Jharkhand High Court
Manbhula Karmkar Son Of Shri Dukhu ... vs The State Of Jharkhand on 17 January, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Revision No. 17 of 2012
1. Manbhula Karmkar son of Shri Dukhu Karmkar, Resident of Village-
Pandra, P.S.- Nirsa, P.O.- Pandra District- Dhanbad
2. Burha Karmkar @ Budha Karmkar son of Late Gobardhan Karmkar,
Resident of Village- Pandra, P.S.- Nirsa, P.O.- Pandra District-
Dhanbad ... ... Petitioners
-Versus-
1. The State of Jharkhand
2. Kiran Karmkar Daughter of Late Sitaram Karmkar, Resident of
Village- Pandra, P.S.- Nirsa, P.O.- Pandra District- Dhanbad
... ... Opp. Parties
With
Criminal Revision No. 77 of 2012
1. Bala Singh son of Late Niwaran Singh
2. Karuna Singh son of Late Mahadeo Singh
3. Madan Singh son of Late Mahadeo Singh
4. (a) Atanu Mazumdar S/o Late Rana Mazumdar (substituted vide
order dated 07.07.2021 in I.A. No. 1648 of 2021)
5. Kanu Mazumdar son of Late Hare Ram Mazumdar
6. Samir Karmkar son of Late Dukhu Karmakar
7(a) Champa Karmakar W/o Late Dukhu Karmakar (substituted vide
order dated 07.07.2021 in I.A. No. 1648 of 2021)
8. Bhola Karmkar son of Taru Karmkar
9. Taru Karmkar son of Kalipado Karmkar
10. Subal Karmkar son of Gobardhan Karmkar
All residents of Village- Pandra, P.O.- Pandra, P.S.- Nirsa, District-
Dhanbad ... ... Petitioners
-Versus-
1. State of Jharkhand
2. Kiran Karmkar, daughter of Late Sita Ram Karmkar, resident of
Village Pandra, P.O. Pandra, P.S. Nirsa, District Dhanbad
... ... Opp. parties
With
Criminal Revision No.78 of 2012
1. Bimal Singh son of Late Niwaran Singh
2. Jai Chatterjee son of Late Balu Chatterjee
Both residents of Village-- Pandra, P.O.- Pandra, P.S.- Nirsa, District-
Dhanbad ... ... Petitioners
-Versus-
1. State of Jharkhand
2. Kiran Karmkar, daughter of Late Sita Ram Karmkar, resident
of Village- Pandra, P.O.- Pandra, P.S.- Nirsa, District- Dhanbad
... ... Opp. Parties
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioners : 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]
---
Through Video Conferencing
----
13/C.A.V. on 03.09.2021 Pronounced on 17.01.2022
1. Heard Mr. Mahesh Tewari, learned counsel appearing on behalf
of the petitioners in all these cases.
2. Heard Mrs. Vandana Bharti, Mr. Vishwanath Roy and Mr. P.D.
Agrawal, learned counsels appearing on behalf of the Opposite Party-
State.
3. These criminal revision applications have been filed challenging
the judgment pronounced on 16.12.2011 by the learned 1st Additional
District and Sessions Judge-I, Dhanbad passed in Criminal Appeal
No.96 of 2011 (arising out of C.P. Case No.1072 of 2000) whereby and
whereunder the learned appellate court has upheld the judgment of
conviction and order of sentence passed by the learned trial court and
dismissed the appeal.
The learned Judicial Magistrate, 1st Class, vide judgement dated
09.05.2011 passed in C.P. Case No. 1072/2000, corresponding to T.R.
No. 1211/2011 had held the petitioners guilty of having committed the
offences under Sections 147, 452, 354, 427 and 506 of the Indian Penal
Code. The learned Judicial Magistrate had sentenced the petitioners to
undergo Simple Imprisonment for one year for the offence under
Section 427 of the Indian Penal Code, Simple Imprisonment for one
year for the offence under Section 147 of the Indian Penal code, Simple
Imprisonment for one year for the offence under Section 354 of the
Indian Penal Code, Simple Imprisonment for one year for the offence
under Section 506 of the Indian Penal Code and Simple Imprisonment
for two years each for the offence under Section 452 of the Indian Penal
Code. All the petitioners were directed to pay a fine of Rs.1,000/- each
and in default of payment of fine, to further undergo Simple
Imprisonment for one month each. All the sentences were directed to
run concurrently.
