Jharkhand High Court
Priyanka vs The State Of Jharkhand on 3 October, 2024
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(CRIMINAL REVISIONAL JURISDICTION)
Cr. Revision No. 1130 of 2023
1. Priyanka, aged 39 years, wife of Hemant Kumar Shikarwar resident of Beside
Hotel Upkar, DVC Chowk, P.O. & P.S.- Sadar, District- Hazaribag at present
residing at "Shikarwar Villa" Nivaranpur, P.O.- Doranda, P.S.- Chutia, District-
Ranchi
2. Aayesha Anuradha aged 28 years wife of Vikash Kumar Upadhayay resident of
Sabistan, Beside Hotel Upkar, DVC Chowk, P.O. & P.S.- Sadar, District-
Hazaribag
3. Most. Munniya aged 55 years wife of Late Bandhu Sao resident of Beside Hotel
Upkar, DVC Chowk, P.O. & P.S.- Sadar, District-Hazaribag
.... ...Petitioners
Versus
1.The State of Jharkhand
2. Zarin Khan daughter of Late Parwez Ahmed Khan, resident of DVC Chowk,
Hazaribag, Sabistan Annexe, P.O. & P.S. Sadar, District- Hazaribag
.... ........ Opposite Parties
CORAM: HON'BLE MR. JUSTICE RATNAKER BHENGRA
------
For the Petitioners : Mr. Hemant Kumar Shikarwar, Advocate
For the State : Ms. Shailesh Kumar Sinha, APP
For the O.P. No. 2 : Mr. Jagdish Prasad Sahu, Advocate
C.A.V. On 25/09/2024 Pronounced On 03 / 10 / 2024
Ratnaker Bhengra, J: The present criminal revision application has been filed for
setting aside the order dated 15.07.2023 passed in connection with Sadar P.S. Case No.
36 of 2022 dated 29.01.2022 corresponding to S.T. No. 100 of 2023 registered under
section 147, 148, 149, 323, 341, 325, 307, 354, 379 of the Indian Penal Code, whereby
and whereunder the learned court has refused to discharge the petitioners for which an
application under section 227 Cr.P.C. was filed, pending in the court of learned 1 st
Additional Sessions Judge-1, Hazaribagh.
2. The prosecution case in brief is based upon the fardbayan of Zarin Khan
alleging therein that on 29.01.2022 at about 9 AM she was sitting in her Verandah and
three persons known to his father came to her house and started enquiring about her. In
the meantime, Hemant Kumar Shikarwar started clicking the photograph of the
motorcycles of the guests, in the meantime, her mother came outside and objected the
clicking of the photographs of the motorcycle and she made objection of keeping bricks,
sand and stone chips kept in front of her house and asked him to shift the same. Hemant
Kumar pushed, and he snatched the chain and earrings from the mother of the informant
and started abusing. Thereafter the driver of Hemant Kumar namely Mahendra Prajapati
came there. The brother of the informant went to rise the mother of the informant then
Hemant Kumar and Mahendra Prajapati with intention to kill assaulted to the head
causing injuries on the head of the informant's brother, blood started oozing. The
informant went to save the mother and brother, Vikash Kumar Upadhaya and Aryan
Kumar Upadhyay and started abusing the informant and assaulted with fists and brick
and snatched golden chain and Dimond ring. Golden earring was also snatched and two
mobile phones were snatched from which she was capturing video. Thereafter Hemant
Kumar gave threatening to the informant and her family members to leave the house
otherwise all the three would be killed. With bad intention Hemant Kumar and
Mahendra Prajapati in order to outrage the modesty and they assaulted. Causing injury
on the nose and face resulting in bleeding. The informant sustained injury on the right
eyes and head. She also sustained injury on her hand and legs. The mobile phone
snatched by the accused persons was called then started ringing from the house of
accused Hemant Kumar. In the meantime wife of Hemant Kumar namely Priyanka and
wife of Vikash Kumar namely Aayesh Anuradha and the maid Muniya started abusing
the informant and threatening to leave the house otherwise all the three of you would
be killed. The informant has alleged that all the accused persons with common intention
to kill an caused grievous injury, the modesty of the informant was also outraged.
Golden earring, Dimond Ring, Two Mobiles Phone, Golden Chain was snatched. The
accused persons abused and threatened to be killed.
3. The petitioners have been made accused by the informant due to grudge
and ill will on account of cases lodged against the informant and other family members
of the informant by one of the accused of the present case namely Hemant Kumar
Shikarwar.
4. There is case and counter case in between the parties Sadar P.S. Case
No.35 of 2022 was lodged and in retaliation of the same the present FIR with false,
concocted allegations have been made implicating even the female members without
their being involved in the offence as alleged to have been committed.
5. As per the FIR no overt act has been assigned against the petitioners, in
the FIR allegation is that during the occurrence the petitioners came to the place of
occurrence abused the informant and threatened to leave the house or they would be
murdered save and except this allegation there is no allegation whatsoever against these
petitioners.
6. The allegations of the FIR is quoted herein below for ready reference
where the allegation against the petitioners are mentioned.
"इसी दौरान हे मन्त कुमार की पत्नी प्रिंयिंका और प्िकास की पत्नी आयशा
अनुराधा एििं हे मन्त कुमार की नौकरानी मुप्नया आकर गाली गलौज और
धमकाने लगी प्क तुम लोग घर छोड़कर भागो नही तो तीनो का जान नहीिं
बचेगा।
मेरा दािा हे मन्त कुमार प्शकरिार, महे न्द्र रजापप्त, प्िकास कुमार उपाध्याय,
आययन कुमार उपाध्याय, प्रयिंका, आयशा अनुराधा एििं मुप्नया के द्वारा एक
मत होकर जान मारने के प्नयत से मारपीट कर गम्भीर रुप से जख्मी प्कया
गया है ।"
7. These allegations do not constitute any offence as alleged and is falsified
by the explanation of the incident recorded in CCVT camera and discussed at para-18
of the case diary.
