Jharkhand High Court
Sukhendu Munda Son Of Kunu Munda ... vs The State Jharkhand on 26 April, 2023
Bench: Sujit Narayan Prasad, Subhash Chand
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 202 of 2015
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[Against the judgment of conviction and order of sentence dated
20.02.2014 passed by the learned Additional Sessions Judge-I,
Ghatshila in Sessions Case No. 125 of 2011]
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Sukhendu Munda son of Kunu Munda Resident of Jamua,
P.O. an Police Station - Shyam Sundarpur, District-East
Singhbhum. .... Appellant
Versus
The State Jharkhand... .... ... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
.....
For the Appellant : Mr. Jitendra S. Singh, Adv.
Mr. Randhir Kumar, Advocate
Mrs. Pinki Kumari, Advocate
For the State : Mrs. Nehala Sharmin, Special P.P.
.....
C.A.V. on 20/04/2023 Pronounced on 16/04/2023
Per Sujit Narayan Prasad, J.:
The instant appeal, filed under Section 374 (2) of the Code of Criminal Procedure, has been preferred against the judgment of conviction and order of sentence dated 20.02.2014 passed by learned Additional Sessions Judge-I, Ghatshila in Sessions Case No. 125 of 2011 by which the appellant has been found guilty and convicted for the offence punishable under Sections 147, 148, 149, 353 324, 307 and 302/149 of the Indian Penal Code; under Section 25(1-b)a/26/27/35 of the Arms Act; under Section 3/4 of the Explosive Substance Act and under Section 17 of the Criminal Law Amendment Act; and sentenced for the -2- offence under Section 302/149 of the Indian Penal Code to undergo rigorous imprisonment (RI) for life with hard labour with fine of Rs. 2000 (Two Thousand) and non- payment of fine he has to undergo Simple Imprisonment (SI) for six months; for the offence under Section 147 IPC he is sentenced for two years RI; for the offence under Section 148 IPC he is sentenced to undergo three years R.I; for the offence under Section 307/149 he is sentenced to RI for life with fine of Rs. 2000/-, non-payment of fine he has to undergo additional S.I. for six months; for the offence under Section 353/149 he is sentenced to undergo RI for two years; for the offence under Section 324/149 IPC he is sentenced RI for three years; for the offence under section 3 of Explosive Substance Act RI for life with fine of Rs. 2000, non-payment of fine he is directed to suffer six months additional SI; for the offence under Section 4 of the Explosive Substance Act he is sentenced RI for life with fine of Rs. 2000/- in default of payment of fine he is to undergo six months additional simple imprisonment; for the offence under Section 17 of the CLA Act he is sentenced to RI for three years; for offence under Section 25(1-a)35 of the Arms Act RI for seven years with fine of Rs. 2000((Two Thousand), non-payment of fine he will have to suffer six months additional simple imprisonment; for the offence under Section 25(1-b)/35 of the Arms Act he sentenced RI -3- for seven years with fie of Rs. 2000/- (Two Thousand), non- payment of fine he will suffer six months additional simple imprisonment; for the offence under Section 26/35 of the Arms Act he is sentenced seven years RI with fine of Rs 2000, non-payment of fine he will suffer six months additional SI; for the offence under Section 27/35 of the Arms Act he is sentenced to RI for seven years with fine of Rs. 2000, non-payment of which he will suffer six months additional SI. All the sentenced were directed to run concurrently.
2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of institution of prosecution case, as per fardbeyan of informant, which reads as under:
The informant-Indu Bhushan Kumar (P.W. 10) the Sub-Inspector of Police, Officer-in-Charge, Gurabandha Police Station, East Singhbhum, Jamshedpur has stated on 19.11.2009 at about 19.30 p.m. in his self-noted statement made at T.M.H. Hospital, Jamshedpur that on 19.11.2009 at about 14.00 hours he along with other police officials were returning from Shayamsundarpur Police Station to Gurabandha Police Station with anti-mine vehicle. At about 14.25 when the vehicle crossed the bridge made over Jhakhad Canal and reached the tree situated along the -4- road, all of a sudden there was heavy explosion due to which the land-mine vehicle bounced off in air and after colliding with tree fallen on earth in damaged condition.