Submissions on behalf of the petitioners
4. The learned counsel appearing for the petitioners submitted that
there are altogether 14 persons who have been convicted for the offence
under Sections 427, 147, 354, 506 and 452 of the Indian Penal Code.
He 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 incidents
are 27.08.2000 and 11.09.2000. The learned counsel submitted that the
date of occurrence as mentioned in the complaint is 27.08.2000, but
different dates have been mentioned by the different prosecution
witnesses. He submitted 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.
5. 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 is mentioned as
27.08.2000.
6. The learned counsel for the petitioners submitted 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
submitted that the charge specifically indicated the date as 28.08.2000
though a different date was reflecting in the complaint and in the
evidence of the prosecution witnesses and accordingly, the petitioners
could not have been convicted for committing offences on the date
alleged in the complaint petition. The learned counsel for the petitioners
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.
7. The learned counsel for the petitioners also submitted that the
charges which have been framed in the instant case were also vague and
the petitioners could not have been convicted for vague charges.
8. However, during the course of arguments, it was noticed that
while recording the statements of the accused persons under Section
313 of Cr.P.C., the date of occurrence was specifically mentioned as
27.08.2000 and 11.09.2000.
9. 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 submitted that this being a point of
law, can be raised even at this stage. He also referred to Para-15 of the
judgement passed in the case of "Mohan Singh Vs. State of Bihar
(2011) 9 SCC 272" which was relied upon on behalf of the Opposite
Party-State during the course of argument and it was submitted 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 submitted 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 was taken
before the learned courts below and even in the grounds of revision
before this court.
10. The learned counsel, in furtherance of his arguments, submitted
that there has been considerable delay in filing the complaint. There is
delay of 19 days when it is considered with regard to the first incident
and delay of 4 days in connection with the second incident. He further
submitted 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 submitted that the delay in filing of the
complaint case by itself is fatal to the prosecution case as the delay is
unexplained.
11. The learned counsel 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
submitted that the non-examined witnesses were witness nos. 2, 3 and 6
in the complaint petition who were said to be the eye-witness of the
case, but in spite of mentioning them in the complaint petition, no step
was 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 eye-witnesses of the occurrence.
12. During the course of arguments, the learned counsel for the
petitioners further 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
evidence of P.W.-2 that he is not an interested witness, rather he is an
independent witness.
13. The learned counsel 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.
14. The learned counsel for the petitioners further submitted that the
defence had produced certain documents i.e. Exhibits-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.
15. During the course of argument, upon insistence of the learned
counsel for the petitioners, the Exhibits-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 disclose any particulars of the land involved in the present case 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 did not dispute the fact that there is land
dispute between the parties.
16. The learned counsel for the petitioners referred to the various
grounds which have been taken by the petitioners in Cr. Rev. No. 17 of
2012. He submitted that similar grounds of revision are there in all the
present cases.
17. The learned counsel referred to a judgment passed by the Hon'ble
Supreme Court reported in (2012) 9 SCC 460 Amit Kapoor vs. Ramesh
Chander (Para- 11, 12, 16 and 17) to submit that in order to consider
the perversity in the impugned judgments, the records can be looked
into as the material evidences which were present before the learned
trial court have not been considered. The learned counsel particularly
referred to the discrepancy in connection with the date of incident, as
mentioned above.
18. The learned counsel for the petitioners also submitted that so far
as the appellate court judgment is concerned, the same is apparently not
sustainable in the eyes of law as no finding has been recorded by the
learned appellate court with regard to the second incident i.e. incident
dated 11.09.2000 and the evidences on record have also not been
properly considered by the appellate court. The learned counsel
submitted that finding of the appellate court is only vis-à-vis the first
incident.
