Surendra Sharma @ Shivendra ... vs The State Of Jharkhand
2022 Latest Caselaw 3613 Jhar

                                          1                      Cr. Appeal (SJ) No.215 of 2006




                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          Cr. Appeal (SJ) No.215 of 2006

      (Against the Judgment of conviction and Order of sentence dated 27.01.2006
      passed by the Additional Sessions Judge-I-cum- Special Judge, Godda, in Special
      Case No.5 of 1998)


      Surendra Sharma @ Shivendra Sharma son of late Tapeshwar Sharma,
      resident of village Saraiya, P.S. Rani Kala, Dist. Patna (Bihar).
                                                    .....                      Appellant
                                        Versus
      1. The State of Jharkhand
      2. Anand Rajak son of late Raghubir Rajak, resident of village Kumarsar, P.S.
         Sangrampur, Dist. Monghyr (Bihar)      .....                   Respondent


                                        PRESENT

                  HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

                                              .....

For the Appellant : Mrs. Shubhashis Rasik Soren, Advocate For the State : Mr. Sardhu Mahto, Addl. P.P.

.....

By the Court: - Heard the parties.

2. This appeal has been preferred against the Judgment of conviction

and Order of sentence dated 27.01.2006 passed by the Additional Sessions

Judge-I-cum- Special Judge, Godda, in Special Case No.5 of 1998 whereby and

where under, the appellant has been held guilty for the offence punishable

under section 3 (1) (x) of Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989 as well as under Sections 379, 323, 500 of the Indian Penal

Code and for the offence punishable under Section 3 (1) (x) of Scheduled Caste

and Scheduled Tribe (Prevention of Atrocities) Act, 1989, the appellant-convict

has been sentenced to undergo R.I. for three years and fine of Rs.2000/- and in

default of payment of fine, the appellant-convict is to further undergo separate

sentence for six months. The appellant-convict has further been sentenced to 2 Cr. Appeal (SJ) No.215 of 2006

undergo R.I. for one year for the offence punishable under Section 379 of

Indian Penal Code, undergo R.I. for one year for the offence punishable under

Section 323 of Indian Penal Code and also undergo S.I. for one year for the

offence punishable under Section 500 of Indian Penal Code.

3. The brief facts of the case is that it is alleged by the complainant

that on 07.10.1997 at 10:45 A.M. when the complainant was in his residence, he

was called on by the Assistant of the Police-in-Charge and told that 'Sala

Harijan Apne Ko Kya Samjheta ho Hamare Bare Me Likha Pardhi Kiye Ho, Mujhe

Jante Nahi Ho Aisa Master hum Roj Paida Karte Hai" and thereafter assaulted the

complainant by fists and slaps and warned the complainant not to cross

through the passage adjacent to the police station campus and thereafter

snatched away the wrist watch and took away Rs.500/- from the pocket of the

complainant and also took away his fountain pen and also abused by his caste

name and by taking the name of his mother. It is further the case of the

complainant that prior to the said occurrence on 01.10.1997 at 10:00 A.M., when

the complainant was going to his school where he was working as an Assistant

Teacher, the appellant-convict called the complainant to the police station

campus without having any reason and assaulted him by slaps and fists and

against that, the complainant complained before the higher leaders and officers

and due to the same, the second occurrence took place. The complainant filed

the complaint before the Chief Judicial Magistrate, Godda and the same was

transferred to the court of another Judicial Magistrate and the Judicial

Magistrate found prima facie case against the accused and referred the case to

the Special Court constituted under the provision of the Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities) Act, 1989. Separate charges for the

offences punishable under Section 3 (1) (x) of Scheduled Caste and Scheduled

Tribe (Prevention of Atrocities) Act, 1989 as well as for the offences punishable 3 Cr. Appeal (SJ) No.215 of 2006

under Sections 379, 323 & 500 of Indian Penal Code were framed against the

appellant-convict. The appellant-convict pleaded not guilty and he was put to

trial.