There was dust all the sides and persons inside the vehicle sustained injury. The informant has further stated that he understood that they are in trap of mines planted by Extremists. He has further stated that before they could handle the situation, there was three-side firing from the mountain side situated in right side of road and voice was coming from that side that 'you are under the trap of Kanu Munda and if want to alive surrender otherwise will be killed' and some miscreants were stating to do firing and snatch the arms of police personnel. The informant has stated that under the leadership of MCC Dasta-Kanhu Munda they planted land mines to explode the vehicle.
It has further been stated that in their self-defense they started firing in the direction from where firing was made by the naxals and informed the senior police officials about the incidence and asked for help so that the injured may be sent for treatment to the hospital.
After sometime, the other police officials reached the place of occurrence and seeing them, the extremists fled away. Thereafter, the police party moved in the direction the extremists fled away and on search they recovered 7.65 mm pistol with two magazine with 14 -5- cartridges; three empty cartridges of S.L.R. 35 meters wire, one shirt, one cap with one pair of chapals. The informant party also fired 115 round bullets. Two police personnel, Ramjatam Baitha and Upendra Kumar Singh became seriously injured and during treatment Ramjatan Baitha died.
The informant in his fard beyan has further stated that Kanu Munda, Putu Munda, Supai Munda, Fogra Munda, Ravi, Lalit, Ghughlu Singh, Gulachh and others committed the alleged offence.
3. On the basis of fardbeyan of the informant, a formal F.I.R. was registered against the accused persons and the matter was investigated by the Investigating Officer, who after investigation submitted charge-sheet against the accused persons.
Thereafter the cognizance of the offence was taken and the case was committed to the Court of Sessions wherefrom the case was received in the Court of learned Additional Sessions Judge-I, Ghatshila for trial and disposal.
4. In course of trial, the prosecution has examined altogether 13 witnesses, namely, P.W. 1-Harishankar Mahato; P.W. 2-Chhabilal Mahato; P.W. 3-Rajendra Bhaduri; P.W. 4-Simon Lugun; P.W.5-Rajendra Kumar Dubey; P.W.6-Nand Kishore Mahato; P.W. 7-Sanatan Manjhi; P.W. 8-Dr. Lalan Choudhary; P.W. 9-Hawaldar -6- Brahmadeo Prasad Yadav; P.W. 10- Indu Bhushan Kumar (Informant); P.W.11-Dr. Jayant Kumar Layak; P.W. 12- Rajesh Kumar and P.W. 13-Kamalnath Munda, S.I. Gurabandha Police Station.
5. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused persons under Section 313 of the Criminal Procedure Code and found the charges levelled against the appellant proved beyond all reasonable doubt.
Accordingly, the appellant had been found guilty as such convicted and sentenced vide impugned judgment of conviction and order of sentence dated 20th February, 2014, which is the subject matter of instant appeal.
6. The aforesaid judgment of conviction and order of sentence is under consideration before this Court as to whether the trial Court, while convicting the accused person, has committed any illegality or not?
7 Mr. Jitendra S. Singh, learned counsel for the appellant has assailed the impugned judgment of conviction and order of sentence on the following grounds:
(I).That there is no conclusive piece of evidence to prove the complicity of the appellant said to be proved beyond all shadow of doubt save and except the T.I.P chart wherein the complicity of the appellant has been -7- shown but the said TIP chart has not proved rather the same has only marked as exhibit, hence, the judgment of conviction and order of sentence based on the basis of said TIP chart is not sustainable in the eye of law.
(II).Further ground has been taken that the informant (PW 10) in his testimony at paragraph 12 has categorically deposed, after identifying the appellant in the Court, that at the time of occurrence he saw him from the glass of anti-mines vehicle and they were telling that they are villagers of near village and extended offer of medical treatment.
It is therefore contended that once the informant (P.W. 10) has deposed that he is identifying the person (appellant) present in the dock of the Court who offered medical treatment to the injured police personnel hence by no stretch of imagination the appellant can be said to be culprit of explosion as after explosion under the cloud of dust they could have fled away and would not have been offering the medical help, as deposed by the appellant, but the learned Single Judge without appreciating these aspects of matter since has passed the impugned order of sentence and conviction, hence, the judgment -8- of conviction and order of sentence requires interference by this Court.
