Jharkhand High Court
Manoj Bhagar @ Manoj Bhagat vs The State Of Jharkhand on 2 December, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 990 of 2012
Manoj Bhagar @ Manoj Bhagat, son of Late Jagdish Bhagat,
Resident of Village- Khesar, P.O. and P.S.- Belhar,
District- Banka (Bihar) ... ... Petitioner
-Versus-
1. The State of Jharkhand
2. Bishnudeo Bhagat, son of Late Mahadeo Bhagat,
resident of Birsanagar, 1-B, Loyola B.Ed. College Road,
Near Shiv Mandir, P.O. and P.S. Birsanagar, Town-
Jamshedpur, District- Singhbhum East ... ... Opp. Parties
With
Cr. Rev. No. 1064 of 2012
1. Tinku Bhagat @ Mitesh Kr. Bhagat
2. Amit Bhagat
Both sons of Manoj Bhagat
Residents of Village- Khesar, P.O. and P.S. Belhar,
District- Banka (Bihar) ... ... Petitioners
-Versus-
1. The State of Jharkhand
2. Bishnudeo Bhagat, son of Late Mahadeo Bhagat,
resident of Birsanagar, 1-B, Loyola B.Ed. College Road,
near Shiv Mandir, P.O. and P.S.- Birsanagar, Town-
Jamshedpur, District- Singhbhum East ... ... Opp. Parties
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Petitioners : Mrs. Ritu Kumar, Advocate
Mr. D.K. Karmakar, Advocate
For the State : Mr. Manoj Kr. Mishra, A.P.P.
For the O.P. No.2 : Ms. Alka Kumari, Advocate
---
Reserved on 02.09.2021 Pronounced on 02.12.2021
1. Heard Mrs. Ritu Kumar alongwith Mr. D.K. Karmakar,
the learned counsel appearing on behalf of the petitioners in
both the cases.
2. Heard Ms. Alka Kumari, the learned counsel appearing
on behalf of the Opposite Party No.2 in both the cases.
3. Heard Mr. Manoj Kumar Mishra, the learned A.P.P.
appearing on behalf of the Opposite Party-State.
4. Both criminal revision applications are directed against
the Judgment dated 24.09.2012 passed by the learned Addl.
Sessions Judge-III, East Singhbhum, Jamshedpur in Criminal
Appeal No. 89/2011 whereby and whereunder the learned
appellate court has set aside the Judgment of acquittal dated
03.05.2011 passed by the learned Sub-Divisional Judicial
Magistrate, Jamshedpur in C-1 Case No. 490 of 2007 / T.R. No.
909 of 2011 and convicted the petitioners under Section 384/34
of the Indian Penal Code and sentenced them to undergo
Simple Imprisonment for one year and allowed the criminal
appeal preferred by the Complainant.
Arguments of the petitioners
5. Learned counsel for the petitioners submitted that the
learned trial court had acquitted all the petitioners by a well-
reasoned judgment, but by the impugned judgment, the
learned appellate court has set-aside the judgment of acquittal
and convicted all the petitioners under Section 384 /34 of the
Indian Penal Code.
6. She further submitted that the place of occurrence was
within the wall of the premises of the house of the
Complainant. She submitted that the witnesses, who deposed
in favour of the Complainant, particularly C.W.-2, who is said
to be the neighbour of the Complainant and C.W.-4, who is a
labourer doing work in the house of the complainant appear to
be tutored witnesses. She submitted that the neighbour (C.W-2)
could not have seen the occurrence as the incident had taken
place within the premises, and so far as C.W.-4, the labourer is
concerned, he has disclosed the name of the accused persons,
but being a labourer, he could not have known the names of the
accused persons. He has also disclosed the name of the mother
of the Complainant. She submitted that this indicates that the
witnesses were tutored.
7. Learned counsel submitted that the reasoning which has
been given by the learned trial court is certainly one of the
plausible reasons and once there was a judgment of acquittal,
learned appellate court should have been very cautious in
interfering with the judgment of acquittal as no perversity, as
such, reflects from the judgment passed by the learned trial
court, nor any perversity has been recorded by the learned
appellate court. Learned counsel submitted that the learned
appellate court has failed to exercise its jurisdiction properly
while convicting the petitioners and accordingly, the impugned
judgment passed by the learned appellate court calls for
interference in revisional jurisdiction in order to meet the ends
of justice.
