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2009 DIGILAW 770 (JHR)

Rabi Kumar @ Ravi Kumar v. State of Jharkhand

2009-05-15

N.N.TIWARI, PRASHANT KUMAR

body2009
JUDGMENT Prashant Kumar,J: The Sole appellant Rabi Kumar @ Ravi Kumar has preferred this appeal against the judgment of conviction and order of sentence dated 7.6.2001 passed by 3rd Additional Sessions Judge, Singhbhum West in Sessions Trial No. 229 of 2000 whereby and whereunder he has been convicted under section 302 of the IPC and 27 of the Arms Act and sentenced to undergo imprisonment for life. 2. The prosecution story as per the written report of P.W. 32 Lakhan Soy is that on 10.4.2000 at about 5.25 p.m. he along with Bijay Singh Soy ( deceased), Sambhu Poddar and Goppi had gone to Chakradharpur Bazar on an Armada Car bearing Registration No. 6487. At Bata Road, Chakradharpur, informant, his uncle (deceased) and Gopi got down from the Car and deceased sent Sambhu Poddar to his house with the aforesaid Car. It is alleged that at that time Lala Pappu @ Shesh Narayan Lal and Rakesh Ranjan passed on a scooter looking towards them. Soon thereafter Suresh Sao and Banti Srivastava also passed on a motorcycle looking towards them. It is further alleged that deceased (Bijay Singh Soy) was sitting inside Subham Vastralaya, whereas informant and Gopi were standing near Subham Vastralaya. Bijay Singh Soy sent Gopi to somewhere in connection with some work. At about 6 p.m. Rabi Singh ( appellant), Manoj Singh came there on a Yahama motorcycle from the side of Pawan Chowk and stopped near Subham Vastralaya. In the meanwhile Lalji Das and Chhota Manoj Singh @ Binod Singh came from the side of Shitla Mandir on a Vespa scooter and they too stopped near Subham Vastralaya. Thereafter the said 4 dreaded criminals got down from their vehicles and started indiscriminate firing on informant’s uncle Bijay Singh Soy with large and sophisticated weapons. The informant in panic and out of fear entered into a BSC Shoe Shop. Bijay Singh Soy sustained grievous injuries by indiscriminate firing and fell on the ground. The aforesaid 4 criminals fled away on their vehicles towards Old Ranchi Road. When the informant thereafter went to Subham Vastralaya he found his uncle and one unknown person lying dead. His uncle’s licensed pistol, which was with him, was also missing. Bijay Singh Soy sustained grievous injuries by indiscriminate firing and fell on the ground. The aforesaid 4 criminals fled away on their vehicles towards Old Ranchi Road. When the informant thereafter went to Subham Vastralaya he found his uncle and one unknown person lying dead. His uncle’s licensed pistol, which was with him, was also missing. It is alleged that Lala Pappu @ Shesh Narayan Lal and Rakesh Ranjan were very close to Lakshman Gilua and due to rivalry the aforesaid three persons hatched a conspiracy with Arbind Singh, M.L.A. and Munnu Thakur and murdered informant’s uncle. It is also alleged that Lakshman Gilua M.P., Arbind Singh M.L.A. and Munnu Thakur had threatened his aunts several times. 3. On the basis of aforesaid written report, police registered Chakradharpur P.S. Case No. 31 of 2000 dated 10.4.2000 against Manoj Singh, Rabi Singh, Lalji Das, Vinod Singh, Lakshman Gilua, M.P, Arbind Singh M.L.A., Munnu Thakur, Lala Pappu @ Shesh Narayan Lal, Rakesh Ranjan, Suresh Sao and Banti Srivastava under sections 302, 120(B), 379/34 of the IPC and 27 of the Arms Act and took up investigation. On completing the investigation, police submitted charge sheet against 8 accused persons, namely, Lakshman Gilua, Lala Pappu @ Shesh Narayan Lal, Rakesh Ranjan Ambastha, Mithlesh Kumar Thakur, Manoj Singh, Ravi Kumar ( appellant), Suresh Kumar Sao and Ajay Kumar Srivastava @ Banti. Chhota Manoj @ Vinod Singh and Arbind Singh @ Malkhan Singh had not been sent up for trial whereas one of the accused Lalji Das was shown as dead. Cognizance of the offence was taken against the said accused persons whereas proceeding against accused Arbind Singh and Chhota Manoj @ Vinod Singh and Lalji Das was dropped. The Sub Divisional Magistrate, Chakradharpur committed the case to the court of sessions as the offence under section 302 of the IPC is exclusively triable by the court of sessions. After the commitment, the learned court below framed charges against accused persons under section 120 (B), 149, 302 of the IPC and also under section 27 of the Arms Act. The accused persons pleaded not guilty and claimed to be tried. 4. The prosecution altogether examined 34 witnesses and also brought documentary evidence in support of its case. From the defence side, the statements of the accused persons were recorded under section 313 of the Cr.P.C. in which they denied the charges and pleaded not guilty. The accused persons pleaded not guilty and claimed to be tried. 4. The prosecution altogether examined 34 witnesses and also brought documentary evidence in support of its case. From the defence side, the statements of the accused persons were recorded under section 313 of the Cr.P.C. in which they denied the charges and pleaded not guilty. The accused persons also examined one witness and brought documentary evidence in support of their defence. 5. On conclusion of trial, Learned court below acquitted co-accused Lakshman Gilua, Pappu @ Shesh Narayan Lal, Rakesh Ranjan, Mithlesh Kumar Thakur, Suresh Kumar Sao and Ajay Kumar Srivastava @ Banti of the charges leveled against them. However, learned trial court relying upon the evidences of P.Ws. 25,28,30, 32 and 34 came to the finding that prosecution has been able to prove the charges against the appellant Ravi Kumar and Manoj Singh to have indiscriminately fired on Bijay Singh Soy and Kamleshwar Prasad Singh causing their death. Accordingly the court below convicted the appellant Ravi Kumar and one Manoj Singh for the offence under section 302 of the IPC and 27 of the Arms Act and sentenced them to undergo imprisonment for life. The appellant challenged the aforesaid judgment of conviction and order of sentence in this appeal 6. Ms. Anjana Prakash, Senior Advocate, appearing for the appellant, submitted that the case of prosecution rests on the sole testimony of P.W. 32, Lakhan Soy, though there are material contradictions in his evidence and the same does not inspire confidence. She submitted that though in the examination-in-chief P.W. 