Jhar HC | Statement made in earlier depositions cannot be used to bring forth charges against an accused facing trial

Jharkhand High Court: Anil Kumar Choudhary, J. heard an interlocutory application filed under Section 378(4) of the Code of Criminal Procedure, 1973 warranting a grant of special leave to present an acquittal appeal.

Applicants herein were accused of entering into the complainant’s house to threaten her to withdraw the case instituted by her, during which they had abused her in a filthy language, and on her refusal to do so, they assaulted her and broke the lock of her shop taking away all the articles from it. The complainant had examined four witnesses in support of its case, whereby CW 1 and CW 2 were held not to be eye-witnesses to the occurrence and the CW 3 and CW 4 were not named in the column for witnesses, however, were introduced by the complainant at a later stage. The complaint had no mention of the presence of CW 4 at the place of occurrence, nor had the witnesses, at the stage of enquiry, stated her presence at the place of occurrence. CW 3, who was also the daughter of the complainant provided that the accused persons had misbehaved with the complainant and asked her to withdraw her case. She specifically stated that Akhilesh Pandey, who had been convicted, pointed a gun at the complainant, got the lock broken, and Rajesh Pandey, one of the private respondent, had called a truck and took away the articles of CW 3 and her mother, the complainant. The Chief Judicial Magistrate held that CW 3 and CW 4 had not stated anything about the two private respondents of this appeal, as required under Section 323 (punishment for voluntarily causing hurt) and Section 504 (intentional insult with intent to provoke breach of the peace) of the Penal Code, 1860 and as CW 1 and CW 2 were not eyewitnesses, he acquitted the two private respondents of this appeal and convicted Akhilesh Pandey.

The counsel for the appellant, while seeking the grant of special leave under Section 378(4) of CrPC submitted that the learned court had not considered the fact that CW 3 had specifically stated for the misbehavior of all the three persons with the complainant-CW 4, and that the subsequent paragraphs of her statement had specifically stated that Akhilesh Pandey had committed the offences. The trial court should have taken into consideration her earlier submission where she provided for the presence of other accused at the place of occurrence.  It was then submitted that her submission regarding the presence of the two private respondents at the place of occurrence, deemed that she had stated about the two private respondents of this appeal to have committed the offence for which their co-accused had been convicted, thereby they could also have been convicted.

The learned Additional Public Prosecutor submitted that the learned CJM had considered the fact that the witnesses had not specifically stated about the involvement of the private respondents of this appeal, hence, rightly acquitted them. It was further submitted that in a criminal case, unless a witness had specifically stated something against the accused in his deposition, the inference could not be drawn from his statement made in earlier paragraph of the deposition to bring forth the charges against the accused facing the trial, thereby requesting a refusal to the grant of special leave for presenting the acquittal appeal

The High Court opined that as the CW 3 had not specifically stated for the private respondents to cause hurt to the complainant or intentionally insult the complainant thereby giving provocation to her to break the public peace, there was no apparent illegality or gross error in the impugned judgment. Therefore the interlocutory application being without any merit was rejected and the acquittal appeal was accordingly dismissed.[Ila Rani Sahai v. State of Jharkhand, 2019 SCC OnLine Jhar 770, decided on 16-05-2019]

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