Jharkhand High Court
Manbhula Karmkar And Anr vs The State Of Jharkhand And Anr on 23 July, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No.17 of 2012
Manbhula Karmkar and Anr. ... ... Petitioners
Versus
The State of Jharkhand and Anr. ...... Opp. Parties
With
Criminal Revision No.77 of 2012
Bala Singh and Ors. ... ... Petitioners
Versus
State of Jharkhand and Anr. ...... Opposite parties
With
Criminal Revision No.78 of 2012
Bimal Singh and Anr. ... ... Petitioners
Versus
State of Jharkhand and Anr. ...... Opp. Parties
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner s : Mr. Mahesh Tewari, Advocate
[in all the cases]
For the State : Mrs. Vandana Bharti, A.P.P.
[in Cr. Rev. No.77 of 2012]
: Mr. Vishwanath Roy, A.P.P.
[in Cr. Rev. No.78 of 2012]
: Mr. P.D. Agrawal, A.P.P.
[in Cr. Rev. No.17 of 2012]
For Opp. Party No. 2: Mr. Jayant Kumar Pandey, Advocate
[in Cr. Rev. No. 78 of 2012]
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Through Video Conferencing
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11/23.07.2021 Heard Mr. Mahesh Tewari, learned counsel appearing
on behalf of the petitioners in all these cases.
2. The learned counsel for the petitioners has submitted that
there are altogether 14 persons who have been convicted for
offence under Sections 427, 354, 506, 452 and 147 of Indian
Penal Code. The learned counsel has submitted that the case
arises out of a complaint case and there are two dates in
connection with which the incidents have been clubbed in the
same complaint petition. As per the complaint, the date of
incident is 27.08.2000 and 11.09.2000. The learned counsel
submits that the date of occurrence as mentioned in the
complaint is 27.08.2000, but different dates have been
mentioned by different prosecution witnesses. He submits that
altogether four prosecution witnesses have been examined in
the present case. P.W. 1 has disclosed the date as 27.08.2000,
P.W. 2 has disclosed the date as 27.07.2000, P.W. 3 has
disclosed it as 27.08.2000 and P.W. 4 in her chief has
mentioned the date as 27.07.2000.
3. However, during the course of argument, the attention
was drawn of the learned counsel for the petitioners regarding
the cross-examination of P.W. 4 wherein the date of incident
has been mentioned as 27.08.2000.
4. The learned counsel for the petitioners submits that so far
as the charge is concerned, at the stage of framing of charge,
the material date has been mentioned as 28.08.2000 and
11.09.2000. The learned counsel submits that the charge
specifically indicated the date as 28.08.2000 though a different
date was reflecting in the complaint and the evidence of the
prosecution witnesses and accordingly, the petitioners could
not have been convicted for committing offence on the date
alleged in the complaint petition. The learned counsel for the
petitioners has specifically submitted that the date which has
been mentioned in the charge is not borne out of the record
and accordingly, the petitioners have been charged for the
occurrence on a date which is nowhere reflected from the
records of the case.
5. Further, during the course of argument, it has been
noticed that the statement under Section 313 of Cr.P.C.
specifically mentions the date of occurrence as 27.08.2000 and
11.09.2000.
6. The learned counsel for the petitioners has also submitted
that the charge which has been framed in the instant case was
also vague and the petitioners could not have been convicted
for vague charges.
7. It also transpired during the course of argument that the
aforesaid point regarding framing of charge has never been
raised by the petitioners before the trial court or before the
appellate court or in any of the grounds which have been
specifically mentioned in the revision petition, but the learned
counsel has submitted that this being a point of law, can be
raised even at this stage. He has also referred to para 15 of the
judgement passed in the case of "Mohan Singh Vs. State of
Bihar", which has been relied upon by opposite party- State
during the course of argument, to submit that even before the
Hon'ble Supreme Court such point was taken for the first time
and the Hon'ble Supreme Court was pleased to examine the
said case on merit. He submits that defect regarding framing
of charge is a question of law which may be considered even
at the revisional stage although no specific point in that regard
has been taken before the learned courts below and even in the
grounds of revision before this court .
8. The learned counsel, in furtherance of his argument, has
submitted that there has been considerable delay in filing the
complaint. There is delay of 19 days when it is considered with
regards to the first incident and delay of 4 days in connection
with the second incident. He further submits that in the
complaint petition, the complainant had stated that a written
complaint was also taken to the police authorities, but no such
written complaint has been exhibited before the learned court
below and accordingly, such statement of the complainant in
the complaint petition or even in their evidence is not
supported by any documentary evidence. Learned counsel has
submitted that the delay in filing of the complaint case by itself
is fatal to the prosecution case as the delay is unexplained.
