Diwakar Jha vs The State Of Jharkhand
2023 Latest Caselaw 3589 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             (Criminal Appellate Jurisdiction)
                         Acquittal Appeal (DB) No. 49 of 2020

Diwakar Jha, s/o late Gorelal Jha, aged 65 years, resident of village Bodra,
PO and PS Pathargama, District-Godda, Jharkhand             ......Appellant
                                        Versus
1.The State of Jharkhand
2.Sudhakar Jha, s/o late Gorelal Jha, aged about 55 years
3.Durga Devi @ Kanchan Devi, w/o Sri Sudhakar Jha, aged about 48 years,
resident of village Bodra, PO & PS Pathargama, District Godda, Jharkhand
                                                          ... Respondents
                               ---------------
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
     HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

For the Appellant                  : Mr. Amit Kumar, Advocate
For the State                      : Mr. Nehala Sharmin, Spl. PP
                             ---------------
                                                           JUDGMENT

21st September 2023 Per, Shree Chandrashekhar, J.

The victim who is the informant of Pathargama PS Case No. 31 of 2012 is aggrieved by the judgment dated 8 th June 2020 in Sessions Trial No. 26 of 2016 by which his younger brother Sudhakar Jha and sister-in-law Durga Devi are acquitted of the charges framed against them under sections 341/34, 323/34, 307/34, 504/34 and 506/34 of the Indian Penal Code.

2. The case of the prosecution is that in the afternoon of 8 th March 2012 the respondents came to the house of the informant with Piyush Kumar Jha, Pawas Kumar Jha and Abhishek Kumar Jha and attacked him with an iron kundi (iron angle). According to the informant, Sudhakar Jha took away Rs. 18,000/- from his trousers and after committing maar-pit left his house with other accused persons. The informant was taken to Pathargama Hospital for treatment and referred to Godda Hospital where Dr. Md. Khalid Ahmed treated him.

3. Pathargama PS Case No. 31 of 2012 was lodged against Sudhakar Jha, his wife Durga Devi, and sons Piyush Kumar Jha, Pawas Kumar Jha and Abhishek Kumar Jha for committing the offence under sections 341, 323, 325, 504, 506, 379/34 of the Indian Penal Code. After the 2 Acquittal Appeal (DB) No. 49 of 2020

investigation, a chargesheet was laid against the above-named accused under sections 341, 323, 325, 504, 506, and 307/34 of the Indian Penal Code. Besides Piyush Kumar Jha who was shown as an absconder, the other two accused were declared juvenile and their trial was conducted separately. In the trial, the prosecution examined eight witnesses out of whom PW5 was the informant. As PW7, Dr. Md. Khalid Ahmed proved the injury report which indicates one sharp cut injury of the size 7" x 1.5" x 1/2" over the left parietal region of the skull of the informant.

4. Mr. Amit Kumar, the learned counsel for the appellant submits that the extent and dimension of the injury suffered by the informant established that the accused intended to attempt to murder the informant.

5. In Sessions Trial No. 26 of 2016, the learned Sessions Judge, Godda has held in the order dated 8th June 2020 as under:

"(20) From the above discussion of evidence on record, I am of the view that, there are several vital contradictions in the statements of the three witnesses, who claim to be eyewitnesses.

It is the case of the prosecution that, accused Sudhakar Jha came to the house of Diwakar Jha, seeking loan from him on 08.03.2012. According to P.W.2, Shabnam Kumari, the daughter of the informant, at the time, when Sudhakar Jha came to their house, her parents were sleeping and she initially woke up her mother, P.W. 4 and told her that, the accused persons were demanding money and that, she has stated this fact before the Police, but this has been denied by the I.O., as P.W.8, upon his cross- examination. I further find that, P.W.4, the wife of the informant, has not stated regarding being woken up by her daughter, Shabnam. She has stated that, Sudhakar Jha demanded money from her husband.

Furthermore, these three witnesses, i.e. P.Ws 2, 4 and 5, have stated that Sudhakar Jha had come with an iron angle with himself, then how is it possible that, neither the daughter, nor the wife of the informant, could sense the intention of the accused, Sudhakar Jha, of assaulting them and that, the wife of informant, even told the accused, Sudhakar Jha to come later on, as her husband was sleeping.

