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2022 DIGILAW 1201 (JHR)

Nandu Sah @ Nandu Saw v. State of Jharkhand

2022-09-26

DEEPAK ROSHAN

body2022
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. The instant criminal revision application is directed against the judgment dated 17.10.2003, passed by learned Additional District and Sessions Judge, Fast Track Court No. IX, Jamshedpur, East Singhbhum, whereby the Cr. Appeal No. 26 of 1993, preferred by the petitioner has been partly allowed. The judgment of conviction and order of sentence, both dated 27.02.1993, in Sessions Trial No. 514 of 1989, arising out of Telco P.S. Case No. 0133 of 1988, corresponding to G.R. No. 881-A of 1988, passed by the learned IInd Assistant Sessions Judge, Jamshedpur, whereby the petitioner was convicted and sentenced to undergo rigorous imprisonment for 5 years under Section 307 of the Indian Penal Code, has been set aside and the conviction of the petitioner is altered from that of 307 IPC to Section 308 IPC and sentenced to undergo RI for 3 years for the offence under Section 308 IPC. 3. Prosecution case in brief is that on 17.06.1988 the informant went to the house of his friend Kinder Chandra Chand in marriage party. The informant met the accused there and they both went together to give presents to the wife of Kinder Chandra Chand. The wife of Kinder was surrounded by a number of females. When the informant was going to give the present, accused said that today is the day of festival and aimed the pistol in the air and thereafter fired the pistol on the left side of the waist which hit the informant on his waist. The accused fled away. The reason for this occurrence is that the informant used to buy kerosene oil from the accused but stopped about two months ago. 4. Ms. Apurwa Pathak, learned amicus for the petitioner submits that the learned trial court has failed to consider following issues while passing the judgment of conviction: (i) Though the place of occurrence was fully crowded and a reception party was going on; however, no witness has been examined. (ii) As a matter of fact there was no eye-witness to support the case of the prosecution. (iii) Even the I.O. has not been examined so as to prove the place of occurrence as well as manner of occurrence. (iv) Though PWs. 1 and 4 who are the doctors have supported the injury but the fact remains none of the persons has identified this petitioner. (iii) Even the I.O. has not been examined so as to prove the place of occurrence as well as manner of occurrence. (iv) Though PWs. 1 and 4 who are the doctors have supported the injury but the fact remains none of the persons has identified this petitioner. (v) Though there was seizure of cloth of the victim which supports that there was a firing. However, as stated herein above there was no eye witness and the prosecution has been failed to examine any independent witness in order to support the case. Learned Amicus contended that the cardinal principle of criminal jurisprudence is that the accused is presumed to be innocent unless he is proved to be guilty. In the case of Ashok Kumar Ram vs. State of Jharkhand, 2021 SCC Online Jhar 55 the Division Bench of this Court has held that criminal antecedent of the informant as well as the family members and his friends and non-examination of independent witness in spite of the presence of large crowded at the place of occurrence creates serious doubt on the manner of occurrence as set up by the prosecution. 5. She lastly submits that suspicion; however grave may be, cannot take place of prove and there is large difference between something that may be proved and something that has been proved. Relying upon the aforesaid submission learned amicus prays for acquittal of this petitioner. 6. Mr. Manoj Mishra, learned APP supports the judgment passed by the courts below and submits that there is concurrent findings. Though I.O. has not been examined but doctors have proved that the injury was due to firing and that was grave in nature. Merely that the informant and accused were having bad relation will not absolve this petitioner from conviction. As such, the instant application may be dismissed. 7. Having heard learned counsel for the parties and after going through the judgments including the LCR it appears that on 17.06.1988 the informant went to the house of his friend Kinder Chandra Chand in marriage party. The informant met the accused there and they both went together to give presents to the wife of Kinder Chandra Chand. The wife of Kinder was surrounded by a number of females. 8. Thus, it is clear that the place of occurrence was fully crowded. The informant met the accused there and they both went together to give presents to the wife of Kinder Chandra Chand. The wife of Kinder was surrounded by a number of females. 