Arguments of the opposite parties
8. Learned counsel appearing on behalf of the private
opposite party in both the cases opposed the prayer and
submitted that the judgment passed by the learned trial court
was perverse as the learned trial court had rejected the
evidence of the witnesses by indicating that they are chance
witnesses, although C.W.-2 was the neighbour of the
complainant party and C.W.-4 was a labourer who was
working in the house of the Complainant. She submitted that
the basic ingredients of the offence under Section 384/34 of
Indian Penal Code are present in the present case and have
been duly proved by the prosecution witnesses, but the learned
trial court had wrongly acquitted the petitioners.
9. She further submitted that the petitioner-Manoj Bhagat
was convicted for the murder of the mother of the Complainant
and when he was released from jail, he came to the house of the
Complainant alongwith other accused persons and committed
the occurrence. She submitted that an amount of rupees three
lacs was demanded from the Complainant and out of which,
Rs.10,000/- was immediately paid to him. She also submitted
that learned appellate court has considered the reasoning of the
learned trial court and has recorded a finding that C.W.-2 and
C.W.-4 were not chance witnesses and there is consistency in
their testimonies. She submitted that the reason given by the
learned trial court to acquit the petitioners was itself perverse,
which was interfered by learned appellate court and
accordingly, there is no illegality or perversity in the impugned
judgment. She also submitted that so far as the argument in
connection with C.W.-4 is concerned, no question was put from
the side of the defence regarding the allegation that he is a
tutored witness as to the source by which he could know the
names of the accused persons as well as the name of the mother
of the Complainant. She submitted that the arguments
advanced by the learned counsel for the petitioners with regard
to the evidence of C.W.-4 are not borne from the record, in view
of the fact that C.W.-4 was not cross-examined on the said
point. She submitted that the incident has been witnessed by
two independent witnesses, one is neighbour and other is the
labourer i.e. C.W.-2 and C.W.-4 and their testimonies have been
found to be consistent and accordingly, the case is proved
against the petitioners beyond all reasonable doubts. Learned
A.P.P. appearing on behalf the State supported the arguments
advanced on behalf of the private opposite party.
Rejoinder arguments on behalf of the petitioners
10. In response, learned counsel for the petitioners submitted
that the petitioner-Manoj Bhagat was convicted much prior to
the date of incident and accordingly, it cannot be said that the
incident had any relation or had any connection with his
conviction in the case of murder of the mother of the
Complainant.
Findings of this court.
11. The present case arises out of Complaint Case No.
490/2007. The case of the Complainant is that on 06.03.2007,
when he was engaged in the construction of his house, the
petitioners and one Deban Panjiara armed with deadly
weapons came there and put him under threat to kill him and
demanded three lakh rupees stating that the petitioner-Manoj
Bhagat was convicted to undergo imprisonment for life for
murder of the mother of the Complainant and Manoj Bhagat
had to spend huge amount in fighting the case. At that time, the
Complainant paid Rs.10,000/- to the petitioners with promise
to pay the rest amount of the demanded money at later stage. It
was further stated that on the date of occurrence, Manoj Bhagat
was on bail granted by the Hon'ble Patna High Court.
12. After registration, the file was transferred to the court of
the learned S.D.J.M., Jameshedpur for inquiry and disposal.
After inquiry, cognizance of the offence was taken and the
petitioners and Deban Panjiara were summoned to face the
trial. Deban Panjiara was declared absconder on 24.11.2008 and
the charge under Section 384/34 of the Indian Penal Code was
framed against the petitioners which were read over and
explained to them in Hindi to which they pleaded not guilty
and claimed to be tried.
13. In course of trial, the Complainant examined altogether
four witnesses in support of his case.
14. After closure of the prosecution evidence, the petitioners
were examined under Section 313 of the Cr.P.C. wherein they
denied the incriminating evidences put to them and claimed to
be innocent. The petitioners did not examine any witness in
their defence.
