Jharkhand High Court
Pawan Singh vs The State Of Jharkhand on 12 September, 2018
Author: H.C. Mishra
Bench: H.C. Mishra, B.B. Mangalmurti
Criminal Appeal (D.B.) No. 703 of 2013
and analogous appeals
-1-
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No. 703 of 2013
With
Criminal Appeal (D.B.) No. 692 of 2013
With
Criminal Appeal (D.B.) No. 717 of 2013
(Against the Judgment of conviction and Order of sentence dated
02.09.2013, passed by the 3rd Additional Sessions Judge Dhanbad, in
Sessions Trial No. 113 of 1996).
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Pawan Singh ... ... Appellant
[In Cr. Appeal(D.B.) No.703 of 2013]
Pintu Singh
@ Jainendra Singh ... ... Appellant
[In Cr. Appeal(D.B.) No.692 of 2013]
Sanjay Singh ... ... Appellant
[In Cr. Appeal(D.B.) No.717 of 2013]
Versus
The State of Jharkhand ... ... Respondent
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For the Appellants : Mr. B.M. Tripathy, Sr. Advocate
Mr. Rajeev Ranjan Tiwary, Advocate
Mr. Anil Kumar, Sr. Advocate
Ms. Chandana Kumari, Advocate
Mr. Indrajit Sinha, Advocate
Mr. Suraj Singh, Advocate
For the respondent-State : Mr. Gouri Shankar Prasad, A.P.P.
Mr. Vinay Kumar Tiwary, A.P.P.
Mr. Satish Kumar Keshari, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE B.B. MANGALMURTI
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By Court.:- As all these three appeals arise out of the same impugned Judgment,
they are heard together, and are being disposed of by this common Judgment.
2. Heard learned senior counsel for the appellants and learned counsel for the State.
3. The appellants are aggrieved by the impugned Judgment of conviction and Order of sentence dated 02.09.2013, passed by the learned 3rd Additional Sessions Judge, Dhanbad, in Sessions Trial No. 113 of 1996, whereby, these appellants have been found guilty and convicted for the offence under Sections 302 / 34 of the Indian Penal Code. Upon hearing on Criminal Appeal (D.B.) No. 703 of 2013 and analogous appeals -2- the point of sentence, the appellants have been sentenced to undergo R.I. for life and fine of Rs.5,000/- each, for the said offence.
4. The prosecution case was instituted on the basis of the written report addressed to the Officer-Incharge, Saraidhela Police Station, District Dhanbad, submitted on 12.10.1994 by the informant Rajendra Prasad Vishwakarma, wherein, he has stated that on 12.10.1994 at about 08:15 P.M. in the night, he along with other members of the Durga Puja Committee, was engaged in controlling the crowd of people on the occasion of Durga Puja, near the Puja Pandal. In the meantime, one white coloured Gypsy, bearing registration No. BR-17C-7007, which was being rashly driven, came there, whereupon the informant and Manindra Nath Mandal, the Mukhiya, requested the occupants of the Gypsy not to cross through the crowd of the people. The occupants of the Gypsy were Rajiv Ranjan Singh, and the appellants Pawan Singh, Pintu Singh and Sanjay Singh. It is stated that in the meantime, Rajiv Ranjan Singh got down from the Gypsy along with his friends. All of them were armed, and it is stated that Rajiv Ranjan Singh confronted the Mukhiya, asking he was not identifying him, and fired his revolver upon him from the point blank range on his head, due to which the Mukhiya Manindra Nath Mandal fell down being injured. Thereafter all the accused persons fled away on the Gypsy. On the basis of the written information, Dhanbad (Saraidhela) Town P.S. Case No.608 of 1994, corresponding to G.R. No. 3931 of 1994, was instituted for the offences under Sections 307, 324, 326 / 34 of the Indian Penal Code and Section 27 of the Arms Act, against all the four accused persons, and investigation was taken up. The injured died in course of treatment on 17.10.1994, and as such, Section 302 of the Indian Penal Code was also added. After investigation, the police submitted the charge-sheet in the case.
