Jharkhand High Court
Dharmdeo Bharati Son Of Late ... vs The State Of Jharkhand on 31 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 936 of 2012
1.Dharmdeo Bharati son of Late Kapildeo Bharati
2.Rinku Bharati @ Permanand Bharati
3.Guddu Bharati
4.Hridyanand Bharati
5.Pintu Bharati
6.Mantu Bharati
Petitioner Nos.2 to 6 are sons of Ramdeo Bharati
All are residents of Egarkund Gulphurbari, P.O. and P.S.
Chirkunda, District- Dhanbad ... ... Petitioners
-Versus-
The State of Jharkhand ... ... Opp. Party
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Sanjay Prasad, Advocate
For the State : Mr. Arup Kumar Dey, A.P.P.
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Through Video Conferencing
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09/31.08.2021 Heard Mr. Sanjay Prasad, the learned counsel
appearing for the petitioners.
2. Heard Mr. Arup Kumar Dey, the learned A.P.P.
appearing on behalf of the Opposite Party - State.
3. This criminal revision petition has been preferred against
the judgment dated 23.8.2012 passed by the learned Addl.
Sessions Judge-IV, Dhanbad in Criminal Appeal No. 39/2011
whereby and whereunder the learned appellate court affirmed
the conviction of the petitioners for the offences under Sections
341, 323/149 of the Indian Penal Code passed by the learned
trial court, but modified the sentences of the petitioners and the
petitioners were ordered to be released on their furnishing
probation bond of Rs.3,000/- with two sureties of the like
amount each for a period of one year and in the meantime, they
were directed to keep peace and to be of good behaviour and
dismissed the criminal appeal with modification in the
sentences of the petitioners.
4. The learned trial court, vide judgment of conviction and
the order of sentence dated 31.01.2011 passed by the learned
Judicial Magistrate, 1st Class, Dhanbad in G.R. Case No.
3070/2001 (T.R. No. 77/2011), had convicted the petitioners for
the offences under Sections 341, 323/149 of the Indian Penal
Code and had sentenced them to undergo Simple
Imprisonment for 15 days for the offence under Section 341 of
the Indian Penal Code and Simple Imprisonment for 6 months
for the offence under Section 323 of the Indian Penal Code and
all the sentences were directed to run concurrently.
Arguments on behalf of the Petitioners
5. The learned counsel appearing for the petitioners
submitted that the learned appellate court has given the benefit
of Probation of Offenders Act to the petitioners, but the
conviction by itself is a stigma upon the petitioners and
accordingly, the case may be decided on merits.
6. He further submitted that the petitioners have been
implicated in the instant case due to previous enmity arising out
of existing land disputes between them and all the prosecution
witnesses are interested witnesses and considering the
aforesaid aspects of the matter, the impugned judgments are fit
to be set aside.
7. The learned counsel further submitted that without
prejudice to the aforesaid submissions, if this Court is not
inclined to interfere with the conviction of the petitioners, they
may be given sufficient time to furnish the required bonds as
directed by the learned appellate court, if not already furnished.
Arguments on behalf of the Opposite Party-State
8. Learned counsel for the Opposite Party-State submitted
that there is concurrent finding of facts recorded by the learned
courts below and there is no scope of re-appreciation of the
evidences in revisional jurisdiction and therefore, no
interference is called for in the present case.
Findings of this Court
9. The prosecution story in brief as per the written report of
informant Dhaneswar Saw (P.W-3) is that on 24-10-2001 at 09
a.m, the petitioners tried to set up bicycle stand on the land of
the informant on Plot No.1974, Khata No.138. When the
informant protested, the petitioners assaulted him due to which
he sustained injuries. On the basis of the written report of the
informant, Chirkunda (Gulpherbari) P.S. Case No.159/2001
was registered under Sections 147, 149, 341 & 323 of the Indian
Penal Code against the petitioners. On 14.07.2004, substance of
accusation was explained to the petitioners in Hindi to which
they pleaded not guilty and claimed to be tried.
10. During trial, the prosecution examined altogether five
witnesses. P.W.-1 is Dr. Braj Bhushan Pd. Singh who deposed
that on 24.10.2001, he examined Dhaneswar Saw and found
swelling over his left eye, abrasion below the left eye, near the
chin and near the right elbow. He found that the nature of
injuries was simple and were caused by hard and blunt
substance. The injury was caused within 12 hours. He identified
his writing and signature on injury report which was marked
as Exhibit-1. During cross-examination, he deposed that the
above said injuries could be caused by fall on the rough surface.
11. P.W.-2 is Habu Ghosh who deposed that the occurrence
took place on 24.10.2001 at 9 -10 a.m. and at that time, he was at
tea stall near Agyarkunda more and he saw that on the eve of
the Durga Puja fair, Rinku, Mantu, Dharmdeo and Pintu were
constructing a bicycle stand. Dhaneswar Saw protested them
and then the petitioners assaulted him with fists and slaps.