15. The learned trial court considered the materials on record
and recorded the admitted facts of the case that there is
previous enmity between the parties and civil suits are pending
between the parties at Civil Court, Banka and the accused
Manoj Bhagat is the cousin of the Complainant. The learned
trial court further recorded that it is very surprising that the
Complainant is a party in civil suit in Banka and he was not
fearful to litigate the suit at Banka, but he became fearful at
Jamshedpur inside his house. The story of the Complainant was
held to be unbelievable. The learned trial court also recorded
that C.W.-1 stated that he was working in front of B.Ed.
College, Birsanagar and the place of occurrence is inside the
boundary. C.W.-2 stated that he saw the occurrence while he
was going to market and C.W.-3 is the Complainant himself
and C.W.-4 stated that when he came to Birsanagar to take his
lunch, he saw the occurrence. Meaning thereby except the
Complainant, all prosecution witnesses are chance witnesses.
16. The learned trial court further recorded that the
Complainant exhibited certified copy of the Judgment passed
by A.D.J.-IVth, Banka as Exhibit-1 which was pronounced on
14.07.2004 and exhibited the Complaint Petition as Exhibit-2
and the date of occurrence is 06.03.2007. The enmity between
the parties is an accepted fact. The allegation against the
accused persons is that they came from Banka to Tata at the
house of the Complainant in an auto rickshaw, committed the
offence and fled away and the occurrence was seen only by the
chance witnesses and the P.O. was situated inside a boundary
wall. C.W.-1 stated that at the time of occurrence, he alongwith
Mritunjay was present there and except them no else outsider
was present. C.W.-2 stated that the Complainant paid
Rs.10,000/- to the accused persons which was kept for cement,
but it has not been explained by the Complainant as to how
C.W.-2 came to know that the said amount was kept for
purchasing cement. C.W.-3 is the Complainant himself and he
stated that the money was kept for purchasing cement.
Meaning that the chance witnesses knew the entire facts of the
case which was not part of the transaction of the ransom
amount. On the basis of the aforesaid findings, the learned trial
court acquitted the petitioners from the charge under Section
384/34 of the Indian Penal Code.
17. Thus, the learned trial court was of the view that except
the Complainant, all other witnesses were chance witnesses
and proceeded accordingly by stating that the evidence of the
chance witnesses require cautious and close scrutiny and
recorded as under: -
" CW-1 Niranjan Kumahar stated that at the time of
occurrence he alongwith Mirtunjay were present there. Except
them no else outsider was present. CW- 2 Bishwanath
Kumahar has stated in his examination in-chief that the
complainant paid Rs. 10,000/- to the accused persons which
was kept for cement. It has not been explained by the
complainant how this witness was knowing that the said
amount was came for purchase of cement. CW-3 is the
complainant himself has stated that this money was kept for
purchase of cement. Meaning that the chance witnesses were
knowing the entire facts of the case which was not part of the
transaction of ransome amount. The establish principle of law is
that suspicion even of high degree does not take place of legal
proof. In the case of Padla Veera Reddy- Vrs- State of Andhra
Pradesh AIR 1990 S.C. 79 it was held "where the case was one
of circumstantial evidence, mere suspicion, however strong it
may be, cannot be said to have established the guilt of the
accused decisively since the suspicion cannot take the place of
legal proof.
Having regard to the facts and circumstances discussed
above all the accused persons named above are acquitted and
discharged from their liabilities of bail bonds."
18. Being aggrieved by and dissatisfied with the judgment of
acquittal passed by the learned trial court, the Complainant
preferred a criminal appeal under Section 372 of Cr.P.C. before
the learned appellate court below in which the learned
appellate court considered the materials on record and
recorded that from perusal of the testimony of the witnesses, it
is crystal clear that all the witnesses are not chance witnesses,
rather Bishwanath (C.W.-2) is a neighbour of the Complainant
who has seen the occurrence while he was going to market and
he has not stated that he saw the arrival of the accused persons
in the house of the Complainant, but has seen the snatching of
money from the Complainant and thus, he cannot be said to be
a chance witness. Similarly, Niranjan Kumar (C.W.-1) was
present there as stated by other witnesses and he proved the
charge against the accused persons beyond all reasonable
doubt. Bishundeo (C.W.-3) has categorically stated the entire
facts of the case and delivery of money to the accused persons.
