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2014 DIGILAW 133 (JHR)

Kapil Mishtry v. State of Jharkhand

2014-01-21

APARESH KUMAR SINGH, VIRENDER SINGH

body2014
JUDGMENT :- Aparesh Kumar Singh, J. The sole appellant herein is aggrieved by the judgment of conviction dated 07.11.2003 and order of sentence dated 12.11.2003 passed by the learned Sessions Judge, Palamau, Daltonganj in Sessions Trial No. 428/2001 for the offences under section 302 read with section 149 of the Indian Penal Code whereby he has been sentenced to undergo imprisonment for life. He has been further convicted for the offences under sections 148 of Indian Penal Code and section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years each. All the sentences to run concurrently. 2. Appellant herein along with four other co-accused persons were charged for the offences under section 147, 148, 302/149 and 323 of the Indian Penal Code besides 27 of the Arms Act for committing rioting with deadly weapons and murder of one Nandu Ram in prosecution of their common object and also for voluntarily causing hurt to Jawahar Ram. They were also charged for unlawful use of firearms during the same transaction of offences. 3. Prosecution story, as unfolded on the basis of the fardbeyan of the informant (PW8), is that quarrel took place between the informant and accused appellant Kapil Mishtry in respect of construction of a road for which contract was taken by the appellant herein without getting it passed in the Aam Sabha. On protest of Aam Sabha, the Deputy Commissioner, Palamau had stayed the construction of the road. As a result, the accused Kapil Mishtry could not encash the cheque from the Bank which led to altercation on several occasions. On 09.04.2000 at 9.00 PM, 8-10 persons including accused persons called upon the informant (PW8) and his son Sunil Kumar (PW3) and Nephew Sitaram Paswan (PW5). Upon orders of the accused appellant, other accused persons tied the hands of the informant's son and nephew named above. The informant protested and caught gun of the accused appellant Kapil Mishtry, whereupon the appellant-accused gave a blow with butt portion of the gun on his head. However, on hearing the sound of whistle, all of them fled away. However, they came again within 15 minutes while shooting fire. Though, all others fled away, but the informant's younger brother (deceased) Nandu Ram was caught by them and the accused Kapil Mishtry and Kamlesh shot him dead and thereafter fled away. 4. However, on hearing the sound of whistle, all of them fled away. However, they came again within 15 minutes while shooting fire. Though, all others fled away, but the informant's younger brother (deceased) Nandu Ram was caught by them and the accused Kapil Mishtry and Kamlesh shot him dead and thereafter fled away. 4. Based upon the aforesaid allegations, FIR was registered on 10.04.2000 at Chattarpur P.S. bearing no. 34/2000 at 6.30 AM under the aforesaid sections. After the investigation was complete, and the case was committed to the Court of Sessions, accused persons pleaded not guilty to the charges and were sent up for trial. However, rest of the accused persons who faced trial along with this appellant, were acquitted of all the charges as the learned Trial Court found no evidence against them in support of the charges. 5. Altogether, 11 witnesses were examined on behalf of prosecution, of which PW-11 Sahabir Oraon was formal witness who proved formal FIR. Out of the remaining 10 witnesses, PW1 Suresh Ram Paswan, PW2 Kalawati Devi, widow of the deceased, PW4 Babu Nand Paswan, PW6 Padum Ram, PW7 Lakhan Mistry and PW9 Gurudeo Prasad all were declared hostile by the prosecution. Except PW4 Babu Nand Paswan, others had admitted to the murder of the deceased Nandu Ram, but had shown their ignorance about the involvement of the assailants. PW4 had shown his ignorance about the occurrence as well. PW8 Jawahar Ram (informant) along with PW3 Sunil Kumar and PW5 Sitaram Paswan who are the son and nephew of the informant, have deposed as ocular witnesses to the occurrence. Learned Trial Court analyzed the evidences of PW3, PW5 and the informant (PW8) along with the evidence of Doctor namely, Dr. Krishna Murari Sah and did not find any reason to discard the evidence of three witnesses simply on the ground that they were related to the deceased and could have been interested witnesses. Learned Trial Court came to the conclusion that three witnesses namely, PW3, PW5 and PW8 have supported the prosecution case that due to the dispute relating to the contract for construction of a road, raised by the informant and villagers, the accused-appellant was stopped from constructing the road and could not encash his cheque, which led to cancellation of the work taken by the accused Kapil Mishtry for construction of the road. This was the motive for the crime. This was the motive for the crime. The