12. P.W.-3 is Dhanesar Saw who is the informant of the case.
He deposed that the occurrence took place on 24.10.2001 at 9
a.m. He described the place of occurrence as Plot No.1974
Mauza Agyarkunda and Khata no.138. On the said land
Nityanand Bharti, Guddu Bhari, Pintu Bharti, Mantu Bharti,
Rinku Bharti and Dharamdeo Bharti came there and tried to set
up a cycle stand. When the informant protested, the accused
assaulted him. He sustained injury on his eyes, chin and elbow
and he went to Rajkiya Hospital for treatment. He deposed that
Habu Ghosh and Hitesh Patel saw the occurrence and other
persons had also seen the occurrence. He identified that written
report, writing of Rameshwar Singh and his signature which
was marked as Exhibit-2. He claimed to identify the accused
persons. Police recorded his restatement and during his
statement, he also told police that the accused persons had also
stolen his household articles after breaking into his house and
for that he has filed a case against them and in the said case,
they were convicted. In cross-examination, this witness stated
that for said occurrence, two cases were instituted; first case is
on his report and the second is on the report of Rinku Bharti. He
deposed that the case which was instituted by Rinku is also
pending. There is altercation going on between the family of
informant and Ramdeo Bharti for several days.
13. P.W.-4 is Hitesh Patel who deposed that the occurrence
happened in the month of October, 2001 during Durga Puja. He
deposed that at 9 - 10 a.m, when He was sitting in tea stall, he
saw marpit and then, he went there and saw that Hridyanand,
Tinku, Guddu and their two brothers are assaulting Dhanesar.
The informant sustained injury on his hand, chin and eye. He
intervened and stopped the quarrel. He identified Hridyanand
and Guddu in court and claimed to identify rest accused
persons. During cross-examination, he deposed that the police
recorded his statement. Prior to this case, another case was also
pending between both the parties for property and for the land-
in-question.
14. P.W.-5 is Sonu Chowdhary who is the Investigating
Officer of the case. He stated in his evidence that he had
recorded the statement of witnesses and had inspected the place
of occurrence. He proved the letter issued for sending the
informant to hospital which has been marked as Exhibit-3. He
also proved the signature of Officer-in-charge on the formal
F.I.R. which has been marked as Exhibit-4. He also proved the
forwarding on the written report which has been marked as
Exhibit-5. He proved the endorsement of registering the case
which has been marked as Exhibit-6. He stated that finding the
case true and after getting supervision report of his superior
officer, he submitted charge-sheet against the petitioners.
15. The petitioners examined one witness in their defence i.e.
D.W.-1 Haru Manjhi who deposed that this case was filed by
Dhanesar Saw. He deposed that when Tinku Bharati was
cleaning his shop, at that time, Dhanesar, Rameshwar came
there and assaulted him and damaged the articles of the shop.
He deposed that the occurrence took place during Durga Puja
in 2001. During his cross-examination, he stated that he knows
Dhanesar Saw. He deposed that Dhanesar Saw has not set up a
cycle stand and he has a good relation with Rinku Bharati.
16. During trial, the prosecution also exhibited certain
documents i.e. Certified copy of judgment of G.R. Case
No.2964/83 as Exhibit-7, Certified copy of order of Cr.A.
No.75/92 as Exhibit-8, Certified copy of order dated 10.08.2009
of Nirsa P.S. Case No.114/2009 as Ext.9, Certified copy of
cognizance order of Chirkunda P.S. Case No.25/2008 as
Exhibit-10, Certified copy of formal F.I.R. of G.R. No. 312/08
(Chirkunda P.S. Case No.25/08) as Exhibit-11, Certified copy of
written report of Chirkunda (Gulferbad) P.S. Case No.25/08 as
Exhibit-11/1, Certified copy of charge-sheet of Chirkunda
(Gulferbadi) P.S. Case No.25/08 as Exhibit-11/2, formal FIR of
Nirsa P.S. Case No.114/09 (G.R. No. 1635/09) as Exhibit-12 and
Certified copy of written report of Nirsa P.S. Case No.114/09 as
Exhibit-12/1.
17. Defence also exhibited certain documents; Certified copy
of deposition of witness Baikunth Mishra of G.R. No. 3069/01
as Exhibit-A, Certified copy of deposition of Krishna Pd. Yadav
of G.R. No. 3069/01 as Exhibit-B, Certified copy of deposition
of Permanand Bharati of G.R. No. 3069/01 as Exhibit-C,
Certified copy of deposition of witness Sonu Chowdhary of
G.R. No. 3069/01 as Exhibit-D, Raiyati Khatiyan vide No.302
Village Agyarkunda, P.S. No.236, Nirsa Dhanbad as Exhibit-E,
Certified copy of sale deed no.7418 as Exhibit-F.
18. The learned trial court considered the evidences on record
and recorded its finding at Para-12 which read as under:
"12. Perused the case record and oral and documentary
evidence. I find that in this case, prosecution examined
altogether five witnesses including informant, I.O., Doctor.
