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2014 DIGILAW 1007 (JHR)

Ramjeet Oraon @ Heera Panna v. State of Jharkhand

2014-10-05

PRAMATH PATNAIK, R.R.PRASAD

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JUDGMENT : By Court : The appellant Ramjeet Oraon @ Heera Panna was put on trial along with Puncham Nagesia and Ulfat Ansari on the accusation of committing murder of one Kunal Singh in furtherance of their common intention and also for committing offence under sections 3(2), 20 and 22 of the Prevention of Terrorism Act, 2002 (POTA). The Trial Court while acquitting the other two accused persons convicted this appellant under section 302/34 of the Indian Penal Code and also under sections 3(2), 20 and 22 of the POTA, vide judgment dated 13.09.2010 and sentenced the appellant to undergo imprisonment for life for each of the offences under sections 302/34 of the Indian Penal Code and also under section 3(2) of the POTA and to pay a fine of Rs.3000/-for each of the offence with default clause. Further, the appellant was sentenced to undergo imprisonment for 7 years and 10 years for the offences under sections 20 and 22 of POTA respectively and to pay a fine of Rs. 2000/-for the offence under section 20 of POTA with default clause. 2. The case of the prosecution is that on 07.02.2002, the informant, Amiya Kumar Gupta @ Sita Ram Gupta-P.W.1, came to the house of the deceased Kunal Singh along with Ajay Singh, Chotu Oran-P.W.12 and Kayamuddin Ansari-P.W.10 and Phidu for making payment of the wages to several labourers, who had been engaged in constructing a culvert, job of which had been assigned to the contractor Kunal Singh (deceased). The construction work was being looked after by the informant P.W.1-Amiya Kumar Gupta and also by Ajay Singh. After disbursing the wages to the labourers, they started cooking food. Meanwhile, 20 to 25 miscreants, members of a banned organization came to the house of Kunal Singh (deceased) in search of him. They by applying the force got the door opened and entered into the house and started subjecting the informant and others to assault. The miscreants took all the persons including the deceased out of the house and then asked the deceased as to why in spite of being told not to do work, were doing the construction work. The deceased gave explanation for doing the work but it was not acceptable to the miscreants. Thereupon, they took the informant Amiya Kumar Gupta-P.W.1, Ajay Singh (not examined) and the deceased Kunal Singh to Khalihan where the miscreants shot dead Kunal Singh. The deceased gave explanation for doing the work but it was not acceptable to the miscreants. Thereupon, they took the informant Amiya Kumar Gupta-P.W.1, Ajay Singh (not examined) and the deceased Kunal Singh to Khalihan where the miscreants shot dead Kunal Singh. Thereupon, the miscreants after holding out threat to them left the place. 3. Thereupon, the information to this effect was given to Head Quarter at Lohardaga telephonically and also to Senha Police Station. Superintendent of Police, Lohardaga on getting such information passed it on to Prasanna Kumar Khalkho-P.W.8, posted at relevant point of time as Dy. S.P. On getting such information P.W.8 came to village Hesway along with other police officials where he got the fardbeyan (Ext.1) of the informant recorded. 4. On the basis of said fardbeyan a formal FIR (Ext.5) was drawn. P.W.8 himself took up the investigation of the case, during which he held inquest on the dead body of the deceased and prepared an inquest report. Thereupon, the dead body was sent for postmortem examination which was conducted by Dr. Hemant Kumar-P.W.23, who upon holding autopsy on the dead body did find the following injuries: Injury No.1.- Wound of entrance and wound of exit. (a) Wound of entrance-About 1/2” x 1/2” size on right zygomatic prominence of face about 1 and 1/2” lateral to right eye, shape was circular, margin was inverted. There was blackening of skin around margin. (b) Wound of Exit-About 4” x 3” size on left side of upper neck and left occipital region, shape was irregular, margin was inverted. On Dissection-There was laceration of underlying muscles, vessels, fracture of left zygomatic bone, with laceration of vessels, fracture of occipital bone with laceration of oesophagus and brain. Blood cot was found present. Injury No.2- Fire arm wound- (a) Wound of entrance-About 1/2” x 1/2” size on right side of face 1” below injury no.1. Circular in shape, margin was inverted. There was blackening of skin about margin. (b) Wound of exit- About 1 and ½” x ½” size on left zygomatic prominence of face. Shape was irregular, margin was inverted. On Dissection-There was laceration of underlying muscles and vessels were found. At the same time fracture of left zygomatic bone was there. Injury No.3-Incised wound-size 