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2023 DIGILAW 67 (JHR)

Didar Singh v. State of Jharkhand

2023-01-20

DEEPAK ROSHAN

body2023
JUDGMENT : DEEPAK ROSHAN, J. 1. Heard learned counsel for the parties. 2. This revision application is directed against the judgment dated 20.06.2007 passed by Additional sessions Judge-FTC VI, Dhanbad in criminal appeal No. 152/2006 whereby the judgment of conviction and order of sentence dated 26.6.2006 passed by learned J.M. 1st Class, Dhanbad corresponding to G.R. No. 3801/2003, T.R. No. 1201/2006, wherein the petitioner was convicted for the offence under Section 419 IPC and sentenced to undergo R.I. for a period of two and half years, has been affirmed and the appeal filed by the petitioner was dismissed. 3. The brief fact of the case as per the prosecution story is based on the written report (Ext-3) of the informant Sheo Chandra Choudhary (PW-1), Police Inspector-cum-Officer-in Charge, Dhanbad PS addressed to the CJM, Dhanbad stating inter-alia that he was directed to make an inquiry on a written report submitted to Superintendent of Police, Dhanbad by Dr. Leena Priya of Manoram Nagar, Dhanbad whereby she alleged that an unknown man had demanded a sum of Rs.5 lakhs from Dr. Leena Priya. It is also alleged in the FIR that when Dr. Leena Priya asked his name then he told his name as Ramadhin Singh and thereafter he disconnected the phone call. Dr. Leena Priya got the number of call as 9835102399 on her ID Caller. Thereafter she requested the Superintendent of Police, Dhanbad to inquire into the matter and protect her life. On this petition, the Superintendent of Police, Dhanbad directed the informant who being Officer-in-Charge of Dhanbad PS made an entry in the Station Diary and started to verify the matter and make inquiry therein. The informant allegedly verified the truth from Reliance Company and came to know that the said number was registered in the name of Pramod Sachdeva. The informant also got information from the exchange of Reliance Mobile as to how many outgoing calls were made from 27/10/2003 to 29/10/2003. The informant came to know that the man had called on telephone no. 2307095 belonging to Dr. Ram Lakhan Prasad, Telephone No. 2306762 belonging to Ashok Kumar Gupta, Telephone No. 2462225 belonging to Dr. Manjeet Singh, Telephone No. 2207532 belonging to Pragati Nursing Home, Saraidhela and on Telephone No. 065400293130 belonging to Singhbhum Mining Operation, Kumardhubi. The informant asked Pramod Sachdeva in course of inquiry and came to know that Pramod Sachdeva had a mobile bearing no. Ram Lakhan Prasad, Telephone No. 2306762 belonging to Ashok Kumar Gupta, Telephone No. 2462225 belonging to Dr. Manjeet Singh, Telephone No. 2207532 belonging to Pragati Nursing Home, Saraidhela and on Telephone No. 065400293130 belonging to Singhbhum Mining Operation, Kumardhubi. The informant asked Pramod Sachdeva in course of inquiry and came to know that Pramod Sachdeva had a mobile bearing no. 9835103399 which was lost at the Railway Station, Dhanbad and for which Pramod Sachdeva had lodged a report with GRP Dhanbad. It is also alleged in the FIR that the informant, in course of inquiry, came to know from the customers of the above mentioned telephone numbers that an unknown man claiming himself to be Ramadhin Singh had demanded Rs 2 lakhs, Rs.5 lakhs, and so on. The informant also came to know from Dr. Ram Lakhan Prasad that the unknown caller had inquired from him as to why transfer of Didar Singh had not been stayed. The informant allegedly came to the revisionist who confessed his guilt before the Police that he had got one mobile set bearing No. 9835103399 and had called on the above numbers. On the basis of said confessional statement before the police, the police allegedly recovered one SIM card torn in three pieces from the place disclosed by the petitioner. The police also allegedly seized two mobile phone sets having no. 03263102151 of Reliance India and another number 9835325308 of Samsung Mobile. The informant claimed that the accused used the stolen SIM Card and demanded several lakhs of rupees from different persons disclosing his name as Ramadhin Singh. That on the basis of the said written report of the informant, Dhanbad PS Case No. 698 of 2003 u/s 419, 420, 386, 387 IPC was registered on 1/10/2003 against the petitioner and a formal FIR (Ext-4) was drawn in this regard. After conclusion of the investigation, police submitted charge sheet against the accused-petitioner and on the basis of the charge sheet, the learned CJM, Dhanbad took cognizance of the offence vide order dated 31/10/2004 and transferred the case to the court of Sri Abhimanyu Kumar, JM-1 Class, Dhanbad for its disposal. 4. Mr. After conclusion of the investigation, police submitted charge sheet against the accused-petitioner and on the basis of the charge sheet, the learned CJM, Dhanbad took cognizance of the offence vide order dated 31/10/2004 and transferred the case to the court of Sri Abhimanyu Kumar, JM-1 Class, Dhanbad for its disposal. 4. Mr. Mohit Prakash, learned counsel appearing for the petitioner assailed the impugned judgment and submits that the petitioner has been falsely implicated in this case as nothing was recovered from his possession and the so called recovery is managed by the police officer at the instance of the informant. He further submits that whole case is based on the theory of using the name of one Ramadhin Singh although there may be several persons of the same name in the district and none of the prosecution witnesses has said that the petitioner has taken or used a proxy or there is any authentic proof of the same rather the conviction is based on mere surmises and conjecture made in the second FIR. The whole story of seizure based on confessional statement of the petitioner is false and baseless as the police took signature of the petitioner forcibly on the so-called confession at Dhanbad Police Station after his arrest and detention there for three days before forwarding to the court of CJM for judicial custody. He further submits that the informant Leena Priya has not been examined by the prosecution and all the seizure list witnesses have turned hostile and have not supported the story of the prosecution, hence conviction u/s 419 IPC is liable to be set aside. 