Rambha Devi And Ors vs State of Jharkhand

Heard Mr. Arvind Kumar Choudhary, the learned counsel appearing on behalf of the petitioners.

Heard Mr. Shailesh Kumar Sinha, the learned A.P.P. appearing on behalf of Opposite Party-State.

This criminal revision petition is directed against the judgment dated 07.10.2013 passed by the learned 4 th Additional Sessions Judge, Deoghar in

Cr. Appeal No. 17 of 2011 whereby and whereunder the judgment of conviction and the order of sentence passed by the learned trial court was

affirmed and the appeal was dismissed.

The criminal appeal was preferred by the petitioners against the judgment of conviction dated 28.04.2011 passed by the learned Judicial Magistrate,

1st Class, Deoghar in G.R. No. 182 of 2004 / T. R. Case No. 236 of 2011 (arising out of Sarwan P.S. Case No. 33/2004) whereby and whereunder

the petitioners were held guilty and convicted under Sections 323, 341, 448 and 504 of the Indian Penal Code. They were granted the benefit of

Section 4 of the Probation of Offenders Act and were directed to be released on their entering into a bond of Rs. 5,000/- with one surety of the like

amount each for a period of one year and to receive sentence when called upon during such period and in the meantime, to keep peace and be of good

behaviour.

Arguments on behalf of the petitioners

Learned counsel for the petitioners submitted that the impugned judgments passed by the learned courts below are perverse, inasmuch as, they

have not discussed the evidences properly. He further submitted that offence under Section 448 of the Indian Penal Code is not made out as there is

no question of house trespass in view of the fact that the parties are residing in the same house. He also submitted that the Petitioner Nos. 1 and 3 are

the aunts of the informant (P.W.-4) and as per the prosecution case, the occurrence had taken place within the family. The allegation is that the

Petitioner No.2 had wrestled P.W.-4, the informant, on the ground. He submitted that although it is alleged that blood was oozing out, but the injury

report has not been exhibited and the doctor as well as the investigating officer of this case have not been examined. P.W.- 2 and P.W.-3 are

respectively the father and mother of the informant and are interested witnesses and so far as P.W.-1 is concerned, he is the grandfather of the

informant who has not supported the prosecution case.

The learned counsel for the petitioners further submitted that otherwise also after a long gap, there is no occasion to furnish bond under Section 4 of

the Probation of Offenders Act and he has relied upon a judgment passed by the Hon'ble Patna High Court reported in (2012) 4 Eastern Indian

Criminal Cases 48 (Patna).

Arguments on behalf of the Opposite Party-State

Learned A.P.P. appearing on behalf of the Opposite Party-State, on the other hand, submitted that the arguments of the petitioners that no offence

under Section 448 of the Indian Penal Code is made out as the informant-party as well as the petitioners are living in the same house, is not correct.

He referred to Para-13 of the appellate court's judgment and submitted that it has come in evidence that it is an admitted position that both the parties

are the descendants of the same ancestor but they are living separately, although their courtyard and well is common. The learned A.P.P. further

submitted that merely because they have the same courtyard and well, it does not mean that they are living in the same house.

The learned A.P.P. further submitted that so far as the non-examination of the Doctor and non-production of the injury report are concerned,

merely because the Doctor has not been examined and injury report has not been exhibited, it cannot be said that no offence under Section 323 of the

Indian Penal Code is made out against the petitioners. He also submitted that the appellate court has already considered this argument of the

petitioners and has held that the version of P.W.-2 and P.W.-3 are consistent on the point that they saw blood and injury of the informant (P.W.-4),

who had pointed out his own injury. He further submitted that the learned appellate court has also considered the fact that although the investigating

officer of the case has not been examined in this case, but non-examination of the I.O. is not fatal to the prosecution case and has not caused any

prejudice to the petitioners. He also submitted that the learned courts below have given consistent findings of fact after analyzing the evidences on

record. He has submitted that the arguments of the learned counsel for the petitioners that the materials on record have not been considered properly,

is not correct.

The learned A.P.P. further submitted that merely because several years have passed from the direction to execute bond, the same cannot be a

ground for exempting the petitioners from executing the bond as directed by the learned trial court. He submitted that this plea of the petitioners has

also been considered and rejected by the learned appellate court. He further submitted that considering the scope of revisional jurisdiction, the

impugned judgments do not call for any interference.

