Quddus Painter vs The State Of Jharkhand
2021 Latest Caselaw 3876 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  Criminal Revision No. 90 of 2016

Quddus Painter, s/o late Rabbani, r/o Nawatoli, P.O. & P.S.
Medninagar (Daltonganj), District Palamau, Jharkhand

                                                     ... Petitioner
                              Versus
1. The State of Jharkhand
2. Bablu, s/o Mokhtar Ahmad
3. Mokhtar Ahmad, s/o late Sobrati Miya
4. Julekha Bibi, w/o Mokhtar Ahmad
5. Soni @ Sawana Praveen, w/o Md. Anwar
6. Moni @ Sabnam Praveen, d/o Mokhtar Ahmad
Respondent 2 to 6 are r/o Mohala Kunjrapati, Nawatoli, P.O. &
P.S. Medninagar (Daltonganj), District- Palamau, Jharkhand
                                              ... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

For the Petitioner : Mr. Sheo Kumar Singh, Advocate For the State : Mrs. Vandana Bharti, APP For OP Nos. 2 to 6 : Md. Faruque Ansari, Advocate

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Order No.05/Dated: 18th October, 2021

Complaint Case No. 460 of 2003 was instituted by Quddus Painter on an allegation that Bablu, Mokhtar Ahmad, Julekha Bibi, Sawana Praveen @ Soni and Sabnam Praveen @ Moni forced entered his house on 11 th July, 2003 at about 01:00 pm and committed marpeet with the members of his family and before leaving they took away cash and jewelleries from his house.

2. In Tr. No. 2396 of 2012 which was started on the basis of Complaint Case No. 460 of 2003, the learned Chief Judicial Magistrate, Palamau, Daltonganj held that the offences under sections 504 and 506 of the Indian Penal Code were not proved, however, the accused persons were liable to be convicted under sections 323 and 451 of the Indian Penal Code. The learned trial Judge has further held that Mokhtar Ahmad and Julekha Bibi were guilty also under section 380 of the Indian Penal Code.

3. The convicts namely, Bablu, Mokhtar Ahmad, Julekha

Bibi, Sawana Praveen @ Soni and Sabnam Praveen @ Moni were sentenced to SI for six months under section 323 of the Indian Penal Code and SI for one year under section 451 of the Indian Penal Code - Mokhtar Ahmad and Julekha Bibi were further convicted and sentenced to SI for three years under section 380 of the Indian Penal Code.

4. In Criminal Appeal No. 54 of 2012, the appellate Court held that the charges against the accused were not proved and therefore they are entitled to the benefit of doubt.

5. The learned appellate Court has held as under:

"10. The learned counsel for the complainant has opposed the defence version stating that on the basis of materials available on record the learned Chief Judicial Magistrate has rightly passed the judgment and conviction and which does not require any interference. The learned counsel for the complainant has also filed original bond paper dated 10.08.2000 between Quddus Ansari and Mokhtar Ansari and photo copy of judgment of Anjuman as per list of document and also relied upon the rulings as per list of documents i.e. photo copy of judgment of Criminal Appeal No. 37/03 reported in 2011 (1) AIR Jhar R 79, on the point of: Penal Code (45 of 1860), Ss. 324/148, 323/147 - Assault - Proof - Appellants allegedly caused injuries to informant by iron rod - Main evidence is of informant, who was supported by all chance witnesses - Other witnesses are his relatives, who come to place of occurrence on his hulla being made - Neither medical report is proved nor any doctor has been examined to show as to what type of injury was received by informant - And whether injuries were caused by iron rod or by something else - Conviction of appellant u/Ss. 324/148 therefore altered to one under Section 323/147. (Para 9). And photo copy of ruling i.e. 1985 Ecr. C (Pat.) 567 on the point of: (A) Criminal trial - Injury report - Not proved by producing doctor who examined the injuries - Effect - Such a report cannot be admitted into evidence.

