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2018 DIGILAW 2141 (JHR)

Suresh Agrawal v. State Of Jharkhand

2018-09-26

KAILASH PRASAD DEO

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JUDGMENT Kailash Prasad Deo, J. - Heard learned counsel for the appellants Mr. Praveen Shankar Dayal, assisted by Mr. Munna Kumar, Advocates and Mrs. Niki Sinha, learned Additional Public Prosecutor appearing for the State. 2. The instant criminal appeal is directed against the judgment of conviction dated 23.01.2004 and order of sentence dated 24.01.2004, passed by learned Additional Sessions Judge-XIII, Dhanbad in Sessions Trial No. 503 of 1994, whereby all the four appellants have been convicted for offence committed and punishable under Sections 307/34 of the Indian Penal Code and awarded rigorous imprisonment for four years. The instant criminal appeal has been jointly filed by all the four appellants but during pendency of the appeal, appellant no.1, Suresh Agrawal died on 14.04.2012. No application for grant of leave has been filed by the legal heirs or relatives of the deceased Suresh Agrawal within 30 days of his death as contemplated under section 394 Cr.P.C. and as such, the criminal appeal preferred by Suresh Agrawal is hereby abated. Now, the present appeal is only with respect to Neeraj Kumar @ Nearaj Agrawal @ Bablu Agrawal, Anil Kumar Agrawal and Rajesh Kumar Agrawal. 3. The prosecution case is based upon fardbeyan of informant, Prakash Kumar Ritolia, P.W.-4, recorded by A.S.I. N.K. Soren of Bank More police station on 10.03.1993 at Popular Nursing Home, Cabin No.1 at about 09:30 hours, wherein the informant has alleged that on 09.03.1993 at about 08:30 P.M., he was standing near the Rajendra betel shop at Ratan jee Road and was having cold drink in his hand. In the meantime all the four named accused persons namely, Rajesh Kumar Agrawal, Anil Kumar Agrawal, one of their younger brother and Suresh Agarwal came and surrounded the informant and started assaulting him. It is further alleged by the informant that Rajesh Kumar took out a bhujali and inflicted a blow above the waist on left side of the informant, causing severe injury. The informant has further alleged that Anil Gupta and a friend of Murari Lal Agarwal, whose name is not known to the informant have also assaulted the informant by means of fist and legs and thereafter the accused persons fled away. The informant has further stated that at the time of incidence whether Murari Lal Agarwal, was present or not, he is not sure about that. The informant has further stated that at the time of incidence whether Murari Lal Agarwal, was present or not, he is not sure about that. The informant has further stated that the occurrence has been witnessed by Anoop Kumar Gupta, Kamal Kumar Harodia, Arun Kumar Ritolia and Ajay Kumar Agrawal, who will disclose about the occurrence on being asked. The informant has further stated that he became unconscious after the occurrence and he is not aware that, who has brought him to the hospital. Informant has claimed that all the accused persons have assaulted the informant with intention to kill him. 4. On the basis of fardbeyan police has instituted Dhanbad (Bank More) P.S. Case No.162 of 1993, dated 10.03.1993, under Sections 147/149/341/323/307 of the Indian Penal Code. 5. After investigation, the police has submitted charge sheet vide charge sheet no.288 of 1993, dated 15.06.1993, under Sections 148/149/341/326/307 of the Indian Penal Code against all four named accused persons. 6. The cognizance of the offence has been taken vide order dated 28.10.1993 and the case has been committed to the court of sessions vide order dated 05.07.1994. 7. The charge has been framed against all the four accused persons under Sections 307/34 of the Indian Penal Code on 23.01.1998, to which the accused persons have pleaded their innocence and thus, they were put under trial. 8. The prosecution, to prove its case, has examined altogether six witnesses. Kamal Kumar Harodia, has been examined as P.W.-1, Bijay Kumar Sharma, has been examined as P.W.-2, Arun Kumar Ritolia, has been examined as P.W.-3, Prakash Kumar Ritolia, informant and victim, has been examined as P.W.-4, Anup Kumar Agrawal, has been examined as P.W.-5 and Dr. Manjeet Singh, the Medical Officer, who has examined the victim, has been examined as P.W.-6. Signature of informant on the fardbeyan, has been proved and marked as exhibit-1 and the injury report of the informant, has been proved and marked as exhibit-2. Kamal Kumar Harodia, examined as P.W.-1, Bijay Kumar Sharma, examined as P.W.-2 and Arun Kumar Ritolia, examined as P.W.-3, named in the charge sheet as prosecution witnesses have been declared hostile by the prosecution. 