C.W.-4 is a labourer who was doing work in the house of the
Complainant and he cannot be said to be an interested witness
or a chance witness. All the witnesses have supported the
version without any discrepancy and their testimony is
consistent. The learned appellate court further recorded that
Bishwanath was the neighbour who was going to market and
saw the occurrence. Similarly, C.W.-4 is a labourer who was
working there can also not be said to be a chance witness and
Niranjan also saw the occurrence and he is also not a chance
witness.
19. The learned appellate court set aside the Judgment of
acquittal passed by the learned trial court and held that the
petitioners had common intention in demanding rangdari from
the Complainant, which was paid to them by the Complainant.
The learned appellate court convicted the petitioners under
Section 384/34 of the Indian Penal Code and sentenced them to
undergo Simple Imprisonment for one year and allowed the
criminal appeal.
20. The learned appellate court examined the materials on
record and also examined as to whether the witnesses
examined from the side of the prosecution can be said to be
chance witnesses and categorically held that C.W-1, 2 and 4
were not chance witnesses. C.W-2, the neighbour was not a
chance witness; Similarly C.W-1 was present there as stated by
other witnesses; C.W-3 (complainant) has categorically stated
entire facts of the case and about the delivery of money to the
accused and CW- 4 is labourer who was doing work in the
house of complainant and he could not be said to be an
interested witness or a chance witness. The findings recorded in
Paragraph-11 of the appellate court's judgment is quoted as
under:
"11. From the perusal of the testimony of the witnesses it is
crystal clear that all the witnesses are not chance witnesses
rather Biswanath is neighbor of complainant who has seen the
occurrence while he was going to market and he has not stated
that he saw the arrival of the accused persons in the house of
Bisundeo but has seen the snatching of money from
complainant Bisundeo. Thus he could not be said to be a chance
witness. Similarly Niranjan Kumar has also proved the charge
u/s 384/34 of the IPC against all the accused persons beyond all
reasonable doubt and he was present there as stated by other
witnesses. Bisundeo has categorically stated entire facts of the
case and delivary of money to the accused. CW- 4 is labourer
who was doing work in the house of complainant Bisundeo
Bhagat and he could not be said to be an interested witness or a
chance witness. All these witnesses have supported the version
without any discrepancies. Their testimony is consistent. On
behalf of learned counsel for the appellant rulings have been
filed which are AIR 2005 (SC) page 1064, and AIR 2004 (SC)
page 3305 to 3309 and on perusal of the citation above
mentioned it transpires that the facts and circumstances of the
present case deals with the facts and circumstances of the
rulings cited above. In AIR 2004 page 3305 the Hon'ble Court
has dealt with the evidence Act (1 of 1872) Section 3 - Chance
Witness- Reliability- Murder case- incident taking place on
road- Evidence of independent witnesses can not be brushed
aside or viewed with suspicion on ground that they are mere
'chance witnesses'. In the present case also Biswanth was the
neighbor who was going to market and saw the occurrence.
Similarly, CW- 4 is labourer who was working there can also
not to be said chance witness. Niranjan also saw the occurrence
he is also not chance witness."
21. C.W.-3 is the Complainant himself. He deposed that the
occurrence is of 06.03.2007 at about 02.00 P.M. When he was
engaged in construction work of his house, four persons came
there in a tempo and surrounded him. Manoj and Tinku were
having pistol in their hands and the other persons were holding
knife. They demanded Rs.3,00,000/- from him. His mother was
murdered 20 years ago in which Manoj Bhagat was convicted
by Banka court and after getting bail, he came to him and said
that he has spent Rs.3,00,000/- in fighting the case. He handed
over Rs.10,000/- to Manoj (accused) which he had kept for
purchasing cement and Manoj said that the Complainant will
have to give the rest amount, otherwise he would be killed. At
that time, Niranjan (C.W- 1) and Pradip (C.W-4) were present
and Bishwanath (C.W-2) also saw the occurrence. In his cross-
examination, he admitted that Manoj Bhagat is his cousin and
the accused persons had filed Title Suit No.3/2005 in Banka
which has been dismissed and a proceeding under Section 144
of Cr.P.C. was also initiated between them. He could not say
the tempo number. He further admitted that Bishwanath
Kumhar (C.W-2) is his neighbour. On recall, he exhibited the
Complaint Petition as Exhibit-2.
