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2018 DIGILAW 848 (JHR)

Chaitu Oraon v. State of Jharkhand

2018-04-13

KAILASH PRASAD DEO

body2018
JUDGMENT : The present Criminal Appeals are arising out of a common judgment of conviction and order of sentence. The appellant Chaitu Uraon has preferred Criminal Appeal (S.J.) No. 1063 of 2003 and the appellant Deomohan Singh has preferred Cr. Appeal (S.J.) No. 1193 of 2003, whereby the court below has convicted appellant Chaitu Uraon u/s 412 I.P.C and appellant Deomohan Singh u/s 397/412 I.P.C. By the impugned judgment, the learned Trial Court has acquitted Balku Sao, Chuni Lal Sao, Ropna Sao as well as Chaitu Uraon u/s 397 and all the accused have been acquitted for offence u/s 376 I.P.C. as well as 120(b) I.P.C. The State has not preferred any acquittal appeal against the acquittal of the other accused persons and also against these two appellants Chaitu Uraon and Deomohan Singh. The learned Trial Court found Chaitu Uraon and Deomohan Singh guilty for offence u/s 412 I.P.C. against both the appellants and awarded them to undergo rigorous imprisonment for five years and a fine of Rs. 1000/- in case of default of payment of fine, the appellants shall further undergo S.I. for three months, so far appellant Deomohan Singh is concerned, he has been separately convicted u/s 397 IPC and has been awarded a rigorous imprisonment for seven years, against the said impugned, judgment the present appeals have been preferred. The impugned judgment of conviction and order of sentence has been passed by learned Additional District and Sessions Judge (Fast Track Court No. II), Gumla in Sessions Trial No. 196 of 1995/S.T. No. 75 of 1998. 2. The prosecution case is based upon the fardbeyan of informant Basant Sao (P.W. 11) which was recorded by A.S.I. Rabindra Prasad Singh. As per the prosecution case, the informant has stated that in the night of 16.04.1994 (Saturday) after taking dinner, all the inmates of the house were sleeping in the house, closing the door and on hearing the noise of breaking the door, they got up and raised hulla about thieves. Upon which accused persons exploded a bomb and also threatened that if the inmates are raising hulla they will start firing. Upon which accused persons exploded a bomb and also threatened that if the inmates are raising hulla they will start firing. Upon this the inmates of the house stopped raising hulla and after breaking the door, the accused persons entered into the house and one of the accused was having a gun who fired, which hit on the left hand of the father of the informant Bhadar Sao, causing bleeding injury. The informant has categorically stated that after breaking the door, five accused persons entered the house and some of the accused have surrounded their house. It is stated that accused persons after entering into the house have looted utensils, hero bicycle, one wrist watch H.M.T., 2.5 horse power Machine, other ornaments of silver, cloths and cash of Rs. 5,000/-. The informant has further stated that they were assaulted by the accused persons asking them to disclose about their other articles. The informant has categorically stated that his brother Rajendra Sao, mother Balki Devi have been assaulted and threatened, that if they will raise noise, they will be killed. The informant has stated that one of the accused was having a small gun, others were having baluwa, tangi and danda. The informant has stated that at that time, dhibri was burning in the room, in which he has identified the accused. Three of the accused persons were tall, fair in complexion and two were short. They were using Hindi language and the informant has claimed to identify them after seeing them. On threat given by the accused persons, the informants and others did not raise hulla, during the commission of the dacoity, two other bombs were exploded, due to which none of the persons came there. The dacoits have also assaulted his eldest Uncle Chuni Lal Sao and stripped off the cloths of wife of the younger brother and a match stick was used for burning the hair of the head. 3. On the basis of the fardbeyan of the informant, police registered Sisai, P.S. Case No. 39 of 1994 dated 17.04.1994 under consequent G.R. No. 257 of 1994 and after investigation police submitted Chargesheet, vide Chargesheet no. 31 of 1994 dated 16.07.1994 against five persons, Balku Sao, Chuni Lal Sao, Ropna Sao, Chaita Uraon and Budhu Uraon and an absconder of this case namely Budhu Uraon. 4. 31 of 1994 dated 16.07.1994 against five persons, Balku Sao, Chuni Lal Sao, Ropna Sao, Chaita Uraon and Budhu Uraon and an absconder of this case namely Budhu Uraon. 4. That after cognizance of this offence was taken, the case was committed to the court of sessions where charge has been framed on 02.03.1998 against Balku Sao, Chuni Lal Sao, Ropna Sao, Chaitu Uraon and Deomohan Singh u/s 397 and 120 B IPC and separately Deomohan Singh and Chaitu Uraon has been charged u/s 376 I.P.C., but no charge has been framed u/s 412 of the Indian Penal Code. The appellants have pleaded their innocence and thus appellants have been put for trial. 