32 had claimed himself to be the eye witness of the occurrence, on perusal of his cross examination and statement made in various paragraphs including paragraph no. 50 it is manifest that he had not seen the occurrence. His statement in the dock is contradictory to his statement made in the written report, which also makes him unreliable. It has been submitted that circumstance relied upon by the learned court below that the appellant and Manoj Singh were arrested at Keraikella after the occurrence while they were fleeing towards Ranchi has not been proved. If the said circumstance will be taken into account, then the same will go to show that the appellant and Manoj Singh were not present in Chakradharpur at the time of occurrence. If the said circumstance will be taken into account, then the same will go to show that the appellant and Manoj Singh were not present in Chakradharpur at the time of occurrence. In the FIR as also in the evidence of witnesses, it is mentioned that the occurrence took place at 6 p.m. in Subham Vastralaya and after the occurrence the assailants of deceased fled away towards Old Ranchi Road. It is the case of prosecution that at Keraikella, Checkpost the assailant of both deceased dashed their motorcycle against the barrier of checkpost and fell down and thereafter they opened fire, due to which one Hawaldar, namely, Parmeshwar Thakur had received injury on his knee. The prosecution also admitted that the said Parmeshwar Thakur was medically examined and treated at Chakradharpur Primary Health Centre and his injury report was proved by P.W. 28 which was marked as Ext.-B. The said Ext.-B shows that Parmeshwar Thakur was medically examined on 10.4.2000 at 5.50 p.m. If it is taken to be true that this appellant along with co accused Manoj Singh had opened fire at Keraikella in which the said Parmeshwar Thakur received injury and thereafter arrested at Keraikella before 5.50 p.m on 10.4.2000 then the question of presence of appellant and co accused Manoj Singh at Chakradharpur at 6 p.m. does not arise. It has been submitted that the prosecution had purposely not examined Hawaldar Parmeshwar Thakur and not brought the FIR and Charge sheet of Bandhgaon( Keraikella) P.S. Case No. 7 of 2000 and station diary of Keraikella Police Station on record, in which the time of wireless message received from Chakradharpur police station was mentioned. The same has been withheld with a view to suppress the time of occurrence at Keraikella and an adverse inference has to be drawn against the prosecution. It is submitted that the learned court below had committed serious illegality in taking into account the arrest of appellant and co convict Manoj Singh at Keraikella as a circumstance for convicting them because no question regarding the said circumstance has been put to appellant and co convict Manoj Singh in their examination under section 313 Cr.P.C. It has been held by the Supreme Court in case of Ajay Singh Vs. State of Maharashtra reported in (2007)12SCC 341, that omission on the part of the court in not giving opportunity to the appellant to explain the circumstance, makes the conviction illegal. It has been further submitted that the FIR is ante timed document which had been written on due deliberation with a view to falsely implicate the appellant and others under the pressure of Ministers and other politicians. It finds strength from the fact that the FIR which was alleged to have been drawn at 7.30 p.m. on 10.4.2000 had reached the court of SDJM, Chakradharpur on 13.4.2000 i.e. after three days. The I.O. has not explained the delay despite the fact that during the cross examination the defence had given him opportunity to explain the same. Ext.-C series and the evidence of Investigating Officer ( P.W. 34) go to show that the deceased was a historysheeter and he had so many enemies. The deceased might have been killed by some other criminals and the police, under political pressure, falsely implicated the appellant and other co-accused . Accordingly, it is submitted that the judgment of learned court below cannot be sustained in this appeal. 7. On the other hand, the learned Additional P.P. appearing for the State submitted that the evidence of P.W. 32 is wholly reliable and his statement is natural, free from any blemish or suspicion and he appears to be a truthful witness. Learned court below had rightly accepted his evidence so far as it relates to the appellant and co-convict Manoj Singh. It was Ramnawami holiday on 12.4.2000 in the court and because of that, the FIR was placed before the SDJM on 13.4.2000. There was, thus, no delay in sending the FIR to the Magistrate. There is nothing on record to show that the prosecution had made any attempt to fabricate and introduce new materials prejudicial to the defence and thus the delay in sending the FIR to the Magistrate had no significance and for that, the entire prosecution case cannot be disbelieved. The defence was given full opportunity to cross examine the witnesses on each and every circumstance relied upon by the prosecution. Thus, no prejudice had been caused to the defence. The defence was given full opportunity to cross examine the witnesses on each and every circumstance relied upon by the prosecution. Thus, no prejudice had been caused to the defence. It has been further submitted that the evidence of P.W. 32 finds full corroboration from the medical evidence and also from the physical finding of I.O. The court below had rightly convicted the appellant and co convict Manoj Singh for the offences punishable under section 302 of the IPC and 27 of the Arms Act. Thus, it is submitted that the impugned judgment of conviction and order of sentence does not require any interference in this appeal. 