Sarwan Naik Vs State of Jharkhand

Cr. Appeal (SJ) No. 1377 of 2005

IN THE HIGH COURT OF JHARKHAND AT RANCHI [ Against the judgment of conviction and order of sentence dated 30.09.2005, passed by Sri Braj Kishore Pandey learned Sessions Judge, Simdega in S.T. No. 82 of 2002, arising out of Simdega P.S. Case No. 08 of 2002, Corresponding to G. R. Case No. 24 of 2002 ]

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Cr. Appeal (SJ) No. 1377 of 2005

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Sarwan Naik … Appellant

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-VersusThe State Jharkhand … Respondent

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CORAM: HON’BLE MR. JUSTICE AMBUJ NATH

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For the Appellant : M/s. Sunil Kumar Advocate For the State : M/s. P. D. Agrawal, Spl.P.P.

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---------

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08/Dated 07.05.2024

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1. Heard Mr. Sunil Kumar learned counsel appearing for the appellant and Mr. P. D. Agrawal, learned Spl.P.P. for the State.

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2. This appeal is directed against the judgment of conviction and order of sentence dated 30.09.2005, passed by Sri Braj Kishore Pandey, learned Sessions Judge, Simdega in S.T. No. 82 of 2002, arising out of Simdega P.S. Case No. 08 of 2002, Corresponding to G. R. Case No. 24 of 2002, holding the appellant guilty of offence under Section 395 of the Indian Penal Code and thereby sentencing him to undergo rigorous imprisonment for seven years for the aforesaid offence.

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3. The prosecution case was instituted on the basis of Fardbeyan of the informant Ram Keshwar Naik, alleging therein that on 05.02.2002, he was sleeping in house when the appellant came and asked to open his door, when the informant opened the door, 08 to 10 masked persons dragged him outside and he was brutally assaulted. Thereafter, the accused persons took away Rs.15000/- and some ornaments from his house.

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4. Charge was framed against the appellant under section 395 of the

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Cr. Appeal (SJ) No. 1377 of 2005

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Indian Penal Code to which he pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution has adduced both oral and documentary evidence. Defence has also adduced oral evidence in support of its case.

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6. On the basis of the evidence available, on the record, learned trial court held the appellant guilty and sentenced him accordingly.

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7. Now it has to be ascertained, whether the prosecution has been able to prove its case against the appellant beyond the shadow of all reasonable doubt.

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Ram Kishun Naik P.W.1 has stated that on 05.02.2002, he was present in his house when the appellant called him from outside and asked him to open the door. On opening the door he saw 08 to 10 unknown masked persons present there. They started assaulting the informant and looted Rs. 15000/- from his house along with ornaments.

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He had identified the petitioner in the dock. He has been cross examined at length in his cross-examination at paragraph 8 he has stated that he was taken to the hospital where he found that the appellant was also present there, he has stated that he has not seen any injury on his person but he was admitted in his Hospital from where the police apprehended him.

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8. Ramkeshwar Naik P.W.2 is the informant of this case. He has supported the prosecution case as made out in the FIR. He has stated that on the date and time of occurrence when they appellant and Sardhu Mahto came there and asked him to open the door and when the appellant opened the door and 08 to 10 persons entered into his house and started assaulting him and his family members. They also took away rupees 15000/- and some ornaments from there. He has identified the appellant in the dock. He has been cross examined at length. At paragraph 9 he has stated that he had not seen any injury on the person of the appellant but he was limping.

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Sugni Devi P.W.3 is the wife of the informant. She has supported the prosecution case. Mungni Devi P.W.4, Gulab Ram P.W.5, Deepak Naik P.W.6, Sumitra Devi PW.9 all are family members of the informant

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Cr. Appeal (SJ) No. 1377 of 2005

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and all of them have supported the prosecution case that on the date and time of occurrence the appellant and accused got there and 08 to 10, unknown persons committed dacoity in their house. The gents of the house were assaulted and accused took away rupees 15000/- and some ornaments from there. All these witnesses have identified the appellant in the dock.

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9 . Dr. Olampiya Kerketta P.W.11 has examined the victim on 06.02.2002 and had found multiple injuries on his person. He has proved the injury report which has been marked as Ext.- 3.

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10 . From the perusal of the injury report Ext.-. 3, it appears that the injured Ram Kishun Naik had sustained multiple injuries on his person.

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From the perusal of the oral evidence adduced by the defence, it appears that the appellant has examined himself as D.W.1. He has stated that on 05.02.2002, he was sleeping in his house when 15-20 unknown persons, variously armed entered into his house and they asked him to take them to the house of the informant, when he refused, he was brutally assaulted. Thereafter, he had no choice but to comply with the direction of the ultras. He took them to the house of Ramkeshwar

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Dr K. D. Chaudhary D.W.2 had examined the appellant on the next day i.e. on 07.02.2002. He had found as many as 10 injuries on his person, out of which injury no. 1 on his chest was grievous in nature and other injuries were in the nature of bruise and hemorrhage. He has proved the injury report, which is Ext.-B.

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11. From the perusal of the injury report Ext.-.B, it appears that the appellant has sustained as many as 10 injuries on his person and one of the injury was grievous in nature. 12. From the aforesaid fact, it appears that the prosecution has been able to prove that on the date and time of occurrence the appellant had gone to the house of the informant and got his door opened. Thereafter 08 to 10 persons committed dacoity and had assaulted the informant and the appellant took away Rs.15,000/- and some ornaments from there. However, the appellant has been able to show that he had not willingly gone to the house of the informant rather he was forced by the dacoits to

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Cr. Appeal (SJ) No. 1377 of 2005

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be taken to the house of the informant, which he initially refused on which he was assaulted due to which he sustained multiple injuries. Thereafter, he had no option but to comply with the direction of the ultras, the fact that he had sustained injuries and was admitted to hospital has also been admitted by some of the witnesses.

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13 . From the aforesaid facts; I am of the opinion that the appellant has not voluntarily and conjointly committed dacoity in the house of the informant as alleged.

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14. The prosecution has not been able to prove its case against the appellant for the offence under section 395 of the Indian Penal Code beyond all reasonable doubt.

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15. This appeal is allowed the judgement of conviction and order of sentence passed by the court below is set aside.

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16 . Pending I.A., if any, also stands disposed of.

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(Ambuj Nath J.)

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Sarwan Naik v. State of Jharkhand

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Sarwan Naik v. State of Jharkhand

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