Bhushan Bara vs The State Of Jharkhand
2023 Latest Caselaw 3335 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Cr. Revision No.521 of 2023
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1. Bhushan Bara, son of late Peter Bara

2. Suraj Gupta, son of Birju Saw

3. Sonu Bara @ Sohit Bara, son of late Mohan Hethri

4. Pushpa Bara, wife of late Mohan Hethri

5. Soni Minz, daughter of Khristopher Minz

6. Samir Minz, wife of late Khristopher Minz

7. Jasinta Minz @ Jasmita Minz wife of late Khristopher Minz

8. Josima Xaxa, wife of Bhushan Bara

9. Emma Bara, wife of Manoj Xess All resident of village Sogra, Pethiyar Toli, P.O. Pakartand, P.S. Pakartand, District Simdega (Jharkhand) ..... ...... Petitioner Versus

1. The State of Jharkhand

2. Rashmi Sanchita Ekka, daughter of Sushil Ekka, resident of Village 100, Deogaon, P.O. & P.S. Gumla, District Gumla (Jharkhand) ..... ....Opposite Parties

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CORAM : HON'BLE MR. JUSTICE SUBHASH CHAND

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For the Petitioner       : Mr. Shailesh Kumar Singh, Advocate
                           Mr. Abhijeet Kumar Singh, Advocate
For the State            : Mr. Manoj Kumar, G.A.-III
                           Mr. Vishwanath Roy, Spl. PP
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Order No.05/ Dated: 4th September, 2023

1. Heard the rival submissions of the learned counsel for the petitioners

and learned counsel for the State.

2. This Criminal Revision has been preferred on behalf of the petitioners

against the order dated 03.04.2023 passed by the learned Judicial Magistrate,

1st Class, Ranchi in M.P./ M.L.A. Case No.10 of 2021, arising out of

Simdega Mahila P.S. Case No.19 of 2019, whereby the learned Court below

has rejected the discharge application filed under Section 239 of the Code of

Criminal Procedure.

3. The learned counsel for the petitioners has submitted that the FIR of

this case was lodged by the victim herself against the nine named accused

persons, who are petitioners herein for the offence under Sections 341, 323,

354, 506 and 34 of the Indian Penal Code. The allegations made in the FIR

are not supported by the statements of any of the prosecution witnesses, who

were interrogated by the Investigating Officer during the investigation. Only

it is the victim, who in her restatement, corroborated the prosecution story. It

is also further submitted that even the Investigating Officer, who had filed

the charge-sheet drawing the conclusion from the evidence collected by him

that the allegations against the alleged persons are not true, but at the same

time, he filed the charge-sheet without any reason for the offence under

Sections 341, 323, 354, 506 and 34 of the Indian Penal Code. It is also

submitted that the Investigating Officer realized his mistake and he filed the

supplementary charge-sheet for the offence under Section 506 read with

Section 34 of the Indian Penal Code. It is also further submitted that the

offence under Section 506 read with Section 34 of the Indian Penal Code

being non-cognizable offence. It is further submitted that the offence under

Section 506 of the Indian Penal Code is also not made out from the evidence

collected by the Investigating Officer. It is also submitted that the learned

Court below has rejected the discharge petition of the petitioner without

applying the judicial mind not taking into consideration the statements of the

prosecution witnesses, who were interrogated during investigation, as such,

the discharge application of the petitioner should have been allowed.

4. The learned APP appearing on behalf of the State conceded that

though the allegations made in the FIR are supported by the victim herself in

her re-statement, yet no one of the prosecution witness under Section 161 of

the Code of Criminal Procedure has supported the FIR case. So far as the

offence under Section 506 read with Section 34 of the Indian Penal Code is

concerned, in regard to the same, supplementary charge-sheet has been filed

by the Investigating Officer and the Investigating Officer has also admitted

his mistake that he had wrongly filed the charge-sheet. Yet, the only offence

under Section 506 read with Section 34 of the Indian Penal Code is made out

so the Investigating Officer submitted the supplementary charge-sheet. It is

also conceded by the learned APP that from the re-statement of the victim,

the ingredient of offence under Section 506 read with Section 34 of the

Indian Penal Code is made out; but from the statement of any other

witnesses, no alleged offence is made out.

5. It is settled law that while framing the charge or disposing the

discharge petition of the accused, the Court has to take into

consideration the allegations made in the FIR and the statement of the

witnesses, who were interrogated during investigation by the

Investigating Officer as well as the documentary evidence collected by

the Investigating Officer. At the time of framing charge, the evidence

cannot be evaluated. The marshaling of evidence or appreciation of

evidence is not permissible. The Court has to see whether from the

allegations made in the FIR and the evidence collected by the

Investigating Officer, there are sufficient ground to proceed with trial

against the accused for the alleged offence, then the discharge

application may be declined to allow.

6. The FIR case is that the victim gave written information to the police

station concerned with these allegations that at the behest of Soni Minz one

of the accused, victim went to the house of maternal uncle of Soni Minz,

namely, Bhushan Bara. At the house of Bhushan Bara, he himself, his wife,

namely, Josima Xaxa, Emma Bara, mother of Soni Minz, namely, Jasinta

Minz and Samir Minz (brother) all were present. All unanimously had asked

the victim to change the religion of Anup, but the same was opposed by the

victim. On this, all the accused persons, who were present at the house of

Bhushan Bara hurled abuse in filthy words and insulted the victim and they

also used derogatory word. The accused persons also hurled abuse to her

mother. All the accused persons tried to disrobe her. Bhushan Bara pulled

her scarf (dupatta) and threatened that she would be paraded in the village

by putting the garland of the sleepers in her neck so that she could not show

her face to anyone.