8. Having heard the submissions, I have gone through the record and carefully scrutinized the evidence available on record. In the instant case, the prosecution had produced altogether 34 witnesses out of whom P.W. 1 Jagdish Prasad Acharya, P.W. 2 Chandrashekhar Mishra, P.W. 3 Suborto Chatterjee, P.W. 4 Basant Mahto, P.W. 5 Shambhu Poddar, P.W. 6 Gauri Shankar Gupta, P.W. 7 Feku Sah, P.W. 8 Arun Kumar Shah, P.W. 9 Binod Kumar Poddar, P.W. 10 Murari Lal Poddar, P.W. 11 Raj Kumar Mahto, P.W. 12 Sachidanand Pathak, P.W. 13 Behra Bading, P.W. 16 Prahalad Das Mohta, P.W. 17 Bijay Kumar Vishwakarma, P.W. 19 Anil Kumar Mahto, P.W. 21 Dwarika Pradhan, P.W. 24 Gopi Nath Ghosh, P.W. 26 Ramu Bhatter and P.W. 27 Hawaldar Birsa Oraon have been declared hostile as they have not supported the case of prosecution. P.W.14 Dr. B. Dayal and P.W. 15 Dr. Lalit Minz are the doctors who were members of the team of doctors who conducted autopsy of two dead bodies i.e. of Bijay Singh Soy and one unknown, later on identified as Kamleshwar Prasad Singh. P.W. 18 Ashok Kumar Vishwakarma, P.W. 20 Nilu Lohar, P.W. 22 Dinesh Namta, P.W. 23 Shyam Sunder Mohta had claimed themselves to be eye witnesses of the occurrence. However, they had not identified the appellant and other co-accused among the assailants of both deceased. P.W. 25 Kameshwar Singh and P.W. 28 Akhilesh Kumar are the police officers of Keraikella police station who claimed to have arrested the appellant and co-convict Manoj Singh at Keraikella. P.W. 29 Mala Soy and P.W. 31 Kunti Soy are the two wives of deceased Bijay Singh Soy who are hearsay witnesses on the point of occurrence. P.W. 25 Kameshwar Singh and P.W. 28 Akhilesh Kumar are the police officers of Keraikella police station who claimed to have arrested the appellant and co-convict Manoj Singh at Keraikella. P.W. 29 Mala Soy and P.W. 31 Kunti Soy are the two wives of deceased Bijay Singh Soy who are hearsay witnesses on the point of occurrence. They also tried to prove the conspiracy alleged against co-accused Lakshman Gilua and others. P.W. 30 Somai Gagrai is the hearsay witness on the point of occurrence and he had also stated that appellant Ravi and Manoj were arrested at Keraikella police station. P.W. 32 Lakhan Soy is the informant of this case, who claims himself to be the eye witness of the occurrence. P.W. 33 Santosh Hesapurti was the bodyguard of deceased Bijay Singh Soy and is hearsay witness on the point of occurrence. P.W. 34 Jharia Kujur is the I.O. of this case. 9. In the instant case, defence had not disputed the homicidal death of the deceased Bijay Singh Soy and Kamleshwar Prasad Singh. However the homicidal death of the aforesaid two deceased had been proved from the evidence of P.W. 14 and 15, who were member of the team of doctors, which conducted post mortem examination of the dead bodies of two deceased. Doctors stated that they along with Dr. V.K. Singh found several fire arm injuries on the dead body of both deceased and they have given opinion that both the deceased died due to bullet injuries leading to shock and haemorrhage. There is absolutely nothing in the cross examination of these two doctors on which their testimony can be disbelieved. Thus, I find that the homicidal death of deceased had been established by the prosecution. 10. Now the question remains to be decided as to whether the appellant has any hand in the commission of present crime? As noticed above, in the instant case P.Ws. 1 to 13, 16, 17, 19, 21, 24 , 26 and 27 had been declared hostile as they had not supported the case of prosecution, thus their evidence is of no assistance to the case of prosecution. It further appears that P.Ws 29 and 31 who are the wives of deceased had been examined mainly to prove the conspiracy angle of this case which was disbelieved by the court below and six co accused had been acquitted. Thus the evidence of P.Ws. It further appears that P.Ws 29 and 31 who are the wives of deceased had been examined mainly to prove the conspiracy angle of this case which was disbelieved by the court below and six co accused had been acquitted. Thus the evidence of P.Ws. 29 and 31 is also not very much relevant for proving the charges leveled against the appellant. 11. P.W. 18 had deposed that on the date of occurrence i.e. on 10.4.200 at 5 -5.30 p.m. he was passing through Subham Vastralaya and he heard the sound of firing. He states that two persons on a motorcycle and two person on a Vespa Scooter made firing and fled away towards Ranchi Road. He then deposed that he did not know the names of person who fired but, he can identify them even today. It further appears that after looking at the accused persons including appellant in dock he deposed that none of the person who fired is present in the dock. He then states that after the firing when he went inside shop, he found the dead body of Bijay Singh Soy and one unknown person. He further states that after sometime, the police arrived and had prepared two separate inquest reports of the dead bodies on which he had put his signature as Ext.-3/4 and 3/5. During the cross examination, he states that the police arrived at the place of occurrence at 8 p.m. He then states that he had not been asked to identify the accused persons in T.I. parade. 12. P.W. 20, Nilu Lohar is an employee of Poddar Textile. He deposed that at about 5-6 p.m. in the evening while he was showing cloths to some customers, he heard the sound of firing. He deposed that after hearing the sound of firing he, his employer,( Vinod Kumar Poddar) and customers hid themselves inside the shop. He further states that when firing stopped, he came out of the shop and saw that four persons who had fired were rushing towards Old Ranchi Road on two motorcycle. He then states that he saw from some distance that the firing had been made in Subham Vastralaya. He did not go there. He further deposed that from some distance, he saw that Bijay Singh Soy had fallen near the door of Subham shop. He then states that he saw from some distance that the firing had been made in Subham Vastralaya. He did not go there. He further deposed that from some distance, he saw that Bijay Singh Soy had fallen near the door of Subham shop. He had identified only accused Gilua among the eight accused persons who were present in the dock. During the cross examination he claimed to have identified the persons who fired and fled away. He further claimed that he can identify them even on the date of deposition. He then stated that the accused persons who were in dock had not fired. 