Jharkhand High Court
Santosh Kumar @ Dabbu vs The State Of Jharkhand on 31 August, 2024
Bench: Rongon Mukhopadhyay, Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (DB) No. 350 of 2017
Santosh Kumar @ Dabbu, s/o late Krishna Kumar, resident of Uliyan, Main
Road, Kadma, PO & PS-Kadma, Town-Jamshedpur, District-East
Singhbhum ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
With
Criminal Appeal (DB) No. 338 of 2017
Niraj Singh @ Neeraj Singh, s/o Bhushan Singh, r/o H. No.32, Uliyan Tank
Road, Kadma, PO & PS-Kadma, Town-Jamshedpur, District-East
Singhbhum (Jharkhand) ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
With
Criminal Appeal (DB) No. 424 of 2017
1. Surya Patel @ Suryakant Patel, s/o late Nagin Patel
2. Smt. Uma Patel, wife of Surya Kant Patel
Both residents of Gurudwara Basti, PO & PS-Bistupur, Town-
Jamshedpur, District-East Singhbhum (Jharkhand) ... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE DEEPAK ROSHAN
For the Appellants : Mr. A. K. Kashyap, Sr. Advocate
[in Criminal Appeal (DB) Nos. 350 of 2017 & 338 of 2017]
Mr. Jitendra S. Singh, Advocate
[in Criminal Appeal (DB) No. 350 of 2017]
Mr. Indrajit Sinha, Advocate
[in Criminal Appeal (DB) No. 424 of 2017]
For the State : Mr. Bhola Nath Ojha, APP
For the Informant : Mr. P. P. N. Roy, Sr. Advocate
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JUDGMENT
C.A.V On 27/06/2024 Pronounced On 31/08/2024 Per, Deepak Roshan, J.
Since all these appeals arise of the common judgment as such all are heard together and disposed of by this common judgment.
2. These appeals are directed against the judgment of conviction 1 and order of sentence dated 03.02.2017 and 07.02.2017 respectively, passed by the Additional Sessions Judge-XI, East Singhbhum, Jamshedpur in Sessions Trial No. 338 of 2005; whereby the appellants, namely, Santosh Kumar @ Dabbu and Niraj Singh have been convicted and sentenced to undergo RI for life and fine of Rs.10,000/- each for the offence under Sections 302/34 and 120B of the Indian Penal Code and the appellants, namely, Surya Patel @ Suryakant Patel and Uma Patel have been convicted and sentenced to undergo RI for life and fine of Rs.10,000/- each for the offence under Section 120B of the Indian Penal Code.
3. On the basis of fardbeyan of the informant, namely, Ranjit Kaur recorded by Sub-Inspector, S. K. Singh of Bistupur Police Station at T.M.H. at about 11:00 to 11:20 AM an FIR was lodged on 11.04.2005. As per fardbeyan Kulraj Singh, Devar of the informant was chatting with one Nasir while sitting on chair under a banyan tree in front of his house. At that time, the informant came out of her house on hearing sound of gun fire and did see that two persons were on a black Rajdoot motorcycle, the rider of which was a long, lean and thin man whereas the pillion rider was also lean and thin having small hair on temple and big hair on top of the head. The said pillion rider was having pistol in his hand. There was also a scooter with two persons. The pillion rider was having a pistol type arm with him. All the riders were fleeing away towards west while making firing by their firearm. The deceased Dever of the informant was lying on the road. He was rushed to T.M.H. by the informant and other family members where he was declared dead.
4. It is also stated in the fardbeyan that the family of the informant was having long standing enmity with Surya Patel and his wife Uma Patel. Said Surya Patel had committed murder of one another Dever of the informant, namely, Ravinder Singh @ Bittu in the year 1989 for which the case was registered in Sonari Police Station. The cousin father-in-law (Chacha Sasur) of the informant, namely, Payara Singh was murdered by Surya Patel in the year 1992 for which a case was lodged in Bistupur Police 2 Station. Thereafter, murder of Basu, the servant of the informant was done by servant of Uma Patel, namely, Ravinder Singh for which case was registered in Bistupur Police Station. It is also stated that at the time of occurrence of this case, accused Surya Patel was in jail. His wife Uma Patel resides in front of the house of the informant and there has been feuds and altercation between the parties on many issues. One Jitu Patel and Nandu Patel often used to visit Uma Patel and they used to look after the work of Surya Patel. The informant has claimed that the murder of Kulraj Singh @ Raju has also been done after entering into conspiracy by Surya Patel, Umal Patel, Jitu Patel and Nandu Patel.
