Dilpi Devi vs State of Jharkhand

No one appears for either for the petitioner or for the opposite party nos. 2 & 3. However, Mr. Anand Kumar Pandey, learned A.P.P. for the

State is present.

As this case is pending since 2008, the same is being disposed of based on the materials available on record.

This application is directed against the judgment dated 06.09.2007 passed in Criminal Appeal No. 49 of 2007 passed by the learned Additional

Sessions Judge, FTC III, Hazaribagh whereby and whereunder judgment and order of conviction and sentence dated 11.05.2007 passed by the

learned Judicial Magistrate Ist class, Hazaribagh in G. R. No. 1893 of 2001 arising out of Barkagaon P. S. Case No. 73 of 2001 convicting the

opposite party nos. 2 and 3 for the offences under Section 325 and 341 of I.P.C. has been set aside and the opposite party nos. 2 and 3 have been

acquitted from the charges levelled against them.

The prosecution story in brief is that the informant was cutting grass on 15.08.2001 when at about 6 P.M., the opposite party nos. 2 and 3 had come

and started abusing the informant and she was also assaulted. Â

It has been alleged that in the meantime, her youngest son Naresh Dangi had come to save her at which opposite party nos. 2 and 3 had fled

away.   The FIR was instituted on the next date i.e. on 16.08.2001 which was registered as Barkagaon P. S. Case No. 73 of 2001.Â

Investigation resulted in submission of charge-sheet under Section 341, 323, 325/34 of I.P.C.

After cognizance was taken, charge was framed and trial proceeded. The learned trial court had convicted the opposite party nos. 2 and 3 for

the offences under Sections 325 and 341 of I.P.C. vide judgment dated 11.05.2007 and opposite party nos. 2 and 3 have been sentenced

accordingly. Being aggrieved, the opposite party nos. 2 and 3 have preferred appeal being Criminal Appeal No. 49 of 2007 in which vide judgment

dated 06.09.2007, the learned appellate court has set aside the judgment of conviction and sentence and had acquitted the opposite party nos. 2 & 3

from the charges levelled against them.

In course of trial, 5 witnesses were examined. P.W. 4 â€"Lakhan Mahto did not support the prosecution case and was declared hostile. P.W.

5 â€" Anil Kumar Singh, is a formal witness. The prosecution case rest upon the evidence of P.W. Nos. 1, 2 & 3. P.W. 1 â€" Dilpi Devi is the

informant and petitioner of the present case who has stated that while she was in her paddy field cutting grass, the opposite party nos. 2 & 3 had

come and assaulted her on her leg and on her waist. She had further stated that after the incident of assault, she has become unconscious and on

regaining consciousness, she had disclosed about the incident of assault to her husband and sons. This witness has stated that both the accused had

assaulted her on her leg and waist. It is to be noted herein that P.W. 1 at the time of examination was aged about 90 years and therefore, at the

time of occurrence, she was aged about 88 years. P.W. 2 â€" Naresh Kumar Dangi is the son of the informant who has stated that after the

incident had taken place, he had come to the place of occurrence and this witness has also claimed to be an eye-witness, but it appears that he is

merely a hearsay witness. P.W. 3 â€" Dr. Arun Kumar Singh had examined P.W. 1 and had found bruise on her body and he had opined that injury

no. 1 and 2 are grievous in nature whereas injury no. 3 is simple in nature. This witness has proved the injury report which has been marked as

Exhibit 4. Â

The Investigating Officer has admittedly not been examined and the same has caused prejudice to the defence in view of the fact that the place of

occurrence could not be proved. So far as the evidence of doctor is concerned, he has opined about dislocation of left ankle joint and bruise and

fracture on the left side of the chest, but his opinion is not based on any x-ray report and in fact he has not stated about any advice given for x-ray of

the injury suffered by P.W. 1. The learned appellate court while setting aside the judgment of the learned trial court has also taken into

consideration the fact that if at all P.W. 1 was inflicted with a grievous injury, she would have given proper medical treatment, but nothing has been

brought on record by the prosecution and save and except the statement of the doctor which seems to be unreliable in absence of any medical

treatment and giving medical report without doing x-ray upon the P.W. 1, the factum of assault and the alleged injury suffered by the P.W. 1 therefore

pales into insignificance. Save and except the injury report which has been marked as Exhibit 3, there is not a single chit of paper which would

show that the informant was admitted to hospital or any medical paper showing the immediate treatment given to the informant.

The FIR was also instituted after a considerable delay and there is no explanation from the side of the prosecution with respect to the delay. It

also appears that there was previous enmity between the parties and the same may be a reason for false implication of the opposite party nos. 2 &

3. The entire conviction made by the learned trial court is based on the evidence of P.W. 1, the informant, but since there appears to be major

discrepancy in the statement given before the police at the time of the institution of the FIR and in her subsequent evidence during trial, the reliability

of the evidence of P.W. 1 becomes doubtful. Although, this Court is conscious of the fact that P.W. 1 at the time of her examination was aged

about 90 years and there may be some minor discrepancy which is quite natural considering her age, but the facts remains that the son of the

informant is also a hearsay witness and in absence of any corroborative evidence, it would be unsafe to relay on her evidence and pass an order of

conviction. The learned appellate court has considered all these aspects on a proper perspective and has rightly set aside the judgment of

conviction. Â

There being no reason to conclude otherwise with respect to the impugned judgment passed in Criminal Appeal No. 49 of 2007, I am not inclined to

entertain this application which accordingly stands dismissed.Â