1 further find that, according to P.W. 2, all the accused persons had come together, whereas, it is not clear from the evidence of P.W.4, as to whether or not, all the accused persons came together, but according to P.W.5, the informant, initially, only Sudhakar Jha, had come and other accused persons came later on.

A further find that, in his examination-in-chief, the informant, P.W. 5, has stated that, in the meanwhile, wife of Sudhakar Jha, his three sons namely, Piyush Kumar Jha and Abhishek Kumar Jha and wife of Abhishek Kumar Jha came, but in his written report, this witness, as informant, has not mentioned regarding coming of wife of Abhishek Kumar Jha. So, he has improved upon his written statement.

I further find that, P.W.5, has stated regarding use of lathi-danda and an angle for the purpose of assault, but his wife, P.W.4, has stated regarding use of lathi and chains, as well as, iron angle for the purpose of assault.

3 Acquittal Appeal (DB) No. 49 of 2020

P.W.2, the daughter of the informant, has not stated regarding use of anything else, apart from iron angle, by the accused, Sudhakar Jha.

I further find that, P.W.3, at para-10 of her cross-examination has stated that, she had stated before the police that, Sudhakar Jha assaulted her husband with an angle, whereas, the I.O. (P.W.8) has stated upon his cross-examination, at para-7 that, the witness Meena Devi (PW4 herein) had not stated before him that, Sudhakar Jha assaulted her husband with an angle.

Further that, P.WS at para-16, has stated that, his brother had come with an angle in his hand. I find that, the I.O. (P.W.8) at para-8 of his cross- examination, has stated that, the informant had not mentioned in his fardbeyan or re-statement that, his brother had come with an angle. At para-17, P.W.5 has admitted that, he had not stated before the police that, his brother had come with an angle. At para-18, P.W.5 has denied the suggestion that, he had not stated before police that, his brother had come with an angle. As such, I find that, this witness, who claims to be the victim of assault by the accused persons, is giving varying statements regarding carrying or not, of the alleged weapon of assault, by the accused, Sudhakar Jha.

I further find that, according to P.Ws 2, 4 and 5, the place of occurrence is inside the house of the informant, P.W.5, but, according to the I.O.(P.W.8), the place of occurrence is outside the house in a narrow lane and towards the north of the place of occurrence is the house of the informant, P.W.5. As such, I am of the view that, the place of occurrence has also not been established by the prosecution.

(21) Under the said facts and circumstances, I am of the view that, the prosecution has not been able to prove its case against the accused persons namely, Sudhakar Jha and Durga Devi @ Kanchan Devi, beyond shadows of all reasonable doubts. Accordingly, the accused persons herein namely, Sudhakar Jha and Durga Devi @ Kanchan Devi are acquitted of the charges U/Ss 341/34, 323/34, 307/34, 504/34, 506/34 of the I.P.C. It appears that, the accused persons are on bail. As such, the accused persons, as well as, their bailors are discharged from the liabilities of bail bonds."

6. The learned trial Judge recorded the acquittal of Sudhakar Jha and Durga Devi from the charge under sections 341/34, 323/34, 307/34, 504/34, and 506/34 of the Indian Penal Code on the ground that the prosecution witnesses gave inconsistent and contradictory statements and the place of occurrence was also not established by the prosecution. PW5 stood by his statements made in the written report and deposed in the Court that Sudhakar Jha assaulted him with an iron angle which caused bleeding injury on his head. However, he admitted in the cross-examination that he had no previous dispute with his brother. He further admitted that he was sleeping in another room and heard a heated conversation between his wife and Sudhakar Jha. The trial Judge has referred to the cross-examination of the Investigating Officer that the informant-PW5 did not mention in his restatement, that his brother had come with an iron angle. PW2 and PW4 who are intimately 4 Acquittal Appeal (DB) No. 49 of 2020

related to PW5 were projected as eyewitnesses of the occurrence. PW2 in his cross-examination stated that he did not make a statement before the Investigating Officer that Sudhakar Jha had attacked the informant with an iron angle on his head. PW4 also accepted that he did not state before the Investigating Officer that Sudhakar Jha was carrying an iron angle with which he attacked the informant. The defence elicited from the Investigating Officer who tendered evidence as PW8, that PW2 and PW4 did not make any such statement before him in the course of investigation.