5. On the basis of the fardbeyan recorded on 11.04.2005 at 12:30 Hrs., a formal F.I.R being Bistupur PS Case No. 88 of 2005 was registered on 11.04.2005 against Surya Patel, Uma Patel, Jitu Patel, Nandu Patel and four unknown miscreants.
6. During investigation, the name of the accused persons, namely Surya Kant Patel @ Surya Patel, Uma Patel, Krishna Rao, Santosh Kumar and Niraj Singh came as conspirator for commission of murder of the deceased Kulraj Singh and the accused persons Krishna Rao, Santosh Kumar and Niraj Singh were allegedly found to have committed the murder. Accordingly, charge-sheet was submitted against five accused persons, namely, Surya Patel @ Surya Kant Patel, Uma Patel, Krishna Rao, Santosh Kumar @ Dabbu and Niraj Singh under Section 302/120B of the Indian Penal Code and under Section 27 of the Arms Act; whereas the investigation was kept pending against two accused persons, namely, Nimai Chandra Agrawal @ Inchu, Amit Choudhary, Nandu Patel and Jitu Patel.
7. After submission of charge-sheet, cognizance was taken against four accused persons and also against Krishna Rao for the offence under Sections 302/120B of the Indian Penal Code and under Section 27 of the Arms Act. Thereafter, the case was committed to the Court of Sessions but one accused, namely, Krishna Rao stopped making appearance in the trial and as such the case record of Krishna Rao was split up from the main 3 record of the present accused persons who were facing trial. Thereafter, charge under Sections 302/34 and 120B of the Indian Penal Code was framed against Niraj Singh @ Neeraj Singh and Santosh Kumar. However, charge under Section 120B of the Indian Penal Code was framed against Surya Kant Patel @ Surya Patel and Uma Patel.
8. Learned counsels for the respective appellants have assailed the impugned judgment mainly on the following grounds:
(i) Learned trial Court has not considered the defence version in its true perspective and the findings given by the learned trial Court are not based on legal, reliable and trustworthy evidence.
(ii) All the nine prosecution witnesses examined on behalf of the prosecution in order to prove its case have given most contradictory statement to each other and it appears that none of the prosecution witnesses is trustworthy and reliable in the eye of law.
(iii) The appellants are not named in the F.I.R by the informant and it further appears that during course of investigation also none of the witnesses, who have claimed themselves as the eye witness, had even disclosed the name of the appellants as the assailants or the accused in this case before police.
(iv) No incriminating article has been recovered from the possession of the appellants to show their complicity in the present case,
(v) No motive has been assigned by the prosecution so far as the appellants are concerned.
(vi) The version of the P.Ws. 1 and 2 are also doubtful for the reason that both have given most contradictory statement to each other.
PW2 has stated that he had gone for servicing of his Bajaj Scooter but no such Bajaj Scooter is belonging to him; rather he is having Vespa Scooter for which there was no service centre near the place of occurrence.
(vii) The recovered bullets from the dead body of the deceased have 4 not been produced before the learned trial Court.
(viii) The prosecution has not examined independent witnesses of the locality and the witnesses who have been examined on the point of occurrence are highly interested witnesses and their presence at the place of occurrence being eye witnesses are highly doubtful.
(ix) As per the allegation in the FIR made by the informant; the deceased was sitting and chatting with one Nasir. However, for the reasons best known to the prosecution said Nasir has not been examined.
(x) No evidence of pre-meeting of mind has been laid down by the prosecution to corroborate the ground of motive and intention. Relying upon the aforesaid arguments, learned counsels for the respective appellants prays for acquittal.
9. Learned APPs have supported the judgment of conviction and sentence and submitted that no error has been committed by the trial court in convicting the appellants.
10. Having heard learned counsel for the parties and after going through the lower Court records available before us it appears that to prove the guilt of appellants prosecution has examined nine witnesses. P.W. 1 and P.W. 2 are chance witnesses, P.W.3 and P.W.5 are nephew of the deceased, P.W.4 is the informant, P.W.6 is the doctor who conducted the postmortem of the deceased, P.W.7 is widow of the deceased, P.W.8 has been declared hostile by the prosecution and P.W.9 is the investigating officer.
11. It appears that deposition of P.W.1 has been discarded by the learned trial Court in regard to Santosh Kumar @ Dabbu [appellant in Criminal Appeal (D.B.) No. 350 of 2017] on the ground that the said witness did not turn up for cross-examination by learned advocate on behalf of Santosh Kumar even after issuance of summons and warrant which is as per the law as Hon'ble Apex Court in Iswar Bhai C. Patel v. Harihar Behera, (1999) 3 SCC 457 held that having not entered into the witness-box and 5 having not presented himself for cross-examination, an adverse presumption has to be drawn against such person on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872. The relevant para is quoted herein below:
"17. ... Having not entered into the witness-box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872."
