Adhir Pradhan v. The State of Jharkhand

CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA For the Appellants ----- : Mr. Nilesh Kumar, Advocate [In Cr. Appeal Nos.631, 753 & 1263 of 2023] Mr. Nitish Parth Sarthi, Advocate For the State [In Cr. Appeal No. 753 of 2023] Mr. Faiz Ur Rahman, Advocate [In Cr. Appeal No. 764 of 2023] Mr. A.K.Sahani, Advocate [In Cr. Appeal No.1051/2023] Mr. Asif Khan, Advocate Mr. Suraj Prakash, Advocate [In Cr. Appeal Nos.1648 & 1665 of 2023] : Mr. Pankaj Kumar, P.P. [In Cr. Appeal No.764/2023] Ms. Nehala Sharmin, Spl. P.P. [In Cr. Appeal No.1051/2023] Mr. Rajneesh Vardhan, A.P.P. [In Cr.Appeal No.631/2023] Ms. Snehlika Bhagat, A.P.P. [In Cr. Appeal No. 753 of 2023] Ms. Anuradha Sahay, A.P.P. [In Cr. Appeal No.1263 of 2023] Mr. Shashi Kumar Verma, A.P.P. [In Cr. Appeal No.1648 of 2023] Ms. Amrita Kumari, A.P.P. [In Cr. Appeal No. 1665 of 2023] For the Informant : Mr. Mahesh Tewari, Advocate Mr. Vikas Kumar, Advocate Mr. Ankur Anand, Advocate Mr. Ritesh Kumar Mahta, Advocate Mr. Parambir Singh Bajaj, Advocate …………….. C.A.V. on 22.02.2024 Pronounced on 14/03/2024 3 Cr. Appeal(DB) No.631/2023 with analogous cases Per Sujit Narayan Prasad, J.

1. All the appeals since have arisen out of common FIR in connection with Chakradharpur P.S. Case No.131 of 2022, hence, directed to be heard together and accordingly, the instant appeals (seven in numbers) are being disposed of by this common order.

2. The instant appeals preferred under Section 21(4) of the National Investigation Agency Act, 2008 are directed against the order dated

28.02.2023 passed in B.P. No.83 of 2023 [In Cr. Appeal (DB) No.631/2023], order dated 20.02.2023 passed in B.P. No.28 of 2023 [In Cr. Appeal (DB) No.753/2023], order dated 22.03.2023 passed in B.P. No.117 of 2023 [In Cr. Appeal (DB) No.764/2023], order dated

28.02.2023 passed in B.P. No.79 of 2023 [In Cr. Appeal (DB) No.1051/2023], order dated 05.06.2023 passed in Misc. Cr. Application No.762 of 2023 [In Cr. Appeal (DB) No.1263/2023], order dated 05.08.2023 passed in B.P. No.342 of 2023 [In Cr. Appeal (DB) No.1648/2023] & order dated 28.07.2023 passed in B.P. No.319 of 2023 [In Cr. Appeal (DB) No.1665/2023] by the Additional Sessions Judge, West Singhbhum at Chaibasa, connection with Chakradharpur P.S. Case No.131 of 2022, corresponding to G.R. Case No.66 of 2023, whereby and whereunder, the prayers’ for regular bail of the appellants have been rejected.

3. The prosecution story, in brief, as per the written report dated

14.11.2022 of the informant, namely, Uma Shankar Giri who is none- else but the elder brother of deceased Kamaldeo Giri and later on, Sections 120B I.P.C., 25(1a), 25(1B)(a), 26 and 35 of the Arms have 4 Cr. Appeal(DB) No.631/2023 with analogous cases been added vide order dated 05.01.2023, wherein, it has been alleged inter-alia that on 12.11.2022 at about 05:45 p.m., his younger brother namely, Kamaldeo Giri, aged about 31 years, proceeded from his house with his friend Shankar Singh on motorcycle. Thereafter, at about 06:30 hours, Shankar Singh told his brother Fulandeo Giri through phone that near Bharat Bhawan Chowk, Kamaldeo Giri has been killed by exploding bomb and shooting. After hearing this, he reached at Railway Hospital via Bharat Bhawan Chowk.

4. Further, the case of the prosecution, as per written report of the informant is that after examination, the Doctor declared Kamaldeo Giri dead. Thereafter, he, along with his family members brought the dead body of his brother to his house.

