Jharkhand High Court
Joseph Ekka vs State Of Jharkhand on 6 February, 2020
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar, Ratnaker Bhengra
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
[Against the judgment of conviction dated 27.05.2015 and the order of sentence
dated 01.06.2015 passed by the learned Principal Sessions Judge, Gumla in
Sessions Trial No. 239/10]
Cr. Appeal (D.B.) No. 390 of 2015
Joseph Ekka, son of Joan Ekka, resident of village- Sirsi, PO-Dumri, PS- Dumri,
District-Gumla, Jharkhand ... Appellant
Versus
State of Jharkhand ...Respondent
With
Cr. Appeal (D.B.) No. 480 of 2015
Ranthu Oraon @ Bimal Toppo, son of Remis Toppo, resident of village-Rangola
Dumar Toli, PO & PS-Raidih, District-Gumla. ... Appellant
Versus
The State of Jharkhand ...Respondent
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For the Appellant(s) : Mr. Jitendra S. Singh, Advocate;
Mr. Raja Ravi Shekhar Singh, Advocate;
Ms. Pinki Kumari, Advocate.
For the State : Mr. Satish Kumar Keshri, APP.
----
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
: HON'BLE MR. JUSTICE RATNAKER BHENGRA
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JUDGMENT
Per, Shree Chandrashekhar, J. Dated:6th February, 2020 Oral Order The appellants; in Cr. Appeal (D.B.) No. 390 of 2015 Joseph Ekka and in Cr. Appeal (D.B.) No. 480 of 2015 Ranthu Oraon @ Bimal Toppo, have challenged the judgment of conviction under section 302/149 and section 147 of the Indian Penal Code, section 3(1) of the Explosive Substance Act, section 17 of the Criminal Law Amendment Act, section 27(1) of the Arms Act and section 13 of the Unlawful Activities (Prevention) Act dated 27.05.2015 and the order of sentence dated 01.06.2015 passed for the aforesaid offences against them by the learned Principal Sessions Judge, Gumla in Sessions Trial No. 239/10.
-2-2. The appellants have been convicted and sentenced for causing death of Arvind Sarkar, Prakash Minz and Pramod Singh by exploding LMV vehicle on 22.11.2009 and causing injuries to 10 police personnel who were part of the police team which was carrying anti-naxal operation 'Tridev'.
3. The informant of this case is the Investigating Officer who has been examined during the trial as PW-9. On the basis of his own statement he has lodged Bishunpur P.S. Case No. 37 of 2009 against ten accused persons who along with 70-80 unknown extremists have participated in the occurrence. In his statement dated 22.11.2009 the Investigating Officer has recorded that pursuant to memo no. 3070/C dated 21.11.2009 from the police headquarters, Ranchi in connection to operation 'Tridev' a police team constituting police personnel from Bishunpur police station and CRPF had proceeded on Manari - Banalat road. When the Anti-land Mine Vehicle was moving towards Jori from village Lapung, at about 11:55 a.m. he heard sound of explosion. The Anti-land Mine Vehicle was thrown 20-25 ft. in the air and when it hit the ground the extremists started firing at the police party indiscriminately. The police team has also started firing in self-defence. In the meantime, Sanny Alok Tigga reached there with his armed forces and they also started firing on the extremists. Thereafter, seven rounds of Mortar were fired on the extremists by the order of the Additional Superintendent of Police (Operations), CRPF whereafter the extremists started fleeing away. They were chased by the police force for about one kilometer but taking benefit of the terrain they escaped. During the exchange of fire they were addressing each other by the name of Nakul Jee, Silvester Jee, Uday Jee, Rajendra Oraon, Budheshwar Oraon, Joseph Ekka, Ranthu Oraon, Sunil Oraon, Sachin, Rajesh etc. They were firing from a distance of about 70-80 meters from the place of explosion and they had taken position near a nala. The injured police personnel, namely, Chandradeo Mandal, Prakash Minz, Pradeep Rai, Ajit Rai, Farooque Hussain, S.P. Sujin Kumar, S.C. Munu, Franklin, Joseph Minz, Suman Sharma, Dayamay Mandal, S. Krishna Kumar, Arvind Sarkar and Pramod Singh were taken to the Primary Health Centre, Gumla for treatment. The informant has claimed that about 600 rounds were fired by the extremists and in the counter exchange of fire 456 -3- rounds were fired by the police personnels besides 7 High Explosive Bombs (Mortar). The informant has inspected the place of occurrence and found blood marks and recovered 51 empty cartridges and 70 meters of electric wire. In his statement dated 22.11.2009 the Investigating Officer has given description of the empty cartridges, damaged vehicle and other details of the occurrence.
