Jharkhand High Court
State Of Jharkhand vs Santosh Singh on 27 February, 2023
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
Acquittal Appeal No. 4 of 2002
With
-1- Criminal Revision No.112 of 2002
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Acquittal Appeal No. 4 of 2002
(Against the Judgment of acquittal dated 19.12.2001, passed by the 1st
Additional Sessions Judge, East Singhbhum, Jamshedpur in Sessions
Trial No.578 of 1995).
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State of Jharkhand ... ... Appellant
Versus
1. Santosh Singh, son of Uday Narayan Singh, Resident of
Line No.9, House No.257, Kasidih, P.S. Sakchi, Jamshedpur,
District East Singhbhum.
2. Manoj Kumar Jaiswal, Son of Sheo Nath Pd. Jaiswal,
resident of Line No.6, Holding No.148, Kasidih, P.S. Sakchi,
Jamshedpur, District East Singhbhum.
3. Chandrwali Singh alias Chandra, Son of Ram Kishore
Singh, resident of Line No.171, Bhalubasa, P.S. Sitaramdera,
District East Singhbhum.
4. Mahesh Kumar Gupta alias Mama Son of Jugan Shah,
resident of Naya Tola Bakhtiarpur, Patna District Patna.
5. Bishu Chourasiya, son of Rama Kat Chaurasiya resident of
Line No.8 Kasidih, P.S. Sakchi, Jamshedpur, District East
Singhbhum.
6. Dilip Kumar, Son of Radha Kant, Resident of Nehru Colony,
Golmuri, Jamshedpur, District East Singhbhum.
7. Pradeep Kumar, son of Radha Kant resident of Ratu Road,
P.S. Sukhdev Nagar, District Ranchi.
8. Deleted vide order dated 5th November, 2012.
9. Sankar Dayal Dubey, son of Swami Dayal Dubey, resident
of Sidhgora, Cross Road No.1, P.S. Sidhgora, Jamshedpur,
District East Singhbhum.
10. Binod Kumar, Son of Radha Kant resident of Ratu Road,
P.S. Sukhdev Nagar, District Ranchi.
... ... Accused Persons/Respondents
With
Criminal Revision No.112 of 2002
Birendra Kumar, S/O Late T.P.Singh, Resident of Quarter
No.114, East Plant Basti, P.S. Barmamines, Town
Jamshedpur, District - Singhbhum East.
... ... Petitioner
Versus
1. The State of Jharkhand
2. Santosh Singh, S/O Uday Narayan Singh, Resident of Line
No.9, House No.257, Kasidih, P.S. Sakchi, Jamshedpur,
Acquittal Appeal No. 4 of 2002
With
-2- Criminal Revision No.112 of 2002
District East Singhbhum.
3. Manoj Kumar Jaiswal, S/O Sheonath Prasad Jaiswal,
Resident of Line No.6, Holding No.148, Kasidih, P.S. Sakchi,
District Jamshedpur.
4. Chandrabali Singh @ Chandar, S/O Ram Kishore Singh,
resident of House No.171, Bhalubasa, P.S. Sitaramdera,
Jamshedpur, District Singhbhum East.
5. Mahesh Kumar Gupta @ Mama S/O Jugan Saw, Resident
of Nayatola Baktiarpur, Patna.
6. Bishu Chourasia, S/O Rama Kat Chaurasia Resident of
Line No.8 Kasidih, P.S. Sakchi, Jamshedpur, District
Singhbhum East.
7. Dilip Kumar, S/O Radha Kant, Resident of Nehru Colony,
P.S. Golmuri, Jamshedpur, District Singhbhum East.
8. Pradeep Kumar, S/O Radha Kant Resident of Ratu Road,
P.S. Sukhdeo Nagar, District - Ranchi.
9. Deleted vide order dated 5th November, 2012.
10. Sankar Dayal Dubey, S/O Swami Dayal Dubey, Resident
of Sidhgora, Cross Road No.1, P.S. Sidhgora, Jamshedpur,
District Singhbhum East.
11. Binod Kumar, S/O Radha Kant Resident of Ratu Road,
P.S. Sukhdeo Nagar, District - Ranchi.
... ... Opposite Parties
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In Acquittal Appeal No. 4 of 2002
For the Appellant : Mr. Saket Kumar, A.P.P.
For Resp. Nos.1,2, 3 & 5 : Mr. A.K.Chaturvedy, Advocate
For Resp. Nos. 6 & 7 : Mr. Nilesh Kumar, Advocate
Miss Sonal Sodhani, Advocate
Ms. Priyanka Agrawal, Advocate
For the Resp. No.9 : Mrs. J.Mazumdar, Advocate
Mr. Parambir Singh Bajaj, Advocate
For the Resp. No.10 : Mr. A.N. Deo, Advocate
In Criminal Revision No.112 of 2002
For the Petitioner : Mr. P.P.N.Roy, Sr. Advocate
: Mr. Pandey Ashok Nath Roy, Advocate
Mrs. Pragati Prasad, Advocate
For Resp.-State : Mr. Pankaj Kr. Mishra, A.P.P.
For Resp. Nos.2,3,4 & 6 : Mr. A.K.Chaturvedy, Advocate
For Resp. Nos. 7 & 8 : Mr. Nilesh Kumar, Advocate
Ms. Priyanka Agrawal, Advocate
For the Resp. No.10 : Mrs. J.Mazumdar, Advocate
Mr. Parambir Singh Bajaj, Advocate
For the Resp. No.11 : Mr. A.N. Deo, Advocate
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PRESENT
Acquittal Appeal No. 4 of 2002
With
-3- Criminal Revision No.112 of 2002
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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C.A.V. on 01.02.2023 Pronounced on 27.02.2023
Per Sujit Narayan Prasad, J.
Acquittal Appeal No.4 of 2002 has been preferred by the State whereas Criminal Revision No.112 of 2002 has been preferred by Birendra Kumar Singh, the informant challenging the same impugned Judgment by which the accused persons have been acquitted, as such, with the consent of the learned counsel for the parties, the acquittal appeal and criminal revision have been heard together and are being disposed of by this common Judgment.
2. It appears from order dated 5th November, 2012 passed in the instant appeal that since Radha Kant-Respondent No.8 in Acquittal Appeal No.4 of 2012, has died the appeal stands abated against him and in Criminal Revision No.112 of 2002 his name has been deleted from the array of the respondents.
3. It has also come in the order dated 24th August, 2016 that Mahesh Kumar Gupta- Respondent No.4 in Acquittal Appeal No.4 of 2012 and Respondent No.5 in Criminal Revision No.112 of 2002, has also died.
Therefore, the appeal stands abated against him. His name be deleted from the array of respondents.
4. In Acquittal Appeal No.4 of 2012 the State appellant has been represented by Mr. Saket Kumar, A.P.P., Respondent Acquittal Appeal No. 4 of 2002 With
-4- Criminal Revision No.112 of 2002 Nos.1, 2, 3 and 5 have been represented by Mr. A.K.Chaturvedy, learned counsel, Respondent Nos. 6 and 7 have been represented by Mr. Nilesh Kumar, Respondent No.9 has been represented by Mrs. J. Mazumdar and Mr. Paramvir Singh Bajaj, learned counsel and Respondent No.10 has been represented by Mr. A.N.Deo, learned counsel.
In Criminal Revision No.112 of 2002, the petitioner has been represented by Mr. P.P.N. Roy, Senior counsel whereas Respondent No.1-State has been represented by Mr. Pankaj Kumar Mishra, A.P.P., Respondent Nos.2, 3, 4 and 6 have been represented by Mr. A.K.Chaturvedy, learned counsel, Respondent Nos. 7 and 8 have been represented by Mr. Nilesh Kumar, Respondent No.10 has been represented by Mrs. J. Mazumdar and Mr. Parambir Singh Bajaj, learned counsel and Respondent No.11 has been represented by Mr. A.N.Deo, learned counsel.
5. The State-appellant in Acquittal Appeal No.4 of 2002 and the informant-petitioner in Criminal Revision No.112 of 2002 are aggrieved by the impugned Judgment dated 19.12.2001, passed by the 1st Additional Sessions Judge, East Singhbhum, Jamshedpur in Sessions Trial No.578 of 1995, whereby the accused respondents/opposite parties, who were facing the trial for the offences under Sections 302/34, 302/120B and 302 of the Indian Penal Code and Section 27 of the Arms Act, were acquitted of the charges.