9. After closure of the prosecution evidence, the statement of the appellants have been recorded under section 313 Cr.P.C., on 16.08.2002, to which they pleaded that they have been falsely implicated in this case. 9. After closure of the prosecution evidence, the statement of the appellants have been recorded under section 313 Cr.P.C., on 16.08.2002, to which they pleaded that they have been falsely implicated in this case. But no witness has been examined on behalf of defence except documentary evidence, up to exhibit-B. Certified copy of charge sheet of Dhanbad (Bank More) P.S. Case No.330 of 1986, G.R. No. 1435 of 1986 has been proved and marked as exhibitA. Certified copy of charge sheet of Bank More P.S. Case No.189 of 1987, GR. No. 789 of 1987, has been proved and marked as exhibit-A/1 and the certified copy of the judgment of G.R. No.1233 of 1985, has been proved and marked as exhibit-B and all three documents being public documents have been admitted without objection. 10. After hearing the learned counsel for the parties and after perusal of material available on record, the learned trial court has passed the impugned judgment of conviction and order of sentence, which is being assailed in the present criminal appeal. 11. Heard, learned counsels for the appellants Mr. P.S. Dayal, assisted by Mr. Munna Kumar, Advocates. Learned counsel for the appellants has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has submitted, that three prosecution witnesses named in the charge sheet have been examined and declared hostile by the prosecution. Learned counsel for the appellants has further submitted that P.W-5, Arun Kumar Agrawal is not a reliable witness. Though he has claimed himself to be an eye witness to the occurrence but his conduct has not supported the same as he has claimed that he has seen the occurrence but he has not taken injured to the hospital nor has informed the police nor to the family members of the informant, rather this witness has stated that on next day in evening he went to the Popular Nursing Home to see the injured, having no knowledge that how the injured was admitted at Popular Nursing Home. Learned counsel for the appellants has further drawn attention of this Court towards evidence of Dr. Manjeet Singh, P.W.-6, who has examined the victim on 09.03.1993 at 10 P.M. at Popular Nursing Home. Learned counsel for the appellants has further drawn attention of this Court towards evidence of Dr. Manjeet Singh, P.W.-6, who has examined the victim on 09.03.1993 at 10 P.M. at Popular Nursing Home. The doctor has admitted during cross-examination that the injured was conscious at the time, when the police brought him to the Popular Nursing Home. The injured has given the statement before the police, regarding injury but that statement has not been brought on record and as such the present first information report is hit under Section 162 Cr.P.C. Learned counsel for the appellants has further submitted, that exhibit-2, i.e. injury report of the victim Prakash Kumar Ritolia is also not in consonance with the prosecution case, as Prakash Kumar Ritolia has alleged in the first information report that Rajesh Kumar Agrawal, appellant no.4 has assaulted him by means of bhujali on the upper left side of waist but the doctor has found injury on the chest of the victim. Learned counsel for the appellants has further submitted, that in view of discrepancy with regard to the first information report and the injury found on the person of the victim, coupled with the fact that investigating officer has not been examined in this case, the appellants are entitled to be acquitted of the charge and conviction under Section 307/34 of the Indian Penal Code. 12. Heard, Mrs. Niki Sinha, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence is based on the material available on record and the learned trial court has rightly convicted the appellants under Section 307/34 of the Indian Penal Code. Learned counsel for the State has further submitted, that the Prakash Kumar Ritolia had sustained sharp cut injury, which was found by the Doctor, who has proved the injury report, which has been marked as exhibit-2. Learned counsel for the State has further submitted, that since the appellants are the only person who have assaulted the informant there is no reason that injured has falsely implicated the persons, who have not caused such injury and as such the impugned judgment of conviction has been passed on the basis of material available on record. Learned counsel for the State has further submitted, that since the appellants are the only person who have assaulted the informant there is no reason that injured has falsely implicated the persons, who have not caused such injury and as such the impugned judgment of conviction has been passed on the basis of material available on record. Learned counsel for the State has further submitted, that non examination of the investigating officer has not caused any prejudice to the appellants, as the defence has not asked any question during crossexamination of prosecution witnesses which shows that examination of the investigating officer was essential for elucidating contradictions to the evidence of prosecution witnesses. Learned counsel for the State has further submitted, that this Court may not interfere with the impugned judgment of conviction and order of sentence at this stage as the same is based on the evidence brought on record. 