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2018 DIGILAW 230 (JHR)

Paras Pandey v. State of Jharkhand

2018-01-29

RATNAKER BHENGRA

body2018
JUDGMENT : RATNAKER BHENGRA, J. The present appeal is directed against the judgment of conviction dated 25.1.2010 and sentence dated 28.01.2010 passed in Sessions Trial Case No. 172 of 2008 by learned Additional Sessions Judge, F.T.C. No. 1, Palamau whereby and whereunder each of the appellants have been convicted under Section 395 of the IPC and sentenced to R.I. for five years and fine of Rs. 2,000/- and in default of payment of fine to undergo S.I. for three months. 2. The prosecution story in brief is that a complaint case No. 378/2002 by complainant Nand Kumar Pandey was filed against the appellants alleging thereby that at about 6-7 p.m., on 3.6.2002 when he along with his son Jitendra Pandey were returning to his village after having drawn Rs. 2,000/from S.B.I., Panki and reached near the canal of Barwahi canal, appellants with their faces covered came and surrounded them, assaulted them and thereafter, on point of gun they took Rs. 2,000/- from his pocket. 3. The complainant gave its information in panchayat and to the concerned police station and when no action was taken, the complainant has filed this complaint petition. After the cognizance was taken under Sections 392, 341, 323 and 504, IPC against the accused persons, the trial commenced after charges were framed. Thereafter the case was found to be made out under Section 395, IPC and hence the case was committed to the Court of sessions. The charges were framed against the accused persons to which they pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined PW 1 Nand Kumar Pandey (complainant), PW 2 Jitendra Pandey (son of the complainant) and PW 3 Gopal Pathak (nephew of the complainant.) By way of documentary evidence, the prosecution has got exhibited signature of the complainant on the complaint petition (Ext. 1.), certificate of posting (Ext. 2) ,copy of application to Officer In-charge, Panki P.S. (Ext. 3) and passbook (Ext. 4) Trial was conducted, at the end of which the appellants were convicted and sentenced as aforesaid. Hence, this appeal. 5. PW 1 is complainant Nand Kumar Pandey, this witness has testified that at about 7 p.m. On 3.6.2002 when he was returning to his village along with his son Jitendra Pandey after having drawn Rs. 3) and passbook (Ext. 4) Trial was conducted, at the end of which the appellants were convicted and sentenced as aforesaid. Hence, this appeal. 5. PW 1 is complainant Nand Kumar Pandey, this witness has testified that at about 7 p.m. On 3.6.2002 when he was returning to his village along with his son Jitendra Pandey after having drawn Rs. 2,000/- from S.B.I., Panki through his passbook and reached near the Barwahi canal, all the six accused persons facing trial in this case whom this witness has named in his testimony appeared and surrounded them and they also slapped them and accused Paras Pandey put his pistol on the temple of this witness and the other accused Radhey Shayam Pandey took out Rs. 2,000/from his pocket and fled away. Just then, his nephew Gopal Pathak also arrived there searching for them to whom this witness disclosed about the occurrence. He has further stated that on 4.6.2002 i.e. next day of the occurrence he gave a written report in the police station regarding the occurrence, but he was refused by the police and, thereafter, he sent a copy of the written report to the police station through under certificate of posting. This witness identified the accused persons by their voice and open part of the faces who are none else but the agnates of the complainant. When no action was taken, this witness filed the complaint petition being Complaint Case No. 378 of 2002 in the Court. He has also identified his signature thereon (Ext. 1). In the cross-examination, he has however said passbook was not stolen. In para 9, he has deposed that they have had no dispute on any issue before this incident. Again in para 9, this witness has deposed that there had been a case under Section 107 against the accused in which they ruled bond. Further in G.R. Case No. 578 of 2002 which was rued against the accused, they were found guilty. 6. PW 2 Jitendra Pandey who is son of the complainant and one of the victim of this case, has in his testimony also fully supported the case of the prosecution on the point of commission of dacoity of Rs. 2.000/- by all the six accused persons facing trial from the pocket of the complainant Nand Kumar Pandey on pistol Point. PW 2 Jitendra Pandey who is son of the complainant and one of the victim of this case, has in his testimony also fully supported the case of the prosecution on the point of commission of dacoity of Rs. 2.000/- by all the six accused persons facing trial from the pocket of the complainant Nand Kumar Pandey on pistol Point. He has also deposed that passbook was thrown by the accused which they picked up. In para 10 he clearly admits enmity with accused. He has also gone to eye doctor at 2.00 p.m. 7. PW 3 is Gopal Pathak. he has not seen the occurrence by his own eyes. rather he has simply corroborated the case of the prosecution up to the extent that at about 7 p.m./on 3.06.2002, the complainant’s voice was coming from the side of canal near the occurrence and when he went there, he saw his maternal uncle complainant Nand Kumar Pandey where he disclosed to him about the occurrence caused by the accused persons. This witness has also admitted that he identified accused Paras Pandey by his voice. 