Findings of this Court

After hearing the learned counsel for the parties and going through the impugned judgments as well as the lower court records of the case, this

Court finds that the prosecution case is based on the written report dated 04.03.2004 (Exhibit-1) given by the informant namely, Mintu Verma to the

Officer-in- charge, Sarwan P.S., District- Deoghar alleging inter-alia that on 04.03.2004 at about 01:30 P.M., when his parents were not at home, his

cousin Bhabhi namely, Guriya Devi and Rambha Devi started abusing him and due to which an altercation started and thereafter, Jitendra Verma

came there and entered into his house and caught hold his hair and thrashed him on the ground and assaulted him with fists and slaps and the

informant received injuries on his mouth and back. It was further alleged that they threw some household articles here and there and took away some

rice, paddy and grains from his house. It was stated that there was previous enmity between the father of the informant and his uncle Jitendra Verma.

On the basis of the written report, the case was registered as Sarwan P.S. Case No. 33/2004 under Sections 448, 341, 323, 379, 427, 504/34 of the

Indian Penal Code against the petitioners and after completion of investigation, the charge sheet was submitted against them under Sections 448, 341,

323, 427, 504/34 of the Indian Penal Code and thereafter, cognizance of the offence was taken against them on 21.05.2004 under the same sections.

On 31.05.2004, the substance of accusation for the offences under Sections 448, 341, 323, 427, 504/34 of the Indian Penal Code was explained to

the petitioners in Hindi to which they pleaded not guilty and claimed to be tried.

This Court finds that the prosecution examined altogether 4 witnesses in support of its case. P.W.-1 is Prakash Verma who has been declared

hostile by the prosecution, P.W.-2 is Nagehwar Verma who is the father of the informant, P.W.-3 is Veena Devi who is the mother of the informant

and P.W.-4 is Mintu Verma who is the informant of the case. The prosecution has proved the signature of the informant as Exhibit-1.

After closure of prosecution evidence, the statements of the petitioners were recorded under Section 313 of the Cr.P.C. on 11.03.2008 wherein

they simply denied the incriminating evidences put to them and claimed to be innocent. The petitioners did not adduce any oral or documentary

evidence in their defence.

This Court finds that the learned trial court discussed the oral as well as documentary evidences adduced on behalf of the prosecution and also

considered the arguments of both the parties and also considered the decisions relied upon on behalf of the petitioners and recorded its findings in

Paras-12 and 13 which read as under:

(12) So from careful scrutiny of the evidence given by P.W.- 2, P.W.-3 and P.W.-4, it can be safely inferred that charges U/S 323, 341, 448 and 504

of I.P.C. only has been brought against all the 3 accused persons as it appears that in furtherance of common intention, the offences U/S 323, 341,

448 and 504 of the I.P.C. has been committed by the accused persons.

(13) ................................. .............................. ......... ..

Here in the present case, the testimony of P.W.-4 i.e., the victim / informant appears to be reliable and it has also been corroborated by P.W.-2 and

P.W.-3 and further the witnesses examined in this case in the court were examined u/s 161 of the Cr.P.C. during investigation. So, in totality, the

decisions upon which reliance has been placed does not appear to come to the rescue of the accused persons. Further, non-examination of the I.O.

and doctor has not become fatal for the prosecution case and so the arguments of the defence side does not appear to be sustainable and the

arguments submitted by learned A.P.P. that the case of the prosecution stands proved has forced.

This Court further finds that the learned trial court convicted the petitioners under Sections 323, 341, 448 and 504 of the Indian Penal Code and

considering that this is their first offence and two of the convicts are female who are very closely related to the informant, the learned trial court

extended the benefit of Section 4 of the Probation of Offenders Act and they were directed to be released on their entering into a bond of Rs. 5,000/-

with one surety of the like amount each for a period of one year and to keep peace and be of good behaviour.

This Court further finds that the learned appellate court also discussed the various evidences on record and the arguments advanced on behalf of

the parties and also cited the relevant decisions of the Hon'ble Supreme Court and recorded its findings in Paragraph-13 and 14 which read as under:

From the analysis of the evidence discussed above, it appears that it is an admitted position that both the parties are the descendants of the same

ancestor and though they are living separately, but their courtyard and well are common. Though the injured was examined at the Primary Health

Centre, but neither the injury report has been brought on record, nor the Dr. has been made prosecution witness in this case. .... ..... .........