Submissions on behalf of Opposite Party No.2 as well as State
19. The learned counsel appearing on behalf of the Opposite Party
No.2, on the other hand, submitted that the impugned judgments have
been passed after considering the materials on record and they do not
suffer from any illegality or perversity. However, during the course of
arguments, the learned counsel appearing on behalf of the Opposite
Party No.2 also did 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 submitted that even if there is land dispute between
the parties, the prosecution has been able to prove the case beyond all
reasonable doubt.
20. The learned counsel appearing on behalf of the Opposite Party-
State Mrs. Vandana Bharti referred to Section 215 of Code of Criminal
Procedure particularly illustration 'd' thereof and also referred to the
judgment passed by the Hon'ble Supreme Court reported in (2011) 9
SCC 272 (Mohan Singh Vs. State of Bihar). She referred to Para-16
onwards of the aforesaid judgment 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 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 arguments.
21. The learned counsel for the State submitted that so far as the other
materials are concerned, the impugned judgments are well-reasoned
judgments and do not call for any interference.
22. Mrs. Vandana Bharti also submitted 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 also
submitted that the defence witness has also mentioned that the
complainant party was residing in the house involved in the present
case.
23. The learned counsels Mr. Vishwanath Roy and Mr. P.D. Agrawal,
adopted the arguments advanced by Mrs. Vandana Bharti, A.P.P. in
support of the prosecution.
Findings of this Court
24. The Complainant is Kiran Karmkar. Anna Karmkar and Uma
Karmkar are her sisters and Ashalata Karmkar is the mother. Father of
the complainant died in the year 1993. As per the prosecution case , the
accused persons all along had evil eyes over the properties of the
complainant and her family members, as there was no male member in
their house. On 27.08.2000 at 8 am, all accused persons entered inside
the house of complainant having made preparation to assault and
outrage the modesty of the complainant and her sisters and assaulted
complainant and her elder sister Anna Karmkar with intention to
outrage the modesty. The accused persons tore the nighty including
under garments of the complainant and thereafter, they did mischief,
broke stabilizer, tape recorder and demolished 4 feet boundary wall and
they threatened them to leave the village. On the said day, the
complainant side had engaged two masons and four labourers for
constructing the wall. Accused persons also threatened the persons so
engaged and due to fear, they did not intervene. It was also alleged
that accused persons committed theft of two trucks of bricks belong to
the family of the complainant. Thus, complainant side suffered a loss of
Rs.4,000/- due to mischief and the value of the stolen bricks was
Rs.7,200/-. Thereafter, complainant rushed to the Police Station to
report regarding the incident where the police assured them to take
action, but they did not take any action against the accused persons.
Thereafter, written complaint was made to S.P., Dhanbad and as per the
direction of S.P., Dhanbad, complainant and her two sisters reached at
Nirsa P.S. in the evening of 11.09.2000. There, the officer-in-charge
asked them to wait. During the said time, accused Jai Chatterji and one
other person talked separately with the Officer-in-charge, Nirsa.
Thereafter, Officer-in-charge, Nirsa asked the complainant and her
sisters to board in the police jeep, so that they could reach their house.
On the way, at Sindri More, the accused persons came there and
restrained them and they pressed her neck and her family members. The
accused persons assaulted them with a view to outrage the modesty of
the complainant and her two sisters, tore their clothes and touched them
with bad intention. On hulla, local people gathered there and
complainant and her sisters were saved from the hands of the accused
persons.
