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2018 DIGILAW 2730 (JHR)

Papu Sah @ Ghanshyam Sah v. State Of Jharkhand

2018-12-12

KAILASH PRASAD DEO

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JUDGMENT Kailash Prasad Deo, J. - Heard, learned Senior counsel for the appellant, Mr. Rajeeva Sharma, Senior Advocate assisted by Mrs. Nitu Singh, Advocate and learned counsel for the State, Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor. 2. The instant Criminal appeal is directed against the judgment of conviction and order of sentence, both dated 21.01.2004, passed by 6th Additional Sessions Judge, (F.T.C.), Dumka, in Sessions Case No. 245 of 1993 / 147 of 2003, whereby, the appellant has been convicted for the offence committed and punishable under Sections 307/34 and 353 of the Indian Penal Code and awarded Rigorous Imprisonment for five years for the offence committed and punishable under Section 307/34 of the Indian Penal Code and Rigorous Imprisonment for six months for the offence committed and punishable under Section 353 of the Indian Penal Code. Both the sentences are directed to run concurrently. Co-accused, Kanchan Kumar Das has also been convicted for the offence committed and punishable under Sections 307/34,353 and 332 of the Indian Penal Code, but he has not preferred any criminal appeal as he has already served out the sentence during trial. By the same impugned judgment learned trial Court has acquitted the appellant, Papu Sah @ Ghanshyam Sah from the charge under Section 332 of the Indian Penal Code and under Section 27 of the Arms Act and co-accused, Kanchan Kumar Das under Section 27 of the Arms Act. 3. The prosecution case, is based upon, written report submitted by, A.S.I., Ramanand Singh, before the Officer-In-Charge, Dumka(T) Police Station, on 24.02.1992 about the occurrence which took place on the same day at 18.50 Hrs. The informant was at the Police Station on duty, when he got a telephonic information by a girl that some miscreants were looting the property of Hanuman Agrawal. On the basis of that information, the informant, along with other Police constables rushed to the place of occurrence, where the miscreants were committing robbery in the house of Hanuman Agrawal. It is stated that, one miscreants was on the gate, armed with country made pistol and another was on the roof, armed with pistol. After seeing police party, they opened fire on them. Thereafter, a series of firing took place from both the sides. As a result of which one miscreant was hit by a bullet of Police party. It is stated that, one miscreants was on the gate, armed with country made pistol and another was on the roof, armed with pistol. After seeing police party, they opened fire on them. Thereafter, a series of firing took place from both the sides. As a result of which one miscreant was hit by a bullet of Police party. On hearing brawl several persons came there from all sides but one injured accused and two other miscreants managed to escape from the place of occurrence. One of the miscreants, was caught by the Police. But said miscreant hurled dagger on the Hawaldar namely, Sachida Nand Singh, as a result of which Hawaldar has sustained injury, thereafter, inmates of the house snatched the dagger and caught hold him. The apprehended accused disclosed the name of other accused persons, who fled away. 4. On the basis of the written report, the Police has registered First Information Report bearing Dumka(T), P.S. Case No. 30 of 1992, dated 24.02.1992, under Sections 353/307/332/34 of the Indian Penal Code, against the Papu Sah @ Ghanshyam Sah, Kanchan Kumar Das, Varun Kumar Sah and Mangal Pal. On the same day police has also registered First Information Report Dumka(T) P.S. Case no.29 of 1992 and 31 of 1992. 5. After investigation, the police has submitted charge sheet vide charge sheet no. 46 of 1992, dated 22.05.1992, under Sections 353/307/332/34 of the Indian Penal Code against all the four named accused persons. 6. The cognizance of the offence has been taken vide order dated 25.05.1992 and the case has been committed to the Court of Sessions vide order dated 09.06.1993. 7. The learned trial Court has framed charge against all the four accused persons, on 23.12.1993, under Sections 353/307/332/34 of the Indian Penal Code of the Indian Penal Code and 27 of the Arms Act, to which the accused/appellants have pleaded their innocence and thus, they were put under trial. 8. The prosecution, in order to prove its case, has examined altogether ten prosecution witnesses and also exhibited a number of documentary evidence up to exhibit-4 series. 