Opp. Party v. with Cr. Revision No
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Revision No. 1257 of 2018 Santosh Kumar, aged about 36 years, son of late Awadh Singh, resident of village-Indopur, Ward No.21, P.O. & P.S. Barhaiya, Petitioner dist-Lakhisarai, (Bihar. …… The State of Jharkhand ……. Opp. Party Versus with Cr. Revision No. 1641 of 2017 Sharwan Kumar @ Shrawan Kumar, son of Chandrika Singh, resident of village Ramsen Tola, P.O. & P.S-Barhaiya, District Petitioner Lakhisarai (Bihar) …… The State of Jharkhand ……. Opp. Party Versus with Cr. Revision No. 1723 of 2017 Sonu Kumar, S/o Birendra Prasad Singh, R/o village Dukhharan, Ward No.6, (B.S.H.B), P.O & P.S-Barhaiya, District Lakhisarai Petitioner (Bihar) …… Versus The State of Jharkhand ……. Opp. Party CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD --------- For the Petitioner For the State ---------- : Mr. Pran Pranay, Advocate : Ms. Kehkashan Afsheen, Adv. (Cr. Rev.1257/18) : Mrs. J. Mazumdar, Advocate : Mr. Rohan Mazumdar, Advocate (Cr. Rev.1641/17) : Mr. Deepankar, Advocate : Mr. Sushant Kumar, Advocate (Cr. Rev.1723/17) : Mr. Sanjay Kr. Srivastava, APP (Cr. Rev.1257/18) : Mr. Fahad Allam, APP (Cr. Rev.1641/17) : Mr. Rajesh Kumar, APP (Cr. Rev.1723/17) ----------- ORAL JUDGMENT IN COURT 07/Dated:07th March, 2024 All these Criminal Revision Applications have arisen from the common impugned judgment and as such all these cases have been heard together and are being disposed of together. 2. These Criminal Revision Applications have been filed on behalf of the petitioners challenging the judgment of conviction 1
Legal Reasoning
and order of sentence dated 22.08.2017 passed by Shri Krishna Kumar, learned Additional Sessions Judge-II, Deoghar in Cr. Appeal No.05 of 2014 by which the appeal preferred on behalf of the petitioners has been dismissed but by modifying the judgment of conviction and order of sentence dated 22.01.2014 passed by Sri Sunil Kumar Singh, learned A.C.J.M., Deoghar in G.R. Case No.633/2008 (T.R. No.163/2014) to the extent that Section 411 of IPC was set aside by the learned Appellate Court. Although, the learned Trial Court had convicted the petitioners for the offence under section 394 and 411 of IPC and sentenced them to undergo R.I for five (05) years each and to pay the fine of Rs.5000/- each for the offence 394 of IPC and S.I. for three (03) years for the offence under section 411 of IPC. 3. The prosecution case, in brief, is that on 13.08.2008 at 2 about 22:00 hours at Sadar Hospital, Deoghar the Informant one Md. Shamim Ansari lodged a fardbeyan to the police officer of Jasidih police station stating therein that he is a driver of Bolero Jeep bearing Registration No. JH-03A-9118 and on 13.08.2008 at about 03:00 in the day hours at Giridih bus stand, two persons came on a TVS motorcycle and told him that they want to hire the vehicle for Puja at Deoghar and for which Rs.1,400/-as a fare was agreed. Thereafter they gave him advance money of Rs.110/- and at 04:00 PM. two persons came and sat in his vehicle and they proceeded for Deoghar. After 40 feet near Sahara India Office, a person also boarded on his vehicle and thereafter they started talking in the vehicle and all the three persons become so informal to the informant and they started talking by calling their names by which informant knew that Santosh Kumar aged about 24 years, Sharwan Kumar aged about 20 years and Sonu Kumar aged about 22 years were sitting in his vehicle and all the three persons belong to 2 Barhaiya, District Lakhisarai. At about 07:30 P.M. in the evening when the said vehicle reached near Digriya Pahari, a person sitting on rear seat covered his face with a cloth and started pressing his head from back. He realised that intoxicated material was there in that cloth and thereafter informant was removed from the driving seat and he was taken to rear seat and the accused Santosh Kumar started to drive the vehicle. When he did not become unconscious, two persons administered him two injections. They took out Rs.130/-, a Nokia mobile phone and driving licence from his pocket and threw him in nearby bushes and they fled away with said Bolero towards Chakai. After sometime police came there and he was taken to Sadar Hospital, Deoghar where he claimed that the miscreants Santosh Kumar, Sharwan Kumar and Sonu Kumar all of Barhaiya, District Lakhisarai, Bihar had intoxicated him by administering injections to him, took out his mobile phone, cash, driving licence and taken away his Bolero vehicle bearing registration no.JH-03A-9118 and had thrown him in the bushes and fled away towards Chakai. 