M. RAJESH @ RAJESH SINGH vs THE STATE OF JHARKHAND

Heard learned counsel for the appellants and learned Addl. P.P. for the State.Â

The appellants have preferred this appeal being aggrieved by the Judgment dated 23.01.2006, passed by the Ist Additional Sessions Judge-cum-Spl.

Judge, SC & ST (Prevention of Atrocities) Act, Dhanbad in G.R. Case No. 3801 of 1993, whereby and where under, the learned court below has held

the appellants guilty of the offence punishable under section 448 of the Indian Penal Code and sentenced them to undergo R.I. for one year. They

have been also found guilty for the offence punishable under Sections 354 of the Indian Penal Code and sentenced to undergo R.I. for two years and

further the three appellants have also been held guilty for the offence under Section 3 (1) (xi) of Scheduled Castes and Scheduled Tribes (Prevention

of Atrocities) Act, 1989 and have been sentenced to R.I. for three years.

The case of the prosecution in brief as mentioned in the fardbeyan of the informant-Maheshwari Bhuini is that on 11.10.1993 at about 11:15 p.m.,

the appellants suddenly entered into the house of the informant and abused her with vulgar language and attempted to outrage the modesty of the

informant and her daughter on which the informant raised alarm at which, the appellants-accused persons ran away from the house of the informant

and entered into the house of Durgi Bhuini. They also attempted to outrage the modesty of Durgi Bhuini. Durgi Bhuini also raised alarm, on which, the

residents of the locality caught hold of the two appellants-accused persons namely Manbodh Mahto and Rajesh Singh while the appellant-accused-

Honda Mahto managed to flee away. On the basis of the First Information Report lodged by the informant, police registered Baghmara (Mahuda)

P.S. Case No.274 of 1993 corresponding to G.R. No.3801 of 1993 and hence, took up investigation of the case. After completion of investigation,

police submitted chargesheet and after cognizance, case was committed to the court of Special Judge under the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989. Charges for the offence under Sections 448/354 of the Indian Penal Code and 3 (xii) of Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was framed against the appellants and on their pleading not guilty, they were put to trial.Â

In support of its case, the prosecution has altogether examined five witnesses out of which P.W.3-Samaru Bhuiya and P.W.4-Ram Chandra Bhuiya

did not support the case of the prosecution and they have been declared hostile. P.W.1Maheshwari Bhuini has stated that at about 11:00 p.m., three

persons under the influence of liquor entered inside her house and caught hold of her hand and arm and abused her. She raised alarm. At this, the

three persons entered into the house of P.W.2-Durgi Bhuini and they committed the same act with Durgi Bhuini also. On hue and cry being raised, the

three accused persons ran away out of them two were caught hold of, while one managed to flee away. The accused persons who were apprehended

disclosed their names as Manbodh Mahto and S.K. Singh. Both were taken to Mahuda Police Station. In the police station, police recorded her

statement and read over and explained the same to her after which she put her thumb impression. P.Ws. 3 and 4 has also signed on her fardbeyan.

P.W.1 identified Manbodh Mahto and Honda Mahto. She further stated that she is a member of Scheduled Castes. In her cross-examination, the

P.W.1 has stated that they went to police station along with accused persons at 6:00 a.m. She further stated that there were injuries on the body of the

accused persons. She volunteered to say that they did not assault the accused persons. The accused persons were first taken to hospital and

thereafter, they were taken to police station. P.W.1 also stated that she is residing in the quarters of B.C.C.L. even though the quarter is not allotted

to her. The accused persons are the personnel of B.C.C.L. She denied the suggestion that she was an illegal occupant of the quarters of B.C.C.L.

and as the C.I.S.F. intended to evict her from the said quarters, she has instituted this false case.Â

P.W.2-Durgi Bhuini has stated that at about 11:30 p.m., three persons came to her house after coming out from the house of the P.W.1. They

started tearing of her clothes. She raised alarm and the residents of the colony came to the place of occurrence and apprehended Manbodh Mahto

and Rajesh Singh. They were taken to police station. P.W.2-Durgi Bhuini stated that she belongs to Scheduled Castes hence, the accused persons

committed the said act. P.W.2 identified the accused persons who were present in the court and claimed to identify the third accused person who was

on representation on the date of the examination of the P.W.2. In her cross-examination, she has stated that when the accused persons came out from

the house of the P.W.1, they were not followed by anybody. The accused persons were taken to police station between 12 mid night to 1:00 a.m.