22. C.W.-1 is Niranjan Kumar who deposed that the
occurrence is of 06.03.2007 at about 02.00 P.M. and he was
getting some work done in front of Birsanagar, B.Ed. College.
Four persons came and surrounded the Complainant. Manoj
and Tinku were holding pistols and the rest two persons were
having knife. They said that he had spent Rs.3,00,000/- in the
case of murder and demanded the amount from the
Complainant and threatened to kill him, if he would not pay
the demanded amount. Manoj pointed pistol on the
Complainant. Thereafter, the Complainant went to the upper
floor and brought and handed over Rs.10,000/- and later, the
Complainant told him that the money was kept for purchasing
cement. He also deposed that the accused persons had asked
the Complainant to pay the rest amount, otherwise they would
murder him. Lastly, he stated that he had seen the occurrence
with his own eyes. In his cross-examination, he admitted that
he and Mritunjay were present and there was no outsider and
the place of occurrence is inside the boundary. The accused
persons had come in a tempo, but he cannot say the number of
the tempo. He did not try to save the Complainant because the
accused persons were having weapons. He further admitted
that the names of the accused persons were told to him by the
Complainant. He stated that the accused persons pointed pistol
and demanded Rs.3,00,000/- from the Complainant which he
heard and saw also.
23. C.W.-2 is Bishwanath Kumhar who is the neighbour of
the Complainant and he stated that he saw the occurrence
while he was going to market. The evidence of C.W.-2 clearly
mentions that four persons had come to the house of the
Complainant and they demanded Rs. 3 lakhs on the ground
that they had incurred an expenditure of Rs. 3 lakhs while
defending themselves in the case of murder of the mother of
the Complainant. He has also stated that two persons were
holding revolver and two were holding knife. He has also
stated that the accused persons continued to abuse the
Complainant and the Complainant gave Rs.10,000/- to the
petitioners and the Complainant told this witness that he paid
Rs. 10,000/- to save his life which he had kept for cement. He
has further stated that after the incident, he went to the market.
He identified one of the accused who was physically present in
the court and also claimed that he could identify rest of the
accused persons. He has been cross-examined from the side of
the defence and in his cross-examination, he stated that he did
not know the relationship between the accused and the
Complainant. He has stated that he did not see the accused
while arriving, but had seen them while snatching the money.
There is neither any cross-examination of this witness on the
point as to whether he was a relation of the Complainant, nor
there is any cross-examination to the effect as to whether he
had any inimical relationship with the accused persons, nor
there is any cross-examination to the effect as to how he could
see the occurrence in spite of boundary wall. However, in his
cross-examination, he has clearly stated that he had seen the
accused persons snatching the money.
24. So far as C.W. 4 is concerned, he has also fully supported
the case of the Complainant. He has stated that he was engaged
in construction work with bricks in the house of the
Complainant and he had taken out his tiffin during the lunch
time and he saw that four persons came to the place of
occurrence and told the Complainant that three lakhs rupees
was spent by them in the case of murder of his mother and
demanded money. Manoj Bhagat had put pistol and when the
accused persons were forcibly trying to take away the
Complainant, the Complainant brought Rs. 10,000/- and
handed it over to them and the petitioner-Manoj Bhagat had
threatened him to pay rest of the money, otherwise he would
kill him. He has also claimed that he could identify the accused
persons. He clearly stated in cross-examination that he is not a
relative of the Complainant and that he did not note down the
tempo number in which the accused persons had come.
