Jharkhand High Court
Mister @ Chottu Korwa @ Shivji Korwa Aged ... vs The State Of Jharkhand on 2 December, 2019
Equivalent citations: AIRONLINE 2019 JHA 1069, 2020 (1) AJR 488
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 361 of 2019
Mister @ Chottu Korwa @ Shivji Korwa aged about 36 year s/o
Brahmadeo Korwa @ Brahmadeo Kodakoo, Resident of village-
Neelkanthpur, P.O. Ramchandrapur, P.S. Ramchandrapur, District-
Balrampur, Chhatisgarh ... ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. Shailendra Kumar Tiwari, Advocate For the Respondent : Ms. Nehala Sharmin, A.P.P.
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12/02.12.2019
1. Heard Mr. Shailendra Kumar Tiwari, counsel appearing on behalf of the appellant.
2. Heard Ms. Nehala Sharmin, A.P.P. appearing on behalf of the State.
3. This criminal appeal has been preferred against the judgment dated 27.01.2018 and order of sentence dated 03.02.2018 passed in S.T. Case No. 183 of 2016 by learned Additional Sessions Judge-III, Garhwa whereby the appellant has been found guilty of offence and convicted under Sections 148, 353, 149, 307,149 of the Indian Penal Code and under Section 27 of the Arms Act.
4. The appellant has been sentenced to undergo simple imprisonment for two years under Section 148 IPC; two years simple imprisonment for offence under Sections 353,149 IPC; sentence of 5 years Rigorous imprisonment under Section 307/149 IPC with fine of Rs. 2,000/-. In the case of default of payment of fine, it has been directed that he would further be liable to undergo simple imprisonment for a term of two months. He has also been punished under Section 27 of the Arms Act for a simple imprisonment of three years and fine of Rs. 2,000/- and in case of default in payment of fine, he has 2 been further held liable to undergo simple imprisonment for a term of two months. All the sentences have been directed to run concurrently.
5. The Sessions trial involved in this case arises out of Chiniya P.S. Case No. 14 of 2016 dated 01.04.2016 which was registered under Sections 147,148,149,353,307 of the Indian Penal Code read with Section 25(1-b)a/26/27/35 of the Arms Act and Section 17 of the C.L.A. Act and Section 38/39 of the Unlawful Activities Prevention Act and charges were also framed under the said provisions.
6. The prosecution had examined altogether 21 witnesses and on the identification of proof of these witnesses, following documents were exhibited.
Ext 1 to Ext 1/3- Signature of PW.5 on seizure list Ext 2 to 2/3 -Seizure list Ext 3 - Endorsement on Fardbeyan.
Ext.4- formal F.I.R Ext. 5 -Online F.I.R Ext. 6- Written report written by Vijay Kumar (P.W.-18 informant) Ext. 7-Arms inspection report.
7. Apart from the aforesaid document following articles were also exhibited before the learned court below. Exhibit-I-Country made pistol.
Exhibit II,II/1 and II/2 three live cartridges Exhibit-III, One empty Cartridge (khokha) Exhibit-IV Red Shawl Exhibit-V- Green bottle and photocopy of emergency register at Sadar Hospital Garhwa was assigned and marked Exhibit-X for identification and proof.
Exhibit I to V were recovered from the place of occurrence for which seizure lists were prepared.
Submissions of the appellant
8. The learned counsel for the appellant submits that PW- 8,9,10,11,12,13 & 20 were independent witnesses out of which 3 PW-8,9.10,12 and 13 have been declared hostile. PW- 11 & 20 are hearsay witnesses and they have not said anything about the incident. PW- 1 to 7, 14 to 19 are police persons and P.W. 21 is doctor who had examined the appellant. The learned counsel for the appellant has placed the evidence of the prosecution and submits as under :
PW-1 has stated that he was member of police party and participated in counter firing. He identified the seizure list but he has stated that he neither identified anybody nor anybody was arrested from place of occurrence. He has also denied the seizure of any article in his presence. PW-2 was a member of police party but did not participate in firing. He has stated that he has not given any statement before police regarding the incident. He has not been able to describe the seizure. He has stated that subsequently from newspaper he came to know that appellant was arrested in injured condition. He has not identified the accused/appellant.
PW- 3 was a member of police party but has not identified the accused/appellant.
PW-4 was a member of police party. He has stated nothing about the accused. He also stated that he was not examined by the police. He has not stated anything about seizure. PW-5 was a member of police party and seizure witness who proved the Ext. 1 to 3. He has stated that nobody was arrested from the place of occurrence. He subsequently came to know that accused was arrested from another village in injured condition. He has not identified the accused. He was unable to say about seizure and also stated that only one blank cartage of police was found from the place of Occurrence.
PW-6 was also member of police party who stated that he fired from his AK-47 arms. He states that nobody was 4 arrested from place of occurrence. He subsequently learnt that accused was arrested in injured condition from another village.
PW-7 is also a member of police party who stated that he was also firing along with Chhotu Paswan, Jitendra Kumar, Rampravesh, Samendra, Rajan. He has stated that police did not examine him. Nobody was arrested from place of occurrence. He has stated absolutely new story of arrest of accused which is contrary to the statement of other police witnesses. This witness stated that accused arrested by Jitendra Kumar, but Jitendra Kumar (P.W.16) has denied it. P.W-14 and PW-15 were also members of police party. They have stated that they have no account of firing/cartridge. They have not identified accused. They have stated that police did not examine them.
PW-16 was member of police party in above operation. He has stated that he was also the member of police team and participated in counter. He has further stated that police party went to the place of occurrence where at about 9 PM there was counter between police and extremist wherein 16 rounds from AK 47 and 87 rounds from other arms have been fired by the police. Some extremist article seized there from in abandoned place, but he has said nothing about seizure of blank cartridge of the police party. He has further stated that on Fard Bayan of SDPO Ranka, FIR was lodged in evening on 01.04.2016 and he also has knowledge that appellant was arrested by the Meral P.S. in injured condition. He has stated that he gave such statement on basis of information.
PW-17 is member of police party in above operation. He has stated that nobody was arrested at place of occurrence and S.P. gave information regarding arrest of appellant. He has also stated that it is true that he has not identified appellant.5
PW-18 -Vijay Kumar, SDPO Ranka is a member of Police party and also the informant in this case. He stated that nobody was arrested or identified at the place of occurrence. He stated that he has given written complaint to officer in charge Chiniya police station at 6 P.M. He has further stated that he has not identified anybody.
PW-19 Manish kumar is S.D.P.O Nagar Untari and investigating officer of this case. He stated that there is no evidence that seized article belongs to accused/ appellant. He has also stated that during investigation no evidence has been found against accused/Appellant. He has further stated that who has arrested the appellant is not mentioned in investigation.
PW-21 -Dr. Rakesh Kumar Tarun specialist Medical officer (surgery) posted at Sadar Hospital, Garhwa. He has stated that when the injured was brought before him, he has neither described gunshot injuries nor found any pellet in the body and hence he has no definite opinion regarding the gun used. He has also not mentioned the name of person who brought & identified the accused. He has stated that he only dressed the injury and secured bleeding and referred him to RIIMS, Ranchi.