5. Further, as per the written report of the informant, he has no knowledge that who has killed his younger brother Kamaldeo Giri. On making query about this occurrence Shankar Singh said that he (Shankar Singh) and Kamaldeo Giri while proceeding from the house, first reached at Pandit Hata Shiv Mandir and from there, they went to Pawan Chowk and from Pawan Chowk, they, (Shankar Singh and Kamaldeo Giri) along with Rajesh Sharma and Dhiraj Thakur went to Railway Station and therefrom, after 10 minutes, both of them were coming to the house. In the meantime, attack was made on Kamaldeo Giri from back side and after making attack their motorcycle fallen down and after hearing the sound of bomb and bullets, he, (Shankar Singh) fled away. Thereafter, he (Shankar Singh) given information about the occurrence to Fulan Bhaiya by phone. 5 Cr. Appeal(DB) No.631/2023 with analogous cases

6. On the basis of the aforesaid written report of the informant, FIR was instituted for the offence under Section 302/34 of the IPC, Section 27 of the Arms Act, Sections 3/4/5 of the Explosive Substance Act and later on, Section 120B of the IPC and Sections 25(1)(a)/25(1B)(a), 26 and 35 of the Arms Act have been added.

7. In course of investigation, the appellants have been apprehended and remanded in judicial custody. Thereafter, they have filed bail petitions before the learned court concerned but their bail petitions have been rejected, hence, the instant appeals. Argument advanced on behalf of the learned counsel for the appellant in Cr. Appeal (DB) Nos.631, 753 and 1263 of 2023

8. Mr. Nilesh Kumar, learned counsel for the appellants in the aforesaid appeals, has taken the ground that there is no evidence against the appellants regarding their involvement in the alleged commission of crime, since no incriminating material directly/indirectly has been recovered from the physical or conscious possession of the appellants.

9. It has been contended that merely on the basis of confessional statement of the co-accused persons, their culpability have been found.

10. It has further been contended that the appellants are absolutely innocent and they have committed no offence as leveled against them, rather, they have falsely been implicated in this case on mere suspicion because they are the relatives of the co-accused of this 6 Cr. Appeal(DB) No.631/2023 with analogous cases case. Even though, the appellants are not named in the FIR but they are languishing in judicial custody without any fault. Argument advanced on behalf of the learned counsel for the appellant in Cr. Appeal (DB) No.764 of 2023

11. Learned counsel for the appellant in Cr. Appeal (DB) No.764 of 2023 has contended that the appellant of this case has falsely been implicated due to suspicion.

12. It has further been contended that the FIR has been lodged against the unknown person. No incriminating article has been recovered from the physical or conscious possession of the appellant.

13. It has further been contended that the appellant is not named in the FIR and the appellant has neither committed alleged offence nor he has been involved in any manner in the commission of crime. Argument advanced on behalf of the learned counsel for the appellant in Cr. Appeal (DB) No.1051 of 2023

14. It has been contended on behalf of the appellant of Cr. Appeal (DB) No.1051 of 2023 that the appellant has committed no offence as has been alleged in the FIR. He has falsely been implicated in this case merely on the basis of suspicion.

15. It has further been contended that no incriminating article has been recovered from the physical or conscious possession of the appellant and merely on the basis of the confessional statement of the co-accused person, his culpability has been found. 7 Cr. Appeal(DB) No.631/2023 with analogous cases Argument advanced on behalf of the learned counsel for the appellant in Cr. Appeal (DB) Nos.1648 & 1665 of 2023

16. It has been contended on behalf of the appellants of Cr. Appeal (DB) Nos.1648 & 1665 of 2023 that the appellants have falsely been implicated in this case. The names of the appellants have transpired only on the basis of the confessional statement of the co-accused persons.

17. It has further been contended that the appellants are not named in the FIR and no direct allegation of the commission of offence is against the appellants. Argument advanced on behalf of the respondent-State

18. Per Contra, learned Public Prosecutor as also learned Addl. Public Prosecutor appearing for the respondent-State, in all these appeals, have taken the following grounds in defending the orders impugned:- (i) That the involvement of the appellants/petitioners in the commission of crime, has come in course of investigation through C.D.R, (Call Detail Record) as would appear from paragraph-230 of the case diary. (ii) On the basis of the confessional statement of the co- accused persons, some of the names of the petitioners/appellants have been surfaced in the commission of murder of Kamaldeo Giri and some of the accused persons have himself confessed in their confessional statements that prior to the alleged occurrence, they were 8 Cr. Appeal(DB) No.631/2023 with analogous cases also involved and actively participated in the commission of murder of Kamaldeo Giri. (iii) The Investigating Officer has also submitted charge-sheet bearing no.19 of 2023 dated 18.02.2023 against the accused persons.

19. It has been submitted by the learned counsel for the respondent- State that the main assailants, namely, Zahid Hussain and Md. Rakib, have preferred appeals against the order rejecting the prayer for bail by the learned court being Cr. Appeal (DB) No.1411 of 2023 and Cr. Appeal (DB) No.1454 of 2023 but the same have been withdrawn vide order dated 14.09.2023 and 23.01.2024 respectively.