4. After the investigation a charge-sheet was submitted against the appellants and they have faced the trial on the charge under section 302/149 of the Indian Penal Code, section 307/149 of the Indian Penal Code, section 326/149 of the Indian Penal Code and section 147 as well as section 149 of the Indian Penal Code. Separate charges under section 27 of the Arms Act, section 3 and 4 of the Explosion Substance Act, section 17 of the Criminal Law Amendment Act and section 13 (i) of the Unlawful Activities (Prevention) Act were also framed against them.
5. During the trial the prosecution has examined 12 witnesses. PW-1, PW-2, PW-3, PW-4 and PW-8 have turned hostile and PW-11 and PW-12 have though supported the occurrence but declared hostile on the point of identification by names. PW-5 and PW-6 are the doctors who have conducted the post-mortem examination and proved the report. PW-3, PW-8, PW-9, PW-10, PW-11 and PW-12 are the police personnel who were part of the police team which has carried the operation on 22.11.2009. PW-7 is the Officer-in-Charge of Jari Police Station who has proved the inquest report, PW-9 is the Investigating Officer and PW-10 was the operation Commander. The injured police personnel were not produced during the trial and their injury reports were also not tendered in evidence.
6. The learned Sessions Judge has, therefore, held that the charges under section 307 and section 324 of the Indian Penal Code have not been proved.
7. The learned Sessions Judge has held as under:
"55. Now so far as identification of the accused person is concerned it may be recalled that even during cross-examination of hostile witnesses PW-4 has stated that they were identified at the PO while stating each others name giving alert against the police.
56. PW-9 (para 1) has also stated that calling each others name the extremist Josheph Ekka, Ranthu Oraon -4- and others were making fierce firings on the police. This witness vide (para 19 and 20) although has admitted he could not verify (before remand) the name of the two accused persons nor any TIP was conducted however he has specifically identified these two accused persons (para
14) during the trial.
57. PW-10 (para 10) also states that these accused persons were shouting by name other accused persons to heavily fall on the police to force for surrender.
58. PW-10 (para 31) again supports his version that he heard the name of Ranthu Oraon at the place of occurrence.
59. PW-11 vide (para 7 and 9) has stated that he gave statement to the police that these two accused persons and others were calling each others by name.
60. Defence has taken the plea that Ranthu Oraon as admitted by PW-9 is a common name. Defence also refers the statement of PW-9 (Para 32) that Ranthu Oraon @ Bimla Toppo of village Kulhi Anjan PS Gumla was not verified who is an accused of Raidih P.S. Case 51/2007.
Defence has relied upon Ext. A series which shows the same name of the accused similar to the present accused but of village Kulhi Anjan. It is the submission of defence that if properly verified by the police real identity of the accused could have been disclosed but for failure in this respect he has been booked by the police. Defence has filed papers Ext.B, Ext.C series, Ext. D series showing that only on the similarity of name Ranthu Oraon @ Bimal Toppo his name has been picked up by the police from these previous four FIR cases and without proper verification his name has been shown as accused in this case.
61. It may be mentioned that the defence has not given any suggestion to PW-9 and PW-10 that whether there was any enmity with the police to falsely implicate him. During 313 statement both accused persons have simply expressed 'ignorance' and 'no answer' when evidence against them was confronted to them during 313 statement. There is not even a whisper in 313 statement that police had falsely implicated them in this case.
62. On consideration, appraisal and evaluation of prosecution evidence it is firmly established that the two accused persons were active members of the unlawful assembly with several other Silvester Jee, Uday Jee, Nakul Jee, Budheshwar Oraon, Sunil Oraon, Rajesh etc. and in order to establish their sovereignty they had committed deadly attack on the police causing land mines explosion resulting in death of three police men. The seizure aspect also established that land mines wires were fixed by them to cause maximum loss and harm to the police. It has also been established that they are the extremists of MCC which is banned organization as defined under the UAP -5- Act 1967. They have used explosive substance in causing the explosion endangering life of the police men as well as the property (vehicle) hence their offence is also covered u/s 3(a) of the E.S. Act by committing ghastly act of explosion and firing on the police. It is also established that they had actively committed an unlawful activity challenging the sovereignty and territorial autonomy of the state of the Jharkhand. They had used their maximum efforts during fires on the police by fire arms against the provision of Section 5 Arms Act hence they are amenable to punishment u/s 27(1) Arms Act."