On 05.02.2018, case was fixed for hearing in the Court. The victim

also went there. All of a sudden, she started not feeling well, then she went

for treatment to Sadar Hospital, Simdega. At the hospital, Pushpa Bara and

her son, namely, Sonu assaulted her. Sonu also criminally intimidated her to

life. When she was going outside, Suraj Gupta insulted her by stating caste

related words and threatened to withdraw the case otherwise she would be

raped and killed.

On 07.07.2018, she went at the residence of Superintendent of Police,

Simdega to meet him. When she came out, Suraj Gupta was standing outside

the house. He stalked her and further used caste related words and criminally

intimidated her. On 10.12.2018, outside the Court premises of Simdega,

Mukhiya, namely, Bhushan Bara along with 2-3 persons were standing there

and they asked to withdraw the case otherwise she along with her mother

shall be finished. At some distance from that place, Jhama Bara was there on

his Scooty. Bhushan Bara further criminally intimidated by saying that he

would ruin her life. Bhushan Bara also threatened her that he would oust her

from the society and all of a sudden, put his hand on her breast and started

laughing. When, the victim along with her mother started to move towards

bus stand, Samir and Suraj abused her and also criminally intimidated her.

Samir Minz also put his hand on her back in order to outrage her modesty

and this FIR was lodged.

7. The restatement of the victim was recorded in paragraph No.3 of

the case diary, in which, she reiterated all these allegations, which are made

in the FIR. In paragraph No.4 of the case diary, the mother of the victim,

namely, Aana Ekka stated that on 02.01.2018, she at the behest of her

daughter reached to the house of Mukhiya, namely, Bhushan Bara at 09:30,

where Soni Minz identified her and some altercation took place between

Soni Minz and the victim but no other comment was made by this witness

with regard to the parents. In paragraph No.5 of the case diary, Shashi

Bhushan also stated that on 02.01.2018, at the behest of Anup Bharti and

Rashmi Sanchita Ekka, he reached to the house of Mukhiya, Bhushan Bara

at 09:30, wherein he identified only Soni Minz and the talks were exchanged

between Rashmi Sanchita Ekka and Soni Minz. Thereafter, Soni Minz called

the police. Anup Bharti was called to the police station for interrogation and

no other statement was given in regard to the alleged occurrence. In

paragraph No.10 of the case diary, the statement of independent witness

Victor Khes, in paragraph No.11 of the case diary, the statement of Kanti

Khes, in paragraph No.12 of the case diary, the statement of Nistor Khes,

in paragraph No.13 of the case diary, the statement of Nilima Minz were

recorded. All these witnesses in their statement have not corroborated

any of the allegations in regard to the several incidents, which were

narrated in the FIR. In paragraph No.22 of the case diary, the statement

of Birendra Roy has been recorded, he stated in regard to the occurrence

of 10.12.2018 that no alleged occurrence was taken place outside the

Simdega Court Complex. In paragraph Nos.31, 32, 33 and 34 of the case

diary, statement of other witnesses have been recorded in regard to the

occurrence of 05.02.2018 and all these witnesses did not support the

allegations in regard to the occurrence of 05.02.2018 and stated that no

alleged occurrence took place there while they were present at the

alleged place of occurrence.

8. In paragraph No.71 of the case diary, it has been stated by the

Investigating Officer that the gist of the evidence collected by him during

the investigation is that no alleged occurrence was stated by any of the

prosecution witnesses, whose statements were recorded under Section

161 of the Code of Criminal Procedure during investigation and the

Investigating Officer also held that the allegations against the accused

persons were not true, but in the last paragraph, the Investigating Officer

filed charge-sheet against all nine accused persons for the offence under

Sections 341, 323, 354 and 506/34 of the Indian Penal Code.

9. From perusal of the supplementary case diary filed by the

Investigating Officer, it is found that the Investigating Officer admitted that

mistakenly the charge-sheet was filed under Sections 341, 323, 354, 506 and

34 of the Indian Penal Code and in paragraph No.2 of the supplementary

charge-sheet, the conclusion was also modified by the Investigating Officer

by filing supplementary charge-sheet. Ultimately, in paragraph No.7 of the

supplementary charge-sheet, the Investigating Officer gave his conclusion

that the offence under Section 506 read with Section 34 of the Indian Penal

code is made out; while from the statement of all the witnesses, who were

interrogated during investigation, whose statements were recorded in the

case diary and none of the offence is made out against the petitioners/

accused persons in supplementary case diary. The Investigating Officer did

not record the statement of any other witness rather the Investigating

Officer admitting his mistake while filing the supplementary charge-

sheet stated that only the offence under Section 506 read with Section 34

of the Indian Penal Code is made out. This conclusion of the

Investigating Officer is not supported by the statement of any of the

prosecution witnesses, who were interrogated during investigation.

10. Therefore, from the allegations made in the FIR, the statement of

witnesses under Section 161 of the Code of Criminal Procedure and the

evidence collected by the Investigating Officer during investigation, the

alleged offence is not made out against these petitioners, as such, this Court

is of considered view taking into consideration the allegations made in

the FIR, which are not supported with the evidence collected by the

Investigating Office during investigation in its entirety, the impugned

order passed by the learned Court below in rejecting the discharge

application of the petitioners bears illegality and the same needs

interference. Accordingly, the order passed by the learned Court below

is set-aside.

11. In consequence thereof, this Criminal Revision is hereby allowed.

The petitioners are discharged from the charge framed against them. The

consequence thereof is to be followed by the learned Court below.

12. Let a copy of this judgment be communicated to the learned Court

below.

(Subhash Chand, J.)

Madhav/-