Acquittal Appeal No. 4 of 2002
With
-5- Criminal Revision No.112 of 2002
6. The prosecution story in short is that the informant Birendra Kumar Singh, son of Thakur Prasad Singh, resident of East Plant Bastee, P.S.Burmamines. Jamshedpur, District East Singhbhum gave a fardbeyan on 15.04.1994 at about 8.30 A.M morning in T.M.H before Sub-Inspector S.M. Singh of Sakchi Police Station alleging therein that today i.e., on 15.04.1994 at about 7.35 A.M. in the morning, as per his usual routine he, proceeded from his house on his scooter No. B.P.N.9087 along with his father Thakur Prasad Singh to open his shop Bihar Motors, situated at Kalimati Road, Sakchi. He dropped his father in the shop and to make enquiry about his Bus Saraswati Travel he went to Sakchi Bus stand. After sometime he was returning again to his shop along with his cousin brother Radho Sharan Singh from the Bus stand. It is also alleged that as soon as he reached Sagar Hotel at about 8 A.M. he heard two or three fired shot sound and when he reached in front of his shop, on road, he saw his father fallen on the ground sustaining fire shot and also saw Santosh Singh son of Uday Singh of Kashidih, Line No. 9, P.S. Sakchi, Sanjay Prasad, son of Rajendra Prasad of Old Baradwari. P.S.Sakchi and Chandrabali Singh @ Chandan son of Kishore Singh, House No.171, Bhalubasa P.S. Sitaramdera pointing pistols in their hands and they were uttering nobody should come forward otherwise they will be killed like T.P.Singh. By the side of them for their help Manoj Prasad son of Sheo Nath Acquittal Appeal No. 4 of 2002 With
-6- Criminal Revision No.112 of 2002 Prasad, Kashidih. Road No.4, P. S. Sakchi, Bisu Chourasia son of Ramanand Chourasia, Kashidih, Road No.8,.P.S. Sakchi, who had pistols in their hands were also shouting in order to threatened as many people were standing there who witnessed the occurrence with their own eyes and identified the miscreants. The criminals were seven in number, out of them he could not identify two but claimed to identify by face. It is further alleged that, in the meantime they all went towards Kashidih Bagan Area through a lane situated beside the place of occurrence giving threats to the people. All the criminals were local and they used to sit in the generator shop of Bishu Chourasia. It has been alleged that the informant and his cousin brother along with Shyam Sundar Singh took his injured father to T.M.H. on a tempo for treatment where the doctor declared his father to be dead. The reason and motive for the occurrence is that of Chaibassa -Purulia Road route for which there was a difference between him and Radha Kant son of Lakhan Lal of Ranchi since the year 1988. The two sons of Radha Kant namely Binod Kumar and Pradeep Kumar used to live at Chakradharpur and Dilip Kumar resident of Nehru colony, P.5, Golmuri, Jamshedpur. It has been further alleged that one day before the occurrence Dilip Kumar had come to his shop where he was with his father. On reaching, Dilip Kumar threatened his father saying that in the matter of permit he would not go to High Court. On this his father told Acquittal Appeal No. 4 of 2002 With
-7- Criminal Revision No.112 of 2002 that he will go to High Court till 24th May, upon this Dilip Kumar became very much agitated and uttered that by that time if you are alive then you will go and left the shop. The informant has claimed that the above named accused Radha Kant and his three sons Dilip Kumar, Binod Kumar and Pradeep Kumar hatching a deep routed conspiracy with the above criminals namely Santosh Singh, Sanjay Prasad, Chandrabali, Manoj Prasad, Bishu Chourasia and two unknown murdered his father and now he and his family members and relative apprehends future danger.
7. On the basis of the fardbeyan Sakchi P.S.Case No.62/94 dated 15.4.94 was instituted against nine F.I.R. named accused and two unknown miscreants under Sections 302/120B of the Indian Penal Code and Section 27 of the Arms Act. After investigation the police submitted charge- sheet against accused Chandrabali Singh Chandar, Santosh Singh, Shankar Dayal Dubey, Manoj Kumar Manoj Kumar Agarwal, Dilip Kumar, Rabi Chourasia, Mahesh Kumar Gupta @ Mamu, Radha Kant, Binod Kumar and Pradeep Kumar and also submitted charge sheet against accused Bishu Chourasia, Sanjay Prasad and Sinu Rao showing them absconders. Out of these accused persons two accused Sanjay Prasad and Sinu Rao did not face trial as they were absconding and accused Rabi Chourasia was also absconding, hence his trial was separated and the case was numbered as Sessions Trial No. Acquittal Appeal No. 4 of 2002 With
-8- Criminal Revision No.112 of 2002 578A of 1995. The police after investigation submitted charge- sheet on 11.07.1994 in Court vide Charge sheet No.66/94 dated 30.6.94.
8. The case was committed to the Court of Sessions in which the accused persons pleaded not guilty and claimed to be tried.
9. The prosecution in support of its case has adduced altogether seven charge sheet witnesses namely P.W. 1 Gurudeep Singh @ Pappu. P.W.2 Ragho Sharan Singh, P.W. 3 Upendra Kumar, P.W.4 Dr. Lalan Choudhary, P.W.5 Lalan Choudhary, P.W.6 Birendra Kumar(informant) and P.W.7 Kanhaiya Upadhaya, the I.O. The prosecution has further adduced two non-charge-sheeted witnesses P.W.8 Bishwanath Sahu, a photographer and P.W.9 Shyam Sundar Prasad Singh.
Three witnesses as court witness have been examined as C.W.1 Sashi Bushan Prasad, Principal, Panch Parjung Kishan College, Bundu, C.W.2 Dr. Anil Kumar Mahto, Controller of Examination, Ranchi University and C.W.3 Vijay Kumar Choudhary.
Prosecution has also got exhibited material exhibits. The learned trial court, on appreciation of the rival submissions advanced on behalf of the parties as also by taking into consideration the oral and documentary evidence adduced on behalf of the parties, has found that the Acquittal Appeal No. 4 of 2002 With
-9- Criminal Revision No.112 of 2002 prosecution has not been able to prove any of the charge beyond reasonable doubt and has held the accused persons not guilty of the charges and, as such, acquitted them from the said charges, which is the subject matter of the instant appeal and revision.
10. Mr. Saket Kumar, learned A.P.P. appearing for the State appellant in criminal appeal as also Mr. P.P.N. Roy, learned senior counsel appearing for the petitioner in criminal revision, have taken the ground in assailing the impugned judgment of acquittal that the testimony of the eye witnesses i.e., P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary along with the testimony of the Investigating Officer, P.W.7 have totally been discarded without taking into consideration the fact that P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary have witnessed the occurrence committing crime of murder of deceased and, therefore, the impugned judgment of acquittal is perverse and, as such, not sustainable in the eyes of law, hence fit to be set aside.
11. On the other hand, learned counsel for the respondents have submitted that P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary cannot be considered to be the eye witnesses as would appear from their testimony read with the testimony of P.W.7 the Investigating Officer, and from its perusal it is evident that P.W.3 and P.W.5 were never at the place of Acquittal Appeal No. 4 of 2002 With
- 10 - Criminal Revision No.112 of 2002 occurrence said to have witnessed the commission of crime of murder of the deceased.
It has been submitted that the version of P.W.3 and P.W.5 cannot be considered to be the testimony of and eye witness since the very reliability of their testimony has not been proved by the Investigating Officer, P.W.7. Even the version of the informant, P.W.6 Birendra Kumar is very much clear that he even has not witnessed the crime of commission of murder, which would be evident from his conduct since being the son he had not accompanied the dead body of his father at the hospital since there is no reference as has been made by the Investigating Officer about his presence in the O/D Slip issued by the T.M.H. Further, the Investigating Officer has stated that the informant's cloth was having no blood stained which can only corroborate the non-presence of the informant at the place of occurrence since it has come in the testimony of P.W.3 and P.W.5 that immediately after commission of crime, the informant had rushed to the place of occurrence and thereafter carried his father to the hospital in the injured condition.
It is evident from the testimony of P.W.3 three bullet injuries have been given upon the deceased and, as such, it cannot be denied that the place where the occurrence has been committed will be in pool of blood but it has transpired Acquittal Appeal No. 4 of 2002 With
- 11 - Criminal Revision No.112 of 2002 from the testimony of the Investigating Officer that no blood has been seized from the place of occurrence, save and except the spectacles with the mark of blood.
It has been submitted that the question would be that when it is the case of the prosecution that the deceased had been given three shots by bullet and it is the case of the informant P.W.6 that he carried the deceased, his father, to the T.M.H. hospital over a tempo but very surprisingly the cloth of informant was not found with any blood stained.