12. Thus on the basis of foregoing discussion and consideration of evidence and facts of the case, I may come to the conclusion that lower court is not correct in holding that all the appellants have committed the alleged offence u/s 323, 451 of IPC and appellants Mokhtar Ahmad and Julekha Bibi have committed the alleged offence u/s 380 of IPC. The facts and circumstances of relied upon rulling of respondent no. 2 is different from the facts and circumstances of this case."

6. In Tr. No. 2396 of 2012, CW1 Asida Khatoon and CW3 Quddus Painter who have also examined themselves as summoning witnesses again came to the Court to depose in support of the complaint filed against the accused. CW2 Qamruddin who was also examined at pre-summoning stage did not come in the dock and there is no explanation why the other

inmates of the house who according to CW1 and CW3 were also present in the house when the accused allegedly committed marpeet and stole cash and jewelleries were not examined.

7. CW1 did not make allegation of theft against any accused specifically, however, CW3 has stated that Mokhtar Ahmad and Julekha Bibi broke open the box and took away cash and jewelleries from his house. The complainant and accused parties are neighbors and the complainant has admitted in his evidence that before the occurrence on 11th July, 2003 a case was pending between them. The learned appellate Court has meticulously scanned the evidence of CW1 and CW3 and come to a conclusion that they are not reliable witnesses.

8. The learned appellate Court has discussed the evidence of CW1 and CW3 in the following manner:

"11. So far as charge u/s 380, IPC is concerned, same was framed against all the five accused/appellants by the trial court out of which the trial court has convicted only two accused/appellants viz. Mukhtar Ahmad and Julekha Bibi and sentenced them as stated above. The allegation in this regard as per complaint is that lastly all accused persons theft away cash of Rs.2,000/- and ornaments of value five thousand rupees from box of complainant and fled away. When the complainant has been examined on S.A on 15.07.2003 just next day of filing complaint having date of occurrence 11.07.2003, he has stated in this regard that Sanny, Munni, Mukhtar Ahmad, Julekha Bibi broken the box lying in room and took out golden tops and ring and on protest they pointed rifle and threatened with dire consequences. C.W.1 Asida Khatoon, daughter of the complainant and injured has deposed in this regard that they took ornament lying in box and Rs.2000/-

rupees and fled away and ornament was of worth Rs.2-3 thousand belonging to her mother. Whereas C.W.3 Quddus Painter, the complainant, has stated in this regard that Mukhtar and Julekha entered in the nearby room and forcibly putting the box and took Rs.2,000/- in cash and gold and silver ornament of Rs.5,000/- and threatened and went away abusing Matherchod. Thus, C.W.1 has not stated about the name of accused who have committed theft rather general and omnibus allegation appears from the evidence of C.W.1. But C.W.3 has not supported the allegation of theft as per complaint petition against all five accused rather stated only about two accused. Which is beyond the complaint petition and during cross examination as per para-11 he has not stated about the note and in para-12 he has stated that they took away golden Karnful and silver Payal was disappeared which is beyond the complaint petition. Not only that he cannot say about the date of purchase and cannot produce receipt of the same. Thus, it appears that there is lacking of corroborative evidence on the point of theft in a building used for human dwelling and there is nothing but contradictory evidence on the point of theft articles and

