Jharkhand High Court
Jai Kishore Singh S/O Late Ram Nandan ... vs The State Of Jharkhand on 23 July, 2024
Author: Ananda Sen
Bench: Ananda Sen
Criminal Appeal (D.B.) No. 475 of 2012
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[arising out of Judgment of Conviction dated
20th April, 2012 and Order of Sentence dated
25th April, 2012 passed by the District &
Additional Sessions Judge I, Godda in S.C. No.
165 of 1993]
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Jai Kishore Singh S/o Late Ram Nandan Singh @ Ram
Nandan, resident of Village Sakar Pur, PO PS Baksi Bazar,
District Begusarai, State Bihar.
... Appellant
-versus-
The State of Jharkhand ... Respondents
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For the Appellant : Mr. Aditya Raman, Amicus Curiae
For the Respondents : Mr. Saket Kumar, A.P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
Per Ananda Sen, J. This appeal has been preferred by Shashikant Choudhary (now deceased) and the appellant above named challenging the judgment of conviction dated 20th April, 2012 and order of sentence dated 25th April, 2012 passed by the District & Additional Sessions Judge-I, Godda in S.C. No.165 of 1993, whereby and where under both the appellants have been held guilty and convicted for offences under Sections 343, 302, 201 and 323 of the Indian Penal Code and they have been sentenced to undergo life imprisonment for offence under Section 302 of the Indian Penal Code; to undergo rigorous imprisonment for 2 (two) years for offence under Section 343 of the Indian Penal Code; to undergo imprisonment for three years for offences under Section 201 of the Indian Penal Code and to undergo rigorous imprisonment for one year for the offence under Section 323 of the Indian Penal Code.
2. At the very outset, we have taken note that Shashikant Choudhary died during pendency of this appeal and this appeal so far as the said appellant is concerned, stood abated, vide order dated 22.03.2017. Thus, this appeal is only confined to the conviction and sentence of appellant Jai Kishore Singh.
13. Learned Amicus Curiae submits that from the evidence of prosecution witnesses, it is clear that it was Shashikant Choudhary, who had assaulted the deceased, as a result of which the deceased died in custody. Even the eye witness P.W.21, who claim to be an eye witness to the assault, has not stated in his evidence that the appellant Jai Kishore Singh had even assaulted the deceased. He has specifically stated that it was Shashikant Choudhary, who had assaulted the deceased.
The only allegation leveled against appellant Jai Kishore Singh is that he had gone towards market and had returned with a truck. Serajul Rahman and Dildar Ansari were dragged into and were loaded in the said truck where after the said truck left with them and those two persons were not heard of nor seen thereafter.
It is argued that even assuming the allegations to be true, though denied, so far as the appellant Jai Kishore Singh is concerned, at best, Section 201 of the Indian Penal Code will only be attracted.
It is further submitted that it is the prosecution case that whereabouts of those two persons was not known, thus, it cannot be concluded that those persons died and the appellant Jai Kishore Singh and others had committed their murder. To bring home the charge of murder, the dead bodies should have been recovered and there should be materials to suggest that death was homicidal, which can only be ascertained after proper postmortem. Judgment of conviction is based on conjecture and surmises in the absence of recovery of dead body, no postmortem report available on record to establish the homicidal death of the two persons.
4. Learned counsel appearing on behalf of the State submits that though the dead body was not recovered, yet there is evidence to suggest that this appellant and others mercilessly assaulted the two persons Serajul Rahman, Dildar Ansari and also P.W.21 Abdul Gaffar Ansari after taking them in custody. The doctor found several injuries on the injured, i.e., P.W.21 Abdul Gaffar Ansari, which clearly suggests that the aforesaid witness and the two others were assaulted in custody. He further submits that the witnesses have stated that Serajul Rahman and Dildar Ansari along with P.W.21 Abdul Gaffar Ansari were brought to the police station and were kept for three days and were mercilessly assaulted. Evidence of P.W.21 Abdul Gaffar Ansari is quite clear, which would suggest custodial assault. Thus, this appeal needs to be dismissed.
