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Jharkhand High Court · body

2016 DIGILAW 357 (JHR)

Roshan Lakra v. State of Jharkhand

2016-02-19

RATNAKER BHENGRA

body2016
ORDER : RATNAKER BHENGRA, J. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 26.08.2002 and 27.8.2002 respectively passed by Shri J.K.N. Tiwary, Additional Judicial Commissioner, Ranchi in S.T. No. 268 of 2000 whereby and whereunder appellant had been sentenced to undergo R.I. for seven years under Section 395 of the Indian Penal Code. 2. The prosecution story in brief is that one Aswini Kumar Singh S/o Bhairo Singh, Village Majirwa P.S.-Chorasahan, Dist.-East Champaran at present residing at Tipudana Ancilliary area of P.S.-Hatia, Dist.-Ranchi stated to the police in his fardbayan dt. 17.11.99 that at about 6:30 p.m. on the same day, he along with his mother was in the house. His mother was cooking food and he was shifting rice grains. Meanwhile, about 8 to 10 boys suddenly pushed his outer gate and entered inside the house. They all were holding pistol and chura etc. Some of them had covered their faces. After their entry inside the house, they pointed chura and pistol at the informant and his mother and demanded money. After a short while, they started assaulting them on their heads with butts of their pistol. This caused injury and bleeding started from their heads. The miscreants assaulted him and his mother. They were 5 or 6 in number. Further case is that in course of assaulting the informant and his mother a muffler covering the face of one miscreant was untied and fell on the ground. Thus, the face of miscreant became open. So the informant identified him in the light of electric bulb. He was Roshan Lakra, resident of Ghasi Mohalla, Chandni Chowk, Hatia. The informant further stated that this miscreant was serving as driver of his Maruti Van about 6 months ago. Thereafter, 5 or 6 miscreants started collecting house hold goods, opening the Godrej almira by its key and searching jewellary and golden watch. They also damaged T.V. boxes and other materials and looted cash money, cloths, jewellary, utensils etc. The informant has given details of looted articles in the fardbyan. Thereafter, he has also given the physical features of the 5 or 6 miscreants taking part in looting the articles. He has also stated that about 3 or 4 miscreants were staying at the outer gate of the house in course of commission of dacoity. The informant has given details of looted articles in the fardbyan. Thereafter, he has also given the physical features of the 5 or 6 miscreants taking part in looting the articles. He has also stated that about 3 or 4 miscreants were staying at the outer gate of the house in course of commission of dacoity. He has also given description of the dresses of the miscreants and their other features such as language spoken etc. and he has claimed that he and his mother would identify them if they would have a chance to see them because they have seen the miscreants in the electric light. Lastly, he stated that at about 7:30 p.m. his father came to the house, opened the door and then he was told about the entire occurrence by them. Thereafter, the informant gave fardbeyan to police at his residence and on this report police came in action and started investigation. On completion thereof, charge sheet against the accused person was submitted and accordingly cognizance of the case was taken. 3. In order to prove the charges levelled against the accused person the prosecution has examined two witnesses i.e. P.W.1 Bhairo Singh and P.W. 2 Ashwini Kumar Singh. PW2 is the significant eye witness. PW2 in his deposition has sort of summarized his fardbayan in his opening paragraphs. He has again recognized Roshan Lakra and said he is in Court. In para 5 he has said that he had gone to Ranchi jail and there he had recognized Deo Kumar Mahato. He was involved in the crime. He has recognized him in Court. In Para 6 he says that some of the looted items were returned via police. In para 10 of the deposition , and this has also come in the lower Court judgment that Deo Kumar Mahto was serving in the Premier Ancillary Factory, Tipudana and this witness was running a poultry farm in the premises of this company. This Premier Ancilliary factory is 20 to 22 feet away from the house of the witness. 4. As submitted by learned counsel for the appellant P.W.2 Ashwini Kumar Singh had deposed that 8-10 persons entered in his house and pistol was shown. They said-Tell us where the goods are and on not showing them they started assaulting us. During the incident, he was shifting grains and light was burning. 4. As submitted by learned counsel for the appellant P.W.2 Ashwini Kumar Singh had deposed that 8-10 persons entered in his house and pistol was shown. They said-Tell us where the goods are and on not showing them they started assaulting us. During the incident, he was shifting grains and light was burning. The intruders broke the T.V. and looted Rs. 23,000/-. During the incident he recognized Roshan Lakra. He got his wounds treated, and recognized Roshan Lakra in dock and had gone to jail where he recognized Deo Kumar. He further deposed that he got some looted goods from the police. It has been submitted that as per the fardbeyan bleeding injury was caused but there is no injury report to substantiate the same. 5. The learned counsel for the appellant further submitted that there were eight charged witnesses, but only two have been examined or prosecution withheld six witnesses. Hence, only two witnesses examined were the son and father and, therefore, no independent witness. Hence, in the absence of independent witnesses the case against the accused is considerably weakened or not proved against him. Moreover, P.W. 1 Bhairo Singh, who is the father of the informant, is not an eyewitness, hence not believable. He has merely supported his son. Hence, the case rests only on PW2 Ashwani Kumar Singh the informant. PW 2 has claimed to have been hit/ assaulted by gun butt and even blood was oozing but, there is no injury or injury report. So his fardbayan/evidence is not believable on this count. Learned counsel also submitted that his identification during the alleged commission of the crime is doubtful and not because a muffler fell of, rather he identified him because he was his driver. He submitted that because the accused used to work with him as driver, he has been named. 6. Learned counsel for the petitioner also submitted that as per paragraph no. 5 of the deposition of P.W.2 he said that he went to the jail and recognized/identified another co-accused i.e. Deo Kumar Mahato. Now this Deo Kuarm Mahato was acquitted so why not this accused is also similarly acquitted. Learned counsel for the petitioner has also cast certain doubts about the deposition of PW2. Hence, the statement of PW2 is not credible. 