20. Learned Public Prosecutor as also the learned A.P.Ps for the respondent-State, based upon the aforesaid ground have submitted that, if the prayers’ for regular bail of the appellants have been rejected, the same cannot be said to suffer from an error. Arguments advanced on behalf of the Informant

21. Learned counsel appearing for the Informant, in all these appeals, has adopted the submission as has been advanced on behalf of the respondent-State, and in addition to, has taken the following grounds in defending the orders impugned:- (i) It is evident from the statements of Puja Giri (sister of informant), Mahesh Kr. Mahto, Phuldeo Giri and Shankar Singh that they all have corroborated and supported the facts as alleged in the F.I.R. 9 Cr. Appeal(DB) No.631/2023 with analogous cases (ii) Further, the statement of four eye witnesses, namely, Sajid Anwar @ Bablu, Kaleem @ Mintu, Mohammed Mukhtar and Afsar Hussain have been recorded under section 164 Cr.P.C., who are natural and independent witnesses, have also supported the prosecution case. (iii) The criminal conspiracy hatched to kill the deceased was unraveled during the course of Investigation and the involvement of the other accused came to light. (iv) Further, on the basis of technical evidence, Maitur Rahman @ Danish and Gulzar Hussain @ Pittu were arrested. who on confession also admitted that Rakeeb had asked them to be informed about the location of the deceased. (v) Further, Md. Shakir and Md. Hasim were also arrested on

29.11.2022 and have admitted to providing arms and bombs also. The weapon used in the commission of the offence was recovered from the house of one, Rohit Mahto, whose name appeared on confession of other accused, Satish Pradhan.

22. Learned counsel for the informant, in all these appeals, based upon the aforesaid grounds have submitted that, the orders impugned may not be interfered with. Analysis

23. We have heard the learned counsel for the parties and gone across the finding recorded by the learned court while considering the 10 Cr. Appeal(DB) No.631/2023 with analogous cases prayers’ for regular bail as also the case diary along with the criminal antecedent, as has been called for by this Court.

24. This Court, before adverting to the facts of the case, is first required to deal with the issue of conspiracy since looking to the evidence on record, it is abundantly clear that the edifice of prosecution case is founded on the theory of criminal conspiracy. In this context, it is pertinent to reiterate the settled legal proposition that in cases of conspiracy to commit a crime, usually it is very difficult for the prosecution to adduce direct evidence since conspiracy is not an open affair, therefore, the prosecution has to rely upon evidence pertaining to the acts of various parties to prove such an agreement of conspiracy on the basis of circumstantial evidence which can be inferred by necessary implication.

25. The Hon’ble Supreme Court in the case of State of T.N. through Superintendent of Police CBI/SIT Vrs. Nalini and Others, reported in (1999) 5 SCC 253, it has been observed as under:- “As stated above conspiracy is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the gravamen of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred the circumstances, especially 11 Cr. Appeal(DB) No.631/2023 with analogous cases declarations, conduct conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.”

26. The most important aspect of the offence of conspiracy is that apart from being a distinct statutory offence, all the parties to conspiracy are liable for the acts of each other. As per section 10 of 12 Cr. Appeal(DB) No.631/2023 with analogous cases the Evidence Act, once reasonable ground is shown for believing that two or more persons have conspired to commit the offence then anything done by any one of them in reference to their common intention is admissible against the others as held in State of Maharashtra Vrs. Damu, reported in (2000) 6 SCC 269.

27. In the case of Mukesh and Others Vrs. State (NCT of Delhi) and Others, reported in (2017) 6 SCC 1, the Hon’ble Supreme Court has elaborately deliberated and discussed the prerequisites for constituting the offence of conspiracy and the manner in which it can be proved and propounded that meeting of minds for committing an illegal act is sine qua non for the offence of conspiracy. It has been observed that it is neither necessary that each of the conspirators take active part in the commission of each and every conspiratorial act, nor is it necessary that all the conspirators must know each and every details of the conspiracy and the essence is an agreement to break the law as has been held in the case of Major E.G. Barsay Vrs. State of Bombay, reported in AIR 1961 SC 1762.

28. Now coming into facts of the instant case, it is evident from the perusal of the various paragraph of the case diary that there is specific accusation against the appellants.

29. On examination of the evidence on record prima-facie appears that the most of the appellants had a strong motive to murder the deceased namely Kamaldeo Giri and the appellants named above have played specific role as assigned them by the main 13 Cr. Appeal(DB) No.631/2023 with analogous cases assailants/conspirators, namely, Md. Rakib, Jahid and Satish Pradhan. Further it has come on record that the appellants have performed the work of informer or weapon supplier or facilitator of the crime.

