Jharkhand High Court
Md. Akbar Ali Son Of Late Asgar Ali vs The State Of Jharkhand on 6 August, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 1418 of 2005
With
Cr. Appeal (S.J.) No. 1267 of 2005
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(Against the judgment of conviction dated 17.09.2005 and order of sentence dated 19.09.2005, passed by learned Additional Sessions Judge, Fast Track Court-III, Bokaro, in Sessions Trial No. 537 of 1994). Md. Akbar Ali Son of Late Asgar Ali, Resident of Rain Mohalla, P.S.-Hindpiri, District- Ranchi (Jharkhand) ..... Appellant [in Cr. Appeal (SJ) No. 1418 of 2005] Dinesh Sao @ Dinesh Sah, S/o Sri Vishwanath Sao Resident of Nirsa Bazar, P.S.- Nirsa, District-Dhanbad ..... Appellant [in Cr. Appeal (SJ) No. 1267 of 2005] Versus The State of Jharkhand .... Respondent
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO For the Appellants :Mr. P.P.N. Roy, Sr. Advocate Mrs. Pragati Prasad, Advocate (In Cr. Appeal No.1267 of 2005) Mr. Y.N. Mishra, Advocate Mr. Abhisekh Kumar, Advocate (In Cr. Appeal No.1418 of 2005) For the State :Mr. Manoj Kumar, Additional Public Prosecutor [in both criminal appeals]
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By Court:- Heard learned counsel for the appellant Mr. P.P.N. Roy, Senior Advocate assisted by Mrs. Pragati Prasad, Advocate on behalf of Dinesh Sao @ Dinesh Sah in Cr. Appeal No.1267 of 2005 and Mr. Yadunandan Mishra, Advocate appearing for appellant, Md. Akbar Ali in Cr. Appeal No.1418 of 2005.
2. The appellants have preferred separate appeal against the common judgment of conviction dated 17th September, 2005 and order of sentence dated 19th September, 2005 passed in Sessions Trial Case No.537 of 1994 passed by Additional Sessions Judge, F.T.C.-III, Bokaro, whereby both the appellants have been convicted under Sections 399 and 402 of the Indian Penal Code and awarded rigorous imprisonment for five years and a fine of Rs.1000/- under both the head separately and in the case of default in 2 payment of fine simple imprisonment for three months.
3. The prosecution case is based upon fardbayen of R.N. Singh, Officer in- charge, Balidih on 30.08.1992 at 16:30 hours at petrol pump, Balidih. The informant has alleged that he alongwith Sri Devendra Jha, Wireless A.S.I. were going on their private car towards Bokaro. In the meantime, they saw a Maruti Van brown in colour bearing Registration No. BR-17A 7161 coming from opposite side. The Officer in-charge recollects and remembered that on 28.08.1992, a dacoity was committed at petrol pump at Gobindpur, Dhanbad and Nimiya Ghat, Giridih by the same vehicle and as such the Officer in- charge got suspicion. He asked his driver to chase the vehicle and came to the Balidih police station and instructed his all police officers to follow him. Subsequently, the Officer-in-charge noticed that the said vehicle was standing under seasame tree in front of petrol pump. The Officer in-charge asked Devendra Jha, Wireless A.S.I., to call some local people and keep vigiliant about Maruti Van. The Officer-in-charge has further submitted that he saw that right side door of the Maruti Van was opend and two of the accused persons rushed towards the cashier of the petrol pump. In the meantime, A.S.I. Devendra Jha, with his service revolver and local people and other officers including informant surrounded the accused persons and thereafter the accused persons were arrested. It is further alleged that from possession of the criminals, country-made pistol, arms, bombs, knife were also recovered alongwith cash from the Maruti Van, which were seized by the police by preparing seizure list in this case.
4. On the basis of the fardbeyan of the officer in-charge, Balidih P.S. case no. 85 of 1992 dated 30th August, 1992 was instituted under Sections 399 and 402 of the Indian Penal Code.
5. After investigation, the police submitted charge sheet vide charge sheet 3 no.90 of 1992 dated 26.10.1992 under Sections 399 and 402 of the Indian Penal Code against all the accused persons.
The cognizance of the offence has been taken on 02.11.1992 and the case has been committed to the court of sessions vide order dated 01.08.1994.