plea of the defence that since the accused Kapil Mishtry had already got the contract, it was the informant who should have the motive to kill the accused and not the appellant-Kapil Mishtry, was found without any substance in view of the fact that because of protest by the informant party by way of meeting of the villagers, the work undertaken by the appellant Kapil Mishtry was stayed and he could not also encash his cheque. Learned Trial Court also did not consider it proper to accept the plea of the defence that though in the FIR, several accused persons were implicated, but during course of the trial except Kapil Mishtry (appellant), no evidence was led against other accused persons. Learned Trial Court had reason to believe that simply because the prosecution did not name other accused persons, though evidence was consistent and corroborative by three ocular witnesses regarding involvement of the accused-Kapil Mishtry, the present accused-appellant should be acquitted of the serious charges of murder of Nandu Ram. Learned Trial Court was not persuaded to believe the submissions of the defence, based upon the evidence of PW3 that the informant had gone to the police station on the next day and therefore, the statement in the FIR should have been given at the police station. Learned Trial Court came to the conclusion, after analyzing the evidence on this issue that the informant had not stated a word that he had signed any statement given by him at the police station, but had categorically stated that he had signed the statement given by him at the place of occurrence. Therefore, said statement signed by him should be the FIR. Learned Trial Court while discussing the evidence adduced on behalf of Doctor (PW10), found that as per the statement of the doctor, deceased had four lacerated wounds caused by firearm injuries of entries and three laceration caused by firearm injuries of exit besides one metallic substance in the thoracic cavacity of the deceased. Learned Trial Court found that though, there were allegations on several persons of shooting fire, but the ocular witnesses had categorically stated about firing of accused Kapil Mishtry making two fire arm shots on the deceased. Learned Trial Court found that though, there were allegations on several persons of shooting fire, but the ocular witnesses had categorically stated about firing of accused Kapil Mishtry making two fire arm shots on the deceased. On the basis of this oral evidence, learned Trial Court convicted the sole accused appellant for the offences under sections 302 read with 149 of the Indian Penal Code and also for the offences under section 148 of the Indian Penal Code and section 27 of the Arms Act. However, since the prosecution had failed to adduce any evidence in respect of involvement of other accused persons, they were acquitted of all the charges. 5. We have heard learned counsel for the appellant and learned A.P.P. for the State and have also gone through the material evidence on record carefully. 6. After having carefully analyzed the material evidence on record, it is found that the informant in the FIR had alleged that he had received injuries on his head by butt of gun from accused Kamesh Mishtry. At the time of his deposition, while on one hand, he had stated that with his eyes, he had seen the accused-appellant inflicting two shots by firearm on the deceased Nandu Ram on his back, but when his attention was drawn to the assault with the butt portion of the gun, he had stated that his eyes became closed after sustaining injuries on his head and when he opened his eyes, he saw his brother dead. He therefore cannot say whose firing hit his brother Nandu Ram. It is also evident from the evidence of the prosecution witnesses i.e. PW2, PW3, PW5 and PW8 that it was dark night and there are allegations of firing by several persons, but only the accused-appellant Kapil Mishtry had been specifically alleged to have inflicted the firearm injury upon the deceased, though, the doctor (PW10) had also clearly opined about the presence of four lacerated wounds caused by firearm injuries of entries and three laceration caused by firearm injuries of exit besides one metallic substance in the thoracic cavacity of the deceased. It therefore appears that the informant has himself betrayed the story which he initially made at the time of lodging of the FIR against two named persons including the present appellant and several other persons of having indulged in shooting with firearms. It therefore appears that the informant has himself betrayed the story which he initially made at the time of lodging of the FIR against two named persons including the present appellant and several other persons of having indulged in shooting with firearms. Lack of evidence in respect of any other members of their unlawful assembly by the prosecution when admittedly there were more then 10-15 persons alleged to have been involved, renders the prosecution story crippled with serious doubt about its truthfulness. 