9. The learned counsel submits that following are the Grounds of Appeal: -
I. None of the witnesses has identified the appellant as participant of firing between police and extremist. II. Appellant has not been arrested from the place of occurrence. None of the witnesses has stated that he was seen thereon or at any near place prior or after the incident. No seizure of any article from the appellant. III. Doctor has neither proved the gun shot injuries nor identified the injured .
IV. There is delay in FIR (about 23 hrs); accused has been 6 arrested in another police station; who has arrested him is not described anywhere neither examined in this case; at the time of arrest there were no criminal case against the accused but subsequently he has been dragged in this case.
V. The investigating officer PW- 19 has stated that none of the seized article belongs to appellant, and during investigation no evidence has been found against the accused/appellant.
VI. The witnesses/police person have stated that there was 80 rounds firing by them but no evidence and seizure of any blank cartridge has been made.
VII. It has not been stated anywhere in evidence that accused used which deadly weapon or fire Arms and who were in the unlawful assembly and accordingly no case is made out under section 148 of Indian Penal Code. VIII. No injured person has stated that accused was seen prior to after the incident near the place of occurrence. No evidence of any firing by accused and there is no eye- witness hence case u/s 307 & 353/149 are not made out. IX. There are several contradictions in the statement of the witnesses which create the doubt regarding the commission of alleged Offence by the appellant. The contradictions are as follows: -
(i) PW-6 has stated that seizure list was written by Jitendra Singh but seizure witness PW-5 has stated that seizure list was prepared by Vijay Kumar.
(ii) PW-7 has stated that at the time of arrest he was present and Jitendra Kumar (P.W -16) had arrested the accused from medical clinic but Jitendra Kumar (PW-
16) has stated that accused was arrested by officer in- charge of Meral police station.
(iii) There is no evidence as to who arrested the 7 appellant and who brought the appellant for treatment and who examined the gun shot injuries.
10.The learned counsel for the appellant has submitted that the present case is fully covered by the judgement passed by the Hon'ble Supreme court passed in Criminal Appeal No. 931- 932 of 2009( Raj Kumar Singh @ Raju @ Batya vs. The State of Rajasthan) decided on 06.05.2013 . It has been held as under: -
a) If there are two views, innocence of guilt of accused, a view favourable to the accused, should be adopted.
b) Circumstantial Evidence must be complete & conclusive.
c) Statement under Section 313 Cr. P.C. cannot be treated as evidence and it cannot be used against accused to fill up lacunas of Prosecution.
Arguments of the respondent state
11.The learned counsel for the State has opposed the arguments of the appellant and has submitted that the judgement passed by the learned court below does not call for any interference. She has submitted that the appellant was also seen at the place of occurrence by P.W.-7 and P.W.-6. P.W. 6 and P.W. 7 have also stated that the terrorists were injured due to firing and the appellant was arrested in the following morning with fire arm injury. The circumstances relied upon by the learned court below stand fully established and the chain of circumstances is complete and every link in the said chain indicates that the appellant was certainly involved in the alleged offence along with other accused persons, although he only could be arrested. She refers to the deposition of the witnesses and submits as under: -
P.W.-1 Mizarad Hamid Siddique (Assistant Commandant of C.R.P.F.) in paragraph 1 of his deposition has stated that on 31.03.2016, he joined the informant SDPO, Ranka and proceeded to village Chapla where Bhanu Singh Kharwar 8 and Chotu @ Mr. Chottu (Appellant) had gathered for taking levy. In Paragraph 2 of his deposition he has stated that Extremists were engaged in firing over the police party and also shouting slogans against the Police administration and Constitution of India. He has identified the accused present in the Court.
P.W. 3 in Paragraph 1 of his deposition has stated that when he along with other officials proceeded then the extremist engaged in firing over the police party where Bhanu Singh Kharwar and Chotu @ Mister Chottu (appellant) along with other extremists had gathered. In Paragraph 2 he has stated that during firing by the both sides, the extremists were also shouting the slogans against the police administration and Constitution of India. P.W. 5 in Paragraph 3 of his deposition has stated that he came to know that the appellant was arrested from village Pendali within Meral Police Station and he has identified the accused in the court. During his cross examination in paragraph 4 he has stated that for the first time he has seen the accused in Court and earlier he had seen him in photograph.
P.W. 6 has stated in paragraph 1 of his deposition that he had fired with his official AK-47 and one of the extremists was injured and later on he came to know that the accused was injured in the firing. In paragraph 3 he has stated that from the place of occurrence no one was arrested but later on accused was arrested from village Pendali within Meral Police Station. In cross examination he has stated that he has not given any wrong statement.
P.W. 7 has stated in paragraph 1 of his deposition that when the team reached the place of occurrence where the appellant had come for collection of levy and when the appellant was asked to stop, in response, the extremists 9 started firing . He has also deposed that the appellant took advantage of darkness and fled away at night and in morning he was arrested during his treatment. He further stated that he was present at the time of arresting of the appellant. He has identified the accused in the court. This witness has stated that he was present at the time of arrest of the appellant and he was arrested by Jitendra Kumar, the officer in-charge of the police station between 7.00 to 8.00 am and left meral at about 10.00 am.
P.W. 16 has stated in paragraph 5 of his deposition that whole day search operation was conducted and thereafter FIR was lodged on the self-statement of SDPO, Ranka. He has also stated that on 01.04.2016 in morning the appellant was arrested in injured condition and was sent to Sadar Hospital and thereafter sent to RIMS for treatment. He has stated in para 13 of his cross examination that on 01.04.2016 the appellant was arrested by Officer-in-charge, Meral in injured condition. He has identified the accused. P.W. 18, Informant of the case has stated in paragraph 1 of his deposition that he was member of the raiding party and fully supported the occurrence and the case of the prosecution. He has also stated that Bhanu Singh Kharwar, the appellant and Pankaj Karwa along with other extremists were seen near by the river for taking levy. He has stated that the FIR is in his writing and he identified the accused. P.W. 19- Manish Kumar has fully supported the prosecution case. He has stated that that the appellant was sent to Ranchi for treatment. He has identified the accused. He has stated that during investigation he took Saphai beyan (statement) of the appellant where he admitted his guilt. P.W. 21 is the doctor who had examined the appellant and found gunshot injuries. He was referred to RIMS for further treatment.10
P.W. 8, P.W. 9, P.W. 10, P.W. 11, P.W. 12, P.W. 13 are hostile witnesses but the same is not fatal to the prosecution case and they are villagers of the nearby village who admittedly were not present at the main place of occurrence.
12. Learned counsel for the State submits that the P.W -6 has clearly stated that he had fired with the arm namely A.K. 47 and extremists were injured and later on he came to know that the appellant was injured. She submits that P.W-7 has clearly stated that when the team reached the place of occurrence where the appellant had come for collection of levy and when the appellant was asked to stop, in response, the extremists started firing. He has also stated that the appellant ran away from the place of occurrence in the night and he was subsequently arrested from village Pendali, under thana Meral while getting himself treated and this witness was present at the time of arrest of the appellant and he was arrested by Jitendra Kumar, the officer in-charge of the Chiniya police station between 7.00 to 8.00 am and left meral at about 10.00 am.