value of theft articles, which create doubt before the mind of the court and as per evidence of para-3 of the complainant (C.W.3) it is also a fact that there is inimical terms in between the parties and it is also settled that enmity cuts both the ends. So far as the charge u/s 323 and 451 of IPC is concerned, C.W.1 Asida Khatoon has stated in para-1 that all have assaulted her mother and all have received injury and said fact of C.W.1 is beyond the complaint petition and during cross-examination in para-17 she has stated that beside her, her father also received injury on his head. Thus, she has herself falsify her statement as per para-1 regarding assault to her mother during cross-examination as per para-17 and she has admitted only injury on her person along with person of her father. C.W.1 has stated in para-2 that she had gone for taking soil nearby her house and Bablu started to assault her and when she had come to her house then he forcibly entered into her house and thereafter his father, mother Julekha, Soni, Moni come behind him and started quarrel and entered into her house and when she try to prevent them then they had assaulted her and further stated in para-10 that first of all she had gone for taking clay then she was assaulted and thereafter she went to her house and started reading then accused came and assaulted her and from the said version of C.W.1 it appears that she has stated about two place of occurrence which is completely beyond the case of the complaint. Not only that C.W.1 has stated that in para-1 that on 11.07.2003 at 1:00 p.m. occurrence occurred in her house and that time her father, sister Guria and mother were present there and during her cross examination in para-11 she has falsify her earlier statement stating that no one was present in her house at the time of assault. She has further stated in para-12 that after two hours from the first assault at the time of taking soil, they entered into her house and assaulted her and in para-13 she has again stated that she was quite alone at the time of assault in her house and after two hours from the assault her mother and father come to the house. From the said version of C.W.1 it appears that there are two place of occurrence and no one was present in her house at the time of assault and said fact of C.W.1 is beyond the case of complainant and the complainant C.W.3 has also stated in para-8 that he had not seen whether accused came one by one or jointly at the place of occurrence. In this way it is apparent that there is nothing but contradictory statement of C.W.1 and C.W.3 on the point of assault and entering in the house for committing offence which also create doubts. On perusal it also appears that the complainant has neither filed original injury report nor examined doctor having mentioned his name in the witness column of complainant petition. The complainant has mentioned the name of about seven witnesses in the witness column of complaint petition but mere examined himself and his daughter and not examined rest five witnesses as mentioned in the complaint case and there is nothing but contradictory statement of C.W.1 and C.W.3 on the point of assault, entering into the house for committing offence and theft in a building used for human dwelling which create nothing but doubt. On perusal of evidence of complainant witnesses C.W.1 and C.W.3 it appears that there is contradiction and lack of corroboration in between the statement of witnesses with regard to manner of occurrence which also create doubt and it is settled that in

the event of any doubt as to guilt of accused the benefit of doubt will go to the accused."

9. From the materials on record, I find that no independent witness was examined by the complainant even though the occurrence took place in broad daylight. The allegation of assault upon CW1 is not supported by medical evidence - doctor has been produced during the trial. Besides this, as rightly held by the learned appellate Court evidence of CW1 and CW3 is not free from doubt. I am also of the view that in the background of past litigation between the parties when testimonies of CW1 and CW3 are examined with the care and caution as indicated by the Hon'ble Supreme Court in "Nallabothu Venkaiah v. State of A.P." (2002) 7 SCC 117, a reasonable doubt arises on veracity of truthfulness of these witnesses. In a dispute of the nature the Court is presently dealing with, it is not uncommon that the neighbors would institute false cases out of grudge.

10. In "Sheonandan Paswan v. State of Bihar" (1987) 1 SCC 288 the Hon'ble Supreme Court has observed as under:

"88.... Section 397 gives the High Court or the Sessions Judge jurisdiction to consider the correctness, legality or propriety of any finding, sentence or order and as to the regularity of the proceedings of any inferior court. While considering the legality, propriety or the correctness of a finding or a conclusion, normally, the revising court does not dwell at length upon the facts and evidence of the case. The court in revision considers the materials only to satisfy itself about the correctness, legality and propriety of the findings, sentence or order and refrains from substituting its own conclusion on an elaborate consideration of evidence."

11. In view of the aforesaid discussions, I find no merit in this criminal revision petition and, accordingly, Criminal Revision No. 90 of 2016 is dismissed.

12. Let a copy of the judgment be transmitted to the Court concerned through 'FAX'.

13. Let the lower Court records be sent to the Court concerned forthwith.

(Shree Chandrashekhar, J.)

RKM