Mr. A.K.Chaturvedi, learned counsel appearing for the Respondent No.1, 3 and 5, therefore, submits that the P.W.3 and P.W. 5 cannot be said to eye witnesses and, therefore, the trial court, after taking into consideration the aforesaid aspect of the matter since has not considered the testimony of P.W.3 and P.W.5 to be eye witnesses which led the learned trial court to acquit the respondents concerned, the same cannot be said to suffer from an error.
It has further been pointed out that the Investigating Officer at paragraph 88 and 89 has clearly stated that P.W.3 has not narrated the story while giving statement about his presence at the place of occurrence. It has been submitted that the tempo driver has not been examined and even the blood stained spectacles or the bullets have not been sent for its chemical/forensic examination. Therefore, submission has been made that the learned trial court, after taking into Acquittal Appeal No. 4 of 2002 With
- 12 - Criminal Revision No.112 of 2002 consideration the facts and evidence in entirety, has acquitted the accused persons which cannot be said to suffer from an error.
12. Mr. A.N.Deo, learned counsel appearing for Respondent Binod Kumar and Mr. Nilesh Kumar, learned counsel appearing for the Respondents, namely, Bishu Chourasia and Dilip Kumar respectively, have submitted that against these respondents no material has come regarding conspiring to kill the deceased and taking into consideration the aforesaid aspect of the matter, the respondents have been acquitted, hence the same does not suffer from any infirmity.
13. Mr. Parambir Singh, learned counsel appearing for the Respondent Sankar Dayal Dubey, has also submitted that no evidence has come for hatching conspiracy of committing murder of the deceased. The learned trial court, therefore, after finding that no material has come attracting any ingredient of Section 120-B of the Indian Penal Code and that no case is made out for commission of crime, acquitted the respondents which cannot be said to suffer form an error.
14. This Court, after having considered the arguments advanced on behalf of the parties, is now proceeding to examine the testimony of the prosecution witnesses, particularly, P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary along with P.W.7, the Investigating Officer, in Acquittal Appeal No. 4 of 2002 With
- 13 - Criminal Revision No.112 of 2002 order to scrutinize the legality and propriety of the impugned judgment.
This Court is also discussing the testimony of other witnesses in order to come to the just and proper finding by taking into consideration the testimony of the entire prosecution witnesses in entirety.
P.W.1 Gurdeep Singh Pappu who has deposed in his examination-in-chief that he known Thakur Prasad Singh. He was Secretary of Transport Association and Bus owners Association. Since the year 1988 he had some litigation with Dilip Agarwal and his family members in respect of permit for the route of Chaibassa-Purulia. Dilip Agarwal and others had obtained the permit by producing false certificate. Earlier the Bus of Thakur Prasad Singh was plying on Chaibasa-Purulia route and due to the said litigation there was no good relation between T.P. Singh and Dilip Agarwal as well as his family members. He has further stated that in the year 1990 he was going to Calcutta where he met with one Surendra Singh who introduced him with one Dipu Agarwal. The said Dipu Agarwal stated that one man in disturbing him in Jamshedpur and not allowing him to run the bus. Surendra Singh asked him who is that man. Dipu gave out the name of Thakur Prasad Singh. Surendra Singh stated that he will go and chastise him by giving slaps upon which Dipu stated that man is not worthy for chastening rather requires to be completely finished. Upon Acquittal Appeal No. 4 of 2002 With
- 14 - Criminal Revision No.112 of 2002 which Surendra Singh stated that well he would go and see him at Jamshedpur. This witness has further stated that when they left the room of Dipu, he handed over a packet from his suitcase to Surendra Singh. When he enquired about the article in packet, he found money in the said packet. In the night they left Howrah and on the next day return Tata. On the next day he came to the shop of T.P.Singh and stated all the fact where the son of T.P. Singh, namely, Birendra Kumar Singh was also sitting. T.P. Singh was assassinated on 15.04.1994 at about 8 A.M morning. This accused identified Dipu @ Dilip Agarwal in Court.
P.W.2 Ragho Sharan Singh - He, in his examination- in-chief has stated that the occurrence is of 15.04.1994. It was 8:00 A.M morning. He was coming from Sakchi Bus stand to Bihar Motor with Birendra. When they reached near Sagar Hotel, they heard 2-3 sounds of fire arms shot and he saw T.P. Singh lying. He also saw accused Sanjay, Santosh and Chandrawali standing with pistols in their hands. Accused Bishu Chourasia, Manoj and two other were also standing there who were unknown. He has stated that out of them one was of short structure and fatty and the other was long with dark complexion. They were also armed with pistols. He claimed to identify these unknown persons. The accused persons were also uttering that whoever will try to approach they would be short dead like T.P. Singh. They moved away in an adjacent Acquittal Appeal No. 4 of 2002 With
- 15 - Criminal Revision No.112 of 2002 lane going towards Kashidih. T.P. Singh was carried to Tata Main Hospital on a Tempo where doctor declared him dead. He has further stated that T.P. Singh was plying vehicle on temporary permit on Chaibasa-Purulia Road, thereafter, Binod, Pradeep, Dilip Kumar and Radha Kant by producing a forge certificate snatched that permit and against the order of the said permit issued to the accused persons, T.P. Singh had to prefer appeal. That permit was bone of quarrel. This witness has also stated that on 14th April, 1994 at about 9 A.M Dilip came to Bihar Motors and stated T.P. Singh that he should not go to High Court for preferring appeal. Upon which he replied that he must go to prefer appeal. Accused Dilip in anger uttered that he would go when he will be alive. This witness identified all the accused persons in the dock. P.W.3 Upendra Kumar - He has stated in his examination-in- chief that the occurrence is of 15.04.1994 at 8 A.M. At that time he was taking tea in the Tea Stall of Mina Devi. Lalan Choudhary, P.W.5, was also with him. He observed that seven boys were crossing the road armed with pistol from the side of Gulab Hotel. After crossing the road they reached near the Chabutara of Bihar Motors. At that time T.P.Singh was reading newspaper. T.P.Singh stood up seeing them. At first some talk prevailed among them which he could not say. Thereafter, Sanjay Prasad gave the first fire shot on him. Second shot was made by Santosh and third fire shot was Acquittal Appeal No. 4 of 2002 With
- 16 - Criminal Revision No.112 of 2002 made by Manoj. These shots were made in few seconds intervals. The rest accused persons among them were Bishu Chourasia, Chandrawali and uncle (Mama) of Sanjay Prasad who were threatening those persons trying to approach there. He has further stated that T.P. Singh fell down after receiving firearm shot injury. In the meantime, his son Birendra came with Ragho Sharan Singh. The accused persons fled away through an adjacent lane going towards east. Thereafter, Birendra Singh and Ragho Singh along with two persons carried T.P. Singh to T.M.H. He has further stated that on the date of occurrence at about 9.30 A.M. the police in front of Bihar Motor recorded his statement. Birendra Singh was weeping on the place of occurrence and was uttering that yesterday T.P.Singh was threatened by Dipu Agarwal and today this occurrence took place. He has stated that where he was taking tea that place is situated just opposite of Bihar Motors. T.P. Singh received first bullet injury in the right side of his abdomen second bullet injury was on the right side of cheek and third on the left side of the back. This witness identified accused Dilip Agarwal, Santosh, Mama @ Mahesh Gupta, Chandrawali, Shankar Dayal Dubey, Pradeep, Binod and Radha Kant in dock and claimed to identify Sanjay. P.W.4 Dr. Lalan Choudhary, who had conducted autopsy on the dead body of deceased T.P.Singh. He has stated in his examination-in-chief that the margin of kurta was blacked and Acquittal Appeal No. 4 of 2002 With
- 17 - Criminal Revision No.112 of 2002 tiny torns with powder marks over an area of 15 cm x 12 cm. Vest (Ganji) was centrally torn of size 4 cm x 3 cm. A shell of bullet was recovered from the kurta of the deceased. He found the following anti-mortem injuries over the body of the deceased.
i) Entry wound of size 4 cm x 1 cm on was present over left side of back, 7 cm lateral to vertibral column and 30 cm below the shoulder line left. Tattooing of an area about 17 cm x 13 cm was present around the wounds.
ii) Entry wound of size 3 cm x 1.5 cm was present over right cheek. Tattooing of size 35 cm x 25 cm extending from right shoulder to left shoulder whole face and front of neck.
iii) Abrasion of size 6 cm x 4 cm present over right lumber region of back.
iv) Tattooing was present over front of left thigh measuring 12 cm x 8 cm.
