Satyendra Koeri, son of Late Janki Mahato vs State Of Jharkhand

Pradeep Kumar Srivastava, J

Heard Mr. Anil Kumar, learned counsel for the appellants and learned Spl.P.P.

Instant criminal appeal is directed against the judgment and order of conviction and sentence dated 27.05.2008 passed by learned 1st Additional District & Sessions Judge-cum-Special Judge, Palamau at Daltonganj in SC/ST Case No.02 of 2005, whereby and whereunder the appellants have been held guilty for the offences under sections 323 and 341 of IPC and section 3 of SC/ST Act and have been sentenced to undergo R.I. for 6 months for the offence under section 323 of IPC, R.I. for 15 days for the offence under section 341 of IPC and R.I. for 6 months for the offence under section 3 of SC/ST Act. All the sentences were directed to run concurrently.

Factual Matrix:-

Factual matrix giving rise to this appeal is that on 20.12.2004, the present appellants assaulted the informant, Ram Pravesh Ram and humiliated him by calling "Dom" and "Chamar". It is further alleged that the informant being a poor person anyhow maintains his family by pulling rickshaw and the accused persons are jamindar. It is further alleged that except the residential house, the informant has no any other land whereas the accused persons used to stop his way to fetch water from the well. Upon hearing hulla, brother of the informant rushed towards him and saved his life, otherwise, they would kill him. The accused persons extended threatening not to lodge FIR, otherwise, they would kill him.

On the basis of written report of the informant, Hariharganj P.S. Case No.12 of 2005 was registered for the offence under sections 323, 341, 504/34 of IPC and sections 3/4 of SC/ST Act. After completion of investigation, charge-sheet was submitted against the above named appellants. The case was tried by the Special Judge, SC/ST Act on denial from the charges leveled against the accused persons.

In the course of trial, altogether 6 witnesses were examined by the prosecution, namely:-

P.W.1-Ram Pravesh Ram (Informant) P.W.2-Jagesh Ram

P.W.3-Surajmal Ram

P.W.4-Dhananjay Kumar P.W.5-Ravi Kumar

P.W.6-Praveen Kumar Sinha

Apart from oral testimony of the witnesses, following documentary evidences have been adduced by the prosecution.

Ext.1.-Signature of Ram Pravesh Ram on the written report

Ext.2.-Endorsement

Ext.3-Signature on requisition dated 01.03.2005

Ext.4-Injury Report

On the other hand, no oral or documentary evidence has been adduced by the defense. The case of defence is denial from the occurrence and false implication.

Learned trial court after evaluating the evidence available on record held the appellants guilty for the aforesaid offences and sentenced them as stated above.

Submission on behalf of appellants:-

Learned counsel for the appellants has submitted that the informant and his family members were using the field of the accused persons for discharging natures call and on the alleged date of occurrence, in the early morning, when the accused persons forbade the informant from discharging natures call in his field and spoiling the tomato crops, the informant lodged this false case. Learned counsel for the appellants has submitted that not a single witness, who have been examined in this case have supported the prosecution case as alleged in the FIR. Even if the contents of the FIR be taken to be true on its face value, no offence under SC/ST Act is constituted. There is general and omnibus allegation that the accused persons used to call the informant "Dom", "Chamar" and torture him. No specific event of any such kind of incident has been mentioned in the FIR. Learned trial court considering the evidence of witnesses of facts has formulated few questions to be get explained under section 313 of Cr.P.C. by the accused persons but surprisingly, there is no question at all showing any incident of calling the informant or any other of his family members as Dom and Chamar and humiliating him in a place of public view and who assaulted the informant by what means, has also not been asked in the statement under section 313 of Cr.P.C. Therefore, not a single incriminating circumstance appearing against the appellants, have been asked in their examination under section 313 of Cr.P.C. The learned trial court has acted on extraneous facts and the circumstances which were never found to be incriminating and explained by the appellants. Therefore, impugned judgment and order of conviction and sentence of the appellants is absolutely illegal based beyond the weight of evidence available on record and fragrant violation of provisions of law and procedure. The charge has been framed under sections 3/4 of SC/ST Act without specifying under which clause of the said section, the offence was committed. Therefore, the impugned judgment and order of conviction and sentence of the appellants is liable to be set aside, allowing this appeal.

Submission on behalf of State:-

10.Learned A.P.P. has opposed the aforesaid contentions raised on behalf learned counsel for the appellants and submitted that learned trial court has very wisely and aptly apprised and appreciated the prosecution evidence and arrived at right conclusion about the guilt of the appellants. The informant party is a poor and illiterate person belonging to schedule caste. Therefore, their evidence may suffer from some infirmities but the core prosecution case is not affected by such evidence. Considering the overall fact and circumstances of the case proved by the prosecution, learned trial court has arrived at findings of guilt of the appellants and rightly convicted and sentenced them, which suffers from no illegality or infirmity calling for any interference in this appeal. Accordingly, this appeal has no merits and fit to be dismissed.

