Agatha Surin vs The State Of Jharkhand
2021 Latest Caselaw 4512 Jhar

                                       1             Cr. Appeal (SJ). 1586 of 2003

               IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         Cr. Appeal (SJ) No.1586 of 2003

        (Against the Judgment of Conviction dated 28.10.2003 and order of
        sentence 29.10.2003 passed by learned Additional Sessions judge, FTC,
        Latehar, in Sessions Case No.373 of 1994.)

               Agatha Surin                            ...      Appellant
                                     Versus
               The State of Jharkhand                ...    Respondent
                                      ---

CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR

---

               For the Appellant          : Mr. Manoj Tondon, Advocate
               For the State              : Mrs. Anuradha Sahay, A.P.P.

5/01.12.2021        This appeal is preferred against the Judgment of Conviction

dated 28.10.2003 and order of sentence 29.10.2003 passed by learned Additional Sessions judge, FTC, Latehar, in Sessions Case No.373 of 1994, whereby the appellant accused has been convicted and sentenced to undergo rigorous imprisonment for five years under Sections 307/120-B of IPC and rigorous imprisonment for five years under Sections 3/5 of Explosive Substance Act.

2. The allegations against the appellant arose in the wake of the fardbeyan of Asha Joseph, recorded by Chandwa police in the District of Latehar (Jharkhand), stated that on 02.04.1993 at about 10.30 AM, she was returning from school to her home then at about 200 yards west from road near the house of one Keshwar Sao, two unknown persons aged about 20 to 25 years wearing full pants and shirts restrained her by standing before her and at that time one Chandra Kanti Devi, maid servant of the school was also accompanying the informant. It is further alleged that out of two unknown persons who tried to restrain her, the one wearing red shirt attempted to shot her by country made pistol, which did not fire and in that course, some scuffle took place with her and then on his instruction, his associate threw a bomb on the informant which exploded and caused injury in the leg of the informant and when the informant raised alarm, people gathered and both the persons ran away.

3. The informant disclosed the reason for the incident stating in her concluding paragraph of her Fardbayan that before this incident, 2 Cr. Appeal (SJ). 1586 of 2003

the accused-appellant Agatha Soren had threatened several times to her as the accused -appellant had been in the litigating terms with the informant for the post of principal and the informant was the principal after winning the case from High Court. The informant further alleged that the accused- appellant had stated to a senior teacher Noyla Barla that his goons were present everywhere and at his instance the culprits had committed this incident by exploding ''bomb' 'The informant further alleged that the accused- appellant Agatha Soren had warned to the maid of the school as to why she moved with headmistress as her Bodyguard and threatened her not to accompany the informant. It has further been stated by the informant that on earlier occasion on the day of Janmashtami the offender had entered into the house assaulted her by knife.

4. On the basis of the aforesaid fardbeyan of the informant Asha Joseph of village Kusum Toli, P.S. Chandwa, dist- Lateher, Chandwa, P.S. Case No.22 of 1993 under Section 324 and 307 of the IPC and under Sections 3/4 of the Explosive Substance Act was registered. After the investigation, the charge-sheet under Section 324, 307, 120-B of IPC and under Sections 3 / 5 of the Explosive Substance Act was submitted against the accused-appellant and after taking cognizance, the case was committed to the Court of Sessions, which is under challenge in the form of this appeal.

5. Heard Mr. Manoj Tondon, learned defence counsel appearing on behalf of the appellant and Mrs. Anuradha Sahay, APP appearing on behalf of the State.

Arguments on behalf of the learned defence counsel.

6. Assailing the impugned judgment of conviction and order of sentence, learned defence counsel contended at the outset that the I.O. in this case has not been examined and therefore the manner, mode and other incriminating evidences have not been proved in order to substantiate the allegations made in the FIR and this is a clear cut case where non-examination of the I.O. for such grievous offence, in which, this appellant has been convicted under Section 307 & 120-B of the IPC and Sections 3/5 of the Explosive Substance 3 Cr. Appeal (SJ). 1586 of 2003

Act is fatal to the prosecution, but the learned trial court without appreciating and going into the details of the evidences and without depreciating the non-examination of the I.O. in this case, sweepingly held the appellant guilty for the offences punishable under sections 307 & 120-B of the IPC and Sections 3/5 of the Explosive Substance Act. It has been pointed out that the criminal conspiracy under Section 120-B had not been discussed by the learned court below in order to prove the case and thus the impugned Judgment of conviction and order of sentence is bad in law as well as in facts.

Arguments of APP appearing on behalf of the State

7. On the other hand the learned APP appearing on behalf of the State opposed the contentions raised on behalf of the defence counsel and pointed out that the deposition of PW-3 informant- victim has supported the case of the prosecution and therefore there is no illegality in the impugned judgment of conviction and order of sentence to interfere with and this appeal has no merit and fit to be dismissed.

FINDINGS

8. Having heard the parties perused the record of the case including the lower court records and other materials available on the record.