8. PW-1 and PW-2 have deposed in the court that the police did not make any enquiry from them. They have been declared hostile. P.W. 4 has also denied knowledge about involvement of the persons who have participated in the occurrence and he was also declared hostile. They are independent witnesses but they have not supported the prosecution. PW-3 has supported the prosecution on the point of the manner of occurrence and death of three police personnel. He has stated that in self-defence when the police party started firing the extremists have fled away. He is a seizure witness. He has stated that a seizure list of empty cartridge and electric wire was prepared in his presence. But he has stated that he did not hear any name during the firing and therefore on this point he has been declared hostile. PW-8 has supported the incident but stated that due to firing he could not hear the name of any extremist. Therefore, he has also been declared hostile on this point. PW-9 is the informant and Investigating Officer in this case. In the court he has given a graphic description of the occurrence. He has stated about operation 'Tridev', police team comprising of police personnels of Jharkhand Police and two platoons of CRPF involved in the operation, departure of the police team at about 10:30 a.m. in the morning of 22.11.2009 and departure of Sanny Tigga and Birsa Oraon at about 10.45 a.m. for the operation, explosion at 11:55 a.m. at some distance from village Jardag on Banari Road and firing by the extremists on the police party. He has stated that during the firing the extremists were calling name of Silvester , Nakul, Uday Jee, Budheshwar Oraon, Joseph Ekka, Ranthu Oraon, Sunil Oraon, Sachin, Rajesh etc. He has further stated that the police team had chased the extremists for about one kilometer but taking the benefit of terrain they escaped. He has proved his statement, his signature on his statement and -6- the seizure memo. He has stated that he made an application for remand of the appellants on 12.01.2010. At that time the appellants were in custody in connection to another case. PW-10 has also spoken about operation 'Tridev' and the occurrence of 22.11.2009 in which three police personnel were killed and several others injured, exchange of firing between the police team and the extremists and blood marks at several places near the place of occurrence. He has also deposed that the extremists were calling name of Silvester Jee, Uday Jee, Budheshwar Jee, Bimal, Ranthu and Nakul Jee during firing at the police party. PW-11 and PW-12 have also supported the prosecution on the occurrence but on the point of identification of the appellants by name they have admitted during their cross-examination that they have heard their name from others.
9. Mr. Jitendra S. Singh, the learned counsel for the appellants has contended that identification of the appellants as part of group of the extremists which according to the prosecution has committed the occurrence has not been proved by the prosecution. It is submitted that the necessary sanction for prosecution under the Unlawful Activities (Prevention) Act was not obtained and the Investigating Officer has admitted that around the place of occurrence several persons are residing but except Sunil Oraon and Gregory Minz ,who have turned hostile, no independent witness has been examined by the prosecution and non-examination of the injured witnesses has created considerable doubt on the prosecution's case.
10. During the trial the prosecution has sought to prove identity of the appellants through the members of the police team, who were involved in operation 'Tridev' but amongst them only PW-9, PW-10, PW-11 and PW-12 have deposed in the court that they have heard the extremists calling name of the appellants amongst other names. From testimony of the Investigating Officer it appears that PW-1, PW-2 and PW-3 have claimed before him that the extremists were calling few names, but he has not deposed in the court that PW-1 and PW-2 have stated name of the appellants as one amongst those 'few' names which were called by the extremists. In paragraph no. 12 of his evidence the Investigating Officer has stated that PW- 3 has named Ranthu Oraon before him. PW-10 has also named Ranthu Oraon only as the one whose name during the firing -7- the extremists were calling but in his cross-examination he has admitted that he cannot say descent and address of any accused person including Ranthu Oraon. Presumably to a suggestion by the defence challenging identity of the appellant, namely, Ranthu Oraon @ Bimal Toppo, he says that he has heard the name of Ranthu Oraon but he does not know his place of residence and he also does not know whether 20-25 cases are lodged against Ranthu Oraon in different police stations. On behalf of Ranthu Oraon copies of different First Information Reports were produced. He has laid documentary evidence vide Ext.-A series, Ext.-B, Ext.-C series and Ext.-D series to set-up a defence that Ranthu Oraon is a different person, who belongs to a different village and against whom several cases were lodged in different police stations but without verifying identity of the person by the name of Ranthu Oraon who allegedly took part in the occurrence he has been sent up for trial. The Investigating Officer has admitted in his cross-examination that the names which were called by the extremists during the firing are common names and there is possibility of more than one person with such names. He has admitted that before taking the appellants on remand he did not make enquiry and verify the names called by the extremists. He has also admitted that voice test or test identification parade in respect of the appellants were not conducted. PW-11 after he was declared hostile and cross-examined by the prosecution has admitted that his statement was recorded by the police and in his statement before the police he has stated that the extremists were calling few names including those of the appellants but he has failed to identify the appellants in the dock (para-29). PW-12 has also been declared hostile on the point of hearing name of the accused persons. He has admitted in the court that he has not seen face of the extremists and he has heard name of the extremists from other police personnel.