4. In support of his case, the complainant altogether examined five

witnesses and from the side of the defence, one witness was examined and the

station diary entry dated 01.10.1997 which shows that the appellant-convict

had gone to a far off place in connection with the investigation of the case from

10:00 hours and 16:30 hours on 01.10.1997.

5. Out of the five witnesses examined by the complainant, C.W.1-

Gopal Rajak is the nephew of the complainant. He has stated that he was under

a Pippal tree and the complainant went to the police station. The appellant-

convict abused the complainant by taking the name of his mother and he took

way Rs.500/- and one pen from the upper pocket of the complainant and also

snatched away his wrist watch and threatened him not to write against him.

He has also stated about the occurrence that took place on 07.10.1997. In his

cross-examination, the C.W.1 has stated that at the time of occurrence, he was

reading in Class-VIII and does not remember the date of occurrence but it was

a holiday. The Pippal tree under which he was standing was at a distance of

25-30 yards from the police station. On the date of occurrence he did not go

inside the police station along with complainant.

6. C.W.2- Nand Kishore Das has stated that on 07.10.1997, he was

near the Pippal tree and he saw the appellant-convict abusing the complainant

by the name of his mother and his caste name of Harijan. In his cross-

examination, he has stated that Rajak did not belong to ravidas or chamar caste.

He has stated that he does not know the appellant-convict. C.W.2 further stated

that before the occurrence, the C.W.2 was remanded from the police station in 4 Cr. Appeal (SJ) No.215 of 2006

a case of loan two months prior to the occurrence and the appellant-convict

was also posted in the police station.

7. C.W.3- Sakaldip Singh has stated that on 07.10.1997 at 11:00 A.M.,

he saw the appellant-convict beating the complainant in the courtyard of the

police station and abusing him by the name of his mother and caste name of

harijan and snatched away wrist watch and took money from the pocket of the

complainant. He stated that he cannot say why the appellant-convict behaved

like that. Before the occurrence, his sons were talked by the complainant and

there is no public role inside the police station and the police station has its

own campus.

8. C.W.5- Kamal Kishore Rajak deposed that on the date of

occurrence, he remained at the place of occurrence for 14-15 minutes and stated

that the Daroga Ji took the amount from the upper pocket of the complainant

and in his pocket, the complainant kept Rs.500/-.

9. C.W.4- Anand Rajak is the complainant himself. He has stated that

on 07.10.1997 at about 10:45 A.M., the staff of police came to call him and he

went to the police station with C.W.5 and C.W.1 and he reached the police

station, the appellant-convict assaulted him and said "sala harijan you write

against me and I create master (teacher) like you daily. This is not your father's road".

Thereafter, he snatched away wrist watch from his hand and also Rs.500/-

from his pocket and a blue lead. He also abused by taking the name of his

mother and name of his caste harijan. He has stated about the occurrence of

01.10.1997 when he was going to school, police called him and the appellant-

convict assaulted him by fist and slaps and told him not to cross through the

colony. The complainant complained to the D.S.P. and S.P., Chief Minister,

Governor. He explained that he filed the case late because as he was mentally

preparing for the institution of the case and there was a holiday and also 5 Cr. Appeal (SJ) No.215 of 2006

waiting for the reply from the higher authority. In his cross-examination, he

has stated that on the date occurrence, he was in the house of Sunil Kumar

Singh as a tenant. The occurrence of 01.10.1997 took place at 10:00 am. On

07.10.1997, the school was closed. He has further stated that the distance

between the police station and the hospital is 100 yards.

10. After closure of the evidence of the prosecution, the statement

under Section 313 of the Cr.P.C. of the appellant-convict was recorded

regarding the circumstances appearing in evidence against him but he denied

the same.

11. From the side of the defence, one witness was examined as D.W.1-

Joya Lal Arya. He has stated the boundary wall of the police station was

bounded by the barbed wire and there is no road from Parthargama Police

Station to Jogidih village and Ext. A and Ext. A/1 which is the certificated copy

of the station diary entry goes to show that appellant-convict along with

reserved armed forces have gone to the village Chilra in connection with raid

and investigation of P.S. No.112 of 1997. They left the police station at 10:00

hours on 01.10.1997 and returned to the Police Station on 16:30 hours of the

same day.

