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2017 DIGILAW 1653 (JHR)

Shiv Nandan Sahu v. The State Of Jharkhand

2017-09-13

ANANDA SEN, H.C.MISHRA

body2017
JUDGMENT 1. All these appeals arise out of the same impugned Judgment and Order, 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 counsels for the State in all these appeals. 3. The appellants are aggrieved by the Judgment of conviction dated 24.01.2009 and Order of sentence dated 29.01.2009, passed by the learned 1st Additional Sessions Judge, Lohardaga, in S.T No. 59 of 2006, whereby, the appellants have been found guilty and convicted for the offences under Sections 302/34 of the Indian Penal Code and section 27 of the Arms Act. Upon hearing on the point of sentence, the appellants have been sentenced to undergo R.I. for life and fine of Rs. 2,000/- for the offence under Sections 302/34 of the Indian Penal Code, and R.I. for five years with fine of Rs. 1000/- for the offence under section 27 of the Arms Act, and both the sentences were directed to run concurrently. 4. The prosecution case was instituted on the basis of the fardbeyan of Manmohan Sah, the father of the deceased Gunnidhi Sah, recorded on 25.10.2004 at about 5:30 P.M at Jhiko Chatti Bazar. It is stated in the fardbeyan that there was a Mela on that day and the informant had gone along with his son on the scooter, in the Mela. It is alleged that four accused persons namely, Shivnandan Sahu, Ram Bharat Sai, Kanchan Singh and Dhepa Singh, who were armed with pistols surrounded the son of the informant and Shivnandan Sahu assaulted his son by firearm on his head, due to which, he died at the spot, and the accused persons fled away. It is alleged in the fardbeyan that the occurrence had taken place due to previous enmity. On the basis of the fardbeyan of the informant, Bhandra P.S Case No. 38 of 2004, corresponding to G.R No. 397 of 2004 was instituted for the offences under Sections 302/34 of the Indian Penal Code and section 27 of the Arms Act, against the accused persons and the investigation was taken up. It appears that after investigation, the police submitted the charge-sheet against three accused appellants, who had faced the trial. 5. It appears that after investigation, the police submitted the charge-sheet against three accused appellants, who had faced the trial. 5. After commitment of the case to the Court of Session, charge was framed against all the three accused for the offences under Sections 302/34 of the Indian Penal Code and section 27 of the Arms Act, and upon the accused persons'' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, 11 witnesses have been examined on behalf of the prosecution, out of whom, P.W.-1 Bandhan Lohra, P.W.-5 Mritunjay Tiwari, P.W.-6 Chedi Singh and P.W.-7 Dasrath Mahto have turned hostile and have not supported the prosecution case. 6. P.W.-2 Manmohan Sah is the informant of the case and the father of the deceased. He has stated that on 25.10.2004, he had visited Mela along with his son and they purchased some articles there. While they were boarding the scooter, Shivnandan Sahu, Ram Bharat Sai, Dhepa Singh and Ranjan Singh (sic-should be Kanchan Singh) surrounded his son and Shivnandan Sahu assaulted his son by firearm, causing his death at the spot. Thereafter, the accused persons fled away. This witness has stated that now due to loss in his sight, he cannot identify the accused persons. In his cross examination, he has stated that few days prior to his examination, he lost the sight of his eyes. In his cross examination, this witness has also stated that his another son, Ramadhar Sah lives at Ranchi, who was informed about the occurrence on the next day. 7. P.W.-10 Ramadhar Sah is the other son of the informant and this witness has tried to support the case as an eyewitness to the occurrence. He has stated that he had also gone to the market at the time of occurrence where he saw that Ram Bharat Sai, Shivnandan Sahu, Kanchan Singh and Dhepa Singh stopped the scooter of his brother and Shivnandan Sahu assaulted his brother by firearm and when this witness raised the alarm, they fled away. His brother died at the spot. He has identified the accused persons in the Court. In his cross examination, this witness has stated that he lives in Ranchi. After his father and brother had gone to the market, he had also followed them. His brother died at the spot. He has identified the accused persons in the Court. In his cross examination, this witness has stated that he lives in Ranchi. After his father and brother had gone to the market, he had also followed them. In his cross examination, this witness has also stated that his deceased brother had been jailed, being involved in an occurrence by the extremists. 8. P.W.-3 Nand Kumar Sahu and P.W.-4 Ramdhiran Sah are the witnesses to the inquest report of the dead body and they have proved their signatures on the inquest report, which were marked as Exhibits 1 & 1/1. They have stated that they heard that the deceased was murdered by Shivnandan Sahu. 9. P.W.-8 Vidyawati Ohdar was the Officer In-charge of the Police Station, who had only submitted the charge-sheet in the case. 10. P.W.-9 Maheshwar Prasad Ranjan is the I.O of the case. He has stated that on 25.10.2004, there was a Mela in Jhiko Chatti, and he was deputed in the Mela. At about 17:15 hours, he got the information that one person was murdered, whereupon, he went to the place of occurrence and saw the deceased. He recorded the fardbeyan of the father of the deceased, which he has proved and was marked Exhibit-2. He has stated that he recorded the statements of the witnesses and he has also given the description of the place of occurrence, which is a metalled road, but in bad shape. Near the dead body, Vespa Scooter of the deceased was also lying. He had prepared the inquest report of the dead body, which he has proved and the same was marked Exhibit-3. As he was transferred, he handed over the charge of the investigation. This witness has also stated that the accused persons were chased and they were apprehended in their village, and from the possession of the accused, Shivnandan, one country-made pistol, one live cartridge and one fired cartridge were recovered, and he prepared the seizure list which he has proved as Exhibit-4. However, there is nothing in his evidence to show the deceased was killed by the said firearm. In his cross examination, this witness has also admitted that he had not sent the bloodstained soil etc., for the forensic examination. However, there is nothing in his evidence to show the deceased was killed by the said firearm. In his cross examination, this witness has also admitted that he had not sent the bloodstained soil etc., for the forensic examination. However, he has stated in his cross examination that the recovered pistol was sent for forensic examination, but there is nothing in his evidence regarding the report thereof. 