9. The learned counsel has further submitted that as per the
complaint petition, there were altogether seven witnesses and
only four witnesses have been examined, whereas rest of them
have not been examined. He submits that the non-examined
witnesses were witness nos. 2, 3 and 6 who were said to be the
eye-witness of the case, but in spite of mentioning them in the
complaint petition, no steps were ever taken by the
prosecution to examine these witnesses and non-examination
of these witnesses mentioned in the complaint petition itself is
fatal to the prosecution case in view of the fact that the
petitioners have not been given an opportunity to cross-
examine these witnesses who claimed to be the eye-witness of
the occurrence.
10. The learned counsel for the petitioners, during the course
of argument, has submitted that altogether four witnesses
have been examined and it was stated before the learned court
below that all of them are interested witnesses, but it
transpired while referring to the evidences that P.W. 2 that he
is not an interested witness, rather he is an independent
witness.
11. The learned counsel has also submitted that there is an
intention to falsely implicate the petitioners as there is a land
dispute between the parties and such land dispute is an
admitted fact as the P.W. 2, in his cross-examination, has
himself mentioned that there is land dispute between the
parties.
12. The learned counsel for the petitioners has further
submitted that the defence had produced certain documents
Exhibit-A, B and C to prove about the land dispute between
the parties and also that there was some measurement by the
circle officer over the plot in question, but these defence
documents have not been considered by the learned courts
below. During the course of argument, upon insistence of the
learned counsel for the petitioners , the Exhibit-A, B, and C
were also perused by this Court with the assistance of the
learned counsel and during the course of argument, it has
been found that Exhibit-A and Exhibit-B do not disclosed any
particulars of the land involved in the present and so far as the
Exhibit-C is concerned, the same is a communication between
the circle officer and the sub-divisional officer and a notice
was required to be issued to the complainant party, but there
is nothing conclusive so far as Exhibit-C is concerned.
However, during the course of argument, the learned counsel
appearing on behalf of the opposite party no. 2 also does not
dispute the fact that there is land dispute between the parties.
13. The learned counsel for the petitioners has referred to
various grounds of the revision application which have been
taken by the petitioners from the records of Cr. Rev. No. 17 of
2012. He submits that similar grounds of revision are there in
all the present cases.
14. The learned counsel has referred to a judgment passed by
the Hon'ble Supreme Court reported in (2012) 9 SCC 460 (para
11, 12, 16 and 17) to submit before this Court that in order to
consider the perversity in the impugned judgements, the
record can be looked into as the material evidences which
were present before the trial court have not been considered.
The learned counsel has particularly referred to discrepancy in
connection with the date of incident, as already mentioned
above.
15. The learned counsel for the petitioners has also submitted
that so far as the appellate court judgement is concerned, the
same is apparently not sustainable in the eyes of law as no
finding has been recorded by the learned appellate court in
regard to the second incident i.e. incident dated 11.09.2000 and
the evidences on record have not been properly considered by
the appellate court. The learned counsel submits that finding
of the appellate court is only vis-à-vis the first incident.
16. The learned counsel appearing on behalf of the opposite
party no. 2, on the other hand, has submitted that the
impugned judgements have been passed after considering the
materials on record and they do not suffer from any illegality
or perversity. However, during the course of argument, the
learned counsel appearing on behalf of the opposite party no.
2 also does not dispute the fact that the appellate court while
recording its finding, has not referred to the incident on
11.09.2000. The learned counsel has submitted that even if
there is land dispute between the parties, the prosecution has
been able to prove the case beyond all reasonable doubt.
17. The learned counsel appearing on behalf of the opposite
party- State Mrs. Vandana Bharti has referred to Section 215 of
Code of Criminal Procedure particularly illustration 'd' thereof
and has also referred to the judgement passed by the Hon'ble
Supreme Court reported in (2011) 9 SCC 272 (Mohan Singh Vs.
State of Bihar). She has referred to para 16 onwards of the
aforesaid judgement to submit that mere error in the charge
per se is not enough to set-aside the conviction unless any
prejudice is shown to have been suffered by the petitioners.
She has also indicated that no such ground was ever taken by
the petitioners before the learned courts below and also in the
revision petition and for the first time, such point has been
argued during the course of argument.
18. The learned counsel for the State submits that so far as the
other materials are concerned, the impugned judgements are
well-reasoned judgements and do not call for any interference.
19. Mrs. Vandana Bharti also submits that apart from the so
called interested witness including the victims, one eye-
witness of the occurrence P.W. 2, who is an independent
witness, has also deposed before the learned court below and
accordingly, it cannot be said that the prosecution story is
based on interested witnesses. She has also submitted that the
defence witness has also mentioned that the complainant
party was residing in the same house.
20. The learned counsels Mr. Vishwanath Roy and Mr. P.D.
Agrawal, also adopt the arguments advanced by Mrs.
Vandana Bharti, A.P.P., in support of the prosecution.
21. Arguments are concluded.
22. Post these cases on 20.08.2021 for judgement.
(Anubha Rawat Choudhary, J.)
Pankaj/-