12. Further P.W.2 who is a chance witness has shown his presence at the place of occurrence with one scooter bearing registration no. BR 16J 4798. The said scooter, according to this witness belonged to his uncle Sunil Singh, who resides with him in Manfit Market and this witness has come near the place of occurrence at Bajaj Service Centre for repair of the same. This witness has categorically named this scooter with number at para-18 on his cross-examination. He has no other reason to be present at the place of occurrence. But the document in shape of Ext.-A clearly shows that the vehicle of said registration number was a Make LML Vespa Star Scooty. It is not a scooter of Bajaj Make and there was no service centre near the place of occurrence for Vespa Scooter. Further, the said vehicle is not registered in the name of Sunil Singh but the registered owner is one Md. Alam and the year of manufacturing of the said two wheelers is of year 1997. This document which is certified copy issued by the office of District Transport Officer, Jamshedpur in shape of Ext.-A creates serious doubt about the veracity of this witness and his presence at the place of occurrence; as such, he cannot be relied upon. In this regard Hon'ble Apex Court in "Suresh v. State of Haryana" reported in (2018) 18 SCC 654 has categorically held that the evidence of a chance witness requires a very cautious and close scrutiny. A chance witness must adequately explain his presence at the place of occurrence and the deposition of a chance witness whose presence at the place of occurrence remains doubtful should be discarded. The relevant para is quoted herein below:
"47. Generally, the chance witness, who reasonably explains his presence in the named location at the relevant time, may be taken into consideration and 6 should be given due regard, if his version inspires confidence and the same is supported by surrounding circumstances. Nonetheless, the evidence of a chance witness requires a very cautious and close scrutiny. A chance witness must adequately explain his presence at the place of occurrence (refer to Satbir v. Surat Singh [Satbir v. Surat Singh, (1997) 4 SCC 192 : 1997 SCC (Cri) 538] and Harjinder Singh v. State of Punjab [Harjinder Singh v. State of Punjab, (2004) 11 SCC 253 : 2004 SCC (Cri) Supp 28] ). Deposition of a chance witness whose presence at the place of incident remains doubtful should be discarded (refer to Shankarlal v. State of Rajasthan [Shankarlal v. State of Rajasthan, (2004) 10 SCC 632 : 2005 SCC (Cri) 579] )..."
13. It further transpires from the deposition of the investigating officer that no Test Identification Parade (hereinafter referred to as TIP) was conducted even though the appellants were not known to the P.Ws especially the informant. In this connection it is pertinent to refer the observations made in the case of "Malkhansingh & Ors. v. State of M.P"
reported in (2003) 5 SCC 746, while dealing with question of identification of the accused the Hon'ble Apex Court held in paragraphs 7, 10 and 16 as under:
"7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
10. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.7
16. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. ..."
14. Further, Hon'ble Apex Court in "Dara Singh v. Republic of India" reported in (2011) 2 SCC 490 held as under:
"41. It is a well-settled principle that in the absence of any independent corroboration like TIP held by the Judicial Magistrate, the evidence of eyewitnesses as to the identification of the appellant-accused for the first time before the trial court generally cannot be accepted. As explained in Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1 : (2010) 2 SCC (Cri) 1385] , that if the case is supported by other materials, identification of the accused in the dock for the first time would be permissible subject to confirmation by other corroborative evidence, which are lacking in the case on hand except for A-1 and A-3."
15. Hon'ble Apex Court in "Dana Yadav v. State of Bihar"
reported in (2002) 7 SCC 295 held as under:
"6. It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Question is, what is its probative value? Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence..."
16. Thus, the legal position is no more res integra on the point that the identification of the accused person at the dock during trial, in cases of direct evidence, for the first time from its very nature is inherently of a weak piece of evidence. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. Thus, TIP is considered as a safe rule of prudence generally to look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings.
8This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. At the same time, much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court.
17. Further, while identifying the accused in Court, if the witness says that he had seen the accused on one or two occasions prior to the occurrence or the witness had occasion to identify the accused at the time of occurrence with certainty, without giving such a statement to police, the same is a serious omission to be read as contradiction to disbelieve the identification of the accused at the dock. The same is to be read as a vital and material improvement made by the witness/witnesses in Court, which would attract less probative value. In such cases, non-conduct of TIP, to be held as fatal and the conviction based solely on identification of the accused by the occurrence witness/witnesses for the first time in Court is not sufficient.