1” x 1/4” x cartilage deep over right pinna. Injury No.4-Incise wound-Size 3/4” x 1/3” x 1/4” over left buttock. Shape was irregular, margin was inverted. On Dissection-There was laceration of underlying muscles and vessels were found. At the same time fracture of left zygomatic bone was there. Injury No.3-Incised wound-size 1” x 1/4” x cartilage deep over right pinna. Injury No.4-Incise wound-Size 3/4” x 1/3” x 1/4” over left buttock. Injury No.5-Incise wound-Size 3/4” x 1/2” x 1/4” over right thigh above knee. Injury No.6-Multiple bruises-Size varying from 3” x 1” to 1” x 1/2” over right and left shoulder and right upper chest. Doctor issued the postmortem examination report (Ext.9) with an opinion that the death was caused on account of shock and hemorrhage due to injury nos. 1 and 2 caused by fire arm whereas, injury nos. 3, 4 and 5 were caused by sharp cutting weapon and injury no. 6 was caused by hard and blunt substance. 5. Meanwhile, the I.O. seized the empty cartridges and earth smeared with blood from the place of occurrence and seized it under seizure list (Ext.7). While the matter was under investigation, the I.O. received an information that the appellant has been arrested by Police Officer of Kudu Police Station. On getting such information, the I.O. took custody of the accused whose confessional statement was recorded by S.P. Lohardaga on 30.07.2002 on which date the appellant was shown to have been arrested. Subsequently, other two accused persons who have been acquitted by the Court were also arrested and then S.P. Lohardaga also recorded the confessional statement of Puncham Nagesia whereas the confessional statement of Ulfat Ansari was recorded by Officer Incharge of Senha Police Station. Much thereafter, the appellant was put on T.I. Parade on 21.01.2003 conducted by P.W.7-Pradeep Kumar Shukla, the Magistrate. During which the appellant was identified by P.W.1-Amiya Kumar Gupta, whose identity was not disclosed in the T.I. chart (Ext.3) keeping in view the provisions of section 30 of POTA. After closure of the investigation the I.O., procured the sanction orders (Exts. 10 to 10/2) from the competent authority and submitted charge sheet against this appellant as well as other two persons named above. Upon which cognizance of the offence as aforesaid was taken against them. Subsequently, they were put on trial during which the prosecution in order to prove its case examined altogether 27 witnesses. 6. 10 to 10/2) from the competent authority and submitted charge sheet against this appellant as well as other two persons named above. Upon which cognizance of the offence as aforesaid was taken against them. Subsequently, they were put on trial during which the prosecution in order to prove its case examined altogether 27 witnesses. 6. Of them P.W.1 Amiya Kumar Gupta, the informant, has testified almost in the same manner as he had made statement in his fardbeyan. P.W.1 in course of his evidence also identified the appellant. P.W.5-Dinesh Kunwar, P.W.9-Shiv Prasad Sahu, P.W.12-Chotu Oraon although testified about the manner of occurrence in which it took place and the deceased was killed but they did not identify or named the appellant as one of the culprits. P.Ws.10, 13, 15, 16, 17, 18, 19, 20, 21, 24 and 26 have been declared hostile whereas P.W.6 has been tendered for cross examination. P.Ws. 11, 14, 22 and 27 are the hearsay witnesses, who have also not said anything against the appellant. P.Ws. 2 and 3 are the witnesses in whose presence the I.O. did hold inquest on the dead body of the deceased. P.W.4 is the witness to the seizure of earth smeared with blood. 7. On closure of the prosecution case, when the incriminating evidences appearing against the appellant were put to the appellant under section 313 of Cr.P.C. the appellant and other accused persons denied. 8. Thereupon, the Trial Court taking into account the fact that the appellant did confess his guilt which is admissible under section 32 of POTA and also the fact that the appellant was identified not only in the T.I. parade but in the Court by P.W.1, did find the appellant guilty for the charges whereas the other two appellants, who had also confessed their guilt, but had not been identified were acquitted whereas the appellant was convicted and sentenced as aforesaid which is under challenge. 