8. Even in the re-statement of the informant recorded in para-5 of the case
diary similar facts have been narrated by the informant for ready reference para-5 of
the case diary is quoted: -
पारा - 5
इस काण्ड की जख्मी िाप्दनी जरीन खान उम्र करीब 34 िर्य पे० स्व० परिेज
अहमद खान सा० डी०िी०सी० चौक उपकार होटल के पास थाना सदर प्जला
हजारीबाग का पुनः बयान प्लया। इन्होनें अपने बयान में राथप्मकी एििं घटना
का पूर्य रूपेर् समथयन करते हुए बताये प्क प्द०- 29.01.2022 को सुबह 09.00
बजे ये अपने बरामदा का लाईट ऑफ करने आयी थी ठीक उसी समय इनके
प्पताजी के जान पहचान के तीन लोग इनके घर पर आये और इनलोगोिं का
हाल समाचार पूछ रहे थे । उसी दौरान हे मन्त कुमार प्सकरिार पे०- स्व० राम
लखन प्सिंह इनके पड़ोसी आकर इनके घर आये हुए गेस्ट के मोटरसाईप्कल
का फोटो खीचने लगे। तब इनकी मााँ घर से प्नकली और बोली प्क
मोटरसाईप्कल का फोटो क्ोिं खीिंच रहे हो और मेरे घर के सामने ईटा, बालू
एििं प्गट्टी प्गराये हो उसे मेरे घर के सामने से हटाओिं तब हे मन्त कुमार के द्वारा
इनकी मााँ को धक्का दे प्दया और इनकी मााँ के गले एििं कान से सोने का चेन
एििं बाली छीन प्लया और गाली गलौज करने लगा। इसी बीच हे मन्त कुमार का
चालक महे न्द्र रजापप्त आ गया। इसी बीच इनका, भाई, मााँ को उठाने गया तो
हे मन्त कुमार एििं महे न्द्र रजापप्त क द्वारा जान मारने की प्नयत से इनके भाई
के प्सर पर मारा प्जससे इनके भाई के प्सर से खून प्नकलने लगा तब ये अपनी
मााँ . तथा भाई को बचाने गयी तो प्िकास कुमार उपाध्याय और आययन कुमार
उपाध्याय आकर गिंदा-2 गाली गलौज करने लगा और इनहें हाथ एििं ईटा से
मारा तथा इनके गले से सोने का चेन, डायमण्ड ररिं ग, कान का सोने का ररिं ग
छीन प्लया एििं दो मोबाईल फोन छीन प्लया प्जससे ये घटना का िीप्डयो बना
रही थी। इसके बाद हे मन्त कुमार के द्वारा धमको प्दया गया प्क तुम तीनोिं घर
छोड़ कर भाग जाओ िनाय तुम तीनोिं का जान से मार दें गे। हे मन्त कुमार एििं
महे न्द्र रजापप्त के द्वारा गलत प्नयत से इनके ईज्जत पर हाथ डाला गया और
इनके साथ उपरोक्त लोगोिं ने मारपीट प्कया। प्जससे इनके नाक एििं मुाँह से
खून बहने लगा तथा इनका दायााँ आाँ ख एििं सर में भी गिंभीर चोट लग गई है ।
इनके हाथ एििं पैर में भी चोट लगी है। धक्का-मुक्की के कम में हेमन्त
प्शकरिार के घर में काम करने िाली मुप्नया दे िी भी प्गर गई थी। प्गरने के
क्रम में मुप्नया दे िी का पैर जो पूिय में टु टा हुआ था उसी पैर में चोट लग गई
प्जससे िह भी घायल हो गई। इनके पास से छीना गया मोबाईल पर ररिं ग करने
पर मोबाईल हे मन्त कुमार के घर से ररिं ग की आिाज आ रही थी। इसी दौरान
हे मन्त कुमार की पत्नी प्रयिंका और प्िकास की पत्नी आयशा अनुराधा एििं
हे मन्त कुमार की नौकरानी मुप्नया आकर गाली गलौज कर धमकाने लगी प्क
तुमलोग घर छोडकर भाग जाओ नही तो तुम सभी को जान से मारकर फेंक
दें गें। आगे अन्य कोई उल्लेखनीय बात नही बताये।
9. The mother of the informant namely Husna Ara Bano has given her 161
Cr. P. C. Statement which has been recorded in para-6 of the case diary and has stated
similar fact no specific overt act has been assigned against the petitioners for ready
reference para-6 of the case diary is quoted herein below: -
साक्षी हुस्न आरा बानो उम्र करीब 60 िर्य पप्त स्व० परिेज अहमद खान सा०
डी०िी०सी० चौक उपकार होटल के बगल में थाना कोराय प्जला हजारीबाग का
बयान प्लया। इन्होनें अपने बयान में राथप्मकी एििं घटना का पूर्य रूपेर् समथयन
करते हुए बताये प्क प्दनािंक- 29.01.2022 को इनकी बेटी घर के बाहर बरामदे
का लाईट बिंद करने के प्लए समय करीब 09:00 बजे बाहर प्नकली तो दे खी
प्क इनके घर इनके प्पता के पररप्चत के तीन लोग आये हुए थे उनके
मोटरसाईप्कल का फोटो हे मन्त प्शकरिार अपने मोबाईल से ले रहा था तो
इनकी बेटी बोली प्क आप फोटो क्ोिं ले रहे हैं तो बात सुनकर ये भी रूम से
बाहर आई तो दे खी प्क हे मन्त प्शकरिार अपने मोबाईल से इनके घर आये
लोगोिं के मोटरसाईप्कल का फोटो खखच रहा है तो ये बोली प्क आप फोटो क्ोिं
ले रहे हैं और मेरे दरिाजे के सामने ईटा छरी बालु प्गराकर जाम क्ोिं प्कये है।
यहािं से अपना सारा समान हटा प्लप्जए। इसी बात को लेकर हेमन्त प्शकरिार
इन्हें धक्का मारकर प्गरा प्दया एििं उनके गले से सोने का चौन, कान से सोने
की बाली छीन प्लया एििं गाली गलौज करने लगा। इसी कम में उधर से द्य हेमन्त
कुमार प्शकरिार का चालक महे न्द्र रजापप्त आ गया तो इनका बेटा फरहान
हई खान इन्हें उठाने के प्लए गया तो हे मन्त कुमार प्शकरिार एििं महे न्द्र
रजापप्त के द्वारा इनके बेटे के साथ गाली गलौज करते हुए मारपीट प्कया जाने
लगा। मारपीट के कम में इनके बेटा के माथा पर मार प्दया गया प्जससे उसका
माथा फट गया एििं उसके माथा से खुन बहने लगा। प्जसके बाद इनकी बेटी
जरीन खान इनलोगोिं को बचाने के प्लए गई तो उधर से प्िकास कुमार उपाध्याय
आकर इनलोगोिं को गिंदी गिंदी गालीयािं दे ने लगा और इनकी बेटी को हाथ एिं ि
ईिंटा से मारा तथा इनके बेटी के गले से सोने का चौन, डायमण्ड ररिं ग कान का