Learned counsel for the appellant on the basis of aforesaid grounds has submitted that the judgment of conviction and order of sentence is not sustainable in the eyes of law and as such the same is fit to be quashed and set aside.
8. While on the other hand, Ms. Nehala Sharmin, learned Special Public Prosecutor appearing for the respondent-State has submitted that there is no error in the impugned judgment of conviction and order of sentence since the learned trial Court after taking into consideration the testimony of witnesses to the occurrence has passed the impugned judgment of conviction and order of sentence.
So far as the argument advanced by learned counsel for the appellant that TIP chart has not been proved, it has been submitted by learned counsel for the State that T.I.P has been marked as exhibit and during the Test Identification Parade, the informant has identified the appellant, hence, non-proving of TIP chart will not vitiate the prosecution case.
Learned Additional Public Prosecutor on the basis of aforesaid ground has submitted that the judgment -9- of conviction and order of sentence requires no interference by this Court.
9. We have heard learned counsel for the parties, perused the material available on record more particularly the testimony of the witnesses and the finding recorded by learned trial Court.
10. This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the testimony of witnesses, as per the testimony recorded by learned trial Court.
P.W. 1, P.W. 2 and P.W. 3 have been declared hostile. P.W. 4-Simon Lugun, (Constable) has though supported the prosecution version but on the point of identification he has been declared hostile.
P.W. 5-Rajendra Kumar Dubey has stated in his examination-in-chief that on the alleged date of occurrence he was posted as Officer-in-Charge, Gurabandha Police Station and took charge of investigation of the case after transfer of Rajesh Kumar, ASI. He further deposed that obtained supervision report no. 2 and reached in village Bhakhar and took statement of retired Chowkidar Bhushan Nayak and he further recorded statement of Bilash Mahato and Harishankar Mahato.
So far this appellant is concerned, he has deposed that he obtained photocopy of confessional
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statement of Sukehndu Munda @ Ranjit @ Babloo recorded by Krishan Nandan Jha, the officer-in-charge, P.S. Shyamshunderpur, as also the confessional statement of other accused persons. In paragraph 3, he has deposed that TIP was made of accused Sukhendu Munda @ Ranjit and the learned Judicial Magistrate, Mr. M.P. Mishra took TIP and he obtained TIP chart. He further deposed that he sent requisition to Deputy Commission for obtaining prosecution sanction to proceed case under Section 3/4 of the Explosive Substantive Act which was obtained against the Sukhendu Munda @ Ranjit @ Bablu and others.
In his deposition he has further deposed that all the accused persons in their confessional statement have admitted about planting of land mines before one day before the occurrence.
P.W. 6-Nandkishor Mahato, has deposed that on the day of occurrence he was posted at Gurabandha Police Station. On that day he along with Officer-in-Charge, Gurabandha Police Station and other police personnel were going from Shyamsunderpur Police Station towards Gurabandha Police Station with anti-land mines vehicle and when reached near Bhakhar Dam, the vehicle was blasted and regular firing was made by 5-7 persons. He further deposed that Kanhu Munda and Dular Munda were abusing the police personnel and asking to snatch the
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weapons of police party. He has deposed that Ramjatan Baitha died due to grievous injury sustained by him. This witness also sustained injury in his left leg and in hands due to blast of vehicle. At paragraph 3 of his deposition, he has stated that he recognized the accused persons in TIP.
In his cross-examination he has deposed that seizure- list was prepared by Sub-Inspector of police, who made seizure-list in the police station and further the T.I.P was done in Jail.
P.W. 7-Sanatan Majhi, who is a police personnel, has also deposed the same version that when he along with other police personnel were going from Shyamsunderpur Police Station towards Gurabandha Police Station with anti-land mines vehicle and when reached near Bhakhar Dam, the vehicle was blasted and firing was made by extremists due to which some of them including he sustained injury and S.I. Ramjatan Baitha died during treatment in T.M.H. Hospital, Jamshepdur.
So far the present appellant is concerned, he has deposed that he also identified Sukhendu Munda who at the time of firing was present below the tree.
In his cross-examination he has stated that he saw the appellant at the place of occurrence.
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P.W. 8-Dr. Lalan Choudhary, is a formal witness, who conducted post-mortem over the dead body of Ramjatan Baitha.