5. Learned APP opposes the contention of the learned counsel for the petitioner and submits that no interference is required as there is concurrent finding and there is no error in the finding given by the courts below. 6. Having heard the learned counsel for the parties and after going through the LCR; I am of the opinion that the learned lower court and learned appellate court have erred in convicting and upholding the conviction of the petitioner as the petitioner is not the owner of the alleged SIM card from which calls were made in the name of Ramadhin Singh. It further transpires from the record that all the seizure witness have turned hostile and have not supported the story of the prosecution. It further transpires from the record that all the seizure witness have turned hostile and have not supported the story of the prosecution. Hon'ble Supreme Court in case of Aslam Parwez vs. Govt. of NCT of Delhi, (2003) 9 SCC 141 has categorically held that when the witnesses selected by the raiding party to witness the arrest or recovery of the incriminating articles, do not at all support the prosecution case is a very important feature of the case. The relevant para is quoted herein-below: “8. We will first consider the incident which is alleged to have taken place on 8-9-1987 when A-1, A-2 and A-3 were found to be in possession of arms, ammunitions, bombs and explosives in House No. 347, Kabir Basti, Subzi Mandi. It is the consistent statement of PW 10 Ram Narain, Head Constable, PW 11 V.P. Kohli, Inspector and PW 14 Surinder Kumar, SI that after the SHO of PS Subzi Mandi had informed them that some persons were illegally manufacturing arms in the factory, they decided to organize a raid and requested 3-4 passers-by to accompany them and that is how PW 3 Om Prakash Saxena, PW 2 Rakesh Kumar and others became members of the raiding party. However, all the four public witnesses, namely, PW 2, PW 3, PW 4 and PW 5, who were chosen by the raiding party to witness the arrest or recovery of the incriminating articles, did not at all support the prosecution case. PW 2 categorically stated in his examination-in-chief that nothing was recovered from the factory in his presence, while PW 3 stated that the recovered arms were shown to him at the police station. PWs 4 and 5 stated that they know nothing about the case. The statement of these witnesses does not show that they are in any manner connected with the accused or that there was any reason why they would depose falsely in order to help them and would not support the prosecution case. PW 2 is a graduate and was working as a clerk in DDA for the last 12 years. He appears to be a responsible person and there is no reason why he would make a false statement in Court. This is a very important feature of the case that all the four public witnesses examined in the case did not support the prosecution version of the incident.” 7. He appears to be a responsible person and there is no reason why he would make a false statement in Court. This is a very important feature of the case that all the four public witnesses examined in the case did not support the prosecution version of the incident.” 7. It transpires that owner of the alleged SIM card PW4 stated that he has given a report to G.R.P. Dhanbad for his lost phone, however no document has been brought on record by the prosecution for the reasons best known to them to prove the same. An adverse inference can be drawn against the prosecution as per section 114(g) of the Indian Evidence Act. The relevant section is quoted herein: “Section 114 in The Indian Evidence Act, 1872 .............. (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.” It further transpires from the record that the learned trial court in para 22 of the judgment has categorically stated that there was no delivery of any kind of property or valuable security to the accused by any of the witnesses. Therefore neither any damage nor injury was caused to any of the witnesses nor did they acted or omitted to act which they would not do or omit to do. It further transpires from the record that the learned appellate court in para 8 of the judgment has without any evidence has perversely drawn an inference that the call made to Dr. Ram Lakhan Prasad to stop the transfer of Didar Singh was made by the accused as he was the sole beneficiary of that. Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116 has categorically held that It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The relevant para is quoted herein below: “163. We then pass on to another important point which seems to have been completely missed by the High Court. The relevant para is quoted herein below: “163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. In Kali Ram vs. State of Himachal Pradesh, (1973) 2 SCC 808 : 1973 SCC (Cri) 1048 : AIR 1973 SC 2773 : (1974) 1 SCR 722 : 1974 Cri. L.J. 1, this Court made the following observations: “Another golden thread which runs through the web of the administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.” 8. Taking into consideration the facts that the prosecution was not able to bring on record the report of lost phone, the seizure list witness turning hostile, the observation of the learned trial court and the perverse inference of the learned appellate court, prosecution failed to prove beyond all reasonable doubts that it was the petitioner who made the calls personating himself to be Ramadhin Singh. In view of the discussions made hereinabove and judicial pronouncement the revision petitioner is entitled to get acquittal of the charge, levelled against him and as a result the sentence imposed is also not proper and the same is also liable to be set aside. 9. Consequently, the judgment dated 20.06.2007 passed by Additional sessions Judge-FTC VI, Dhanbad in criminal appeal No. 152/2006 and judgment dated 26.6.2006 passed by learned J.M. 1st Class, Dhanbad corresponding to G.R. No. 3801/2003, T.R. No. 1201/2006 are hereby, quashed and set aside. 10. The petitioner shall be discharged from the liability of his bail bonds. 11. Accordingly, the instant criminal revision application, is hereby, allowed and disposed of. Pending I.A. if any, is also closed. 12. Let a copy of this order be communicated to the courts below and the lower court record be sent to the court concerned forthwith.