5. After commitment of the case to the Court of Session, charge was framed against the accused persons for the offence under Sections 302 / 34 of the Indian Penal Code, and against the accused Rajiv Ranjan Singh charge was also framed for the offence under Section 27 of the Arms Act, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. It has come in the impugned Judgment that in course of trial, the accused Rajiv Ranjan Singh was reported to be dead.
Criminal Appeal (D.B.) No. 703 of 2013 and analogous appeals -3-
6. In course of trial ten witnesses were examined by the prosecution, including the I.O. and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-6 Etwari Mandal and P.W.-7 Nageshwar Singh @ Mojhu, have turned hostile and have not supported the prosecution case at all.
7. The prosecution case is supported by the informant P.W.-8 Rajendra Prasad Vishwakarma, as also by P.W.-1 Sunil Rajwar, P.W.-2 Khedan Mahato, P.W.-3 Prem Chand Mandal, P.W.-4 Rajendra Prasad Mahto and P.W.-5 Binod Bihari Mahto. All these witnesses have stated that on the date of occurrence, when there was a crowd of people during the Durga Puja near the Pandal, these appellants along with Rajiv Ranjan Singh came in a white Gypsy which they stopped, making a request not to go through the crowd and to take a different route. The deceased Manindra Nath Mandal was requesting for the same, when the accused Rajiv Ranjan Singh asked him whether he was not identifying him, and fired pistol from the point blank range, injuring the Mukhiya Manindra Nath Mandal in his head, and thereafter all the accused persons fled away on the said Gypsy. Manindra Nath Mandal was brought to hospital and in course of treatment, he died on 17.10.1994. P.Ws.-1 to 5 have also stated that their statements were recorded before the Magistrate under Section 164 of the Cr.P.C., and they have proved their signatures thereon, which were marked Ext.1 series, whereas the informant P.W.-8 Rajendra Prasad Vishwakarma, has stated that he had given the written report to the police at the hospital, on which he had put his signature, and he has proved his signature on the written report, which was marked as Ext.5. P.W.-1 Sunil Rajwar and P.W.-3 Prem Chand Mandal have also stated in their evidence that the accused Rajiv Ranjan Singh was driving the Gypsy.
8. P.W.-10 is Dr. Vinod Kumar, who had conducted the post-mortem examination on the dead body of the deceased on 17.10.1994 and had found the injuries caused by firearm, which were the cause of the death of the deceased. He has proved the post-mortem report to be in his pen and signature, which was marked Ext.4.
Criminal Appeal (D.B.) No. 703 of 2013 and analogous appeals -4-
9. P.W.-9 is Vivekanand Thakur, the I.O. of the case, who has stated about the investigations made by him. He has proved the inquest report as Ext.2, the formal FIR as Ext.3, and the endorsements on the written report as Exts. 3/1 and 3/2.
10. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence against them. No evidence was adduced by the defence. On the basis of the evidence on record, the Trial Court below has convicted and sentenced the appellants for the offence under Sections 302 / 34 of the Indian Penal Code.
11. Learned senior counsel for the appellants submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, in as much as, none of the witnesses has stated that these appellants had taken any part in the offence. The only evidence against these appellants is that they were accompanying the main accused Rajiv Ranjan Singh in the Gypsy and when the Gypsy was stopped, there was some verbal exchange between the deceased and the accused Rajiv Ranjan Singh, in course of which the said accused fired pistol upon the deceased from the point blank range, injuring on his head, which ultimately proved fatal to the deceased. It is submitted by learned senior counsel that there is no evidence on record to show that these appellants were also sharing the same intention, particularly, in view of the fact that the occurrence was not foreseen from before, and it had taken place at the spur of moment, in which Rajiv Ranjan Singh had assaulted the deceased by firearm and thereafter the accused persons fled away. Learned senior counsel submitted that in absence of any evidence on record that these appellants were also sharing the same intention, the appellants could not be convicted for the offence under Section 302 of the Indian Penal Code with the help of Section 34 of the Indian Penal Code, and as such, the appellants were entitled to be acquitted of the charge.
