Jharkhand High Court
Kandey Purty vs State Of Jharkhand on 13 July, 2017
Author: H.C. Mishra
Bench: H.C. Mishra, Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
Criminal (Jail)Appeal No. 1335 of 2005 (DB)
(Against the Judgment of conviction dated 27.07.2005 and Order of
sentence dated 30.07.2005, passed by the learned Additional Sessions
Judge, F.T.C.-V, West Singhbhum at Chaibasa, in S.T. No. 56 of 2004 /
S.T. R. No. 17 of 2004.)
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Kandey Purty ..... Appellant.
Versus
The State of Jharkhand. .... Respondent.
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PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE ANANDA SEN
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For the Appellant : Mr. Yogesh Modi, A.C.
For the State : Mr. Hardeo Prasad Singh, A.P.P.
.........
By Court:- Heard learned amicus curie appointed by the Court for the
sole appellant and the learned Addl. P.P. for the State.
2. This jail appeal is directed against the Judgment of conviction dated 27.07.2005 and Order of sentence dated 30.07.2005, passed by the learned Additional Sessions Judge,F.T.C.-V, West Singhbhum at Chaibasa, in S.T. No. 56 of 2004 / S.T.R. 17 of 2004, whereby the appellant has been found guilty and convicted for the offences under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. Upon hearing on the point of sentence, the appellant has been sentenced to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code and imprisonment for 7 years for the offence under Section 27 of the Arms Act, and both the sentences were directed to run concurrently.
3. According to the prosecution story, there is direct allegation against the appellant, Kandey Purty, of committing murder of two persons, including father of the informant by firearm. The informant Lugdi Purty, who is son of one of the deceased Silay Purty, has stated that on 28.10.1995 in the morning his father had gone to another village for performing a worship and at about 4.00 P.M., the informant was going to bring back his father. When he reached near one Sanjay bridge, he saw his father coming with another deceased Sriram Kandai Buru. The accused Kandey Purty, who was standing there, fired firearm upon Sriram Kandai Buru, who fell down on the road. The father of the informant tried to flee away from the place, who was chased and he was also assaulted by firearm, who also fell down. As to the cause of 2 occurrence, it is stated that the accused is the cousin of the informant and there was land dispute between the parties. Two named witnesses had seen the occurrence, and others also assembled there, who were informed about the occurrence. After the occurrence, at about 11.30 P.M. in the night, the informant went to the Police Station and lodged the First Information Report to the aforesaid effect, which was registered as Mufassil Chaibasa P.S. Case No. 103 of 1995, corresponding to G.R. No. 558 of 1995 and investigation was taken up. After investigation, the police submitted charge sheet against the accused appellant.
4. After commitment of the case to the Court of Session, charge was framed against the accused for the offences under Section 302 of the Indian Penal code and Section 27 of the Arms Act, and upon the accused person's pleading not guilty and claiming to be tried, he was put to trial.
5. In course of trial the prosecution has examined four witnesses, but the case is supported only by P.W.-1 Lugdi Purty, who is the informant and son of one of the deceased. The other two witnesses, viz., P.W.-2 Deban Purty and P.W.-3 Gono Soy have not supported the case of prosecution and have turned hostile. The Investigating Officer of the case and the Doctor, who had conducted the post-mortem examinations on the dead body of the deceased, have not been examined.
6. P.W.-1 Lugdi Purty, who is the informant and son of one of the deceased, had supported the prosecution case as the eye witness to the occurrence, and has stated that while he was going to bring his father, who had gone to perform a worship in another village, and reached near Sanjay river, he saw his father coming along with Sriram and the accused Kandey Purty was standing there. He has stated that accused Kandey Purty assaulted both the deceased by firearm at the same place, who died at the spot. He has stated that there was land dispute between the parties. In his cross-examination he has stated that the accused is his cousin. He has stated that the accused had no enmity with Sriram. His father tried to flee away, but he was chased by the accused and assaulted by firearm, whereupon he also fell down. He denied the suggestion of giving false evidence.
7. P.W.-4 Krishna Sawaiya is the fomal witness, who has proved the F.I.R., which was marked as Ext.-2., the inquest reports of the dead bodies, which were marked as Exts.-3 and 3/1, the seizure list relating 3 to the seizure of blood stained earth, which was marked as Ext.-4 and post-mortem reports of both the deceased, which were marked as Exts.-5 and 5/1. In his cross-examination he has admitted that these documents were not prepared in his presence, nor he had acquaintance with the handwritings of the persons, who had prepared these documents.