8. The prosecution, in order to prove its case, has examined altogether ten prosecution witnesses and also exhibited a number of documentary evidence up to exhibit-4 series. Sagar Prasad Agrawal, a hearsay witness to the occurrence has been examined as P.W.1, Manoj Kumar Agrawal, who has been tendered by the prosecution, has been examined as P.W.2, Hari Prasad Sao, injured witness, has been examined as P.W.3, but has been declared hostile by the prosecution as he has not supported by the prosecution case. Anju Agrawal inmate of the house, has been examined as P.W.4 and declared hostile by the prosecution, Pramod Kumar Verma, A.S.I. and one of the member of raiding party, has been examined as P.W.5, Hawaldar Sachida Nand Singh, an injured, has been examined as P.W.6, Dashrath Singh, another raiding party member has been examined as P.W.7, Anirudh Rai other raiding party member has been examined as P.W.8, Ram Pravesh Rai other raiding party member has been examined as P.W.9 and Dr. Sushil Marandi(Medical Officer) has been examined as P.W.10. Written report of Assistant Sub-Inspector of Police, Rama Nand Singh has been proved and marked as Exhibit-1, formal First Information Report has been proved and marked as Exhibit-2, Seizure list has been proved and marked as Exhibit3, Signature of Hawaldar Sachida Nand Singh(P.W.6) on seizure list has been proved and marked as Exhibit-3/1, Signature of Anirudha Rai(P.W.8) on seizure list has been proved and marked as Exhibit-3/2, Injury report of Hawaldar Sachida Nand Singh(P.W.6) has been proved and marked as Exhibit-4, Injury report of Barun Kumar Sah, who has sustained fire-arm injury, caused by police has been proved and marked as Exhibit-4(a), Injury report of Manoj Kumar Agrawal has been proved and marked as Exhibit-4(b) and injury report of Kanchan Kumar Das has been proved and marked as Exhibit-4(c). 9. After closure of the prosecution evidence, the statement of the accused persons namely, Kanchan Kumar Das and Papu Sah @ Ghanshyam Sah have been recorded under Section 313 Cr.P.C., on 25.11.2003, to which the accused persons have pleaded their innocence and thus, they were put under trial. Two accused persons of this case namely, Mangal Pal and Varun Kumar Sah have died during trial and the case against them has been dropped vide order dated 19.01.1996 and 7.8.2000 respectively. Only Papu Sah @ Ghanshyam Sah and Kanchan Kumar Das were facing trial. 10. Two accused persons of this case namely, Mangal Pal and Varun Kumar Sah have died during trial and the case against them has been dropped vide order dated 19.01.1996 and 7.8.2000 respectively. Only Papu Sah @ Ghanshyam Sah and Kanchan Kumar Das were facing trial. 10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court has passed the impugned judgment of conviction and order of sentence, convicting the appellant, Papu Sah @ Ghanshyam Sah under Sections 307/34 and 353 of the Indian Penal Code but has acquitted of the charge under Section 332 of the Indian Penal Code and 27 of the Arms Act. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the present criminal appeal has been preferred by the appellant before this Hon''ble Court, assailing the same. 11. Heard, learned Senior counsel for the appellant, Mr. Rajeeva Sharma, Senior Advocate assisted by Mrs. Nitu Singh, Advocate. Learned counsel for the appellant 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 appellant has further submitted, that informant Ramanand Singh has not been examined in this case though in the First Information Report it has been alleged that informant and Pramod Kumar Verma, A.S.I.(P.W.5) can identify the accused persons as they have seen them in the light of Generator. Learned counsel for the appellant has further submitted, that there is no specific allegation against the appellant, Papu Sah @ Ghanshyam Sah that he has assaulted any of the person and as such, the conviction of the appellant is not sustainable in the eyes of law. Learned counsel for the appellant has further submitted, that Section 353 of the Indian Penal Code is not made out against the appellant as appellant has not obstructed any public servant from discharging their duty. Learned counsel for the appellant has further submitted, that Sagar Prasad Agrawal(P.W.1), Manoj Kumar Agrawal(P.W.2), Hari Prasad Sao (P.W.3) and Anju Agrawal(P.W.4) are inmates of the house but none of the them have supported the prosecution case. Learned counsel for the appellant has further submitted, that Sagar Prasad Agrawal(P.W.1), Manoj