11. P.W.-11 is Dr. A.K. Sinha, who has proved the post-mortem report of the deceased to be prepared by one Dr. Rajiv Ranjan, and the same was marked as Exhibit-5. He has stated that the Doctor, conducting the post-mortem examination, had opined that the death was due to shock and hemorrhage due to the injuries caused by fire-arm. 12. Though the defence is the denial of charge, but no defence evidence has been adduced. On the basis of this evidence on record, the appellants have been convicted and sentenced as aforesaid. 13. Learned counsels for the appellants have submitted that the impugned Judgment of conviction and order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, inasmuch as the prosecution has totally failed to prove the prosecution case. It is submitted that most of the material witnesses have turned hostile and the case is supported only by P.W.-2 Manmohan Sah, the informant and the father of the deceased, and P.W.-10 Ramadhar Sah, the brother of the deceased. Though P.W.-2 Manmohan Sah has supported the prosecution case, but he has not identified any accused in the Court and he has specifically stated that his other son, Ramadhar Sah was living at Ranchi, who was informed about the occurrence on the next day. P.W.-10 Ramadhar Sah has tried to support the prosecution case as an eyewitness to the occurrence, but his evidence is completely falsified by the admission of his own father, P.W.-2 Manmohan Sah, in his cross examination that this witness was not present on the date of occurrence. Learned counsels accordingly, submitted that there is no material on record to convict the appellants for the offence and the impugned Judgment of conviction and Order of sentence passed by the Court below cannot be sustained in the eyes of law. 14. Learned counsels accordingly, submitted that there is no material on record to convict the appellants for the offence and the impugned Judgment of conviction and Order of sentence passed by the Court below cannot be sustained in the eyes of law. 14. Learned counsels for the State, on the other hand, have opposed the prayer and have submitted that the prosecution case is fully supported by P.W.-2, Manmohan Sah, stating that these appellants had surrounded the deceased and the appellant, Shivnandan Sahu had assaulted him by firearm causing his death. However, only due to loss of his sight, he could not identify the accused persons. Learned counsel further submitted that the ocular evidence of this witness is corroborated by the medical evidence of P.W.-11 Dr. A.K. Sinha and the post-mortem report proved by him as Exhibit 5, in which, it was found that the death of the deceased was caused due to injuries caused by firearm. Learned counsels for the State accordingly, submitted that there is no illegality in the impugned Judgment of conviction and Order of sentence. 15. Having heard learned counsels for both the sides and upon going through the record, we find that the other independent witnesses who were present at the place of occurrence, have turned hostile. The case is supported only by P.W.-2 Manmohan Sah, but he has not identified the accused persons in the Court. He has specifically stated that his other son was at Ranchi on the date of occurrence and he was informed about the occurrence on the next day. In that view of the matter, no reliance can be placed on the evidence of P.W.-10 Ramadhar Sah, who has tried to support the prosecution case as an eyewitness to the occurrence. We also find from the record that though the appellants were apprehended on the same day and even a pistol, one live cartridge and one fired cartridge were recovered from the appellant, Shivnandan Sahu, but there is nothing on the record to show that the said firearm was used in the commission of the offence. The admission of P.W.-10 Ramadhar Sah, the own brother of the deceased, in his cross examination that the deceased had been jailed for an occurrence by the extremists, clearly shows that the deceased was also involved in the extremist activities. 16. The admission of P.W.-10 Ramadhar Sah, the own brother of the deceased, in his cross examination that the deceased had been jailed for an occurrence by the extremists, clearly shows that the deceased was also involved in the extremist activities. 16. We are of the considered view that since the accused persons have not been identified in the Court by the only eyewitness to the occurrence, i.e., P.W.-2 Manmohan Sah, the prosecution has not been able to bring home the charge against the accused beyond all reasonable doubts. Indeed, all the other independent material witnesses have turned hostile and have not supported the prosecution case. In the facts and circumstances of the case, we are of the considered view that all the accused persons were entitled at least to the benefits doubt. 17. For the foregoing discussions, the impugned Judgment of conviction dated 24.01.2009 and Order of sentence dated 29.01.2009, passed by the learned 1st Additional Sessions Judge, Lohardaga, in S.T. No. 59 of 2006, are hereby, set aside. The appellants are given the benefits of doubt and they are acquitted of the charges. The appellant Shiv Nandan Sahu is in custody, serving out the sentence. Let him be released and set at liberty forthwith, if his detention is not required in any other case. The other two appellants, Ram Bharat Sai & Kanchan Singh are on bail, and they are discharged from the liabilities of their respective bail bonds. 18. All these three appeals are accordingly, allowed. The aforesaid Interlocutory Application filed by the appellant, Shiv Nandan Sahu, also stands disposed of. Let the Lower Court Records be sent back forthwith to the Court concerned, along-with a copy of this Judgment.