सोने का ररिं ग एििं दो मोबाईल भी छीन प्लया, प्जस मोबाईल से इनकी बेटी घटना
का प्िप्डयो बना रही थी। मारपीट करने के बाद हे मन्त कुमार प्शकरिार के
द्वारा धमकी प्दया जाने लगा प्क तुम सभी पररिार घर छोड़ कर भाग जाओ
नही तो तुम तीनोिं को जान से मार दें गे और उपरोक्त लोगोिं द्वारा इनकी बेटी को
गलत प्नयत से हाथ लगाया गया। मारपीट के कम में इनकी बेटी को काफी
चोटे आई प्जससे उसके नाक एििं मुहिं से खुन बहने लगा तथा दायािं आिं ख एििं
सर में भी गम्भीर चोट लग गई। मारपीट के क्रम में धक्का-मुक्की में हे मन्त
प्शकरिार की नौकरानी मुप्नया दे िी प्गर जाती है , उनका पैर जो पूिय में टु टा
हुआ था उसी पैर में चोट लगने से िह भी जख्मी हो गई थी। हे मन्त कुमार
प्शकरिार की पत्नी प्रयिंका और प्िकास की पत्नी आयशा अनुराधा आकर गाली
गलौज कर धमकाने लगी तुम सभी माग जाओिं नही तो तुम तीनोिं को जान से
मारकर फेंक दें गे। ये आगे बतायी प्क हे मन्त प्शकरिार गलत तरीके से इनका
जमीन को अपने नाम कर कब्जा करने की कोप्शश कर रहे है । इसी को लेकर
इनलोगोिं में पूिय से ही प्ििाद चला आ रहा है । आगे अन्य कोई उल्लेखनीय बात
नही बताये।
10. The brother of the informant who was also an eye witness to the
occurrence has given his statement Under Section 161 Cr.P.C. and the same was
recorded in para-7 of the case diary. He has also not said anything specific against the
petitioners, for ready reference para-7 of the case diary is being quoted herein below: -
साक्षी फरहान हई खान उम्र करीब 22 िर्य पे० स्व० परिेज अहमद खान सा०
डी०िी०सी० चौक उपकार होटल के पास थाना सदर प्जला हजारीबाग का
बयान प्लया। इन्होनें अपने हाल बयान में राथप्मकी एििं घटना का पूर्य रूपेर्
समथयन करते हुए बताये प्क इनके जमीन पर का जबरन हे मन्त प्शकरिार
कब्जा कर हप्थयाना चाहता है । इसी को लेकर इन दोनोिं में हमेशा िाद प्ििाद
होता रहता है । प्दनािं क 29.01.2022 को समय करीब 09:00 बजे इनकी बहन
घर के बाहर बरामदे का लाईट बिंद करने के प्लए गई तो दे खी प्क इनके
बगलगीर हे मन्त प्शकरिार इनके घर आये तीन लोगोिं के मोटरसाईप्कल का
फोटो अपने मोबाईल से ले रहा थे तो इनकी बहन बोली प्क आप फोटो क्ोिं ले
रहे हैं तो ये बात सुनकर ये एििं इनकी मााँ भी रूम से बाहर आई तो दे खी प्क
हे मन्त प्शकरिार अपने मोबाईल से इनके घर आये लोगोिं के मोटरसाईप्कल
का फोटो खखच रहे है तथा इनकी बहन से बहश कर रहे हैं तो इनकी मााँ बोली
प्क आप फोटो क्ोिं ले रहे हैं और मेरे दरिाजे के सागने ईटा छरी बालु प्गराकर
जाम क्ोिं प्कये है। यहािं से अपना सारा समान हटा प्लप्जए। इतना कहते ही
हे मन्त प्शकरिार इनकी मााँ को गाली गलौज करते हुए धक्का मारकर प्गरा
प्दया एििं उनके गले से सोने का चौन, कान से सोने की बाली छीन प्लया। तभी
उधर से हेमन्त कुमार प्शकरिार का चालक महे न्द्र रजापप्त आ गया तो ये
अपनी मााँ को उठाने के प्लए गये तो हे मन्त कुमार प्शकरिार एििं महे न्द्र
रजापप्त के द्वारा इनके साथ गाली गलौज करते हुए मारपीट प्कया जाने लगा।
मारपीट के कम में इनका माथा पर मार प्दया गया प्जससे इनका माथा फट
गया एििं इनके माथा से खुन बहने लगा। प्जसके बाद इनकी बहन जरीन खान
इनलोगोिं को बचाने के प्लए दौड़ी आई तो उधर से प्िकास कुमार उपाध्याय
आकर इनलोगोिं को गिंदी-गिंदी गालीयािं दे ने लगा और इनकी बहन को हाथ एिं ि
ईिंटा से मारप्पट करने लगा तथा इनके बहन के गले से सोने का चौन, डायमण्ड
ररिं ग कान का सोने का ररिं ग एििं दो मोबाईल भी छीन प्लया, प्जस मोबाईल से
इनकी बहन घटना का प्िप्डयो बना रही थी। मारपीट करने के बाद हे मन्त
कुमार प्शकरिार के द्वारा धमकी प्दया जाने लगा प्क तुम सभी पररिार घर
छोड़ कर भाग जाओिं नही तो तुम तीनोिं को जान से मार कर फेंक दें गे और
उपरोक्त लोगोिं द्वारा इनकी बहन को गलत प्नयत से हाथ लगाया गया। मारपीट
के कम में इनकी बहन जरीन खान को काफी चोटे आई। प्जससे उसके नाक
एििं मुहिं से खुन बहने लगा तथा दायािं आिं ख एििं सर में भी गम्भीर चोट लग गई।
मारपीट के क्रम में धक्का-मुक्की में हे मन्त प्शकरिार की नौकरानी मुप्नया दे िी
िहीिं प्गर गई। मुप्नया दे िी जीनका पूिय में ही जो पैर टु टा हुआ था िही पैर में
चोट लगने से िह भी घायल होकर िहीिं प्गर गई थी। हे मन्त कुमार प्शकरिार
की पत्नी प्रयिंका और प्िकास की पत्नी आयशा अनुराधा आकर गाली गलौज
कर धमकाने लगी तुम सभी भाग जाओ नहीिं तो तुम तीनोिं को जान से मारकर
फेंक दें गे। आगे अन्य कोई उल्लेखनीय बात नहीिं बताये।
11. Save and except the informant and her mother and brother no witness has
come forward to state anything in the present case. However as per the allegation in the
FIR three independent persons were present at the place of occurrence but purposely
their statement was not recorded by the investigating officer as if they would have been
examined certainly, they would have stated the true facts and would have deposed
against the informant's version.
