Chandrakant Dev Pandey @ ... vs The State Of Jharkhand
2023 Latest Caselaw 1832 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                       (Criminal Appellate Jurisdiction)

                    Criminal Appeal (V) No.6 of 2022
Chandrakant Dev Pandey @ Chandrakant Deo Pandey, s/o Shobhanath
Pandey, r/o village-Bailiya, PO-Birbal, PS-Dhurki, District-Garhwa,
Jharkhand                                          ...... Appellant
                                 Versus
1. The State of Jharkhand
2. Sitaram Mishra, s/o late Baikunth Mishir
3. Suman Nath Mishra, s/o late Bidya Sagar Mishir
Both r/o village-Bailiya, PO-Birbal, Ps-Dhurki, District-Garhwa, Jharkhand
                                                             ...... Respondents


CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant          : Mr. Sanjay Kumar Pandey-2, Advocate
For the State of Jharkhand : Mrs. Priya Shrestha, Spl.PP
                           --------------
                                                            ORDER

1st May 2023 Per, Shree Chandrashekhar, J.

This criminal appeal has been filed by Chandrakant Dev Pandey @ Chandrakant Deo Pandey who is the informant of Dhurki PS Case No.19 of 2008.

2. In Sessions Trial No.214 of 2009, Sitaram Mishra and Suman Nath Mishra were put on trial on the charge under section 436 of the Indian Penal Code. During the trial, the prosecution has examined 13 witnesses and laid in evidence rent-receipts vide Exhibit-3 and certified copy of Deed No.206 of 2010 vide Exhibit-4.

3. The defence set-up by the aforementioned accused persons was that on account of past enmity and dispute pertaining to land the informant has falsely implicated them. The accused persons have put suggestions to the witnesses that the informant had fabricated evidence to the extent that he himself put a portion of his house on fire to falsely implicate them. The accused persons who are arrayed as respondent nos. 2 and 3 in this criminal appeal have examined Shital Mishra as DW1 and Unday Nath Mishra as DW2 to corroborate their stand. They have also laid in evidence the following documents:

(i) Exhibit-A - certified copy of the deposition of Nasiruddin Ansari in G.R. No.739 o f 2008,

(ii) Exhibit-A/1 - certified copy of deposition of Kadir Mian in G.R. No.739 of 2008,

(iii) Exhibit-A/2 - certified copy of order sheet in C-105/2008

(iv) Exhibit-B - certified copy of S.A in C-105/2008 and

(v) Exhibit-C - certified copy of Judgment passed in C-298/2008.

4. PW1, PW2, PW3 and PW7 did not support the prosecution in the Court and they were declared hostile. PW6, PW8, PW9 and PW10 are the related witnesses whose evidence has been labelled as partisan laced with bad motive. The gist of the prosecution evidence is that the informant is the only person who has remained unshaken in the Court on his stand that he has seen the respondent nos.2 and 3 putting fire and running away from his house - PW6 and PW9 have not been believed by the Court. The learned trial Judge has held that the informant and his wife had deliberately suppressed the fact that Fulmati was the sister of Rameshwar Mishra. According to the trial Judge, this fact was relevant for the reason that Fulmati has executed sale-deed in favour of the wife of the accused persons and that was the reason for dispute between the parties. The learned trial Judge has further observed that the son of the informant (PW9) who was only 15 years old has falsely deposed in the Court that he was studying law whereas his date of birth was 12th January 1993. The trial Judge has further noticed that in his cross-examination PW9 has stated that he had seen the accused persons coming out from his house but in the same breath he has stated that when he woke up the villagers were not present there. PW9 has admitted in his cross-examination that he had seen the accused persons from the back side and, that too, from a distance of 10-12 steps.

5. The learned trial Judge has discussed the evidence of PW4, PW5, PW8 and PW9 in the following manners:

"12.................Thus from careful perusal of the evidence of PW-4 and PW-5 it appears that they have stated that they have reached the place of occurrence on the hulls of the informant. Both these witnesses in their evidence have also stated that they were irrigating their crops and when they heard hulla of the informant. But 1.0. at para 15 has stated that Kadir Ansari (PW-5) has given a statement to him that at that time he was sleeping at his house and woke up on the hulla. Both these witnesses in their cross examination have stated that they have not seen anyone fiting the fire. In fact PW-4 in para 5 of his cross-examination he stated that he came to know from Saryu Pandey that accused persons have lit the fire who has not been examined. As per statement of PW-5 and PW-6 it was dark night, however the informant has stated that it was moon night, thus both this statement stand in contradiction to