P.W.2 also went to the police station. The accused persons sustained injury by falling when the alleged accused persons fell down in the drain behind

her house from where, they were apprehended. She also denied the suggestion that she is in illegal occupation of B.C.C.L. quarters and as they were

about to be removed from the said quarters hence she has instituted this false case.

P.W.5-Mina Devi has stated that on hearing the alarm raised by P.W.1, she went running to the place of occurrence and saw the accused persons

pulling the clothes of P.W.2. Two of the accused persons were apprehended. She identified the accused persons in court and claimed to identify the

third accused person who was on representation on the date of examination of the P.W.5. She further stated that P.Ws.1 and 2 both are the members

of Scheduled Castes but the accused persons are not the members of Scheduled Castes. In her cross-examination, she has stated that she was

examined by the investigating officer one week after the occurrence. She stated that her house is situated in front of the house of the P.W.2. She

came out and saw many persons were present there including P.Ws. 3 and 4. When her statement was recorded by police, she pointed out the

accused persons to the police. The accused persons were detained for about two hours. Thereafter police came and took them. The accused persons

sustained injuries by falling. The accused persons would not be able to walk properly as they were heavily drunk. They fell down when they were

chased for being apprehended. Police took the two accused Manbodh Mahto and Rajesh Singh. She further stated that on hearing the alarm when she

went there, the P.W.4 told her that the accused persons were doing mischief. P.Ws.3 and 4 chased the accused persons and assaulted them. Police

came on hearing the hue and cry. She further stated that she is deposing in court as told to her by P.W.4.

After closure of the evidence of the prosecution, statements under Section 313 Cr.P.C. of the accused appellants were recorded. The accused

appellants denied the circumstances appearing in evidence against them and the accused appellants Manbodh Mahto and M. Rajesh took the plea

of false implication in this case. No evidence was adduced on behalf of the accused appellants. After considering the evidence available in record, the

learned court below convicted the appellants as indicated above.

Learned counsel for the appellants submitted that the defence has been highly prejudiced by non-examination of the investigating officer in this case

as the place of occurrence could not be proved. The fardbeyan of the informant has not been proved though attention of the P.W.5 was drawn at

length vis-Ã -vis the statement made by her before the police under Section 161 Cr.P.C. but because of the nonexamination of the investigating

officer, the same could not be confronted to the investigating officer to bring the contradictions and improvisation made by her in her testimony. It is

further submitted that because of non-examination of the investigating officer, it remained inexplicable that though by clerical overwriting, the time of

recording of the fardbeyan of the informant has been mentioned as 23:45 hrs on 11.10.1993 the Bhatdih outpost, Why the police did not arrest the

accused persons immediately and when and from where, the accused persons were arrested by police and there is also major contradiction in the

testimony of the witnesses regarding time of arrest and manner of production of the accused persons by the police as well as injuries sustained by

them. It is further submitted by the learned counsel for the appellants that in order to suppress the truth and with an ulterior motive of convicting the

appellants-accused persons, the investigating officer has been deliberately withheld from the witness box without any plausible reason. It is further

submitted that though in the charge-sheet as many as 11 persons have been cited as witnesses but it remained unexplained as to why the rest six

witnesses named in the charge-sheet were not examined by the prosecution. It is further submitted by the learned counsel for the appellants that

admittedly the appellants were drunk to such an extent that they were not able to walk properly as stated by P.W.5 and there is no evidence in the

record that the accused persons were having any intention to outrage the modesty of P.W.1 or P.W.2; hence, no offence punishable under Section

354 of the I.P.C. is made out. It is further submitted by the learned counsel for the appellants that in order to bring home the charge punishable under

any of the clauses of Section 3 (1) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the condition president is that the

accused persons must not be a member of Scheduled Castes or Scheduled Tribes. It is further submitted that though the evidence has come through

P.W.5 that the appellants are not the members of Scheduled Castes but there is no evidence at all as to whether they are not the members of