13. Heard, learned counsel for the appellants Mr. Praveen Shankar Dayal, assisted by Mr. Munna Kumar, Advocates and Mrs. Niki Sinha, Additional Public Prosecutor, appearing for the State and perused the records i.e. first informant report, framing of charge, the evidence of six prosecution witnesses, two prosecution exhibits as well as the statement of the appellants recorded under Section 313 Cr.P.C and three defence exhibits adduced on behalf of defence and impugned judgment of conviction and order of sentence. This court has scrutinized the evidence of prosecution witnesses. It appears to this Court that witnesses named in the charge sheet, have been examined as P.W.- 1, Kamal Kumar Harodia, P.W.-2, Bijay Kumar Sharma and P.W.-3 Arun Kumar Ritolia. They have not supported the prosecution case and as such have been declared hostile by the prosecution. The informant, Prakash Kumar Ritolia, who was injured witness, has been examined as P.W.-4. This witness has stated that after sustaining injury on the upper left side of the waist, he became unconscious, but this statement of the informant has been contradicted by the prosecution witness P.W.-6, Dr. Manjeet Singh, who has stated during his cross-examination that the injured was brought by police officer and at that time injured was conscious and the statement of the injured was recorded by the police. Manjeet Singh, who has stated during his cross-examination that the injured was brought by police officer and at that time injured was conscious and the statement of the injured was recorded by the police. Furthermore, from perusal of the injury report, which has been proved and marked as exhibit-2, it appears that no such injury was found on the upper left side of the waist of the injured, rather the injury was found on the chest of the injured as such, vital contradictions have been found in the prosecution case. Dr. Manjeet Singh (P.W.-6) has categorically stated during his cross-examination that statement of the injured was recorded by police in the night itself but prosecution has not brought the first statement of the injured given to the police, rather the present first information report has been lodged on the basis of the fardbeyan of the informant recorded on 10.03.1993 at 09:30 hours (next day) and as such the first information report is hit under Section 162 Cr.P.C. Furthermore evidence of Anup Kumar Agrawal is not worth accepting to this court, as his conduct is under cloud as such, this Court is discarding the evidence of this witness as his conduct shows that he cannot be an eye witness to the occurrence, though he was known to the injured and has claimed herself to be an eye witness to the occurrence. The conduct shows that eye witness known to the injured has not taken injured to the hospital nor has informed the police nor to the family members of the informant, rather in the evening of next day, this witness went to the popular nursing home to see the injured without having any knowledge that how the injured was admitted at popular nursing home. As such, this court is of the opinion that Anup Kumar Agrawal, P.W.-5 is not an eye witness to the occurrence and his conduct is under cloud. Furthermore, investigating officer of this case has not been examined nor the owner of the betel shop or any customer of the betel shop have been examined in this case, as such appellants are entitled to the benefit of doubt. 14. Considering the discussion as made above, this Court is of the opinion that prosecution has miserably failed to prove the charge against the appellants and as such, benefit of doubt has been extended to the appellants. 14. Considering the discussion as made above, this Court is of the opinion that prosecution has miserably failed to prove the charge against the appellants and as such, benefit of doubt has been extended to the appellants. The appellants are acquitted of the charge and conviction under Section 307/34 of the Indian Penal Code. The judgment of conviction dated 23.01.2004 and order of sentence dated 24.01.2004, passed by learned Additional Sessions Judge-XIII, Dhanbad in Sessions Trial No. 503 of 1994, arising out of Dhanbad (Bank More) P.S. Case No.162 of 1993 corresponding to G.R. No.964 of 1993, is hereby set aside. 15. The appellants, who are on bail, are discharged from liability of their bail bonds. 16. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.