Analysis, Reasons and Decision:-

11.I have gone through the record of the case along with the impugned judgment and order in the light of the contentions raised on behalf of both side.

12.The only point for determination in this appeal is that "as to whether the impugned judgment and order of conviction and sentence of the appellants passed by learned trial court suffers from any error of law calling for any interference in this appeal?"

13.Before adjudicating the above point, it is necessary to take brief resume of oral as well as documentary evidence lead by the prosecution to substantiate the charges leveled against the appellant P.W.1- Ram Pravesh Ram is the informant. According to his evidence, he belongs to Chamar caste and on the date of occurrence at about 5:00 am, he went to discharge natures call and was returning from the field then Satyendra Koeri and Binay Koeri who belong to Koyri caste called him as Dom, Chamar and assaulted saying that why you are discharging natures call in their field and forbade him to discharge natures call in future in their field. The accused persons always used to threaten him. This witness lodged this case and identified the signature on the written report as Ext.1. He was also sent to Hariharganj Government hospital for medication examination. He has sustained injury on knee, shoulder and other parts of body. According to the Doctor, he has sustained fracture injury.

In his cross-examination, this witness has ultimately admits that the filed in which he was discharging natures call belongs to the accused persons situated at a distance of about 1/2 kms from his house. This witness also admits that a talk of compromise was also going on with the appellants but they were not ready to pay compensation amount, hence, the compromise failed.

P.W.2-Gagesh Ram is brother of the informant and is not an eye-witness to the occurrence as while he was sleeping at the time of incident. He went to place of occurrence on the information given by wife of his younger brother and saw that his brother was being assaulted by the accused persons. The accused persons were forbidding his brother to discharge natures call in their field and he saw the appellants were abusing his brother by saying him Chamar.

P.W.3-Surajmal Ram is son of P.W.2. He has expressed no knowledge about the occurrence and declared hostile by the prosecution.

P.W.4-Dhananjay Kumar is son of the informant and he was also sleeping at the time of occurrence. Upon hearing hulla, he woke up and went to the place of occurrence and saw that present appellants were assaulting to his father by calling him Dusad, Chamar, Bhuiya and Mushar. The accused persons were scolding his father because he has discharged natures call in their field.

P.W.5- Ravi Kumar is minor son of the informant aged about 8 years. He was also sleeping at the time of occurrence. However, he has claimed to have seen his father was being assaulted by the accused persons. He has not stated about the reasons for assault.

P.W.6- Praveen Kumar Sinha is Dy. S.P. and Investigating Officer. This witness has proved the endorsement on written report of the informant for registration of the case and assumed the charge of investigation. According to his evidence, the place of occurrence is Kachchhi road situated at a distance of 30-50 feet from the house of the informant. Just adjacent to the place of occurrence, there is a field of the accused persons wherein tomato was grown. In the ridge of the field, the informant discharged his natures call and due to that reason, the accused persons assaulted him. It is an open place. He recorded the statement of witnesses and got injury report of the informant (Ext.4) and finding sufficient evidence against the appellants submitted charge-sheet against them.

It is trite that the conviction of accused cannot be based on any incriminating circumstance, which has not been got explained under section 313 of Cr.P.C. In the instant case, common questions have been put to both the appellants and they have replied the same. For better appreciation of the case, the statement of the appellant, Satyendra Koeri recorded under section 313 of Cr.P.C is extracted here as under:-

From perusal of the evidence of the informant, P.W.1 who is sole eye- witness of the case, it is crystal clear that admittedly he was discharging natures call in the field of the appellants where tomato crop was grown, which was protested by the appellants. The place of occurrence is a private field of the appellants and it was early in the morning when the incident took place. The occurrence has not taken in a place of public view and no one except, the informant was present there. The occurrence of assault has also not been corroborated by proving any injury report of the informant. The Investigating Officer of this case has also not found visible injuries to the informant and there was only complaint of pain. The informant was advised for X-ray but no X-ray report was produced. Therefore, the injury report of the informant does not corroborate the prosecution story. Learned trial court has also not asked about any incriminating circumstances appearing against the appellants. Therefore, the facts and circumstances, which have been made basis of conviction of the appellants are extraneous facts and circumstances, which were never got explained by the appellants, hence, cannot be used against them as a basis of conviction.

In view of the above discussion and reasons, learned trial court has committed serious error of law while recording the findings of the guilt of the appellants, which is beyond weight of the evidence and the materials available on record. The clear cut case of the informant shows that he was scolded by the appellants because he was discharging natures call in their field where tomato crop was grown.

Accordingly, the judgment and order of conviction and sentence dated 27.05.2008 passed by learned 1st Additional District & Sessions Judge- cum-Special Judge, Palamau at Daltonganj in SC/ST Case No.02 of 2005 is, hereby, set aside and the appellants are acquitted from the charges leveled against them. This appeal is allowed.

The appellants are on bail. They are discharged from liability of their bail bonds and sureties are also discharged.

Pending I.A(s), if any, is also disposed of accordingly.

Let a copy of this judgment along with Trial Court Record be sent back to the court concerned for information and needful.