poraiyahat, Bengali Tola, P.O. & P.S. Poraiyahat, District-Godda ……Opposite parties

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CORAM: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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For the Petitioners : Mr. Akhouri Awinash Kumar, Amicus For the State : Mr. Abhay Kumar Tiwari, A.P.P.

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Order No.10/ Dated:01.03.2024

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1. The present Criminal Revision is filed against the judgment dated 06.05.2015 passed by Sri Pankaj Kumar, learned District and Additional Sessions Judge III, Godda in Criminal Appeal No. 26/14/22/14 arising out of judgment dated 29.01.2014 passed in P.C.R. Case No. 635 of 2007, TR Case No. 417 of 2014, whereby and whereunder the learned appellate court has uphold the judgment of conviction and sentence of the appellant for the offence under Section 323 IPC passed by learned Judicial Magistrate, 1^st Class, Godda.

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2. The case of the complainant as per the complaint is that on 27.10.2007 at 08.00 A.M., while she was doing the cleaning work of house, the accused persons hurled abused to her mother-in-law Parwati Mostt, who had deposed against the accused persons in earlier P.C.R. case filed in the Court of C.J.M., Godda. When they were asked not to do so, all the accused persons came to her ‘Darwaza’ and Ashish Dutta gave a lathi blow on the middle finger of her right hand, causing bleeding and also caused injury on her left thigh. She was beaten all over her body. It is further alleged that the accused, Akal Dey, gave fists blow on her face

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Cr. Revision No. 869 of 2015

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causing injury to her teeth. Janki Devi and Uma Mosttt. thrashed her by snatching her hair and gave her fist blows on her neck causing pain. Akal Dey and Ashish Dutta trashed her with bad intention after holding up her chest.

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3. It is stated that the matter was informed to the police station on the same date at 11.00 A.M. and the officer-in-charge forwarded her to Poraiyahat Village Health Centre for treatment but no action has been taken by the officer-in-charge against the accused persons. Thereafter, a complaint petition was filed before the court of C.J.M., Godda on 01.11.2007, which was transferred to the Court of J.M. 1^st Class, Godda for enquiry.

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4. After inquiry the learned Judicial Magistrate found that the prima facie case under Section 341, 323 and 504 IPC was made out against the accused persons-petitioners. Petitioners appeared before the Magistrate Court and substance of the acquisition was explained to them upon which they did not pleaded guilty and claimed for trial.

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In order to prove and substantiate the alleged charges complainant has examined four witnesses altogether they are C.W. 1Most. Parvati, C.W. 2 Jiyalal Sah, C.W.-3 Anand Dutt, C.W.-4 Manisha Devi.

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While defence has examined two witnesses in their defence. They are D.W. 1, Ramautar Pd. Ram, D.W. 2 Suman Kumar and documents adduced and marked as ext.-

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Ext. A – Certified copy of FIR of Poraiyahat P.S. Case No. 170/07.

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Ext. B – Cognizance Order dated 27.06.08 of the CJM, Godda in GR Case No. 1119/07.

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Ext. C-Certified copy of order dated 11.10.07 passed in ECR Case 08.07.08.

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Ext. D- Parcha of Poraiyahat Moza-121.

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Ext. E Order u/s 107 of SDO dated 14.08.10 passed in Cr. Misc. Case No.313/10.

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Ext. F-Injury report of Most. Uma Devi attached in G.R. Case No. 1119/07.

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Ext. F/1 Forwarding letter of then ASI Mohan Pd. Sinha to M.O. Poraiyahat for examination of Most. Uma.

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Cr. Revision No. 869 of 2015

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Ext. G.-Certified copy of order passed by SDM Godda in Misc. App. No. 466/2011.

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Ext. H and H/1-Signature of Anand Dutta and short sign. of Adv. Shashi Baboo in REC Case No. 08/07 respectively.

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5. After trial, the court of learned Judicial Magistrate found the petitioners guilty for offences punishable under Section 323 of the Indian Penal Code and convicted for the same, however, considering the nature, characteristic facts and circumstance of the case, instead of awarding the sentence of imprisonment released the accused-petitioners after due admonition.

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6. Thereafter, convicted petitioners preferred an appeal against the judgment of conviction dated 29.01.2024 before the learned District and Sessions Court which was registered as Criminal Appeal No. 26/14/ 22/14 and the court of District and Additional Sessions Judge IIIrd, Godda after reappreciating the evidence adduced by the prosecution before the trial court and the material available on record vide its Judgment dated 06.05.2015 affirmed the judgment of conviction and dismissed the appeal against which the present revision petition has been filed.

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7. Learned counsel for the petitioners has submitted that both the learned court below have failed to properly appreciate the evidences available on record and have ignored the contradiction in the evidences of witnesses. The main reasons for false implication of petitioners in the instant case was the land dispute going on between the parties. No injury was brought on record. The Complaint case was lodged as a matter of counter blast to the case instituted by the petitioners against the complainant party vide Poriyahat P.S. Case No. 170 of 2007 corresponding to G.R. No. 1119 of 2007 instituted for the offence under Section 323 & 324 I.P.C. and adduced as evidence by the petitioners as exhibit A & B respectively which have been ignored from consideration by the court below.

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8. It is further submitted that there is four days delay in lodging the complaint.

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9. As such impugned orders are not duly sustainable and fit to be set aside by allowing this Revision.