12. Para-18 of the case diary the investigating officer has peruse the CCTV
footage of the incident and narrated the same as per the description given the petitioners
tried to pacify the dispute. For ready reference para-18 of the case diary is quoted below:
-
इस काण्ड में जप्त रस्तुती सह जप्ती सूची के अनुसार जप्त | Sandisc
Company का Cruzer Blade 16 GB का एक Black and Red Colour का
Pendrive (1) का साक्षी हुस्न आरा बानोिं की उपखिप्त में उनके बताये अनुसार
अिलोकन से ज्ञात हुआ प्क घटनािल पर दोनो पक्ष के लोग जुटे हुए थे और
आपस में हल्ला-गुल्ला कर रहे थे। उसी बीच बाता-बाती होते-होते महे न्द्र
रजापप्त एििं फरहान हई खान आपस में मारापीटी करने लगे मारापीटी में
फरहान हई खान ने हे मन्त प्शकरिार से भी उलझ गया । महे न्द्र रजापप्त के
बचाि में उधर से मसोमात मुप्नया दे िी चप्पल उठाकर दौड़ी तो फरहान हई
खान के द्वारा मुप्नया दे िी को धक्का मारकर प्गरा प्दया गया प्जससे कुछ दे री
मुप्नया दे िी िहीिं प्गरी रहती है प्जसके कुछ दे र बाद मुप्नया दे िी उठकर चलना
चाही तो िो उठते ही िहीिं पर प्गर जाती है। तभी झगड़ा में जरीन खान को
हे मन्त प्शकरिार मुक्का से मारकर प्गरा दे ता है और प्गराकर जरीन खान को
हे मन्त प्शकरिार लात एििं हाथ में रखे मोबाईल से ताबड़तोड़ िार प्कया जा
रहा है । प्जसको दे खकर दौड़ते हुए फरहान हई खान आता है और हेमन्त
प्शकरिार को पास में रखे ईटा पर पटक दे ता है और मारपीट करता है तभी
उधर से हेमन्त प्शकरिार की पत्नी प्रयिंका, प्िकाश कुमार प्िकाश कुमार की
पत्नी आयशा अनुराधा प्िकाश कुमार का बेटा आययन कुमार एििं फरहान हई
खान की मााँ एििं फरहान हई खान के दोस्त सभी प्मलकर फरहान हई खान
एििं हे मन्त प्शकरिार को धर पकड़ कर अलग करने की कोप्शश करते हैं उसी
क्रम में फरहान हई खान जमीन पर प्गर जाता है । प्जसको हे मन्त प्शकरिार
एििं प्िकास कुमार लात से मारते हुए नजर आ रहे है । तभी फरहान हई खान
का दोस्त कुछ कहते से जाते हुए नजर आता है । मारपीट के क्रम में एक िस्तु
प्गरा हुआ है प्जसे हुस्न हुए िहािं आरा बानो उठाते हुए नजर आ रही है । उक्त
िस्तु को हे मन्त प्शकरिार के द्वारा छीन कर अपनी पत्नी को प्दया जाता है।
उक्त घटना से सिंबिंप्धत सी०सी०टी०िी० फूटे ज की छायारप्त प्नम्न रकार है :-
13. The description of the CCTV footage by the investigating officer clearly
suggested that these petitioners had no role whatsoever in the alleged offence rather
they tried to pacify the dispute more so the petitioner no.3 was thrown by the brother of
the informant on ground resulting in fracture of her leg.
14. Para-49 of the case diary deals with the injury report of the informant the
said injury report contradicts the allegation made in the FIR and the statement of the
witnesses the injuries found on the informant was simple in nature and was not on any
vital part of the body. Para-49 of the case diary is being quoted herein below for ready
reference: -
सशस्त्र बल के साथ सदर अस्पताल हजारीबाग पहुिं ची एििं इस काण्ड में जख्मी
1. जरीन खान उम्र करीब 34 िर्य पे० स्व० परिेज अहमद खान सा०
डी०भी०सी० चौक उपकार होटल के पास थाना सदर प्जला हजारीबाग का
जख्म जााँ च रप्तिेदन सदर अस्पताल के रे कड रूम में उपखित कमी से मािं ग
की तो उनके द्वारा इस काण्ड के जख्मी जरीन खान का जख्म जााँ च रप्तिेदन
रस्तुत प्कया गया प्जसके अिलोकन से ज्ञात हुआ प्क जख्मी जरीन खान का
जख्म जााँ च का ओप्पप्नयन प्चप्कत्सक महोदय के द्वारा ररजियड रखा गया है ।
ररजियड रखे गये ओप्पप्नयन के बारे में पुछने पर बताया गया प्क जरीन खान
के ररजियड रखे गये ओप्पप्नयन को माननीय न्यायालय में रस्तुत प्कया जायेगा।
जख्मी जरीन खान का जख्म जााँ च रप्तिेदन की सच्ची रप्त प्नम्न है :-
15. The petitioners are being made accused in this case with aid of Section
149 IPC, however, as per the allegations in the FIR itself the assemblance of the accused
persons cannot be termed as unlawful assembly as defined in section 141 IPC. As per
the FIR one of the named accused namely Hemant Kumar Shikarwar went to the place
of occurrence empty handed and there were four male persons in the house of the
informant, after accused Hemant Shikarwar started taking photograph of the number
plate of the motorcycle present at the spot to ascertain that whose name the motorcycle
parked was, all the prosecution party member started the incident thereafter one another
accused Mahendra Prajapati reached there the prosecution party member started
assaulting Mahendra Prajapati which was objected by Hemant Shikarwar as would be
evident from the description of the CCTV footage described in para-18 of the case diary.