25. Boarijore Police Station Case No.144 of 1992 was registered for offences under Sections 343, 302, 201, 323 of the Indian Penal Code on the basis of the written report of the informant Jamiruddin, wherein he alleged that on 19.10.1992 at about 05.00 p.m. in the evening his son Gaffar Ansari was called to the police station by the Jamadar Shri J.K. Singh and they started assaulting him by tying him to a tree. On the same night three more persons of Village Jamukarna were also caught and brought to the police station and they were also beaten up heavily. On 20.10.1992 when the family members of those three persons went to the police station, they were not allowed to enter the police station. It has been alleged by the informant that the three persons of his village, namely, Md. Dildar Ansari, Sirajurrahman Ansari and Hifajurrahman Ansari were brought. Informant further alleged that on 21.10.1992 at 08.00 a.m. in the morning when they went to the police station with Shivjan Kisku, they saw those four persons crying in a very pitiable state. They could come to know that they were badly beaten up in the night. The Sub-Inspector told Shivjatan Kisku that after interrogation they will either be released or forwarded to the jail and told them to leave by saying that such decision would be taken by the evening. On 24.10.1992 it could be gathered that all of them were being sent to Godda. Informant has further stated that when they reached Godda at 11.00 a.m., till 04.00 p.m. in the evening nobody was sent to the Godda Court. Informant has alleged that when nothing could be gathered from the Court, Hospital and the morgue, they along with a Labour Leader, Anwarul Hoda, of Lalmatia, gave written information to Dy.S.P. Godda which was given by Shivjatan Kisku under his own signature. Informant suspected that Officer-in- Charge Shri S.K. Choudhary and Jamadar Shri J.K. Singh had killed all the four persons and their dead bodies had been disposed.
6. Police, after investigation, submitted charge-sheet being Chargesheet No.3 of 1993 dated 03.02.1993 for offences under Sections 343/302/201/323 of the Indian Penal Code as against the appellant Jai Kishore Singh, keeping the investigation pending against Shashikant Choudhary (deceased appellant). Supplementary Chargesheet No.16 of 1993 dated 29.05.1993 was submitted by the police as against the deceased appellant Shashikant Choudhary for offences under Sections 343/302/201/ 323 of the Indian Penal Code.
37. After Cognizance and commitment, charges were framed as against the deceased appellant Shashikant Choudhary and appellant Jai Kishore Singh for offences under Sections 201, Section 343, Section 302 and Section 323 of the Indian Penal Code and the appellants were put to trial.
8. To bring home the charges, the prosecution examined altogether 25 witnesses, namely, P.W. 1 Mohammad Riyajulrahman Ansari, P.W.2 Dukhmochan Sah, P.W.3 Dawarka Nath, P.W.4 Nunu Wa, P.W.5 Kalimuddin, P.W.6 Jamil, P.W.7 Saliman Khatoon, P.W.8 Ashraf Ali, P.W.9 Mohd. Jalil Ansari, P.W.10 Javed, P.W.11 Mohd. Ushman Ansari, P.W.12 Maniruddin Ansari, P.W.13 Dr. Kulanand Choudhry, P.W.14 Abul Hasnat Khan, P.W.15 S.I. Sitaram Ram, P.W.16 S.I. Raj Mangal Sharma, P.W.17 Const. Chotte Lal Shah, P.W.18 Harivans Narian, P.W.19 SI. Sorabh Kumar, P.W.20 S.I. Mewa Lal Pashwan, P.W.21 Abdul Gaffar Ansari, P.W.22 Madina Khatoon, P.W.23 Abdullah Ansari, P.W.24 Samsul Haque and P.W.25 Retd. Police Inspector Jagdish Prasad Singh.
9. Following documents were also produced by the prosecution, which were marked exhibits: -
Exhibit 1 Signature of Dukhmochan Choudhary on the Seizure List Exhibit A Injury Report Exhibit 2 Carbon details of the injuries on the person of Gaffar on the back of first sheet Exhibit 3 The written request carbon copy for medical examination Exhibit 4 Seizure List related to Tata 407 Mini Truck Exhibit 5 Statement of Abdul Gaffar Ansari recorded under Section 164 Cr.P.C.