On dissection he found (a) Chest and abdomen - 7th Rib on left side back was fractured, left lung was pierced. Lateral Valve of heart laterated, Pericardium raptured, 3rd and 4th ribs in front of left side were fractured. One metallic bullet was embedded in the muscle of the left side chest wall in front. Bullet traversed upward and forward making a track from entrance to where it was found. All verses were pale, chest cavity on left side contained about one litre of blood. (b) Skull - Brain matter pale.
Acquittal Appeal No. 4 of 2002
With
- 18 - Criminal Revision No.112 of 2002
Neck- First cervical vertebra fractured, and a metallic bullet found embedded in the muscles of the left side neck. Opinion:- Cause of death haemorrhage and shock. All above injuries except no.3 were caused by fire arm such as pistol. Injury No.3 was caused by hard and blunt substance such as due to fall on a hard surface. Time since death between 6 hours to 9 hours approximate at the time of post mortem examination. Two bullets and one jacket were sealed properly and handed over to the constable who has identified the dead body. Injuries were sufficient to cause death. He has proved the Postmortem Report as Ext.1. As per this witness the Post Mortem was conducted on 15.04.1994 at 2.15 P.M. P.W.5 Lalan Choudhary has stated in his deposition that occurrence is of 15.04.1994 at about 8 A.M. At that time he was taking tea in the Tea Stall of Mina Devi situated in front of Bihar Motors on Klimati road. He saw seven persons armed with pistol, who after crossing the road surrounded T.P.Singh in front of Chabutara of Bihar Motors. Sanjay gave first fire shot on T.P.Singh, Santosh gave second fire shot and Manoj gave third fire shot. Accused Bishu Chourasia, Chandrawali and two others who were armed with pistols, were threatening the people and uttering that T.P. Singh has been murdered and if anyone would try to come they would also be shot dead. All the accused persons went away through a lane coming towards east for Kasidih. He has further stated that on Acquittal Appeal No. 4 of 2002 With
- 19 - Criminal Revision No.112 of 2002 14.04.1994 at 9.00 A.M. Dilip Agarwal came to Bihar Motors and asked T.P.Singh not to think to go to High Court. T.P. Singh replied that he must go to High Court. The accused Dilip Agarwal stated that if you will be alive then you go to High Court. This witness claimed to identify accused Bishu, Manoj, Santosh, Chandrawali and further claimed to identify one accused by face but not name. He also identified Dilip Agarwal.
P.W.6 Birendra Kumar - He is the informant of the case. He has stated in his examination-in-chief that deceased T.P. Singh was his father. On 15.04.1994 at about 7.35 A.M. morning he proceeded with his father for his shop Bihar Motors on scooter which is situated in New Kalimati Road, Sakchi. He dropped his father at Bihar Motors and proceeded to see his Bus Saraswati to Sakchi Bus stand. He stopped for some time in Sakchi Bus stand after that he along with his cousin brother Ragho Sharan Singh again proceeded to Bihar Motors. As soon as they reached near Sagar Hotel, they heard two sounds of fire arm shot. By that time it was 8 O'clock. When he reached near his shop he saw his father lying on verandah. He also saw Sanjay Prasad, Santosh Singh, Chandrawali Singh and just besides them Bishu Chourasia, Manoj Prasad and two others armed with pistols. They all were threatening and uttering that they killed T.P.Singh and whoever will come they will be done to death. By uttering these Acquittal Appeal No. 4 of 2002 With
- 20 - Criminal Revision No.112 of 2002 words they went away through an adjacent lane. He claimed to identify two unknown miscreants. He also identified accused Santosh Singh, Manoj Prasad, Chandrawali Singh, Dilip Kumar, Binod Kumar, Radha Kant and Predeep Kumar in Court and also claimed to identify Shankar Dayal Dubey and Bishu Chourasia. He has further stated that he with the help of Shyam Sundar Singh, Ajay Kumar and Ragho Sharan Singh brought his father to T.M.H on a Tempo where doctor declared him dead. He has stated that his fardbeyan was recorded in T.M.H. which was read over to him and after finding it correct he put his signature. He proved his signature on the fardbeyan which was marked as Ext.2. He has further deposed that one day prior to the occurrence on 14.04.1994 accused Dilip Kumar had come to Bihar Motors where he was also present. Accused Dilip asked his father not to go to High Court as per his programme, upon which his father replied that he must go to High Court. Dilip Kumar became agitated and uttered that if he will survive by that time. Thereafter, Dilip Kumar went away. He has stated that the motive for murder of his father was that his father had got a temporary permit in the year 1988-89 for the route Chaibasa- Purulia for plying bus. Again he stated that the Bus was plying since 1985. In the year 1988 on 11.03.1988 accused Pradeep Kumar by presenting forged B.A. certificate and forged sale letter of chassis obtained a permit in his favour. Since then his Acquittal Appeal No. 4 of 2002 With
- 21 - Criminal Revision No.112 of 2002 father used to give information to the Superior Officers and the officers of State Transport Department. Accused Pradeep Kumar and his family members used to ply that Buses in the name of School Bus or Tourist Bus. In this connection his father had also informed the competent authority. His father had lodged a case in Ranchi Kotwali against Pradeep Kumar, Radha Kant and Dilip Kumar and in the said case on 25.04.1994 he had to depose in the Ranchi Court. In the year 1987-88 the house of Radha Kant was to be auctioned in which his father participated. The deceased has also written letter against Pradeep Kumar, Radha Kant, Binod Kumar, Dilip Kumar and his family members to the Superior Officers of the Government for misappropriating the tax of Government by committing forgery, upon which the proceeding of recovery of Rs. 30,00,000/- was initiated before the Certificate Officer and being aggrieved with this act of the deceased, he was murdered. He has further stated that accused Dilip Kumar had given five bundles of 100 rupees denomination in a Hotel situated at the back of Kishan Verma Vendor's shop to Shankar Dayal Dubey, who is Agent of Binod Bus. Out of said amount, Rs. 50,000/- was handed over to Ravi Chourasia by Shankar Dayal Dubey and Ravi Chourasia gave one bundle from that amount to Sanjay Prasad and rest of the amount was given to his brother Bishu Chourasia. Then Sanjay Prasad, and Bishu Chourasia with accused Manoj Prasad, Acquittal Appeal No. 4 of 2002 With
- 22 - Criminal Revision No.112 of 2002 Chandrawali Singh, Santosh Singh and two others committed murder of his father. He has proved some documents also.
This witness was again recalled on 6.3.99. He has stated in his examination-in-chief that at the time of occurrence there were two more accused out of whom one Mahesh Kumar Gupta is present in Court to whom he identified. He has stated that he could know the name of accused Mahesh Kr Gupta in the month of May-June, 1994.
P.W.7 Kanhaiya Upadhaya is the Investigating Officer of the case. He has stated in his examination-in-chief that on 15.04.1994 he was posted as Officer-in-Charge, Sakchi P.S. On that day he got information about the murder of Thakur Prasad Singh. He recorded that information in Station Diary and proceeded to the place of occurrence. Thereafter, he went to Tata Main Hospital where statement of Birendra Kumar was recorded by S.I. Shiv Mangal Singh. He proved the fardbeyan. He has also proved his endorsement on the fardbeyan, Ext.4. He has proved the formal F.I.R which was marked as Ext.5. He has stated that he took up the investigation and on the date of occurrence he inspected the place of occurrence. According to him, the place of occurrence is the Chabutara in front of the shop of the deceased, namely, Bihar Motors, situated in Kalimati Road, within Jamshedpur town. Bihar Motors is a shop of motor parts. P.W.7 has stated that he found blood on the Chabutara and the spectacle was mixed with blood. A Acquittal Appeal No. 4 of 2002 With
- 23 - Criminal Revision No.112 of 2002 photograph of place of occurrence was obtained by Raja Studio. He has further stated that adjacent to the place of occurrence towards south-east there is a lane which approaches to Kashidih where an empty cover of bullet of .315 was found lying and it was seized. He has further stated that he recorded the statements of informant and witnesses. The dead body of deceased Thakur Prasad Singh was sent to M.G.M. Hospital. The Inquest Report was also got prepared. He has further stated that on the confessional statement of accused Mahesh Kumar Gupta a pistol was recovered from the roof of quarter No. 86 Purana Baradwari. He has proved the confessional statement recorded by S.I. Manohar Prasad on his instruction which bears his signature. There is signature of accused Mahesh Kumar Gupta and it was exhibited as Ext.7. He has further stated that the accused Mahesh Kumar Gupta stated that the same pistol was used in the murder of T.P.Singh. He has further stated that he submitted the charge- sheet showing Bishu Chourasia, Sanjay Prasad and Sinu Rao as absconders.