When the prosecution party member started assaulting Mahendra Prajatpati and Hemant
Shikarwar then accused Vikash Upadhayay and Aryan Upadhayay ran from their house
in order to save Hemant Shikarwar and Mahendra Prajapati. Thereafter petitioner
Priyanka reached there and started recording the incident from her mobile phone,
petitioner Ayesha Anuradha also reached there from her house which is located just near
the place of occurrence, accused Muniya Mostt. also reached there to save the accused
persons hence it cannot be said that all the accused persons unlawfully assembled to
commit any offence.
16. As the offences of individual would be attracted as such the petitioner
cannot be prosecuted in aid of Section 149 IPC. Section 149 IPC is quoted herein below
for ready reference.
Section 149- Every member of unlawful assembly guilty of offence committed
in prosecution of common object
If an offence is committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such as the members of
that assembly knew to be likely to be committed in prosecution of that object,
every person who, at the time of the committing of that offence, is a member
of the same assembly, is guilty of that offence.
17. The petitioners cannot be said to be the member of unlawful assembly as
defined Under Section 141 IPC as Section 141 IPC deals with unlawful assembly and
assembly of five or more persons is designated an unlawful assembly if the common
objection of the persons is:
First, To overawe by criminal force, or show of criminal force, the Central or any
State Government or Parliament or the Legislature of any State, or any public
servant in the exercise of the lawful power of such public servant; or
Second, To resist the execution of any law, or of any legal process; or
Third, To commit any mischief or criminal trespass, or other offence; or
Fourt, By means of criminal force, or show of criminal force, to any person to
take or obtain possession of any property, or to deprive any person of the
enjoyment of a right of way, or of the use of water or other incorporeal right of
which he is in possession or enjoyment, or to enforce any right or supposed
right; or
Fifth, By means of criminal force, or show of criminal force, to compel any person
to do what he is not legally bound to do, or to omit to do what he is legally
entitled to do.
18. As the assemblance-of-the-accused-persons there was no common
objected as required Under Section 141 IPC and there was no pre mediated plan to
commit the offences alleged and the Hon'ble Supreme Court of India in case of Tanaji
Govind Misal Vs State of Maharastra reported in SCC 1997 (8) 340 held that when
there was sudden un premeditated free fight between two groups it was held that
members of such groups would not be said to have formed an unlawful assembly.
Common objected has to be inferred from the facts and circumstances from each case.
It is to be inferred from the membership of the assembly the weapon used and the nature
of injuries and the surrounding circumstances in the present case it can be easily derived
that there was no common object the assemblance of the accused persons was one after
another only to save the persons from the prosecution party members as such it cannot
be said that the petitioners where carry common object to commit the offences alleged
and as such there assembly was not unlawful as such individual acts is to be seen and
prosecuted accordingly.
19. The prosecution of the petitioners under section 341 read with section 149
IPC is also uncalled for as the petitioners have not wrongfully restrained any person as
there is no allegation either in the FIR or in the statement of the witnesses.
20. The prosecution of the petitioners under section 323 read with section 149
IPC is also not in accordance with law as the petitioners have not assaulted either the
informant or her mother or brother.
21. The prosecution of the petitioners under section 325 read with section 149
IPC is also not maintainable as the petitioners have not voluntarily caused grievous
injury to the informant, her brother or sister. The injuries found on the informant is not
grievous as defined under section 320 IPC.
22. The petitioners cannot be prosecuted and charges cannot be framed under
section 307 IPC as the petitioners or any of the accused persons never attempted to
murder. It is admitted case of the prosecution that all the accused persons were empty
handed no weapon was used by any of the accused persons. There was no intention on
the part of the accused persons to commit murder of the informant party members.
23. The prosecution of the petitioners under section 323 read with 149 IPC
will also not be in accordance with law as the petitioners have not assaulted either the
informant or her mother or brother. As per the allegation in the FIR the husband of the
petitioner no. 1 is said to have assaulted the brother of the informant along with accused
Mahendra Prajapati causing injury on his head resulting in bleeding this allegation is
totally incorrect and not supported by any medical evidence. The brother of the
informant has not sustained any short of injury. No bruises, scratch cut was found on
the informant's brother. The informant's brother was not even treated anywhere. He was
not admitted in Sadar Hospital nor was treated as OPD patient after about 10 days of
the occurrence when the anticipatory bail application was filed from the side of the
petitioners, he in order to create medical documents for the very first time, consulted
doctor and on the advice of lawyer, the informant's brother CT Scan was done and the
said CT Scan report also was normal, no significant injuries was detected even in the
CT Scan report. Even the informants CT scan report was normal.
24. From the side of the petitioners Muniya Devi sustained grievous injury
and was admitted in hospital for about one month from two places her leg was broken,
the husband of the petitioner number one sustained injury on head even in CT scan
abnormality was found even petitioner number 3 sustained injury.
25. The learned counsel for the petitioners has relied upon the following
judgments of the Hon'ble Apex Court:
i. (1976) 1 SCC 28 (Puran Vs. State of Rajasthan)
ii. (1974) 3 SCC 295 (Lalji & Ors. Vs State of U.P., para-10)
iii. (1976) 1 SCC 355 (Ishwar Singh Vs. State of U.P., para-4 & 7)
26. The show cause of opposite party no. 2 states as follows:
This instant criminal revision has been filed by the above-named lady
petitioners very tactfully to gain sympathy of this Hon'ble Court as they are woman
petitioners, but they have played very active role in the alleged offence committed under
various section of I.P.C. including Section 307 of I.P.C. The petitioner no. 01 namely
Priyanka is wife of the accused no. 01 of said case namely Hemant Kumar Shikarwar,
the petitioner no. 02 namely Ayesha Anuradha is wife of Vikash Kumar Upadhyay/
Accused No. 03 and the petitioner no. 03 namely Most. Muniya is a maid servant of
accused no. 01 above named, all the petitioners/accused were present at the time and
place of alleged offences the petitioner no. 01 incited to offence and taking Video
recording through her Mobile Phone and she kept the snatched mobile phone, which
Hemant Shikarwar handed over to her after snatching it and the petitioner no. 02 and
03 threatened to drive away the victim/opposite party no. 02 and her family members
that if the victim and her family member not flee away from the ancestral house &
landed property than the life of the victim and her other family members would not
remain safe, it was the petitioner no. 03 who runned with sleeper kept in her hand to
attack upon the Farhan Hai Khan/younger brother of the victim (Para 18 of Case diary
is referable).