25. This complaint petition was filed by complainant Kiran Karmkar
against the accused persons on 15.09.2000 before the court of the
learned C.J.M. Dhanbad and the same was transferred to the court of
J.M. Dhanbad for enquiry and disposal. After solemn affirmation and
enquiry, the learned court found a prima-facie case against all the 14
accused persons for the offences under Sections 147, 452, 354, 427,
506 of IPC. Thereafter, the accused persons appeared and faced the
trial. At the stage of evidence before charge, prosecution examined
altogether four witnesses. On 07.06.2002, charge has been framed
against all the accused persons under Sections 147, 452, 354, 427, 506
of the Indian Penal Code which was read over and explained to the
accused persons in Hindi, to which, they pleaded not guilty and claimed
to be tried. At the stage of evidence after charge, PWs- 1, 2, 3 and 4
were cross examined by the defence. Thereafter, statements under
Section 313 of Cr.P.C. were recorded in which the accused persons
denied the allegations and claimed to be innocent. Thereafter, certain
documents were exhibited on behalf of the defence i.e. certified copy of
proceeding under Section 107 Cr.P.C. in M.P. Case No. 62/02 as
Exhibit-A, certified copy of notice of M.P. Case No. 62/2002 as
Exhibit-B and certified copy of measurement report of C.O., Nirsa,
dated 31.12.2001 as Exhibit-C. One defence witness was examined on
behalf of the defence.
26. The learned trial court considered the evidences on record and
concluded that the prosecution witnesses have supported the
prosecution case and the prosecution has succeeded to prove the case
against the accused persons beyond the shadow of reasonable doubts.
The learned trial court convicted the petitioners under Sections 427,
147, 354, 506 and 452 of the Indian Penal Code and sentenced them as
mentioned above. The learned trial court has recorded its finding at
para-13 of its judgment, which reads as under: -
"Perused the case record and material exhibit. I find that
prosecution witnesses have supported the case of prosecution.
All witness have supported the case and corroborated the
version of each other. PWs 1,3 and 4 (complainant) appear to
be sisters. PW2 appears to electrical mechanic who also stated
that on the date of occurrence, accused persons came in the
house of complainant. They torn the clothes of complainant.
They assaulted PW and assaulted complainant and her family
members. They also broken T.V. Stabiliser. PW1 also stated
that on date of occurrence, all accused persons came in their
house. They torn clothes of complainant, also torn saree blouse
of PW1 with intention to outrage their modesty. They abused
them. They broken stabiliser, tape recorder. They demolish the
boundary wall. She also deposed that on 11.09.2000 when they
were returning to their home with a trecker, at that time, all
accused persons restrained them and assaulted them. PW3 also
deposed same version that accused persons entered their house,
broken tape recorder, TV and stabliser. They torn the clothes.
They tried to outrage their modesty and she deposed that on
11.09.2000 accused persons restrained them and assaulted
them. PW4 complainant also deposed that on the date of
occurrence, all accused persons forcibly entered in her house.
They torn their clothes and tried to outrage their modesty. They
assaulted them, broken tape, TV, Stabiliser, also assaulted TV
mechanic Chandrashekhar Rawani. They damaged their
boundary wall. She also stated about another occurrence that
when they were returning from PS at night, accused persons
restrained them, assaulted them and torn their clothes. I find
that prosecution witness have supported the case of
prosecution. I find that prosecution has succeeded to prove this
case against the accused persons beyond the shadow of
reasonable doubts. Accordingly, all the accused persons are
found and held guilty of offence u/s 147, 452, 354, 427, 506
I.P.C. and are hereby convicted under said section of I.P.C.
Their bail bonds are hereby cancelled and they are taken into
custody. Record is fixed for hearing on the point of sentence."