4. Heard learned counsels for the petitioners and learned APP for the State. 5. Learned counsels for the petitioners have submitted that the impugned judgments and order of sentence passed by the learned Courts below are illegal, arbitrary and not sustainable in law. It is submitted that learned Courts below have passed the order in a mechanical manner and without appreciating the evidence available on record. It is submitted that the learned Appellate Court has not passed any reasoned order. It is submitted that learned Courts below have failed to appreciate that during the trial, the informant had not identified the accused persons. It is submitted that the petitioners were not produced 3 for Test Identification Parade. It is submitted that the petitioners have no criminal antecedent and no incriminating articles have been seized from the possession of the petitioners. It is submitted that all the seizure list witnesses have turned hostile and have stated that their signature were taken on blank papers. It is submitted that there was no evidence in the entire robbery of the said Bolero but in spite of that the learned Courts below have held the petitioners guilty under Section 394 of the IPC which is completely illegal and perverse. Hence, the above Criminal Revision Applications may be allowed and the petitioners may be acquitted. 6. On the other hand, learned APP for the State submitted that the impugned judgments and order of sentence passed by the learned Courts below are fit and proper and no interference is required. 7. Perused the Lower Court Record and heard learned counsels of both the sides. 8. From perusal of the Lower Court Record, it transpires that the F.I.R was lodged on 13.08.2008 against the petitioners for the offences under Section 394 of IPC. 9. The police, after making investigation, had submitted charge sheet on 18.09.2008 against the petitioners for the offences under Sections 394 and 411 of the IPC. Thereafter the learned C.J.M, Deoghar took cognizance against the petitioners on 18.09.2008 under Section 394 and 411 of IPC. 10. After supplying the police papers to the accused petitioners the charges were framed on 02.01.2009 against the petitioners under Sections 394 and 411 of IPC by Judicial Magistrate, Ist Class, Deoghar and to which they pleaded not guilty and claimed to be tried. 4 11. The prosecution got examined altogether nine (09) witnesses, who are as follows:- P.W.1-Nandlal Prasad Mathuri, (i) (ii) P.W.2-Md. Shamim Ansari (i.e. the Informant), (iii) P.W.3-Dr. Nandlal Pandit, (iv) P.W.4-Tulsi Yadav, (v) P.W.5-Onkar Nath Singh, (vi) P.W.6-Bharat Bitha, (vii) P.W.7- Raju Burnwal, (viii) P.W.8 - Brajesh Kumar and (ix) P.W-9- Krishna Prasad Ram (i.e. the I.O). 12. The prosecution got proved the following documents in support of its case, which are as follows:- (i) Exhibit-1, 1/1 and 1/2 are the signature of Nandlal Prasad Mathuri on arrest memo of accused Sonu Kumar, Santosh Kumar and Shrawan Kumar, (ii) Exhibit-2 is signature of informant Md. Shamim on fardbeyan, (iii) Exhibit-3 is requisition of injury of Md. Shamim, (iv) Exhibit-4 is the signature of Tulsi Yadav on seizure list and (v) Exhibit-5 is seizure list. 13. Apart from this, the prosecution got also marked Material Exhibits as follows:- (i) Material Exhibit-I to I/2 are three Mobiles, (ii) Material Exhibit-II to II/1 are two watches, (iii) Material Exhibit-III to III/9 are notes of Rs.540/-, (iv) Material Exhibit-IV to IV/2 are three Railway Tickets, (v) Material Exhibit-V is paper having written Dexorange, (vi) Material Exhibit-VI is Disposable Syringe. (vii) Material Exhibit-VII is Diary, (viii) Material Exhibit-VIII is Calendar and (ix) Material Exhibit-IX is photograph of Maa Durga Aarti of three fond. 5 14. Thereafter the petitioners were examined under section 313 Cr.P.C and to which they denied the circumstances put forth before them. 15. The defence got examined no witness and no document was marked as an Exhibit. 