Kumar Agrawal(P.W.2), Hari Prasad Sao (P.W.3) and Anju Agrawal(P.W.4) are inmates of the house but none of the them have supported the prosecution case. Learned counsel for the appellant has further submitted, that Sagar Prasad Agrawal(P.W.1) is a hearsay witness, Manoj Kumar Agrawal(P.W.2) has been tendered by the prosecution, Hari Prasad Sao(P.W.3) though injured witness has not supported the prosecution case and has been declared hostile by the prosecution. Anju Agrawal(P.W.4) inmate of the house, has also been declared hostile by the prosecution and the informant of the case, Ramanand Singh has not been examined in this case. Learned counsel for the appellant has further submitted, that Pramod Kumar Verma(P.W.5) being a member of raiding party is the Investigating Officer of this case and as such, police has not investigated the case fairly. Learned counsel for the appellant has thus submitted, that appellant deserves to be acquitted by extending the benefit of doubt, as he was not put in Test Identification Prade to be identified by informant, Ramanand Singh and Pramod Kumar Verma(P.W.5) as claimed in the written report. 12. Heard, learned counsel for the State, Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor. Learned counsel for the State has submitted, that the impugned judgment of conviction and order of sentence has been passed by the learned trial Court on the basis of materials available on record. Learned counsel for the State has further submitted, that it is a case where a robbery was committed in the house of Hanuman Agrawal, which was informed to the Police Station and police party after recording Sanha entry, went for verification. After seeing police party, the criminals started firing upon police and in self defence, the police also fired upon criminals, causing injury upon co-accused, Varun Kumar Sah, who was facing trial with present appellant but Varun Kumar Sah died during pendency of the trial on 7.8.2000. Learned counsel for the State has further submitted, that co-accused, Kanchan Kumar Das, who has caused injury upon Sachida Nanda Singh by means of knife was caught by Hawaldar Sachida Nand Singh(P.W.6) and on the basis of his confessional statement co-accused, Papu Sah @ Ghanshyam Sah has been arrested. Learned counsel for the State has further submitted, that co-accused, Kanchan Kumar Das, who has caused injury upon Sachida Nanda Singh by means of knife was caught by Hawaldar Sachida Nand Singh(P.W.6) and on the basis of his confessional statement co-accused, Papu Sah @ Ghanshyam Sah has been arrested. The accused, Kanchan Kumar Das and Papu Sah @ Ghanshyam Sah, Varun Kumar Sah and Mangal Pal were caught by the police on the same day. Varun Kumar Sah, has sustained grievous fire-arm injury because of the police firing, was examined by the doctor and his injury report has been proved and marked as exhibit4/a. Kanchan Kumar Das, has sustained injury in scuffle with the police and his injury report has been proved and marked as exhibit-4/c. The injury has been caused upon Manoj Kumar Agrawal(P.W.2) by knife and his injury report has been proved and marked as exhibit-4/b. The injury sustained by Hawaldar Sachida Nanda Singh has also been proved and marked as exhibit-4, which has been proved by the Dr. Sushil Marandi(P.W.10). Learned counsel for the State has further submitted, that Pramod Kumar Verma(P.W.5) was cross-examined by the defence but nothing has been elucidated during cross-examination to dispel the prosecution case. Hawaldar Sachida Nand Singh(P.W.6), Dashrath Singh(P.W.7), Anirudh Rai(P.W.8) and Rampravesh Rai(P.W.9) are members of raiding party have not been cross-examined by the defence and as such, their evidence recorded during examination-in-chief remained intact. Learned counsel for the State has further submitted, that the accused persons namely, Papu Sah @ Ghanshyam Sah and co-accused, Kanchan Kumar Das have rightly been convicted by learned trial Court and Kanchan Kumar Das has already served out the sentence and has not preferred any appeal. Learned counsel for the State has further submitted, that confession of Kanchan Kumar Das is not under cloud and as per his confession Varun Kumar Sah and Papu Sah @ Ghanshyam Sah have been arrested and corresponding injury has been found on the persons of Varun Kumar Sah. Learned counsel for the State has further submitted, that Papu Sah @ Ghanshyam Sah in his statement recorded under Section 313 Cr.P.C. has not stated that why he has been falsely implicated and named by co-accused, Kanchan Kumar Das. Learned counsel for the State has thus submitted, that conviction of the appellant passed by the learned trial Court does not warrant any interference of this Hon''ble Court at this stage. Learned counsel for the State has thus submitted, that conviction of the appellant passed by the learned trial Court does not warrant any interference of this Hon''ble Court at this stage. 