In his cross examination, the Investigating Officer has stated that he had examined Gulab Chandra Jaiswal, Samir Bera Ram Roop Singh, Awtar Singh, Md. Alam, Rajesh Gupta, Rajen Goswami but they were not cited as witnesses in the charge sheet. He has also stated that on reaching the place of occurrence, during his first visit, he had examined Paramjeet Acquittal Appeal No. 4 of 2002 With
- 24 - Criminal Revision No.112 of 2002 Singh but he was also not cited as a witness. He has further stated that he has not mentioned in the case-diary as to where and at what time he had examined Ragho Sharan Singh, Lallan Choudhury, Upendra Kumar and Gurdip Singh. He has stated that he is not aware as to who had sent the telephonic message. He has stated that the photograph of the place of occurrence was taken on 15.04.1994 but it was received on 27.04.1994. The photograph shows that al the shops shown there were closed. He stated that he did not find any footprints at the place of occurrence.
He has stated that in order to ensure that the place of occurrence is not disturbed or changed he had deputed Havildar Jamuna Singh of T.O.P. at that place before going to T.M.H. He found that the place of occurrence had not been altered or tampered with and somebody might have pulled down the shutter of Bihar Motors. Photograph of Bihar Motors was taken after he returned from T.M.H. and there was no alteration of the place of occurrence till the photograph was taken. He has further stated that when he had first reached the place of occurrence, he had seen Newspaper, chair and spectacle there but during his second visit he did not find the newspaper and chair.
He has stated that he did not seize any blood from the place of occurrence but he had seized the blood stained spectacles without preparing any seizure list.
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He has also stated that he did not send any blood found there and the spectacles for chemical examination to ascertain as to whether it was human blood or not. He did not seize the clothes of T.P. Singh nor examined them. He has stated that he did not search for the Tempo driver and owner in which T.P. Singh was taken to T.M.H. as also he did not try to ascertain as to when the dead body of T.P.Singh was placed on Tempo for taking it to T.M.H. He has further stated that he had examined independent witnesses Paramjeet Singh and Gulab Jaiswal but he has not cited them as witnesses in this case. Meena Devi is not witness in the charge-sheet nor the other customers who were in her shop. He did not examine any independent witness about Birendra going to the Bus Stand and returning therefrom.
P.W.8 Bishwanath Sahu - He is a photographer. He has stated that he had taken the photograph of the place of occurrence. He had taken the photograph on the request of the Officer-in-charge, Sakchi P.S. Kanhaiya Upadhaya. He had handed over the negative and positive of the concerned photograph to the police station.
P.W.9 Shyam Sundar Prasad Singh - He has stated in his examination-in-chief that in the year 1994 he was the Secretary of Transport Association, Jamshedpur. On 15.04.1994 an Inquest Report was prepared at 9 A.M. in Tata Main Hospital in the morgue by police officials of Sakchi P.S in Acquittal Appeal No. 4 of 2002 With
- 26 - Criminal Revision No.112 of 2002 his presence. This witness has proved his signature over it which was marked as Ext.6. Inquest Report was exhibited as Ext.10 and the son of his brother-in-law Ajay Prasad Sinha has also put his signature on the said Inquest Report. He has proved the signature of Ajay Sinha, Ext.10/1.
Apart from the aforesaid prosecution witnesses, three court witnesses have also been examined in this case, namely, C.W.1 Shashi Bhushan Pramanik, Principal of Kishan College, Bundu, C.W.2 Dr. Anil Kumar Mahto, Controller of Examination, Ranchi University and C.W.3 Vijay Kumar Choudhary, Assistant in the office of Commissioner, State Transport, Patna who have proved some documents.
The accused persons have also examined five witnesses in their defence, namely, D.W.1 James Peter Lakra, Assistant in District Transport Office, Jamshedpur, D.W.2 Arjun Singh, Advocate, D.W.3 Rajesh Kumar Singh, D.W.4 Irshad Ahmad, Inspector of Police and D.W.5 Karunakar Gope.
15. This Court, after having considered the testimony of the witnesses, the exhibits including the postmortem report and the inquest report, is now proceeding to examine the submission advanced on behalf of the parties in order to consider the legality and propriety of the impugned judgment.
16. The main argument advanced on behalf of the appellants is that the P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary are the eye witnesses to the occurrence but the same has been Acquittal Appeal No. 4 of 2002 With
- 27 - Criminal Revision No.112 of 2002 discarded by the learned trial court while acquitting the respondents.
17. This Court, before proceeding to examine the complicity of the respondents, is required to refer herein that the allegations levelled against the respondents are different to each other as per the prosecution version and the materials came in course of investigation. The direct allegation of committing murder is upon the Respondent Nos. 1 Santosh Singh and Respondent No.2 Manoj Kumar Jaiswal and rest respondents have been charged for conspiring commission of murder of the deceased.
Therefore, this Court is now proceeding to examine the testimony of P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary in order to assess as to whether the P.W.3 and P.W.5 have said anything against Respondent Nos. 3 to 10 for conspiring of committing murder of the deceased.
It is evident from the testimony of P.W.3 and P.W.5 that no material has come regarding hatching of conspiracy against Respondent Nos. 3 to 10 for committing murder of the deceased T.P.Singh, rather, it would be evident from the testimony of P.W.3 and P.W.5 that they have deposed against Respondent Nos. 1 and 2 said to have been seen by them committing murder of the deceased.
Learned counsel appearing for the revisionist and the learned Additional Public Prosecutor have failed to point out Acquittal Appeal No. 4 of 2002 With
- 28 - Criminal Revision No.112 of 2002 any incriminating material against the Respondent Nos. 3 to 10 of conspiring to commit murder of the deceased along with Respondent Nos. 1 and 2, save and except that in the testimony reference of some money being handed over to Surendra Singh, has been made by P.W.1 but the said testimony of handing over money cannot be said to be sufficient evident to prove the culpability of these respondents in order to prove the allegation of conspiracy for committing murder of the deceased.
The learned trial court, while considering the case of these respondents, has taken into consideration the material in entirety and has found no incriminating material having been produced by the prosecution and, therefore, they have been acquitted.
18. This Court, after considering the finding so recorded by the learned trial court pertaining to Respondent Nos. 3 to 10, is of the view that merely making an allegation of conspiracy to commit murder of a person cannot be construed to be applicability of Section 120-B of the Indian Penal Code in order to attract the substantial provision i.e., Section 302 of the Indian Penal Code.
The position of law is well settled that for proving the charge of conspiracy, the requirement of law is that the cogent evidence is to be produced by the prosecution in order to show Acquittal Appeal No. 4 of 2002 With
- 29 - Criminal Revision No.112 of 2002 the connectivity of the person concerned in commission of crime.
It will be worthwhile to deal with this question of alleged conspiracy at this stage. As per the settled proposition of law, the essential ingredients of criminal conspiracy are:
(a) An agreement between two or more persons.
(b) Agreement must relate to doing or causing to be done either
(i) an illegal act; or
(ii) an act which is not illegal in itself but is done by illegal means.
The most important ingredient in the offence of conspiracy is an agreement between two or more persons to do an illegal act. However it is necessary for the prosecution to show is the meeting of minds of two or more persons for doing or causing to be done an illegal act, or an act by illegal means. A criminal conspiracy is generally hatched in secrecy, and it is difficult, if not impossible, to obtain direct evidence regarding the manner and circumstances in which the offence has been committed, and the level of involvement of the accused persons are relevant factors.
It is pertinent to note here that conspiracy is mostly proved by circumstantial evidence by taking into account the cumulative effect of the circumstances indicating the guilt of the accused, rather than adopting an approach by isolating the role played by each of the accused but the acts or conduct Acquittal Appeal No. 4 of 2002 With
- 30 - Criminal Revision No.112 of 2002 of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution.
In the facts of the present case, we find that there is no any cogent material brought on record which creates a grave suspicion about the involvement of the accused/respondents in hatching the conspiracy for commission of murder of deceased.
Herein, the whole argument of the State-appellant and Revisionist-petitioner is that the learned trial court has not considered the testimony of P.W.3 and P.W.5 and, as such, the judgment of acquittal passed in favour of Respondent Nos. 3 to 10 cannot be considered to be legal and proper.