7. Explanation to sub-section 2 to section 162 of the Code of Criminal Procedure provides that an omission to state a fact or circumstances in the statement made by a witness before the police in the course of the investigation which is reduced in writing may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs. The explanation further makes it clear and explains that whether or not any omission shall amount to contradiction shall be a question of fact. In the circumstances of this case, omission in the statement of PW2 and PW4 made before the Investigating Officer that Sudhakar Jha was carrying an iron angle with which he attacked Diwakar Jha on his head is the relevant fact necessary for deciding the nature of offence committed by him. The crime weapon was not recovered and going by the testimony of the prosecution witnesses, the prosecution has failed to establish that a sharp cut injury and, that too, of the size 7" x 1.5" x ½" could have been caused by the weapon said to be carried by the accused. The prosecution has also failed to explain how such a sharp cut injury was caused by an iron angle.

8. As PW7, Dr. Md. Khalid Ahmed also did not support the prosecution as regards charge under section 307 of the Indian Penal Code. PW7 recorded his observation in the postmortem report that the nature of the injury caused to Diwakar Jha was simple in nature.

9. Dr. Md. Khalid Ahmed upon examination of the Diwakar Jha has found the following:

(i) A sharp cut injury over left parietal region of skull of size 7 inch x 1.5 inch x ½ inch approx.

(ii) Above mentioned injury was caused by sharp and blunt object.

          (iii)    Age of injury - within 07 hours approx.
          (iv)     Colour of wound - Black.

10. Now in the aforesaid state of evidence, this is not permissible in 5 Acquittal Appeal (DB) No. 49 of 2020

law that the High Court can infer that the finding rendered by PW7 that the injury over the left parietal region of the skull of Diwakar Jha was simple and hold that the injury caused to the informant was grievous in nature. No doubt any attack over the parietal region of a human being is a serious matter but that by itself may not be sufficient for holding the accused liable under section 307 of the Indian Penal Code. This is the prosecution case that Sudhakar Jha struck one iron angle blow over the head of his brother and there is no allegation of any repeated attack. This is also the case of the prosecution that the other accused who are sons of Sudhakar Jha were also carrying lathi danda and iron chain but there is no material on record to infer that they also participated in the occurrence.

11. The trial Judge observed that the prosecution evidence is not cogent and consistent rather the prosecution witnesses tendered varying statements. We also find that the testimony of the prosecution witnesses contained more chaff than grain and on the basis of such evidence conviction of the accused could not have been recorded by the trial Judge. The submission that the extent and dimension of the cut injury over the left parietal region of the skull of Diwakar Jha would necessarily attract offence under section 307 of the Indian Penal Code cannot be accepted.

12. The High Court in dealing with an appeal against acquittal exercises the similar powers as are exercised while dealing with an appeal against conviction, can re-appreciate the evidence and come to a different conclusion but the High Court must keep in mind that there are judicially evolve norms and guidelines when interference with a judgment of acquittal is permissible. In the first place, the acquittal of the accused by the trial Court raises a double presumption of innocence in favor of the accused and, secondly, wherever two views are possible the High Court shall be denuded of its powers to interfere with the judgment of acquittal. Further, in a case of this nature where the Court is not satisfied that the prosecution has established the charge beyond all reasonable doubt, the High Court must not exercise its powers to interfere with the judgment of acquittal recorded by the trial Judge.

13. In "Bhadragiri Venkata Ravi v. High Court of A.P." (2013) 14 SCC 145 the Hon'ble Supreme Court has held as under:

"25. This Court has time and again laid down parameters for interference by a superior court against the order of acquittal. In exceptional cases where there are compelling circumstances and the 6 Acquittal Appeal (DB) No. 49 of 2020

judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."

14. In view of the aforesaid discussions, Acquittal Appeal (DB) No. 49 of 2020 is dismissed.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) Jharkhand High Court, Ranchi Dated : 21st September 2023 Tanuj/ N.A.F.R