Jharkhand High Court
Kanhai Sonar vs The State Of Jharkhand on 11 April, 2022
Author: Navneet Kumar
Bench: Navneet Kumar
1 Cr. Appeal (SJ) No. 1489 of 2004
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 1489 of 2004
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(Against the judgment of conviction dated 15.07.2004 and order of sentence dated 17.07.2004 passed by the learned Additional Sessions Judge, F.T.C. V. Giridih, in Sessions Trial No. 37 of 1999 corresponding to G.R. No. 437 of 1990, arising out of Nimiaghat P.S. Case No. 30 of 1990, Nimiaghat, Giridih, Jharkhand.) Kanhai Sonar ... ... Appellant Versus The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Abhijeet Tushar, Advocate For the Respondent : Mr. Santosh Kr. Shukla, A.P.P.
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HON'BLE MR. JUSTICE NAVNEET KUMAR Order No. 09: Dated: 11th April, 2022
1. This appeal is directed against the judgment of conviction dat- ed 15.07.2004 and order of sentence dated 17.07.2004 passed by the learned Additional Sessions Judge, F.T.C. V. Giridih, in Sessions Tri- al No. 37 of 1999 corresponding to G.R. No. 437 of 1990, arising out of Nimiaghat P.S. Case No. 30 of 1990 whereby and where under the appellant has been convicted for the offence punishable u/s 307 of IPC and sentenced to R.I. for 5 years.
2. The prosecution story as alleged in the Fard-beyan (Ext.2) of the informant, Raghunath Singh, Civil Jamadar of Nimiaghat Police Station recorded by the then Officer-In-Charge of Nimiaghat P.S. at Dumri -Giridih road near Latkato Jungle on 08.03.1990 at 5 A.M. is as follows:
On the preceding night 7/8-03-1990 at about 10 P.M. the in- formant along with police Jamadar Deowansh Bam (PW 5), Nand Kumar Ram, Constable No. 451, Dinesh Kumar, Constable No. 43 (P.W. 6), Sushil Kumar, Constable No. 102 and Jairam Constable No. 798 proceeded on police Jeep BRY/ 6115 for patrolling in the area; in course thereof, they reached at Dhawatand at about 12.30 hours and after staying a little there they proceeded back for Dumri. On the way, when the police Jeep reached a little behind the place known as 2 Cr. Appeal (SJ) No. 1489 of 2004 "Pulia" on Dumri-Giridih Pucca road crossing Latkato Jungle, a ve-
hicle Tata 407 of Blue colour was seen obliquely standing across the road. The road was further blocked by putting some branches of trees and the pillar of milepost. It was 1.15 hours night: seeing this, he asked the driver to stop the Jeep. Soon he and the members of po- lice party alighted from the jeep, a bomb was thrown from the side of miscreants on the police party which landed on the bonnet of po- lice Jeep with high sound of explosion. There remained no doubt in the mind of the informant that road dacoity was being committed and operated by some unknown miscreants. Seeing the situation, he gave order to the police party to encircle the dacoits by proceeding ahead. One of the miscreants commanded his associates to blow-up the police personnel and challenging the police party, the miscreants threw bomb on the police party one of which landed near the driver of the Jeep namely Madhusudan Ram (P.W.1) causing injuries on his right thigh. The lower portion of coat of the driver was also burnt. In the meantime, some vehicles on the either ends along the road reached and stopped there. He offered the miscreants to surrender before the police. But, the miscreants, instead of surrender, started to open fire gun on the police party. Informant ordered the police party to open fire in their defence. Seven rounds were fired by po- lice party. Then the miscreants started to flee away who were chased by the police personnel. But, taking advantage of dense forest, the miscreants succeeded to ran-away. The police personnel and the in- formant had seen the miscreants in the light of Jeep and they claimed to identify the culprits 8-10 in number. Four empty car- tridges and three of misfired 303 and Rifle Butt no. 203, 148 & 337 were produced to the officer recording the Fard-beyan. The inform- ant has accordingly claimed that 8-10 unknown miscreants attempt- ed to kill the member of police party when the police party reached during the operation of road dacoity and challenged the miscreants.