11. In a criminal trial identity and complicity of an accused in the occurrence must be established clearly and with certainty. The evidence on identification of the appellants laid by the prosecution during the trial through PW-9, PW-10, PW-11 and PW-12 is not substantive evidence in the sense that none of the these prosecution witnesses has claimed that they have seen the appellants taking part in the occurrence or as part of the group of extremists who were involved in the occurrence. The -8- informant and other prosecution witnesses have claimed that they have heard the extremists calling/addressing each other with their name. They have heard name of the appellants also which was called by the extremists but identification of the appellants by them is not based on their claim that they have seen the appellants. Therefore, identification of the appellants in the court by the prosecution witnesses is not substantive evidence on their participation in the occurrence. It is substantive piece of evidence only of a fact that they have heard the name of the appellants but this by itself is not proof of a fact that the appellants were actually there [refer: Section 60 of the Evidence Act]. The persons who were calling name of the extremists have not been identified by the prosecution witness and since they were also participating in the occurrence they could not have been examined by the prosecution.
12. It is also well-settled that identification of an accused by a witness in the court is substantive evidence but identification for the first time in the court has been held inherently of a weak character and only on the basis of identification of an accused for the first time in the court the accused cannot be convicted. In the present case identification of the appellants by PW-9, PW-10, PW-11 and PW-12 for the first time in the court cannot be relied upon for another reason also. The appellants were in custody when they were remanded in this case on 12.01.2010 and, therefore, the prosecution witnesses who are the police personnel had ample opportunity to see them before they were examined in the court. There is no corroborative evidence laid by the prosecution during the trial. The lapses committed by the Investigating Officer during investigation; he has not verified details such as name, descent and place of residence of the appellants; he has not conducted voice test; he has not conducted test identification parade, are not such mistakes which can be ignored in this case. The Investigating Officer has failed to collect material evidence which could have connected the appellants to the crime. In absence of evidence on identification of the appellants, their participation in the occurrence is not proved and, therefore, it must be held that the prosecution has failed to prove the charges framed against them in Sessions Trial No. 239 of 2010.
-9-13. Accordingly, the judgment of conviction of the appellant, namely, Joseph Ekka in Cr. Appeal (D.B.) No. 390 of 2015 and the appellant, namely, Ranthu Oraon @ Bimal Toppo in Cr. Appeal (D.B.) No. 480 of 2015 under section 302/149 and section 147 of the Indian Penal Code, section 3(1) of the Explosive Substance Act, section 17 of the Criminal Law Amendment Act, section 27(1) of the Arms Act and section 13 of the Unlawful Activities (Prevention) Act dated 27.05.2015 and the order of sentence of RI for life and fine of Rs.10000/- under section 302/149 of the Indian Penal Code, RI for two years and fine of Rs.2000/- under section 147 of the Indian Penal Code, RI for life and fine of Rs.10000/- under section 3(1) of the Explosive Substance Act, RI for six months and fine of Rs.2000/- under section 17 of the Criminal Law Amendment Act, RI for five years and fine of Rs.5000/- under section 27(1) of the Arms Act and RI for five years and fine of Rs.5000/- under section 13 of the Unlawful Activities (Prevention) Act dated 01.06.2015 passed by the learned Principal Sessions Judge, Gumla in Sessions Trial No. 239/10 are set-aside.
14. The appellants, named-above, are acquitted of the criminal charges framed against them in Sessions Trial No. 239/10.
15. Mr. Satish Kumar Keshri, the learned APP states that the appellants are in custody.
16. Accordingly, the appellant, namely, Joseph Ekka in Cr. Appeal (D.B.) No. 390 of 2015 and the appellant, namely, Ranthu Oraon @ Bimal Toppo in Cr. Appeal (D.B.) No. 480 of 2015 shall be set free forthwith, if not required in connection to any other criminal case.
17. In the result, Cr. Appeal (D.B.) No. 390 of 2015 and Cr. Appeal (D.B.) No. 480 of 2015 are allowed.
18. Let lower court records be transmitted to the court concerned, forthwith.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated-6th February, 2020 Sharda/S.B. AFR