27. It is submitted as a matter of fact on behalf of the opposite party no. 2,
namely Zarinne Khan @ Zarin Khan, that she is/was virgin girl, who used to live at
above mentioned address along with their widow mother namely Husna Ara Bano, aged
about 62 years and a younger brother namely Farhan Hai Khan, aged about 28 years,
the opposite party no. 02, doing occupation as a English Teacher in a Private School at
Hazaribag, the residential house having name and fame "Shabistan Annexe" situated at
Mauja Sarle, Thana No. 159, Plot No. 394, under Khata No. 05, within the Municipal
Corporation Area of Hazaribag, situated at Highway to Hazaribag Kodarma,
Comprising an area 10 decimal out of 16 decimal land which is ancestral property of
her, as it was occupied by her grandfather namely Late A.H. Khan (Former Deputy
Commissioner of Hazaribag in the year 1945), later on it came in peaceful possession
of father of the victim by virtue of compromise decree of P.S. No. 73 of 1981, the said
land was gifted to her mother as Pious obligation of "DEIN MEHR" by her father
namely Late Parwez Ahmad Khan in the year 2003, so the victim/Opposite Party No.
02 above named of this instant Show Cause is coparcener share holder of the said
residential landed property, the said coparcenary right upon the said valuable landed
property turned on as a cloud of death for the victim/Opposite Party No. 02, caused by
evil eye of the petitioner no. 01 namely Hemant Kumar Shikarwar upon the same, said
petitioner no. 01 hatches so many civil and criminal conspiracy causing that there are
more than 12 civil and criminal cases are pending between/among the both side party,
the instant above noted criminal Revision case is among one of them.
28. The learned counsel for the opposite party no. 2 has stated that the accused
no. 01, namely, Hemant Kumar Shikarwar was earlier appointed Advocate of father of
the victim namely Late Parwez Ahmed Khan in connection with the W.P.(C) No. 6434
of 2016 in the High Court, he lost the case by false submission of the said
Advocate/Petitioner No. 01 that he has given no objection in the said case, since that
time the accused no. 01 above named have planned to usurp the above stated land, he
has taken signature by pretending for use in the case on blank papers and other legal
papers of the family members of victim/opposite party no. 02 and he uses it for his ill
motive.
29. The accused/ petitioner no. 01, namely, Hemant Kumar Shikarwar and the
co-accused persons has falsely stated in para-28 and 29 of the plaint of the Cr. Revision
No. 1145 of 2023 and in Cr. Revision No. 1130 of 2023 that he has paid huge amount
more than Rs. 1 Crore for purchase of 10 decimals land of the informant side, the
statement may be strictly examined as a matter of fact it is submitted on behalf of the
opposite party no. 2/victim above named that the accused/petitioner no. 1 above named
fraudulently debited Rs. 29.25 lakh through RTGS in her bank account to made out
false evidence of the agreement among the parties concern as stated above, the said land
is a gifted land of the mother of the said victim/opposite party no. 2 namely Husna Ara
Bano as such it may not be transferable by any other person, but in order to usurp the
said 10 decimal land the accused/petitioner no. 01 namely Hemant Kumar Shikarwar
fraudulently got registered 05 decimal land out of said 10 decimal land from other
person however the land possession certificate is in the name of mother of the opposite
party no. 02/victim but the accused/petitioner no. 1 by applying his name, fame and
money, they trying illegally occupy possession upon the same by abusing and misuse
of law, he had been filed demarcation case on the basis of said fraudulent sale deed,
however Case No. O.S. 57/2021 is pending before the Hon'ble/learned Court of C.J.S.D.
VII as well as Mutation Revision No. 28/2021, before the learned D.C. Court at
Hazaribag and the mother of victim/opposite party no. 02 duly filed objection
repeatedly in the demarcation case on the basis of the same, but all legally urged
objections gone to vain.
30. It is submitted on behalf of the victim/ informant/opposite party no. 02
above named that the para 5, 6, 7, 16, 17, 18, 49 and 60 of the case diary is referable
along with the F.I.R, fardbeyan, re-statement charge sheet etc. are referable, all the
certified copy of the concerning documents are need not filed by the victim/opposite
party no. 02 due to it is already filed by the accused petitioners not only that it is
mentioned in the plaint of instant criminal Revision Petition as ready reference at Para
- 9, 10, 11, 12, 18, 19, 20, 22, 23, 24 and 25 as well as Annexure 1, 2 and 3, the L.C.R.
may be call for verification and consideration.
It is pertinent to mention here as follows: -
A) That the allegation made in fardbeyan and F.I.R. was fully supported by restatement
and statements u/s 161 Cr.P.C. by the informant and witnesses (vide para 5, 6, 7 of case
diary and para 9, 10, 11 of the plaint are referable.
B) That the recording of C.C.TV footage produced in a Pen drive by the mother of the
victim/Opposite Party No. 02 concerning to the alleged offence committed by the
accused/petitioners regarding the Hazaribag Sadar P.S. Case No. 36/2022 and S.T.
100/2023 is conclusive evidences (Para 16 & 17 of case diary is referable), as mentioned
in para 18 of the case diary the Investigation officer very clearly reported that after
observation of the recorded Pen Drive the accused petitioner namely Mahendra
Prajapati assaulted to Farhan Hai Khan, the accused Hemant Kumar Shikarwar also
involved and one lady Muniya Devi rushed assault with sleeper in her hand, but she felt
down by pushing Farhan Hai Khan sometime she wanted to raise but could not raise, at
that mean time accused Hemant Kumar Shikarwar assaulted by foot to the victim
Zarinne Khan, she felt down thereafter Hemant Kumar Shikarwar repeatedly assaulted
by leg and hand holded mobile phone very brutally, seeing that Farhan Hai Khan came
for saving her life and he pushed on the bricks then the wife of Hemant Kumar
Shikarwar namely Priyanka, Vikash Kumar, wife of Vikash Kumar and namely
Anuradha and son of Vikash Kumar namely Aryan caught and pushed Farhan Hai Khan
and Farhan felt down and Hemant Kumar Shikarwar assaulting brutally him by his foot,
during fighting Husna Ara Bano ( mother of the victim) picking something from the
site, but Hemant Kumar Shikarwar snatched the thing and handed over it to his wife.