................................. .. .. ..........

No doubt, this court has discarded the exaggerated portion of the version of P.W.-2 and P.W.-3, but they are consistent on the point that they saw

blood and injury of the injured. The injured P.W.-4 has also supported the case on the point of his own injury. The I.O. has also not been examined in

this case. But from the analysis of the evidence on record, it appears that non-examination of the I.O. is not fatal to the prosecution.

Occurrence has taken place within the four corner of the house in the courtyard and that too within the family, related with blood, then under such

circumstances, it is not expected that any witness will be available. P.W.-1 has been declared hostile and P.W.-2 and P.W.-3 are hearsay. Hence only

the evidence against the accused persons is that of the injured. Though the injured has exaggerated the occurrence, but after discarding the

exaggerated portion what remains appears to be reliable and acceptable. Only because the version of sole injured witness has not been corroborated

by other independent witness or any other witnesses, the evidence of the sole injured cannot be discarded. The statement of injured / P.W.-4 has

inspired confidence to the extent stated by him in Para-1 of his deposition. From the final analysis of the evidence as discussed, I have reached to a

conclusion that the prosecution has remained successful in establishing the charge levelled against the accused persons u/s 323, 341, 448, 504 I.P.C.

only and convicted them thereunder. Ld. Magistrate has already taken a lenient view by giving the convicts, the benefit of Probation of Offender Act

and I am also of the view that as the convicts and the injured are agnate to each other and since the institution of the case in 2006 till the disposal of

2013 they have been harassed for facing the investigation, trial and appeal. Hence they deserve the benefit of section 4 of Probation of Offender Act.

The appellants have cited one reported case of Hon'ble Supreme Court i.e., 1972 PLJR 500 in support of their argument that already several years

have passed after passing of the order of sentence for executing bond and in the meantime no overt act has been reported against the appellants.

Hence, it has been prayed that the appellants could not be directed to execute a bond for further period. From perusal of the foresaid judgment of the

Supreme Court, it appears that the same judgment speaks that the order to execute a bond does not become nugatory even if period for which bond

was ordered to be execute has expired. Under such circumstances it is not desirable to set aside the order of the lower court regarding execution of

bond. As such the judgment of conviction and order of sentence passed by the Ld. Magistrate in G.R. Case No.152/04, Tr. No.236/11 on 28.04.11 is

hereby affirmed.

Resultantly this appeal is dismissed.

This Court finds that P.W.-4 is the informant as well as the victim and is the most important witness of the case and he deposed that the

occurrence took place one back at 01:30 P.M. when he was in his house and his mother and father were in the agricultural field. He further deposed

that when Guriya Devi and Rambha Devi started abusing him, Jitendra Verma holding his hair wrestle him to the ground and assaulted him and due to

which blood started oozing out of his mouth. He further deposed that on hearing noise, his father came and took him to the police station and he gave a

written report. He has proved his signature on the written report as Exhibit-1. He claimed to identify all the accused persons.

This Court further finds that the informant was thoroughly cross-examined and the defence has failed to elicit any major contradiction regarding

the occurrence and the injuries received by the informant to falsify his testimony. This Court finds that the evidence of the informant has been found

to be fully reliable and trustworthy by the learned courts below.

This Court finds that the injured informant (P.W.-4) has fully supported his version made in the written report and P.W.-2 and P.W.-3 has fully

corroborated the evidence of the informant on point of injury of the informant and therefore, non-examination of the doctor and non-production of the

injury report of the informant is not fatal to the prosecution case and has not caused any prejudice to the petitioners. This Court finds that the

informant himself is the victim of the case and he has fully supported the date, time, place and the manner of the occurrence.

The learned courts below have recorded a finding that though both the parties are descendants of the same ancestor and their courtyard and the

well are common, but they were living separately. Therefore, the arguments of the petitioners that alleged offence under section 448 IPC is not made

out as the occurrence had taken place within the house of the same family, is devoid of any merits and hence rejected.

