High Court
Case Details
Criminal Appeal (D.B.) No. 735 of 2002 [Arising out of judgment of conviction and order of sentence dated 03.10.2002 passed by learned Additional Sessions Judge IX, Dhanbad in Sessions Trial No. 38/90] 1. Azad Mian @ Azad Ansari 2. Jakir Mian @ Jakir Hussain 3. Hafizul Mian 4. Imamuddin Mian @ Imamuddin Ansari All sons of Ranjan Mian, resident of Village Karalagga, P.S. Govindpur (Barwadda), District Dhanbad --Versus-- The State of Jharkhand …. …. …. Respondent .... .... …. Appellants For the Appellants For the State : Mr. Birendra Kumar, Advocate Mr. Raj Kishore Sahu, Advocate : Mr. Rakesh Ranjan, A.P.P. ----- PRESENT: SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. ----- JUDGMENT Reserved on: 04.12.2024 Pronounced On: 10.12.2024 Per Gautam Kumar Choudhary, J. Appellants are in appeal before this Court against the judgment of conviction and sentence passed under Sections 148 and 302/149 of the IPC. 2. On 18.11.1989, at around 8:30 in the evening while Triveni Choudhary, the cousin brother of the informant was returning home along with Sukhdeo Singh after electioneering, he was attacked by Ramjan Mian, Hafizul Mian, Azad Mian, Imamuddin Mian, Zakir Mian, Sudhir Mian and Lochan Mian. As a result, Triveni Choudhary died on spot. Informant claimed to have witnessed the incidence along with Vyas Deo Choudhary. 3. On the basis of written report of Jagannath Choudhary, Govindpur (Barbadda) P.S. Case No.316/89 was registered against the named accused persons. Police on investigation, found the case true and 1 submitted charge sheet under Sections 147, 148, 149 and 302 of the IPC. After cognizance and commitment, appellants were put on trial on charge of committing offence under Sections 148 and 302/149 of the IPC. 4. Altogether seven witnesses have been examined on behalf of
Legal Reasoning
prosecution and relevant documents including formal FIR, inquest report and post-mortem report have been adduced into evidence and marked as exhibits. 5. The statement of accused persons were recorded under Section 313 of the Cr.P.C. Defence is of innocence. No oral or documentary evidence has been adduced on behalf of the defence. 6. Judgment of conviction and sentence is assailed mainly on the ground of identification at night without any source of light for identification. It is argued by the learned counsel that the witnesses claimed to have identified the accused persons in torch light, but the torch was not seized during investigation which makes the identification of the appellants doubtful. It is argued that seizure of torch by the Investigating Officer, was an imperative necessity and the failure of it, can be regarded as fatal to the prosecution. 7. It is further argued that learned trial Court has disbelieved P.W. 3, P.W. 4, P.W. 5 and the prosecution case rests on the testimony of P.W. 2. His testimony is unreliable as he claims to have been assaulted in the incidence, but no injury report has been adduced into evidence regarding the injury sustained by him. P.W. 2 has stated about the presence of twelve persons, but he identified only four whereas FIR was instituted against only seven accused persons. Furthermore, there is a delay in FIR. The incidence took place in the evening at 8:30 whereas the FIR was lodged next morning at 10:00 a.m. 8. Learned A.P.P. has defended the judgment of conviction and sentence. It is submitted that deceased was murdered in cold blood without any fault, only for the reason that he participated in the democratic electoral process of a political party which was not liked by 2 the appellants. The oral evidence is corroborated by post-mortem examination report. There was no cogent reason to disbelieve P.W. 3, P.W. 4 and P.W. 5. FINDING 9. Deceased- Triveni Prasad Choudhary died a homicidal death, is not in a shade of doubt which has been objectively established by the Doctor (P.W. 6) who found the following injuries: - A. Incised wound 2” x 1”x upto bone deep placed 3" proximal to left wrist on the inner surface of left forearm. B. (1) Stab wound- wedge shaped a) ¾”x 1/5”x 1¼” placed 2 ‰" below left axilla (posterior field) passed obliquely into muscle. b) ¾”x ¼”x cavity deep over 8th left costal cartilage 1¾”left to midline. c) 1”x ¼”cavity deep, 1” medial to right nipple. B. (2) Elliptical shape a. 2”x 3/4”x cavity deep over left 6th and 7th rib 3 ½ ” left to midline b. ¾”x 1/5” cavity deep- ½”below and 3”right to midline in the iliac fossa. C. Abrasion I. II. III. IV. 2 ½”x 1/10”upper part of left side of neck 1”x ½” over manubrium 1”x ½”- upper part of right shoulder blade. 2 in number … ”x ¼” and ¾” x 1/8”- right knee cap D. Railway track bruise with a gap of ½”- I. II. 2 ¾ “long over upper inner scapular area. 2 ½ “long over upper outer right deltoid area. Doctor opined that death resulted from shock and internal hemorrhage due to aforementioned injuries caused by sharp cutting pointed weapon like Bhala and Barcha. 