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2022 DIGILAW 54 (JHR)

Anirudh Pradhan v. State of Jharkhand

2022-01-07

NAVNEET KUMAR

body2022
JUDGMENT : The instant criminal appeal has been preferred against the judgment of conviction and order of sentence dated 16.08.2003 and 22.08.2003 respectively passed by the court of 3rd Additional Sessions Judge, Chaibasa in Sessions Trial No. 125 of 1997 whereby and whereunder the learned trial court convicted both the appellants for the offence punishable under Section 307/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for 7 years therein. 2. Briefly stating, the prosecution story as unfolded in the beyan of the informant P.W. -1 Daya Nidhi Pradhan was recorded by ASI Raj Kumar Choudhary of Keraikella, Police Station on 08.10.1991 at 02:00 hours. The informant alleged that his sister was married to Akhil Pradhan who drove her out of his house after assaulting and since then his sister had been living with the informant. On 08.10.1991 his Bahnoi Akhil Pradhan came his village with one miscreant (gunda) namely Anirudh Pradhan. On that day at 12:30 in the day when the informant had gone to river for taking bath, Akhil Pradhan along with Anirudh Pradhan came at river and his Bahnoi ordered Anirudh to kill the informant, upon which Anirudh Pradhan in order to kill him fired with his country made pistol at his stomach but the cartridge misfired and the informant raised hulla upon which the people taking bath in the river came there running and Anirudh Pradhan was caught with pistol by Premchand Pradhan, Manoj Pradhan and Rudo Pradhan. They also caught hold of Akhil Pradhan and brought them before Sarpanch, namely Lobin Bankira and from there they were brought to the police station where the accused persons were handed over to the police with the pistol. 3. On the basis of the aforesaid beyan of the informant, the officer-in-charge, Bandgaon, Police Station registered the above case under Sections 307/498(A)/109/34 I.P.C. and 25(A) Arms Act and had drawn a formal F.I.R. Police investigated the case and submitted charge sheet. Cognizance of the offence was taken and the case was committed. The learned trial court framed the charge against the appellant no. 2 Akhil Pradhan for the offence punishable under Sections 498(A) and 307/34 of the Indian Penal Code and Section 25(A) of the Arms Act read with Section 34 of the Indian Penal Code and the appellant no. Cognizance of the offence was taken and the case was committed. The learned trial court framed the charge against the appellant no. 2 Akhil Pradhan for the offence punishable under Sections 498(A) and 307/34 of the Indian Penal Code and Section 25(A) of the Arms Act read with Section 34 of the Indian Penal Code and the appellant no. 1 Anirudh Pradhan was charged for the offence punishable under Section 307/34 of the Indian Penal Code and 25(A) of the Arms Act read with Section 34 of the Indian Penal Code and trial of the case commenced. 4. After conclusion of the trial, the learned trial court found both the appellants guilty for the offence punishable under Section 307/34 of the Indian Penal Code and acquitted both the appellants Anirudh Pradhan and Akil Pradhan from rest of the charges and accordingly they were sentenced therein which is under challenge. 5. Heard Mr. Rajendra Pd. Gupta, learned counsel appearing for the appellants and Mr. Shiv Shankar Kumar, learned A.P.P. for the State. Arguments on behalf of the Appellants 6. Assailing the impugned judgment of conviction and order of sentence, it has been submitted on behalf of the appellants that the learned trial court has committed gross error in passing the impugned judgment of conviction and order of sentence as it did not appreciate the evidences in a right prospective. The learned trial court did not consider the fact that the informant did not sustain any injuries and even after acquitting the appellants under Section 498-A of the Indian Penal Code and Section 25 (A) of the Arms Act found them guilty for the offence punishable under Section 307 of the Indian Penal Code when there was an allegation that the appellants had tried to kill the informant with the pistol shot. Further the learned trial court has failed to appreciate that the I.O. in this case has not been examined and, therefore, the factum of occurrence has not been established and when the very genesis of the charges for causing the offence of attempt to commit the murder by the gun/arms is not proved then the offence of Section 307 of the Indian Penal Code is also not proved in absence of any trace of evidence to infer the intention, knowledge or by any means under which the appellants have attempted to commit the murder of the informant and, therefore, the impugned judgment of conviction and order of sentence is bad in law. Arguments on behalf of the Respondent 7. The arguments on behalf of the State by the learned A.P.P. appearing on behalf of the State strongly opposed the contentions raised on behalf of the appellants and has submitted that there is no illegality in the impugned judgment of conviction and order of sentence and the learned trial court has rightly appreciated the evidences available on records and found the appellants guilty for the offence punishable under Sections 307/34 of the Indian Penal Code and, therefore, there is no legal point to interfere in the impugned judgment of conviction and order of sentence and this appeal is fit to be dismissed being devoid of merit. Appraisal and Findings 8. Having heard the parties including Mr. Rajendra Pd. Gupta, the learned defence counsel appearing on behalf of the appellants and Mr. Shiv Shankar Kumar, the learned A.P.P. appearing on behalf of the State, perused the records of the case including the lower court records. 