13. P.W. 22 Dinesh Namta is the Sales Man of Poddar Textiles. He deposed that on the date and time of occurrence he was present in Poddar Textile and was doing his job. He further stated that he saw that 4-5 persons fired in the direction of Subham Vastralaya. He further deposed that the person who fired fled away towards Old Ranchi Road on motorcycle and scooter. He further deposed that after the occurrence they closed their shop and went to their home. He then deposed that after the occurrence, he went to Subham Vastralaya and saw the dead body of Soy Ji and one unknown person. He further stated that he identified only Gilua Ji among the eight accused persons present in the dock. Thus, he could not identify rest seven including the appellant. During the cross examination, he claimed that he had identified the miscreants who were firing. He claimed that even on the date of his deposition, he can identify them by seeing their faces. However, he said that all the eight accused persons who were present in the dock (including the appellant) had not fired. 14 P.W. 23 Shyam Sunder Mohta is the owner of Readymade cloth shop. He deposed that on 10.4.2000 at about 6 -6 1/ 2 p.m. he was present in his shop, namely, Manglam Readymade Vastralaya. He then deposed that he saw that four persons arrived on motorcycle and scooter. He further stated that Soy Ji ( Bijay Singh Soy) was sitting on a chair in Subham Vastralaya. He further deposed that thereafter he heard the sound of firing. He then stated that after the start of firing, Soy Ji went inside Subham Shop. He then deposed that he saw that four persons arrived on motorcycle and scooter. He further stated that Soy Ji ( Bijay Singh Soy) was sitting on a chair in Subham Vastralaya. He further deposed that thereafter he heard the sound of firing. He then stated that after the start of firing, Soy Ji went inside Subham Shop. He then stated that due to fear he pull down, shutter of his shop. He further stated that after 10 minutes, when he opened the shutter of his shop and went towards Subham Vastralaya, he saw the dead body of Soy Ji and one unknown person. He further deposed that among the culprits, he had identified only one person but he could not know the name of that person. After looking at the eight accused persons standing in the dock, he deposed that , in the dock that person was not present. 15. Thus, from perusal of the evidence of P.Ws. 18, 20,22 and 23, it is manifest that they have not taken the name of this appellant as the assailant of either of the deceased. The aforesaid four witnesses clearly stated that this appellant is not among four miscreants who had fired at the scene of occurrence. It is worth mentioning that above four witnesses were not declared hostile by the prosecution and they have not been cross examined by the prosecution and their evidences remains unchallenged by the prosecution. 16. Now, I am proceeding to consider the evidence of P.W. 25 and 28 who are the Police Officers posted at Keraikella police station. The aforesaid two witnesses stated that on the date of occurrence i.e. 10.4.2000 at about 6.20 p.m. they received wireless message from Chakradharpur police station that two accused persons, who had fired at Chakradharpur, were fleeing towards Ranchi. These witnesses further deposed that after receiving the aforesaid information, they pulled down the barrier of Keraikella check post and started checking of vehicles coming from the side of Chakradharpur. They further deposed that soon thereafter two persons came on a motorcycle who on being signalled to stop, had speeded up their motorcycle, however dashed their motorcycle against the barrier and fell down. It is further stated that thereafter above two persons started firing, due to which Hawaldar Parmeshwar Thakur had received injury. It is then stated that thereafter police chased and apprehended them. It is further stated that thereafter above two persons started firing, due to which Hawaldar Parmeshwar Thakur had received injury. It is then stated that thereafter police chased and apprehended them. After their arrest, the aforesaid two persons disclosed their names as Manoj Singh and Ravi Singh (appellant). It is stated that from the possession of Manoj Singh one pistol and 4 live cartridges were recovered whereas from the possession of this appellant, hand grenade, bomb were recovered from a bag. They have also deposed that Jharia Kujur (P.W. 34) had also arrived at Keraikella before whom the aforesaid two arrested persons confessed that they had fired at Chakradharpur. During the cross examination, the aforesaid witnesses had admitted that in the Keraikella police station, the time and content of wireless message received from Chakradharpur police station was mentioned in the station diary. However, they stated that at present they do not remember the station diary entry number of the said information. These witnesses had also admitted that Hawaldar Parmeshwar Thakur, who received injury during the arrest of appellant and Manoj Singh, was treated at Chakradharpur. P.W. 28 has proved the injury report of Hawaldar Parmeshwar Thakur which was marked as Ext.-B. P.W. 25 had shown his ignorance that injured Hawaldar Parmeshwar Thakur had filed an application in court in Bandhgaon (Keraikella) P.S. Case No. 7 of 2000. stating therein that Manoj Singh and Ravi Kumar were coming from the side of Ranchi and at the same time, some unknown criminals came on a motorcycle from the side of Chakradharpur, who opened fire and in that firing he received injury. 17. P.W. 28 had denied the suggestion of defence that Hawaldar Parmeshwar Thakur was treated at Chakradharpur hospital at 5. 50 p.m. However, he admits that he had received injury report of Parmeshwar Thakur from Dr. A.K. Verma by sending requisition. He has proved the said requisition as Ext.-A. He had also proved the injury report of Parmeshwar Thakur, written by Dr. A.K. Verma which had been marked as Ext.-B. P.W. 25 had denied the suggestion of defence that he had arrested the appellant and Manoj Singh at 5 -5.30 p.m while they were coming from the side of Ranchi and falsely implicated them in the present case. 18. A.K. Verma which had been marked as Ext.