3. On the basis of Fard-beyan (Ext.2) the formal F.I.R. was drawn-up and Nimiaghat P.S. Case No. 30/1990 was registered with, against 8-10 unknown persons u/s 307 I.P.C. 27 Arms Act and Section 3/5 of Explosive Substance Act. The case was taken up for investigation and after completing the same, the charge-sheet under the same section of I.P.C., Arms Act and Explosive Substance Act has been submitted against the above named accused appellant 3 Cr. Appeal (SJ) No. 1489 of 2004 Kanhai Sonar and 4 other accused persons namely Sultan Mian, Budhu Sao, Bajrangi Swarnkar and Ganesh Mahto showing another two accused Ashariya Turi and Nanhu Turi as absconder. The learned C.J.M., Giridih took the cognizance of the offences against the accused persons u/s 307 of I.P.C., 27 Indian Arms Act and 3/5 Explosive Substance Act by the order dated 30.09.1992. Subsequent- ly the case of two accused persons (one was appellant and another was Sultan Mian) splitting from other co-accused, was committed to the court of Sessions vide order dated 26.02.1999 of the committing court. The charges, under sections 307 of IPC, 27 of Indian Arms Act, and 3/5 of Explosive Substance Act, were framed against the accused persons on 05.04.1999 to which they pleaded not guilty, on being stated and explained to them in Hindi. After the conclusion of Trial the Learned Trial court passed the impugned judgment of con- viction and order of sentence which is under challenge in this ap- peal.
4. Heard Mr. Abhijeet Tushar, learned counsel appearing on be- half of the appellant and Mr. Santosh Kr. Shukla, learned A.P.P. ap- pearing on behalf of the State.
Arguments on behalf of the appellant
5. Assailing the impugned judgment of conviction and order of sentence, learned Counsel appearing on behalf of the appellant submitted that :
I.O. and the doctor had not been examined in this case which caused serious prejudice to the defence of the appellant. Charges u/s 307 of IPC against the appellant for an attempt to commit the murder by fire arms and explosive substance were framed and, therefore, the appellant was tried for the offence punishable u/s 27 of the Indian Arms Act and section 3/5 of the Explosive Substance Act along with the offence of attempt 4 Cr. Appeal (SJ) No. 1489 of 2004 to commit murder u/s 307 of IPC, but, charges for the offence u/s 27 of the Indian Arms Act and sections 3/5 of the Explosive Substance Act have not been substantiated and proved and the appellant has been acquitted for the offence punishable u/s 27 of the Indian Arms Act and sections 3/5 of the Explosive Substance Act, hence, the charge of attempt to commit murder u/s 307 of IPC is also not proved and substantiated.
Learned trial court below has committed gross error as he has acquitted the appellant for the offence punishable u/s 27 of the Indian Arms Act and sections 3/5 of the Explosive Substance Act, but, convicted the appellant u/s 307 of IPC when it was alleged that he had attempted to commit murder by fire armed gun and explosive substance.
No incriminating articles were said to have been recovered from the possession of the appellant.
Belated identification cannot be the basis of conviction without recovery of any incriminating article from the possession of the appellant.
In a separate trial the appellant was acquitted for the offence punishable under section 395 of IPC arising out of the same occurrence and registered vide another FIR.
Hence, the impugned judgment of conviction and order of sentence is bad in the eyes of law and against the materials available on recorded and fit to be set aside.
Arguments on behalf of the learned A.P.P. for the State
6. On the other hand, the learned A.P.P. for the State has vehemently opposed the contentions raised on behalf of the appellant and submitted that the learned trial court has rightly appreciated the evidences and no illegality is found in the 5 Cr. Appeal (SJ) No. 1489 of 2004 appreciation of evidence by the learned trial court. It has also been pointed out that in the present case the non-examination of the I.O. and the doctor did not cause any prejudice to the defence of the appellant. Learned trial court has meticulously appreciated the identification of the accused by the police party and rightly held that the acquittal of the accused for the offence punishable u/s 395 of I.P.C. arising out of the same occurrence registered separately as Nimiaghat P.S. Case no. 29/1990 which resulted in acquittal vide Ext. A does not vitiate in itself the conviction of the appellant for the offence punishable u/s 307 of IPC. The present case was separately reported by the police for attempt to kill them by the miscreants and, therefore, this appeal is fit to be dismissed being devoid of merit.
Appraisals and Findings
7. Perused the materials available on record including the Lower Court Records.
8. The appellant was one of the accused person against whom the charge was framed for the offence punishable under Section 307 of the Indian Penal Code and under Section 27 of Indian Arms Act and Section 3/5 of Explosive Substance Act and after the trial, the appellant was found guilty for the offence punishable under Section 307 of the Indian Penal Code and he was acquitted for the offences punishable under Section 3/5 of Explosive Substance Act and under Section 27 of the Indian Arms Act. The other co-accused namely Sultan Miyan was acquitted from all the charges. The case of the prosecution is that in the mid of the night when the police party was on patrolling duty then on the way when the police party was crossing the Latkato jungle a dacoity was being committed in the meantime, the police patrolling party reached there and then the offenders involved in the commission of the dacoity started throwing bomb upon the vehicle of the police by which the driver of 6 Cr. Appeal (SJ) No. 1489 of 2004 the police patrolling party vehicle P.W. 1 got injured, then the police patrolling party chased, but, they could not be caught. The F.I.R. was instituted against 8-10 unknown persons and after completion of investigation the charge sheet was submitted and the appellant was convicted for the offence punishable under Section 307 of IPC and he was acquitted for the offence punishable under Section 27 of Indian Arms Act and Section 3/5 of Explosive Substance Act which are said to be the means of committing the offence of section 307 of IPC.