5. The prosecution has examined altogether thirteen witnesses but the investigating officer of the case has not been examined. . Ropna Sao as P.W.1, Mahabir Sao as P.W. 2, Rajendra Sao (brother of the informant) as P.W.3, Izhar Anwar (doctor) as P.W. 4, Dr. Shakuntala Pandey (another doctor) as P.W. 5, Rohit Kumar Sharma as P.W. 6, Bhadar Sao (injured and father of the informant) as P.W. 7, Chinta Devi (wife of the informant) as P.W. 8, Balki Devi (mother of the informant) as P.W. 9, Kiran Devi as P.W. 10, Basant Sao (informant of the case) as P.W. 11, Mozahid Ansari (seizure witness) as P.W. 12. and Kuldip Singh (formal witness) as P.W. 13. The defence has examined one witness Sri Chunilal Sao (D.W. 1) who is also accused of this case also. 6. Apart from the oral evidence, the prosecution has also brought the signature of Ropna Sao on seizure list as Exhibit- 1, the injury reports of Balki Devi, Taramani Devi and Chunilal Sao as Exhibit- 2, 2/1 and 2/2, the injury report of Kiran Devi as Ext. 3, The injury report of Basant Sao as Ext. 4, the injury report of Rajendra Sao as Exhibit- 4/1, the signatures of Basant Sao and Ropna Sao on fardbeyan as Exhibit- 1/1 and 1/2, the signature of Mozahir Ansari on seizure list as Exhibit- 5, the formal F.I.R. as Ext. 6, fardbeyan as (Exhibit- 7), seizure lists as Exhibit- 8 to 8/3, the injury report of Rajendra Sao, Basant Sao, Bhadar Sao and Balki Devi issued by Lohardaga Hospital as Exhibit- 9 to 9/3 and the identification chart of utensils in T.I.P. as Exhibit- 10 to 10/1. 7. 6, fardbeyan as (Exhibit- 7), seizure lists as Exhibit- 8 to 8/3, the injury report of Rajendra Sao, Basant Sao, Bhadar Sao and Balki Devi issued by Lohardaga Hospital as Exhibit- 9 to 9/3 and the identification chart of utensils in T.I.P. as Exhibit- 10 to 10/1. 7. Ropna Sao (P.W.1) has stated that having learnt about the incidence he rushed to the house of Bhadra Sao and learnt about dacoity and at about 2.00-3.00 p.m., they took Bhadra Sao hospital for treatment. From the fardbeyan it appears that Ropna Sao has also signed the fardbeyan. 8. Mahabir Sao (P.W. 2), Rajendra Sao (P.W. 3), Bhadar Sao (P.W. 7), Chinta Devi (P.W.8), Balki Devi (P.W.9) and Kiran Devi (P.W. 10) are the material witnesses in this case, who have narrated about the commission of dacoity in their house on the alleged day of occurrence for which investigating machinery was set into motion on the fardbeyan given by Basant Sao (P.W. 11). So this much is proved that a dacoity was committed in the house of the informant on 16.04.1994. 9. P.W. 4 and P.W. 5 are the doctors who have examined Balki Devi and Kiran Devi and submitted the injury report as Exhibit- 2 and Exhibit- 3. 10. Kuldip Singh (P.W. 13) is an advocate clerk and formal witness who has proved the T.I.P. chart of materials, which were recovered during the investigation by the Investigating Officer. 11. Learned counsel for the appellant, Mr. Amit Kumar Choubey has submitted that the impugned judgment of conviction u/s 412 IPC and order of sentence so far Chaitu Uraon and Deomohan singh are concerned, the same is not sustainable in the eyes of law as no charge u/s 412 I.P.C. has been framed. The learned counsel has further submitted that P.W. 12 Muzahid Ansari being seizure witness and proved seizure list as Exhibit-5 has categorically stated that his signature is on seizure list but these things have not been written on the seizure list rather those are on a blank paper. So far the ingredients u/s 412 is concerned, there is no evidence for convicting Chaitu Uraon and Deomohan Singh u/s 412 I.P.C. and the learned Trial Court has erred in convicting them. 12. So far the ingredients u/s 412 is concerned, there is no evidence for convicting Chaitu Uraon and Deomohan Singh u/s 412 I.P.C. and the learned Trial Court has erred in convicting them. 12. The learned counsel for the appellant, has further submitted that so far conviction of the appellant Deomohan singh is concerned for charge u/s 397 IPC, the learned Trial court has relied upon the Test Identification Parade of Deomohan Singh but has completely erred in not taking a judicial notice of the fact, that P.W. 2 Mahabir Sao has categorically stated during cross-examination, that when the accused were apprehended and brought to the police station and assault was made upon them, they have admitted their guilt before the police and at that time he was allowed to identify the accused persons. The learned counsel has submitted that the entire sanctity of the Test Identification Parade is vitiated as the witness has admitted that before Test Identification Parade he has an opportunity to identify the accused persons at the police station by the police officer and as such conviction u/s 397 of Deomohan Singh on the basis of T.I.P. is not sustainable in the eyes of law. The learned Counsel has further submitted that there is a major contradiction in the deposition of all the prosecution witnesses and those contradictions are vital for the prosecution case as some of the accused persons are agnates of