19. This Court, after considering the testimony of P.W.3, P.W.5, P.W.7, the Investigating Officer and the testimony of other witnesses, has not found any incriminating material against these respondents and, as such, if in absence of the same the judgment of acquittal has been passed against Respondent Nos. 3 to 10, the same cannot be said to suffer from an error.
20. Accordingly, the judgment of acquittal, so far as it relates to Respondent Nos. 3 to 10 is concerned, the same, according to our considered view, does not require any interference.
21. So far as the allegation of committing crime by Respondent Nos. 1 and 2 is concerned, the argument has been advanced that the version of P.W.3 and P.W.5, who have seen Acquittal Appeal No. 4 of 2002 With
- 31 - Criminal Revision No.112 of 2002 the commission of crime and P.W.6, the informant, has been corroborated by the Investigating officer as also the postmortem report prepared by the Doctor who had examined the body of the deceased while conducting autopsy.
22. This Court, in order to examine as to whether the P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary are the eye witness or not, is proceeding to consider the testimony of P.W.3 first who has stated in his examination in chief that at the time of occurrence i.e., on15.04.1994 at 8 A.M., he was taking tea in the Tea Stall of Mina Devi. P.W.5 Lalan Choudhary was also with him. He observed that seven boys were crossing the road armed with pistol towards Gulab Hotel. After crossing the road they reached near the Chabutara of Bihar Motors. At that time T.P.Singh was reading newspaper. T.P.Singh stood up seeing them. Thereafter, Sanjay Prasad gave the first fire shot on him. Second shot was made by Santosh and third fire shot was made by Manoj. The rest accused persons were Bishu Chourasia, Chandrawali and uncle (Mama) of Sanjay Prasad who were threatening those persons trying to approach there. He has further stated that T.P. Singh fell down after receiving firearm shot injury. In the meantime, his son Birendra came with Ragho Sharan Singh. The accused persons fled away through an adjacent lane going towards east. Thereafter, Birendra Singh and Ragho Singh along with two persons carried T.P. Singh to T.M.H. He has Acquittal Appeal No. 4 of 2002 With
- 32 - Criminal Revision No.112 of 2002 further stated that on the date of occurrence at about 9.30 A.M. the police in front of Bihar Motor recorded his statement. He has stated that where he was taking tea that place is situated just opposite of Bihar Motors. T.P. Singh received first bullet injury in the right side of his abdomen second bullet injury was on the right side of cheek and third on the left side of the back. This witness identified accused Dilip Agarwal, Santosh, Mama @ Mahesh Gupta, Chandrawali, Shankar Dayal Dubey, Pradeep, Binod and Radha Kant in dock and claimed to identify Sanjay.
It is evident from his testimony that he has stated about the presence of one Lalan Choudhary, P.W.5, who happens to be the brother-in-law of the deceased. He has stated that at the time of occurrence he was taking tea with Lalan Choudhary in the tea stall of Mina Devi. He has also stated that he has seen the occurrence of committing murder of T.P.Singh by the Respondents, namely, Santosh Singh and Manoj Kumar Jaiswal.
Further, P.W.5 Lalan Choudhary has stated in his deposition that the occurrence is of 15.04.1994 at about 8 A.M. At that time he was taking tea in the Tea Stall of Mina Devi situated in front of Bihar Motors on Klimati road. He saw seven persons armed with pistol, who after crossing the road surrounded T.P.Singh in front of Chabutara of Bihar Motors. Sanjay gave first fire shot on T.P.Singh, Santosh gave second Acquittal Appeal No. 4 of 2002 With
- 33 - Criminal Revision No.112 of 2002 fire shot and Manoj gave third fire shot. Accused Bishu Chourasia, Chandrawali and two others who were armed with pistols, were threatening the people. All the accused persons went away through a lane coming towards east for Kasidih. He has further stated that on 14.04.1994 at 9.00 A.M. Dilip Agarwal came to Bihar Motors and asked T.P.Singh not to think to go to High Court. This witness claimed to identify accused Bishu, Manoj, Santosh, Chandrawali and further claimed to identify one accused by face but not name. He also identified Dilip Agarwal.
It is evident from the testimony of P.W.5 that he also claims to have seen the occurrence from the tea stall of Mina Devi where he was taking tea with Upendra Kumar.
P.W.6, Birendra Kumar, who is son of the deceased, has also stated in his testimony that on 15.04.1994, the date of occurrence, at about 7:35 a.m. in the morning, he proceeded with his father to his shop Bihar Motors on Scooter and dropped his father at Bihar Motors and proceeded to see his Bus Saraswati to Sakchi Bus stand. While he was returning from Sakchi Bus stand to Bihar Motors, when he reached near Sagar Hotel, he heard two sounds of fire arm shot at about 8 O'clock. When he reached near his shop he saw his father lying on verandah. He has stated that he saw Sanjay Prasad, Santosh Singh, Chandrawali Singh and just besides them Bishu Chourasia, Manoj Prasad and two others armed with Acquittal Appeal No. 4 of 2002 With
- 34 - Criminal Revision No.112 of 2002 pistols. He has further stated that they all were threatening and uttering that they killed T.P.Singh and whoever will come they will be done to death. He claimed to identify two unknown miscreants. He also identified accused Santosh Singh, Manoj Prasad, Chandrawali Singh, Dilip Kumar, Binod Kumar, Radha Kant and Predeep Kumar in the Court.
The argument, thus, has been made on behalf of the appellant and the Revisionist petitioner that the testimony of P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary should not have been discarded since they are the eye witnesses who have seen the occurrence of committing crime.
23. While on the other hand, learned counsel appearing for the respondents has submitted that the P.W.5 Lalan Choudhary and P.W.6 Birendra Kumar (informant) are highly interested witnesses being related with the deceased since P.W.5 Lalan Choudhary is the brother-in-law of the deceased while P.W.6 Birendra Kumar (informant) is the son of the deceased.
It has been stated that P.W. 3 Upendra Kumar also cannot be said to eye witness since at that time he was not at the place of occurrence said to have seen the commission of crime.
Such submission has been made on the basis of the fact that it is the version of P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary that they have seen the assailants surrounding the Acquittal Appeal No. 4 of 2002 With
- 35 - Criminal Revision No.112 of 2002 deceased and assaulting by bullet through pistol due to which the deceased fell down and at that time P.W.3 was in the tea stall just in front of the place of occurrence and at that moment the P.W.5 was also there with him and, immediately thereafter, P.W.6 Birendra Kumar (informant) also reached there. However, P.W.5 Lallan Choudhary never stated in his evidence about the presence of P.W.3 Upendra Kumar at the Tea shop of Meena Devi at the time of alleged occurrence.
Therefore, the consideration of P.W.3 or P.W.5 to be eye witness depends upon the testimony of the Investigating Officer.
24. Therefore, this Court is proceeding to scrutinize the testimony of the Investigating Officer, P.W.7 who has stated in his examination-in-chief that he, after getting information of the murder of T.P.Singh, he recorded the information in the Station Diary and proceeded to the place of occurrence. Thereafter, he went to Tata Main Hospital where statement of Birendra Kumar was recorded by S.I. Shiv Mangal Singh. He proved the fardbeyan. He has also proved his endorsement on the fardbeyan, Ext.4. He has proved the formal F.I.R which was marked as Ext.5. He has stated that he took up the investigation and on the date of occurrence he inspected the place of occurrence and according to him, the place of occurrence is the Chabutara in front of the shop of the deceased Bihar Motors situated in Kalimati Road, within Acquittal Appeal No. 4 of 2002 With
- 36 - Criminal Revision No.112 of 2002 Jamshedpur town. He has stated that he found blood on the Chabuta and the spectacle mixed with blood was found at the place of occurrence. He has also stated that a photograph of the place of occurrence was obtained by Raja Studio and the shops near the place of occurrence were lying closed at that time. He has further stated that adjacent to the place of occurrence towards south-east there is a lane which approaches to Kashidih where an empty cover of bullet of .315 was found lying and it was seized. He has further stated that the dead body of deceased Thakur Prasad Singh was sent to M.G.M. Hospital. The Inquest Report was also got prepared. He has further stated that on the confessional statement of accused Mahesh Kumar Gupta a pistol was recovered from the roof of quarter No. 86 Purana Baradwari. He has proved the confessional statement recorded by S.I. Manohar Prasad on his instruction.