8. DW 1 is Devendra Singh, he has been cited as a witness of the complainant in the complaint petition and this witness has stated in his testimony that on 3.6.2002 or on any other day the complainant Nand Kumar Pandey had not stated to him anything, and he had also not heard in the village that the occurrence of dacoity had taken place from the possession of Nand Kumar Pandey. In para 2 of his deposition, he deposed that Raj Kumar Chowkidar, also did not tell him about the incident. In para 4, he deposed that he has given evidence at the request of Paras Nath Pandey. 9. Counsel for the appellants in his arguments has taken us to the evidence of the witnesses in a brief, manner with highlights. He has said that in the deposition of the complainant Nand Kumar Pandey, there is no specific allegation against the appellants as to what action or act each of them were doing. He says that this witness said that the passbook was snatched. He had put on evidence that this witness recognizes by voice recognition because faces were partially covered by gamcha (towel). This witness has deposed that they are also Gotias or relatives. In cross, he says that the passbook was not stolen. He says that this witness said that the passbook was snatched. He had put on evidence that this witness recognizes by voice recognition because faces were partially covered by gamcha (towel). This witness has deposed that they are also Gotias or relatives. In cross, he says that the passbook was not stolen. So counsel for the appellants says that he keeps changing of his stand on the passbook. At paragraph 10, this witness said that the money was withdrawn at 2 p.m. and then he roamed around Panki and during the incident it was sunset. 10. Learned counsel for the appellants further submitted that PW 2 has supported the evidence of PW 1 or his father. He has however, deposed that he had gone to Panki for eve treatment. Counsel for the appellants says that this has not been stated by the father in his complaint or in his deposition. This witness has further deposed he went to hospital at approximately 2 p.m. Counsel for the appellants says that at this time, the father was at bank and withdrawn money and then roamed around Panki. In para 10, this witness admitted enmity with the appellants and further he does not remember who else he had informed about the incident. 11. Learned counsel for the appellants further submitted that PW 3 Gopal Pathak is nephew of the complainant and he reached after the occurrence. He was informed by PW 1 about the accused persons and that they snatched money and that they have been recognized by voice. This witness himself did not see anyone, or anyone fleeing and it was dark. Learned counsel further submitted that the defence witness Devendra Singh has deposed that he had not been informed by the incident by the chowkidar. Counsel for the appellants says that this is strange to say the least and that only father and son say about the dacoity. Counsel for the appellants says though this witness has been brought by the complainant Nand Kumar Pandey himself this witness has stated that on 3.6.2002 or any other day, Nand Kumar Pandey had not told him anything and he had also not heard in the village that the occurrence of dacoity had taken place and money was looted from Nand Kumar Pandey. In summarization, counsel for the appellants has said that there is general allegation and no specific allegation has been made against any of the appellants. 12. Learned counsel for the appellants further submitted that the entire allegation consist of involvement of the father and son only and there are no independent witnesses to support the case of the father and even PW 3 is not independent witnesses. The Sons deposition is at variance with the evidence of the father and creates certain doubts specially regarding the time of 2 p.m., when the father was in the bank and the son was said to be at the eye hospital and there is no evidence of being at the eye hospital and the father walked about Panki for a few hours and then the incident happened at the sunset at the place of occurrence. So basing on all the aforesaid arguments, counsel for the appellants said that the conviction cannot be sustained. Counsel for the appellant has said that PW 3 has in para 2 said that he recognized by voice mail but in his cross, it is apparent that he had said that he was not able to see, or recognized anyone. Further in para 13, PW 3 has said that he saw 4 to 5 persons but they were not