9. Mr. 9. Mr. Jitendra S. Singh, learned counsel appearing for the appellant submits that none of the aforesaid two materials upon which the Court has placed its reliance should have been acted upon by the Trial Court as the appellant though has been said to have confessed his guilt which was reduced in writing as Ext.8 but that cannot be said to have been proved in accordance with law as neither the S.P. Lohardaga, who had recorded the confessional statement of the appellant, was examined nor the person who had typed the confessional statement was examined and thereby, the said document i.e. confessional statement (Ext.8) never happens to be an admissible piece of evidence. Further, it was submitted on behalf of the appellant that admittedly the appellant was arrested on 29.07.2002/30.07.2002 but he was put on T.I. parade on 21.01.2003 almost after six months and this fact was sufficient for the Court below not to accept that part of the prosecution case as it would not have been possible for the P.W.1 to identify the appellant but the Trial Court did not take into account all these aspects of the matter and thereby committed illegality in recording the order of conviction and sentence. 10. As against this, learned counsel appearing for the State submits that it is true that the S.P., Lohardaga who got the confessional statement of the appellant recorded, has not been examined nor the person who had typed the confessional statement has been examined but that does not make any difference as the appellant has never raised any objection at the relevant point of time over the admissibility of the document i.e. confessional Statement (Ext.8) and therefore any submissions advanced in this regard is not worth acceptable. It was further submitted that it is also true that the appellant has been put on T.I. Parade after six months of his arrest. But, that itself never looses significance of appellant being identified by P.W.1 and under the circumstances the Trial Court certainly have not committed any illegality in recording the order of conviction and sentence. 11. It was further submitted that it is also true that the appellant has been put on T.I. Parade after six months of his arrest. But, that itself never looses significance of appellant being identified by P.W.1 and under the circumstances the Trial Court certainly have not committed any illegality in recording the order of conviction and sentence. 11. Having heard learned counsel appearing for the parties and on perusal of the record, we do find that the trial Court secured the conviction of the appellant on the following two materials: (i) That the appellant confessed his guilt before the Superintendent of Police, Lohardaga which is admissible under Section 32 of POTA; (ii) That the appellant was identified in the Court as one of the culprits who had participated in the occurrence during which the deceased Kunal Singh was murdered. From the perusal of the confessional statement (Ext.8), we do find that the safeguards which were required to be undertaken by the police officer regarding the confessional statement have been taken, however, Superintendent of Police was not examined by the prosecution. Inspite of that, confessional statement has been taken into evidence and has been marked as Ext.8. It would be significant to note that at the time of taking that document into evidence the appellant had never raised any objection over the admissibility of the document. In such event, the appellant cannot be allowed to raise this issue at this stage. On perusal of the confessional statement, we do find that the appellant in his confessional statement has stated about the situation in which he became a member of MCC, a banned organization. He has also confessed about his involvement in different kinds of occurrence. At the same time, the appellant has also made certain disclosure relating to occurrence wherein he has stated that the other day while they were in group over a hill top, one Deepak called Umesh and asked him to keep vigil over the Kunal Singh so that as soon as he comes to village he may inform them. Thereupon, said Umesh in the evening came and informed Deepak that Kunal Singh has come to village. Thereupon, Umesh called others to come to village for apprehending Kunal Singh and then they proceed to the village. Thereupon, said Umesh in the evening came and informed Deepak that Kunal Singh has come to village. Thereupon, Umesh called others to come to village for apprehending Kunal Singh and then they proceed to the village. According to the confessional statement, when they came near a school at village Umesh and Deepak asked the appellant and one other to stay back over there and the others proceeded ahead. Again Maharaj and Muneshwar were asked to stay back and then others namely Deepak, Umesh, Ravindra and Ramesh came to the house of Kunal Singh and got the door opened. They took the informant-P.W.1-Amiya Kumar Gupta, Kunal Singh (deceased) and Ajay Singh out of the house and brought them to a Khalihan where they were assaulted and then he heard sound of firing of the gun. Subsequently, he came to know that Ravindra has killed Kunal Singh. From the perusal of the confessional statement, it does appear that the appellant had proceeded to the village of the deceased when he and others were told that they had to