P.W. 9-Hawaldar Barahmdeo Prasad Yadav, has stated that he was member of team and was returning with officer-in-charge Indu Bhushan Singh from Shyamsundarpur to Gurabandha Police Station and when they reached near canal the anti-mines vehicle was blasted by extremists due to which the vehicle was damaged. The extremists were asking to surrender else they will commit murder of them. He has further deposed that they informed the Superintendent of Police about the incidence.
P.W 10, Indu Bhushan Kumar, is the informant of the case. At paragraph 1 of his deposition he deposed that the occurrence took place on 19.11.2009 at about 2.25 pm in the day. At that time, he was going from Shyamsundarpur Police Station to Gurabandha with other police officials with anti land-mines vehicle. He further deposed that when the vehicle reached near the tree at Bhakhar Dam, bomb was exploded due to which the vehicle was collided with tree. Further, regular firing was made by Kanhu Munda, Putu Hullas, Ravi, Supai, Ghunghru and his team members. They were saying that the police party are in the trap of Kanhu Munda. The
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informant informed the matter to Superintendent of Police by his mobile.
At paragraph 4 he has stated that extremists who made firing was Kanhu Munda, Putu, Hulash, Supai, Rabi, Fogra, Rajesh and others. Kanhu Munda was saying to keep women extremists towards the side. At paragraph 5 he has deposed that today Shobha munda and Sukhendu were present in the Court, he identified them by face. He identified his signature on the written report.
However, in cross-examination, this witness has specifically stated after identifying the appellant that they were the persons who were telling at the place of occurrence that he is a villager and offered medical treatment, which the informant heard and saw from the glass of the vehicle.
For ready reference paragraph 12 of the
deposition is quoted as under:
"12.आज ज गण व गक क जआ
ग क क व म मण बग क म म ग क
औ भी ।"
P.W. 11-Dr. Jayant Kumar Layak, a doctor, is a formal witness, who made treatment of injured persons.
P.W. 12-Rajesh Kumar has stated in his examination-in-chief that on the alleged date of occurrence he was posted at Gurabandha Police Station as Sub-
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Inspector of Police. On the basis of statement made by S.I. Indu Bhushan F.I.R was recorded and signed by this witness. At paragraph 2 and 3, he has stated that he prepared seizure-list, which was signed by him. In cross- examination, he has deposed that TIP was not done in his presence.
P.W 13-Kamalnath Munda, Sub-inspector of Police is also a formal witness.
The learned trial Court on the basis of oral as well as documentary evidence available on record passed the impugned judgment or conviction and order of sentence, which is the subject matter of instant appeal.
11. This Court, after having considered the testimony of witnesses is now proceeding to consider the argument advanced by learned counsel for the appellant.
12. The ground has been agitated on behalf of appellant that there is no conclusive evidence, save and except the TIP chart but the said TIP chart has not been proved while learned counsel for the State has submitted that the said TIP chart has been exhibited.
13. The position of law is well settled that the conviction can only be based upon the conclusive evidence in order to prove the charge beyond all shadow of doubt. Conclusive evidence will only be said to be incriminating
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material produced before the Court in course of trial having been proved by the competent person.
It is also settled that merely marking a document as exhibit is not said to be sufficient to prove the charge beyond all shadow of doubt unless said document is to be proved so far as its contents is concerned but the same is lacking in the instant case.
Reference in this regard be made to the judgment rendered in Sait Tarajee Khimchand & Ors v. Yelamarti Satyam alias Satteyya & Ors [(1972) 4 SCC 562], wherein at paragraph 15 it has been held as under:
"15.The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs' books of account became important because the plaintiffs' accounts were impeached and falsified by the defendants' case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs' books would not have supported the plaintiffs."
Further, reference in this regard be made to the judgment rendered by Hon'ble Apex Court in Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC 745, wherein at paragraph 16 it has been held as under:
"16. Reliance is heavily placed on behalf of the appellant on the case of Ramji Dayawala & Sons (P) Ltd.The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has
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to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue". [Emphasis supplied] Likewise, the Hon'ble Apex Court in the judgment rendered in LIC v. Ram Pal Singh Bisen, (2010) 4 SCC 491 at paragraph 25 and 31 held as under:
"25. We are of the firm opinion that mere admission of a document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law.
"31. Under the law of evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the court. Contents of the document cannot be proved by merely filing in a court."