8. Thus, it is clear that the place of occurrence was fully crowded. However, from record it appears that no eye witness or any of the members who were present at the time of occurrence has been examined by the prosecution. In other words there is no eye witness to the occurrence. 9. From record it further transpires that the whole conviction is based on the deposition of the informant himself supported by the deposition of the doctors. However, there is no independent witness to support the case of the prosecution that the petitioner was involved in firing. Even the I.O. has not been examined in this case so as to prove the manner and place of occurrence. 10. In the case of Ashok Kumar Ram (supra) it has been held that the criminal antecedent of the accused and his family members and his friends and non-examination of independent witness in spite of presence of large crowd at the place of occurrence creates a serious doubt on the manner of occurrence as set up by the prosecution. Relevant Para of the case of Ashok Kumar Ram (supra) is quoted herein below: “The aforesaid circumstances in the case, criminal antecedent of the informant, his family members and his friend, and non-examination of an independent witness inspite of presence of a large crowd at the place of occurrence, create a serious doubt on the manner of occurrence as set up by the prosecution. The appellants have taken a defence that Raghvendra Pratap Choudhary was a man of bad character and in the afternoon of 29.08.2007 he was trying to extort money from Ashok Kumar Ram and in the ensuing scuffle he suffered injuries. Ashok Kumar Ram has lodged Sector IV (SC/ST) P.S. Case No. 31 of 2007 on the same day against the informant and we have no doubt in our mind that this report also does not contain true facts, for it is not a case set up by the appellants that they have received injuries at the hands of the deceased or Manish Kumar Singh though one person has died and another one has suffered grievous injuries. On overall assessment of the materials on record, we come to a conclusion that the prosecution has suppressed the true manner of occurrence and the informant and other material witnesses have not truthfully deposed in the Court and, therefore, we are inclined to extend the benefit of doubt to the appellants.” 11. The law is now no more res integra that there cannot be any conviction on the basis of suspicion. In the case of State of Gujarat vs. Jayrajbhai Punjabhai Varu, 2016 (14) SCC 151 Para-20 the Hon’ble Apex Court held that the burden of prove in criminal law is beyond all reasonable doubt. The prosecution has to prove the guilt of the accused beyond all reasonable doubts and it is also the rule of justice in criminal law that if two views are possible on the evidence adduced in the case one bounding to the guilt of the accused and the other towards information; the view which is favorable to the accused should be adopted. 12. Looking to the overall facts and circumstances of the case it appears that there is so many lacunae in the prosecution case and merely on the basis of the deposition of the informant and that too no evidence has been adduced with respect to the criminal antecedent of the petitioner and/or his family members and in spite of the fact that the place of occurrence was fully crowded; no independent witness has been examined, conviction of the petitioner on mere surmises and conjecture appears to be bad in law. Learned trial court has failed to look into all these aspects making the order perverse. There will not be any exaggeration in holding that there was shady investigation which laid to the gaps in the prosecution story for which it cannot be said with certainty that the petitioner was involved in the offence and thus when two views are possible; conviction of the petitioner is not sustainable. The learned trial court as well as learned appellate court have failed to consider all these aspects of the matter. 13. In view of the aforesaid discussion the impugned judgments needs interference. The learned trial court as well as learned appellate court have failed to consider all these aspects of the matter. 13. In view of the aforesaid discussion the impugned judgments needs interference. Consequently, the judgment of conviction passed by the learned trial court dated 27.02.1993, in Sessions Trial No. 514 of 1989, arising out of Telco P.S. Case No. 0133 of 1988, corresponding to G.R. No. 881-A of 1988 and modified by the learned appellate court vide judgment dated 17.10.2003, are hereby, set aside. 14. Accordingly, the instant application stands allowed. 15. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse Ms. Apurwa Pathak, learned Amicus on submission of bills for this case @ Rs. 5,000/- per appearance subject to the maximum limit as per the applicable Notification. 16. Let a copy of this order be communicated to the courts below, the Secretary, Jharkhand High Court Legal Services Committee and also to the petitioner. 17. Let the lower court record be sent back to the court concerned forthwith.