9. The informant injured Asha Joseph Minz (PW3) admitted categorically in the FIR itself and further in her testimonies before the court that there had been dispute between her and accused with respect to the post of principal in Girl High School Chandwa, in which, she (accused-appellant) was also Asst. teacher and for this there had been litigation between them in the High court instituted by the this informant. Thus admittedly her testimony is inimical evidence and under such circumstances Hon'ble Supreme Court has repeatedly held that the testimony of the witnesses cannot be rejected merely on the point of inimical background. But since the reliability of inimical witness is tainted by bias and interested witnesses, their testimony is warily evaluated. Their testimony is corroborated with evidence, judged with great caution and diligence 4 Cr. Appeal (SJ). 1586 of 2003

and in absence of reassuring factors, the evidence is eschewed. In a very lucid language the Hon'ble Supreme court has observed as under in (1973) 2 SCC 583 (Akalu Ahir & others Versus Ramdeo Ram) "Enmity as usual is a double edged weapon, providing motive both for the offence as well for false implication. The evidence in such case, has therefore, to be scrutinized with care so that neither the guilty party wrongly escapes on the plea of enmity, nor an innocent person gets wrongly convicted on that basis"

10. In view of the above well settled law on the point of enmity as prevailing admittedly in the present case, this Court proceeds to appreciate the evidences with due caution and diligence in the following paragraphs.

11. The charge levelled against this accused appellant was that she had sent two offenders for committing the murder of the informant and a bomb was exploded by these offenders, by which, the informant PW - 3 got injured by sustaining injuries. In support of the aforesaid acquisitions, the prosecution has examined altogether six witnesses.

12. PW - 1 Bipin Tiwari and PW - 2 Chandra Kanti Devi have been declared hostile. And no material particular has come out in their depositions to support the case of the prosecution.

13. It is found that this case was instituted by P.W.3 informant victim, in which, the case of prosecution as set out by PW - 3 Asha Joseph Minz (informant-victim) is that while she was coming back from the school on 2.4.1993 at 10.30 am in the morning along with the maid Chandrakanti Devi (PW2) of the school, she was assaulted by the two unknown offenders lashed with weapons including pistol and bomb and out of the said two offenders, one of them tried to shoot her by gun but it did not fire and another offender exploded the bomb upon her by which she got injured. The said informant further deposed that it was the accused-appellant who conspired with the offenders to kill her as the accused -appellant wanted to become the principal of the Girl High School Chandwa. PW3 further 5 Cr. Appeal (SJ). 1586 of 2003

deposed candidly that she had instituted a case in the High Court also against this appellant for the post of the principal of the School. She further deposed that she had been threatened in the past also by the accused appellant through one Noyla Barla who was also senior teacher in the school and also through the maid Chanderkanti Devi and some persons had also entered her house and assaulted her by dagger and Bhujali on earlier occasion on the day of Janmastmi. But neither any slightest evidence on the accusations of earlier threatening or assault by dagger and Bhujali on the day of Janmastmi have been brought on record to substantiate her version. Further as per her version there was one another eye witness, namely, the maid Chanderkanti Devi who was said to have been accompanying the informant PW3 at the time of alleged occurrence but she has been declared hostile as examined as PW 2 and as such the deposition of this inimical witness remains uncorroborated. Further the informant said that she was threatened by appellant through this maid Chanderkanta Devi on earlier occasion but when she was examined as PW 2, she turned hostile. Another named witness in her deposition was Noyla Barla who had not been examined by the prosecution and such the entire charges remains uncorroborated which was very much needed under the present facts and circumstances of the case when the entire deposition of PW 3 is based on enmity emanating from the dispute for the post of holding Headmistress (admitted fact) between the two women teachers: one is informant and another is the appellant. Hence the testimony of PW3 is sweeping allegations of hurling bomb in order to kill the informant without any evidence and therefore cannot be relied upon in view of such glaring enmity between both the informant and the appellant and in absence of any convincing evidence.

14. Thus from the testimony of this witness PW - 3, it appears that this criminal case has been instituted due to clear cut enmity prevailing between the parties for the post of Headmistress in the Girls High School Chandwa. Further PW 3 had stated categorically that only on the basis of doubt, this appellant has been implicated in 6 Cr. Appeal (SJ). 1586 of 2003

this case as is evident from his Fardbeyan as well as from her testimony and thus it is found that a false case has been instituted by the informant PW - 3 in order to criminalize the civil matter for holding the post of Principal in the school and no criminal offence is made out as emanating from the testimony of PW - 3 itself. Consequently it is well founded that she is highly interested witness and her statement is not trustworthy at all to bank upon in absence of any corroboration.

Further the injury, which is alleged to have been inflicted upon her, is superficial in nature, as evident from EXT.3 which has been proved by the Dr. Sidhi Nath, who has been examined as PW - 6 and stated that there was a scratch, which was superficial in nature and therefore the nature of the injury did not support the case of the prosecution at all. PW - 6 Dr. Siddh Nath in his cross-examination, stated that there was a scratch on the body of the injured informant Asha Joseph Minz, which is said to have been superficial in nature and therefore in absence of any glaring evidences, the nature, extent and place of the injury has not corroborated the offence punishable under Section 307 of IPC, as the injury neither indicates the intention, knowledge, nor from the nature of injury, nor from the place where the injury has been caused nor from anything it is inferred about the nature of means used in causing the injury and therefore the entire prosecution case is not supported by the deposition of this witness PW - 6.