12. Learned counsel for the State, on the other hand, has opposed the prayer, submitting that the case is fully supported by the eye witnesses, P.W.-1 Sunil Rajwar, P.W.-2 Khedan Mahato, P.W.-3 Prem Chand Mandal, P.W.-4 Rajendra Prasad Mahto, P.W.-5 Binod Bihari Mahto and P.W.-8 Rajendra Prasad Vishwakarma, who have stated that these appellants were also accompanying the main accused Rajiv Ranjan Singh on the Gypsy.
Criminal Appeal (D.B.) No. 703 of 2013 and analogous appeals -5- They were also armed and after the occurrence, they also fled away along with the main accused on the same Gypsy. As such, it can safely be presumed that they were also sharing the intention to cause the death of the deceased. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-10 Dr. Vinod Kumar, and the post-mortem report proved by him as Ext.4, which shows that the deceased had died due to the injuries sustained by firearm. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charge against all the appellants beyond all reasonable doubts, and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, worth any interference by this Court.
13. Having heard learned counsels for both the sides and upon going through the record, we find that though the case is supported by six eye witnesses to the occurrence, including the informant P.W.-8 Rajendra Prasad Vishwakarma, but the evidences of all these witnesses show that while they were managing the crowd at the time of Durga Puja near the Puja Pandal, these appellants came there on a Gypsy along with the main accused Rajiv Ranjan Singh. It has come in the evidence of P.W.-1 Sunil Rajwar and P.W.-3 Prem Chand Mandal, that the vehicle was being driven by the accused Rajiv Ranjan Singh. It is apparent from the evidence of these witnesses that when Rajiv Ranjan Singh was being asked not to drive through the crowd, he got down from the Gypsy and confronted the deceased, and he fired the pistol on the deceased from the point blank range, which ultimately proved fatal to the deceased. There is nothing in the evidence of these witnesses that these appellants had also taken part in the verbal exchange between Rajiv Ranjan Singh, the main accused, and the deceased, or that they had also taken part in the offence in any manner, except accompanying the main accused. Whatever allegation is there, it is against the main accused Rajiv Ranjan Singh himself, who, according to the impugned Judgment, is reported to be dead. We have gone through the evidence with the help of learned counsels very meticulously and we find that there is nothing in the evidence of these witnesses to show that these appellants also shared the common intention to cause the death of the deceased, as the evidences clearly show that this offence was not at all premeditated, rather, it had taken place at the spur of moment, when Criminal Appeal (D.B.) No. 703 of 2013 and analogous appeals -6- Rajiv Ranjan Singh was asked not to drive through the crowd. We are of the considered view that in absence of any evidence on record to show that these appellants were also sharing the same intention, or that the offence was committed in furtherance of the common intention of all the accused, these appellants could not be convicted for the offence under Section 302 of the Indian Penal Code, with the help of Section 34 of the Indian Penal Code. As such, the impugned Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, and it is a fit case in which, all these appellants ought to have been acquitted.
14. For the foregoing reasons, the impugned Judgment of conviction and Order of sentence dated 02.09.2013, passed by the learned 3rd Additional Sessions Judge, Dhanbad, in Sessions Trial No. 113 of 1996, convicting and sentencing the appellants Pawan Singh, Pintu Singh @ Jainendra Singh and Sanjay Singh, for the offence under Sections 302 / 34 of the Indian Penal Code, are hereby, set aside. Consequently, the appellants are found not guilty and they are acquitted of the charge. The appellants Pawan Singh and Sanjay Singh are in custody, undergoing the sentence. They are directed to be released and set at liberty forthwith, if their detention is not required in any other case. The appellant Pintu Singh @ Jainendra Singh is on bail, and he is discharged from the liabilities of his bail bond.
15. In the result, all these three appeals, are accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
(H.C. Mishra, J.) (B.B. Mangalmurti, J.) Jharkhand High Court, Ranchi Dated, the 12th September, 2018.
Birendra / R.P./NAFR