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2016 DIGILAW 125 (JHR)

Krishna Dev Singh v. State of Jharkhand

2016-01-18

D.N.UPADHYAY, RATNAKER BHENGRA

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JUDGMENT : This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 21st June, 2004 and 23rd June, 2004 respectively, passed by the Additional Sessions Judge, Fast Track Court, Sahibganj in connection with Sessions Trial Case no. 220 of 2000 arising out of Sahibganj P.S. Case no. 65 of 1998, whereby appellants have been held guilty for the offence punishable under sections 302/34 of the Indian Penal Code and 27 Arms Act and sentenced to undergo rigorous imprisonment for life u/s 302/34 I.P.C and further sentenced to undergo rigorous imprisonment for three years u/s 27 Arms Act. 2. The prosecution case as it appears from the fardbeyan of Kailash Yadav (PW-7) recorded on 17.5.1998 at about 22:30 hrs. at Talbana Pakki road near Rai Bahadoor Bagicha within P.S. Sahibganj (Sadar) in brief, is that, on 17.5.1998 while the informant with his nephew Jitendra Yadav was present at Durga Sthan Talbana, heard sound of firing and they proceeded towards that direction. On the way they saw the appellants having fire arms in their hands coming from the place of occurrence. The informant and his nephew then proceeded ahead and they met with a person coming on a bicycle who told them that a person has been shot at and he is lying injured. Thereafter, the informant with his associate Jitendra rushed to the place of occurrence and found Manoj Kumar Yadav lying dead having gun shot injury. The matter was reported to the police. Fard-beyan of informant was recorded and Sahibganj P.S. Case no. 65 of 1998 dated 18.5.1998 U/s 302/34 I.P.C. and 27 Arms Act against the appellants and other accused persons was registered. The investigating officer after due investigating submitted charge sheet, accordingly, cognizance was taken and case was committed to the Court of Sessions and registered as Sessions Trial No. 220 of 2000. 3. The charges under section 302/149,148 Indian Penal Code and 27 Arms Act were framed against all the named accused including the appellants. The prosecution in order to substantiate the charges has examined altogether eleven witnesses out of whom PW-2, PW-10 and PW-11 have turned hostile. The learned Additional Sessions Judge placed reliance on the statements of material witnesses and held the appellants and Brahmdeo Singh guilty under section 302/34 of the Indian Penal Code and 27 of the Arms Act. The prosecution in order to substantiate the charges has examined altogether eleven witnesses out of whom PW-2, PW-10 and PW-11 have turned hostile. The learned Additional Sessions Judge placed reliance on the statements of material witnesses and held the appellants and Brahmdeo Singh guilty under section 302/34 of the Indian Penal Code and 27 of the Arms Act. Whereas Ramdhyan Singh has not been found guilty for any of the offence for which he has been charged and he stood acquitted. 4. Besides present appeal Criminal Appeal no. 1622 of 2004 was preferred by co-convict Brahmdeo Singh but in course of trial he died as a result of which Criminal Appeal No. 1622 of 2004 stood abated vide order dated 14.7.2006. 5. The appellants assailed the impugned judgment of conviction and order of sentence mainly on the ground that no witness had seen the assault, previous enmity is admitted in the fard-beyan itself, the prosecution witnesses are related and highly interested to secure conviction against the appellants and have exaggerated their statements before Court. The informant Kailash Yadav PW-7 had disclosed in his fard-beyan that he reached to the place of occurrence and found Manoj Kumar Yadav lying dead having gun shot injury on his person. In his statement U/s 161 Cr.P.C. also he did not say that the deceased before his death had uttered names of the assailants. This exaggeration made by the informant and other witnesses have been referred to the investigating officer (PW-9) and he has fairly conceded that no such statement was given by PW-7 either at the time of recording of fard beyan or at the time of recording of his subsequent statement u/s 161 of the Cr.P.C. To support contention of PW-7, other related witnesses have gone to the extent of saying, when they reached to the place of occurrence they found Manoj Kumar Yadav lying dead, Kailash Yadav and Jitendra Yadav were present and Kailash Yadav told them about the disclosure made by the deceased before him. This exaggeration made by those related witnesses have also been referred to the investigating officer and he has clearly stated that no such statement by those witnesses was ever given before him. This exaggeration made by those related witnesses have also been referred to the investigating officer and he has clearly stated