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Jharkhand High Court · body

2005 DIGILAW 867 (JHR)

Ramasish Singh v. State of Bihar (Now Jharkhand)

2005-12-19

R.K.MERATHIA

body2005
Judgment R.K. Merathia, J. - Both the criminal appeals arise out of the common judgment dated 27.3.1996 passed by Shri Vasudeo Ram, 2nd Additional Judicial Commissioner, Ranchi in Sessions Trial Case No. 551 of 1993, convicting the appellants under Section 304/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for ten years and to pay Rs.20,000/- each as fine. These two appeals have been heard together and are being disposed of by this common order. 2. It is stated, on the basis of the affidavit filed today, that appellant no. 1 (Prithvi Raj Rai of Criminal Appeal No. 36 of 1996) having died on 25.8.1997 i.e. during the pendency of the appeal, it has abated against him. 3. In both the appeals, the appellant are police personnel. This case arises out of Jagarnathpur P.S. Case No. 162 dated 20th August, 1990. The brief background prior to lodging of this case is necessary. Jagarnathpur P.S. Case No. 143 of 1990 was instituted under Section 395 and 412 of the Indian Penal Code on the fard-beyan of one Khemlal Sahu, Manager of Hesag Wine Bhathi alleging, inter alia, that renowned criminal Amrendra Kumar Swami with other accused persons named in the first information report committed dacoity in Hesag Wine Bhathi and one of the dacoits stabbed him in the chest. It was further alleged in the first information report that the villagers assembled there on alarm. They chased, caught and assaulted the dacoits, as a result of which, two of them, namely, Udai Sharma alias Munna and Wilson alias Pappu died at the spot while other accused, namely, Jonson Kiro, was admitted to Rejendra Medical College Hospital, Ranchi for treatment where he succumbed to the injuries on the next day. From their possession, looted cash, dagger, pistol and cartridges were recovered. Other three dacoits fled away. Prithvi Raj Rai, (deceased appellant no. 1 in Criminal Appeal No. 36 of 1996) also lodged a first information report being Jagarnathpur P.S. Case No. 144 of 1990 under section 304 of the Indian Penal Code against unknown villagers about the death of the said persons. It appears that on receipt of some complaint, the Deputy Commissioner, Ranchi directed Shri Kameshwar Ram, Executive Magistrate, Ranchi (P.W. 24) to hold enquiry under Section 176 of the Code of Criminal Procedure. It appears that on receipt of some complaint, the Deputy Commissioner, Ranchi directed Shri Kameshwar Ram, Executive Magistrate, Ranchi (P.W. 24) to hold enquiry under Section 176 of the Code of Criminal Procedure. After holding enquiry, he submitted his report on 11.8.1990, on the basis of which, the present case being Jagarnathpur P.S. Case No. 162 of 1990 was instituted under section 302/34 of the Indian Penal Code after about 24 days i.e. on 20.8.1990 against Prithvi Raj Rai (now deceased), Biran Prasad Singh and Baleshwar Ojha, appellants no. 1, 3 and 6 respectively in Criminal Appeal No. 36 of 1996 and nine others. Learned counsel for the appellants pointed out from this first information report that incriminating articles were recovered from the possession of the deceased persons who had criminal background also; and that it was found by the informant (P.W. 24) that criminal incident had taken place in the Wine Bhathi, and in this connection, criminals were caught by the police personnel, but it is not clear whether they died due to assault by the police personnel or by the villagers/pedestrians or due to assault by all of them. 4. The police after investigation submitted charge-sheet and charges were framed against the appellants under section 302/34 of the Indian Penal Code, to which they pleaded not guilty and claimed to be tried. 5. Out of 32 witnesses examined in this case, P.Ws. 7, 8, 18, 19, 21, 22 and 23 have been declared hostile and their testimony have been disbelieved by the learned Trial Court vide paragraph-18 of the judgment. P.Ws. 5. 11, 12, 13, 15. 16, 17 and 20 are the hearsay witnesses who have also been disbelieved by the Trial court vide paragraph-17 of the judgment. P.Ws. 30, 31 and 32 are formal witnesses. P.W. 6 is the Doctor who conducted post mortem. PW. 24 is the informant. P.Ws. 25, 26, 27, 28 and 29 are the different Investigating Officers. P.Ws. 1, 3, 4, and 14 are the alleged eye witnesses of the occurrence near Hesage Wine Bhathi and P.Ws. 2, 9 and 10 are the alleged eye witnesses of the occurrence near Birsa Munda Chowk. The evidence of P.W.4 has been disbelieved by the learned Trial Court vide paragraph-10 of the judgment. 