16. Thereafter the learned Trial Court i.e. Sri Sunil Kumar Singh, learned A.C.J.M., Deoghar after considering the material available on record and after hearing both the sides, had convicted the petitioners under sections 394 and 411 of I.P.C and had sentenced them to undergo imprisonments as mentioned earlier. 17. Thereafter the petitioners had filed Cr. Appeal No.05 of 2014 which was allowed in part by Sri Krishna Kumar, learned Additional Sessions Judge-II, Deoghar by acquitting the petitioners under Section 411 of IPC but has maintained conviction and sentence of the petitioners under Section 394 of IPC by which they had been directed to undergo sentence of R.I for five (05) years and to pay the fine of Rs.5,000/-. 18. So far as prosecution evidence is concerned, P.W-1 is Nandlal Prasad Mathuri, who runs tea stall. During evidence, he proved the signature on the arrest memo of the petitioners Sonu Kumar, Santosh Kumar and Sharwan Kumar, which have been marked as Exhibit-1, Exhibit-1/1 and Exhibit-1/2 respectively. However, during cross-examination, he stated that Daroga Ji had taken his signature on the blank papers. Thus, it is evident that P.W-1 has not supported the prosecution case as he clearly stated that police had taken his signature on the blank paper. Thus, the evidence of P.W-1 is not reliable. 19. P.W-4 is Tulsi Yadav, who also runs some business, has stated during his evidence that he has proved his signature on 6 the seizure list of Jasidih P.S. Case No.152 of 2008 which was marked as Exhibit-4. However, during cross-examination, he stated that the Police have taken his signature in the Police Station on the blank paper. He is not aware about the contents mentioned in the seizure list and nothing was seized during his presence. Therefore, it is evident that even P.W-4, though has not been declared hostile, has not supported the prosecution case as he clearly stated that police has taken his signature on the blank papers in the Police Station which was used as seizure list. Thus, the evidence of P.W-4 is not reliable. 20. P.W-2 is Md. Shamim i.e. the Informant and who was the Driver of the Vehicle in question. During evidence, he stated that he was Driver of Vehicle No.JH-03A-9118 and Owner of the Vehicle is one Manik Chandra Pal. On the date of occurrence, when he arrived at Deoghar-Chakai road near Deramil Pahari then the passengers, who had boarded from Giridih, had started assaulting him and they further administered injection to him due to which he became unconscious and was thrown out at Pahari and he regained consciousness after 3-4 days in Giridih. On becoming conscious, he went to Jasidih Police Station and gave his fardbeyan. He further stated that the accused miscreants had taken away his Driving Licence, Mobile and Rs.1350/ from his pocket as well as the Bolero Vehicle. He proved his signature on the F.I.R which is marked as Exhibit-2. However, he further stated that he was treated in Deoghar, Sadar Hospital. However, he also had not identified the accused persons i.e. the petitioners in the learned Court below and stated that he had not seen the accused persons (i.e. the petitioners) in any occurrence and he flatly refused to identify them. 7 During cross-examination, he stated that he is only able to put his signature and Daroga Ji had not written fardbeyan before him. He further stated to have not seen the accused persons earlier. 21. Thus, from scrutinizing the evidence of Informant-P.W-2, it is evident that he had not identified the petitioners during trial before the learned Trial Court who were in custody. He also claimed that after 3-4 days in Giridih on regaining consciousness, he went to Jasidih Police Station and got recorded his fardbeyan. Thus, the institution of FIR is also contradicted on 13.08.2009 by the informant during evidence and thus, it reveals that the FIR is ante-dated. 