7. In these circumstances, the Trial Court found charges against the other accused Kamesh Mishtry and other persons involved and facing trial, wholly unworthy of credence leading to their acquittal. A serious doubt is therefore cast upon the entire prosecution story. Interestingly though, there is allegation of shooting fire by several persons and PW3, son of the informant, PW5, Nephew of the informant along with the informant, were present at the place of occurrence, but all the injuries supposedly by firearm were found on the body of the deceased alone. Apart from that, out of ten witnesses examined, six prosecution witnesses including widow of the deceased PW2 Kalawati Devi have been declared hostile by the prosecution. Statement of PW3 Sunil Kumar who is stated to be the ocular witness, is also highly doubtful as while being cross examined on the point of occurrence, he has stated that his hands were being tied and he did not raise any alarm when his uncle was shot at. Even PW5 refers to the presence of 15-20 persons, but on the point of shooting, strangely he claims to have identified the only accused that is the appellant Kapil Mishtry, though admittedly it was a dark night with a lantern lit at Darwaja of the informant. He has further stated that the accused persons had Gamchha an their face and their eyes were peeping out, while he claims to have identified only the appellant and no one else. These equivocal statements by the so-called ocular witnesses coupled with the fact that they have completely betrayed their prosecution story built at the time of institution of FIR, casts a serious shadow of doubt on the entire truthfulness of their deposition. 8. These equivocal statements by the so-called ocular witnesses coupled with the fact that they have completely betrayed their prosecution story built at the time of institution of FIR, casts a serious shadow of doubt on the entire truthfulness of their deposition. 8. It therefore appears from a conspectus of the entire evidence that the prosecution story is full of grave inconsistency and also fails to inspire confidence about the truthfulness of the prosecution case upon which conviction of the accused appellant has been sustained by the learned Trial Court. That too, in the wake of acquittal of all other accused persons of the serious charges of murder and rioting under sections 147, 148, 302/149 IPC read with section 27 of the Arms Act and for failure of the prosecution to bring home the charges against the other accused persons. In such circumstances, more so, when the evidence of the doctor shows several injuries on the deceased and the ocular testimony is not at all trustworthy relating to the involvement of the sole appellant herein, it would be wholly unjust to maintain the conviction of the appellant for the charges of murder and other offences for which he has been convicted by the learned Trial Court. 8. Learned counsel for the appellant is right in making his submission that when the other accused persons alleged to have formed an unlawful assembly, have been acquitted, the sole appellant cannot be convicted under the offences of section 148 and 149 IPC. The judgement relied upon by the learned counsel, as reported in AIR 1987 Supreme Court 826 in the case of Amar Singh and others versus State of Punjab, is applicable on the aforesaid point. 9. After churning the entire evidence in its right perspective once again being the first Court of appeal, we are of the view that the prosecution has not been able to prove its case against the Appellant beyond any shadow of reasonable doubt especially when on the same set of evidence his remaining co-accused namely, Parmeshwar Sao, Baijnath Mistry, Kamesh Yadav and Kamesh Mistry, all being charged with the aid of section 149 of Indian Penal Code stand acquitted. We therefore extend the benefit of doubt to the present appellant and set aside his conviction and sentence as recorded by the learned Trial Court vide its impugned judgement of conviction dated 07.11.2003 and sentence dated 12.11.2003. 10. We therefore extend the benefit of doubt to the present appellant and set aside his conviction and sentence as recorded by the learned Trial Court vide its impugned judgement of conviction dated 07.11.2003 and sentence dated 12.11.2003. 10. The net result is that the Appeal on hand (Criminal Appeal) (D.B) No. 1743 of 2003) stands allowed. 11. We have been informed that the Appellant is in custody since the date of his formal arrest and the total incarceration period turns out to be few days less than 15 years. He shall be released forthwith, if not required in any other case. 12. The release order in this regard be sent immediately to the concerned authority(s). 13. The Trial Court be also intimated of the outcome of the instant appeal.