6. P.Ws. 1, 3, 4, and 14 are the alleged eye witnesses of the occurrence near Hesage Wine Bhathi and P.Ws. 2, 9 and 10 are the alleged eye witnesses of the occurrence near Birsa Munda Chowk. The evidence of P.W.4 has been disbelieved by the learned Trial Court vide paragraph-10 of the judgment. 6. P.W. 1 named only the appellant Biren Prasad Singh as one of the police personnel who assaulted the deceased persons but it is pointed out that she developed her case during trial by naming appellants Ahmad Hussain and Jai Prakash Yadav also. She did not disclose the means of assault. PW.3 was examined by the investigating agency after two years of the occurrence and he did not name or identify any of the appellants in court. P.W. 14 stated that the persons standing in the dock were not the assailants. Now the alleged eye witnesses of the alleged occurrence at Birsa Munda Chowk P.W. 2 admits that he is accused in Jagarnathpur P.W. Case No. 146 of 1990 on the allegation of assault on Birbal Sharma, Constable, in which charge-sheet was submitted against him by the police. When he reached near the place of occurrence, he saw only appellant Siren Prasad Singh, assaulting some persons, and there was crowd of 250/300 persons. Learned counsel for the appellants submitted that this witness was also examined by the investigating agency after two years of the occurrence and he also improved the case in court from his statements given before the investigating agency. P.W. 9 did not name or identify any of the appellants and this witness was also examined by the investigating agency after two years of the occurrence. P.W. 10 has also not named any of the appellants. 7. P.w. 6 is Dr. Ajit Kumar Choudhary conducted post mortem on all the three persons, namely, Udai Sharma alias Munna Wilson alias Pappu and Jonson Kindo. He found that the injuries were caused by hard and blunt substance, like rod, butt of riffle, stones, bottles and bricks etc. He has not said that the injuries were sufficient to cause death in normal course. 8. P.W. 24, the informant has simply supported his report. He stated during the trial that in enquiry he could not find whether the deceased were done to death in police custody or by the villagers/pedestrians. 9. He has not said that the injuries were sufficient to cause death in normal course. 8. P.W. 24, the informant has simply supported his report. He stated during the trial that in enquiry he could not find whether the deceased were done to death in police custody or by the villagers/pedestrians. 9. The finding of the learned Trial Court that all the appellants were present and they assaulted the deceased persons in furtherance of their common intention, is not based on the materials on record. Further only because P.W. 29 stated that on demand, Jugal Kishore Gupta replied that the incriminating articles were not given to him, it could not be held that incriminating articles were not recovered, when Ext. B showed that those were recovered from the possession of the deceased persons. 10. Moreover, the learned Trial Court failed to consider whether the ingredients of Section 304/34 of the Indian Penal Code were made out against the appellants. Admittedly the appellants-police personnel reached the place of occurrence after they were informed about the crime. There is nothing to show that they acted beyond discharging their official duty or one or other appellant had any grudge against the deceased persons for that they died in police custody. There is nothing to show that the appellants assaulted the deceased persons with intention to cause death or knew that such assault is likely to cause death. Mr. Choudhary, appearing for the State could not dispute the aforesaid position. 11. In the circumstances, it is doubtful whether one or the other appellant assaulted the deceased persons with intention to cause death or knew that such bodily injury was likely to cause death. On this score they deserve benefit of doubt. 12. In the result, both the appeals are allowed. The impugned judgment is set aside. The appellants are discharged from their bail bonds.