27. The learned appellate court also considered the materials on
record and recorded its findings in Para-6 that the prosecution has
examined 4 witnesses and out of then, P.W.-1, Anna Karmkar stated
that her sisters Kiran Karmkar and Uma Karmkar were in their house
on the date of occurrence and at that time, all the 14 accused persons
entered into the aforesaid house and they assaulted them and they tore
the nighty and undergarments of the Complainant. The accused persons
also tore her saree and blouse with intention to outrage her modesty and
abused them and they damaged stabilizer, tape recorder and they
demolished the boundary wall of the house and they assaulted the
labourers and mistry and they made them to flee away and they also
threatened them. When they came to police station for information, the
accused persons came there and restrained them and they pressed her
neck and her family members and on hulla, nearby people came and
saved them. The learned appellate court further recorded that the
learned counsel cross-examined the witnesses at length, but he only
wanted to show the old enmity between the parties. P.W.-2 Chandra
Shekhar Kumar Rawani is a labourer present at the P.O. at the time of
the occurrence and he stated that he went to the house of the
Complainant for repairing T.V. and he saw all the occurrence and he
supported the prosecution case and corroborated the evidence of P.W.-
1, but the defence has only taken from this witness during cross-
examination that there is land dispute between them. P.W.-3 Uma
Karmkar and P.W.-4 Kiran Karmakar also stated and corroborated the
evidence and the prosecution story and the defence lawyer cross-
examined at length, but could not shake their evidence on the point of
assault and theft and mischief. P.W.-4, the Complainant identified her
signature on the complaint petition as Exhibit-1 and during the
evidence, the torn kurta was marked as Material Exhibit-1. The learned
appellate court concluded that all the witnesses have supported the
prosecution story as per complaint petition. D.W.-1 Gangadhar
Banerjee knows both the parties and he stated that there is land dispute
between both the parties. The learned appellate court upheld the
judgment of conviction and the order of sentence passed by the learned
trial court and dismissed the appeal.
28. The learned appellate court has recorded its finding at para-6 of
the judgment, which reads as under: -
"6. Perused the case record and judgment and examined witnesses.
It was found that the prosecution has examined 4 witnesses in order
to prove its case. Out of them, PW-1, Sri Anna Karmkar who stated
that her elder sisters Kiran Karmkar and Uma Karmkar was in their
house on the date of occurrence and at that time, all the 14 accused
persons entered into the aforesaid house and they assaulted them
and they torn the nighty and under garment of the complainant.
Accused persons also torn her saree and blouse with intention to
outrage her modesty and abused them and they damaged stabliser,
tape recorder and they demolished the boundary wall of the house of
her house and they assaulted the labours and mistry and they made
them to flee away and they also threatened them and when they came
to PS for informant they accused persons came her by tracker and
restrained them and they pressed her neck and her family member on
hulla nearby people came and saved them. Ld. Defence counsel cross
examined at length but he only went to show the old enmity. PW2, Sri
Chandra Shekhar Kumar Rawani is labour at present at the P.O. at
the time of occurrence and he stated that he went to the house of
complainant for repairing TV and he saw all the occurrence and he
supported the prosecution case and corroborated the evidence of
PW-1 and the defence has only shown this witness that there is land
dispute between them, PW-3, Sri Uma Karmkar and PW-4, Kiran
Karmkar also stated and corroborated the evidence and the
prosecution story and defence lawyer cross examined at length but
he did not shake their evidence on the point of assault and theft and
mischief. Complainant (PW4) identified her signature on the
complaint petition which has been marked as ext. 1 and during the
evidence she wore the said kurta and said kurta was torn by the
accused persons and said kurta was marked as material ext. I.
Therefore, all witnesses have supported the prosecution story as per
complaint petition. DW-1, Gangadhar Banerjee knows both the
parties and he stated that there is land dispute between the parties."
29. After hearing the learned counsel for the parties and considering
the materials available on record, this Court finds that P.W.-4, Kiran
Karmkar is the Complainant of the case and she deposed that on the
date of occurrence at 8 a.m., she was present in her house alongwith her
two sisters and mother and in the meantime, all the 14 accused persons
entered into their house and they tore her clothes and tried to outrage
her modesty. They also assaulted her and her sister and mother. At that
time, Chandrashekhar Rawani (P.W.-2) was present there and he was
repairing T.V. and the accused persons assaulted him also. The accused
persons had also broken the tape recorder, stabilizer and T.V.. She
identified 5 accused persons present there and claimed to identify the
rest accused persons. She further deposed that the matter was reported
to the police, but the police did not take any action and thereafter, the
matter was reported to the S.P. who asked them to go again to the
police station and gave assurance. Thereafter, they went to the police
station on 11.09.2000 and waited there till 11 pm and thereafter, the
Officer-in-charge, sent them to home by a trekker and on the way near
Sindri More, the accused persons restrained them and they again
assaulted them and tore their clothes. She also deposed that the accused
persons had also broken the boundary and had stolen her bricks. She
exhibited her Complaint Petition as Exhibit-1. During cross-
examination, she deposed that she had shown the torn clothes to S.P.