Scheduled Tribes and in absence of any such evidence regarding the essential ingredients of the offence as under the clauses of Section 3 (1) of

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the learned court below ought to have acquitted the appellants for the

said charge. It is further submitted by the learned counsel for the appellants that as there is evidence in the record to suggest that at the relevant point

of time, the appellants-accused persons were heavily drunk and hence, they were not able to walk properly hence by no stretch of imagination a

conclusion can be arrived at that they entered into the house of P.W.1 or P.W.2 with intent to commit any offence or intimidate or annoy them. It is

lastly submitted that the learned court below keeping the view the evidence in record ought to have acquitted the appellants-accused persons by at

least giving them the benefit of doubt, hence the impugned judgment of conviction and order of sentence passed by the learned court below be set

aside.Â

Learned Addl. P.P. on the other hand defended the impugned judgment of conviction and order of sentence and submitted that the evidence of

P.Ws.1 and 2 which is corroborated by the evidence of P.W.5 is sufficient to establish all the charges punishable under Sections 448/354 and under

Section 3 (1) (xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Hence, it is submitted that the learned court below

having rightly convicted and sentenced the appellants, this appeal being without any merit be dismissed.

Having heard learned counsel for the parties and perusal of the record, it is pertinent to mention here that it is a settled principle of law that

nonexamination of the investigating officer is not fatal to the case of the prosecution unless it causes prejudice to the defence. Coming to the facts of

this case I found that there is absolutely no evidence in record regarding the place of occurrence. The attention of the P.W.5 was drawn vis-Ã -vis

her statement recorded by the investigating officer under Section 161 Cr.P.C. There is major contradiction in the testimony of the prosecution

witnesses as to how and when and to what extent the accused persons sustained injuries and there is also discrepancy regarding the evidence that as

to when and where the accused persons were arrested by police and it also remains inexplicable as to if at all the fardbeyan of the informant was

recorded at 23:45 hrs on 11.10.1993 because of the over writing of the time ‘23:45 ‘ mentioned therein and why the appellants accused persons

were not immediately arrested more so because it is the case of the prosecution that the two accused persons were apprehended immediately after

the occurrence. So keeping in view the aforesaid facts and circumstances of the case, this Court is of the considered opinion that this is a case where

the defence has been prejudiced by non-examination of the investigating officer. So far as the contention of the offence punishable under Section 3 (1)

(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is concerned, there is force in the submission of the learned

counsel for the appellants that there is absolutely no evidence that the appellants are not the members of the Scheduled Tribes which is sine-qua-non

for establishing the said charge against the accused persons. It has also come in evidence that the appellant no.3 M. Rajesh is a personnel of Central

Industrial Security Force and the appellant no.1 is an employee of B.C.C.L. and that the P.Ws.1 and 2 though were not allotted B.C.C.L. quarters but

were occupying the same and this evidence certainly shows a motive on the part of the P.Ws.1 and 2 for false implication of the appellantsaccused

persons. Further P.W.5 has stated in her cross-examination that she heard about the occurrence from the P.W.4. So she cannot be termed as an eye-

witness to the occurrence. Further the statement of P.W.4 that he signed in the police station on the next date of occurrence also creates a doubt. In

view of the motive for false implication and non-examination of the independent witnesses without any plausible reason is a circumstances which go

against the prosecution in the facts and circumstances of this case. It is pertinent to mention here that there is improvisation of the case of the

prosecution through its witnesses as well as there is contradiction in the testimony of the witnesses regarding the manner of occurrence and its

aftermath rendering the evidence put forth by the prosecution untrustworthy to base a conviction for any of the charges framed against them.

Keeping in view the aforesaid facts and circumstances of the case, I have no hesitation in holding that this is a fit case where the accused

appellants be acquitted of all the three charges by giving them the benefit of doubt. Accordingly, the accused appellants be acquitted of all the three

charges punishable under Sections 448/354 of the Indian Penal Code and under Section 3 (1) (xi) of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 by giving them the benefit of doubt and the impugned judgment of conviction and order of sentence is set aside.

The appellants accused persons are on bail. In view of their acquittal, they are discharge of the liabilities of their bail bonds.

Let the Lower Court Record be sent back to the court below with a copy of the judgment forthwith.Â

In the result this appeal is allowed.Â