-B. P.W. 25 had denied the suggestion of defence that he had arrested the appellant and Manoj Singh at 5 -5.30 p.m while they were coming from the side of Ranchi and falsely implicated them in the present case. 18. P.W. 30 had deposed that on 10.4.2000 at 6 p.m. in the evening he was moving around Bata Road at Chakradharpur and while he was on the Main Chowk, he heard the sound of firing, thereafter he went to Subham Vastralaya and saw the dead body of Bijay Singh Soy. He found several injuries on his dead body. He had also found the dead body of one customer. He then stated that at the P.O., he met Lakhan Soy and on query, Lakhan Soy had disclosed that four persons had came on scooter and Yahama motorcycle and killed Bijay Singh Soy and fled towards Ranchi. He further deposed that after one hour he came to know that two persons were arrested by the police at Keraikella. He further deposed that Lakhan, on query had disclosed that Manoj and Ravi were sitting on one vehicle whereas Chhota Manoj was sitting on another vehicle and they fled away after firing. Thus, it appears that this witness is a hear say witness on the point of occurrence as well as on the point of arrest of appellant and Manoj Singh at Keraikella. However, the informant from whom he claims to have received information about the occurrence had categorically stated at paragraph no. 76 that he had not spoken with Somai Gagrai in connection with the case. Thus the claim of P.W. 30 that he was informed by P.W. 32 (Lakhan Soy) about the occurrence is not admissible. 19. P.W. 32, Lakhan Soy is the informant of this case. He has deposed that on 10.4.2000 at about 6 p.m. he was present in BSC Shoe shop, whereas his uncle Bijay Singh Soy was in a cloth shop. He further deposed that four miscreants came and fired on his uncle. Two miscreants had come by Yahama motorcycle from the side of Pawan Chowk whereas other two miscreants had come by Vespa scooter from the side of Shitla Mandir and stopped their motorcycle and scooter in front of Subham Vastralaya. All the four miscreants indiscriminately fired at his uncle. He further deposed that four miscreants came and fired on his uncle. Two miscreants had come by Yahama motorcycle from the side of Pawan Chowk whereas other two miscreants had come by Vespa scooter from the side of Shitla Mandir and stopped their motorcycle and scooter in front of Subham Vastralaya. All the four miscreants indiscriminately fired at his uncle. He further deposed that at the time of firing, they threatened that if any body dares to come, he will also be shot dead. He further deposed that the miscreants were firing from long weapons. He further stated that due to the firing, his uncle sustained injuries and fell down. After the firing when miscreants came out of Subham Vastralaya, they could not start vespa scooter. Therefore the miscreants, who were fleeing on Yahama motorcycle, returned and again entered inside the shop. They again fired at his uncle and thereafter took his licensed revolver and fled away towards Old Ranchi Road. He identified appellant and Manoj Singh as the persons who had fired. He further stated that after the murder of one Kejriwal , Lakshman Gilua, Lala Pappu, Rakesh Ranjan, Munnu Thakur, Banti Srivastava, Malkhan Singh and others had taken a vow to kill Bijay Singh Soy. He then stated that he had lodged information in the police station regarding the occurrence. He proved his signature on the written report which was marked as Ext.-3/6. He stated that the written report was not written by him rather the same was in the handwriting of one Vinod Verma. During the cross examination, this witness stated that at the time of occurrence he was inside the shoe shop and he went there for purchasing a chappal. He was inside the shop for purchasing chappal since last 5-7 minutes. He then specifically stated that firing started when he was inside the shop. He stated that he could not see as to whether, in course of firing, the shops situated near the place of occurrence were closed (or not) because he was inside the shoe shop. At paragraphs 32, he stated that by the time he came out of the shop and went to Subham Vastralaya, all the miscreants had already fled away. At paragraph 38, he states that at the time of occurrence, his uncle was inside Subham Vastralaya whereas he was sitting in the shoe shop. At paragraphs 32, he stated that by the time he came out of the shop and went to Subham Vastralaya, all the miscreants had already fled away. At paragraph 38, he states that at the time of occurrence, his uncle was inside Subham Vastralaya whereas he was sitting in the shoe shop. At paragraph 41, he deposed that he could not see the weapons of miscreants. At paragraph 43 he states that he could not disclose the colour of clothes of miscreants nor could he say about the type of clothes worn by the miscreants. At paragraphs 44, he shows his inability to disclose the colour of scooter and motorcycle. At paragraph 49 he deposed that the vehicles of the miscreants were stopped on both side of the road, scooter was stopped near the shop of goldsmith whereas motorcycle was stopped in front of another shop. At paragraph 50 he deposed that his uncle was able to see the miscreants from Subham Vastralaya but he could not. During the cross examination, at one place he stated that on his disclosure , Vinod Verma had written the FIR, however at another place he deposed that Vinod Verma had not disclosed him about the occurrence, nor he disclosed it to him. 20. P.W. 33 is the bodyguard of one of the deceased Bijay Singh Soy. He deposed that on the date of occurrence in the morning he had gone to Tata along with Bijay Singh Soy, Sambhu Poddar, Raju Bhatter and Goppi and returned through Chaibasa. At about 2/2.30 p.m., they reached Chaibasa. He got down form the Car there. Later on, in the evening, he came to know that Bijay Singh Soy was shot dead. During the cross examination, he deposed that on the date of occurrence, Lakhan Soy was not with Bijay Singh Soy nor he was present in his house. He had also stated that after receiving informantion, he reached to Chakradharpur at 7 p.m. but he could not find Lakhan Soy at that place. He further stated that at the place of occurrence or at the police station or at the house of Bijay Singh Soy, Lakhan Soy was not present. 21. P.W. 34 Jharia Kujur is the Investigating Officer. He deposed that at 6.05 p.m. he received information on telephone about the firing near Bata Chowk. He further stated that at the place of occurrence or at the police station or at the house of Bijay Singh Soy, Lakhan Soy was not present. 