13. Heard, learned Senior counsel for the appellant, Mr. Rajeeva Sharma, Senior Advocate assisted by Mrs. Nitu Singh, Advocate and learned counsel for the State, Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor and perused the records, i.e First Information Report, framing of charge, evidence of ten prosecution witnesses, four prosecution exhibits and the statement of the appellant recorded under Section 313 Cr.P.C. as well as impugned judgment of conviction and order of sentence. This Court has taken judicial notice of the fact that for the occurrence of robbery, police has instituted separate cases instead of instituting one case for the entire occurrence. Police has instituted three cases, that is Dumka P.S. Case No. 29 of 1992, 30 of 1992 and 31 of 1992. The accused persons are the same but in the present case, the present appellant, Papu Sah @ Ghanshyam Sah has been charged under Sections 307/34, 353 and 332/34 of the Indian Penal Code. Kanchan Kumar Das, who was also charged with this appellant has faced the trial and has not preferred any Criminal appeal before this Hon''ble Court, assailing the impugned judgment of conviction and order of sentence. The fact remains that this appellant was caught on the confession of Kanchan Kumar Das along with Varun Kumar Sah as their names have transpired in the statement of injured accused caught at the spot i.e. Kanchan Kumar Das and the corresponding fire-arm injury caused by police firing has been found on the person of Varun Kumar Sah, which has been brought on record and marked as exhibit-4/a, as such, this Court is of the view that, the confession of Kanchan Kumar Das is not under cloud. This Court has also examined the evidence of Hawaldar Sachida Nand Singh(P.W.6), Dashrath Singh(P.W.7), Anirudh Rai(P.W.8) and Ram Pravesh Rai(P.W.9). These persons are the members of police raiding party and they have not been cross-examined by the defence, as such, evidence adduced by them in examination-in-chief remains intact. The other prosecution witnesses have been cross-examined but nothing has been elucidated by the defence to dispel their evidence. These persons are the members of police raiding party and they have not been cross-examined by the defence, as such, evidence adduced by them in examination-in-chief remains intact. The other prosecution witnesses have been cross-examined but nothing has been elucidated by the defence to dispel their evidence. The appellant has not explained any reason for his false implication either by the police or by the Kanchan Kumar Das in his statement recorded under Section 313 Cr.P.C. Under the aforesaid circumstances, considering the nature of allegations and the role played by the accused persons, who have attacked upon the police party by firing and assaulting by knife, the learned trial Court has rightly convicted the appellant under Section 307/34 of the Indian Penal Code. This Court has also scrutinized the evidence, so far ingredient under Section 353 of the Indian Penal Code is concerned. This Court has found that accused persons including the appellant, Papu Sah @ Ghanshyam Sah has obstructed public servant from discharging their duty by attacking upon them by using criminal force. Under the aforesaid circumstances, the conviction of the appellant under Sections 307/34 and 353 of the Indian Penal Code is well founded and rightly passed by the learned trial Court, which is being upheld and affirmed by this Court. Accordingly, the impugned judgment of conviction and order of sentence, both dated 21.01.2004, passed by learned 6th Additional Sessions Judge,(F.T.C.), Dumka, in Sessions Case No. 245 of 1993 / 147 of 2003, arising out of Dumka(T), P.S. Case No. 30 of 1992 corresponding to G. R. no. 187 of 1992 is hereby upheld and affirmed. 14. In the result, the present Criminal Appeal is hereby dismissed without any modification of sentence. 15. The appellant, who is on bail, his bail bond is hereby cancelled to serve out rest of the sentence as awarded by the learned trial Court. The appellant is directed to surrender before the learned trial Court forthwith to serve out rest of the sentence. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.