Bhim Tudu Son Of Ram Tudu vs The State Of Jharkhand
2021 Latest Caselaw 3491 Jhar

             IN THE HIGH COURT OF JHARKHAND AT RANCHI

                              Cr. Rev. No. 785 of 2012
        Bhim Tudu son of Ram Tudu
        (Deleted & substituted vide order dated 25.06.2018)
        Talamay Devi wife of Late Bhim Tudu (aged about 50 Years)
        R/o Village- Gokulpur, P.O.- Sanaula, P.S.- Sanaula,
        Dist.- Bhagalpur (Bihar)                ...     ...      Petitioner
                               -Versus-
        The State of Jharkhand                  ...     ... Opp. Party
                               ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

---

                     Through Video Conferencing

        For the Petitioner        : Mr. Anurag Kashyap, Advocate
        For the State             : Ms. Vandana Bharti, A.P.P.
                                  ---

13/20.09.2021

1. Heard Mr. Anurag Kashyap, the learned counsel appearing on behalf of the petitioner.

2. Heard Ms. Vandana Bharti, the learned A.P.P. appearing on behalf of Opposite Party-State.

3. Learned counsel for the petitioner submitted that initially, the present criminal revision application was preferred by Bhim Tudu, but he died on 11.01.2018 during its pendency and thereafter, his wife namely, Talamay Devi preferred I.A. No. 4368/2018 in terms of Section 394 (Proviso) of Cr.P.C. to pursue the case further which was allowed by this Court vide order dated 25.06.2018 in which, it is also recorded that the original petitioner-Bhim Tudu has died on 11.01.2018 thereby necessitating his wife to pursue the criminal revision application in view of the fact that the original petitioner had lost his job on account of his conviction. Accordingly, the original petitioner namely, Bhim Tudu has been substituted by his wife and legal heir namely, Talamay Devi in the criminal revision application and now, she is the petitioner in this case before this Court.

4. The present criminal revision application is directed against the order dated 16.08.2012 passed by the learned Principal Sessions Judge, Sahibganj in Criminal Appeal No. 04/2012 whereby and whereunder the learned appellate court confirmed the conviction and sentence of the original petitioner namely, Bhim Tudu under Sections 353 and 323 of the Indian Penal Code passed by the learned trial court, although acquitted him from the offence under Section 427 of the Indian Penal Code and partly allowed the criminal appeal.

5. The learned trial court, vide Judgment of conviction and the order of sentence dated 05.01.2012 passed by the learned Civil Judge (Junior Division) No.II, Sahibganj in Railway G.R. Case No. 04 of 2003 / Trial No. 285 of 2011 (arising out of Sahibganj GRPS Case No. 15/2003), had convicted the original petitioner namely, Bhim Tudu under Sections 323, 353 and 427 of the Indian Penal Code and had sentenced him to undergo Simple Imprisonment for one year for the offence under Sections 353 and 323 of the Indian Penal Code each and Simple Imprisonment for six months for the offence under Section 427 of the Indian Penal Code and had directed that all the sentences shall run concurrently.

Arguments on behalf of the petitioner

6. The learned counsel for the petitioner, while assailing the impugned judgments, submitted that the independent witnesses of the case i.e. P.Ws.- 3, 5 and 6 were declared hostile by the prosecution and P.W.-7 and P.W.-9 are the two investigating officers of the case. The investigation was initially taken up by P.W.-7 and was continued by P.W.-9, who submitted the charge-sheet. He submitted that the other witnesses, who claimed to be the eye-witness, are the constables who have been examined as P.Ws.- 1, 2 and 4 and they are interested witnesses. He further submitted that A.S.I. Naresh

Prasad, who had recorded the fardbeyan of the informant, has not been examined and the doctor, who had treated the informant, has also not been examined in the case.

7. The learned counsel for the petitioner further submitted that the informant and the original petitioner were from police department and in fact, a sudden fight had taken place between them and there was no intention on the part of the original petitioner to assault the informant. He submitted that there was no occasion also to interfere with the discharge of the official duty of the informant and therefore, the basic ingredients of the offence under Section 353 of the Indian Penal Code are not satisfied against the petitioner in the present case.

8. The learned counsel submitted that these aspects of the matter have not been properly considered by the learned courts below and accordingly, the impugned judgments are perverse and call for interference of this Court for securing justice.