Injury report has been proved. It is also apparent from the
evidence that earlier to this case, another case was also
instituted against the accused persons. Perused all the
documentary evidences proved by the parties. I find that in this
case, P.Ws.- 2 and 4 have supported the case of prosecution and
corroborated the version of informant, P.W.-3. P.W.-2 has
stated that on the date of occurrence, accused persons assaulted
the informant. P.W.4 also stated that he also saw that the
accused persons have assaulted the informant and the informant
sustained injuries. P.W.-2 stated that when the informant asked
the accused persons not to set up a cycle stand, on that, accused
persons assaulted Dhanesar. P.W.-3 (Informant) also stated
that accused persons were trying to set up a cycle stand on his
land and when he protested, accused persons assaulted him.
And he sustained injuries and went to government hospital for
treatment and this version is also corroborated by the doctor;
P.W.-1 who examined the informant and found several injuries
on his body. P.W.-5 is I.O who has stated about the place of
occurrence, regarding the re-statement of informant and
recording of statements of other witnesses. He also proved the
requisition, by which, he sent the informant for treatment.
Informant also proved written report. He also deposed that at
the time of occurrence, Habu Ghosh and Hitesh Patel were there
and they saw the occurrence. I find that prosecution has failed
to prove the charge u/s 147 IPC against the accused persons
beyond the shadows of reasonable doubt. PWs-2 and 4 did not
state about any weapon holding by accused persons.
Accordingly, the accused persons are hereby acquitted from the
charge u/s 147 IPC. So far, the other charges are concerned, I
find that prosecution has succeeded to prove the charges u/s 341,
323/149 IPC against all the accused persons. It is evident from
the record that on the date of occurrence i.e. 24.10.01, all
accused persons by forming unlawful assembly, assaulted the
informant and all the prosecution witnesses have supported the
case."
19. The learned appellate court discussed the evidences and
recorded its finding at Para-10 and 11 which read as under:
"10. From going through evidence on record, I find that
prosecution witnesses no.2 to 5 have supported the allegation as
alleged in the FIR by the informant. P.W.-1 Dr. Brajbhusan Pd.
Singh who examined the injured (PW-3) has also proved
injuries on the person of P.W.3 Dhanesar Saw which also
corroborates the prosecution version. Evidence of D.W.-1 alone
is not sufficient to discard entire prosecution evidence. Moreso,
he has stated at para 9 of his evidence that he has good relation
with Rinku Bharti (appellant). There are minor discrepancies in
the evidence of prosecution witnesses, but it is settled view of
law that minor discrepancies in the evidence of prosecution
witnesses is not fatal to the prosecution case.
11. In view of the evidence oral and documentary on record
and on its critical appraisal ld. Court below has rightly found
the appellants guilty for the offence u/s 341 & 323/ 149 IPC and
I see no reason to disagree with the finding arrived at by the ld.
Court below finding the appellants guilty. However, there is
nothing on record to show that the appellants have been
previously convicted. They are first offenders and the ld. Court
below while sentencing the appellants did not assign any cogent
reason for not awarding them benefit of Probation of Offenders
Act. Ld. Court below has definitely erred instead thereof.
Considering the nature of allegation and the appellants being
first offenders, they deserve benefit of section 4 of Probation of
Offender Act. Viewed thus, the sentence of the appellants
awarded by ld. court below is hereby modified and appellants
are ordered to be released on their furnishing probation bond of
Rs.3000/- with two sureties of the like amount each and to
appear and receive the sentence when called upon during the
period of one year and in the mean time they are directed to keep
the peace and to be of good behaviour."
20. This Court finds that P.W.-3, Informant has fully
supported his version stated in the F.I.R. and in course of the
occurrence, he sustained injuries on his eyes, chin and elbow
and P.W.-1, doctor who had examined the informant has
exhibited the injury report as Exhibit-1. P.W.-2 and P.W.-4 are
the eye witnesses to the occurrence and they have corroborated
the evidence of the informant. P.W.-5, the Investigating Officer
of the case has proved the place of occurrence and has also
corroborated the prosecution case.
21. This Court finds that the learned courts below have
carefully scrutinized the evidences of the prosecution witnesses
and have recorded concurrent findings of facts after properly
considering the evidences available on record and have found
sufficient evidence for conviction of the petitioners under
Sections 341 and 323/149 of the Indian Penal Code and have
passed well-reasoned judgments.
22. This Court is of the considered view that there is no scope
for re-appreciation of evidences in revisional jurisdiction. This
Court finds no illegality or perversity calling for interference in
the impugned judgments. Accordingly, the conviction of the
petitioners passed by the learned trial court and affirmed by the
learned appellate court is upheld and the present criminal
revision petition is hereby dismissed.
23. In view of the aforesaid facts, the petitioners are directed
to execute probation bond of Rs. 3,000/- with two sureties of the
like amount each for a period of one year within three months
from the date of receipt of this order by the learned trial court
and to appear and receive sentence when called upon during
such period and in the meantime, they are directed to keep
peace and be of good behaviour, if such bond has not been
executed so far pursuant to the impugned judgement.
24. Pending interlocutory application, if any, stands is
dismissed as not pressed.
25. Office is directed to send back the lower court records to
the court concerned.
26. Let a copy of this order be communicated to the learned
court below through FAX/e-mail.
(Anubha Rawat Choudhary, J.)
Saurav/
27.
