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2016 DIGILAW 124 (JHR)

Jogendra Sigh v. State of Jharkhand

2016-01-18

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
Order : Heard the parties. 2. This criminal appeal has been directed against the Judgment of conviction and sentence dated 22.02.2007, passed by Additional Sessions Judge, F.T.C. - VI, Dhanbad in Sessions Trial No. 126 of 2000/ 60 of 2006 corresponding to Dhanbad Nirsa P.S. Case No. 166/ 1999 [G.R No 2659/1999] whereby the appellant has been held guilty for the offence punishable under Sections 302, 392 and 411 of the Indian Penal Code and sentenced to undergo R.I. for life and to pay fine of Rs.1,000/- under Section 302 of the Indian Penal Code, in default of making payment of fine, he will suffer R.I. for three months more; R.I. for five years under section 392 of the Indian Penal Code. However, in the facts and circumstances, the learned Additional Sessions Judge did not pass separate sentence under Section 411 of the Indian Penal Code. Initially charges were framed against the appellant and Ranjit Singh under Section 302/ 34 and 392/ 34 of the Indian Penal Code but the learned Additional Sessions Judge has been pleased to acquit Ranjit Singh from all the charges framed against him. 3. The prosecution case, as it appears from the fardbayan of Paresh Nath Ghati (P.W.-6) recorded on 23.08.1999 at 19:30 hrs. at the village road falling between Salgariya and Bathnadih in brief is that the deceased was returning home after attending his duty but he was intercepted by three miscreants who were trying to snatch away his motorcycle. Baijnath Ghati (deceased) made strong protest and he was not willing to release the motorcycle. In the mean time one of the accused opened fire from his pistol causing injury to Baijnath Ghati as a result he died. The miscreants fled away with the motorcycle and wrist watch of the deceased. On the basis of fardbayan of Paresh Nath Ghati, Dhanbad Nirsa P.S. Case No. 166/1999, dated 23.08.1999, under Sections 392, 302 of the Indian Penal Code against unknown miscreants was registered. During investigation the appellant with his associate Ranjit Singh was apprehended, they confessed their guilt on the basis of which looted wrist watch of the deceased was recovered from house of the appellant. The Police after due investigation submitted chargesheet against the appellant and accused Ranjit. During investigation the appellant with his associate Ranjit Singh was apprehended, they confessed their guilt on the basis of which looted wrist watch of the deceased was recovered from house of the appellant. The Police after due investigation submitted chargesheet against the appellant and accused Ranjit. Since the offence under Section 302 IPC is triable by Court of Sessions, the case was committed to the Court of Sessions and registered as Sessions Trial No. 126/2000. The charges under Section 302/ 34, 392 IPC were framed against the appellant and Ranjit Singh whereas separate charges under section 411 IPC against the appellant was framed. Since they did not plead guilty, they were put on trial. The prosecution, in order to substantiate the charges, examined altogether 8 witnesses and the learned Additional Sessions Judge, at the conclusion of the trial held the appellant guilty for the offence punishable under Sections 392, 302 and 411 of the Indian Penal Code and sentenced him accordingly. Ranjit Singh was not found guilty for any of the offences for which he was charged and he stood acquitted. 4. The appellant has assailed the impugned Judgment mainly on the ground that the finding of the learned Additional Sessions Judge is based on extra judicial confession of the appellant. Admittedly there is no eye witness to the occurrence and material witnesses are relatives of the deceased who had visited the place of occurrence after receiving the news of robbery and murder. Parimal Tiwari (P.W.-3), Ashok Kumar Ghati (P.W.-4), Tara Pado Sadhu (P.W.-5) have turned hostile and have not supported the prosecution case. Sushil Kumar Ghati (P.W.-2), Paresh Nath Ghati (P.W.-6), Sadhan Chand Ghati (P.W.-7) are the close relatives of the deceased. P.W.-6 who happens to be brother of the deceased is the informant. 5. Learned counsel has further raised a point that looted motorcycle was recovered while it was lying abandon. The appellant has been held guilty for the offence of robbery and murder only on the basis of recovery of a wrist watch and according to the prosecution witness, it was recovered on the basis of confession made by the appellant before the Police. It is pointed out that confession before Police is no confession. The appellant has been held guilty for the offence of robbery and murder only on the basis of recovery of a wrist watch and according to the prosecution witness, it was recovered on the basis of confession made by the appellant before the Police. It is pointed out that confession before Police is no confession. Furthermore, Krishnandan (P.W.