9. In order to substantiate the charges levelled against this accused-appellant six witnesses have been examined altogether. Neither the doctor nor the I.O of this case has been examined. At the outset, it has been pointed out by the learned defence counsel appearing on behalf of the appellant that in fact this accused appellant has not been identified categorically and pointedly in order to substantiate his involvement in causing attempt to murder of any one of the members of the police party. P.W. 1 Madhusudan Ram, who was the driver of the jeep and he was the injured person upon whom it was alleged to have been thrown bomb upon him, but he did not utter a single word against the appellant for his identification. In cross examination, he categorically stated that he could not see any person in this case and thus, the involvement of the accused-appellant has not been substantiated.
10. P.W. 2 Deepak Kumar is the Judicial Magistrate, in whose presence T.I. parade is said to have been conducted. It has been pointed out in para 9 that the mixing of the accused appellant was not as per the established procedure because the suspect persons standing with the accused appellant was not wearing the same clothes as taken from para 9 of the cross examination. Although, this witness has stated that Dinesh Kumar had identified this appellant and it has also been stated by this witness that the witness 7 Cr. Appeal (SJ) No. 1489 of 2004 Dinesh Kumar had stated that appellant was holding bomb in his hand, but, ironically this appellant has been acquitted for the offence punishable under Section 3/5 of Explosive Substance Act and P.W. 2 has further stated in para 7 that he was holding bomb in his hand in committing dacoity, but, surprisingly this appellant had neither been convicted for the offence of holding bomb under Sections 3/5 of Explosive Substance Act nor he was convicted for the offence punishable under Section 395 of IPC for committing dacoity, therefore, the truthfulness and veracity of the witness Dinesh Kumar to the extent that this appellant was identified by him and he was holding bomb also becomes doubtful and, thus, the advantage of benefit of doubt goes to the appellant. Further, it is also found that there is a significant delay in the arrest of the appellant in this case. This appellant is said to have been arrested on 09.04.1990 and T.I.P. was conducted on 18.04.1990 after the lapse of 9 days and no cogent explanation has been given or substantiated and that too because of the non-examination of the I.O. Therefore, from the identification in the T.I.P. it could not be ascertained definitely that the appellant was present at the time of the commission of the offence. The Hon'ble Supreme Court in the case of Md. Sajjad Alias Raju Alias Salim Versus State of West Bengal reported in (2017) 11 SCC 150 has held in paragraphs 15, 16, 17, 18 and 19 are as under:
"15. In Lal Singh and others Vs. State of U.P., this court in Pa- ras 28 and 43 dealt with the value or weightage to be attached to Test Identification Parade and the effect of delay in holding such test identification parade. The said paragraphs are as under:-
"28. The next question is whether the prosecution has proved beyond reasonable doubt that the appellants are the real culprits. The value to be attached to a test identification parade depends on the facts and circumstances of each case and no hard-and-fast rule can be laid down. The court has to examine the facts of the case to find out whether there was sufficient opportunity for the witnesses to identify the ac-
8 Cr. Appeal (SJ) No. 1489 of 2004 cused. The court has also to rule out the possibility of their having been shown to the witnesses before holding a test identification parade. Where there is an inordinate delay in holding a test identification parade, the court must adopt a cautious approach so as to prevent miscarriage of justice. In cases of inordinate delay, it may be that the witnesses may forget the features of the accused put up for identification in the test identification parade. This, however, is not an abso- lute rule because it depends upon the facts of each case and the opportunity which the witnesses had to notice the fea- tures of the accused and the circumstances in which they had seen the accused committing the offence. Where the witness had only a fleeting glimpse of the accused at the time of occurrence, delay in holding a test identification pa- rade has to be viewed seriously. Where, however, the court is satisfied that the witnesses had ample opportunity of seeing the accused at the time of the commission of the offence and there is no chance of mistaken identity, delay in holding the test identification parade may not be held to be fatal. It all depends upon the facts and circumstances of each case.