22. It appears that the FIR was lodged on 13.08.2009 by the informant against three person but the learned C.J.M seen it on 16.08.2009. 23. Thus, there is delay of three (03) days in perusing the FIR. Therefore, from the evidence of informant, it is evident that he had not identified the accused persons during trial and he had not stated that these accused persons, who were facing trial, had assaulted him and got him injection administered, due to which he became unconscious and fled away with his Bolero Vehicle as well as his Driving Licence and Rs.1350/ cash. Thus, although the informant has supported the case but he has not supported the involvement of these petitioners in the instant case and the informant had not supported the prosecution case against these petitioners. Hence, the evidence of Informant- P.W-2 cannot be used to convict him. 24. P.W-3 is Dr.-Nandlal Pandit, who has stated during his evidence that he has examined the Md. Shamim i.e. Informant on 13.08.2009 at 10.15 p.m. and found the following injuries on his person, as follows:- 8 “ (i) A swelling without armed muscle thickness hardening with tenderness, size 5” x 4”. (ii) Niddle piercing point at the swelling in .75 middle part of the swelling as above. (iii) Alcoholic smell was present at his nostrils. (iv) Mark of identification- Mask of till at right arm. (v) Age of Injury- within 6 hours. (vi) Type of weapon penetrating weapon. used-Sharp pointed (vii) Nature of Injury-Simple in nature so far as injury no.1 and 2 are concerned.” He has proved the injury report of the informant which was marked as Exhibit-2. During cross-examination, he stated that he has not mentioned in the above injury report that who identified the injured before him. Thus, the evidence of P.W-3 merely shows that he had examined the informant-Md. Shamim on 13.08.2009 and he had found simple injury on his person and he had also found that Alcoholic smell was present at the time of his entries. 25. P.W-5 is Onkar Nath Singh, who was A.S.P. at Jhajha P.S at the relevant time and stated during the evidence that he received information from Officer In-charge of Jhajha P.S that one Bolero Vehicle was being carried away by 3-4 persons speedly and the said Vehicle No.JH-03A-9118 was to be inspected. Then he found three persons sitting there and three persons with Driver were present. He recovered one Nokia Mobile from the pocket of Santosh Kumar and one another Mobile of Motorolla company from the possession of the accused petitioner Sonu Kumar with having four (04) notes of Rs.100/- denomination and two (02) notes of Rs.50/- denomination and four (04) notes of Rs.10/ each total Rs.540/- was recovered. He further recovered one L.G Reliance Mobile 9 and Sonata Watch and one Disposable Syringe and three (03) Railway tickets of Barhaiya Junction from the possession of petitioner Shrawan Kumar. Thereafter he prepared seizure list in presence of two independent witnesses and in which the petitioners also put their signature which has been marked as Exhibit-5. He further handed over the seized vehicle and the seized materials and the three (03) miscreants before the Police Station. He claimed to identify the petitioners. 26. During cross-examination, he stated to have received information from Mobile at around 10.00-10.30 p.m. Although he had interrogated the accused persons but he had not recorded their statements. First of all, he prepared the seizure list and thereafter he prepared the arrest memo. He stated that there is no difference of time in the seizure list as well as the arrest memo. However, on the next day he was not in duty but on the third day he was in duty but he could remember as to whether the accused persons were in the lock-up of the Police Station or not. But he had seen that Officer In-charge had handed over materials and accused persons to the Investigating Officer. He shown had ignorance as to whether the accused persons were presented