Findings of this court
13.The F.I.R is based on the self-statement of Vijay Kumar who was sub-divisional police officer in Ranka at the relevant time and was part of the raiding team. The F.I.R was instituted on 01.04.2016 at 21.30 hours on the basis of written report dated 01.04.2016 at 16:00 hours.
14.As per the self-statement of Vijay Kumar (P.W- 18 ) which he made on 01.04.2016 at 16:00 hrs the prosecution story is that on 31.03.2016 at 11:00 hrs the Superintendent of Police, Garhwa received secret information that extremists[C.P.I (Maoist)] in leadership of Sub-Zonal Commander Bhanu Singh Kharwar and area commander Chotu Korwa (appellant) with 6 to 7 other members of extremists group were active in village Chapala for unlawful extremist activity, spreading of the 11 Maoist thought, Extortion and levy. After receiving the information, a raid team was constituted under the leadership of Vijay Kumar (P.W-18) , S.D.P.O, Ranka and included officer in charge of Ranka Police Station ; officer in charge of Chiniya police station; persons from Quick Response team (QRT) of superintendent of police; persons of armed party from district constabulary and a team of 172 battalion C.R.P.F under the leadership of Assistant Commandment Sr. S.M. Shiddiki. The name of the various persons who formed the raiding team has been mentioned in the F.I.R. The FIR also records previously instituted case of activities of CPI (Maoist ). He has deposed that the team constituted by the S.P. Garhwa assembled at Ranka police station at about 3:30 p.m. and they proceeded at about 16:30 hours from Ranka police station after making due preparation and reached village Rabda Khurra by the official vehicles. Thereafter they left their official vehicles and proceeded on foot through the forest toward Chapla village. The team briefing was also done. They reached village Chapla at about 9 p.m. after walking for about 10 kms where they received information that about 10 extremists including Bhanu Singh Kharwar @ Bhanu Ji, Mister @ Chotu Korwa @ Shiv Korwa, Pankaj Korwa and others 6-7unknown extremists were spotted near the new pond which was under
construction in the north west direction of the village in the dense forest area and the extremists had come to the village in the morning demanding levy regarding construction of the new pond and have also threatened that they will permit the work to be completed only after the extortion money is paid. The team proceeded in a standard line formation toward the hill and after proceeding for about half an hour they noticed some movement in the north west direction and when the movement on the hill intensified the informant along with Assistant Commander M.S. Shiddiki shouted in a loud voice 12 and disclosed their identity as police force and offered them to surrender but the extremists opened fire and 4-5 rounds of ammunitions was fired at the police party. The police party took safe position and repeatedly directed the extremists to surrender but the extremists with an intention to kill the police party and to snatch the government arms and ammunitions from the police party continued repeated firing. By the direction of the informant (P.W-18) the police party also retaliated by control firing for protection of their life as well as Govt. arms and ammunitions on which the firing was intensified from the side of the extremists and they also started shouting slogans against police and the constitution of the country. The extremists were also abusing the police party and were engaged in intense firing and the firing continued till 2 O'clock in the night and then firing stopped coming from the side of the extremists. The police party maintained its position as it was night and waited till it was dawn. At about 6 O'clock in the morning the police party took their positions carefully and since there was neither any further firing from the side of the hill nor any movement could be sensed, they stood up and it was noticed that the extremists have fired about 200 rounds of ammunitions and the police party has also fired from their officials arms. None of the police officials were injured in the occurrence and thus the police party proceeded further in a search operation. The search was conducted grid wise which continued till 2 O'clock in which a number of articles belonging to the extremists were seized and separate seizure lists were prepared in presence of two constable namely Rajan Kumar Patel and Samendra Kumar Singh as no independent witness was present there. One plastic bag containing one red and black bed sheet, a green colour bottle, two pocket diaries containing phone number of contractors and extremists and also details of levy collected along with some Naxal literature, 13 pamphlets of CPI (Maoist), one country made pistol loaded with one empty .315 bore cartridge along with three live cartridges, one Nokia mobile phone having two SIM Cards, another mobile phone of Samsung company and four separate seizure lists were prepared at the place of occurrence itself. Information was also received during the course of search and seizure that during the previous night when the extremists were engaged in encounter with the police party one member of the extremist organization namely Chottu Korwa @ Mister was arrested from village Pendali within P.S. Meral, District Garhwa who after being injured at the place of occurrence in the said encounter had somehow reached village Pendali and was under treatment in hospital at Garhwa and the remaining extremists have decamped from the place of occurrence after taking advantage of darkness of the night. The informant after naming the sub zonal commander of CPI (Maoist) Bhanu Singh Kharwar @ Bhanu Ji, Chotu Kharwar @ Mister and Pankaj Kharwar and others 6-7 unknown extremist submitted his self statement leading to institution of Chiniya P.S. Case No. 14/016 and S.D.P.O. Nagaruntari Manish Kumar was made the investigating officer by the officer in charge of Chiniya P.S. In the case in hand online FIR was also registered on the site of NC.R.B. and the police took up the investigation of the case.
The police subsequent to conclusion of investigation found the case true and submitted first Charge-sheet bearing no. 21 dated 16.06.2016 against the accused Chotu Korwa @Mister Korwa whereas the supplementary investigation was kept pending against remaining accused persons. It would not be out of place to mention at this stage itself that in the case in hand the accused Chotu Korwar @ Mister was arrested by the police on 01.04.2016 from village Pendali within P.S Meral and had a bleeding injury on the right hand side of his chest who was 14 sent for treatment to the Sadar Hospital Garhwa from where he was referred to RIMS Ranchi for further treatment where he was treated for the said injury and was discharged only on 14.04.2016 to be produced before the concerned magistrate on 16.04.2016 when he was remanded in the present case.
On the basis of the evidence collected during investigation Judicial Magistrate 1st Class, Garhwa took cognizance of the aforesaid offences against the accused Chotu Korwa @ Mister and the record was kept pending for commitment. The police papers were served upon the accused and the record was committed to the court of Sessions by the order dated 15.09.2016 and 16.09.2016 and the commitment was notified accordingly. The record after its receipt in the court of Sessions was registered as S.T. 183/2016 and was made over to this court by the order of learned Sessions Judge Garhwa for trial and disposal.
