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Jharkhand High Court · body

2010 DIGILAW 663 (JHR)

Harpal Singh alias Heere v. State of Jharkhand

2010-06-24

D.K.SINHA, J.C.S.RAWAT

body2010
Order This appeal is directed against the judgment and order of conviction and sentence dated 19.6.2008 and 21.6.2008 passed by the 1st Additional Sessions Judge, FTC, Jamshedpur in Sessions Trial No. 57 of 2008 whereby the appellant has been convicted under Section 302 read with Section 34 IPC and Section 27 of the Arms Act, and sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs.5,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months. The appellant has further been sentenced to undergo rigorous imprisonment for 3 years for the offence under Section 27 of the Arms Act. It was further directed that all the sentences would run concurrently. 2. Facts of the case, in brief, are that on 26.6.2006 at about 8.30 to 8.45 p.m. the informant PW -1-Durga Rai, alongwith Latu alias Jagtar Singh (deceased), Manoj Kumar Singh @ Bhole, Bittu Mishra and Munna Yadav were dining and drinking while sitting together over a chauki in front of Ashok Hotel situated in a truck garage, Garwasa, P.S.-Golmuri, District-East Singhbhum. All of a sudden, Harpal Singh alias Heere (appellant), Raju Choudhary, Sandeep Mishra, Harish Roy and Suchcha Sardar emerged at the place of the occurrence from the side of the trucks which were parked in front of the Ashok Hotel. The appellant and Raju Choudhury were holding pistols in their hands and they shot fire upon the deceased Latu alias Jagtar Singh which struck on his head as a result of which, he fell down on the ground and blood started oozing out from his injury. He was shifted to a hospital. In the meantime, customers who were taking meals in the hotel, as also the friends of the deceased chased the culprits to catch-hold of them, but because of darkness they successfully managed to flee away from the place of the occurrence. The deceased was taken to TMH, Jamshedpur where he was declared dead by the doctor. A written report was lodged with the Golmuri Police Station on the basis of which Golmuri P.S. Case No. 157 of 2006 was registered and the investigation was started. 3. The investigating officer after completion of investigation submitted charge-sheet before the trial court. The case was committed to the court of sessions and charges were framed against the appellant; he denied the charges and claimed trial. 4. 3. The investigating officer after completion of investigation submitted charge-sheet before the trial court. The case was committed to the court of sessions and charges were framed against the appellant; he denied the charges and claimed trial. 4. The prosecution in support of its case examined PW-1-Durga Rai informant, PW-2-Anis Kumar Mishra @ Bittu Mishra, who were sitting with the deceased; the prosecution also produced PW-3-Ashok Kumar Prasad who the owner of the hotel and was preparing meals for the deceased as well as his friends. PW-4-Mahendra Singh, PW-5-Chandrika Prasad Singh, PW6-Rajendra Prasad, PW-7-Manoj Kumar Das alias Shagana Das were also said to be eye witnesses to the occurrence. PW-8 is Manoj Kumar Singh alias Bhole who was also accompanying the deceased at the time of melee. PWs-1 to 7 have been declared hostile inasmuch as they have not supported the fact that they had seen the appellant firing upon the deceased. PW-8-Manoj Kumar Singh alias Bhole is the only eye witness to the occurrence and he has supported the prosecution version. PW-9-Dr. AK Chaudhury had conducted autopsy on the dead body of the deceased on 27.6.2006 and prepared the Post Mortem Report. PW-10-G.D. Mishra is the investigating officer of the case. PW-11-Mahendra Kaur is the mother of the deceased. She was not present at the place of occurrence at the time of the incident and she was told about the' incident' on the next day. PW-12-R.S. Vidyarthi is also the investigating officer who had partly investigated the case. 5. After recording evidence of the prosecution, appellant was examined under Section 313 Cr.P.C. and he denied all the averments made in the evidence against him and further stated that he is innocent and he has been falsely implicated in the case. 6. After conclusion of the trial, the learned Sessions Judge convicted and sentenced the appellant as indicated above. 