PW - 4 Ganesh Dubey is a formal witness, who has identified the sanction report of the Deputy Commissioner, Palamau, which has been marked as Ext. - 1. In the cross-examination, this witness has stated that he does not know as to whether the Deputy Commissioner granted sanction or not, nor he could say about the initial (signature) on the report and the report was not prepared before him and therefore, his deposition remains unproved and becomes redundant. PW - 5 Md. Mozabil is another formal witness, who has identified the handwriting of the fardbeyan and the formal FIR, which has been marked as Ext. - 2 and 2/1 and 2/2. This 7 Cr. Appeal (SJ). 1586 of 2003

witness has categorically stated that he did not identify the hand writing the S.C. Jha, who is said to have written the fardbeyan and the formal FIR was drawn by him, nor it was prepared before him.

Furthermore, the I.O. in this case has not been examined and the non-examination of the I.O. has seriously caused prejudice to the accused appellant, on several points including the conspiracy angle, the manner, mode and any other incriminating substances, which could have been collected during the course of investigation against the appellant. Thus the non- examination of the Investigating Officer is fatal for the prosecution as the accused- appellant was deprived of the opportunity to effectively cross-examine the witnesses examined on behalf of the prosecution and to bring out contradictions in their statements. And as such the appellant had suffered serious prejudice in the present case when the sole witness P.W.3 is highly interested witness.

Further, It's case where bomb is said to have been exploded by two offenders alleged to have been sent by the accused-appellant under a conspiracy. But neither the said offenders have been apprehended nor charge-sheeted nor any articles related bomb have seized and admitted into evidence and thus the conviction under sections 3/5 of Explosive Substance Act is not proved at all. The learned trial court in absence of any evidence found the guilt of the accused appellant for the offences punishable under section 307/120-B of IPC and sections 3/5 of Explosive Substance Act. It is manifest from the impugned judgment, that the learned trial court has neither discussed the evidences in order to constitute the offence, either under Sections 3 and 5 of the Explosive Substance Act nor under section 307/120-B of IPC. Not a single material is said to have been recovered as explosive substance from the place of occurrence, nor any seizure list has been prepared nor it has been brought into the evidence to appreciate the offences punishable under Sections 3 and 5 of the Explosive Substance Act.

Further, it is a case, in which, the learned trial court has convicted the accused appellant for the offences punishable under 8 Cr. Appeal (SJ). 1586 of 2003

Section 307 /120-B of IPC. There is no iota of evidence to constitute the criminal conspiracy with the appellant with other two persons, who are said to have been sent by the accused appellant to commit the murder of the informant. There is no circumstance under which it is found that the appellant has made an agreement with any person to commit the crime as charged. Neither any trace of illegal agreement with anybody or intention or involvement of accused is substantiated. There is no discovery of evidence with respect to the criminal conspiracy and since this accused appellant has been convicted with the aid of Section 120-B of the IPC therefore, it was the legal requirement for the prosecution to establish the chain of circumstances including the criminal conspiracy, the meeting of mind with other persons with whom the criminal conspiracy was formulated and as such the prosecution has hopelessly failed to establish criminal conspiracy when the informant has been charged that he was mastermind for creating criminal conspiracy within the meaning of Section 120-B of the IPC and she had committed the alleged crime through the two criminals who were alleged to have committed the offence at the place of occurrence but none of the two has ever been traced out, nor they have been prosecuted nor any fact to conspire with the appellant has come in light to fortify the case of the prosecution and therefore it is case of virtually no evidence and as such there is no material to support the case of the prosecution.

A defence has also been taken on behalf the accused appellant about her false implication in this case when the informant PW 3 has admitted this fact in her testimony that she had married to one Ganpati Bhagat knowing fully well that the said Ganapati Bhagat was already married, thereupon the first wife had instituted one case against the informant PW3 and therefore possibility for committing the crime is not crystallised against the accused-appellant. The accused-appellant has also brought into evidence Ext.-X in order to establish the habit of false implication of the informant.

15. In this view of the matter, it appears that the finding of the learned trial court is totally bad in law in absence of any cogent 9 Cr. Appeal (SJ). 1586 of 2003

evidence on record and therefore the impugned judgment of Conviction dated 28.10.2003 and order of sentence 29.10.2003 passed by the learned Additional Sessions judge, FTC, Latehar, in Sessions Case No.373 of 1994, under which the accused-appellant has been convicted and sentenced for the offences punishable under Sections 307/120-B of IPC and Sections 3/5 of Explosive Substance Act, is set-aside.

16. As such, this Criminal is appeal allowed.

17. The appellant above named is on bail and therefore, she is discharged from the liabilities of bail bond.

18. Let the Lower Court Record be sent back forthwith to the concerned court below.

(Navneet Kumar, J.)

Jharkhand High Court, Ranchi, Dated the 01.12.2021/NAFR R.Kumar/-