12. Learned trial court after considering the evidence in the record

came to a conclusion that the evidence in the record establishes the ingredients

of the offences punishable under Section 3 (1) (x) of Scheduled Caste and

Scheduled Tribe (Prevention of Atrocities) Act, 1989 as well as under Sections

379, 323 & 500 of Indian Penal Code and sentenced him as already indicated

above.

13. Mr. Shubhashis Rasik Soren, learned counsel for the

appellant submits that the impugned judgment of conviction and order of

sentence is illegal and is not sustainable in law because the learned court below 6 Cr. Appeal (SJ) No.215 of 2006

has failed to consider the evidence in the record in its proper perspective and

has ignored the material contradictions in the testimonies of witnesses put

forth by the complainant, including the place of occurrence, as C.W.3 has

stated that the occurrence took place in the courtyard of the Police Station

whereas other witnesses have stated that the complainant went inside the

Police Station. It is further submitted by Mr. Soren that the learned court below

has failed to consider the defence evidence which has been put forth through

Ext. A and Ext. A/1 whereby the basis of the alleged occurrence on 7.10.1997

being the alleged occurrence on 01.10.1997; has been falsified. Mr. Soren further

submitted that so far as the offence punishable under Section 3 (1) (x) of

Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 is

concerned, the essential ingredients to establish the said offence is that the

accused must not be a member of the scheduled caste and scheduled tribe and

there is absolutely no evidence in the record to suggest that the appellant-

convict is not a member of the scheduled caste or scheduled tribe and as none

of the witnesses examined by the complainant has stated that the appellant-

convict is not a member of scheduled caste or scheduled tribe and in the

absence of that, the learned trial court erred by holding that the prosecution

has succeeded in establishing the charge for the offence punishable under

Section 3 (1) (x) of Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989. It is further submitted by Mr. Soren that the learned trial

court erred by observing that it is an admitted fact that the complainant is a

member of scheduled caste whereas there is absolutely no admission from the

side of the appellant-convict rather in paragraph no.17 itself of the impugned

judgment, the learned court below himself has mentioned that the learned

counsel for the appellant-convict before him submitted that the complainant

has failed to show that he is a member of scheduled caste and on this score 7 Cr. Appeal (SJ) No.215 of 2006

also, the learned trial court ought to have held that the offence punishable

under Section 3 (1) (x) of Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989 is not made out. It is next submitted by Mr. Soren that in

view of the nature of evidence put forth by the prosecution in this case, the

animosity between the appellant-convict and the complainant is apparent

because of an occurrence which allegedly took place on 01.10.1997 which of

course, stand falsifies by Ext. A and Ext. A/1 and considering the fact that the

witnesses examined in this case are interested witnesses and the nature of

evidence put forth by them goes to show the witnesses of the complainant are

tutored witnesses and it is highly unlikely as the person who claimed to be not

talked to the complainant on the date of occurrence could see from a distance

from 25-30 yards small objects like currency note of ₹ 500,pen et cetera and also

hear the conversations between the complainant and the appellant-convict in

the police station. It is next submitted by Mr. Soren that there is material

contradictions in respect of the place of occurrence as though the C.W.3 has

stated that the same was the courtyard of the police station but other witnesses

have stated that the occurrence took place inside the police station as they have

categorically stated that the complainant went inside the police station. It is

next submitted by Mr Soren that there is admitted quarrel between the

appellant-convict and the complainant relating to the complainant being

forbade by the appellant-convict from daily passing through the police station

campus. It is also submitted that admittedly there is an inordinate delay in

lodging the complaint and there is no justifiable reason as to why the

complainant did not lodge the First Information Report with higher police

officer and this leads one to the only conclusion that the complainant has

falsely implicated the appellant-convict because of the said prayer anonymity

and the learned trial court committed grave error in not appreciating this 8 Cr. Appeal (SJ) No.215 of 2006

aspect of the matter. It is then submitted that the evidence in the record is

woefully inadequate to bring home the charges for any of the offences

punishable under sections 379, 323 or 500 of the Indian penal code. Hence, it is

submitted that in the facts of the case, the appellant-convict be acquitted of the

charges for the offence punishable under section 379, 323 & 500 of Indian Penal

Code by at least giving him the benefit of doubt.