6. The charge has been framed against Akbar Ali under Sections 399 and 402 of the Indian Penal Code on 05.04.2003 and against Dinesh Sao @ Dinesh Sah on 23.07.2003 under Sections 399 and 402 Indian Penal Code to which the accused persons have pleaded their innocence and thus they were put under trial.
7. The prosecution has examined altogether two witnesses and adduced documentary evidences. P.W.-1 is Braj Bhushan Tiwari, A.S.I. and P.W.-2 is Devendra Jha, A.S.I., Wireless. Nityanand Parmanik, Advocate Clerk who is a formal witness has proved the first information report has been examined as a Court witness. Seizure list in three sheets of Balidih P.S. Case No.85 of 1992 has been proved and marked as Ext.-1. Signature of Officer in-Charge, Balidih dated 30.08.1992 on formal first information report has been proved and marked as Ext.-2. Entire fardbeyan of Balidih P.S. Case No.85 of 1992 has been proved and marked as Ext.-3.
8. After closure of the prosecution evidence, the appellants have been examined under section 313 Cr.P.C. on 04.08.2005 to which they pleaded that they have been falsely implicated in this case and they were not assembled there to commit dacoity.
9. After hearing the learned counsel for the parties, the learned trial court has convicted the appellants vide judgment of conviction dated 17th September, 2005 and order of sentence dated 19th September, 2005, passed in Sessions Trial Case No.537 of 1994, under Sections 399 and 402 of the Indian Penal Code and awarded rigorous imprisonment for five years and fine of 4 Rs.1000/- separately under both the Sections and in case of default of payment of fine, simple imprisonment for three months.
10. Being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence, the appellants have preferred two separate criminal appeals assailing the impugned judgment of conviction and order of sentence, as such both criminal appeals are being heard together and disposed of by this common judgment.
11. Heard, learned counsel for the appellant Mr. P.P.N Roy, Senior Advocate assisted by Mrs. Pragati Prasad, Advocate, on behalf of the appellant Dinesh Sao @ Dinesh Sah in Cr. Appeal (S.J.) No.1267 of 2005 and Mr. Yadunandan Mishra assisted by Mr. Abhisekh Kumar, Advocates, on behalf of Md. Akbar Ali in Cr. Appeal (S.J.) No.1418 of 2005. Learned counsels for the appellants have submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustained in the eyes of law. Learned counsels for the appellants have submitted that from perusal of the prosecution evidence, there are major contradictions in the first information report and the evidence of both P.W.-1 and P.W.-2. Learned counsels for the appellants have submitted that from perusal of the first information report, it is not clear, who are the accused persons, apprehended near the Maruti Van and who are the accused persons apprehended near the cashier at the petrol pump. Learned counsels for the appellants have further submitted that case is falsely instituted by the informant for getting some reputation in the department. Learned counsels for the appellants have further submitted that the independent witnesses, who were present at Balidih at the time of arrest of the accused, have not been examined in this case nor the owner of the petrol pump or any staff of the petrol pump has been examined in this case.
Learned counsels for the appellants have further submitted 5 that the informant Rama Nand Singh, who is the Officer-in-charge has also not been examined in this case nor the investigating officer has been examined in this case. Learned counsels for the appellants have submitted that only on the basis of the evidence of two police officers namely Braj Bhushan Tiwari, A.S.I. and Devendra Jha, Wireless A.S.I., the learned trial court has convicted the appellant without having any material for conviction under Sections 399 and 402 of the Indian Penal Code. Learned counsels for the appellants have submitted that the learned trial court, without scrutinizing and appreciating the prosecution evidence, has convicted the appellants contrary to the material available on record and as such the finding of learned trial court is perverse in the eyes of law. Learned counsels for the appellants have further submitted that none of the material seized by the police, that is country-made pistol, cartridge, bomb, knife and cash have been produced before the learned trial court during the trial and as such the impugned judgment of conviction and order of sentence is bad in law and cannot sustained in eyes of law. Learned counsels for the appellants have submitted that appellants are entitled for benefit of doubt and be acquitted from the charge and conviction under Sections 399 and 402 of the Indian Penal Code. Learned counsels for the appellants have further submitted that Dinesh Sao @ Dinesh Sah was juvenile at the time of occurrence, that is in the year 1992. When his statement was recorded under Section 313 Cr.P.C., he was aged about 28 years. The occurrence is of the year 1992 and if the same is calculated, the appellant Dinesh Sao @ Dinesh Sah was minor at the time of occurrence. As such, the learned counsels for the appellants have prayed, on the ground as stated above, the accused persons/appellants be acquitted of the charge and conviction by granting the benefit of doubt.