each other. Further as per the statement of PW-5 several persons gathered over there namely Raedra Mishra, Ram Nath Mishra, Indramani Mishra, Mandeep Vishwakarma, Hakim Mian and others. In such case the most natural witnesses are the immediate neighbour and none of the neighbours have supported the case of the prosecution. In fact Ramendra Mishra and Shailendra Kumar Mishra have turned hostile. As per the statement of the PW-6 the house of Shailendra Kumar Mishra is on the eastern side of her house. Also as per examination in chief of the informant himself Ramendra Mishra was also present at the place but he has not supported the case of the prosecution. Further prosecution has not examined the charge-sheeted witnesses Arun Kumar Mishra and Indramani Mishra, specially when as per the evidence of PW-5 Indramani Mishra was present at the place of occurrence on hulla. Further PW-10 in his cross-examination at para 15 has stated that no Brahmn's family has came at his door at the time of occurrence which stand in complete contradiction with the statement of other eye witnesses. Further the PW-12 Asik Mian who was also present at the place of occurrence has not supported the case of the prosecution and has stated that till date he did not hear who has lit the fire. As per PW-8, PW-9 and PW-10 informant immediately after the incident has informed the Chaukidar Gulab Chaudhary but he has also not been examined."

6. PW4 has stated that Pandit Jee was raising hullah, there was fire inside the house, the fire was on southern portion of the house and cot, pillow and blanket in the house were found burnt. He has admitted in his cross-examination that the informant's mother-in-law has sold lands and executed the sale-deeds in his favour. PW5 has stated that he saw fire on the southern side of the roof of the house of the informant. He has also admitted in the cross-examination that he has purchased land from the mother-in-law of the informant. He has further admitted that he was a witness in two other cases filed by the mother-in-law of the informant. He admits that she has lodged G.R Nos.739 of 2008 and 298 of 2008 against the accused persons and in one of the cases he has tendered evidence on her behalf. PW6 who is the informant's wife has stated in the Court that she has seen Sitaram Mishra and Suman Mishra putting her house on fire by lukbari and raised hullah whereupon Shailendra Mishra, Ravindra Mishra, Arun Mishra and others came rushing there. She has admitted in the Court that she did not inform the police that Fulmati Kunwar has sold some land to Sitaram Mishra and Suman Mishra. She has also not made a statement before the Investigating Officer that there was dispute between the parties with respect to the same land because her mother had transferred the same land to her sons.

7. The trial Judge has observed that PW4 and PW5 who are the co-villagers have also admitted in their cross-examination that they have not

seen the respondent nos.2 and 3 putting the house of the informant on fire. The evidence tendered by these witnesses is quite contrary to the story narrated by the informant in his written report.

8. As PW8, the informant has tendered evidence that Sitaram Mishra lodged Complaint Case No.105 of 2008 against him and he has also lodged G.R No.739 of 2008 against Fulmati Devi and the accused persons alleging forgery by them. There is a reference of Partition Suit No.77 of 2007 and G.R No.461 of 1993 in the testimony of PW8. Similarly, PW9 and PW10 who are the informant's sons were also put to suggestion by the defence that their maternal grandfather had sold lands to Kadir Miyan, Nasiruddin Miyan and others and that was the reason for dispute between his father and the accused persons.

9. It has also come on record that the informant has filed GR Case No.739 of 2008 and his mother-in-law has filed Complaint Case No.298 of 2008 against the respondents. On the other hand, the respondents have filed complaint Case No. 105 of 2008 against the informant. Further, Suman Nath Mishra and Sitaram Mishra have got the sale-deeds of the land executed in favour of their wife from the sister of the informant's father-in-law. Therefore, the learned trial Judge has held that relation between the appellant and the respondents were hostile. So, this is an admitted position that there is a land dispute between the parties, the parties are litigating several cases in the Court and, that, the related witnesses and the neighbours of the informant are highly interested witnesses. In a criminal trial, this is of vital importance that identity of the accused is established clearly and there should be sufficient evidence to establish his participation in the occurrence. However, the evidence of PW8 does not inspire confidence of the Court. In the circumstances of the case, there is a cloud over the prosecution case on account of past animosity between the parties.

10. The powers of the appellate Court to interfere with the judgment of acquittal has been discussed by the Hon'ble Supreme Court in a catena of judgments including "Madan Lal v. State of J&K" (1997) 7 SCC

677.

11. In "Madan Lal" the Hon'ble Supreme Court has held that the essence of the decisions of the Supreme Court is that the appellate Court should examine the evidence in a particular case and the reasons recorded

by the trial Judge for acquitting the accused and only upon being satisfied that there are sufficient materials on record and the reasons assigned by the trial Judge is quite unreasonable the High Court should interfere with an order of acquittal.

12. In "Ghurey Lal v. State of U.P." (2008) 10 SCC 450 the Hon'ble Supreme Court has held as under:

"69. The following principles emerge from the cases above:

1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong."

13. Having regard to the aforesaid facts and circumstances in the case, we find no reason to interfere with the judgment of acquittal recorded in Sessions Trial No.214 of 2009 and, accordingly, Criminal Appeal (V) No.6 of 2022 is dismissed.

14. Let a copy of the order be transmitted to the Court concerned.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) High Court of Jharkhand, Ranchi Dated: 1st May 2023 Sudhir/NAFR