and the Officer-in-charge and her sister's hand was fractured and she
was injured and she was treated. She was re-examined and she
produced her kurta before the court and deposed that on the date of
occurrence, she wore the said kurta and said kurta was torn by the
accused persons and the said kurta was marked as Material Exhibit-1.
This witness has been cross-examined by the defence at length and she
also stated that the place of occurrence house belongs to her mother.
She also deposed that Tarun Karamkar is her neighbour and not her
own maternal uncle and he is an accused in the case.
30. P.Ws. 1, 3 and 4 (Complainant) are sisters.
P.W.-2 is an electrical mechanic and an eye witness to the first incident
in the house of the complainant. He has stated that on the date of
occurrence, the accused persons came in the house of the Complainant
and they tore the clothes of the Complainant and assaulted the
Complainant and her family members and they also broke the T.V. and
stabilizer. However, the date of incident mentioned by him is
27.07.2000. He has been cross examined only on the point of land
dispute between the parties and primarily on the point of nature of his
work. He has fully supported the prosecution case and there is
discrepancy with regards to date of occurrence. As per the complaint,
the first date of occurrence is 27.08.2000 but he has mentioned the date
of occurrence as 27.07.2000. In the entire records of the case there is no
allegation from the side of the complainant regarding any occurrence on
27.07.2000.
P.W.-1 also stated that on the date of occurrence, all accused persons
came in their house, tore the clothes of the Complainant and also tore
the saree and blouse of P.W.-1 with intention to outrage their modesty.
The accused persons abused them, broke the stabilizer and tape
recorder and demolished the boundary wall. She also deposed that on
11.09.2000, when they were returning home, all the accused persons
restrained them and assaulted them. This witness has been thoroughly
cross examined by the defence but the cross examination has been on
the point of land dispute between the parties, on the point of delay in
filing the case, which has been explained during cross-examination and
on the point that there has earlier been fight between the parties but no
case was filed. There is no cross-examination on the point of the
incidents involved in the present case. P.W.-3 also deposed the same
version that the accused persons entered their house, broke tape
recorder, T.V. and stabilizer and tore the clothes and they tried to
outrage their modesty. She further deposed that on 11.09.2000, the
accused persons restrained them and assaulted them. She has also been
thoroughly cross-examined but her cross examination was mainly on
the point of land dispute between the parties and on the point of delay
in lodging the case. She has explained the delay but expressed her
inability to produce a copy of the complaint made before the
Superintendent of Police although she has stated that on the basis of
assurance given by the S.P. the informant party had again gone to the
police station on 11.09.2000 but no case was instituted. P.W.-4, the
Complainant also deposed that on the date of occurrence, all the
accused persons forcibly entered in her house, torn their clothes thereby
outraged their modesty. They assaulted them, broke tape, T.V. stabilizer
and also assaulted the T.V. Mechanic Chandrashekhar Rawani (P.W-2)
and damaged their boundary wall. She also stated about occurrence on
11.09.2000 when they were returning from police station at night, the
accused persons restrained them, assaulted them and tore their clothes.
However, P.W-4 had mentioned the date of incident as 27.07.2000 in
her chief but as mentioned above, in cross-examination of P.W.-4 the
date of incident is mentioned as 27.08.2000. This witness has also fully
supported the prosecution case and has been thoroughly cross-examined
and her cross examination included the point of land dispute between
the parties and there are no material contradictions found in cross-
examination. In the entire records of the case there is no allegation from
the side of the complainant regarding any occurrence on 27.07.2000.
D.W.-1 knows both the parties and he stated that there is land dispute
between both the parties.