Exhibit 6 Endorsement on written application
Exhibit 7 Seizure list related to Choukidar Hazri Book Kaman
Book
Mark X Written Application
10. P.W.1 Mohammad Rejajul Rahman Ansari has stated that about 11-12 years ago on a Monday, Jamadar of Boari Police Station had caught Abdul Gaffar Ansari and took him. Police had gone to Jamui Jharna in the night. On the previous day Gaffar was caught and Dildar Hussain Ansari, Sirajurrahman Ansari, Hifjurahman Ansari were caught. When in the morning at 08.00 to 09.00 am they went to the police station, they saw those three from a distance as he was not allowed to go inside. Gaffar was not there, but the remaining three were there. He stated that he went to the Officer-in-
Charge with Shiv Jatan Kisku who is a Congress Leader and requested him to release those persons, but he told that he will remand them. He again 4 went to the Police Station on Thursday and he saw that Dildar Hussain and Sirajul Rahman were there in police station. He has also stated to have heard that the police has very badly assaulted those persons. He also stated to have heard that those persons were taken on a vehicle and he never saw those persons again.
P.W.2 Dukhmochan Sah has identified and proved his signature on the seizure list, which has been marked as Exhibit 1.
P.W.3 Dawarka Nath, P.W.4 Nunu Wa and P.W.5 Kalimuddin have not supported the prosecution case.
P.W.6 Jamil has stated that he knows Dildar, Ajju, Hifjul, Sirajul and Gaffar, who are all of his village. The occurrence is of about 14 years ago. About 12-13 police personnel of Boarijore Police Station came to the village at about 11.00 p.m. in the night and they took with them Dildar, Hifjul, Sirajul and Gaffar. On the next day when he went to the police station he saw Dildar, who is his brother, Sirajul, Hifjul and Gaffar were present there. On the next day when he went to the police station Gaffar was not there. On the third day when he went, Sirajul, Hifjul and Dildar were in the lockup. They all were in a very bad condition and were not even able to speak. Their clothes were drenched with blood and there were marks of assault on his head and other parts of the body, blood was also oozing. He never saw those persons thereafter.
P.W.7 Salima Khatoon is the wife of Dildar Hussain Ansari. She stated that the occurrence is of about 14 years ago. One Sub Inspector and a Jamadar had gone to their home and they took her husband with them. She identified the persons in the Court to be the Sub Inspector and Jamadar. On the next day when she went to the police station, she had seen her husband, Sirajul, Hijbul and Gaffar were also there. She had been to the police station for three days continuously. On the fourth day when she went, her husband was not there. Police had thrown her husband after killing him and his dead body even was not found.
P.W.8 Ashraf Ali has stated that Dildar Ansari was his son. About 13-14 years ago it was about mid night. He was sleeping in his room and so was his Dildar Ansari. At that time 12-13 police personnel surrounded their home. On hearing noise, when Dildar woke up and went towards the door, the Sub Inspector and Jamadar caught him. This witness and his wife were pushed by gun like article and they fell. He had suffered injuries. He 5 identified the persons in Court to be the Sub Inspector and Jamadar. They took Dildar to the police station. On that day police had also taken Gaffar, Hifjul and Riajul. On the next day he saw Dildar, Hifjul, Reyajul and Gaffar. Dildar and Reyajul were in a pitiable condition and they were not even able to sit and stand. They were assaulted. Dildar had told that they have been beaten badly. This witness has stated that he went to the police station only on one day. He stated that Dildar has not returned home till date. He had tried to get them released, but they were made to disappear.
P.W.9 Mohd. Jalil Ansari has stated that on 19.10.1992 he was at his home in Jamu Jharna. He heard murmuring that Dildar, Sirajul, Hifjul and Gaffar have been caught and taken to Boarijore Police Station. It was also told that the Incharge of the Police Station, Jamadar and 10-12 police personnel had taken them. He along with the persons of his village went to the police station on the next morning and requested the "Bada Babu"
Shashikant Choudhary to release them, but he did not release them. He stated that he kept visiting the police station till 23.10.1992 but they did not release them. On 24.10.1992 when he went to the police station in the morning, he was informed that all have been forwarded. Later on he gathered that barring Gaffar, rest three have been killed. He identified the deceased appellant Shashikant Choudhary in the dock.
P.W.10 Javed has stated that Dildar was his brother. About 14 years ago during night police had caught Dildar. He identified the two accused present in Court to be the person who had caught Dildar and had taken to the Boarijore Police Station. He daily used to carry food for Dildar to the police station. Gaffar, Hifjul were also there with Dildar. One another person was also there whose name he could not recall. For three days when he used to carry food for them, he saw the Sub Inspector and Jamadar beating them. They were badly beaten by tying them with rope. On fourth day when he went, he was told that they have been forwarded. His brother and others were not there in the police station on that day. His brother has not returned till date. He could gather that they have been killed by the police.