Arguments on behalf of the Opposite Party-State

9. The learned A.P.P. appearing for the Opposite Party- State, while opposing the prayer, submitted that there are concurrent findings recorded by the learned courts below, so far as the conviction of the original petitioner for offences under Sections 353 and 323 of the Indian Penal Code are concerned. She further submitted that the prosecution case has been fully supported by the informant, the investigating officers and the three constables, P.Ws.- 1, 2 and 4 who were present at the time of occurrence and were also the eye-witnesses to the occurrence. She submitted that non-examination of the doctor is not fatal to the prosecution case, inasmuch as, the prosecution case has been supported by the eye-witnesses to the occurrence. She submitted that the constables, who were examined as eye- witnesses, cannot be said to be interested witnesses as the convict-original petitioner as well as the informant, both were

of the police department. She further submitted that otherwise also, the eye-witnesses and other witnesses have been thoroughly cross-examined from the side of the defence. She also submitted that merely because some of the witnesses i.e. P.Ws.- 3, 5 and 6 have been declared hostile, the same is not fatal to the prosecution case. The learned A.P.P. submitted that the basic ingredients of the offences under Sections 353 and 323 of the Indian Penal Code are duly satisfied in the present case and the learned courts below have passed well-reasoned judgments by convicting the original petitioner and upholding his conviction for offences under Section 353 and 323 of the Indian Penal Code. The learned A.P.P. submitted that as the present case is being pursued by the wife of the convict-original petitioner, there is no question of serving the remaining sentence, even if the conviction is upheld. She submitted that the impugned judgments do not suffer from any illegality or perversity and accordingly, no interference is called for in revisional jurisdiction.

Findings of this Court

10. The prosecution case is based on the fardbeyan of the informant namely, Raj Narayan Singh recorded by A.S.I. Naresh Prasad at Sadar Hospital alleging that on 28.09.2003 at about 02.45 P.M., when he was discharging his official duty at GRPS, Sahibganj, Bhim Tudu (convict and original petitioner) came there all of a sudden and started using filthy language against him and when the informant protested, he became furious and assaulted the informant by fists and blows and due to which the informant sustained several injuries on his shoulder, elbow and other parts of body and his spectacles got broken and his vest got torn. On the basis of the fardbeyan, the case was registered as Sahibganj GRPS Case No. 15/2003 and after completion of investigation, charge-sheet was submitted

and thereafter, cognizance of the offence was taken in the case. On 18.08.2004, the substance of accusation for the offences under Sections 323, 341, 353, 427 and 506 of the Indian Penal Code was explained to the original petitioner in Hindi to which he pleaded not guilty and claimed to be tried.

11. In course of trial, the prosecution examined altogether nine witnesses in support of its case. P.W.-1 is Chandra Bhushan Singh, P.W.-2 is Parvej Ahmad Khan, P.W.-3 is Yogendra Singh, P.W.-4 is Ranjeet Yadav, P.W.-5 is Dinesh Paswan, P.W.-6 is Bahdu Hembrom, P.W.-7 is J.S. Murmu who is the first investigating officer, P.W.-8 is Raj Narayan Singh who is the informant of the case and P.W.-9 is Tej Narayan Besra who is the second investigating officer of the case. P.W.-3, P.W.-5 and P.W.-6 have been declared hostile by the prosecution. The prosecution exhibited the formal F.I.R. as Exhibit-1, endorsement for registration of the case as Exhibit- 1/1, the fardbeyan of the informant as Exhibit-2, injury slip of the informant as Exhibit-3 and injury slip of Bhim Tudu as Exhibit-3/1. The prosecution produced the broken spectacles and torn vest before the trial court which were marked as Material Exhibits- I and II respectively.

12. On 21.01.2010, the statements of the original petitioner were recorded under Section 281 of the Cr.P.C. wherein he denied the incriminating evidences put to him and claimed to be innocent. The original petitioner did not adduce any oral or documentary evidence in his defence.

13. The learned trial court considered the evidences and materials on record and recorded its findings in Paras-15 that the evidence of P.W.-8 makes it clear that on 28.09.2003, when he was discharging his official works at GRPS Sahibganj, the occurrence took place and this fact has duly been corroborated by Chandra Bhushan Singh, Parvej Ahmad Khan and Ranjeet

Yadav who were present at the place of occurrence and witnessed the occurrence and they have supported the date and place of occurrence and P.W.-7 and P.W.-9 have consistently deposed that the place of occurrence lies at the passage of GRPS, Sahibganj at Platform No.1 and therefore, the prosecution has successfully established the date and place of occurrence beyond shadow of doubts.

14. The learned trial court, with regard to the offence under Section 323 of the Indian Penal Code, recorded that P.W.-8 deposed that on the date of occurrence, when he was at his office (GRPS, Sahibganj), the accused person came there and started abusing and in that course, he assaulted him with fist and blows and due to which, he sustained several injuries over his shoulder, eyes, elbows and other parts of body. This statement of the victim squarely corroborates with the testimony of Chandra Bhushan Singh, Parvej Ahmad Khan and Ranjeet Yadav and under such circumstances, the factum of causing bodily pain and thereby committing the offence of voluntarily causing hurt has been successfully established from the evidence available on record and the prosecution has been successfully able to establish the charge under Section 323 of the Indian Penal Code beyond shadow of reasonable doubts.