12. Heard, Mr. Manoj Kumar, learned Additional Public Prosecutor 6 appearing in both the criminal appeals on behalf of the State. Learned counsel for the State has submitted that the impugned judgment of conviction and order of sentence are based on material available on record and this Court may not interfere with the same at this stage. Learned counsel for the State has further submitted, that it is true that neither the informant nor the investigating officer have been examined in this case but this is because of the fact that even after taking steps by the learned trial court those could not have been examined. Learned counsel for the State has further submitted that the appellant Dinesh Sah @ Dinesh Sao, who has taken a plea of being juvenile, that has not been taken during the trial and as such that cannot be accepted at this stage in view of judgment as reported in (2017) 2 Supreme Court Cases 210 in case of Mukarrab and Others Versus State of Uttar Pradesh where it has been held that:
"22. A reading of the above decision in Darga Ram case shows that courts need to be aware of the fact that age determination of the persons concerned cannot be certainly ascertained in the absence of original and valid documentary proof and there would always lie a possibility that the age of the person concerned may vary plus or minus two years. Even in the presence of medical opinion, the Court showed a tilt towards the juvenility of the accused. However, it is pertinent to note that such an approach in Darga Ram case was taken in the specific facts and circumstances of that particular case and any attempt of generalising the said approach could not be justifiably entertained.
23. It is a well-accepted fact that age determination using ossification test does not yield accurate and precise conclusions after the examinee crosses the age of 30 years, which is true in the present case. After referring to Bhola Bhagat case and other decisions, in Babloo Pasi case, this Court held as under:-
(SCC pp. 140-42, paras 18, 22 & 23) "18. Nevertheless, in Jitendra Ram v. State of Jharkhand the Court sounded a note of caution that the aforestated observations in Bhola Bhagat would not mean that a person who is not entitled to the benefit of the said Act would be dealt with leniently only because such a plea is raised. Each plea must be judged on its own merit and each case has to be considered on the basis of the materials brought on record.7
22. It is well settled that it is neither feasible nor desirable to lay down an abstract formula to determine the age of a person. The date of birth is to be determined on the basis of material on record and on appreciation of evidence adduced by the parties.
The medical evidence as to the age of a person, though a very useful guiding factor, is not conclusive and has to be considered along with other cogent evidence.
23. It is true that in Arnit Das (I) v. State of Bihar this Court has, on a review of judicial opinion, observed that while dealing with a question of determination of the age of an accused, for the purpose of finding out whether he is a juvenile or not, a hypertechnical approach should not be adopted while appreciating the evidence adduced on behalf of the accused in support of the plea that he was a juvenile and if two views may be possible on the same evidence, the court should lean in favour of holding the accused to be a juvenile in borderline cases. We are also not oblivious of the fact that being a welfare legislation, the courts should be zealous to see that a juvenile derives full benefits of the provisions of the Act but at the same time it is also imperative for the courts to ensure that the protection and privileges under the Act are not misused by unscrupulous persons to escape punishments for having committed serious offences."
24. In Criminal Appeal No. 486 of 2016 dated 12.05.2016, Parag Bhati v. State of U.P., after referring to Abuzar Hossain case and other decisions of this Court, this Court held as under:
(Parag Bhati case, SCC pp. 757-58, paras 34-35) "34. It is no doubt true that if there is a clear and unambiguous case in favour of the juvenile accused that he was a minor below the age of 18 years on the date of the incident and the documentary evidence at least prima facie proves the same, he would be entitled to the special protection under the JJ Act. But when an accused commits a grave and heinous offence and thereafter attempts to take statutory shelter under the guise of being a minor, a casual or cavalier approach while recording as to whether an accused is a juvenile or not cannot be permitted as the courts are enjoined upon to perform their duties with the object of protecting the confidence of common man in the institution entrusted with the administration of justice.
