Dhanbad. The State of Jharkhand With v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Criminal Appeal (D.B.) No.544 of 2015 (Against the judgment of conviction dated 15th July 2015 and the order of sentence dated 21st July 2015 passed by the learned Sessions Judge-VIII, Dhanbad in Sessions Trial No. 50/1998) ------ Sanjay Singh, Son of Shri Surendra Singh, Resident of At + P.O. + P.S.: … … Appellant Saraidhela, District: Dhanbad. The State of Jharkhand With Versus … … Respondent Criminal Appeal (D.B.) No.727 of 2015 Pawan Singh S/o Late Ram Pravesh Singh, Resident of Village-Pattaro, P.O and P.S. Raghunathpur, District Siwan, at present residing at Saraidhela, P.O. and P.S. Saraidhela, District- Dhanbad The State of Jharkhand Versus ----- … … Appellant … … Respondent CORAM: HON’BLE THE ACTING CHIEF JUSTICE
Legal Reasoning
HON’BLE MR. JUSTICE NAVNEET KUMAR For the Appellant(s) For the Respondent -------- : Mr. Anil Kumar Kashyap, Sr. Advocate Mr. Rajeev Ranjan Tiwary, Advocate Mr. Suraj Singh, Advocate. Mr. Akshay Kumar, Advocate. Mr. Ranjit Kumar Tiwari, Advocate : Mr. Subodh Kumar Dubey, A.P.P. -------- Per, Shree Chandrashekhar, J. 16th April 2024 In S.T. No.50 of 1998, Sanjay Singh and Pawan Singh were convicted vide judgment of conviction dated 15th July 2015 under section 307/34, 353/34 of I.P.C and section 27 of the Arms Act. They were sentenced vide order dated 21st July 2015 to undergo rigorous imprisonment for 10 years and a fine of Rs.10,000/- each under section 307 of the Indian Penal Code; rigorous imprisonment for 2 years under section 353 of the Indian Penal Code and; rigorous imprisonment for 3 years and a fine of Rs. 2,000/- each under section 27 of the Arms Act and in default of payment of fine to undergo additional six months imprisonment. 2. Topchanchi P.S. Case No.191 of 1994 was registered on the basis of the statement of Sub-Inspector Uday Prasad Singh who was the officer-in-charge of Topchanchi PS, alleging that on 12th October 1994 he received a wireless message that some miscreants armed with firearms are fleeing away on a white colour Gypsy after injuring local mukhiya Manindra Nath Mandal near Station Gate Saraidhela, Dhanbad. Accordingly, a message was flashed to every Police Station to put barriers for apprehending the Gypsy. At about 09:45 PM, the informant saw a similar looking Gypsy coming and tried to stop it but the miscreant fired on the police party. In response, the informant also fired from his official revolver in defence and then the miscreants started fleeing away. It was the occasion of Durga Puja and on that day several persons had gathered there. Four accused persons were arrested and they revealed their name as Rajeev Ranjan Singh, Sanjay Singh, Jainendra Singh and Pawan Singh. At the place of occurrence, two countrymade pistols with 2 live cartridges, empty cartridges of 12 bore and 0.315 bore were recovered. The accused persons did not produce the licence for carrying firearms and the explanation offered by them for possessing firearms was not satisfactory. Therefore, Topchanchi P.S. Case No.191 of 1994 was registered under sections 279, 353 and 307/34 of the Indian Penal Code and sections 25(1B), 26, 27 & 35 of the Arms Act. 3. The appellants faced the trial on the charge under sections 279, 353 and 307/34 of the Indian Penal Code and sections 25(1B), 26, 27 & 35 of the Arms Act. 4. Rajeev Ranjan Singh did not appear in the trial and Jainendra Singh was declared a juvenile. Mr. Anil Kumar Kashyap, the learned senior counsel for the appellants apprises the Court that now a report has come that Rajeev Ranjan Singh has passed away. 5. In the trial, the prosecution produced 10 witnesses to establish the charges framed against the appellants. However, the majority of the 2 Criminal Appeal (D.B.) No.544 of 2015 prosecution witnesses turned hostile and did not support the charge against the appellants. PW-1 Madhusudan Pal, PW-2 Vinod Chandra Pal, PW-3 Yogesh Chandra Pal, PW-4 Nimai Saw, PW-6 Kameshwar Gupta, PW-7 Lakhhi Nath Bose and PW-10 Damodar Mandal refused to support the prosecution in the Court. 6. This is not the law that the evidence of a hostile witness cannot be considered and is liable to be discarded. The prosecution is entitled to refer to and rely on a part of the testimony of a hostile witness that supports its case. PW-1, PW-2, PW-3, PW-4, PW-6, PW-7 and PW-10 were cross- examined by the prosecution on permission of the Court. From the cross- examination by the prosecution, it appears that these witnesses simply denied the occurrence and there is nothing in their testimony that can be utilized by the prosecution to demonstrate that the appellants are the persons who fired shot at the informant. 