31. This Court further finds that all the four prosecution witnesses are
the eye-witnesses to the occurrence which occurred on 27.08.2000 and
P.W.-s. 1, 3 and 4 are the eye-witnesses to the occurrence which
occurred on 11.09.2000. P.W.-2 is an independent eye witness to the
occurrence dated 27.08.2000, who has fully supported the prosecution
case on the time, place and manner of occurrence except the date of
occurrence which he has mentioned as 27.07.2000 though other
witnesses have mentioned the date of occurrence as 27.08.2000. P.W.-s.
1, 3 and 4 are the victims on both the occasions.
32. So far as evidence of P.W.-2 is concerned, it is not in dispute that
he is an independent witness. He has fully corroborated the prosecution
case with regard to time, place and manner of occurrence and has also
identified the accused persons. However, there is minor discrepancy in
his evidence, wherein he has disclosed the date of occurrence as
27.07.2000, although the date of occurrence as per the complaint
petition is 27.08.2000 and the date of occurrence as disclosed by PWs.-
1, 3 and 4 (as mentioned in his cross-examination) was 27.08.2000. The
said discrepancy in evidence is a minor discrepancy while considering
the totality of the evidences on record, particularly the fact that three
victims of the case i.e., PWs 1, 3 and 4 have fully corroborated the
prosecution case and their evidences were found to be intact by both the
learned courts below. The learned appellate court has recorded that the
cross-examinations of the witnesses were mainly on the point of
existence of land dispute between the parties and the defence had also
led evidence oral as well as documentary to that effect.
33. It is not in dispute that the complainant was residing at the place
of occurrence house along with her family and Tarun Karamkar is her
immediate neighbour. Merely because there is land dispute between the
parties, the same by itself is not sufficient to hold that the petitioners
have been falsely implicated in the case, particularly when the victims
of the case have supported the case and there is no material
contradiction in the evidences of the victims regarding time, date, place
and manner of occurrence.
34. So far as the argument of the learned counsel for the petitioners
regarding discrepancy in the framing of charge is concerned, the same
is also not sufficient to interfere with the concurrent findings recorded
by the learned courts below. The date of occurrence was also mentioned
in the complaint petition as 27.08.2000 and in the entire records of the
case there is no allegation from the side of the complainant regarding
any occurrence on 27.07.2000. The accused were well aware of the
allegations leveled upon them and they were not misled by error in
mentioning of date of first incident as 27.07.2000 instead of 27.08.2000
in the memo of charge. Moreover, specific questions were put to the
accused persons under Section 313 of Cr.P.C. mentioning the date of
occurrence as 27.08.2000 and 11.09.2000. The date of occurrence was
also mentioned in the complaint petition as 27.08.2000 and 11.09.2000.
Thus, no prejudice has been caused to the defence on account of error
in date of the first incident.
35. So far as the point of delay in filing the complaint case is
concerned, the same is well explained and merely because the
prosecution has failed to produce the written complaint to the S.P, the
same is not fatal to the prosecution case. Otherwise also there is minor
delay and cause for delay is well explained.
36. The learned counsel for the petitioners has also submitted that the
learned appellate court has not returned any finding with regards to the
second incident dated 11.09.2000. Upon reading of the finding of the
learned appellate court's judgement this court finds that the incident of
27.08.2000 as well as 11.09.2000 has been discussed in continuity but
no reference of dates has been given and it has also been observed by
the learned appellate court that the learned defence counsel cross
examined at length but he only went to show the old enmity.
37. The Hon'ble Apex Court has explained the power of revisional
court in the case of "Jagannath Choudhary and others Vs. Ramayan
Singh and Another" (2002) 5 SCC 659 at para. 9 as under:-
"9. Incidentally the object of the revisional jurisdiction as
envisaged u/s 401 was to confer upon superior criminal
courts a kind of paternal or supervisory jurisdiction, in
order to correct miscarriage of justice arising from
misconception of law, irregularity of procedure, neglect of
proper precautions of apparent harshness of treatment
which has resulted on the one hand in some injury to the
due maintenance of law and order, or on the other hand in
some underserved hardship to individuals. (See in this
context the decision of this Court in Janata Dal Vs. H.S.