21. P.W. 34 Jharia Kujur is the Investigating Officer. He deposed that at 6.05 p.m. he received information on telephone about the firing near Bata Chowk. He states that on the aforesaid information, he went to the place of occurrence and there he had been told by some persons that the two miscreants had rushed away towards Ranchi Road after firing. He chased them up to Keraikella. He further deposed that when he reached at Keraikella police station, he found that two persons were arrested and they were unconscious. He further stated that there he was told that they were coming from the side of Chakradharpur where they fired. He further stated that from the possession of aforesaid criminals, pistol, bombs and cartridges were recovered. He thereafter went in search of other two persons. When he did not find the aforesaid two accused, he returned to police station. There, he received a written report of Lakhan Soy and instituted the present case. Thereafter he went to the place of occurrence and prepared inquest report, seized some articles such as blood, empty cartridges etc and prepared seizure list. He then sent dead bodies for post mortem examination. In his cross examination, he admits that he had not seized the arms which were used in the commission of crime. He also did not try to investigate as to with which weapon, Bijay Singh Soy was killed. At paragraph no. 87 he deposed that he had received information at 6.05 p.m. on telephone that some occurrence took place at Bata Road. He immediately rushed there. He then stated that there he did not find Lakhan Soy. At paragraph no. 54 he denied the suggestion of defence that the FIR was sent to SDJM, Porahat on 13.4.2000 but, at paragraph no. 55 he admits that in the case record of SDJM, Porahat, it is mentioned that the FIR was received on 13.4.2000. At paragraph no. 60 he had stated that at present he did not remember as to through whom he had sent the FIR. 22. 55 he admits that in the case record of SDJM, Porahat, it is mentioned that the FIR was received on 13.4.2000. At paragraph no. 60 he had stated that at present he did not remember as to through whom he had sent the FIR. 22. On careful scrutiny of the evidences available on record, I find that the conviction of the appellant is based on the testimony of P.W. 32 who is the informant of this case, also taking into circumstance that the appellant and co convict Manoj Singh were arrested at Keraikella just after the occurrence and from their possession fire arm, bomb and cartridges were recovered. 23. It is not in dispute that on the basis of testimony of even a single eye witness, conviction can be concluded. However it is well settled that while doing so, the court must be satisfied that the testimony of solitary eye witness is of such a sterling quality that the court finds it safe to base conviction solely on the testimony of that witness. In doing so the court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free from any blemish or suspicion, must impress the court as wholly truthful, must appear to be natural and the evidence is so convincing that the court has no hesitation in recording the conviction solely on the basis of testimony of a single witness. Reference in this connection may be made to a decision of Hon’ble Supreme Court in Bhimapa Chandappa Hosamani and others Vs. State of Karnataka reported in (2006)11SCC 323. Recently in a decision in Munna @ Puran Yadav Vs. State of Madhya Pradesh reported in [2009(1)JLJR90 (SC)], their Lordships of Supreme Court reiterated the same principle and held that the court can and may convict relying on the testimony of a single witness provided he is wholly reliable and that there was no legal impediment in convicting a person on the sole testimony of single witness. 24. Keeping in view the aforesaid settled principles of law, I proceed to consider the evidence of P.W. 32 to see as to whether his evidence is of such a quality on which the conviction of appellant can be based. 24. Keeping in view the aforesaid settled principles of law, I proceed to consider the evidence of P.W. 32 to see as to whether his evidence is of such a quality on which the conviction of appellant can be based. It is worth mentioning that in the written report, the informant had taken the name of Lala Pappu @ Shesh Narayan Lal, Rakesh Ranjan, Suresh Sao and Banti Srivastava and said that these persons had came on a scooter and motorcycle and passed through after looking at them but this fact was not disclosed by the P.W. 32 in his deposition in court. P.W. 32 in the fardbeyan had taken the name of Ravi Singh, Manoj Singh, Lalji Das and Chhota Manoj Singh @ Vinod Singh among the persons who had fired on his uncle but in the court, he had not named Lalji Das and Chhota Manoj @ Vinod. In the farebeyan, P.W. 32 had stated that after opening the firing, all the accused persons fled away by their respective vehicles i.e. Yahama motorcycle and vespa scooter towards Old Ranchi Road but in the court he deposed that after the firing when miscreants came out from the Subham Vastralaya, Vespa scooter did not start, therefore the miscreants who fled away by motorcycle, returned and again went inside Subham Vastralaya. They again fired at his uncle and thereafter fled away taking revolver of his uncle. The said contradictions make it clear that P.W. 32 has made different statements at different stages with regard to manner of occurrence. In his cross examination at paragraph 51, this witness has stated that accused persons who were on Yahama motorcycle took away with them other persons who had come by Vespa Scooter. Thus as per the deposition of this witness, the accused person had left vespa scooter at the place of occurrence. But surprisingly the said vespa scooter was not seized. In the written report, P.W. 32 had stated that when the accused person arrived at the P.O., he was present near the Subham Vastralaya and when the accused persons started indiscriminate firing from their weapons, he took shelter inside BSC Shoe Shop. Whereas in his deposition in court he categorically stated that when the miscreants arrived, he was inside the BSC Shoe Shop. Whereas in his deposition in court he categorically stated that when the miscreants arrived, he was inside the BSC Shoe Shop. At paragraph 50, he deposed that his deceased uncle while sitting in Subham Bastralaya could see the accused persons but he could not. The aforesaid statement of P.W. 32 cast a serious doubt on the testimony of witness and his presence at the scene of the occurrence and witnessing the occurrence from his eyes. The aforesaid doubt further finds strength from his statement at paragraph