apprehend Kunal Singh. Nothing is there in the confessional statement to suggest that there had been any hatching of conspiracy for committing murder of the deceased. Further, we do find that when the appellant and others on being asked that they had to apprehend the deceased proceeded to village. The appellant and one other stayed back on the way and others proceeded. Of them, two more persons stayed back on the way and only four persons namely Deepak, Umesh, Ravindra and Ramesh came to the house of the deceased and entered into the house after getting the door opened and then they took the deceased-Kunal Singh, P.W.1-Amiya Kumar Gupta and Ajay Kumar Singh out of the house, to whom they brought to Khalihan where all the persons were assaulted and then the deceased was shot dead. In the sequence of the events as has been stated above, it never appears that the accused persons were sharing the common intention of committing murder of the deceased. Further, it appears from the confessional statement that the appellant had never came to the house of the deceased nor he was there at Khalihan. In the sequence of the events as has been stated above, it never appears that the accused persons were sharing the common intention of committing murder of the deceased. Further, it appears from the confessional statement that the appellant had never came to the house of the deceased nor he was there at Khalihan. In such situation, it is hard to accept the testimony of P.W.1, who was either at the house of the deceased or at Khalihan, where the appellant as per confessional statement had never been and as such P.W.1 would have no occasion to even see the appellant. Furthermore, at 7.30 pm when occurrence is said to have taken place it must be dark as it was month of February. In that event, even there was a slightest chance for P.W.1 to come near the appellant, he would not have in a position to identify this appellant in absence of any source of light. In such event, any claim of P.W.1 to identify the appellant either in the T.I. Parade or before the Court does not inspire confidence on him to be believed. Under the circumstances, we do find that the confessional statement made by the appellant never discloses about the culpability of the appellant. So far as claim made by P.W.1 to have identified the appellant as one of the participant is concerned, it in the facts and circumstances stated above, is not acceptable. 12. Going further in the matter, it be stated that the appellant has also been convicted for the offence punishable under sections 20 and 22 of POTA on the basis of the disclosure made by the appellant regarding he being a member of a banned organization and did commit certain offences. But except confessional statement no evidence is there with respect to appellant either being a member of a banned organization or being a member of banned organization he did commit offence. The I.O. P.W.8-Prasanna Kumar Khalkho, has candidly accepted in his evidence that he did not make any investigation over that matter. In similar situation where there were confessional statements only in respect to other accused persons regarding they being member of a banned organization have been acquitted. The Court rightly did not act upon the said confessional statement as the confessional statement in absence of any other evidence cannot be taken to be sufficient for holding a person guilty. In similar situation where there were confessional statements only in respect to other accused persons regarding they being member of a banned organization have been acquitted. The Court rightly did not act upon the said confessional statement as the confessional statement in absence of any other evidence cannot be taken to be sufficient for holding a person guilty. The principle which has been enunciated by the Hon'ble Supreme Court is that first evidences be marshalled out showing culpability of the person and then the confessional statement made by the appellant be pressed into service to lend support to the case. Here admittedly as has been stated above no evidence whatsoever has been led by the prosecution for establishing the offence punishable either under section 20 or 22 of POTA and thereby the trial Court committed illegality in recording the order of conviction and sentence even for the offence under sections 20 and 22 of POTA. Thus, we do find that the trial Court was not justified in recording the order of conviction and sentence against the appellant for any of the offences under which the appellant was found guilty and thereby, the order of conviction and sentence is hereby set aside. 13. In the result, the appellant is acquitted of all the charges. Consequently, the appellant who is in custody is directed to be released forthwith if not wanted in any other case. 14. Thus, this appeal stands allowed.