15.The informant (P.W- 18) of the case has fully supported the case and has narrated all the facts mentioned in the FIR. He has clearly stated in the FIR about the secret information received by the Superintendent of police Garwa that the appellant along with two named accused i.e Bhanu Singh Kharwar and Pankaj Korba and other 6 to 7 Maoist extremist were wandering in the area of Chiniya police station in Chapla village and were propagating the maoist ideas and were collecting levy from the villagers involved in developmental works. He has also clearly stated about the constitution of the team of police officials for raid including personnel from CRPF, as well as the informant. He has stated that the raiding team reached Ranka Thana at 3.30 pm on 31.3.2016 and then proceeded to Chapla village at 4.30 pm. When they reached Rabdakhurra village they left the vehicles on the road and moved on foot for 10 k.m and reached Chapla village at 9.00 pm . Upon reaching Chapla village the team was informed that 15 the aforesaid extremists, 10 in number, were towards the north east in the jungle and they were involved in collection of levy for the construction of new pond and stream in the village. The raiding team walked for about half an hour and they found movement of persons towards the north east of village Chapla and accordingly the members of the raiding team took safe position and a team member (p.w-1) loudly shouted that the team members are police personnel and in response there was firing from the side of the extremists. The police personnel asked them to surrender but in response they started abusing and continued firing. The raiding team started controlled firing and the extremist also fired and raised slogans against the police, country and constitution of India. During the firing the raiding party could hear a lot of noise of movement and screaming of the extremists. Firing in intervals continued for about 2 to 2 and ½ hours and thereafter it stopped. There was about 200 round firing from the side of the extremist and 90 rounds from the side of the raiding team and the raiding team continued in their position waiting for morning. Early in the morning at about 6.00 am the team took stock of the bullets and started search operations by forming a grid. The seized articles and the seizure list with witnesses were prepared and the informant narrated them in the same manner as has been described in the FIR. The details have been mentioned in para 3 of the deposition of the informant (p.w-18). In para 4 of the deposition it has been stated by this witness that in the mean time they received information that the injured extremist i.e the appellant has been arrested in village Pendli falling under Meral police station. He has exhibited the FIR( written report) as Exhibit -6. He has also supported the seizure and the 4 seizure lists which were already exhibited. He has identified the appellant in the court. During cross examination he has stated that he does not know the time on which FIR has been 16 registered as he had handed over the FIR to the officer in- charge of the Chiniya Police Station at the place of occurrence itself. He has stated that no one was arrested at the place of occurrence and that he had not arrested the appellant. He has also stated that he has not stated in his FIR as well as in his restatement before police about identification of any person.
16.The informant has clearly stated in his evidence that about 10 extremists were there in the incident who did not surrender in spite of opportunities and first firing was done by the extremists. There was firing from both the sides and during the incident there was noise of movements and screaming from the side of the Maoist and one of the injured extremists was arrested on the next day morning. It is apparent that as per his evidence the time of occurrence is after 9.30 at night.
17.The P.W. 1,2,3,4,5,6,7,14,15,16,17 and 18 were part of the raiding team and they have all supported the prosecution case and described the incident and have also mentioned about arrest of the appellant in the injured condition in the morning following the incident. The evidence of the other members of the raiding team (apart from P.W-18 ) are as under: -
a. The P.W. 1 was the assistant commandant of 172 Battalion of CRPF and was part of the raid team. He has stated in his deposition that time of incident is at about 11 p.m. on 31.03.2016. The Superintendent of Police Garhwa had issued orders for going to Chapla village under local police station Chinia along with team where one Bhanu Singh Kharwar and the present appellant had come with a team of extremists for collection of levy. He has stated about constitution of a raiding team. He has stated that when the team left Ranka then it was about 4 p.m. and they reached hills towards north west of Chapla village at around 11 p.m. and when they reached firing started. He has also stated that when the team 17 informed the other party that they are police personnel there was more firing and in self-defence the members of the team also fired and this continued for about 1½ hrs. There was around 50 round of firing from the side of the police personnel and 60-70 round of firing from the side of the extremist. The extremists were repeatedly uttering slogans against the police administration India and Constitution of India and were also raising slogans of Maovadi Jindabad. After 1 ½ hours the firing stopped and the terrorists ran away but due to darkness the police personnel stayed back. He has also stated that in the morning when search was conducted 2 bags with jackets etc., mobile phone , phone battery, water bottle, naxal pamphlets, one .315 bore pistol, three live cartridge and one cartridge in the pistol were found. He has not arrested anyone from the place of occurrence. He identified the seizure list but was not in position to identify anybody. Neither he has seized any article nor the seized article were sealed in front of him. He has exhibited the documents i.e. exhibit-I,II,II/1, II/2 and III.
He has stated that on the next day he came to know that the appellant has been arrested. In paragraph no. 9 he has made both the statements that he cannot identify the present accused and at the same time he has also stated in the same paragraph that the present appellant is the accused person. In his cross examination he has stated that distance of firing was about 100 to 150 meters from where the seized articles were recovered. He has also stated that exhibit 1 is seizure of a country made pistol. In his cross examination he has stated that he neither identified nor arrested anybody at the place of occurrence.
b. P.W. 2 Dhirendra Singh is the Sub Inspector of Police in 18 the same battalion and was also a part of the raiding team. He has also narrated the sequence of events and has stated that he along with 20 men joined the local police and was part of the raiding team and firing from the side of the extremists continued from 11.00 pm to 2.00 am. He has supported the seizure of articles from the place of occurrence. He has also stated that he came to know that one Naxalite was injured but he could not identify him. He narrated the incidence and said that in the morning when search was conducted a bags, mobile phone , pocket diary , water bottle, one blanket, one .315 bore country made pistol and three live cartridge were recovered and he identified the seizure list. He has stated that he was part of the raiding team but did not participate in firing. He neither seized any article nor has given any statement before police regarding the incident. He came to know about the arrest of injured- appellant through newspaper. He has not identified the accused. This witness has fully supported the prosecution case.
c. P.W. 3 is Manish Kumar. He was constable no.641 and part of the raiding team. He narrated the incidence and said that in the morning when search was conducted a bags etc. were recovered and came to know that one .315 bore pistol, three live cartridge, mobile phone and blanket were also recovered. He has not identified the accused. He has stated that he reached the place of occurrence along with the team in the hills and the time of incident is around 11 p.m. on 31.03.2016. He has stated that firing was going on from both the sides. The police personnel had disclosed their identity where Bhanu Singh Kharwar and the appellant along with other extremists had gathered. He has stated in his cross 19 examination that distance of firing was about 150 mtr. and the firing was being done from the side of jungle in the hills. He has further stated that his statement was not recorded by the police. This witness also supported the prosecution case.
d. P.W. 4 Ram Parvesh Yadav was also part of the raiding team. He has repeated the same version as that of P.W. 3 and he has also stated that his statement was not recorded by the police. This witness has also fully supported the prosecution case.
e. P.W. 5, Rajan Kumar Patel, was constable no.994 and part of the raid team. He narrated the incidence and said that in the morning when search was conducted a bag, two mobile batteries, two mobile phones, two blanket and water bottle were recovered and a country made pistole was recovered in which a bullet of .315 was stuck and smell of gun powder was coming out from the barrel of the pistol with three live cartridge were also found. He has identified the accused. He has exhibited Exhibit- 1,1/1,1/2 and 1/3 and has mentioned that all seizure lists contain his signature. He has stated that his statement was recorded by the police during investigation and that he had given his statement to the informant of the case at the place of occurrence itself. f. P.W. 6, Jitendra Paswan was a part of the raiding team. He is an important witness. He has narrated and fully supported the case of the prosecution and the incident. He has clearly stated that he fired from A.K 47 rifle and some extremists sustained bullet injury and later he came to know that the appellant was the one who was injured in firing. In morning when search was conducted a bags, mobile phone, two pocket diary, one country made pistol, a green bottle and one red colour blanket were 20 recovered. He has identified the accused. Altogether 6 items were recovered from the place of incidence and seizure list was prepared by Jitendra Singh. No one was arrested at the place of incidence. The appellant was arrested from Pendali village under Meral police station. He has also state that he was towards the west side during the operation and the police personnel towards the east were about 100 meters away.