the prosecution party and next door neighbour of the prosecution party but the informant has not disclosed the name of those persons while giving his fardbeyan on the basis of which F.I.R. has been lodged against unknown persons. The learned counsel has submitted that prosecution has not come up with clean hands in disclosing the fact which was recorded approximately after more than twelve hours. The statement of the witnesses are contradictory to each other with respect to manner of occurrence and commission of occurrence. The learned counsel has submitted that there is land dispute with some of the accused persons who are uncle and brother of the prosecution witnesses although they have been acquitted by the learned Trial Court. Neither the informant nor the State has preferred any appeal against such acquittal and on flimsy ground without any material, the learned Trial Court has convicted appellant Deomohan Singh u/s 397 I.P.C. 13. The learned counsel for the State, Mr. Neither the informant nor the State has preferred any appeal against such acquittal and on flimsy ground without any material, the learned Trial Court has convicted appellant Deomohan Singh u/s 397 I.P.C. 13. The learned counsel for the State, Mr. Manoj Kumar, Additional Public Prosecutor has vehemently argued the case and has tried his best to support the impugned judgment but has not disputed the contradictory evidence of the prosecution witnesses. The learned counsel for the State has fairly submitted that no charge u/s 412 IPC has been framed but the learned Trial Court has rightly convicted Deomohan Singh u/s 397 on the basis of evidence on record coupled with injury report Exhibit- 9/2 injury report of Bhadar Sao issued by Dr. M.M. Sen Gupta, Medical Officer, Lohardagga. Although the said doctor has not been examined in the Trial Court. Upon this the learned counsel for the appellant has submitted that if Ext. 2 is taken note of and compared, the same with the fardbeyan or the evidence adduced by the prosecution, there is a vital contradiction with respect to the injury caused on person of Bhadar Sao. The injury report suggests that doctor has found one wound of entry on the left upper arm in the middle part of 3x2x1 inch, blackening of surrounding with one brass cap of cartridge was present with diffused laceration but no wound of exit. There was fracture of shaft of left humerus bone. Learned counsel for the appellant has submitted that neither the doctor who has issued this injury report has been examined nor the investigating officer of this case has been examined nor any medical report of R.M.C.H., Ranchi has been brought on record and if the evidence of P.W. 2, 3 and 7 are taken together, there is a vital contradiction with regard to the place of injury. Considering the above facts, such injury report cannot be relied for convicting a person u/s 397 IPC where Test Identification Parade has lost its sanctity and other accused persons have already been acquitted u/s 397 I.P.C. As such charge u/s 397 IPC which has been framed against Deomohan Singh is not sustainable in the eyes of law. 14. Considering the above facts, such injury report cannot be relied for convicting a person u/s 397 IPC where Test Identification Parade has lost its sanctity and other accused persons have already been acquitted u/s 397 I.P.C. As such charge u/s 397 IPC which has been framed against Deomohan Singh is not sustainable in the eyes of law. 14. After hearing the parties and on perusal of the entire record particularly, the deposition of the witnesses, this court is of the opinion that the Trial Court has erred in convicting Chaitu Uraon and Deomohan Singh u/s 412 I.P.C. as no specific charge has been framed u/s 412 IPC and the seizure list is completely belied by P.W. 12 and the seizure list has been proved to be a forged document in view of the statement of Muzahid Ansari (P.W. 12 ), that he put signature on blank sheet as such Exhibit-5 (Seizure list) has no legal sanctity in the eyes of law. This court has further found that convicting Deomohan Singh u/s 397 IPC is also not sustainable in the eyes of law as there is a contradiction regarding place of injury in the deposition of the witnesses as well as vital contradictions with respect to firing made by accused persons outside the house and causing such blackening injury on the injured. 15. Thus, I am of the opinion that Deomohan Singh is entitled for benefit of doubt. In the above facts and circumstances of the case, judgment of conviction dated 17.07.2003 and order of sentence dated 18.07.2003 passed by the learned Additional District and Session Judge cum Fast Track Court No. II, Gumla in Sessions Trial No. 196 of 1995/S.T. No. 75 of 1998 of Sisai P.S. Case No. 39 of 1994 arising out of G.R. No. 257 of 1994 is hereby set-aside and the appellant Chaitu Uraon is acquitted u/s 412 I.P.C. and Deomohan Singh is also acquitted u/s 412 IPC as well as u/s 397 I.P.C. and both are discharged from liability of their bail bonds. 16. The appeals are accordingly allowed. 17. Let the record be sent to the lower court concerned.