14. Learned Addl. P.P. on the other hand defended the impugned

judgment of conviction and order of sentence and submitted that the evidence

in the record is sufficient to establish all the offences for which the appellant-

convict has been held guilty and as the complainant and his witnesses have

proved the same beyond all reasonable doubt by their cogent oral testimony.

Hence, it is submitted that this appeal being without any merit be dismissed.

15. Having heard the submissions made at the Bar and after going

through the materials in the record, it is crystal clear that there is absolutely no

evidence in the record that the appellant-convict is not the member of

scheduled caste or scheduled tribe. Section 3 (1) (x) of the Scheduled Caste and

Schedule Tribes (Prevention of Atrocities) Act, 1989 reads as under:

3. Punishments for offences of atrocities.--

(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,--

...     ...      ...      ...      ...      ...       ...     ...      ...      ...         ...        ...

...     ...      ...      ...      ...      ...       ...     ...      ...      ...         ...        ...

(x) intentionally insults or intimidates with intent to humiliate a member of a

Scheduled Caste or a Scheduled Tribe in any place within public view;

From bare perusal of Section 3 (1) (x) of the Scheduled Caste and Schedule

Tribes (Prevention of Atrocities) Act, 1989 it is crystal clear that one of the

essential ingredients to bring home the said charge is that the accused person

must not be a member of a Scheduled Caste or a Scheduled Tribe. Hence in the 9 Cr. Appeal (SJ) No.215 of 2006

absence of any evidence whatsoever regarding this essential ingredient of the

said offence, this Court has no hesitation in holding that the learned trial court

has committed an error in holding that the charge for the offence punishable

under Section 3 (1) (x) of Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989 has been established.

16. So far as the offences punishable under the penal provisions of the Indian

Penal Code for which the appellant-convict has been convicted and sentenced

are concerned it is pertinent to mention here that it is a settled principle of

law that the evidence put forth by the defence in a criminal case is to be

weighed in the scale of preponderance of probabilities and the defence version

need not be proved beyond reasonable doubt which is a sine qua non for

bringing home the charge against the accused in a criminal trial. The Ext. A

and Ext. A/1 which are the station diary entries is sufficient for the court to

come to a reasonable conclusion that the appellant-convict may not be present

in the police station that the alleged time of occurrence which has alleged to

have been taken place on 01.10.1997. As there is sufficient material in the

record to create doubt about the occurrence of 01.10.1997; the same creates

doubt about the entire prosecution case. The doubt is enhanced by the other

attaining circumstances like the delay in lodging the complaint, the

complainant not approaching any the higher officers of police with the First

Information Report though it is an admitted fact that he complained about the

first occurrence of 01.10.1997 to several authorities and being annoyed with

that the appellant convict committed the alleged offence on 07.10.1997 as well

as the admitted animosity between the complainant and the appellant-convict

prior to the alleged occurrence in connection of the complainant being forbade

by the appellant-convict used to path going through the Police Station campus.

10 Cr. Appeal (SJ) No.215 of 2006

17. So far as the charge for the offences punishable under Sections 379 of the

Indian Penal Code is concerned, the essential ingredients are as follows:

(1) moving a movable property of a person out of his possession without his

consent,

(2) the moving being in order to the taking of the property with a dishonest

intention.

Thus, (1) the absence of the person's consent at the time of moving, and (2) the

presence of dishonest intention in so taking and at the time are the essential

ingredients of the offence of theft.

As has been observed by the Hon'ble Supreme Court of India in the case of

K.N.Mehra versus State of Rajasthan (AIR 1957 SC 369).