[Emphasis supplied] 14 It is evident from the impugned judgment, as per the consideration of TIP of Sukhendu Munda, the appellant herein i.e, Exhibit 9(ii) that the appellant has been identified by P.W. 10-Indu Bhushan Kumar, Sub-Inspector of Police, the informant. The informant has stated in his testimony that the appellant has been identified from the glass of the said vehicle while he along with others had assembled at the place of occurrence in order to provide medical treatment to the injured.
15. Question has been raised on behalf of appellant that it is highly improbable that the extremists as per the
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allegation after exploding the anti-mines vehicle the person who has committed such offence will assemble near the vehicle and offer for medical treatment to the injured, rather, the extremists after commission of crime will fled away from the place of occurrence.
Learned counsel for the appellant, on this very ground, has submitted that the sole testimony of informant is the basis of conviction since in the TIP chart the informant has disclosed to have identified the appellant.
16. This Court has considered the aforesaid submission and is not in a position to disagree with the same considering the conduct of the appellant to be present immediately after commission of crime of explosion of the vehicle in question and to ask the injured police personnel to provide medical aid and at that time the informant said to have identified from the glass having in the said vehicle.
The aforesaid version of the informant as has been deposed at paragraph 12 of his cross-examination according to our considered view cannot be said to be normal conduct of the appellant who after commission of crime will assemble at the place of occurrence for the purpose of providing the injured persons to provide medical aid.
Furthermore, P.W. 7-Sanathan Manjhi though in his deposition has stated to had seen the appellant under
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the tree at the time of firing but no where he has deposed that this appellant was armed with weapon or was firing at the police personnel, which goes to suggest that the appellant was present at the place of occurrence and also offered medical help to the injured police, which fact has been corroborated by the informant himself at paragraph 12 of his testimony.
17. Therefore, by taking together the testimony of P.W. 7 and the P.W. 10 (Informant) wherein this Court has found wide contradiction with the prosecution version coupled with the fact that the T.I.P chart has only been marked exhibit, which cannot be held to be a due proof of its content, as such the only conclusion this Court can arrive at that the prosecution has failed to prove the charge beyond all shadow of doubt.
18. The position of law is well settled that the judgment of conviction can only be passed on the basis of charges is proved beyond all reasonable doubt.
Reference in this regard be made to the judgment rendered in Rang Bahadur Singh & Ors Vs. State of U.P. [(2000) 3 SCC 454, in particular paragraph 22, which reads as under:
22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind
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ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime.
Further, reference in this regard be made to the judgment rendered in the case of Sheila Sebastian Vs. R. Jawaharaj &Anr. reported in (2018) 7 SCC 581, wherein at paragraph 28, it has been held as under:
28. In this case at hand, the imposter has not been found or investigated into by the officer concerned. Nothing has been spilled on the relationship between the imposter and Respondent
1. Law is well settled with regard to the fact that however strong the suspicion may be, it cannot take the place of proof. Strong suspicion, coincidence, grave doubt cannot take the place of proof. Always a duty is cast upon the courts to ensure that suspicion does not take place of the legal proof. In this case, the trial court as well as the appellate court got carried away by the fact that accused is the beneficiary or the executant of the mortgage deed, where the prosecution miserably failed to prove the first transaction i.e. PoA as a fraudulent and forged transaction. The standard of proof in a criminal trial is proof beyond reasonable doubt because the right to personal liberty of a citizen can never be taken away by the standard of preponderance of probability.
19. This Court, on the basis of discussions made hereinabove, is of the considered view that the prosecution has failed to establish the charge levelled against the present appellant beyond all reasonable doubt, as such the
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impugned judgment of conviction and order of sentence require interference.
20. Accordingly, judgment of conviction and order of sentence dated 20.02.2014 passed by the learned Additional Sessions Judge-I, Ghatshila in Sessions Case No. 125 of 2011 is hereby quashed and set aside.
21. Resultantly, the appellant, named above is acquitted and discharged from the criminal liability.
The learned Court below is directed to release the appellant forthwith, if not remanded in any other case.
22. In the result, the instant appeal stands allowed.
23. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.
I Agree (Sujit Narayan Prasad, J.)
(Subhash Chand, J.) (Subhash Chand, J.)
Jharkhand High Court, Ranchi
Alankar / A.F.R.