30. At this juncture, this Court thinks fit to refer the specific accusations, which have been surfaced during the investigation, are as follows:- Cr. Appeal (DB) No.631 of 2023 (i) The name of the appellant of the aforesaid appeal has transpired on the basis of confessional-statement of Shahnawaz @ Palli, as would appear from paragraph-180 of the case diary. (ii) It would be evident from the aforesaid paragraph of the case diary the present petitioner came with his brother namely Satish Pradahan in white scorpio at Kharsawan station and facilitating the accused persons in their escape. (iii) He is having the criminal antecedent of 11 cases, as would appear from paragraph-260 of the case diary. Cr. Appeal (DB) No.753 of 2023 (i) The name of the present appellant has transpired on the basis of confessional-statement of Satish pradhan, wherein, it has been stated that this appellant helped him in alleged offence by informing the location of deceased time to time. 14 Cr. Appeal(DB) No.631/2023 with analogous cases (ii) Further, this appellant himself confessed that he has inimical relationship/thought with the deceased as would appear from paragraph-190 of the case diary. Cr. Appeal (DB) No.764 of 2023 (i) The name of the present appellant has transpired on the basis of confessional-statement of Jahid Hussain, MD. Rakib (Main assailant who had thrown bomb and fired upon deceased) and Shahnawaz @ palli, as would appear from paragraphs-139 &141 of the case diary. (ii) It has come in the confessional statement of the aforesaid accused that he has acted as informed and has passed the information to Md. Rakib about the movement of deceased Kamaldeo Giri. This fact has been fully substantiated by the CDR as mentioned in the case diary. (iii) On his confessional statement, the mobile has been recovered from the house of Niyaj Ahemad which was given by Md. Rakib. (iv) Further, he has one criminal antecedent, as would appear from paragraph-302 of the case diary. Cr. Appeal (DB) No.1051 of 2023 (i) The name of the appellant has transpired on the basis of confessional-statement of Jahid Hussain, Shahnawaz @ Pali, 15 Cr. Appeal(DB) No.631/2023 with analogous cases as would be evident from paragraph-139 & 180 of the case diary. (ii) In his confessional statement, he has stated that he had informed to Jahid about the movement of deceased at fateful day, as would be evident from page-43 of the case diary. (iii) As per the C.D.R., he was present at the place of occurrence at the time of alleged offence and at the relevant time, he was talking with Md. Jahid (the main assailant). Cr. Appeal (DB) No.1263 of 2023 (i) The name of the present appeal of the aforesaid appeal has come on the basis of confessional-statement of Jahid Hussain, MD. Rakib (main assailant), as would appear from paragraph-139 of the case diary. (ii) As per the confessional statement, he had helped Jahid in making bombs and he was in touch with main assailants, namely, Rakib. Cr. Appeal (DB) No.1648 of 2023 (i) As per his confessional statement which is recorded at para-30 of the supplementary case diary he has transported the pistol to Jahid which has been given to him by Hasim. Cr. Appeal (DB) No.1665 of 2023 (i) The name of the appellant of the aforesaid appeal has transpired on the basis of confessional statement Jahid 16 Cr. Appeal(DB) No.631/2023 with analogous cases Hussain, Md. Rakib, as would be evident from paragraph-139 & 180 of the case diary. (ii) Further, his accusation has fully been substantiated through C.D.R. and he was in talking term with Zahid regarding murder of deceased, as would be evident from paragraph-76 of the supplementary case diary.

31. It is thus, evident from the preceding paragraphs, prima-facie it appears that each and every appellants/accused, have played their specific roles as informer or bomb maker or weapon supplier or facilitator of the alleged crime. It is further evident from the material collected in course of investigation that all the accused persons are having in touch in the commission of crime, as would be evident from paragraph-230 of the case diary.

32. This Court is exercising the power of appeal, as conferred under Section 21(4) of the N.I.A. Act, 2008.

33. It is the settled position of law that when any order is being questioned before the appellate forum, it is required to be considered by the appellate court so as to interfere with the order which is under challenge on the ground perversity or lack of jurisdiction. However, there is no issue of lack of jurisdiction, rather, herein the issue of perversity has been raised.

34. This Court, on the basis of the discussion made hereinabove of all these appellants and the material collected by the Investigating Agency 17 Cr. Appeal(DB) No.631/2023 with analogous cases as available in the case diary as referred above, is of the view that it is not a case of perversity so as to interfere with the impugned orders.

35. In view of the foregoing discussions vis-à-vis the proposition of law regarding conspiracy as also the gravity of the offence, we find no illegality in the orders impugned.

36. In the result, we find no merit in the instant appeals, hence, the same are accordingly, dismissed.

37. Pending Interlocutory Application(s), if any, also stands dismissed. I Agree (Sujit Narayan Prasad, J.) (Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.) Rohit/-N.A.F.R.