25. This Court finds that there is neither any cross
examination of C.Ws.-1, 2 and 4 on the point whether they are
relation or a friend of the Complainant, nor there is any cross
examination on the point as to whether there were any inimical
terms between these witness and any of the accused persons.
These witnesses have duly explained the circumstances under
which they were present near the place of occurrence and are
eye witnesses of the occurrence. These witnesses remained
consistent throughout their evidence and there is nothing on
record to disbelieve the evidence of these witnesses.
26. This Court finds that C.W.-2 in his examination-in-chief,
has clearly stated that the Complainant told him that the money
which he had given to the accused persons was kept by him for
buying cement. This Court also finds that there is no cross-
examination of C.W.-2 on the point as to how he could see the
occurrence in spite of boundary wall and there is no cross-
examination on the point of dimension of the boundary i.e.
height, etc. Further, it is not in dispute that C.W.-2 is the
neighbour of the Complainant. In the judgement passed by the
Hon'ble Supreme Court reported in (2019) 7 SCC 476 (Ramesh
Dasu Chauhan and Another Vs. State of Maharashtra) where
one of the witnesses was a resident of the same building
complex, was held to a natural witness and not a chance
witness. In the present case, C.W.-2 being the neighbour of the
Complainant cannot be said to be a chance witness, rather
C.W.-2 was a natural witness who has explained as to how and
why he could see the occurrence. It is further apparent from the
evidence on record that C.W.-2 is neither a relative of the
Complainant, nor he has any inimical terms with that of the
accused and there is no cross-examination of this witness on
such point. Thus, the very treatment of C.W.-2 as a chance
witness by the learned trial court is perverse. This witness
remained consistent throughout his evidence and there is
nothing on record to disbelieve the evidence of this witness.
Thus, the learned appellate court has rightly held that C.W-2,
being a neighbour, is not a chance witness.
27. The learned trial court, while considering the evidences,
recorded that the place of occurrence is inside a boundary wall
and referred to the judgement passed by the Hon'ble Supreme
Court reported in AIR 1976 SC 2032 [Bahal Singh v. State of
Haryana, (1976) 3 SCC 564] and recorded that, if by coincidence
or chance, a person happens to be at the place of occurrence at
the time it is taking place, he is called a chance witness. And if
such a person happens to be a relative or friend of the victim or
inimically deposed towards the accused, then his being a
chance witness is viewed with suspicion. Such a piece of
evidence is not necessarily incredible or unbelievable, but does
require cautions and close scrutiny.
28. The learned appellate court referred to the judgement
passed by the Hon'ble Supreme Court in the case of "State of
A.P. v. K. Srinivasulu Reddy and Another" reported in (2003)
12 SCC 660 and held that the learned trial court wrongly treated
the witnesses as chance witness, particularly C.W-2 (the
neighbour of the Complainant) and considered the evidences
and convicted the petitioners finding that the evidences were
consistent. In the judgement passed by the Hon'ble Supreme
Court in the case of "State of A.P. v. K. Srinivasulu Reddy and
Another" reported in (2003) 12 SCC 660, while considering the
evidence of the witnesses who were branded as "chance
witnesses" in the trial, it has been held in Para-13 as under:-
"13. Coming to the plea of the accused that PWs 4 and 9 were
"chance witnesses" who have not explained how they happened
to be at the alleged place of occurrence, it has to be noted that
the said witnesses were independent witnesses. There was not
even a suggestion to the witnesses that they had any animosity
towards any of the accused. In a murder trial by describing the
independent witnesses as "chance witnesses" it cannot be
implied thereby that their evidence is suspicious and their
presence at the scene doubtful. Murders are not committed with
previous notice to witnesses; soliciting their presence. If murder
is committed in a dwelling house, the inmates of the house are
natural witnesses. If murder is committed in a street, only
passers-by will be witnesses. Their evidence cannot be brushed
aside or viewed with suspicion on the ground that they are mere
"chance witnesses". The expression "chance witness" is
borrowed from countries where every man's home is considered
his castle and everyone must have an explanation for his
presence elsewhere or in another man's castle. It is quite
unsuitable an expression in a country where people are less
formal and more casual, at any rate in the matter explaining
their presence."