In his cross examination, the Investigating Officer has stated that he had examined Gulab Chandra Jaiswal, Samir Bera Ram Roop Singh, Awtar Singh, Md. Alam, Rajesh Gupta, Rajen Goswami but they were not cited as witnesses in the charge sheet. He has also stated that on reaching the place of occurrence, during his first visit, he had examined Paramjeet Singh but he was also not cited as a witness. He has further stated that he has not mentioned in the case-diary as to where and at what time he had examined Ragho Sharan Singh, Acquittal Appeal No. 4 of 2002 With
- 37 - Criminal Revision No.112 of 2002 Lallan Choudhury, Upendra Kumar and Gurdip Singh. He has stated that he is not aware as to who had sent the telephonic message. He has stated that the photograph of the place of occurrence was taken on 15.04.1994 but it was received on 27.04.1994. The photograph shows that al the shops shown there were closed. He stated that he did not find any footprints at the place of occurrence.
He has stated that in order to ensure that the place of occurrence is not disturbed or changed he had deputed Havildar Jamuna Singh of T.O.P. at that place before going to T.M.H. He found that the place of occurrence had not been altered or tampered with and somebody might have pulled down the shutter of Bihar Motors. Photograph of Bihar Motors was taken after he returned from T.M.H. and there was no alteration of the place of occurrence till the photograph was taken. He has further stated that when he had first reached the place of occurrence, he had seen Newspaper, chair and spectacle there but during his second visit he did not find the newspaper and chair.
He has stated that he did not seize any blood from the place of occurrence but he had seized the blood stained spectacles without preparing any seizure list.
He has also stated that he did not send any blood found there and the spectacles for chemical examination to ascertain as to whether it was human blood or not. He did not seize the Acquittal Appeal No. 4 of 2002 With
- 38 - Criminal Revision No.112 of 2002 clothes of T.P. Singh nor examined them. He has stated that he did not search for the Tempo driver and owner in which T.P. Singh was taken to T.M.H. as also he did not try to ascertain as to when the dead body of T.P.Singh was placed on Tempo for taking it to T.M.H. He has further stated that he had examined independent witnesses Paramjeet Singh and Gulab Jaiswal but he has not cited them as witnesses in this case. Meena Devi is not witness in the charge-sheet nor the other customers who were in her shop. He did not examine any independent witness about Birendra going to the Bus Stand and returning therefrom.
It is evident from the testimony of the Investigating Officer that the deceased was carried to the Tata Main Hospital, thereafter to the M.G.M. Hospital but there is no signature of the informant, P.W.6, in the O/D Slip.
It has also been gathered by this Court that the reference of auto-rickshaw has come which was used for carrying the injured/deceased to T.M.H. but very surprisingly the driver of the auto-rickshaw has not been examined by the Investigating Officer in order to prove the place of occurrence.
The submission has been made that it is the specific version of the P.W.6 that immediately after hearing the sound of fire, he rushed towards Bihar Motors and found his father lying on verandah and accused persons were present there armed with pistol.
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The P.W.6 has also stated in his testimony that he immediately thereafter carried his father to the hospital in the injured condition and there was profuse bleeding but the Investigating Office has not disclosed the fact in his testimony that the P.W.6 was present in the hospital.
Learned counsel for the respondents, therefore, has submitted that P.W.6, if was present at the place of occurrence at the time of commission of crime and being the son of the deceased if he had carried his father in the injured condition then in the O/D Slip there must be reference of his presence but there is no reference of P.W.6 having been found in the O/D Slip.
Further submission has been made that P.W.6 cannot be said to be present at the place of occurrence since even the dead body was not received by him, as would appear from the testimony of P.W.6.
25. This Court has considered the submission and is of the view that what is being submitted, cannot be disputed reason being that the P.W.6 admittedly is the son and if the occurrence of commission of murder has taken place in his presence, as per his version, then being the son, he would carry the injured father to the hospital and exactly the same thing has been deposed by him in his testimony but no blood stained cloth has been recovered by the Investigating Officer.
Further, P.W.5 Lallan Choudhary, who claims to be an Acquittal Appeal No. 4 of 2002 With
- 40 - Criminal Revision No.112 of 2002 eye witness, never stated in his evidence that Birendra Kumar and Ragho Sharan had reached Bihar Motors immediately after Thakur Prasad Singh was fired upon.
Further, if the son was along with his injured father, then there was no occasion for the Investigating Officer to obtain the O/D Slip from the concerned hospital, rather, it would have been handed over to the P.W.6 in the capacity of son of the deceased.
Further, it is evident from the testimony of the P.W.6 and the Investigating Officer, P.W.7, that even the dead body was not handed over in the Tata Main Hospital to the P.W.6 and, as such, it cannot be accepted with full authenticity about presence of P.W.6 at Tata Main Hospital, otherwise, dead body of the deceased must have been handed over to the son, P.W.6.
26. This Court, on the basis of such analysis and the common conduct of a son in a case where father sustained bullet injury, is of the view that presence of P.W.6 is not being corroborated from the testimonies and material available on record, as such, he cannot be considered to be an eye witness.
So far as the testimony of P.W.5 Lalan Choudhary is concerned, who happens to be the brother-in-law of the deceased, who has also been treated to be eye witness by the prosecution by considering his testimony wherein it has been stated by him that while he was taking tea in the tea stall of Acquittal Appeal No. 4 of 2002 With
- 41 - Criminal Revision No.112 of 2002 Mina Devi situated in front of Bihar Moters in Kalimati Road, he saw 7 persons armed with pistol, who after crossing the road, surrounded T.P.Singh in front of Chabutara of Bihar Mothors. According to his version, Sanjay Prasad gave the first shot, Santosh gave the second shot and Manoj gave the third shot. He has also stated that accused Bishu Chaurasia, Chandrawali and two others were armed with pistol, were threatening the people and uttering that T.P.Singh has been murdered and if anyone would try to come, they would also be shot dead.
However, the Investigating Officer, in his deposition at Para 89, has stated that P.W.5 Lalan Choudhary had not stated before him that he had seen seven persons crossing the road and going to Bihar Motors.
P.W.3 has been considered to be an eye witness who has stated that that when the occurrence took place he was taking tea in the Tea Stall of Mina Devi. P.W.5 Lalan Choudhary was also with him. He observed that seven boys were crossing the road armed with pistol towards Gulab Hotel. After crossing the road they reached near the Chabutara of Bihar Motors. Thereafter, Sanjay Prasad gave the first fire shot on the deceased. Second shot was made by Santosh and third fire shot was made by Manoj. He has further stated that the rest of the accused persons among them were Bishu Chourasia, Chandwali and uncle (Mama) of Sanjay Prasad who were Acquittal Appeal No. 4 of 2002 With
- 42 - Criminal Revision No.112 of 2002 threatening those persons trying to approach there. He has further stated that T.P. Singh fell down after receiving firearm shot injury. In the meantime, his son Birendra came with Ragho Sharan Singh. The accused persons fled away through an adjacent lane going towards east. Thereafter, Birendra Singh and Ragho Singh along with two persons carried T.P. Singh to T.M.H. He has further stated that on the date of occurrence at about 9.30 A.M. the police in front of Bihar Motor recorded his statement. He has further stated that T.P. Singh got first bullet injury in the right side of his abdomen second bullet injury was on the right side of cheek and third on the left side of the back. This witness identified accused Dilip Agarwal, Santosh, Mama @ Mahesh Gupta, Chandrawali, Shankar Dayal Dubey, Pradeep, Binod and Radha Kant in the dock.
When we have considered the testimony of the Investigating Officer, he has stated at Para 88 that P.W.3 Upendra Kumar had never stated before him that P.W.6 Birendra Kumar had reached to the place of occurrence immediately after the occurrence and he had also not stated before him that P.W.6 Birendra Kumar had carried his injured father to the Tata Main Hospital.
27. This Court, after having discussed the testimony of the witnesses including the testimony of the Investigating Officer, has found from the submission made on behalf of the Acquittal Appeal No. 4 of 2002 With
- 43 - Criminal Revision No.112 of 2002 appellants and the Revisionist petitioner that their sole contention is based upon P.W.3, P.W.5 and P.W.6 but they have not argued or even not given a thrust upon the testimony of the Investigating Officer wherefrom it is evident that as per the discussion made hereinabove the presence of P.W.3, P.W.5 and P.W.6 at the place of occurrence is in cloud.
The position of law is well settled that the testimony of the witnesses is to be considered in entirety, as has been held by Hon'ble Apex Court in the case of Shyamal Ghosh v. State of West Bengal, reported in (2012) 7 SCC 646 has held at paragraph- 49 and 69, which reads as under:-
"49. It is a settled principle of law that the court should examine the statement of a witness in its entirety and read the said statement along with the statement of other witnesses in order to arrive at a rational conclusion. No statement of a witness can be read in part and/or in isolation. We are unable to see any material or serious contradiction in the statement of these witnesses which may give any advantage to the accused.
69. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes it may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety."Acquittal Appeal No. 4 of 2002
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- 44 - Criminal Revision No.112 of 2002 The Hon'ble Apex Court in the case of Bhagwan Jagannath Markad & Ors. Vrs. State of Maharashtra, reported in (2016) 10 SCC 537 had held at paragraph-19 & 20 as under:-
"19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted [Leela Ram v. State of Haryana, (1999) 9 SCC 525]. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess Acquittal Appeal No. 4 of 2002 With
- 45 - Criminal Revision No.112 of 2002 whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a "partisan"
or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability [Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381] . On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.
20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape. [Gangadhar Behera case, (2002) 8 SCC 381, p. 394, para 17]"
The Hon'ble Apex Court in the case of State of Himachal Pradesh v. Raj Kumar, reported in (2018) 2 SCC 69 has held at paragraph-16 as under:-
"16. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to be truthful in the given circumstances of the case. Once that impression is formed, it is necessary for the court to scrutinise the evidence more particularly keeping in view the drawbacks and infirmities pointed out in the evidence and evaluate them to find out whether it is against the general tenor of the prosecution case. Jeewan Lal (PW
1) is the son of the deceased Meena Devi residing with her and the accused in the same house, and a natural Acquittal Appeal No. 4 of 2002 With
- 46 - Criminal Revision No.112 of 2002 witness to speak about the occurrence. Evidence of PW 1 is cogent and natural and is consistent with the prosecution case. The High Court was not right in doubting the evidence of PW 1 on the ground of alleged improvements made by Jeewan Lal (PW 1) and rejecting his evidence on the premise that there were certain improvements."
The Hon'ble Apex Court, again in the case of State of Karnataka v. Suvarnamma & Anr., reported in (2015) 1 SCC 323 has held that a criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as to a fact or relevant facts which may lead to the discovery of the fact in issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.
28. This Court, on the basis of the aforesaid judgment, is of the view that the consideration is to be made upon the testimony in entirety not only on the testimony which suits the prosecution.
Acquittal Appeal No. 4 of 2002
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- 47 - Criminal Revision No.112 of 2002
The matter would have been different if the case is based upon the testimony of eye witnesses and if there is no inconsistency in the testimony of eye witnesses, the testimony of the Investigating Officer is to be discarded.
But, the said principle is only applicable in the fact where the testimonies of the so called eye witnesses are consistent to each other, duly been supported by the relevant documents. But, if the testimony is inconsistent about the presence of such witnesses at the place of occurrence, then certainly the testimony of the Investigating Officer is of paramount importance in order to come to the conclusion about the place of occurrence, date and time of occurrence and the presence of the eye witness.
Here, in the facts of the given case, the P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary, who claim to be eye witness and P.W.6 Birendra Kumar who also claims to have reached the place of occurrence just after the occurrence took place, but their presence is under cloud on consideration of the testimony of P.W.7, the Investigating Officer. The Investigating Officer, in specific term, has stated that he has found nothing except spectacles mixed with blood lying at the Chabutara. The Investigating Officer has also stated in the specific terms that there was no blood on the shirt of P.W.6 Birendra Kumar and, therefore, there was no seizure of the Acquittal Appeal No. 4 of 2002 With
- 48 - Criminal Revision No.112 of 2002 cloth while the P.W.6 has stated in specific terms that he had carried his injured father to hospital by an auto rickshaw.
When the specific testimony of P.W.6 is that his father had sustained bullet injury and fell down, then the question arises that if he was carrying his father to the hospital by auto rickshaw will it be possible that there will be no sign of blood on his cloth. It cannot be in a situation when there is injury caused by bullet but very surprisingly there is no blood mark on the shirt and that is the reason explained by the Investigating Officer in the cross examination that since the cloth was having with no blood, therefore, the cloth was not seized.
Further, the specific version of the prosecution including the P.W.3, P.W.5 and P.W.6 that due to bullet injury, the deceased had fallen down on Chabutara but the Investigating Officer has specifically stated in his testimony that he even has got the photograph of the entire area but all the shops have been found to be closed and no blood was found therein having been available in the said photograph.
The Investigating Officer, in order to prove the presence of P.W.3 or P.W.5, has not examined the shop owner of the aforesaid tea stall, namely, Meena Devi, where the P.W.3 and P.W.5 were taking tea in the morning.
The P.W.6 although has stated in his testimony that he was in the T.M.H. along with his injured father, but there is Acquittal Appeal No. 4 of 2002 With
- 49 - Criminal Revision No.112 of 2002 no reference of his signature in the O/D Slip and the emergency slip and even his presence was not corroborated by such witnesses.
Therefore, it cannot be said on the basis of the testimonies of P.W.3, P.W.5 and P.W.6 read along with testimony of P.W.7 that P.W.3 and P.W.5 are the eye witnesses so as P.W.6 who said to have reached at the place of occurrence after hearing the sound of fire.
The position of law is well settled that there cannot be any conviction of a person snatching away the liberty to life if the prosecution is not able to prove the charge beyond all shadow of doubt as has been held by Hon'ble Apex Court in the case of Rang Bahadur Singh and Ors. v. State of U.P., (2000) 3 SCC 454 wherein at paragraph 22 it has been held which reads hereunder as:-
"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 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."Acquittal Appeal No. 4 of 2002
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- 50 - Criminal Revision No.112 of 2002 Further, in the case of Sheila Sebastian v. R. Jawaharaj and Anr. reported in (2018) 7 SCC 581 the Hon'ble Apex Court has held at paragraph 28 which reads hereunder as :-
"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."
It is also well settled position of law that there is wide difference between the word "may be" and "must be" as has been held by Hon'ble Apex Court in the case of Chandrapal v. State of Chhattisgarh reported in 2022 SCC OnLine SC 705 wherein at paragraph the issue has been dealt with in detail which reads hereunder as :-
"7. At the outset, it may be stated that undisputedly the entire case of the prosecution rested on the circumstantial evidence, as there was no eye witness to the alleged incident. The law on the appreciation of Acquittal Appeal No. 4 of 2002 With
- 51 - Criminal Revision No.112 of 2002 circumstantial evidence is also well settled. The circumstances concerned "must or should be"
established and not "may be" established, as held in Shivaji Sahabrao Bobade v. State of Maharashtra1. The accused "must be" and not merely "may be" guilty before a court can convict him. The conclusions of guilt arrived at must be sure conclusions and must not be based on vague conjectures. The entire chain of circumstances on which the conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground for the conclusion consistent with the innocence of the accused. The five golden principles enumerated in case of Sharad Birdhichand Sarda v. State of Maharashtra2 laid down in para 152 may be reproduced herein for ready reference:
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra [(1973) 2 SCC 793 ] where the observations were made :
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between „may be‟ and „must be‟ is long and divides vague conjectures from sure conclusions."Acquittal Appeal No. 4 of 2002
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- 52 - Criminal Revision No.112 of 2002 (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
29. Here, this Court has considered the issue on the basis of principle of proving the charge beyond all shadow of doubt and considering the difference in between "may be" and "must be" and found therefrom that the prosecution cannot be said to have proved the charge beyond all shadow of doubt for the reason as stated above.
30. This Court, after having discussed the factual aspect with the legal position, has scrutinized the finding recorded by the learned trial court and found therefrom that thoughtful consideration has been given by scrutinizing the testimonies of P.W.3, P.W.5, P.W.6 and P.W.7 and other witnesses also which led the learned trial court not to have found that the prosecution has been able to prove the charge beyond all shadow of doubt and in that view of the matter, the judgment of acquittal has been passed.
Acquittal Appeal No. 4 of 2002
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- 53 - Criminal Revision No.112 of 2002
31. Having heard learned counsels for both the sides and upon going through the record, we find that the Court below has meticulously discussed the materials on record. The reasons assigned by the Trial Court are cogent reasons and in accordance with law. We do not find any such patent or inherent illegality and / or irregularity in the impugned Judgment passed by the Trial Court below, acquitting the accused respondents for the offences under Sections 302/34, 302/120B and 302 of the Indian Penal Code and Section 27 of the Arms Act, worth interference by this Court.
32. Consequently, the acquittal appeal as well as criminal revision, both are dismissed, being bereft of any merit.
(Sujit Narayan Prasad, J.)
I agree
(Subhash Chand, J.) (Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated, the 27th day of February, 2023.
A.F.R.
Birendra /