C) The I.O of the case namely Nishee Kumari has submitted charge sheet and showing
lack of evidence against the accused Aryan Kumar on direction of police inspector vide
Letter No. 268/2022 dated 24.11.2022 but it is submitted on behalf of the
victim/opposite party no. 02 that it is very clear from the said C.C.TV footage the
accused Aryan Kumar was also present and actively involved in the alleged offence
para 18 of case diary, para 22 of the plaint and para - 60 of the case diary and para - 24
& 25 of the plaint of instant Cri. Revision referable for consideration.
D) That is submitted that the instant petitioners has produced the above mentioned part
of case diary as a ready reference in their plaint of instant criminal Revision petition but
very cleverly and knowingly concealed the snapshots photograph of the same which
was part of para 18 of the case diary because it may be very clearly observed that the
petitioners how brutally assaulted and committed the alleged offence against/upon the
victim as well as upon her mother and younger brother but the petitioners above named
has stated very shamelessly at para 34 and 36 of the plaint of instant Cri. Revision "the
injury found over informant body were no grievous in nature, simple injuries were
found upon the informant and the injury defined under section 320 IPC for grievous
hurt does not fall under the said categories", it is submitted on behalf of opposite party
no. 2 that it may be added during trial of the said S.T. 100 of 2023, however, the opinion
of doctor is reserved in a sealed envelope and not opened till the date.
31. It is further submitted on behalf of the victim/opposite party no. 2 the
accused no. 1 as well as the other co-accused have no any right to go over the piece of
land situated in front of the residential house of the victim/opposite party no. 2, as there
is/was so many cased pending before the so many administrative/quasi-judicial courts
and civil/criminal court between both the parties, but due to having ill motive and for
the purpose of drive away from the ancestral property of the victim/ opposite party no.
02 as well as her family members, by using brutal force and by assaulting and to create
havoc against the opposite party and her family, the accused no. 1 and other co-accused
persons reached upon the site above mentioned and started creating dispute with
clicking photograph shot of the motorcycle etc. and after raising voice against the
wrongful doing of the accused no. 1 above named, all the co-accused including the
female accused assembled conspirately and committed the alleged offences, if (as
submitted by the accused no. 1) there was any measurement or demarcation proceeding
was to be going on, on the very next day by the local authority in presence of police,
then there was no question of fear of disturbance by the victim/opposite party no. 02
side, because there shall be police and authority already present to handle with the any
disturbance from any other side party, but all the accused person committed the alleged
offences with a criminal conspiracy and in a planned way in order to usurp the above
said entire 10 decimals landed property by showing man, muscle and money power,
which is not appreciable by law, being a high court's law practitioner the accused no.
01 above named should wait for decisions of the learned courts, the conducts use by
them as stated above are not appreciable in the eye of law and it should be strictly
extinguished by this Hon'ble Court.
32. The learned APP has submitted that it will be imperative to mention here
that petitioners are named in the FIR and there is direct and specific allegation against
them.
33. He further submitted that it will be relevant to mention here that during
course of investigation informant has fully supported the case of prosecution against all
accused/petitioners in her re-statement at para-05 of the case diary as alleged by her in
FIR.
34. It is submitted that witnesses Husn Ara Bano at para 06 and Farhan Hai
Khan at para 07 have supported and corroborated the case of prosecution.
35. It will also be relevant to state here that during course of investigation I.O.
of the case visited the place of occurrence and asked from informant about nearby
CCTV cameras, on being asked informant/victim provided a pen drive having footage
of occurrence. Same has been seized by the I.O. of the case and prepared production
cum seizure list which has come at para 17 of CD.
36. It will be most relevant to state here that when footage of CCTV was
viewed by I.O., he found that accused Hemant Kumar Shikarwar has assaulted Zarin
Khan by fist due to which she felt down and thereafter he is making repeated assault on
hand of Zarin Khan having mobile phone, who is lying on earth. It has also come from
footage that all accused petitioners were also involved in scuffle (para 18 of case diary).
37. The learned counsel for the State has further submitted that it will be worth
submitting here that CCTV footage is alone sufficient to show the complicity of
accused/petitioners in alleged offence, hence they do not deserve any kind of sympathy
by this Court and hence present petition deserve to be dismissed in Lim-in-aye.
FINDINGS
38. Perused the record and considered the submissions of both sides.
39. It appears from the record that informant alleged in her Fardbeyan that on
29.01.2022 at 9.00 A.M. the informant came to switch off the light of her Verandah and
at the same time, three persons known to her father, came to her house. In the
meanwhile, Hemant Shikarwar, who is neighbour also came to her house and started
taking photographs of the motorcycle of her guests. Thereupon, mother of the informant
came out of her house and asked from Hemant Shikarwar, as to why he was taking
photographs and why he had dumped bricks, sand and stone chips in front of her house.
She also asked him to remove the same on which, Hemant Shikarwar pushed her mother
with his hands and snatched away gold jewellery from her mother and started abusing
her. In the meantime, driver of Hemant Shikarwar namely Mahendra Prajapati also
came. Thereafter, her brother came to pick up his mother, upon which, Hemant
Shikarwar and Mahendra Prajapati with intention to kill her brother assaulted on the
head of her brother, due to which blood started oozing from her brother's head.
Thereafter, the informant and her mother went to save her brother, then the accused
persons Vikash Kumar Upadhyay and Aaryan Kumar Upadhyay came there and started
using abusing language. The informant was assaulted with hands and bricks and her
gold chain and diamond jewelleries were snatched away. Her two mobile phones were
also snatched by which she was making video of the incident. Thereupon, Hemant
Shikarwar threatened them to vacate the house or else to face dire consequences. She
has further alleged that Hemant Shikarwar and Mahendra Prajapati also tried to outrage
her modesty. The accused persons also assaulted her, due to which she received injuries
on her nose and started bleeding from her mouth. She also received serious injury on
her right eye and head as well as on her hand and leg. She has further stated that call
was made on the snatched away mobile and the ringing sound was coming from the
house of Hemant Shikarwar. In the meantime, wife of Hemant Shikarwar namely
Priyanka, wife of Vikash namely Ayesh Anuradha and maid Muniya also came and
started abusing and threatening the informant and her family members.