P.W.11 Mohd. Ushman Ansari has stated that Gaffar is his brother-in-law. He was taken by the police about 14 years ago to the police station. On the next day when he had been to the police station for purposes of giving breakfast and food, he saw Gaffar sitting on the floor. He was 6 assaulted. Sirajul, Dildar and Hifjul were also there in the lockup. He had given food for 2-3 days and thereafter he was told that they have been forwarded. During evening when he used to carry food, he used to see that a Sub Inspector used to beat him tying him with a rope. He identified the person in dock as the Sub Inspector who used to beat Gaffar. Whereabouts of Dildar, Sirajul and Hifjul is not known till date.
P.W.12 Maniruddin Ansari has stated that it is the occurrence of 19.10.1992. When he was at his village, he heard murmuring that the Bada Babu, Jamadar and police personnel 10-12 in numbers came to the village and took Gaffar, Dildar, Hifjul and Reyajul to the police station. He along with villagers went to the Boarijore Police Station when they saw the four persons in the police lockup. Shiv Jatan Kisku and 8-10 others persons accompanied him. On the next day also they all went to the police station when the Bada Babu told that interrogation has not completed. On the third day when he went, he saw that those four persons have been assaulted. He stated that Dildar, Hifjul, Gaffar and Reyajul told him that if the villagers do not come, they will be killed in the night. On the next day when he went, he was told that they have been forwarded. He rushed to the village and accompanied with ten persons went to Godda, but could not get any information about those four persons. Thereafter they surrounded the police station, but the police personnel escaped from there. On the way he met the Wireless Operator, who told that Gaffar is still there and he is unaware about rest of the persons. On that day when police station was surrounded, Gaffar was there in a lockup and had told that Officer-in-Charge and Jamadar have thrown Dildar, Hifjul and Reyajul after killing them. He identified the deceased appellant Shashikant Choudhary and Jamadar J.K. Singh.
P.W.13 Dr. Kulanand Chaudhry was Civil Assistant Surgeon posted at Civil Hospital Godda on 25.10.192. He had examined Gaffar Ansari and had found the following injuries on his person: -
(a) One bruise of size 8 cm x 5 cm over the dorsum of right hand.
(b) One bruise of size 1 cm x 1 cm over the left thumb on the pulp area.
(c) One bruise of size 2 cm x 2 cms over the back near right sacro iliac joint.7
(d) Two bruises over left shoulder each of size 2 x1 cms and five cms apart from each other.
(e) Two abrasions over the dorsum of right wrist each of size ½ cm x ½ cms.
(f) One abrasion over the chest below the right nipple of the size of this abrasion 2 cm x 1 cms.
(g) Tenderness over multiple area of the bodies.
All the above said injuries were caused by hard and blunt substances. He kept the opinion about the nature of injuries at Sl. No.(1) reserved whereas all other injuries were simple in nature. The injury report was marked as Exhibit 2.
P.W. 14 Abul Hasnat Khan was posted as Officer-in-Charge of Boarijore Police Station on 29.10.1992. He was entrusted to seize the truck, number of which he is unable to recall. He had seized the truck on 30.10.1992. He has proved the seizure list, which was marked Exhibit 4.
P.W.15 S.I. Sitaram Ram was the Assistant Sub Inspector at Boarijore Police Station from July 1992 till October 1992. He stated that the deceased appellant S.K. Choudhary, who was present in Court was Officer- in-Charge of Boarijore Police Station and the appellant J.K. Singh, who was also present in Court was the Assistant Sub Inspector. He stated that on 19- 20 October, 1992 deceased appellant S.K. Choudhary and appellant J.K. Singh along with the police force had arrested four persons from Jamun Jharna village and had brought to the police station and they were kept in the lockup. They were all interrogated by the deceased appellant S.K. Choudhary. On the second day also they were interrogated and they were kept in the police station till 22.10.1992. On 23.10.1992 this witness left in connection with another case to Narayanpur and till then all four persons were in the police lockup. When he returned on 24.10.1992 in the afternoon, only one person was there in the lockup. He could gather that out of four, one has absconded and the Officer-in-Charge has taken two persons to Godda. He stated that relatives of those four persons used to visit the police station and they were allowed to meet them. He did not notice anything special on their body when they were in police station. In cross examination he stated that he was examined by the police where he stated that the persons who were brought were assaulted by the Officer in-charge and A.S.I. He stated the same because the Officer in-charge and A.S.I assaulted 8 those persons during interrogation. He further stated that when S.K. Choudhary and Jai Kishore assaulted those persons he used to see but did not try to save them. He further stated that he did not inform the higher officials about the same. He further stated that on 23.10.1997 he was not present at the police station.