g. P.W. 7 Babu Lal Ram was also a part of the raiding team. He has stated that upon receiving secret information and on the orders of senior officers team was constituted and they searched the place of occurrence where the appellant was also present for the purposes of collection of levy and when he was asked to stop, the firing started from the side of the extremists and in self defence police personnel also responded to them by firing. He has stated that he had also fired during the operation and at night the firing continued in intervals and the police personnel kept waiting for the morning. He has stated that when search operation was conducted a bag, red polythene, mosquito net, bed sheet diary etc. were recovered. He has identified the accused. He has also stated in his cross examination that he did not arrest the appellant, rather he was arrested by Jitendra Kumar Singh, P.W. 16 and arrest was made in the presence of officer-in-charge of Police Station and the police personnel were also present. He has also stated that the appellant was arrested during treatment in his presence by P.W. 16 at doctor's clinic in a medical store. In his cross examination he has stated that the appellant was arrested in Meral police station area between 7 to 8 am and they left Meral at 10.00 a.m. h. P.W. 14 was constable no.065172141 of 172 battalion of 21 CRPF and part of the raiding team. He narrated the incidence and said that in the morning when search was conducted a bag, naxal literature etc. were recovered. He later came to know that the appellant was arrested. His statement was recorded by the police. He has not identified the accused.
i. P.W. 15 was constable no.065179227 of 172 battalion of CRPF and part of the raiding team. He narrated the incidence and said that in the morning when search was conducted a bag, mobile etc. were recovered. He later came to know that appellant was arrested. He has not identified the accused.
j. P.W. 16 is Sub Inspector Jitendra Kumar who was the officer in charge of Chiniya P.S. at the time of occurrence and participated in the said encounter. The witness has also narrated the entire facts mentioned in the FIR that a team was constituted by the S.P. Garhwa to check the Anti National Activities by the members of the prohibited maoist group/CPI(Maoist) under the leadership of SDPO, Ranka Vijay Kumar. The witness has further supported the fact that an encounter took place and when they were ordered they restored to control firing to prevent loss of life and limbs as well as official equipment and arms. It is further evidence of the witness that the firing continued till 2 O' Clock in the night and they maintained their positions throughout night and it was only in the morning that a search operation was under taken. The witness has further stated that he has fired 16 rounds from his official AK-47 and the other members of the forces had fired 87 rounds. He has also given descriptions of the articles seized and the seizure list was identified and proved by the witness to be in his pen and signature over which the witness has 22 also signed and the seizure memo were marked Ext.2, Ext. 2/1, Ext. 2/2 and Ext. 2/3 respectively. It is the specific evidence of the witness that there were no independent witness present at the place of occurrence hence constable Rajan Kumar Patel and constable Samrendra Kumar Singh were made witnesses to the seizure list. He has also identified all the seized articles which were assigned material Ext. I to Ext. V series. The search operation continued for the entire day and it was only in the evening that the search was stopped and the SDPO, Ranka lodged his written statement forwarded to the officer in charge Chiniya on which he registered Chiniya P.S. Case No. 14/2016 dated 01.04.2016. The witness has further supported the facts that on the same day that is on 01.04.2016 Chotu Korwa @ Mister Korwa (appellant ), an extremist involved in the encounter was arrested at village Pendali in injured condition by officer in charge Meral and was taken to Sadar Hospital Garhwa from where he was referred to RIMS Ranchi and he has also identified the accused present in the court. The endorsement on the written report was marked Ext. 3 on his identification and proof. The formal FIR was marked Ext. 4 and on line FIR was marked Ext 5 on his identification and proof. The witness has further stated that his statement was recorded by the S.D.P.O. Nagaruntari and has specifically stated that on 01.04.2016 at about 07:30 a.m. Chotu Korwa @ Mister (appellant) was arrested from village Pendali which was across the hill near village Chapla and appellant was arrested in an injured condition and they received the information from the Superintendent of Police and the commandant of CRPF. The witness has further stated that the distance between Chapla and village Pendali is approximately 1 23 ½ to 2 kms.
18.P.W. 17 is Sub Inspector Asit Kumar Singh has clearly stated in his evidence that the appellant was neither arrested by him nor he was arrested in his presence. He was informed by the Superintendent of Police that the appellant was arrested in Meral police station. He has stated that his statement was recorded before the police. He was a part of the raiding team and has fully supported the case of the prosecution.
19.P.W. 19 is the Investigating Officer of the case, S.D.P.O. Nagaruntari, Manish Kumar, he has stated that they have received information that operation against the extremists have started at district level upon which he constituted a team and search operation was conducted at the district level against the extremists within Chiniya P.S. and Chotu Korwa @Mister was arrested from village Pendali within the jurisdiction of Meral Police Station in an injured condition with gun shot injury. He has also received information that he was injured in the said encounter but managed to flee away taking advantage of darkness. The witness has further stated that he was made investigating officer of the case by the direction of the S.P. Garhwa. The witness has also examined the seized articles and has sent the seized articles to Sergeant Major Garhwa for examination. The witness has also received the examination report from Sergeant Major Garhwa Vijay Kumar Singh which was marked Ext.-7 and according to this exhibit the arms recovered from the place of occurrence were sufficient to cause loss of live. The witness has further supported the facts that he recorded the restatement of the informant and other witnesses. The witness has also examined and has proved and established the place of occurrence which is about 800 meters north of the pond situated in village Chapla at Lakarmanwa Pahar. He has also proved and established the boundaries of the place of occurrence and has 24 also identified the accused Chotu Korwa present in the court. The witness has further stated that he has sent requisition for grant of sanction and has submitted charge sheet against the accused Chotu Korwa 2 Mister finding the case true for committing the offences punishable under sections 147,148, 149,353,307 of the IPC, Section 25(1-b)a, 26,27,35 of the Arms Act, Section 17 of the C.L.A. Act and Section 38/39 of the U.L.P.A. Act. The witness has further stated that he has recorded the statement of the accused wherein he has confessed his guilt. The witness has further stated that accused was arrested from village Pendali with gun shot injury and was taken in police custody for treatment at Sadar Hospital Garhwa and then to RIMS at Ranchi. The witness has further stated during the course of his cross examination that when he went to the place of occurrence none was present there because of fear. They tried to call the villagers to the place of occurrence but they refused from giving their statements.
20.P.W. 21 is Dr. Rakesh Kumar Tarun of Sadar Hospital Garhwa, who examined the accused Mister @ Chotu Korwa while he was posted as a specialist medical officer (surgery). It is the evidence of the Doctor that Mister@ Chotu Korwa was admitted with the alleged bullet injury and on examination the Doctor has found the following injuries on his person 1- Wound of entry 0.5 cm x 0.5 cm over right posterior auxiliary region margin of wound was inverted. 2- Another wound of exit was found measuring 1.5"x 1" over right anterior axillary margin was everted. It is his further evidence that the age of the injury was more than 12 hours and the patient was referred to RIMS Ranchi for further treatment and the Doctor has also identified the accused in the court as the person he treated. The photocopy of the emergency register was marked Ext. X for identification. The witness was subjected to cross 25 examination wherein he has stated that when the injured was brought before him his injuries were dressed. It is his further evidence that he has not given any opinion regarding the gun used as the bullet was not found inside the body. He has also stated that the time elapsed since injury was his estimation although he cannot give the exact age of injury and has also stated that the injured was brought in police custody. The witness has dressed the injury and secured bleeding.