no. 31 where he has said that while he was inside the Shoe Shop, the firing started and he could not see as to whether the shops situated near the shoe shop were closed (or not) because he was inside the shop. His statement at paragraph no. 32 that by the time he came out of Shoe Shop and went to Subham Vastralaya all the miscreants had fled away, belies his claim to have seen the occurrence. At paragraph no. 41, this witness had contradicted his earlier statement made in the fardbeyan and examination in chief that the accused persons were holding long fire arm weapon because in the said paragraph he specifically stated that he could not see the weapons of accused persons. At paragraph 43 he was not able to state the colour and nature of the clothes worn by the miscreants, likewise at paragraph 44 he was not able to speak and disclose the colour of motorcycle and scooter of the miscreants. Thus the aforesaid statements of P.W. 32 cast a serious doubt about his presence at the place of occurrence and to have witnessed the occurrence from his eye. The aforesaid doubt further finds support from the statement of the P.W 34. He has stated that when he reached at the P.O., after receiving telephone information, he had not found PW 32 at the P.O. Under the said circumstance, I find that the evidence of P.W. 32 is not of such a quality on which it is safe to base conviction. On testing his credibility, I find that his evidence is not free from blemish and suspicion and also does not appear to be wholly truthful and natural. Thus, in my view, his evidence cannot become the sole basis for convicting the appellant. 25. On testing his credibility, I find that his evidence is not free from blemish and suspicion and also does not appear to be wholly truthful and natural. Thus, in my view, his evidence cannot become the sole basis for convicting the appellant. 25. Now coming to the another circumstance relied upon by the learned court below in convicting the appellant i.e. the arrest of appellant at Keraikella and recovery of fire arm and bomb from his possession, it is worthy to mention that though P.W. 25 and 28 had stated that they had received a wireless message from Chakradharpur police station that two persons were fleeing towards Ranchi after firing at Chakradharpur, the said wireless message has not been produced in the court. P.W. 34, who is the Officer-in-Charge of Chakradharpur police station, has no where stated in his deposition that he sent the said wireless message to Keraikella police station and/or at his instruction any other police personnel had sent that information. Thus the evidence of P.W. 25 and 28 does not find corroboration from the evidence of P.W. 34 regarding the said wireless message. I find one more circumstance on which the evidence of P.W. 25 and 28 can be thrown over board. In their deposition P.W. 25 and 28 had categorically stated that when the accused persons fell on the ground after dashing their motorcycle against the barrier, they made indiscriminate firing and due to that firing, Hawaldar Parmeshwar Thakur received injury. It is also admitted by these witnesses that Hawaldar Parmeshwar Thakur was treated at Chakradharpur Primary Health Centre. P.W. 28 has proved the injury report of Hawaldar Parmeshwar Thakur. The doctor, who had examined Hawaldar Parmeshwar Thakur, though not examined by the prosecution, has been produced and examined as defence witness (D.W. 1). From the perusal of the evidence of D.W. 1 and Ext.-B, I find that the said Hawaldar Parmeshwar Thakur was examined by doctor at Chakradharpur Primary Health Centre on 10.4.2000 at 5.50 p.m. This goes to show that the alleged occurrence at Keraikella took place prior to 6 p.m. In that view of the matter, it appears that P.W. 25 and 28 had made false statement in court that they have received information from Chakradharpur police station at 6.20 p.m. and thereafter they arrested the appellant and co convict Manoj Singh. It is not out of place to mention that if the claim of P.W. 25 and 28 that they arrested the appellant and co convict Manoj Singh while they were fleeing after committing the of murder at Chakradharpur is accepted then in view of time mentioned in Ext.-B it can safely be held that no occurrence took place at Chakradharpur at 6 p.m. Thus Ext-B, which is an admitted document too, cast a serious doubt on the entire case of prosecution. 26. It is worth mentioning that the FIR, charge sheet, seizure list etc of Bandhgaon(Keraikella) P.S. Case No. 7 of 2000 has not been brought on record in this case and therefore the time of the said occurrence has not been proved. As noticed above in Ext.-B it has been mentioned that the said Parmeshwar Thakur was medically examined at 5.50 p.m. at Chakradharpur. Therefore, it appears that purposely the prosecution withheld the said document, because if the same would have been brought on record, then the time of occurrence of present case (Chakradharpur P.S. Case No. 31 of 2001) becomes disputed as also the presence of appellant and co convict Manoj Singh at Chakradharpur at the alleged time. Non production of the aforesaid documents thus goes against the prosecution as an adverse inference can be drawn for withholding the said evidences. 27. In view of the aforesaid discrepancy, I find that the prosecution has not been able to prove that the appellant and co convict Manoj Singh were arrested at Keraikella while they were fleeing towards Ranchi after committing the present crime at Chakradharpur and therefore this circumstance cannot be taken into account for convicting the appellant. 28. There is another illegality in the impugned judgment. It appears that the learned court below while convicting the appellant had taken into consideration the arrest of appellant at Keraikella and also recovery of fire arm. But from perusal of the statement of appellant under section 313 Cr.P.C., I find that no question was put to the appellant to that regard and giving him opportunity to explain the said circumstance. It has been held by the Supreme Court in Ajay Singh Vs. State of Maharastra reported in (2007)12SCC341 and in Virkramjit Singh @ Vikky Vs. But from perusal of the statement of appellant under section 313 Cr.P.C., I find that no question was put to the appellant to that regard and giving him opportunity to explain the said circumstance. It has been held by the Supreme Court in Ajay Singh Vs. State of Maharastra reported in (2007)12SCC341 and in Virkramjit Singh @ Vikky Vs. State of Punjab reported in (2006)12SCC306 that circumstance which according to the prosecution lead to prove the guilt against the accused, must be put to him in his examination under section 313 Cr.P.C. A conviction based on the accused’s failure to explain that he was never asked to explain is bad in law. In the instant case, since the question regarding the circumstance, which has been used to convict the appellant, has not been put to the accused in his examination under section 313 Cr.P.C., the conviction based on the said circumstance is illegal and cannot be sustained. 