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2012 DIGILAW 645 (JHR)

Radha Mahli v. State of Jharkhand

2012-04-26

D.N.UPADHYAY, R.K.MERATHIA

body2012
Judgment By Court : This criminal appeal arises out of judgment of conviction and sentence dated 7.5.2003 and 8.5.2003. respectively passed by learned Sessions Judge, Gumla, in Sessions Trial No. 257 of 2001, whereby the appellant has been held guilty for offences punishable under section 302 of the Indian penal Code and section 27 of the Arms Act and accordingly he has been sentenced to undergo rigorous imprisonment for life and also to pay fine of rupees one thousand under section 302 IPC and in default of payment of fine, to undergo two months' rigorous imprisonment. He has also been convicted and sentenced to undergo rigorous imprisonment for one year under section 27 of the Arms Act. However, both the sentences were directed to run concurrently. 2. The prosecution case, in short, is that Ramautar Agarwal (informant) lodged fard beyan on 22.02.2001 at 12 noon near Gumla Tower chowk to the following effect : That on 21.2.2001 the informant-PW3 along with his younger brother Vijay Agarwal (deceased) went to their cycle shop. PW1 and other staff were also along with them. After opening the shutter, both the brothers sat behind the counter and the staffs were arranging the shop. In the meantime, three persons came in a black Suzuki motor cycle. The motor cycle was kept in start condition in front of the shop. The person who was driving the motor cycle was wearing a red colour helmet on his head. He remained seated on the motor cycle. Two persons entered the shop. At the pistol point, they abused and asked Vijay, why he did not send the demanded rangdari and why he was not responding to their demand and then both the accused persons fired one shot each at Vijay. Out of these two, the informant recognized the appellant, but he could not recognize the other person. The informant gave description of the other accused. After causing fire arm injuries, both the persons rushed and sat on the motor cycle and escaped. The informant found that blood was oozing out from the body and mouth of the deceased. With the help of other persons, Vijay was taken to hospital where he was declared dead. After such occurrence, local people were agitated. After causing fire arm injuries, both the persons rushed and sat on the motor cycle and escaped. The informant found that blood was oozing out from the body and mouth of the deceased. With the help of other persons, Vijay was taken to hospital where he was declared dead. After such occurrence, local people were agitated. They took the dead body from the hospital and brought it to Gumla tower chowk and sat on dharna against the administration and demanded arrest of the miscreants without any delay. For this reason, there was delay in lodging the FIR. 3. On the basis of the said fard beyan, Gumla PS Case No. 44 of 2001 was registered. After investigation, charge sheet was submitted against the appellant who faced the trial and was convicted as aforesaid. 4. Mr. Tripathy, learned senior counsel for the appellant assailed the impugned judgment on various grounds. He submitted that he is not disputing the manner of occurrence. But the informant has falsely implicated the appellant on suspicion, as the appellant is said to have demanded rupees fifty thousand as rangdari from him. He further submitted that the informant has developed the story narrated by him in the FIR. He did not disclose the name of the appellant before other witnesses. The prosecution case is based on the evidence of PW3 who has been projected as the eye witness, whereas he is not the eye witness. There was delay of about 24 hours in lodging the FIR. He further submitted that except PW1Rameshwar Pathak, other staff present at the shop at the time of the occurrence as per fardbeyan were not examined. PW1 has been declared hostile, who as per the fard beyan, was present at the place of occurrence. He did not disclose the name of the appellant. He lastly submitted that the appellant deserves benefit of doubt. 5. On the other hand, learned counsel for the State supported the impugned judgment. He submitted that the time, place and the manner of occurrence has not been disputed by the appellant. He denied and disputed the other submissions made by the learned counsel for the appellant. He submitted that delay in lodging the First Information Report (FIR) has been properly explained. There was no development in the prosecution story. He submitted that the time, place and the manner of occurrence has not been disputed by the appellant. He denied and disputed the other submissions made by the learned counsel for the appellant. He submitted that delay in lodging the First Information Report (FIR) has been properly explained. There was no development in the prosecution story. Every body knew that the appellant committed the crime and therefore it was not necessary for the witnesses to specifically repeat that the informant disclosed the name of appellant before them. He further submitted that it is quality of evidence which is important and not the quantity. It was not necessary that all the staff should have been examined. One of them PW1 has turned hostile, apparently due to fear. He further submitted that PW3 is the eye witness and his version is fully supported by other materials available on the record. He also pointed out that when the appellant was asked to furnish his hand writing for sending it to the handwriting expert in order to compare it with the letter of demand and with the pocket telephone index directory seized from the appellant, he refused to furnish his hand writing and, therefore, adverse inference has to be drawn against the appellant. In other words, the appellant accepted his hand writing on the letter of demand and in the pocket telephone directory seized from his possession. 6. The prosecution has examined altogether 11 witnesses. PW1 Rameshwar Pathak is the driver who was present at the time of occurrence, but this witnesses has turned hostile. But it may be noted that this witness proved his signature(Ext 1) on the fard beyan in which the incident was narrated as noted in the foregoing paragraph. PW2 Ujjwal Kumar Sinha is inquest witness. PW3 Ramautar Agarwal is the informant. He is an eye witness and has fully supported the prosecution case. He has reiterated his statement before the court as made in the fard beyan. He said that the miscreants threatened Vijay that inspite of repeated telephone calls and letter of demand of rangdari, he did not pay rupees fifty thousand and then the appellant took out revolver from his pocket and fired at his brother Vijay(deceased) and that other miscreant had also fired at Vijay who fell down on the ground after such injuries. The miscreants threatened the staff of the shop not to raise hulla. The miscreants threatened the staff of the shop not to raise hulla. This witness further said that before the alleged occurrence the appellant used