PW-16, S.I. Raj Mangal Sharma, stated that in the year 1992 he was posted at Boarijore Police Station as Assistant Sub Inspector (ASI) when S.K. Choudhary was in-charge of the police station and Jai Kishore Singh was A.S.I. He identified both of them in the Court. On 19.10.1992 at 8.00PM he was at the police station when a person came and asked him about Jai Kishore. On asking, he told his name Md. Gaffar. He told him that Jai Kishore was at his residence then the said person went towards the residence of Jai Kishore. After some time S.K. Choudhary came to the Police Station and at about 9.00 P.M. Md. Gaffar went there. He called him and asked his name at that time this witness left the police Station for dinner. He stated that at about 10.00 P.M. when he was at the eastern side of the police station, Chowkidar told him that the Officer In-charge has asked him to go for patrolling, thus, he left the police station for patrolling. On the next day at about 6.00 A.M. he returned to the police station and thereafter he went to his residence. Again on the same day he came at 4.00 P.M. to the police station and after completing his work he returned to his residence. He did not visit the Lock-up. On 21.10.1992, he came to the police station in relation to investigation of Godda P.S. case No. 111/92. On 24.10.1992 he saw Md. Gaffar at police lock-up. SI and Jai Kishore were not there, and constables told him that the accused persons ran away from the custody and they went in their search. In cross examination he stated that his statement was recorded by the police. In his statement he didn't tell the police that on 19.10.1992 police took Md. Gaffar Ansari to the Police Station and they left him after interrogation, but in the meantime, Officer In-charge Mr. Choudhary also interrogated Md. Gaffar and assaulted him with J.K. Singh and after that they put him in the lock-up. He denied that he had concealed the truth to save his colleagues.
PW-17, Constable Chote Lal Shah, stated that on 22.10.1992, he was posted as constable in Boarijore Police Station and he was present at the police station but he was not on duty. On that day, he went to the lock 9 up in the evening and saw Md. Gaffar and three other persons present in the lock up. He did not know the name of those three persons. On 23.10.1992, Officer In-charge S.K. Choudhary interrogated those three persons. Out of the three persons one person fled away and when they went to search him, the other two also fled away. In cross examination he stated that his statement was not recorded by the police. He denied to have disclosed the names of the four persons who were in the lock up and that when the villagers surrounded the police station he got to know that JK Singh and SK Choudhary took two persons towards Godda in a truck. He denied that he had concealed the truth to save his colleagues.
PW-18, Harivans Narayan, has stated that on 19.10.1992, he was posted as constable in Boarijore Police Station. On that evening he saw four persons in the lock up. He saw them for couple of days. He stated that Sashikant Choudhary and J.K. Singh used to interrogate those persons. He had not seen those persons having any injury. Later on he got to know that those persons fled away during interrogation. In cross examination he denied that his statement was recorded by the police. He stated that on 24.10.1992 he saw in the morning that a truck of Saurav Sah came for some time and went. Later on he got to know that two of the accused persons were taken by the Officer In-charge and J.K. Singh on that truck. He further stated that when he reached the police station he saw only Gaffar at the police lock up. He denied that he had concealed the truth to save his colleagues.
PW-19, S.I. Sorabh Kumar, stated that on 19.10.1992 he was posted as Dy. S.P. at Godda. He stated that Mr. J.P. Singh was investigating the case before he took charge of the investigation on 29.10.1992 on the directions of the S.P. Godda he received the records from the Inspector Jagdish Prasad. He had seized the station diary of Boarijore Police Station on the same day. He stated that the station diary was from 11.10.1992 till 29.10.1992. The seizure memo was marked as Exhibit-I and his signature was at 'X'. He stated that he had submitted the station diary along with the chargesheet before the Court. Statement of the witnesses, in whose presence the seizure was made, was recorded by him under Section 161 Cr.P.C. He directed the Officer in-charge and ASI to seize the truck bearing No. BR-36-3412, which was later on seized. He stated that on 10 investigation about all those four persons who were illegally detained in custody and there was allegation that they have been killed, he found that out of them Gaffar Ansari was present in Godda Jail. He recorded the statement of Gaffar Ansari u/s 164 Cr.P.C. During investigation it transpired that Hifjul Ansari succeeded to flee from the police station, and he was seen by some person in the market. He had recorded statements of some of those persons. He tried to search Hifjul Ansari but he failed. However, he had recorded the statement of Saleha Khatoon, his relative. About Sirajul and Dildar he came to know that they were kept in custody from 19th - 20th October 1992 to 23rd - 24th October 1992 till night and were assaulted. On 24.10.1992 in the morning when the Officer in-charge Sashikant Choudhary and ASI JK Singh took the truck, they went missing. It was stated by the witnesses that they were killed and their dead bodies were concealed. He further stated that he tried to recover the dead bodies but could not succeed. He denied the suggestion that he filed the charge sheet without any evidence and his investigation is defective.