7. It needs to be mentioned that there is no dispute that the deceased died on the date, time and place of the occurrence and the death of the deceased is not disputed by the appellant. Apart from that, the prosecution has also adduced evidence of PW-9, Dr. 7. It needs to be mentioned that there is no dispute that the deceased died on the date, time and place of the occurrence and the death of the deceased is not disputed by the appellant. Apart from that, the prosecution has also adduced evidence of PW-9, Dr. A.K Choudhury who had conducted autopsy on the dead body of the deceased on 27.6.2006 at 1.20 p.m. and had found the following injuries: Firearm wound of entrance over occipital scalp 7-1 cm above of nape of neck in the mid line; 2 cmx 1/2 cm x creneal cavity, projectile after piercing to the skin and bone travelled through brain matter and was recovered from frontal lobe of scalp on right side. Soft tissues under skin over right side occipital posterior. Perital and frontal scalp contused. Right side occipital and parietal scalp bone fractured, brain contused. 8. A projectile was recovered at the time of the autopsy and it was handed over to the police. The Doctor PW-9 has opined that the injuries were ante mortem in nature and could have been caused by firearms. He also opined that the death of the deceased was caused due to firearms injuries on the head and brain of the deceased and the time elapsed since death was within 12 to 18 hours approximately. 9. Apart from that, PW-1-Durga Rai informant, PW-2-Anis Kumar Mishra, PW3-Ashok Kumar Prasad, PW- 4-Mahendra Singh, PW-5-Chandrika Prasad Singh, PW6-Rajendra Prasad, PW-7-Manoj Kumar @ Shagina Das, and PW-8-Manoj Kumar Singh alias Bhole have stated that while the deceased was sitting alongwith the other persons, somebody shot fire upon the deceased as a result of which he fell down and thereafter he was taken to the Hospital where he was declared dead. Thus, even the prosecution witnesses have proved the factum of death of the deceased. PW-8-Manoj Kumar Singh alias Bhole has also given the details of the incident and stated that he had seen that the appellant had shot fire from his firearms. Thus, it is amply established by the evidence of the prosecution witnesses that the death of the deceased was a homicidal death, which occurred on 26.6.2006 at about 8.45.p.m. in Ashok Hotel. 10 It needs to be adjudged who is the author of the injuries on the person of the deceased. Thus, it is amply established by the evidence of the prosecution witnesses that the death of the deceased was a homicidal death, which occurred on 26.6.2006 at about 8.45.p.m. in Ashok Hotel. 10 It needs to be adjudged who is the author of the injuries on the person of the deceased. According to the prosecution, the appellant is the author of the injuries on the person of the deceased. The appellant has taken the plea that he is innocent and he has been false1y implicated in the case. The case rests on the direct evidence. As we have already pointed out, except PW-8-Manoj Kumar Singh alias Bhole, the other eye witnesses i.e. PWs-1 to 7 have been declared hostile by the prosecution as they have not supported the prosecution version and have stated that they had not seen who had fired upon the deceased. Thus, PW-8Manoj Kumar Singh alias Bhole is the solitary eye witness to the occurrence who has supported the prosecution version. PW 8 Manoj Kumar Singh alias Bhole has stated that on 26.6.2006 at about 8.30 p.m, he alongwith the deceased, Sittu Mishra (PW-2), the informant Durga Roy-PW-1Munna Yadav were dining and drinking in front of the Ashok Hotel while they were sitting on a chauki. It has also come in the evidence that while the deceased was sitting alongwith these persons, the appellant emerged suddenly from the side of the trucks which were parked there and he fired upon the deceased. The bullet hit upon head of the deceased and he sustained injuries as a result of which he fell down on the ground and blood started oozing out from his injuries where after he was taken to the hospital. There is no other eye account of the incident. PW-11 is Mahendra Kaur who is the mother of the deceased was also produced by the prosecution. She has stated that the informant PW-1-Durga Roy informed her on the next day that her son had been killed by the appellant. 11. Learned counsel for the appellant contended that there was enmity between Manoj Kumar Singh (PW-8) and the appellant Harpal Singh alias Heere. Learned counsel also contended that the evidence also reveals that the appellant's brother was earlier killed by Latu alias Jagtar Singh (deceased). The appellant had lodged a case against PW-8-Manoj Kumar Singh; PW-8 has admitted this fact in his evidence. Learned counsel also contended that the evidence also reveals that the appellant's brother was earlier killed by Latu alias Jagtar Singh (deceased). The appellant had lodged a case against PW-8-Manoj Kumar Singh; PW-8 has admitted this fact in his evidence. So, his evidence should be scrutinized carefully, cautiously and meticulously. It is a settled principle of law that merely on the ground of enmity between the parties, the evidence