29. In a recent judgement passed by the Hon'ble Supreme
court in the case of "Ramesh Dasu Chauhan and Another v.
State of Maharashtra" reported in (2019) 7 SCC 476, it has been
held in Para-32 of the judgment that a person living in the same
complex is a natural witness and not a chance witness and his
evidence was found to be trustworthy for more than one
reason. Para-32 of the said judgement is quoted as under: -
"32. There are more than one reasons to trust PW 9 (Raisaheb
Chourasyia). Firstly, there is no suggestion or even a whisper of
any animosity between Raisaheb Chourasyia and the
appellants. He had no motive to falsely implicate the appellants.
Secondly, the presence of the appellants coming on red-coloured
motorcycle and their entry to Rajnigandha Apartments, as seen
by the witness, has not been expressly denied in his cross-
examination. Thirdly, PW 9 being resident of the same
complex, is a natural and not a "chance" witness. Fourthly,
Raisaheb Chourasiya's version has been fully corroborated by
the other prosecution witnesses like Rani Trivedi (PW 1),
Baliram Fulari (PW 3) and Purnima Trivedi (PW 4). Fifthly,
he is consistent throughout, may it be his statement under
Section 164 CrPC and/or deposition on oath. Sixthly, the
attempt made on the character assassination of the witness has
miserably failed. We thus find no ground to suspect PW 9 for
non-existent reasons."
30. In the present case, the petitioners were found to be
present in the place of occurrence by consistent evidence of all
the witnesses and the witnesses have also explained the reason
of their presence at the place of occurrence and admittedly the
Complainant and the petitioners are in inimical terms, but there
is no explanation from the side of the petitioners about reasons
of their presence at the place of occurrence and they are in
complete denial under Section 313 of Cr.P.C. Further, the
witnesses have consistently supported the factum of forcibly
taking away of an amount of Rs.10,000/- from the Complainant
and admittedly there is no enmity between the petitioners and
the witnesses; the witnesses are not the relative or friend of the
Complainant and C.W.-2 is the neighbour of the Complainant
who is an independent witness and also a natural witness when
seen in the light of the aforesaid judicial pronouncements
particularly the case of Ramesh Dasu Chauhan (supra).
31. The learned trial court disbelieved the prosecution story
on the basis that the occurrence was seen only by the chance
witnesses i.e. C.W.-1, C.W.-2 and C.W.-4, although the place of
occurrence was situated inside the boundary wall of the house
of the Complainant.
32. The learned appellate court reversed the acquittal of the
petitioners and convicted them in the case recording the
findings that C.W.-1, C.W.-2 and C.W.-4 were not chance
witnesses, rather they are the eye witnesses to the occurrence
and all the witnesses have consistently supported the case of
the Complainant without any discrepancy.
33. As discussed above, the learned trial court committed
error of law in treating even the neighbour (C.W-2) of the
Complainant, who is an independent witness, as a chance
witness. Moreover, the other witnesses i.e. C.Ws.-1 and 4 are
also independent eye witnesses who have fully explained their
presence near the place of occurrence and there is no material
on record to discard their evidences. All the witnesses have
been fully cross examined and their evidences are consistent.
34. In view of the aforesaid findings, this Court is of the
considered view that the judgement of acquittal passed by the
learned trial court by treating the evidences of all the witnesses,
except that of the Complainant as chance witnesses and thereby
treating their evidences as unreliable, is perverse, and has been
rightly set-aside by the learned appellate court. This Court is
also of the considered view that the judgement of the learned
trial court is completely based on incorrect appreciation of
materials on record and the learned appellate court has rightly
set-aside the trial court's judgement of acquittal and has
convicted the petitioners.
35. Consequently, both the criminal revision applications are
hereby dismissed.
36. The office is directed to send back the Lower Court
Records to the court concerned.
37. The learned court below is directed to take steps against
the petitioners so that the petitioners may serve the sentence
imposed by the learned appellate court in accordance with law.
38. Let a copy of this Judgment be communicated to the court
concerned through "FAX / e-mail".
(Anubha Rawat Choudhary, J)
Pankaj/Mukul