40. The informant in her re-statement vide para-5 of the case diary has fully
supported the FIR and the incident and told that on 29.01.2022 at 09.00 am, she had
come to switch off the light of her verandah, at the same time, three people known to
her father came to her house and were asking about their well-being. During the same
time Hemant Kumar Sikarwar son of late Ram Lakhan Singh, her neighbour, came and
started clicking photographs of the motorcycle of the guest who had come to his house.
Then his mother came out of the house and said that why are you clicking photographs
of the motorcycle and you have dumped bricks, sand and gravel in front of my house,
remove it from in front of my house. Then Hemant Kumar pushed his mother and
snatched the gold chain and earring from her neck and ears and started abusing her. In
the meantime, Mahendra Prajapati, the driver of Hemant Kumar came. In the meantime,
when her brother went to pick up his mother, Hemant Kumar and Mahendra Prajapati
hit his brother on the head with the intention of killing him due to which blood started
oozing from his brother's head. When she went to save her mother and brother, Vikas
Kumar Upadhyay and Aryan Kumar Upadhyay came and started abusing her and hit
her with hands and bricks and snatched away the gold chain from her neck, diamond
ring, gold earring and also snatched away two mobile phones with which she was
making a video of the incident. After this, Hemant Kumar threatened that all three of
you should leave the house or else he will kill all three of them. Hemant Kumar and
Mahendra Prajapati molested her with wrong intentions and the above-mentioned
people beat her up. Due to which blood started flowing from her nose and mouth and
she also suffered serious injuries in her right eye and head. She also suffered injuries in
her hands and legs. Munia Devi, who works in Hemant Shikarwar's house, also fell
down in the scuffle. While falling, Munia Devi's leg which was fractured earlier got
hurt due to which she also got injured. When the mobile snatched from her was rung,
the ringing sound was coming from Hemant Kumar's house. Meanwhile, Hemant
Kumar's wife Priyanka and Vikas's wife Ayesha Anuradha and Hemant Kumar's maid
Munia came and started abusing and threatening that all of you should leave the house
or else they will kill all of us and throw away. No other noteworthy thing was mentioned
further.
41. Apart from that, vide para 6 & 7 of the case diary, the mother of the
informant namely Husna Ara Bano in her statement u/s 161 of Cr.P.C, and brother of
the informant namely Farhan Hai Khan in his statement u/s 161 of Cr.P.C have
supported the version of the informant.
42. In para 18 there is entry regarding CCTV footage of the alleged
occurrence which is stated below:
In this case, as per the seizure list, a Black and Red Colour Pendrive (1) of
Sandisc Company's Cruzer Blade 16 GB was presented and on observation in the
presence of witness Husn Ara Bano, it was found that people from both sides were
gathered at the scene of the incident and were shouting and screaming. Meanwhile,
while talking, Mahendra Prajapati and Farhan Hai Khan started fighting with each other.
In the fight, Farhan Hai Khan also got into a fight with Hemant Shikarwar. To save
Mahendra Prajapati, Mosomat Munia Devi ran from upstairs with her slippers but
Farhan Hai Khan pushed her and made her fall down due to which Munia Devi
remained lying there for some time. After some time, when Munia Devi tried to get up
and walk, she fell down right there. Then in the fight, Hemant Shikarwar punches
Zareen Khan and knocks her down. After she falls, Hemant Shikarwar kicks her and
attacks her with the mobile phone in his hand. Seeing this, Farhan Hai Khan comes
running and throws Hemant Shikarwar on a brick kept nearby and beats him. Then from
there, Hemant Shikarwar's wife Priyanka, Vikash Kumar, Vikash Kumar's wife Ayesha
Anuradha, Vikash Kumar's son Aryan Kumar, Farhan Hai Khan's mother and Farhan
Hai Khan's friends all try to separate Farhan Hai Khan and Hemant Shikarwar by
holding them. In the process, Farhan Hai Khan falls on the ground. Hemant Shikarwar
and Vikash Kumar are seen kicking him. Then Farhan Hai Khan's friend is seen saying
something and going away. During the fight, an object falls which Husn Aara Bano is
seen picking up. The said item is snatched by Hemant Shikarwar and given to his wife.
43. In view of above, it appears that the role of Petitioner No. 3- Most. Munnia
seems to be that she had tried to interfere, but she was pushed by the brother of the
informant and then she fell down. As far as the role of Petitioner No. 1- Priyanka and
Petitioner No. 2- Aayesha Anuradha is concerned, they seem to have come in the end
and their role is confined to abuses and threat. It is clear that all the accused persons
including the male members have not come with any dangerous weapon and also as per
statements assault was made by fist and bricks. So there was no motivated planning to
cause injury to anyone rather on oral scuffle between the parties the occurrence took
place and therefore section 307 and 325 IPC are not applicable. There is also no
reference that five or more persons have come in the same time and also as per CCTV
footage many persons including Priyanka and Aayesha had tried separating the persons
involved and, therefore, it is not apparent that section 149 IPC can also be applicable in
the circumstances. It is also apparent from the records available that there is no grievous
injury on the informant's side though in the allegation and statement made by the
informant's side it is said that the head of the brother was fractured and he was bleeding
but no injury to that effect has been brought. The CT Scan report says that "Impression
No significant abnormality detected in NCCT study of brain, all the things were found
normal. No injury was found.
44. Based on the aforesaid observations and reasonings, the order dated
15.7.2023 passed by the learned Additional Sessions Judge-1, Hazaribag in ST No. 100
of 2023 arising out of Sadar P.S. Case No. 36 of 2022, is set-aside to the extent that
cognizance under sections 149, 325 and 307 IPC do not lie and the matter is remitted
back to concerned jurisdictional or successor court for cognizance/ framing of charge.
45. Thus Cr. Revision No. 1130 of 2023 is allowed in part and the case is
remitted back to the learned court below.
46. However, it will be open to the informant and the injured to move before
the learned trial court below if any evidence is brought forward or comes to light
regarding any grievous injury and the learned court below without any prejudice by this
order may pass the necessary order.
(Ratnaker Bhengra, J.)
Jharkhand High Court at Ranchi
Dated : 03 / 10 /2024
Sharda/NAFR