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Cr. Revision No. 869 of 2015

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10. Per Contra, learned Additional Public Prosecutor has vehemently opposed the aforesaid contentions raised on behalf of the petitioners and submitted that there is concurrent findings of learned trial court and the first appellate court about commission of offence under Section 323 IPC against the petitioners which has been fortified by evidences available on record both oral as well as documentary. However the petitioners have been extended the benefit of Probation of Offenders Act as being the first offender. Therefore, this Revision has no merits and fit to be dismissed.

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11. I have gone through the record in the light of contentions raised on behalf of both sides.

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12. It appears that as per complaint petition allegation against the petitioners is that on 27.10.2007 at about 08.00 a.m. complainant Manisha Devi was cleaning her house meanwhile, all the accused persons started abusing her and her mother in law, Parwati Mostt in filthy language as the said Parwati Mostt had appeared as eye witness in a earlier P.C.R. Case. Upon protest Ashish Dutta assaulted complainant by lathi on her right hand and left thigh and sustained injuries and Most. Uma assaulted her by fists and slaps and also pulled her hair. Since no action was taken by the police, hence, complaint case was lodged.

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13. It further appears that the learned trial court after conducting enquiry took cognizance for the offences under Section 323, 341, 504 IPC against all the three accused persons, who happens to be the petitioners.

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14. In the course of trial, four witnesses were examined including both the injured persons. On the other hand, two defense witnesses were examined namely, D.W. 1 Ram Avtar Pd. Ram and D.W. 2 Suman Kumar and also adduced some documentary evidence, Exhibition A to Exhibit G in connection with Poraiyahat P.S. Case No. 170 of 2007 like FIR, Charge sheet, Injury report and some documents showing the due admonition of the petitioners.

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15. The learned trial court after hearing the arguments of parties and considering the oral and documentary evidences available on record, found that all the witnesses including the injured witnesses have consistently proved that they were assaulted by the accused persons and

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Cr. Revision No. 869 of 2015

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thereby sustained injuries and held the petitioners guilty for the offence under Section 323 IPC by acquitting from the remaining charges under Section 341 and 504 IPC.

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16. The above judgment of trial court was assailed in appeal before the Additional Sessions Judge Godda who also reappraised evidence of all the witnesses examined as prosecution and defense and arrived at finding that all the complaint witnesses P.W. 1 to 4 have consistently proved the factum of assault given to the Parwati Mostt. and Manisha Devi which was not found lifted from any corner and there was nothing to disbelieve their testimony. Accordingly, confirmed the impugned judgment and order passed by learned trial court.

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17. In the present revision, the main argument for the petitioners is that due to land dispute the petitioners have been falsely implicated in the instant case, cannot be sustained because enmity occurs from both ends. One end further notice for commission of offence and also for false implication. In the instant case although there is admittedly land dispute between the parties but the occurrence has been proved beyond doubt which is also fortified by the cross case filed by the present petitioners against the complainant party.

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18. Next point, is that all the witnesses are interested witnesses and family members, hence, their testimony cannot be believed and is also not tenable because the injured witnesses are most natural witnesses and there testimony cannot be disbelieved or discorded only on the ground of interested witness. It is admittedly the case that pertains to injuries sustained by two ladies and it is not a wise step to go first at the police station although it is stated that at the police station help was sought for but no action was taken then complaint petition was filed, therefore, this ground is also not tenable.

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19. However, so far the scope of interference, though criminal revision against the conviction is concerned, the Hon’ble Apex Court in center of its decision has held that the scope of interference in revision is extremely narrow. Recently, the Hon’ble Apex Court in the case of

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Cr. Revision No. 869 of 2015

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Malkeet Singh Gill v. State of Chhattisgarh reported in (2022) 8 SCC 204 , has held paras 10 & 11 as under:

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“10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be wellfounded error which is to be determined on the merits of individual case. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. 11. This Court in Manju Ram Kalita v. State of Assam [Manju Ram Kalita v. State of Assam, (2009) 13 SCC 330 : (2010) 1 SCC (Cri) 1015] , while dealing with the scope of reappreciation of evidence by higher Court in criminal revision, observed in paras 9, 10 and 11 of the judgment as under : (SCC pp. 333-34) “9. So far as Issue 1 is concerned i.e. as to whether the appellant got married with Smt Ranju Sarma, is a pure question of fact. All the three courts below have given concurrent finding regarding the factum of marriage and its validity. It has been held to be a valid marriage. It is a settled legal proposition that if the courts below have recorded the finding of fact, the question of reappreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by reappreciating the evidence.

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Cr. Revision No. 869 of 2015

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This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from the normal practice. ‘9. … The position may undoubtedly be different if the inference is one of law from [the] facts admitted and proved or where the finding of fact is materially affected by violation of any rule of law or procedure.’ (Vide Sriniwas Ram Kumar v. Mahabir Prasad [Sriniwas Ram Kumar v. Mahabir Prasad, 1951 SCC 136] , SCC p. 139, para 9)”

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20. Since, the petitioners have not raised any pure question of law or mixed question of law and facts which are exceptional in nature required to be entered into merit of this case by appreciating the evidence adduced before the trial court. Therefore, this court is restraining itself to disturb the finding of the conviction by both the courts below.

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21. So far order of sentence is concerned, the petitioners have already been

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released after due admonition under section 3 of Probation of Offender Act, as such no interference in the impugned judgment is required.

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22. Thus, the instant criminal revision, being devoid of merit is dismissed.

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23. Let the copy of this order along with L.C.R. be sent to court below.

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(Pradeep Kumar Srivastava, J.)

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R.K/

Ashish Dutta and Ors. v. the State of Jharkhand and Anr.

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Ashish Dutta and Ors. v. the State of Jharkhand and Anr.

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