before any Magistrate or not, but Investigating Officer had recorded his statement in the Police Station. He admitted to have not sealed the seized materials. He had arrested the accused persons as they were sitting in the said Vehicle. He denied the suggestion by preparing seizure list, arrest memo by ante-dating the same and the same were not handed over to the accused persons. Thus, from evidence of P.W-5, it would appear that he had identified the accused persons/petitioners in the Court who were arrested from the Vehicle and he had prepared the seizure list 10 and arrest memo but he had also admitted that the copy of arrest memo and seizure list were not given to the accused persons. 27. However, from scrutinizing the evidence of P.W-2 (i.e. the Informant and P.W-5 (i.e. the Police Officer), it would appear that there is contradiction in their statements as the informant had not identified the accused persons in Court, whereas the P.W-5 had identified the accused persons in Court. 28. It further reveals from the seizure list marked as Exhibit-5 that though it was signed by the seizure list witnesses, Tulsi Yadav (i.e. P.W-4) and Mohan Yadav (not examined), but he had taken the signature of the petitioners on reverse of the seizure list for obtaining the copy. Thus, the evidence of P.W-5 is contradicted from the evidence of P.W-2-Informant and hence, cannot be relied upon. 29. P.W-6 is Bharat Bitha, another A.S.P of Jasidih P.S who had produced three Mobile phones of L.G. Company, Nokia Company and Motorola Company and which were handed over to him by Shri Shyam Bihari Singh, then Officer In-charge, Jasidih P.S to produce before the Trial Court and said mobile phones were marked as Material Exhibit-I, Material Exhibit-I/1 and Material Exhibit-I/2. He further proved two watches marked as Material Exhibit-II and Material Exhibit-II/1. He further proved ten (10) notes amounting to Rs.540/- which were marked as Exhibit-III to Exhibit-III/9 respectively. He further proved three Railway tickets dated 12.08.2008 from Barhaiya to Dhanbad which were marked as Material Exhibit-IV to Material Exhibit-IV/2 respectively. He further proved papers having written ‘Dexorange’ which was marked as Material Exhibit-V. He further proved Disposable Syringe marked as Material Exhibit-VI. He further proved small diary marked as Material Exhibit-VII. He further proved small calendar of the year 2007 11 marked as Material Exhibit-VIII. He further proved Aarti of Maa Durga in three (03) fond as Material Exhibit-IX. 30. During cross-examination, he stated that none of the Police Officer had signed or put the date on any Material Exhibits. He also admitted that the Material Exhibits does not show any seal and Mohar of the Police Station and even in the plastic bag in which the above Material Exhibits have been produced do not contain the signature of any Police Officer. He is not aware of the subject matter of the instant case and he is not In-charge of Jasidih P.S. 31. Thus, scrutinizing the evidence of P.W-6, it is evident that he is a formal witness and he had produced the seized Material Exhibits which were neither sealed in the Police Station at the time of preparing the seizure list nor had contained the signature of any Police Officer or the accused persons (i.e. the petitioners) and, hence, the evidence of P.W-6 is not reliable. 32. P.W-7 is Raju Burnwal, who is a businessman and stated during the evidence that he is not aware of occurrence of this case and the police has not recorded his statement. This P.W-7-Raju Burnwal declared hostile by the prosecution and hence his evidence is not reliable. 33. P.W-8 is Brajesh Kumar and stated during his evidence that he is not aware about any occurrence and Police had not recorded his statement. This P.W-8-Brajesh Kumar has also been declared hostile by the prosecution and hence the evidence of P.W-8 is not reliable. 