9. It is admitted case of the prosecution that the informant P.W. -1 (Daya Nidhi Pradhan) was the brother-in-law (Sala) of the appellant no. 2 Akhil Pradhan. The charges were framed by the learned trial court against the appellant no. 1 for the offence punishable under Sections 307/34 of the Indian Penal Code and Section 25(A) of the Arms Act read with Section 34 of the Indian Penal Code and against the appellant no. 2 Akhil Pradhan the charges were framed for the offences punishable under Sections 498-A, 307/34 of the Indian Penal Code and Section 25(A) of the Arms Act read with Section 34 of the Indian Penal Code. 10. The learned trial court after conducting the trial acquitted the appellant no. 2 Akhil Pradhan the charges were framed for the offences punishable under Sections 498-A, 307/34 of the Indian Penal Code and Section 25(A) of the Arms Act read with Section 34 of the Indian Penal Code. 10. The learned trial court after conducting the trial acquitted the appellant no. 1 for the offence punishable under Section 25(A) of the Arms Act and they acquitted appellant no. 2 for the offences punishable under Sections 498A and 25(A) of the Arms Act but both the appellants have been convicted for the offences punishable under Sections 307/34 of the Indian Penal Code. It is evident from the deposition of P.W. -1 that both the appellants had caught the informant and fired by pistol but the gun got misfired thereupon he raised hulla and when the several villagers came namely Rudo Pradhan, Poresh Chandra Pradhan, Shantanu Pradhan and other villagers then both the appellants were apprehended and caught by them and they were taken to Sarpanch and, thereafter the accused persons were handed over to the police. 11. The learned trial court has acquitted both the appellants for the offence punishable under Section 25(A) of the Arms Act and, therefore, the case of the prosecution could not get proved about the charges of firing by the pistol upon the informant in order to commit his murder which is the genesis of the offence punishable under Section 307 of the Indian Penal Code and it remains uncorroborated and unproved and further there is no iota of evidence by which the intention or knowledge of the accused persons could be inferred to commit the offence of attempt to commit murder of the informant. Further the motive that is the cruelty and torture caused by the appellant no. 2 Akhil Pradhan to his wife has also not been proved particularly in absence of the examination of his wife and, therefore, there is not even a slightest evidence either of knowledge, intention or motive to commit the offence of murder to the informant is corroborated nor any evidence of cruelty or harassment or any wilful conduct either by her husband Akhil Pradhan or his relatives is found either in the FIR or in the testimonies of the witnesses examined on behalf of the prosecution. Neither the offence under section 498-A nor the offence under Arms Act has been proved in the trial court although the charges were framed therein. 12. The defence which has been taken by the accused persons as evident from their statements recorded under Section 313 Cr.P.C. and also emanating from the suggestion put in the cross-examination of P.W. -1 (informant) that out of the anguish of the dissolution of the marriage between the appellant no. 2 and his wife who was the sister of the informant, both the accused persons have been apprehended and they were caught by the informant and the villagers tied both the appellants by the rope and thereafter both of them have been handed over to the police. It is an admitted case that the marriage was taken place between the appellant no. 2 Akhil Pradhan and the sister of the informant and after 1-2 years, the marriage was dissolved and both have solemnized another marriage as stated by P.W. -1 (informant) in the court's question categorically and explicitly. 13. In this view of the matter, the defence taken by the accused appellants cannot be ruled out and found true in absence of even an iota of evidence for committing the offence of attempt to commit the murder by the appellants to the informant. P.W. -2 had categorically stated in Para – 6 that both the appellants were at first taken to the house of the informant by roping their hands and legs and Sarpanch was called and thereafter they were handed over to the police. Thus the defence taken by the accused-appellants in their statements recorded under Section 313 Cr.P.C. is corroborated by the version of this witness P.W. -2 Poresh Chandra Pradhan to the effect that the informant along with the villagers had tied the hands and legs of both the accused appellants and handed over to the police. Further, neither the charges of offence punishable under Section 498A nor the Arms Act have been substantiated and proved in the trial before the learned court below and, therefore, there is no evidence or ingredient by which the offence under Section 307 is inferred against these two accused-appellants and thus the testimonies of P.W.2 also gets falsified and he is also found unreliable witness not to be believed. 14. 