43. It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identifica- tion parade at the earliest-possible opportunity, no hard- and-fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of iden- tification in court, but on the basis of other corroborative ev- idence, such as recovery of looted articles, stand on a differ- ent footing and the court has to consider the evidence in its entirety."
16. In the case in hand, apart from the fact that there was delay in holding the test identification parade, one striking feature is that none of the prosecution witnesses concerned had given any identification marks or disclosed special features or attributes of any of those four persons in general and the accused in particu- lar. Further, no incident or crime had actually taken place in the presence of those prosecution witnesses nor had any special cir- cumstances occurred which would invite their attention so as to register the features or special attributes of the accused con- cerned. Their chance meeting, as alleged, was in the night and was only for some fleeting moments.
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17. In Subash Vs. State of U.P., the aspects of delay as well as absence of any special features for identification and the effect thereof were considered by this court in paragraphs 8 and 9 as under:-
"8. Apart from this infirmity we further find that Shiv Shankar was not put up for test identification parade promptly. The identification parade has been held three weeks after his arrest and no explanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identify- ing witnesses to see him in the police lock-up or in the jail premises and make a note of his features.
9. Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identifica- tion parade. It is, no doubt, true that all the three witnesses had correctly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Exhibit Kha-1 nor in their statements during investigation, the eyewitnesses have given any de- scriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had "sallow" complexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification parade, they would have cer- tainly mentioned about them at the earliest point of time be- cause their memory would have been fresh then. Thus in the absence of any descriptive particulars of Shiv Shankar in Ex. Kha-1 or in the statements of witnesses during investi- gation, it will not be safe and proper to act upon the identifi- cation of Shiv Shankar by the three witnesses at the identifi- cation parade and hold that he was one of the assailants of Ram Babu. As pointed out in Muthuswami v. State of Madras where an identification parade was held about 2½ months after the occurrence it would not be safe to place re- liance on the identification of the accused by the eyewitness- es. In another case Mohd. Abdul Hafeez v. State of A.P. It was held that where the witnesses had not given any de- scription of the accused in the first information report, their identification of the accused at the sessions trial cannot be safely accepted by the court for awarding conviction to the accused. In the present case there was a long interval of 10 Cr. Appeal (SJ) No. 1489 of 2004 nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him correctly at the identification parade."
18. Similarly the issue of delay weighed with this court in Musheer Khan vs. State of M.P. in discarding the evidence re- garding test identification as under:
"28. Insofar as the identification of A-5 is concerned that has taken place at a very delayed stage, namely, his identifi- cation took place on 24-1-2001 and the incident is of 29-11- 2000, even though A-5 was arrested on 22-12- 2000. There is no explanation why his identification parade was held on 24- 1-2001 which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the courts below or the High Court on such delayed TI parade for which there is no explanation by the prosecution."
19. In the instant case none of the witnesses had disclosed any features for identification which would lend some corroboration. The identification parade itself was held 25 days after the arrest. Their chance meeting was also in the night without there being any special occasion for them to notice the features of any of the accused which would then register in their minds so as to enable them to identify them on a future date. The chance meeting was also for few minutes. In the circumstances, in our considered view such identification simpliciter cannot form the basis or be taken as the fulcrum for the entire case of prosecution. The suspi- cion expressed by PW 8 Saraswati Singh was also not enough to record the finding of guilt against the appellant. We therefore grant benefit of doubt to the appellant and hold that the prosecu- tion has failed to establish its case against the appellant."
11. Therefore, in the light of aforesaid rulings, it is found in the present case that after the arrest of the appellant the T.I.P. was not conducted immediately or within a reasonable time-period, rather a significant delay of 09 days' and, therefore, the possibility that the witness P.W. 6-Dinesh Kumar might have forgotten the features of 11 Cr. Appeal (SJ) No. 1489 of 2004 the accused cannot be ruled out inasmuch as the identifying witness of the said T.I.P. P.W. 6 did not corroborate the T.I.P. in his testimonies before the court during the course of trial which is evident from his deposition.
12. Further, the witness Dinesh Kumar P.W. 6 has been examined in the court during the course of the trial who stated in para 6 and 7 that although he identified one person, but, he did not take the name of this appellant at all. Further, this appellant was present in the court at the time of the trial, but, he failed to identify him and categorically stated that he could not identify him that he was present and thus, T.I.P. alleged to have been conducted becomes doubtful with respect to the involvement of this appellant in the commission of the offence. Thus, the deposition of P.W. 2 on the point of identification of the appellant by the two witnesses P.W. 5 and 6 did not get substantiated in order to hold the guilt for offence punishable under Section 307 of the Indian Penal Code against this appellant. Further, neither the offence under Section 3/5 of Explosive Substance Act has been proved nor the Section 27 of the Arms Act has been proved for committing the offence of attempt to murder of any member of the patrolling party including P.W. 1 driver when the case of the prosecution is categorically that the appellant committed the offence of attempt to murder under section 307 of IPC by means of armed gun and explosive substances.