21.This court finds that the prosecution witness nos. 1,2,3,4,5,6,7,14,15,16,17 and 18 were part of the raiding team and they have all supported the prosecution case regarding the date, time and manner of occurrence. It has come in the evidence that there were about 10 extremists, 3 named and 6-7 unnamed and the appellant was one amongst the named accused for which secret information as well as information from village Chapla was available. There is consistent evidence that the accused were asked to stop but in response they fired at the raiding team which ultimately led to cross firing. All the aforesaid witnesses have also supported the fact that there was firing and counter firing through fire arms between the extremists and the raiding party. They have also supported the allegation that extremists group were citing slogans against the police party and Indian Constitution and they also uttering the word 'Maowadi Zindabad'. They have further supported the fact that the incident had taken place in the forest and the extremists were firing from the hill side. P.W. 15 has stated that there was distance of about 20-25 mtr. between the extremists group and the police party, although P.W. 1 has stated that the distance was around 100 mtr. There is reliable evidence that the extremists were injured during firing by the police personnel of the raiding team. It has also come in evidence that the place of occurrence was away from the 26 nearest village which was about the distance of ½ K.M. There is also consistent evidence that the firing between the two groups continued for quite some time and ultimately all the accused have fled away from the spot. There is consistent evidence that seizure of articles from the spot was within a distance of 100 mtr. and the seizure of articles along with the seizure lists have been duly proved beyond any reasonable doubts. The report (exhibit-7) of country made pistol, a seized article, indicates that the same could take life. The evidences are cogent and reliable as it is the evidence of the nearby residents that they heard gun shot being fired out side their houses and out of fear they have not came out of their respective houses. It is a natural conduct also that nobody would like to come out for being exposed to an imminent danger of being shot dead when indiscriminate firing takes place. The fact is also corroborated by the evidence that despite being called to the place of occurrence the villagers of the village Chapla have abstained from going to the place of occurrence. The evidences of the police witnesses , who were part of the raiding team, are fully corroborated from the documentary and oral evidences of the other witnesses including the local villagers as well as the evidences of the raiding members of the C.R.P.F. who have no concern with local men.
22.It has come in the evidence of Doctor that the accused was brought to him by the police who was injured and was in a dressed condition and the Doctor had examined the appellant and the doctor has opined that the injury was by way of gun shot whose details have been mentioned above. Upon perusal of the evidence of doctor in entirety this court finds that the doctor was of a clear opinion that the injury was bullet injury although he has used the term alleged of bullet injury in paragraph 1. In the cross examination he has stated that he has 27 not mentioned distance from which shot was fired and the pallet was not found in the body and the opinion regarding gun used could not be given. He has opined in his evidence that time of injury was more than 12 hrs. Considering the time of occurrence and the nature of injury as well as time of injury which was found upon the present appellant, this court finds that clear chain is established regarding allegation made against the appellant and the injury found in his body. The gun shot injury is not an ordinary injury and it was certainly for the appellant to explain before the learned court below regarding the injury in his statement under Section 313 of the Cr. P.C. This court finds that in absence of such explanation of the injury, which was found in the body of the appellant is a circumstance which has to be used against the appellant.
23.The evidence of the doctor is important in the chain of the circumstances involved in this case. Upon reading his evidence there can be no doubt that the appellant had bullet injury which was treated by the doctor (P.W-21) who secured the bleeding and the time of injury was stated to be more than 12 hours. As the pellet was not found in the body, the exact weapon could not be mentioned by the doctor and the doctor did not mentioned about the distance with which the bullet was fired. He has clearly deposed that the appellant was brought before him under police custody and the injury was in dressed condition. He has not named the accused but has identified him in the court. Upon reading of the evidence of the P.W -21 there can be no doubt that the appellant was brought to the doctor in injured and dressed condition with bullet injury and was treated by the doctor who secured bleeding and opined that the injury was more than 12 hours old.
24.The bullet injury on the body of the appellant and the evidence of the doctor (P.W-21 ) are the connecting links between the 28 appellant and the occurrence. The prosecution has been fully able to establish the time, place and the manner of occurrence. The prosecution witnesses have been able to prove the following chain of circumstances beyond all reasonable doubts:-
I. There was some secret information received by the Superintendent of police Garwa at about 11.00 am on 31.3.2016 that the appellant along with two named accused i.e Bhanu Singh Kharwar and Pankaj Korba and other 6 to 7 Maoist extremist were wandering in the area of Chiniya police station in Chapla village and were propagating the maoist ideas and were collecting levy from the villagers involved in developmental works.
II. A team for raid was constituted consisting of police officials and personnel from CRPF, which included P.W. 1 to 7 and 14 to 18 including the informant who was P.W.
18. III. The raiding team reached Ranka Thana at 3.30 pm on 31.3.2016 and then proceeded to Chapla village at 4.30 pm. IV. When the team reached Rabdakhurra village they left the vehicles on the road and moved on foot for 10 k.m and reached Chapla village at 9.00 pm .
V. Upon reaching Chapla village the team was informed that the aforesaid extremists, 10 in number, were towards the north east in the jungle and they were involved in collection of levy for the construction of new pond and stream in the village.
VI. The raiding team walked for about half an hour and they found movement of persons towards the north east of village Chapla and accordingly the members of the raiding team took safe position and a team member (p.w-
1) loudly shouted that the team members are police 29 personnel and in response there was firing from the side of the extremists. The police personnel asked them to surrender but in response they started abusing and continued firing. The raiding team started controlled firing and the extremist also fired and raised slogans against the police, country and constitution of India. During the firing the raiding party could hear a lot of noise of movement and screaming of the extremists. Firing in intervals continued for about 2 to 2 and ½ hours and thereafter it stopped. There was about 200 round firing from the side of the extremist and 90 rounds from the side of the raiding team and the raiding team continued in their position waiting for morning. The incident had taken place in the late evening of 31.3.2016 after 9.30 pm and some of the witnesses have stated that firing started at around 11.00 pm. VII. It has come in evidence that the P.W -6 had fired from A.K 47 rifle and he has also stated that terrorists were injured due to firing and subsequently he learnt that the appellant was arrested.
VIII. Early in the morning at about 6.00 am the team took stock of the bullets and started search operations by forming a grid. The articles were seized from a distance of about 100 meters from the position of the raiding party and the seizure list with witnesses amongst the raiding team were prepared as there was no independent witness in the Jungle. The seized articles included pistol, live cartridges, one empty cartridge (khokha), red shawl and green bottle. The recovered country made pistol was sent for examination and it was opined that the same was sufficient to cause loss of life. The exhibits have been mentioned in Para 6 and 7 of the judgment.
IX. In the mean time different members of raiding team 30 received information that the injured extremist i.e the appellant has been arrested in village Pendali falling under Meral police station. The appellant was arrested at about 8.00 am and he was taken from Meral Police Station at about 10.00 am. The doctor at Sadar Hospital, Garhwa examined the appellant who was brought before him in police custody with dressed wound and the doctor treated him and secured bleeding and was of the opinion that the wound was a bullet injury of more than 12 hours. The pellet was not found in the body as it had crossed the body. The appellant was identified by the doctor also. The ground of appellant at para 9(iii) is accordingly rejected.