14. Further the case of the informant (prosecution) also gets falsified when a few FIR named witnesses have been examined namely Rudo Pradhan as P.W. -3 who turned hostile and he categorically stated in paragraph – 1 that he had seen both the accused appellants were tied with the pole before the house of the informant and, therefore, the defence taken by the accused appellants further gets corroborated by the version of this witness P.W. -3. Further, another witness P.W. -4 Govind Chand Pradhan examined on behalf of the prosecution also turned hostile and he categorically stated that he did know about the occurrence. P.W. 5 Santanu Pradhan @ Santosh Pradhan is another witness examined on behalf of the prosecution who candidly stated in his testimonies that he had seen both appellants Anirudh Pradhan and Akhil Pradhan were caught by the people and there was nothing in their hands and, therefore, the version of this witness totally falsifies the case of the prosecution that the appellant no. 1 was caught with pistol and the same was deposited in the police station but the appellants have been acquitted under the Arms Act. Another FIR and seizure list named witness P.W.6 Manoj Pradhan has also been declared hostile and he did not support the case of the prosecution. Even the testimony of P.W.1 also gets falsified as P.W.1 stated in para 6 that the appellants were caught along with pistol which was deposited in police station which is found to be totally false as both the appellants have been acquitted for offence punishable under section 25-A of the Arms Act by the learned trial court. Thus the testimonies of the alleged victim P.W.1 is found to be wholly unreliable evidence and his testimonies deserve to be discarded in totality. In this view of matter the defence taken on behalf of the accused-appellants that the informant was aggressive and he had taken the initiative to rope them and to hand over to the police is found true in view if admitted fact that the informant was sala (brother-in-law) of the appellant no.2 Akhil Pradhan whose wife did not live with her and marriage has been dissolved and both solemnized their another marriages. 15. 15. Even in the FIR it has been clearly stated that the appellant no.1 Anirudh Pradhan had been caught red handed and both the appellants were handed over to the police along with country made pistol but both the appellants have been acquitted of the charges of Arms Act establishing the fact that the statements made in FIR are not reliable as same has not been corroborated by the testimonies of the witnesses or any cogent evidence. P.W.2 has proved his signatures in the seizure list as Ext-1 and in the bayan of the informant as Ext.1/2 and also proved the signatures of other witnesses of the seizure list and Bayan as Ext.1/1(Manoj Pradhan : P.W.6 in seizure list), 1/3 (Manoj Pradhan: P.W.6 in Bayan) and 1/4 (Rudro Pradhan: Ext.1/4 in Bayan). But neither the version of FIR alleging the appellants used to hold country made pistol nor the articles of seizure list have been duly proved which is evident from the impugned judgment where both the appellants have been acquitted under section 25(A) of Arms Act. Even the I.O. in this case has not been examined and hence neither the FIR nor the seizure has been proved as per the prescribed procedure and ironically the appellants have been convicted for the offence punishable under section 307/34 of IPC. It is also admitted case of the prosecution that no injury has caused to the victim informant and there is no occasion to infer either intention or knowledge for attempt to commit murder in absence of any evidence of the weapon used, nature of injuries or any slightest evidence to that effect. The non-examination of the Investigating Officer is fatal for the prosecution in this case as the accused-appellants have been deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their earlier statements before the police. The examination of the I.O. is necessary in order to bring on record the contradictions in the statement of witnesses and such a right is a valuable right of the accused. Non-Examination of I.O. is a serious infirmity in the present case because the allegations made in the FIR against the appellants are not proved as discussed above and even the FIR named witnesses P.W.3 and P.W.6 have turned hostile as discussed in detail above. Non-Examination of I.O. is a serious infirmity in the present case because the allegations made in the FIR against the appellants are not proved as discussed above and even the FIR named witnesses P.W.3 and P.W.6 have turned hostile as discussed in detail above. Thus charges levelled against the accused appellant are not proved and the learned trial court did not appreciate the evidences in the right perspective and findings of the court below are wholly perverse and misconceived. Further P.W. 7 is the Clerk of the Legal Section of the D.C. office who is said to have identified the signature of the D.C. on the sanction letter as Exhibit – 5 which was relevant to the offence punishable under Section 25(A) of the Arms Act in which both the appellants have been acquitted by learned Trial Court. 16. In view of the aforesaid discussions and recapitulating the testimonies of the witnesses and other evidences, this Court comes to the conclusion that the learned trial court has committed gross error in holding the guilt of the accused-appellants for the offence punishable under Section 307 read with section 34 of the Indian Penal Code in absence of any iota of evidence and as such impugned judgment of conviction and order of sentence do not deserve to be sustained. 17. Having taken into considerations the aforesaid findings under the facts and circumstances, the impugned judgment of conviction for the offence punishable under Sections 307/34 of the Indian Penal Code dated 16.08.2003 and order of sentence dated 22.08.2003 passed against both the accused-appellants for the offence punishable under Sections 307/34 of the Indian Penal Code by the learned 3rd Additional Sessions Judge, Chaibasa in Sessions Trial No. 125 of 1997, corresponding to G. R. Case no. 327 of 1991 arising out of Bandgaon (Keraikella) P. S. Case No. 41 of 1991, is set aside. 18. This appeal is allowed. 19. Since both the accused-appellants are on bail, they are discharged from the liabilities of their bail bonds. 20. Let the lower court record be sent back forthwith to the concerned court below.