This Court further finds that the learned court below has considered the point of examination of close relatives of the informant as witnesses and

have closely scrutinized their evidence to convict the petitioners. The learned court below was also of the view that conviction can be based even on

the testimony of a single witness, who is wholly reliable. This Court finds that the evidence of the Informant-victim has been found to be wholly

reliable and unblemished by the learned courts below and the defence has failed to point out anything doubtful for disbelieving his evidence to come to

any different finding.

This Court finds that both the learned courts below have carefully scrutinized the evidences of the prosecution witnesses and have recorded

consistent and concurrent findings of fact and have found sufficient evidence for conviction of the petitioners under Sections 323, 341, 448 and 504 of

the Indian Penal Code.

Considering the entire facts and circumstances of this case, this Court finds that both the learned courts below have passed well-reasoned

judgements considering every aspect of the matter and every argument advanced on behalf of the petitioners. This Court does not find any illegality or

perversity in the impugned judgments of conviction calling for any interference under revisional jurisdiction.

The learned counsel for the petitioners has also argued before this Court that there is no occasion to furnish bond under Section 4 of the Probation

of Offenders Act, 1958 as much time has elapsed from the date of incident which is of the year 2004 and no useful purpose will be served by

furnishing the bond and for this, the learned counsel has relied upon the judgment passed by the Hon'ble Patna High Court reported in (2012) 4

Eastern Indian Criminal Cases 48 (Pat.) (Pawan Kumar Singh and Anr. Vs. State of Bihar). Upon perusal of the said judgment relied upon by the

petitioners, this Court finds that in the said case, the matter was taken up in criminal appeal and the appellants were convicted under Section 323 of

Indian Penal Code and considering the fact that more than 28 years had elapsed, the Hon'ble Patna High Court dispensed with the order of executing

the bond under Section 4 of the Probation of Offenders Act, 1958 as directed by the trial court.

This Court finds that the learned lower appellate court has considered the arguments of the petitioners that already several years have passed

after passing of the order of sentence for executing bond and in the meantime, no over-tacked has been reported against the appellants, but was of the

view that under the circumstances of the present case, it was not desirable to set-aside the order of the lower court regarding execution of bond.

Section 4 of the Probation of Offenders Act, 1958 empowers the courts to release certain offenders on probation of good conduct. Sub-section (1)

provides that when any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by

which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character

of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time

being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or

without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the

meantime to keep the peace and be of good behaviour.

This Court is of the considered view that release of offenders on probation is a corrective device prescribed by court during which the probationer

lives in the community and regulates his own life under conditions imposed by courts. The suspension of sentences under probation serves the dual

purpose of deterrence and reformation. The object of criminal law is more inclined toward the reformation of offender than to punish him.

This Court finds that in the present case, the informant party as well as the petitioners have a common courtyard and a common well although they

are living separately and under such circumstances, the direction passed by the learned courts below to enter into bond under Section 4 of the

Probation of Offenders Act, 1958 does not lose its significance and once the petitioners enter into such bond, they would be under a legal obligation to

maintain peace and good behaviour.

In the aforesaid facts and circumstances of this case, this Court is of the considered view that learned lower appellate court rightly refused to

dispense with the requirement of entering into a bond by the petitioners under Section 4 of the Probation of Offenders Act. This Court is of the

considered view that the judgment relied upon by the petitioners passed by the Hon'ble Patna High Court reported in (2012) 4 Eastern Indian Criminal

Cases 48 (Pat.) (supra) does not apply to the facts and circumstances of this case. Accordingly, in revisional jurisdiction, no interference is called for

in the direction issued by the learned courts below asking the petitioners to be released on entering into a bond of Rs. 5,000/- with one surety of the

like amount each for a period of one year and to receive sentence when called upon such period and in the meantime to keep peace and have good

behaviour. This Court further finds that there was no interim relief granted by this Court staying the direction issued by the learned courts below. The

petitioners are directed to furnish the required bond before the learned court below, if not already furnished, within a period of two months from the

date of communication of this judgment to the learned court below.

As a cumulative effect of the aforesaid findings, the judgment passed by the learned trial court and affirmed by the learned appellate court, is

hereby upheld and this criminal revision petition is hereby dismissed.

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

Let the Lower Court Records be immediately sent back to the court concerned.

Let a copy of this order be communicated to the learned court below through ""FAX/Email"".