X. The FIR was lodged by one of the members of the raiding team P.W. 18 on 01.04.2016 in the evening. The delay in lodging the FIR has been well explained after the incident there was search operation. There is no dispute that the person who had arrested the appellant has not been examined and there are some contradictions in the evidence of P.W. 6,7 and 16 as mentioned in para 9(ix) but the same are of minor nature and has no bearing as the doctor ( P.W. 21) has clearly stated that the appellant was brought under police custody and he had identified the appellant. Accordingly ground at para 9(iv) and 9(ix) are also rejected.
XI. So far ground mentioned in para 9(I) and 9 (II), (V) to (VIII) are concerned, there is no dispute that none of the witnesses have stated specifically that the appellant had fired in the incident and the appellant has admittedly not been arrested from the place of occurrence and the seized articles have not been proved to be belonging to the appellant but this court is of the considered view that the aforesaid circumstance is not fatal to the prosecution 31 case. It has come in evidence that there were about 10 extremists involved in firing and the appellant was charged under Section 148,353/149, 307/149 and Section 27 of the Arms Act and in such circumstances specific role of the appellant need not be proved. There is no dispute that the crime was committed by the members of the unlawful assembly in which they suffered bullet injuries and the appellant was arrested with bullet injuries on next morning and examined by the doctor P.W. 21 who treated him and secured bleeding. Thus grounds mentioned in Para 9(I) and 9(II), (V) to (VIII) are also rejected.
XII. The facts which transpired from the evidence of the doctor P.W. 21 are very strong circumstance undoubted linking the appellant with the incident and this circumstance was specifically put to the appellant in the question under Section 313 Cr. P.C. The appellant was put specific question under section 313 Cr.P.C in the aforesaid aspects of the matter including his place of arrest and his bullet injury to which he remained in simple denial .
25.The aforesaid sequence completes the chain of circumstances. The appellant was put specific question under section 313 Cr.P.C regarding his participation in the incident, his illegal activities, his arrest from village Pendali under Meral police station in injured condition and his treatment in the Sadar hospital, as well as recoveries made from the place of occurrence and in response the appellant had simply denied. The circumstances regarding his bullet injury was certainly required to be explained by the accused while responding to the questions put to him under section 313 of Cr.P.C. This court has no doubt in the mind that every link in the chain of events pointing to involvement of the appellant in commission 32 of offence was complete and in absence of any explanation from the side of the appellant the prosecution was successful in proving the case beyond all reasonable doubt against the appellant under sections 148, 353/149 and 307/149 of Indian Penal Code as well as Section 27 of the Arms Act. The ingredients for offence under other sections for which charge was framed against the appellant could not be proved by the prosecution. The learned trial court has also considered the evidence of the doctor and the bullet injury found in the body of the appellant as the connecting link between the appellant and the occurrence. The learned court below has rightly held that it is the consistent case of the prosecution fully supported by the prosecution witnesses that the accused has sustained gun shot injury during the encounter which took place at village Chapla and thus finding gun shot injury on the person of the accused proved his presence at the place of occurrence. The learned court below has also considered that this evidence against the appellant was specifically put as a circumstance during his statement under the provisions of Section 313 of Cr. P.C. but the appellant has given simple denial without explaining any reason as to how he sustained the said injury. Other witnesses have also supported the facts that extremist was injured and injured extremist was arrested from village Pendali within Meral police station. This court finds that although there is some inconsistency regarding the person who arrested the appellant but it has been proved that the appellant was brought to the doctor P.W-21 in injured condition with bullet injury in police custody. This evidence has been given by the doctor himself. The inconsistencies pointed out by the appellant in evidence are minor inconsistencies and does not have any bearing in the matter and this court has no doubt that the prosecution has been able to prove the case against the appellant beyond all reasonable 33 doubts under the sections for which the appellant has been convicted by the learned court below. The learned court below has rightly held that finding injury on person of the appellant caused by a bullet fired from a firearm is not common injury. The learned court has rightly considered that the appellant was under treatment both at Garhwa as well as at Ranchi but he has nowhere complained or even explained how he sustained a gun shot injury on his person. It is also not the case of the appellant that a stray bullet had hit him and neither such explanation was given in his statement under section 313 of Cr.P.C. nor he has given any evidence in defence. Since it has come in evidence that the extremists were about ten in number who were jointly involved in firing the police personnel, so the basic ingredient of section 148/149 has been satisfied and absence of any evidence regarding specific role of the appellant has no bearing on the merits of the case.
26.In the judgement dated 06.05.2013 decided by the Hon'ble supreme court and relied upon by the appellant which was passed in Criminal Appeal Nos. 931-932 of 2009 (Raj Kumar Singh @ Raju @ Batya vs. State of Rajasthan) reported in (2013) 5 SCC 722 the Hon'ble Supreme Court has dealt with the case of circumstantial evidence , contradictions in the evidences led by the prosecution as well as scope of conviction by referring to statement made under section 313 of Code of Criminal procedure . Some of the important paragraphs of the said judgement are as under :-
"21. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, 34 before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be"
true and "must be" true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide Hanumant Govind Nargundkar v. State of M.P., Shivaji Sahabrao Bobade v. State of Maharashtra, Sharad Birdhichand Sarda v. State of Maharashtra, Subhash Chand v. State of Rajasthan, Ashish Batham v. State of M.P., Narendra Singh v. State of M.P., State v. Mahender Singh Dahiya and Ramesh Harijan v. State of U.P.)
22. In Kali Ram v. State of H.P. this Court observed as under:
"25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence."
23. In Hodge, In re the Court held that before a person is convicted entirely on circumstantial evidence, the court must be satisfied not only that those circumstances were consistent with his having committed the act, but also that the facts were such, so as to be inconsistent with any other rational conclusion other than the one that the accused is the guilty person.
25. In M.G. Agarwal v. State of Maharashtra15 this Court held, that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt.
28. Thus, in view of the above, the court must consider a case of circumstantial evidence in light of the aforesaid settled legal propositions. In a case of circumstantial evidence, the judgment remains essentially inferential. The inference is drawn from the established facts as the circumstances lead to particular inferences. The court has to draw an inference with respect to whether the chain of 35 circumstances is complete, and when the circumstances therein are collectively considered, the same must lead only to the irresistible conclusion, that the accused alone is the perpetrator of the crime in question. All the circumstances so established must be of a conclusive nature, and consistent only with the hypothesis of the guilt of the accused.
30. In a criminal trial, the purpose of examining the accused person under Section 313 CrPC is to meet the requirement of the principles of natural justice i.e. audi alteram partem. This means that the accused may be asked to furnish some explanation as regards the incriminating circumstances associated with him, and the court must take note of such explanation. In a case of circumstantial evidence, the same is essential to decide whether or not the chain of circumstances is complete. No matter how weak the evidence of the prosecution may be, it is the duty of the court to examine the accused, and to seek his explanation as regards the incriminating material that has surfaced against him. The circumstances which are not put to the accused in his examination under Section 313 CrPC, cannot be used against him and have to be excluded from consideration.