PW-20 SI Newa Lal Paswan stated that he was posted at Boarijore police station as ASI from 1990 till 1994. He was wireless operator. On 24.10.1992 when he reached the police station in the morning he came to know that some criminals fled away and police personnel went in search of them and what happened next he does not know about that. He did not saw any person in the lock up during 19.10.1992 to 23.10.1992. In cross examination he stated that Inspector JP Singh had interrogated him. He further stated that it was true that on 24.10.1992 in the evening hundreds of muslims came in front of the police station and they were trying to meet Dildar, Sirajul, Hifjul and Gaffar.
PW-21 Abdul Gaffar Ansari stated that the occurrence is of 19.10.92 at 4.45 pm when he was going to his home and reached near Boarijore market he saw J.K Singh along with 5-6 Constables. They asked him to come to police station with them for interrogation. J.K Singh took him to his residence and interrogated him about Kotica School theft case whereupon he stated that he doesn't know anything. Then he asked the constable to take him to the market. While returning Shashikant Choudhary who was in the courtyard of the police station stopped him and asked the Constable to take him to the police station, when he entered the police 11 station Shashikant Choudhary assaulted him and asked him why he is fleeing. Shashikant Choudhary asked the Constable to bring rope and thereafter they hanged him in the mango tree with rope for half an hour and assaulted him with stick. Due to the unbearable assault he tried to climb the tree anyhow, whereupon the Constable threatened to kill him. Thereafter he jumped from the tree and was caught by the Constables and beaten by stick. He was thereafter kept in the lockup. After some time, he was taken out from the lockup and police personal again assaulted him with stick. After some time, he was left with some Constables in the courtyard and Shashikant Choudhary went outside the police station with some Constables. At 12:00 O'clock at night, Shashikant Choudhary and J.K. Singh and other police officials took three persons, namely, Sirajul Rahman, Hifzul Rahman and Dildar Ansari to the police station and locked them in the lockup. On the next day, all the three persons were taken out from the lockup and after tying them, Shashikant Choudhary assaulted them. Again on the next day also they were taken out and beaten. On the next day, at about 7-8 P.M. Hifzul Rahman was taken out from the lockup towards the backside of the police station where screams were heard. He further stated that Hifzul Rahman was not taken to the lockup thereafter. After 10-15 minutes Sirajul Rahman and Dildar Ansari were taken out from the lockup towards the backside of the police station, whose screams were heard and they have been beaten, but after some time both of them were again brought to the lockup. He stated that after some time, one of the Constables came and took Dildar Ansari to Shashikant Choudhary who told him that Dildar has taken the name of his brother in a robbery case and they are going to search his and Dildar's house. After 2-3 hours police personal returned with Dildar. On the next day at about 7-8 P.M. he along with Sirajul Rahman and Dildar Ansari were taken out from the lockup to the house of Shashikant where he saw him sitting on the chair. Shashikant started assaulting Dildar, as result of which after sometime he died. Thereafter Shashikant Choudhary asked the Constable to take Dildar to the lockup. Then, Shashikant also assaulted Sirajul and thereafter he was also taken to the lockup. After that Shashikant took him to the wireless room and locked him up. On the next day, at about 6.00 A.M., he saw J.K. Singh going towards the market. After some time, one small pick-up van (407) reached the police station from which J.K. Singh, one Constable and Shankar Sah came down. They took Sirajul 12 Rahman and Dildar Ansari to the backside of the vehicle. On seeing those persons one can understand that they were dead. Thereafter, J.K. Singh and Shankar Sah boarded the vehicle with 5-6 Constables and they went towards Godda road. After sometime, Shashikant came in a motorcycle and told him that he will leave him, if he will not tell anyone about the incident. After half an hour one of the Constables took out him from the wireless room and locked him in the lockup. On the next day, he was taken to the Magistrate where his statement was recorded, which was marked as Exhibit-
5. In his cross-examination he denied the suggestion that on 23.11.1992 Hifzul, Sirajul and Dildar fled from the lockup. Upon questioning by Court as to whether he saw Sirajul and Dildar dying, he stated that Officer-in-Charge climbed on the chest and started jumping whereupon both of them started shouting but after some time they stopped screaming and they died. He further stated that when both of them were being taken from there Shashikant had told that both of them are dead.