Now coming to the facts of the case the evidence in the record goes to show

that the appellant convict has only removed certain articles from the upper

pocket of the complainant. There is absolutely no evidence in the record that he

did so with dishonest intention nor there is any evidence in the record as to

what happened to those articles. Under such circumstances in the absence of

any evidence regarding the petitioners intention on the part of the appellant-

convict keeping in view the admitted facts that at the relevant point of time the

appellant-convict was a police officer and the occurrence took place inside a

Police Station, certainly the presumption cannot be drawn in the absence of

any evidence in this regard that the appellant took of the articles with any

dishonest intention. Thus this Court has no hesitation in holding that the trial

court erred in arriving at the conclusion that the prosecution has succeeded in

establishing the charge for the offence punishable under section 379 of the

Indian Penal Code.

11 Cr. Appeal (SJ) No.215 of 2006

18. So far as the offence punishable under section 323 of the Indian Penal

Code, is concerned the essential ingredient to bring of the said charge is as

under:

a) accused voluntarily call for the pain, deceased or infirmity to the victim;

b) the accused did so with the intention of causing hurt or with the knowledge

that he would thereby cause hurt to the victim.

Now coming to the evidence in the record in this regard, there is no evidence

in the record is to on which portion of the body of the complainant, the

appellant-convict was assaulted. Nor there is any evidence as to why what

manner by slapping or by kicks or by fist blows. So the evidence in this respect

is not specific. The trial court even did not consider the testimony of the

complainant nor referred to the same in the impugned judgment. The evidence

in the record so far as the ingredients of the offence punishable under section

323 of the Indian Penal Code do not inspire confidence more so because there

is discrepancy in the place of occurrence as stated by the different witnesses.

Under such circumstances this court is of the considered view that this is a fit

case where the appellant-convict the acquitted of the charges for the offence

punishable under section 323 of the Indian Penal Code, by giving him the

benefit of doubt.

19. So far as the offence punishable under section 500 of Indian Penal Code

are concerned, the essential ingredients of section 500 of the Indian Penal Code

are as under:

A) making or publishing any imputation concerning any person;

B) such imputation must have been made by words either spoken or intended

to be read, or by signs, or by visible representation, and;

12 Cr. Appeal (SJ) No.215 of 2006

C) such imputation must have been made with intent to harm, or with the

knowledge of the belief that it will harm the reputation of the person

concerned.

Now coming to the evidence in the record there is no allegation against the

appellant-convict for uploading the abuses of lowering the reputation of the

complainant in the estimation of the right-thinking people. The occurrence

took place admittedly inside a police station. There is no evidence that the

appellant-convict was aware about the presence of anybody else than he and

the complainant. Under such circumstances this court is of the considered view

that the evidence in record is insufficient to establish the charge for the offence

punishable under section 500 of the Indian Penal Code particularly keeping in

view the doubt which has been created about the case of the complainant

because of the reasons already mentioned in the foregoing paragraphs of this

judgment. So, this Court is of the considered view that this is a fit case where

the appellant-convict be acquitted of the charges for the offences punishable

under Sections 379, 323 & 500 of Indian Penal Code by giving him the benefit

of doubt.

20. In view of the discussions made above, the impugned Judgment of

conviction and Order of sentence dated 27.01.2006 passed by the Additional

Sessions Judge-I-cum- Special Judge, Godda, in Special Case No.5 of 1998 is set

aside and the appellant-convict- Surendra Sharma @ Shivendra Sharma is

acquitted of the charges punishable under Section 3 (1) (x) of Scheduled Caste

and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and also under

Sections 379, 323 & 500 of Indian Penal Code, by giving him the benefit of

doubt.

21. It appears that the appellant-convict is in custody. In view of his

acquittal, the appellant-convict- Surendra Sharma @ Shivendra Sharma is 13 Cr. Appeal (SJ) No.215 of 2006

directed to be released from the custody forthwith unless his detention is

required in connection with any other case.

22. In the result, this appeal is allowed.

23. In view of the disposal of this appeal, all the interlocutory

applications are also disposed of being infructuous.

24. Let a copy of this Judgment be sent to the court below forthwith.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 9th September, 2022 AFR/ Sonu-Gunjan/-