7. PW-5 who was posted as the Circle Officer at Baghmara deposed in the Court that around 07:30 P.M. in the evening of 12th October 1994 he was on patrolling duty. On that day, he received the wireless information about a shootout near Saraidhela area that the accused persons are traveling on a Gypsy having Registration No.BR 17C-7007 and heading towards Topchanchi P.S. On receiving this information, he proceeded with the Sub-Divisional Police Officer and arrived near Topchanchi P.S. There he found that a Gypsy was standing and the police had apprehended four persons. PW-5 affirmed in the Court that firearms were recovered from the Gypsy. PW-8 who was officer-in-charge of Rajganj P.S. and PW-9 who was posted as Literate Constable tendered evidence on the similar lines. PW-8 stated that he saw speeding Gypsy bearing Registration No.BR 17C-7007 heading towards Topchanchi and he gave information in this regard to the police station. PW-8 has spoken about firing at the officer-in-charge of Topchanchi P.S. and the return firing by him in defence. He further stated about search and seizure in the presence of PW-6 and PW-7. PW-9 also supported the prosecution case as regards search and seizure of firearm and 3 Criminal Appeal (D.B.) No.544 of 2015 live and fired empty cartridges. He is another witness who has seen firing by the accused persons at the officer-in-charge of Topchanchi P.S., namely, Uday Prasad Singh. 8. This is fundamental in law that the role played by the accused in the occurrence must be established beyond reasonable doubt. The trial Judge referred to the testimony of PW-5, PW-8 and PW-9 and held that the prosecution established that the accused persons were trying to flee away and fired at the informant. However, the prosecution did not examine the informant and the other witnesses are not eyewitnesses. The seizure witnesses turned hostile and did not support the seizure of firearm and live and empty cartridges from the place of occurrence. In “Takhaji Hiraji v. Thakore Kubersing Chamansing” (2001) 6 SCC 145 the Hon’ble Supreme Court observed as under: “19. … It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself — whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. …” 9. To establish the charge under section 307 of the Indian Penal Code, the prosecution is required to establish that the accused had such knowledge or intention which in the circumstances of the case would have caused murder by the offending act. Therefore, it was necessary for the prosecution to examine the informant and to establish that one of the firearms seized was used in the occurrence. This was also necessary to 4 Criminal Appeal (D.B.) No.544 of 2015 produce the Investigating Officer who was the informant himself (for cross- examination) so that the accused persons could have ilicited answers from him as to the gaps in the prosecution case. This is not a law of universal application that on failure of the Investigating Officer to offer himself for cross-examination the prosecution case shall fail. But then, in a case like the present one non-production of the Investigating Officer during the trial shall materially affect the prosecution case. Furthermore, if the prosecution comes with a definite case, it must establish its case beyond all reasonable doubt. In “Mohinder Singh v. The State” AIR 1953 SC 415, the Hon’ble Supreme Court observed that it is elementary that where the prosecution has a definite or positive case, it must prove the whole of its case. 10. After having examined the materials on record, we have formed an opinion that the prosecution case contained more chaff than grain. The gaps in the prosecution case assumed vital importance and, in the end, the prosecution case shall fail. Therefore, the judgment of conviction dated 15th July 2015 and the order of sentence dated 21st July 2015 passed by the learned District and Additional Sessions Judge-VIII, Dhanbad in Sessions Trial No. 50/1998 are set aside. 11. Criminal Appeal (D.B.) No.544 of 2015 and Criminal Appeal (D.B.) No.727 of 2015 are allowed. 12. The appellants, namely, Sanjay Singh and Pawan Singh are on bail. They are discharged of liability of the bail-bonds furnished by them. 13. Let the trial Court records be transmitted to the Court concerned, forthwith. 14. Let a copy of the judgment be transmitted to the Court concerned through FAX. (Shree Chandrashekhar, A.C.J.) Basant. / S. Das (Navneet Kumar, J.) 5 Criminal Appeal (D.B.) No.544 of 2015