recognized by him. 13. Learned counsel for the State, learned APP has submitted that the delay in lodging of the FIR was explained because initially complaint was not registered and then he sent the complaint via registered post. He has said that the postal certificate of post office has been exhibited which is Ext. 2. From the passbook, it is clear that there was money transaction of Rs. 2,000/- on that day and this is the amount of Rs. 2,000/which was looted. The complaint case was lodged only after he had gone to the police and no action was taken. He has further submitted that PWs 1 to 3 have fully supported the case of each other and the prosecution case that the appellants are relatives or gotias, so they can be recognized by voice. Regarding timing, the treatment was continued till 4 p.m. and this is apparent from the evidence of PW 2 at para 5 and then he returned on foot so by 6 p.m. It was sunset and explanation is very natural. Regarding timing, the treatment was continued till 4 p.m. and this is apparent from the evidence of PW 2 at para 5 and then he returned on foot so by 6 p.m. It was sunset and explanation is very natural. Even PW 3 has deposed in para 2 that he recognized by voice mail when the accused was running away, so judgment passed by the leaned lower Court requires interference. FINDINGS 14. Having heard counsel for both sides; having gone through the records of the case and in the facts and circumstances of the case, it seems that it is clear that both the parties are relatives or gotias of each other and it has come in the evidence of PW 2, para 10 where he has categorically admitted enmity between both the parties, so the entire case must be also evaluated in that light. PW 1 in para 9, has deposed that they have had no dispute on any issue before this incident. Again in para 9, this witness has deposed that there had been a case under Section 107 against the accused in which they filled bond. Further in G.R. Case No. 578 of 2002 which was filed against the accused, they were found guilty. So enmity between the parties is clearly established. 15. It is seen that PW 1 had gone to withdraw money and he was in the bank till 2 p.m., and he withdrew Rs. 2,000/and then he was in Panki itself and then incident look place at the place of occurrence at sunset. He has not mentioned what he was exactly doing after 2 p.m., because between 2 p.m. to 6 p.m., there is four hours in between and he could have indicated the places he had been to or the persons he had met in between by name but he has not done so. His son says that he was at hospital at 2 O’clock for eye treatment but he has not mentioned which eye treatment centre or hospital he had gone to or which doctor he has seen and he has not placed any prescription or even medicine receipt to prove that he was having eye ailment. This aspect about his son being in Panki for eye treatment is also not mentioned in the complaint. This aspect about his son being in Panki for eye treatment is also not mentioned in the complaint. The father and son are meant to be the main witnesses of the occurrence, but their evidences itself in the light of the complaint and the evidence in the depositions seems doubtful. 16. Even the evidence of PW 3 is doubtful because on the one hand he has said that he reached after the occurrence and that he was informed about the incident and that he did not see anyone or anyone fleeing away and it was dark, so even this witness is not very reliable. In his deposition at one instance he says that he recognized Paras Pandey by voice, but in paras 12 and 13 says he was 200 meters away and did not recognize them. 17. Of some significance is defence witness Devendra Singh, DW 1 who has given evidence that he was not informed about the incident. This defence witness has said that chowkidar in the village also did not tell him about the incident and definitely the chowkidar should be knowing about the things that transpires in the village but the chowkidar does not know anything about this dacoity. 18. Another aspect is that in the complaint, PW 1 has said passbook was snatched away but in the deposition, he later on, says that passbook is with him and it has become an evidence which has been marked as Ext. 3. So this is a contradiction between the version in the complaint and in the deposition. 19. After going through all the witnesses, it is seen that even in the evidence of the father and son, there are serious lacuna in their evidences and it is also doubtful including the evidence of PW 3. So when all the witnesses are of a doubtful nature, it creates doubt about the conviction and it will be difficult to sustain the conviction. 20. Accordingly, judgment of conviction dated 25.1.2010 and sentence dated 28.1.2010 passed in Sessions Trial Case No. 172 of 2008 by learned Additional Sessions Judge, F.T.C. No.1, Palamau under Section 395 of the IPC are set aside and this appeal is allowed. The appellants are on bail, they are discharged from the liabilities of their bail bonds. Appeal allowed.