cannot be discarded. Enmity is a double-edged weapon. It may be a ground of attack as well as a ground of defence. Undoubtedly, there was enmity between the parties. It is a settled position of law that if the witnesses are inimical to the accused, their evidence• should be scrutinized cautiously. So, the evidence of this witness should be read cautiously. Apart from that, it is also evident from the evidence of PW-8-Manoj Kumar Singh that this witness is of tainted character having several criminal antecedents and there are •five cases pending against h)m. He has also admitted in his cross-examination that in some of them he has been acquitted, whereas in some cases, he is still facing trial. Thus, the evidence transpires that he (PW-8) had criminal antecedents.• it •15 a settled position of law that the appreciation of evidence of eye-witnesses having bad antecedents and poor moral fater should be made with due care and caution and it would not be safe to rely on such evidence unless corroborated by independent sources or by the attending circumstances. 12. In order to appreciate the evidence of PW-8, we will first examine the evidence of PW-a-Manoj Kumar Singh in the light of the FIR. According to the FIR, it is revealed that the appellant and Raju Choudhary alongwith other persons, emerged suddenly at the place of occurrence. Raju Choudhary and the appellant were holding pistols in their hands and they fired upon the deceased and the bullet hit the deceased and he sustained injuries and fell down. Thus, according to the prosecution version, at the initial stage, two fires were shot at the spot. Consistent to this version, the investigation officer prepared inquest report and he found two firearm injuries on the person of the deceased. He has indicated this fact in his inquest report and he has also deposed before the trial court that two injuries were found on the person of the deceased. Consistent to this version, the investigation officer prepared inquest report and he found two firearm injuries on the person of the deceased. He has indicated this fact in his inquest report and he has also deposed before the trial court that two injuries were found on the person of the deceased. One Was on the head of the deceased and the other on the shoulder. When post mortem was conducted by Dr. A.K. Choudhary-PW-9, it was revealed that there was only one firearm injury. According to the prosecution version, two fires were shot by two different persons. PW-8Manoj Kumar Singh has stated in his evidence in his examination-in-chief that only one firearm injury was fired by the appellant upon the deceased. There is no mention about the second shot fired upon the deceased. Thus, it is apparent from the above that there are two versions of the incident regarding the manner of incident. Thus, the manner of incident is inconsistent and self-contradictory. It is also settled position of law that if the prosecution witnesses do not come out with the true version regarding the genesis, the manner of the incident, such evidence should not be relied upon. 13 The second fact which is revealed from the medical report is that there is no charring mark or blackening at the entry point of the wound. It is indicated in the report that the projectile pierced in the brain of the deceased which was lodged there and it was recovered by the Doctor in course of post mortem. It is also in the evidence that the trucks were• standing very close to the place where the deceased was sitting with his friends. It is also the case of the prosecution that the appellant emerged from the side of the trucks where they were parked. According to Modi's Medical Jurisprudence, if a firearm injury has been caused by short distance, about 3 yards, there would be charring and blackening marks on the entry point of the wound. It is clear that the version stated by the PW-8 is not corroborated by the aforesaid fact. If the shot would have been fired by a short distance as stated by PW-8-Manoj Kumar Singh, there would have been charring and blackening at the entry point of the wound. The medical evidence did not corroborate the evidence of PW-8. 14. It is clear that the version stated by the PW-8 is not corroborated by the aforesaid fact. If the shot would have been fired by a short distance as stated by PW-8-Manoj Kumar Singh, there would have been charring and blackening at the entry point of the wound. The medical evidence did not corroborate the evidence of PW-8. 