34. P.W-9 is Krishna Prasad Ram, who is P.S.I and who is the I.O of this case. He has proved his signature on the fardbeyan, which is marked as Exhibit-2/1. He further proved the Formal FIR marked as Exhibit-2/2. He proved the entire Formal FIR 12 which is marked as Exhibit-6. During course of investigation, he recorded the statement of the witnesses Brajesh Kumar Burnwal (i.e. P.W-8) and Raju Burnwal (i.e. P.W-7). Thereafter, he received information from Officer In-charge of Jhajha P.S that from one Bolero Vehicle No. JH-03A-9118, three miscreants have been apprehended and then he arrived at Jhajha P.S and contacted Officer In-charge and who informed him that they had prepared seizure list and arrest memo with regard to apprehension of Vehicle and the accused persons. Thereafter he had recorded the statement of witness Tulsi Yadav (i.e. P.W-4) and had brought the accused persons to Jasidih Police Station and he also brought the informant to Jasidih Police Station who had supported the occurrence. Thereafter he arrived with the informant at Dinaria Pahari (i.e. the place of occurrence) and had inspected the place of occurrence. Thereafter he recorded the confessional statement of the accused persons i.e. the petitioners namely, Santosh Kumar and Sharwan Kumar and Sonu Kumar, which have been marked as Exhibit-7 (with objection), Exhibit-7/1(with objection) and Exhibit-7/2 (with objection) respectively. Thereafter he had submitted charge sheet against the accused persons under Sections 394 and 411 of the IPC. 35. During cross examination, he further stated that he had taken the custody of the accused persons on 15.08.2008 and Officer In-charge, Jhajha had handed over the arrest memo of accused and seizure list to him at 10.00 a.m. on 14.08.2008. However, he had not obtained the transit remand from the Judicial Officers for bringing the accused on 15.08.2008 and he had brought the accused persons to Jasidih P.S Hajat on 15.08.2008 at around 10.00 a.m. in the morning. Then at that time, the informant arrived at the Police Station and had 13 identified the accused persons for giving intoxication to him and for looting the Vehicle. The informant also identified his Bolero Vehicle. 36. Thus, from scrutinizing the evidence of P.W-9 i.e. the I.O, it is evident that he had not produced the accused persons before the nearest Judicial Magistrate or taken transit remand even on 14.08.2008 before any Court because he had produced the accused persons before the Court below on 16.08.2008. 37. It further reveals from the evidence of P.W-9 that he had not conducted T.I. Parade of the accused persons in presence of Judicial Magistrate, although he claimed that the informant had identified him in the Police Station. But it was incumbent upon him to put him on T.I. Parade as the accused persons had allegedly fled away by looting his Bolero Vehicle along with certain cash amount as well as Driving License etc. 38. It further reveals that this is a case of identification of accused persons by the Police Officials only and not by the informant. 39. In view of conflict in the evidence of the Informant, who had not identified the miscreants and the P.W-5- Onkar Nath Singh, who was A.S.P and Police Officer had identified the petitioners, the benefit of doubt shall go to the accused persons because the person who is aggrieved and whose Vehicle was looted by the miscreant had not identified the petitioners in Court. 40. In view of the above, the impugned judgment of conviction and order of sentence dated 22.08.2017 passed by Shri Krishna Kumar, learned Additional Sessions Judge-II, Deoghar in Cr. Appeal No.05 of 2014 and the judgment of conviction and order of sentence dated 22.01.2014 passed by Sri Sunil Kumar Singh, learned A.C.J.M., Deoghar in G.R. Case 14 No.633/2008 (T.R. No.163/2014) are set aside and the petitioners namely, Santosh Kumar (Cr. Rev. No.1257 of 2018), Sharwan Kumar @ Shrawan Kumar (Cr. Rev. No.1641 of 2017) and Sonu Kumar (Cr. Rev. No.1723 of 2017), are acquitted for the offence under Section 394 of the IPC and they are also discharged from the liability of their bail bonds. 41. Thus, all the above Criminal Revisions i.e. Cr. Rev. No.1257 of 2018, Cr. Rev. No.1641 of 2017 and Cr. Rev. No.1723 of 2017 are, hereby, allowed. (Sanjay Prasad, J.) Saket/- NAFR 15