Further, P.W. 3 and 4 are the seizure list witnesses and both of them have pointedly stated that they have not seen any one of the offenders and P.W. 4 has simply put his signature in Exhibit 3 in his seizure. From the perusal of seizure list, it appear that Arms and Ammunition were seized from the appellant, but, the appellant has also been acquitted for the offence punishable under Section 395 of the Indian Penal Code for which a separate trial was conducted and by instituting a separate F.I.R. as evident from Exhibit A vide G.R. 12 Cr. Appeal (SJ) No. 1489 of 2004 No. 435 of 1990/ S.T. No. 124 of 1998 apart from his acquittal under Section 3/5 of Explosive Substance Act and under the Section 27 of the Arms Act in S.T. No. 37 of 1999.
13. In view of the aforesaid evaluation of the testimonies of the witnesses, it is well founded that in the present case learned trial court has failed to appreciate the evidences to find out any one of the ingredients of the offence punishable under Section 307 of the Indian Penal Code in order to substantiate the involvement of the appellant in the said offence. Neither the doctor in this case has been examined nor has the I.O. in this case been examined. No injury has been brought on record to infer intention or knowledge of the appellant for his involvement in this case. Further, his identification is also doubtful at the time and the place of occurrence as established from the discussions held in foregoing paragraphs. The learned defence counsel has relied upon the Hon'ble Supreme Court as pronounced in Surinder Singh Versus State (Union Territory of Chanidgarh) reported in 2021 SCC Online SC 1135 in paragraph 20 held as under:
20. It is by now a lucid dictum that for the purpose of con-
stituting an offence under Section 307 IPC, there are two ingredients that a Court must consider, first, whether there was any intention or knowledge on the part of accused to cause death of the victim, and, second, such intent or knowledge was followed by some overt actus rea in execu- tion thereof, irrespective of the consequential result as to whether or not any injury is inflicted upon the victim. The Court may deduce such intent from the conduct of the ac- cused and surrounding circumstances of the offence, includ- ing the nature of weapon used or the nature of injury, if any. The manner in which occurrence took place may en- lighten more than the prudential escape of a victim. It is thus not necessary that a victim shall have to suffer an inju- ry dangerous to his life, for attracting Section 307 IPC.
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14. In the present case the charges of throwing the bomb and firing upon the police as evident from the deposition of the witnesses has not been proved and the learned trial court has acquitted the appellant for the offence punishable under Section 27 of the Indian Arms Act and also sections 3/5 of the Explosive Substance Act. Therefore, it is apparent that there is an improvement made during the T.I.P. by the P.W. 5 and P.W. 6 that they had seen the appellant with a bomb in his hand. But, before the court, P.W.6 did not identify the appellant and P.W. 5 though identified the appellant, did not mention a single word about the involvement of the appellant with respect to the incident. Therefore, none of the witnesses have even indicated any overt act by the appellant or involvement in the incident.
15. Learned trial court has not convicted the appellant with the aid of Section 34 of the Indian Penal Code in order to establish common intention along with other offenders nor any iota of evidence against the appellant has come in light to share the common intention to commit the alleged offence against the appellant as found from the impugned judgment in order to hold the guilt of the accused-appellant for the offence punishable under Section 307 of IPC and, therefore, in absence of any specific evidence for establishing the common intention the conviction under Section 307 of IPC as held by the learned trial court is bad in law and fit to be set aside.
16. In the backdrop, this Court finds that the impugned judgment of conviction dated 15.07.2004 and order of sentence dated 17.07.2004 passed by the learned Additional Sessions Judge, F.T.C. V. Giridih, in Sessions Trial No. 37 of 1999 corresponding to G.R. No. 437 of 1990, arising out of Nimiaghat P.S. Case No. 30 of 1990, for the offence punishable under Section 307 of IPC against appellant is found not sustainable in the eyes of law and in the 14 Cr. Appeal (SJ) No. 1489 of 2004 result the impugned judgment of conviction and order of sentence as passed against the appellant is set aside.
17. Accordingly, this appeal is allowed.
18. Since, the appellant is on bail he is discharged from the liabilities of bail bond.
19. Let the LCR be sent back to the learned court below along with the copy of this judgment.
(Navneet Kumar, J.) Jharkhand High Court, Ranchi, Dated the 11.04.2022/NAFR MM/-