37. In Ramnaresh v. State of Chhattisgarh23 this Court held as under: (SCC p. 275, para 52) "52. It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 CrPC is upon the court. One of the main objects of recording of a statement under this provision of CrPC is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 CrPC, insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law."
38. In Munish Mubar v. State of Haryana24 this Court, while dealing with the issue of the examination of the accused under Section 313 CrPC held, that the accused has a duty to furnish an explanation in his statement under Section 313 CrPC as regards any incriminating material that has been produced against him. Such a view was taken in the light of the fact that there existed evidence to show that the accused had parked his car at the Delhi Airport, and that the same had remained there for several hours on the date of commission of the crime in question. Thus, in light of the fact that such a fact had been established, and that such circumstances also simultaneously existed, the accused was expected to explain the reason for which he had gone to the airport, and why the car had remained parked there for several hours.
41. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 CrPC is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the 36 incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 CrPC cannot be used to fill up the gaps left by the prosecution witnesses in their depositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 CrPC is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 CrPC. An adverse inference can be taken against the accused only and only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become a witness against himself."
27.In the said judgement the trial court convicted the appellant under Sections 302, 376 and 201 IPC on the basis of circumstantial evidence and the High Court dismissed the appeal. The specific case of the appellant before the Hon'ble supreme court was that the circumstances relied upon by the prosecution were not satisfactorily established, and that additionally, the circumstances said to have been established against the appellant did not provide a complete chain that is required to prove the guilt of the appellant. It was also the case of the appellant in the said case that there were material contradictions in the evidence of the prosecution witnesses and the statements of the witnesses were self-contradictory, and the standard of proof required to convict a person in a case of circumstantial evidence, was not met. It was argued in the said case that the law requires that the circumstances relied upon in support of the conviction must be fully established, and that the chain of evidence furnished by those circumstances must be so complete, so as not to leave any reasonable doubt for a conclusion consistent with the innocence of the accused. The 37 circumstances from which the conclusion of guilt is to be drawn, must not only be fully established, but also be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. They must not be capable of being explained by way of any other hypothesis except the guilt of the accused, and when all the said circumstances are collectively considered, the same must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime in question.
28.In the judgement passed by the Hon'ble supreme court there was no ocular version of the incident and the entire case of the prosecution was based on circumstantial evidence. The courts had convicted the appellant of the said case on the basis of following circumstances forming an incriminating chain against the appellant:
(i) Conduct of the appellant.
(ii) False explanation given by the appellant.
(iii) Evidence relating to injuries on the person of the deceased.
(iv) Evidence relating to injuries on the appellant.
29.In the said case it has been recorded in para 42.12. of the judgement that the Doctor (PW 12) had deposed before the court stating that the appellant had on his person several injuries and that some of the said injuries that were on his right leg could have been caused by a blunt weapon. In the said case no explanation was furnished by the prosecution with respect to such injuries. The Hon'ble supreme court moreover observed that even if some injuries were found on the private parts of the appellant, the same does not conclusively connect him to the crime.
30.In the case before the Hon'ble supreme court there were material contradictions in the evidence of the prosecution and even the seizure was under clouds due to over writing etc and the prosecution failed to prove the circumstances which were 38 alleged to be against the accused and the Hon'ble supreme court held that the accused could not be convicted by referring to statement made under section 313 of Cr. P.C as the same is not an evidence in the eyes of law and the benefit of doubt was given to the accused under the facts and circumstances of the said case.
31. In the instant case the circumstances relied upon by the learned court below stand fully established, the chain of circumstances is complete, and every link in the said chain indicates that the appellant was the accused. The discrepancies in the evidence of the witnesses are so minor that none of the same disturb the prosecution case . The medical evidence also fully supports the ocular evidence, and there is no contradiction between the two. The injuries found on the person of the appellant and the prosecution evidence co- relate the appellant to the evidence relating to the recoveries and bullet injury on the person of the appellant which clearly indicates that the appellant is guilty of the offence.
32.In the instant case, there have been no major contradictions/improvements/embellishments in the deposition of prosecution witnesses and the learned court below has examined the same in the correct perspective. The chain of links connecting the appellant with the crime appears to be conclusive.
33. It has been held by the Hon'ble supreme court in the judgement relied upon by the appellant as follows:-
"......It is a settled legal proposition that, while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the case of the prosecution, must not prompt the court to reject the evidence thus provided, in its entirety. The irrelevant details which do not in any way corrode the credibility of a witness, cannot be labelled as omissions or contradictions. Therefore, the courts must be cautious and very particular in their exercise of appreciating evidence. The approach to be adopted is, if the evidence of a witness is read in its entirety, and the same appears to have in it, a ring of truth, then it 39 may become necessary for the court to scrutinise the evidence more particularly, keeping in mind the deficiencies, drawbacks and infirmities pointed out in the said evidence as a whole, and evaluate them separately, to determine whether the same are completely against the nature of the evidence provided by the witnesses, and whether the validity of such evidence is shaken by virtue of such evaluation, rendering it unworthy of belief."
34.In has been held by the Hon'ble supreme court in the aforesaid judgement that the entirety of the situation must be taken into consideration and while appreciating the evidence, the court must not attach undue importance to minor discrepancies, rather must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation. After exercising such care and caution, and sifting through the evidence to separate truth from untruth, embellishments and improvements, the court must determine whether the residuary evidence is sufficient to convict the accused. While holding this the Hon'ble Supreme court has also referred to earlier decisions of the Hon'ble Supreme court on the point and there is no doubt that the aforesaid principles of appreciation of evidence is settled.
35. Thus, we find no force in the submissions advanced by the learned counsel for the appellant that evidence produced by the prosecution do not complete the chain of links connecting the appellant with the crime. The circumstantial evidence in the present case coupled with the fact that the appellant has given no explanation in response to the bullet injury found in his body which was matching with the narration of sequence of events as established by the prosecution witnesses is enough to convict the appellant.
36. In view of the above, we have no hesitation in holding that the prosecution has succeeded to prove the case against the appellant beyond reasonable doubt and thus, he is not entitled to benefit of doubt.
37.After considering the evidences on record the learned court 40 below has recorded the following findings: -
"I am thus of the considered opinion that prosecution in the case in hand has well been able to prove some of the charges, if not all of them which the defence has not been able to rebut and demolish either by cross examination of the witnesses or by leading any defence evidence and as a result this court of the considered opinion that prosecution in the case in hand has well been able to prove the charges punishable under section 148,353,/149/307/149 of IPC, that the present accused along with certain other accused person formed an unlawful assembly being variously armed with deadly weapon and fire arms and they with an intention to kill the member of police and also with intention to snatch their official arms and ammunitions opened fire at them. They have also obstructed the officials of the police and CRPF from performing their duties by use of violence and have restored to firing and thus accused is convicted u/s 148,353/149,307 IPC and 27 Arms Act."
38. In view of the findings recorded by the court in the above paragraphs particularly para 21 to 25 this court finds no reason to interfere with the findings of the learned court below.
39.Accordingly, the present appeal is hereby dismissed.
(Anubha Rawat Choudhary, J.) Binit/