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2017 DIGILAW 1422 (JHR)

Raju Saw @ Raju Sahu v. State of Jharkhand

2017-08-10

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT : 1. All these four appeals arise out of the same impugned Judgment and as such, they have been heard together and are being disposed of by this common Judgment. 2. Heard learned counsels for the appellants and learned counsel for the State in the respective appeals. 3. The appellants are aggrieved by the Judgment of conviction dated 9th January 2013 and Order of sentence dated 16th January 2013, passed by the learned Additional Sessions Judge, Simdega, in Sessions Trial No. 20 of 2011, whereby the appellants have been found guilty and convicted for the offences under Sections 395, 397 of the Indian Penal Code and Section 25(1-B)(a) of the Arms Act. Upon hearing on the point of sentence, each of the appellants have been sentenced to undergo rigorous imprisonment for 10 years and fine of Rs. 10,000/- for the offence under Section 395 of the Indian Penal Code, rigorous imprisonment for 7 years for the offence under Section 397 of the Indian Penal Code and rigorous imprisonment for 2 years and also fine of Rs. 2,000/- for the offence under Section 25(1-B)(a) of the Arms Act and all the sentences were directed to run concurrently. 4. According to the prosecution case, a dacoity was committed in the house of the informant Dinesh Ohadar on 05.09.2010, in which cash and ornaments were taken away by the culprits. Culprits also kidnapped the minor son of the informant for demand of ransom of Rs. 6,00,000/- and they took him on the motorcycle of the informant. The fardbeyan to the aforesaid effect was given by the informant, on the basis of which Simdega P.S. Case No. 97 of 2010 was instituted for the offence under Sections 395, 397 and 364-A of the Indian Penal Code against 7-8 unknown persons and investigation was taken up. During investigation, there were some recovery of looted articles, including the motorcycle and Section 412 of the Indian Penal Code and Section 25(1-B)(a), 26, and 35 of the Arms Act were also added. After investigation, the police submitted charge-sheet against the 5 accused persons, who are appellants before us. 5. During investigation, there were some recovery of looted articles, including the motorcycle and Section 412 of the Indian Penal Code and Section 25(1-B)(a), 26, and 35 of the Arms Act were also added. After investigation, the police submitted charge-sheet against the 5 accused persons, who are appellants before us. 5. After commitment of the case to the Court of Session, charge was framed against the accused-appellants for the offences under Sections 395, 397 and 364-A of the Indian Penal Code and Section 25(1-B)(a) of the Arms Act, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. It may be stated that the appellants were not charged and tried for the offence under Section 412 of the Indian Penal Code. Though the appellants were charged and tried for the offence under Section 364-A of the Indian Penal Code, but they have been acquitted of the said charge. 6. Though in course of trial, the prosecution has examined 12 witnesses in the case, but, since the appellants have been convicted and sentenced, mainly for the offences under Sections 395 and 397 of the Indian Penal Code, the evidences of the inmates of the house are the important pieces of evidence in the case. 7. PW-1 Sunita Ohadar is the wife of the informant, PW-2 Dinesh Ohadar is the informant himself and PW-5 Sudeep Kumar, is the minor son of the informant, who was also kidnapped, and they are the only inmates of the house and the victims, who have been examined by the prosecution in the Trial Court. Though according to the FIR, one more family member was present at the time of the occurrence, but, he has not been examined in the case. The evidence of these prosecution witnesses clearly show that though they have supported the case of dacoity in their house and kidnapping of PW-5 Sudeep Kumar in the occurrence, but, they have not identified any of the accused appellants in the Court. In that view of the matter, we are of the considered view that the conviction and sentence of the appellants for the offence under Sections 395 and 397 of the Indian Penal Code cannot be sustained in the eyes of law. 8. In that view of the matter, we are of the considered view that the conviction and sentence of the appellants for the offence under Sections 395 and 397 of the Indian Penal Code cannot be sustained in the eyes of law. 8. So far the conviction of the appellants for the offence under Section 25(1-B)(a) of the Arms Act, is concerned, the evidence of the I.O., PW-7 Parmeshwar Prasad shows that the fire arm and ammunition were recovered only from the possession of the accused Raju Saw @ Raju Sahu and no other accused. No other witness has been examined by the prosecution to support the case of the recovery of the fire arm and ammunition from this accused. PW-3 Vijay Kharia and PW-4 Ashok Soren are the two seizure list witnesses of this seizure, but PW-3 Vijay Kharia has stated that nothing was recovered in his presence, whereas PW-4 Ashok Soren has stated that his signature was obtained on a plain paper. Even the suggestion was not given to these witnesses by the prosecution that fire arm and ammunition were recovered in their presence. The statement of this accused Raju Saw @ Raju Sahu recorded under Section 313 of the Cr.P.C. shows that nothing was asked from him regarding the possession of, or carrying the fire arm or ammunition, in contravention of Section 3 of the Arms Act, by him. As such, even the conviction of the appellants for the offence under Section 25(1-B)(a) of the Arms Act cannot be sustained in the eyes of law. 9. We are of the considered view that on the basis of the materials on record, it was a clean case of acquittal of the accused appellants. As such the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law. 10. Accordingly, the impugned Judgment of conviction dated 9th January 2013 and Order of sentence dated 16th January 2013, passed by the learned Additional Sessions Judge, Simdega, in Sessions Trial No. 20 of 2011, are hereby, set aside. All the appellants, namely, Raju Saw @ Raju Sahu [appellant in Cr. Appeal (DB) No. 94 of 2013], Trinath Nayak [appellant in Cr. Appeal (DB) No. 161 of 2013], Jaleshwar Nayak @ Chhanda [appellant in Cr. Appeal (DB) No. 175 of 2013], Diwas Singh and Sanjay Pradhan @ Khan [appellants in Cr. All the appellants, namely, Raju Saw @ Raju Sahu [appellant in Cr. Appeal (DB) No. 94 of 2013], Trinath Nayak [appellant in Cr. Appeal (DB) No. 161 of 2013], Jaleshwar Nayak @ Chhanda [appellant in Cr. Appeal (DB) No. 175 of 2013], Diwas Singh and Sanjay Pradhan @ Khan [appellants in Cr. Appeal (DB) No. 193 of 2013], are found not guilty and are acquitted of the charges. The appellant Raju Saw @ Raju Sahu is in custody. Let him be released and set at liberty forthwith, if his detention is not warranted in any other case. All the other four appellants named above, are on bail and they are discharged of the liabilities of their respective bail bonds. 11. All these four appeals, are accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith along with a copy of this Judgment.