P.W.-22 Madina Khatoon stated that on the date of incident Officer-in-Charge, and the Constables of Boarijore came to their house and taken his son Dildar. Sirajul and Hifjul were also taken by the police. After that his son did not come. On the next day when she reached the police station with food for his son, he told him to arrange some money for his release. She further stated that he was assaulted by the police and after 3-4 days he went missing. She identified Sashikant Choudhary and Jai Kishore Singh present in the Court. In cross-examination, she stated that her statement was not recorded by the police. When Dildar was taken by the police, villagers gathered there, however, she did not name anyone. She denied the suggestion that her son was involved in a case of theft.
P.W.-23 Abdullah Ansari, stated that Dildar, Hifzul, Sirajul and Gaffar are from their village and they were taken by the police on 19.10.1992. On the next day, he and Shivjatan Kisku reached the police station and asked them about those persons whereupon the Constable stated that after interrogation they will be released. We saw Gaffar Ansari in the courtyard and other three in the lockup. On the next day, when he went to the police station, he saw Sirajul and Dildar screaming due to the injury. Hifjul was found sleeping and Gaffar was present in the courtyard. Gaffar was also injured. He stated that when he met Sashikant Choudhary he told 13 that after investigation, they will be released. On 23.10.92, he again requested to release them but was denied. On 24.10.1992, he along with 2-3 persons reached the police station when they found only the wireless operator present there and all the four persons were not there. On asking the wireless operator he said that all of them were taken to Godda. Thereafter he and Shivjatan Kisku reached Gooda Court, but no information about them was gathered. Thereafter, they started searching them, but all in vain. In cross-examination, he stated that his statement was not recorded by the police. He denied the suggestion that on 19.10.92, the police has not taken any body from their village.
P.W.-24 Samsul Haque stated that after receiving information that Dildar, Hifzul, Sirajul and Gaffar were taken by the police. On the next day, he along with other persons reached the police station where he saw Dildar in an injured condition. In cross-examination, he denied the suggestion that Hifzul fled from the police station.
P.W.-25 Jagdish Prasad Singh, stated that as per the direction of S.P., Godda, he reached Boarijore Police Station on 25.10.1992. On that day, a murder case was registered against Officer-in-Charge, Shashikant and the charge of investigation was given to Ashok Kumar. He proved the written application. He inspected the entire police station and checked the records. He prepared the seizure list, which was marked as Exhibit-7. He has recorded the statement of the witnesses. He denied the suggestion that his investigation is defective.
11. After closure of prosecution evidence, accused persons- appellants were examined under Section 313 of the Code of Criminal Procedure.
12. Defence also examined three witnesses, namely, D.W.1 Bablu Hansda, D.W.2 Lal Prasad Sah and D.W.3 Gouri Shankar Sah.
D.W.-1 Bablu Hansda is the Process Server, who only proved the signature of Hifzul on the notice, which was marked as Exhibit-A nothing important could be extracted from his deposition.
D.W.-2 Lal Prasad Sah stated that on 23.10.92 at about 06:00 P.M., four persons were taken to the police station on the same day at about 11.00 P.M. there was hue and cry in the police station about escape of some 14 persons, who were fleeing towards the railway line and the police personal were chasing them. One of them was caught and other three persons namely, Dildar, Sirazul and Hifzul escaped. In cross-examination, he stated that person who was caught remained out of lockup till 10 P.M. and after that he does not know anything about them. He further stated that he did not go towards the railway line when the chase was going on.
D.W.-3 Gauri Shankar Sah stated that 17-18 years ago Boarijore Police had caught four persons and had taken them to the police station. At about 10-11 P.M. he heard murmuring that four persons fled away from the police station and one of them was caught and rest fled away. In cross-examination, he stated that his home is not near the police station and he did not go to the police station at night.