18. Reverting back to the case in hand, P.W. 4 (informant) in her cross-examination has stated that she has not mentioned in the fardbeyan that she could identify the appellants by face. However, she has specifically identified Santosh Kumar @ Dabbu [appellant in Criminal Appeal (DB) No. 350 of 2017] and Niraj Singh @ Neeraj Singh [appellant in Criminal Appeal (DB) No. 338 of 2017] in the dock for the first time . Further P.W. 5 has identified Neeraj Singh in the dock for the first time and in his cross- examination, he deposed that he could not recall whether he claimed to identify the accused persons in his statement under Section 161 Cr.P.C.
As such, in the peculiar circumstance of this case the identification by the P.Ws of the appellants in the dock for the first time without conducting any corroborative TIP and the fact that there was 9 previous enmity between parties holds very little or no value as the Court is not impressed by the testimony of the witnesses.
19. It further appears that the main eyewitness, namely, Md. Nasir who was sitting with the deceased at the time of alleged occurrence of the offence has not been examined for the reason best known to the prosecution thereby an adverse inference can be drawn according to Section 114(g) of the Indian Evidence Act, 1872.
Further, the bullets were not sent for F.S.L and the used cartridges, vehicle or any other material exhibit seized by the Investigating Officer were not produced by the prosecution before the trial Court which is another lacuna in the case of prosecution.
20. Coming to the offence punishable under section 120B, reference here may be made to Section 120-A which defines criminal conspiracy and reads thus:
"120-A. Definition of criminal conspiracy.--When two or more persons agree to do, or cause to be done--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
21. Hon'ble Apex Court in "CBI v. K. Narayana Rao" reported in (2012) 9 SCC 512 has held as follows :
"24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on 10 mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence."
22. Further in "Parveen @ Sonu v. State of Haryana" reported in 2021 SCC OnLine SC 1184 the Hon'ble Apex Court has held as follows:
"12. It is fairly well settled, to prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences under Section 120-B of IPC. A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. Even the alleged confessional statements of the co-accused, in absence of other acceptable corroborative evidence, is not safe to convict the accused."
23. In the light of above referred dicta and by perusal of the record it transpires that the appellant, namely, Surya Patel @ Surya Kant Patel [appellant in Criminal Appeal (DB) No. 424 of 2017] was in judicial custody at the time of the alleged occurrence of offence; as such there cannot be meeting of minds to establish conspiracy regarding this appellant. Further, the prosecution has failed to bring on record any evidence or any circumstance to prove that rest of the appellants entered into an agreement to commit an illegal act, inasmuch as, the prosecution has miserably failed to even prove beyond reasonable doubt the identity of or that either Niraj Singh or Santosh Kumar were present at the alleged place of occurrence at the time when the offence was committed.
24. Taking into consideration the failure of prosecution to prove the identity of the appellants in the peculiar facts and circumstances of this case coupled with the fact of non-examination of Md. Nasir the main eye witness and failure of prosecution to bring on record any evidence to prove that there was meeting of minds amongst the appellants and the law laid down by the Hon'ble Apex Court we hold that the prosecution has failed to prove its case beyond reasonable doubt; as such, the conviction under Sections 302/34 and 120B of the Indian Penal Code cannot be sustained.
25. With the aforesaid observations and discussions, these criminal 11 appeals stand allowed and the judgment of conviction dated 03.02.2017 and order of sentence dated 07.02.2017 passed by the Additional Sessions Judge-XI, East Singhbhum, Jamshedpur in Sessions Trial No. 338 of 2005 are hereby quashed and set aside.
26. Since the appellant, namely, Santosh Kumar @ Dabbu in Criminal Appeal (DB) No. 350 of 2017 and the appellant, namely, Niraj Singh @ Neeraj Singh in Criminal Appeal (DB) No. 338 of 2017 are in custody they are directed to be released immediately and forthwith if not wanted in any other case. So far as appellants, namely, Surya Patel @ Suryakant Patel and Smt. Uma Patel in Criminal Appeal (DB) No. 424 of 2017 are concerned they are discharged from the liability of bail bonds.
27. Let a copy of this judgment and the lower Court record be sent to the Court concerned forthwith.
(Rongon Mukhopadhyay, J.) (Deepak Roshan, J.) Jharkhand High Court, Ranchi Dated: 31 /08 /2024 Amit A.F.R/ 12