to make telephone calls demanding rupees fifty thousand as rangdari. He also gave letter demanding rangdari and threatening dire consequences. This letter has been marked as material Ext. V and its envelope as Ext. V/1. Seizure list of this Ext. V and V/1 is Ext. 3. This witness further said that when he received the phone call and expressed his inability to pay the said amount of rangdari, the appellant threatened that he will commit murder in his house. The appellant was identified by this witness in dock. This witness also explained the delay in lodging the FIR. He said that after the murder of Vijay, local people had assembled at the hospital and took his dead body to Tower Chowk and started dharna and this witness was also compelled to join the dharna which continued upto next day (22.2.2001) upto 2.00 p.m. The agitating people started demanding arrest of the appellant. This part of the deposition finds support from the evidence of PW11 (investigating officer), who also said that at about 12 noon, when the Administration gave assurance of arrest of the miscreants, further proceeding was done and fard beyan was recorded at 12 noon at the Tower Chowk itself and inquest was also prepared there. 7. Thus, in our opinion, it cannot be said that there was any intentional delay or laches on the part of the informant in lodging the FIR. 8. Regarding identification of the appellant, PW3 has said that about 15 days prior to the alleged occurrence, he had occasion to see the appellant when he came to his shop and stayed there for about 15-20 minutes. On 19.2.2001 at about 7.30, he made call which was received by this witness. The appellant also gave the said letter on 20.2.2001 at about 4.00 p.m. demanding the rangdari money and threatening him with dire consequences. 9 9. It may be noted here that the manner of occurrence has not been disputed. The doctor (PW10) found two fire arm injuries to be the cause of death of the deceased. Empty cartridges were also recovered from the place of occurrence and have been marked as material Ext. in this case. 9 9. It may be noted here that the manner of occurrence has not been disputed. The doctor (PW10) found two fire arm injuries to be the cause of death of the deceased. Empty cartridges were also recovered from the place of occurrence and have been marked as material Ext. in this case. It is not possible to accept the contention of the learned counsel for the appellant that only on the basis of suspicion, the appellant has been implicated as he was demanding rangdari from the family of the informant. 10. PW4 is the son of the deceased. PW5 is the brother of the informant. PW6 is the wife of the deceased. PW7 is a relative of the deceased. All these witnesses have fully supported the prosecution case. These witnesses learnt about the occurrence from PW3. Only because they happen to be relatives, their evidence cannot be disbelieved. They have fully stood the test of cross examination. These witnesses also said that that prior to alleged occurrence, there was demand for rangdari money by this appellant over phone and through letter. It is inconsequential if these witnesses did not say in so many words that the name of appellant was disclosed to them by PW3. On such ground, the prosecution case cannot be brushed aside. 11. PW11 is the investigating officer. He had arrested the appellant at about 1.30 a.m. in the night of 14.3.2001 from a lodge and seized a mobile phone and a pocket telephone diary in which Phone Numbers of informant 23061 and 23821 were noted, apart from the phone numbers of other businessmen of Gumla town. Such pocket diary was seized and marked as material Ext. On the seizure list, the appellant had also put his signature. In para 13, the investigating officer also said that he seized a receipt of the telephone booth from possession of the appellant from which it appeared that the appellant had made telephone call on the said telephone numbers of the informant party. The investigating officer denied the suggestion that he had not investigated the case properly. In para 15, the investigating officer has said that from 21.2.2001 to 22.2.2001 up to 12.30 P.M., attempts were made to record the statement of the family of the deceased, but he could not succeed due to local people’s agitation and dharna at the Tower Chowk. 12. In para 15, the investigating officer has said that from 21.2.2001 to 22.2.2001 up to 12.30 P.M., attempts were made to record the statement of the family of the deceased, but he could not succeed due to local people’s agitation and dharna at the Tower Chowk. 12. Taking into consideration the totality of the facts and circumstances of the case and the materials on record, it appears that every body knew that this appellant was one of the miscreant, who killed Vijay. The occurrence had taken place within market area at about 9.45 a.m. The deceased was shot dead within his shop premises in presence of the informant (PW3) and other staff. Before shooting, the appellant and his companion had uttered about the non-fulfilment of the demand of rangdari made by them. The very purpose of the miscreants was to create terror within the business community of the town in which they had succeeded. The information about the incident spread like wild fire and the local people became so agitated that they launched 'dharna' demanding arrest of the miscreants. The demand of the people was very specific to arrest the culprit. It was not that they were making demand to identify the culprit and arrest. In such situation, if any of the culprit is identified by any witness, the name of culprit easily become known to every one from one mouth to another and therefore it is not expected that every witness will disclose the source by which he learnt the name of the culprit. Furthermore, the family members who have been examined by the prosecution had previous knowledge that the appellant was demanding rangdari and was giving threats. The motive behind the incident has successfully been proved and therefore the identification of the culprit as disclosed by the informant cannot be viewed with any doubt. It cannot be accepted that the appellant has been falsely implicated in this case only because he demanded rangdari and threatened the informant party with dire consequences prior to the alleged occurrence. It may also be noted that when at the instance of investigating officer, the appellant was asked by the trial court to furnish his hand writing for sending it to the handwriting expert, he refused to do so and therefore adverse inference can be drawn against him that the letter of demand and the pocket telephone diary were in his hand writing. Two accused – Bandhu Mahto and David Lakhra were absconding. 13. After carefully going through the records and hearing the parties at length, it is clear that the prosecution has been able to prove its case against the appellant beyond all reasonable doubts. 14. For the aforesaid reasons, we do not find any merit in this appeal, which is, accordingly dismissed.