that no such statement by those witnesses was ever given before him. Learned counsel has given stress on the point that seizure witnesses have tried to make out a case of oral dying declaration allegedly given by the deceased prior to his death but the facts remain it was an exaggeration and that cannot be relied upon. Furthermore, it is contended that the informant and PW-1 had no occasion to remain present at Durga Sthan. In order to make out a case that they had seen the appellants and other accused persons fleeing from place of occurrence they have tried to prove their presence. Last but not the least, it is submitted that the accused persons were seen fleeing from the place of occurrence is not sufficient to uphold the judgment of conviction. 6. Learned Addl. P. P. vehemently opposed the arguments and submitted that the appellants with their associates were seen fleeing from the place of occurrence and they were having fire arms in their possession. The informant and PW-1 immediately reached to the place where injured Manoj Kumar Yadav was lying. The occurrence alleged to have taken place at about 21:45 hrs and the fard-beyan was recorded on 22:30 hrs. The happening of the occurrence and recording of fard-beyan are in quick succession leaving any hypothesis of false implication or exaggeration. The material witnesses i.e. PW- 1,4 and 7 have fully supported the prosecution case. The ocular description of the incident given by the witnesses find support from the post-mortem report proved by Dr. M.A.Malick, PW-8. The investigating officer has proved fardbeyan, formal FIR, inquest report, seizure list and other related documents. He has further supported the investigation done by him and, therefore, the prosecution case stands intact and the learned Sessions Judge has rightly held the appellants guilty for the offence alleged. 7. We have carefully read the evidence available on record and further examined the impugned judgment of conviction and sentence. The prosecution case is mainly moving around evidence of PW-1 and PW-7. The informant PW-7 did not disclose in his fard-beyan that deceased Manoj Kumar Yadav had disclosed names of the assailants and the manner of the occurrence before his death. We have carefully read the evidence available on record and further examined the impugned judgment of conviction and sentence. The prosecution case is mainly moving around evidence of PW-1 and PW-7. The informant PW-7 did not disclose in his fard-beyan that deceased Manoj Kumar Yadav had disclosed names of the assailants and the manner of the occurrence before his death. It is admitted situation available on record that the informant had not given such statement either in the fard-beyan or in his statement recorded U/s 161 Cr.P.C. It also transpires that remaining witnesses i.e. PW-1, PW-3 and PW-4 to support the exaggeration made by informant have said that the names of the assailants which was disclosed by deceased to informant was explained to them by informant PW-7. Again we have considered the statements of investigating officer in which he has said that aforesaid witnesses have not stated such fact in their statements u/s 161 Cr.P.C. The exaggeration made by witnesses is now apparent, the enmity is also admitted in the fard-beyan and also by witnesses in their deposition in the court. The consistent statements of PW-1 and PW-7 which is available on record is that after hearing sound of firing they moved towards that direction, on the way they had seen the appellants and their associates coming from the side where deceased was lying dead. In such situation altercation between the two rival groups was expected but it did not take place and that does not appear to be natural conduct of human being. Furthermore, placing reliance for holding the accused guilty for the offence punishable under section 302 I.P.C. merely on such weak piece of evidence that the accused persons were seen fleeing from the place of occurrence shall not be proper and cogent. This might be a strong circumstance against the appellants but on that score alone conviction and sentence passed in a case of murder can not be upheld. 8. In the result, we find merit in this appeal and we feel inclined to set-aside the judgment of conviction and order of sentence dated 21st June, 2004 and 23rd June, 2004 respectively, passed by the Additional Sessions Judge, Fast Track Court, Sahibganj in connection with Sessions Trial Case no. 220 of 2000 arising out of Sahibganj P.S. Case no. 65 of 1998 stands set-aside and accordingly appeal is allowed. 220 of 2000 arising out of Sahibganj P.S. Case no. 65 of 1998 stands set-aside and accordingly appeal is allowed. The appellants are directed to be released forthwith if not wanted in any other case and for that convicting/successor court shall issue appropriate direction, if necessary.