14. According to the FIR, it is the prosecution case that two fires were shot and these fires were shot from the side of the trucks which were parked near the place of occurrence in front of the Ashok Hotel. The deceased and his friends were sitting outside the Hotel and they were dining and drinking together. The appellant as well as Raju Choudhury who were allegedly holding pistols in their hands emerged from the side of the trucks and they fired towards the hotel; only one bullet hit at the head of the deceased. It is stated in the medical report that only one firearm injury was found on the head of the deceased. The investigating officer (PW-10) has stated that immediately after the incident, he reached at the spot and recovered a projectile lying underneath the tyres of the standing truck and if it was fired from the side of the trucks, it was not possible that the projectile would go beneath the tyre of the truck. Thus, this fact also clearly reveals that the prosecution story as projected by the prosecution is not corroborated by the above recovery of the projectile beneath the truck tyre. 15. The prosecution story reveals that Jagtar Singh (deceased) was dining and drinking with his friends and Munna Yadav was also one of his friends who was dining and drinking with the deceased. The prosecution has not produced the said witness before the court, reasons best known to the prosecution. PWs.-1 to 7 who claimed to be the eye witnesses of the incident' were declared hostile and they did not support the prosecution version. The prosecution produced Manoj Kumar Singh-PW-8 as an eye witness to the incident who was present at the time of the incident. As we have discussed above, his evidence is not credible and cogent. Munna Yadav was the best person who could have unfolded the genesis of the incident before the court. He was not produced by the prosecution. The prosecution produced Manoj Kumar Singh-PW-8 as an eye witness to the incident who was present at the time of the incident. As we have discussed above, his evidence is not credible and cogent. Munna Yadav was the best person who could have unfolded the genesis of the incident before the court. He was not produced by the prosecution. Non-production of the said witness alongwith the other attending circumstances is fatal to the prosecution. 16. Considering the case as a whole in this perspective, it will appear that on each vital and material aspect of the prosecution case, either in regard to the genesis or the manner of the occurrence, the evidence of PW-8-Manoj Kumar Singh, the sole eye witness, have not been supported by independent sources. The objective findings of the investigating officer are indicative of the fact that the prosecution party have suppressed the truth from the court and the story put forward by them is not reliable. It is a settled position of law that if the prosecution does not come out with the true version regarding the genesis and the manner of the incident, the prosecution case and the evidence cannot be relied upon. If all the witnesses examined in this case are hostile, only interested or inimical or partisan witnesses are produced and further there is no corroboration by the independent source and the attending circumstances of the said evidence of the partisan witnesses, it would be deemed that the prosecution has failed to prove its case beyond all shadow of reasonable doubt. It is hazardous to accept the testimony of a witness who has a heavy load of bad incident to his credit and who had a poor moral fater without there being corroboration on crucial points emerging from the independent sources. The evidence of the prosecution is not trustworthy. 17. We have gone through the entire evidence of the prosecution witnesses with the help of the learned counsel for the parties. ,The evidence of PW-8-Manoj Kumar Singh alias Bhole is not corroborated with other attending circumstances as indicated above. PW-8-Manoj Kumar Singh has given a different story about the incident. We do not find his evidence cogent, credible and trustworthy. The trial court has erred in relying on the evidence of PW-8. The prosecution has failed to prove its case against the appellant beyond all shadow of doubts. PW-8-Manoj Kumar Singh has given a different story about the incident. We do not find his evidence cogent, credible and trustworthy. The trial court has erred in relying on the evidence of PW-8. The prosecution has failed to prove its case against the appellant beyond all shadow of doubts. In this view of the matter, the order of conviction and sentence of the appellant by the trial court is not sustainable in law and is fit to be set aside and the appellant is entitled to acquittal. 18. For the foregoing reasons, this appeal is allowed and the order of conviction and sentence of the appellant in Sessions Trial No. 57 of 2008 by the trial court is hereby set aside. The appellant is in custody. The appellant is acquitted of the charge and directed to be released forthwith, if not required in connection with any other case.