29. In the instant case, I find that the FIR was lodged on 10.4.2000 at 7.30 p.m., but it appears from the record that the same was received in the court of SDJM, Porahat at Chaibasa on 13.4.2000. There is delay of 3 days in sending the said FIR. It is worth mentioning that the defence had given opportunity to the I.O. to explain the said delay by putting question in this respect in the cross examination, but instead of explaining the said delay, P.W. 34 at paragraph no. 54, stated that it is not a fact that the FIR was forwarded to SDJM, Porahat on 13.4.2000. In the next paragraph, he, however, admits that in the record of SDJM, Porahat it was mentioned that the FIR was received in his court on 13.4.2000. Thus, it appears that P.W. 34 instead of explaining the delay, tried to mislead the court by giving false evidence. The delay in sending the FIR in the court creates serious doubts, because the prosecution tried to make development in the instant case by connecting it with the case instituted at Keraikella police station i.e. Bandhgaon ( Keraikella) P.S. Case No. 7 of 2000. The delay in sending the FIR in the court creates serious doubts, because the prosecution tried to make development in the instant case by connecting it with the case instituted at Keraikella police station i.e. Bandhgaon ( Keraikella) P.S. Case No. 7 of 2000. It has been already noticed that the injury report of Hawaldar Parmeshwar Thakur shows that the incident of Keraikella took place before 6 p.m. but with a view to connect that case with the present case, P.W. 25 and 28 tried to establish that the said incident took place after 6 p.m. It has also come in the evidence of prosecution witnesses that the written report of this case was written by one Vinod Kumar Verma but the said Vinod Kumar Verma has not been examined in this case. P.W. 32 at one place has stated that he had not disclosed anything about the occurrence to the said Vinod Kumar Verma. It is also not out of place to mention that the entire written report has not been proved and exhibited in this case. Only the signatures of Lakhan Soy and signature of I.O. have been proved and marked as Ext.-3/6 and 3/7. Thus, it is a mystery as to who was the author of present written report. P.W.32 has stated in his cross examination at para 86 that after the occurrence he stayed at P.O. for 45 minutes and during that period police arrived at the place of occurrence. He further deposed that he had informed the police about the occurrence, but safely he did not disclose the identity of police officer P.W-34 has also stated at para 4 that after receiving telephonic information he immediately reached at the place of occurrence, where he received information that after firing miscreants escaped towards Ranchi on two motorcycle. But the I.O. (PW-34) also did not disclose the name of person who informed him about the occurrence at P.O. Thus aforesaid circumstances also go to show that written report is a tainted document. It has come in the evidence of prosecution witnesses that the deceased was a leader of Congress Party and after the occurrence; Ministers and other politicians arrived at Chakradharpur. They met the informant as well as the Investigating Officer. It has come in the evidence of prosecution witnesses that the deceased was a leader of Congress Party and after the occurrence; Ministers and other politicians arrived at Chakradharpur. They met the informant as well as the Investigating Officer. It is also important to note that co-accused Lakshman Gilua, Amarendra Singh @ Malkhan Singh and his close associates including the appellant and co convict Manoj Singh had political rivalry with deceased Bijay Singh Soy. All the accused persons had strain relations with him from before. In that background the extra-ordinary delay in sending the FIR is a circumstance which provides a legitimate basis for suspecting that the FIR was recorded much later than the given date and hour affording sufficient time to the prosecution to introduce and make improvement and set up distorted version of the occurrence. In that view also, the prosecution evidences against appellant cannot be accepted as true. 30 The statements of P.W 18, 20, 22 and 23 who are the eye witness of occurrence also rule out the involvement of appellant in the present crime. As noticed above aforesaid witnesses were not declared hostile by the prosecution. These witnesses claimed that they had identified the criminals who fired at the deceased. They also claimed that even on the date of deposition they can identify the miscreants. However after looking in the dock, where the appellant was present, they specifically stated that the appellant was not among the persons who fired at deceased. It is worth mentioning that learned court below while convicting the appellant had overlooked the above evidence. Thus on this ground also impugned judgment can not be sustained. 31 In view of the above discussion and the discripencies, I am of the view that the prosecution has not been able to bring home the charges leveled against the appellant beyond the shadow of all reasonable doubts. Accordingly, I come to the conclusion that the impugned judgment of conviction and order of sentence suffers from material illegality and/or infirmity and the same can not be sustained. 32. In the result, this appeal succeeds and is accordingly, allowed. The impugned judgment of conviction and order of sentence are set aside. The appellant is acquitted of the charges leveled against him. It appears that the appellant is in jail custody; he therefore, is directed to be released forthwith, if not wanted in any other case.