Chowdhary). The main question which the High Court has
to consider in an application in revision is whether
substantial justice has been done. If however, the same has
been an appeal, the applicant would be entitled to demand
an adjudication upon all questions of fact or law which he
wishes to raise, but in revision the only question is
whether the court should interfere in the interests of
justice. Where the court concerned does not appear to
have committed any illegality or material irregularity or
impropriety in passing the impugned judgment and order,
the revision cannot succeed. If the impugned order
apparently is presentable, without any such infirmity
which may render it completely perverse or unacceptable
and when there is no failure of justice, interference cannot
be had in exercise of revisional jurisdiction."
38. The revisional power is further explained in the case of Ramesh
Kumar Bajaj reported in (2009) 1 JCR 684 (Jhar) at para. 13 as
follows:
"It is well settled that revisional interference may be
justified where:
(i) the decision is grossly erroneous.
(ii) there is no compliance with the provisions of law.
(iii) the finding of fact affecting the decision is not based
on evidence.
(iv) material evidence of the parties is not considered
and
(v) judicial discretion is exercised arbitrarily or
perversely."
39. In the case Duli Chand v. Delhi Administration, (1975) 4 SCC
649, the Hon'ble Supreme Court while considering the scope of
revisional power held in paragraph-5 as follows:
"5. The High Court in revision was exercising
supervisory jurisdiction of a restricted nature and,
therefore, it would have been justified in refusing to re-
appreciate the evidence for the purposes of determining
whether the concurrent finding of fact reached by the
learned Magistrate and the learned Additional Sessions
Judge was correct. But even so, the High Court reviewed
the evidence presumably for the purpose of satisfying
itself that there was evidence in support of the finding of
fact reached by the two subordinate courts and that the
finding of fact was not unreasonable or perverse."
40. This Court finds that the learned courts below dealt with the
materials on record and have recorded concurrent findings. In view of
the limited scope of revision jurisdiction, this Court finds no illegality
or perversity or material irregularity in the impugned judgments.
Accordingly, the judgment of conviction and the order of sentence
passed by the learned trial court and upheld by the learned appellate
court is affirmed. Consequently, all the three criminal revision
applications are hereby dismissed.
41. Bail bonds furnished by both the petitioners in Criminal Revision
No. 17 of 2012 and those furnished by the Petitioner Nos. 1, 2, 3, 5, 6,
8, 9 and 10 in Criminal Revision No. 77 of 2012 and those furnished by
both the petitioners in Criminal Revision No. 78 of 2012 are cancelled.
42. As the Original Petitioner No.4 (Rana Mazumdar) has died during
pendency of the Criminal Revision No. 77 of 2012, the substituted
Petitioner No. 4(a), the legal heir and successor of Late Rana
Mazumdar, is directed to deposit an amount of Rs.1,000/- imposed by
the learned trial court upon the convict-Rana Mazumdar, within a
period of 03 months from today, failing which the same would be
realized from the assets of the Original Petitioner No.4 in accordance
with law.
43. Similarly, as the Original Petitioner No.7 (Dukhu Karmkar) has
also died during pendency of the Criminal Revision No. 77 of 2012, the
substituted Petitioner No. 7(a), the legal heir and successor of Late
Dukhu Karmakar, is directed to deposit an amount of Rs.1,000/-
imposed by the learned trial court upon the convict-Dukhu Karmkar,
within a period of 03 months from today, failing which the same would
be realized from the assets of the Original Petitioner No.7 in accordance
with law.
44. Interim order, if any, stands vacated.
45. Pending interlocutory application, if any, is also dismissed as not
pressed.
46. Let the Lower Court Records be immediately sent back to the
court concerned.
47. Let a copy of this Judgment be communicated to the learned court
below through "FAX/e-mail".
(Anubha Rawat Choudhary, J.)
Binit/Pankaj/-