13. Following documents were produced on behalf of the defence, which were marked exhibits: -
Exhibit A Signature of Hifajul Rahman Ansari on the notice Exhibit A/1 Writing and Signature of Bablu Hansda, Server on the issued notice Exhibit B Certified copy of FIR of Boarijore Police Station Case No.143 of 1992
14. The Trial Court, after hearing the arguments of the parties and after going through the evidence, by a judgment of conviction dated 20th April, 2012 and order of sentence dated 25th April, 2012 passed in S.C. No.165 of 1993, has held the appellants guilty and convicted and sentenced them for the offence as detailed in paragraph 1 hereinbefore.
15. Challenging the aforesaid conviction and sentence, the appellant herein along with the deceased appellant have preferred this appeal.
16. Admittedly, the body of Sirajul Ahmad and Dildar Ansari were not recovered, thus, no postmortem was conducted. It is the case of the defence that those persons fled from the custody and they became untraceable. But P.W.21 is the eye witness. He was in custody from where he had seen the entire occurrence. He has stated how the Officer in-charge was assaulting those two persons. Deceased appellant Shashikant Choudhary was the Officer-in-Charge. After some time, this appellant brought a truck upon which Sirajul Rahman and Dildar Hussain Ansari were dragged and loaded. P.W.21, seeing the condition of Sirajul Rahman and Dildar Hussain Ansari has stated that it appeared that they were dead and 15 the dead bodies were loaded on the truck. The fact that whether Sirajul Rahman and Dildar Ansari were dead or were in an injured condition has not been established. Even if we accept the statement of P.W.21 that Sirajul Rahman and Dildar Hussain Ansari were dead, then also as per the evidence, the said assault is attributable to the deceased appellant Shashikant Choudhary.
17. Admittedly, from the evidence we find that Shashikant Choudhary was the Officer-in-Charge of the police station. All the witnesses stated about the aforesaid fact. So far as this appellant is concerned, he was a Jamadar. There is evidence that this appellant along with the Officer-in- Charge and others brought the four persons, namely, Abdul Gaffar Ansari, Dildar Hussain Ansari, Sirajurrahman Ansari, Hifjurahman Ansari to the police station. There is a story propounded by the defence that the accused (those persons) fled from the police custody, but surprisingly, if the accused persons had fled from the custody, there would have been case registered. There is no such police report about fleeing of those persons, thus, the story of the defence need not to be believed.
18. So far as this appellant, Jai Kishore Singh, is concerned, as per the eye witness P.W.21, we find that this appellant only had brought the truck wherein the bodies Sirajul Rahman and Dildar Hussain Ansari were loaded and were taken away. From the aforesaid evidence, at best this appellant can be held guilty of offence under Section 201 of the Indian Penal Code. Section 201 of the Indian Penal Code reads as under: -
201. Causing disappearance of evidence of offence, or giving false information to screen offender.-Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;
If a capital offence.-shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
If punishable with imprisonment for life. - and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with 16 imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
If punishable with less than ten years' imprisonment.-and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
19. There is no material to convict the appellant, Jai Kishore Singh under Sections 343, 302 or Section 323 of the Indian Penal Code. Thus judgment of conviction and sentence passed against him for offences under these sections is set aside.
20. However, considering the materials on record, Jai Kishore Singh is convicted for offence under Section 201 of the Indian Penal Code for causing disappearance of the body of Sirajul Rahman and Dildar Hussain Ansari.
21. So far as sentence for the offence under Section 201 of the Indian Penal Code is concerned, we find that the sentence awarded by the Trial Court for the said offence in the present case is 3 years. Further, as the maximum punishment which can be awarded for an offence under Section 201 of the Indian Penal Code is 7 years and as we find that the appellant has already remained in custody for more than 7 years, we direct the appellant to be released forthwith from the custody, if not required in any other case.
22. The judgment of conviction dated 20th April, 2012 and order of sentence dated 25th April, 2012 passed by the District & Additional Sessions Judge-I, Godda in S.C. No.165 of 1993 stands modified to the above extent. Pending interlocutory applications, if any, stand disposed of.
This appeal is partly allowed.
Let the Trial Court Records be sent back to the Court concerned forthwith along with a copy of this judgment.
(Ananda Sen, J.) (Gautam Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated, the 23rd July, 2024 Kumar/Cp-03 AFR 17