7. Now this Deo Kuarm Mahato was acquitted so why not this accused is also similarly acquitted. Learned counsel for the petitioner has also cast certain doubts about the deposition of PW2. Hence, the statement of PW2 is not credible. 7. Further PW2 is the sole person identifying the accused in place of occurrence as well as in the court, and the accused cannot be considered on the testimony of the sole doubtful witness. He has also submitted that there is no injury report, though he claims bleeding was there. Learned counsel for the appellant has also submitted that the investigating officer (IO) has not been examined hence, prejudicing the case against accused person. Further no T.I.P. was conducted by any Magistrate or officer, so identification of accused is doubtful. 8. Learned counsel for the appellant has submitted that neither the seizure list has been proved and neither have the seizure witness been examined. No Magistrate has been examined regarding the conducting of any TIP in this regard. The seized articles did not appear to be in the custody of the Court. In fact, it is admittedly by the informant that he received some looted articles from the police. 9. Learned A.P.P. on the other hand asserts that the accused was active participant in the crime. He has submitted that even though there were around 8-10 persons, there was some scuffle and the accused person's muffler fell from his face, and since he used to work for the informant as driver, the informant recognized him. At this the accused person told him not to look at him otherwise he will be killed. That the group of persons were also speaking in local language, and my mother and I had seen the incident, so we can identify Roshan Lohra and Deo Kumar. The learned A.P.P. also submitted that as per the deposition of PW2, some of the looted items were recovered by police, hence, this would be corroborative evidence. FINDINGS : 10. This is a case of a single witness, the informant, Ashwini Kumar. There is many factors in this case that makes the case of the prosecution weak. First, it is a case of a single eye witness, who due to certain conduct does not seem to be wholly reliable. This single witness whose credibility is coloured, combined with other short coming considerably weakens the case of the prosecution. There is many factors in this case that makes the case of the prosecution weak. First, it is a case of a single eye witness, who due to certain conduct does not seem to be wholly reliable. This single witness whose credibility is coloured, combined with other short coming considerably weakens the case of the prosecution. These other factors, which will be further explained are, the non examination of another important eye witness, the mother, non-examination of the seizure witnesses and non-examination of the I.O. Further no pistol/pistols have been recovered, no injury report it seems even produced or the report of the doctor who even examined him and seized goods not produced and proved in Court. 11. Single witness Ashwini Kumar PW2 has in his deposition said that he went to jail and recognized /identified another co-accused i.e. Deo Kumar Mahato. Now the issue is that in his fardbayan he has said that some of the persons had their faces covered while other obviously did not. He says in the fardbayan, he only recognized Roshan Lakra whose muffler fell down. However, it has come in the PW2 evidence and judgment of the Trial Court that Deo Kumar Mahato used to work in the Premier Ancillary Factory, where PW2 had his poultry farm. Moreover, PW2 had his house just 20-22 feet away from this factory. So, he must have been known or at least very familiar to the informant. The conclusion then is if Deo Kumar Mahato's face was covered during the crime, he may or would not have been able to recognize him. If he was known or familiar to him then why did he not name him in the fardbayan. Then much later on in the TIP about 9 months later on, he identified him. How? Or even why? So there is some doubt created about the credibility of this witness. Another irregularity is that this witness, according to information that has come in the judgment of the trial court is that he had taken some looted articles previously seized by the Police back with him, without any court order. So there is some misconduct on the part of this witness. 12. The informant has stated in his fardbayan that his mother too would be able to identify the miscreants because they have seen them by electric light. So there is some misconduct on the part of this witness. 12. The informant has stated in his fardbayan that his mother too would be able to identify the miscreants because they have seen them by electric light. The non-examination of the mother, is a lapse, where there is some doubts about the veracity and conduct of PW2. Her examination would have been crucial in cementing the identity or identification of Roshan Lakra and the other person, Deo Kumar Mahato who the informant had identified in the TIP. If two persons were identified, why were not the names of the others alleged involved elucidated from them. 13. In the fardbayan, the informant has stated that the mother and son were assaulted on their heads with butts of the pistol. So that they started bleeding. No injury report produced or any doctor examined. Though, it has come on record that he got his wound treated. No pistols have been recovered. 14. No stolen or robbed goods or items have been produced. Though, in the judgment of the lower court it has come that the informant had taken some items back from the police. Now assuming because of this information, there was seizure then why were not the seizure witnesses produced in court and examined. They would have proved the seizure, and the recovery of the items would have gone towards corroborating what was said in the fardbayan. Taking back allegedly looted items from the Police without court order may amount to destruction of evidence. Because of the way the seizure was returned, the examination of the I.O. becomes necessary. Thus the I.O. who could have also proved the seizure, along with the other independent seizure witnesses. So because of the non-production of the seizure list, and not being able to prove it, makes the non examination of the I.O. crucial. Therefore, for all the aforesaid circumstances and reasons in my findings, there seems to be a lot of lacunae and hence, doubt regarding the single witness, and hence, the benefit of doubt is extended to him, and this court holds the appellant not guilty of the offence under Section 395 IPC. If he is in jail, he will henceforth be released from jail. However, if he is already on bail, he is thus discharged from the responsibility of his bail bond. Accordingly the appeal is allowed and disposed of.