15. The learned trial court, with regard to the offence under Section 353 of the Indian Penal Code, recorded that a careful perusal of the evidence available on record makes it manifest that Bhim Tudu assaulted with fists and blows to the informant-cum-victim of the case, when he was on duty at GRPS, Sahibganj and due to which he sustained several injuries and under such circumstances, it is quite clear that the accused had assaulted the informant, who being a police officer on duty, so admittedly a public servant and therefore, the accused had prevented him from discharging his official duty. To be more

specific, all the eye witnesses namely, Chandra Bhushan Singh, Parvej Ahmad Khan, Yogendra Singh and Ranjeet Yadav have consistently deposed that the informant-cum-victim was on his duty and was discharging his work at GRPS, Sahibganj when he was assaulted by the accused person and as such, the prosecution has been able to establish the charge under Section 353 of the Indian Penal Code against the petitioner.

16. The learned trial court, with regard to the offence under Section 427 of the Indian Penal Code, recorded that during the course of occurrence, the spectacles of the informant got broken and his vest was also torn by the accused person resulting in loss to him and this fact has been corroborated by the testimony of the informant and Chandra Bhushan Singh and the same stands conclusively proved by producing the broken spectacles and torn vest before the trial court which have been marked as Material Exhibits- I and II respectively and therefore, it can be inferred that due to act of the accused person, a wrongful loss has been caused to the victim and thereby he committed the offence of mischief under Section 427 of the Indian Penal Code.

17. Accordingly, the learned trial court convicted the original petitioner namely, Bhim Tudu under Sections 323, 353 and 427 of the Indian Penal Code and sentenced him as mentioned above, but acquitted him from the charges under Section 341 and 506 of the Indian Penal Code.

18. The learned appellate court also considered the evidences available on record in detail and recorded concurrent findings with regard to the offences under Sections 353 and 323 of the Indian Penal Code and summarized its findings in Para-26 that the accused Bhim Tudu had intention to cause injury to the victim and scuffle took place and hot words were exchanged and the accused had beaten the informant and deterred the informant from discharging his official duty. The learned

appellate court confirmed the conviction and sentence of the original petitioner namely, Bhim Tudu under Sections 353 and 323 of the Indian Penal Code passed by the learned trial court, but acquitted him from the offence under Section 427 of the Indian Penal Code and allowed the criminal appeal partly.

19. After hearing the learned counsel for the parties and going through the materials on record, this Court finds that P.W.-8 is the informant-cum-victim of the case and he deposed that on 28.09.2003 at about 02.45 P.M., when he was discharging his official duty at GRPS, Sahibganj, Bhim Tudu (the original petitioner) came there and started abusing him and assaulted him by fists blows and due to which he sustained several injuries over his elbow, eyes, shoulder and other parts of body. He further deposed that Bhim Tudu had broken the spectacles and had torn his vest which were produced during trial and were marked as Material Exhibits-I and II respectively. He specifically deposed that the occurrence was witnessed by P.Ws.-1, 2 and 4. He proved his fardbeyan as Exhibit-2. This Court finds that the informant has fully supported his version recorded in his fardbeyan.

20. This Court further finds that P.W.-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.-7 is the first investigating officer of the case and he has proved the place of occurrence and exhibited the formal F.I.R. and P.W.-9 is the second investigating officer of the case who exhibited the injury requisition slips of the informant-victim and the original petitioner as Exhibits- 3 and 3/1 respectively.

21. This Court finds that both the learned courts below have carefully scrutinized the evidences of the prosecution witnesses and have recorded consistent and concurrent findings with regard to conviction of the original petitioner under Sections

353 and 323 of the Indian Penal Code and both the learned courts below have passed well-reasoned judgements considering every aspect of the matter and every argument advanced on behalf of the original petitioner so far as his conviction under section 353 and 323 of IPC are concerned and there is no illegality or perversity in the impugned judgments of conviction under section 353 and 323 of IPC calling for any interference under revisional jurisdiction.

22. Accordingly, the conviction and sentence of the original petitioner namely, Bhim Tudu under Sections 353 and 323 of the Indian Penal Code passed by the learned trial court and confirmed by the learned appellate court is upheld and this criminal revision application is hereby dismissed.

23. Pending interlocutory application, if any, is disposed of.

24. Let the Lower Court Records be immediately sent back to the court concerned.

25. Let a copy of this Judgment be communicated to the learned court below through "FAX/Email".

(Anubha Rawat Choudhary, J.) Mukul/binit