-8) happens to be Investigating Officer but he admits in his deposition that he did not recover wrist watch from house of the appellant rather it was another Police Officer who had gone to the house of the appellant and he had recovered the wrist watch and prepared the seizure list. The said Police Officer namely Kamleshwar Pandey did not appear to prove the recovery of wrist watch allegedly recovered on the basis of confession. The learned Additional Sessions Judge has committed gross error by placing reliance on the confession made before Police for holding the appellant guilty for the offence under Section 302 and 392 of the Indian Penal Code. 6. Learned APP has opposed the arguments and submitted that confession leading to discovery is admissible under Section 27 of the Evidence Act. Just three days after the incidence the appellant along with his associates were apprehended and he confessed his guilt before the Police in presence of witnesses. The confessional statement given by the appellant has properly been proved. The seizure list against recovery of wrist watch has also been proved and the seized articles were identified by witnesses in Test Identification Parade. 7. We have considered the rival submission, perused the lower court record, impugned Judgment, evidence and documents available on record. Admittedly, there is no eye witness to the occurrence. No witness has come forward to depose that he had seen the occurrence and identified the appellant. According to P.W.-8, on the basis of secret information, the appellant and his associates were apprehended. On the basis of confession made by the appellant, looted wrist watch was recovered from his house. Even accepting the confession leading to discovery of looted articles, that will not be sufficient to hold the appellant guilty for the offence of robbery and murder. It has come in the evidence that the miscreants were seen fleeing from the place of occurrence on a red colour motorcycle allegedly looted one. But no such witness was searched out by the Investigating Officer during investigation. It has come in the evidence that the miscreants were seen fleeing from the place of occurrence on a red colour motorcycle allegedly looted one. But no such witness was searched out by the Investigating Officer during investigation. To prove the factum of occurrence, the prosecution did not examine a single witness. The statement of witnesses are either hearsay about the occurrence or the statement available on record relates to recovery of a wrist watch. We do not find sufficient and cogent material to hold the appellant guilty for the offence of robbery and murder. The evidence pointing towards guilt of the appellant for the offence punishable under Section 392 and 302 of IPC are lacking. The trial court has disbelieved the charge under Section 302/ 34 of the IPC and acquitted one of the accused Ranjit Singh. Needless to mention no charge simplicitor under Section 302 IPC has been framed. Needless to mention no direct evidence on the point of robbery or murder is available on record. The trial court has relied on the confession of the appellant made before the Police for holding him guilty for the offence of robbery and murder. We are not inclined to uphold the finding which is based on confession made before Police. 8. In the result, the impugned judgment of conviction and sentence dated 22.02.2007 passed by the Additional Sessions Judge, F.T.C. No. VI, Dhanbad in Sessions Trial No. 126 of 2000/ 60 of 2006 for the offence under Section 302/ 392 of the Indian Penal Code is hereby set aside. So far offence punishable under Section 411 of the Indian Penal Code is concerned, the appellant has been held guilty but no separate sentence has been inflicted. The recovery of looted wrist watch also appears to be doubtful when the Police Officer in whose presence it was recovered did not come forward. The admitted evidence available on record is that the Investigating Officer had not accompanied said Police Officer Kamleshwar Pandey at the time of recovery of aforesaid wrist watch. In the result, the appellant is entitled for benefits of doubt on this count and, accordingly, conviction of the appellant under Section 411 of the Indian Penal Code is also set aside. 9. In the result, the appellant is entitled for benefits of doubt on this count and, accordingly, conviction of the appellant under Section 411 of the Indian Penal Code is also set aside. 9. Since the impugned Judgment of conviction and sentence stood set aside, the appellant is directed to be released forthwith if not wanted in any other case and for that the convicting/ successor court shall issue appropriate direction, if needed.