10. Regarding the author of this brutal crime where the body of the 3 deceased was extensively gorged, the main eye witness is Sukhdeo Singh (P.W. 2), who was accompanying the deceased at the relevant time. He has deposed that on the date of incidence, he had left home in the morning along with Triveni Choudhary for election campaigning. In the evening at 8:00 O’clock while they were returning home, Triveni Choudhary requested him to accompany him upto his house. While they were proceeding towards the house of the Triveni Choudhary, appellants namely Azad Mian, Hafiz Mian, Zakir Mian and Imamuddin armed with spear attacked them. He was hit on his back, as a result he fell down and Triveni Choudhary (deceased) was a few paces ahead of him. He was assaulted by spear and Barcha. The accused persons were saying that the appellants had been canvassing for BJP. On hulla, Jagannath Choudhary, Basu Deo Choudhary and wife of Triveni Choudhary came there, who were having a torch in their hand. In his cross-examination, he has reiterated that appellants were having spear like weapon. He has further deposed that it was a dark night and the place of occurrence was about 100 yards from the village. The Investigating Officer (P.W. 7) has admitted in para 13 that torch was not seized by him. 11. The incidence took place in night at 8:30, and the case has been registered on the next morning at 10:00 a.m. which cannot be said to be an inordinate delay by any count. FIR in any case, is a most important document as it discloses an unadulterated earliest version of the incidence. In the present case, name of this witness (P.W. 2) has figured in the FIR as the person accompanying the deceased at the time of occurrence. P.W. 2 has stated that he was also hit by someone from behind, but nowhere he has stated that he was injured in the incidence. The main target of the assault was the deceased and not this witness. As he had not sustained any injury, there was no occasion for his medical examination. Thus, absence of injury report cannot be a ground to disbelieve him. The incidence took place on 18.11.1989 whereas the post- 4 mortem examination was conducted a day after at 2:45 p.m. Oral evidence of P.W. 2 with regard to the weapon used in the assault, is fully corroborated by the nature of injury sustained by the deceased and the opinion of the Doctor who conducted the post-mortem examination. 12. With regard to the issue of identification at night. Law is settled that identification of a known person is quite different from that of stranger. A person can be identified even in darkness from manner of speech, style of walking and several other peculiar features. [see State of Madhya Pradesh Vs. Makhan & Ors., (2008) 10 SCC 615]. When a person is known to the other, then the probability for the identification of the said person is much higher. [see Rangnath Sharma Vs. Surendra Sharma & Others, (2008) 12 SCC 259; State of Andhra Pradesh Vs. Dr. M.V. Ramana (1991) 4 SCC 536]. It has been held in Nathuni Yadav Vs. State of Bihar & Anr., (1998) 9 SCC 238: - “Even assuming that there was no moonlight then, we have to gouge the situation carefully. The proximity at which the ass- ailant would have confronted the injured, the possibility of some light reaching there from the glow of stars, and the fact that the murder was committed in the roofless terrace are germane factors to be borne in mind while judging whether the accused could have enough visibility to correctly identify the assailants. Over and above those factors we must bear in mind that the assailants were not strangers to the tragedy borne house, the eye-witnesses were well acquainted with the physiognomy of each one of the killers. We are therefore persuaded to assume that it would not have been possible for the victims to see the assailants or that there was possibility of wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping on the terrace. If the light then available, though meager, was enough for the assailants why should we think that the same light was not enough for the injured who would pointedly focused their eyes on the face of the intruders standing in front 5 of them. What is a sauce for the goose is a sauce for the gander.” 13.
Decision
In view of the above stated position of law, when the P.W. 2 has candidly stated in his deposition that there were 8-10 more accused persons whom he could not identify, the identification of these appellants cannot be doubted merely for non-seizure of torch. Defence has failed to impeach the credit of this witness in the cross-examination. As discussed above, he is the person named in the FIR to be accompanying the deceased when the occurrence took place and his testimony is corroborated by medical evidence. I do not find any infirmity in the judgment of the learned trial Court wherein reliance is placed on the testimony of P.W. 2. 14. Under the aforesaid facts and circumstance, judgment of conviction and sentence passed by the learned trial Court is affirmed. Criminal Appeal stands dismissed. All the appellants are on bail. Their bails are cancelled and they are directed to surrender before the learned Court below within two weeks from the date of receipt of copy of judgment to serve the remaining part of sentence. Pending Interlocutory Application, if any, is disposed of. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment. (Gautam Kumar Choudhary, J.) Ananda Sen, J. I agree. (Ananda Sen, J.) High Court of Jharkhand, Ranchi Dated, 10th December, 2024 AFR/Anit 6