35. The benefit of the principle of benevolent legislation attached to the JJ Act would thus apply to only such cases wherein the accused is held to be a juvenile on the basis of at least prima facie evidence regarding his minority as the benefit of the possibilities of two views in regard to the age of the alleged accused who is involved in grave and serious offence which he committed and gave effect to it in a 8 well-planned manner reflecting his maturity of mind rather than innocence indicating that his plea of juvenility is more in the nature of a shield to dodge or dupe the arms of law, cannot be allowed to come to his rescue." [emphasis added].
From the above decision, it is clear that the purpose of Juvenile Justice Act, 2000 is not to give shelter to the accused of grave and heinous offences."
13. Learned counsel for the State has further submitted that the impugned judgment of conviction and order of sentence are based upon material available on record as Braj Bhushan Tiwari, A.S.I. has proved the seizure list and also identified Akbar Ali in the court having bomb in his hand. Learned counsel for the State has further submitted that on the above ground, the judgment of conviction and order of sentence be affirmed by this Hon'ble Court.
14. Heard, learned counsel for the appellant Mr. P.P.N. Roy, Senior advocate assisted by Mrs. Pragati Prasad, Advocate, in Cr. Appeal No.1267 of 2005, and Mr. Yadunandan Mishra, Advocate assisted by Mr. Abhisekh Kumar, Advocates in Cr. Appeal No.1418 of 2005 and from perusal of the record that is First Informant Report, charge framed, and the evidence of two prosecution witnesses, the exhibits and one Court witness as well as the statement of the appellants recorded under Section 313 Cr.P.C., this court is of the opinion that the informant of the case has not been examined in this case nor the investigating officer of this case has been examined in this case. The conviction of the appellant is only on the basis of testimony of P.W.-1 Braj Bhushan Tiwari, A.S.I. and Devendra Jha, A.S.I. Wireless, who are the police personnel and Court witness No.1, Nitya Nand Pramanik, who has proved the formal F.I.R. and the written report of the Officer-in-charge as Exhibit-3. This Court is also of the opinion that non-examination of the investigating officer and the informant has caused serious prejudice to the appellant. From perusal of the 9 first informant report which has been marked as Exhibit-3, there appears contradictory statement as it has been stated in first information report at one place that two of the accused persons have gone towards the cashier of the petrol pump, as the Maruti Van was standing under a tree, ahead of the petrol pump, but in subsequent paragraph it has been alleged by the informant, Rama Nand Singh, officer in-charge, Balidih, who has not been examined in this case. That all the five accused persons were apprehended near the Maruti Van. Both are contradictory in nature. This Court has also observed that the evidence of P.W.-2, who was a companion of the informant, is contradictory from first informant report. This court has also found that Braj Bhushan Tiwari, A.S.I. (P.W.-1) has reached the place of occurrence after the accused persons were apprehended and as such non-examination of the informant as well as the investigating officer has caused serious prejudice to the appellants and as such the benefit of doubt will go in favour of the appellant, for non- examination of the investigating officer and the informant coupled with the fact that several independent witnesses were present at the place of occurrence as per the first informant report but none of them have been examined which has also caused serious prejudice to the appellants. This Court has also observed that, except these two police officers, in the background of non- examination of the independent witnesses and owner of the petrol pump as well as informant and the investigating officer of the case and non-production of the material like fire arm, cartridge, bomb, knife and cash before the learned trial Court, conviction of the appellants are not sustainable in the eyes of law.
15. Under the aforesaid circumstances, such serious lacuna in the prosecution case is not acceptable to this Court. This court is giving benefit of doubt to both the appellants and they are being acquitted of the charge and conviction under Sections 399 and 402 of the Indian Penal Code.
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16. In the result, the impugned judgment of conviction dated 17.09.2005 and order of sentence dated 19.09.2005, passed by learned Additional Sessions Judge, Fast Track Court-III, Bokaro, in Sessions Trial Case No. 537 of 1994, in connection with Balidih P.S. Case No. 85 of 1992, corresponding to G. R. No. 1069 of 1992, is hereby set aside and both the appellants Dinesh Sao @ Dinesh Sah and Md. Akbar Ali are acquitted of the charges and conviction under Sections 399 and 402 of the Indian Penal by giving benefit of doubt.
17. The present Criminal Appeals are accordingly allowed.
18. The appellants, who are on bail, are discharged from liability of their bail bonds.
19. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated the 06.08.2018 R.S./-