8. Defence has examined one witness D.W.-1 Gora Liangi , who has stated about the alibi of the appellant, stating that on the date of occurrence the appellant was in Orissa.
9. Learned amicus curie, arguing for the appellant, submitted that the impugned Judgment of conviction and Order of sentence passed by the learned Trial Court below, cannot be sustained in the eyes of law, inasmuch as, the occurrence is supported only by one witness, who is highly interested witness, being the son of one of the deceased and the enmity between the parties is admitted. It is also submitted by the learned amicus curie, that the fact that the informant has become a chance witness due to enmity, cannot be ruled out. He also submitted that normally there was no occasion for the appellant to be present at the place of occurrence, as according to the FIR, when the father of the informant had gone to another village for worship in the morning, the informant had not gone along with him, and as such, there appears to be no reason as to why the informant was going to bring him from another village. Learned amicus curie submitted that even the Investigating Officer and the Doctor, who had conducted the post- mortem examinations upon the dead bodies of the deceased, have not been examined during trial in the Court, due to which the defence has been highly prejudiced in the case. The independent witnesses P.W. No.-2 Deban Purty and P.W.-3 Gono Soy have turned hostile. Learned amicus curie also submitted that sanction was not proved in the Trial Court and the conviction and sentence of the appellant under section 27 of the Arms Act cannot be sustained in the eyes of law. It is submitted by the learned amicus curie, that it is a fit case of acquittal of the sole appellant.
10. Learned Addl. P.P. on the other hand opposed the prayer and submitted that the case relates to double murder, which is supported by one eye witness, being son of one of one of the deceased. Learned Addl. P.P. submitted that since the case is supported by the eye witness, making direct allegation against the appellant to have committed the murder of the deceased persons by firearm, and the 4 seizure list, inquest reports and the post-mortem reports proved by the formal witness, also corroborate the ocular evidence of the informant, the prosecution has been able to prove its case beyond all reasonable doubts and there is no illegality in the impugned Judgment.
11. Having heard learned counsels for both the sides and upon going through the record, we find that the case is supported only by P.W.-1 Lugdi Purty, who is the informant and is highly interested witness, being the son of one of the deceased. Other independent witnesses, P.W.-2 Deban Purty and P.W.-3 Gono Soy have turned hostile and have not supported the prosecution case. Though this case is a very sensational case of double murder, but the prosecution has not even cared to examine the Investigating Officer of the case and the Doctor, who had conducted postmortem examinations on the dead body of the deceased, and the prosecution has tried to prove the important documents, i.e., the FIR, the inquest reports of the dead bodies, the seizure list and the post-mortem reports of both the deceased, only with the help of a formal witness, who has clearly stated that those documents were not prepared in his presence, nor he had acquaintance with the handwritings of the persons, who had prepared those documents. We are of the considered view that because of none examination of the Investigating Officer and the Doctor, who had conducted post-mortem examinations, the seizure list, inquest reports and the post-mortem reports have not even been proved by the formal witness, as admittedly, those documents were not prepared in his presence, nor he had acquaintance with the handwritings of the persons, who had prepared those documents.
12. We also find force in the submission of the learned amicus curie, that the chances that the informant has tried to become a chance witness of the case, cannot be ruled out, in view of the admitted enmity between the parties. Admittedly there is no recovery of any firearm from the appellant and the prosecution has also failed to prove the sanction in the case and, as such, the conviction and sentence of the appellant of the alleged offence under section 27 of the Arms Act, could not be sustained on this score as well. We are of the considered view that the prosecution has failed to prove both the charges against the appellant and the appellant was entitled to be acquitted by the Trial Court. As such, the impugned Judgment of conviction and the Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law.
513. For the foregoing reasons, the impugned Judgment of conviction dated 27.07.2005 and the Order of sentence dated 30.07.2005, passed by the learned Additional Sessions Judge, F.T.C.-V, West Singhbhum at Chaibasa, in S.T. No. 56 of 2004 / S.T.R. 17 of 2004, are hereby, set aside. Consequently, the appellant is found not guilty and is acquitted of both the charges. The appellant is in jail custody, let him be released and be set at liberty forthwith, if his detention is not required in any other case.
14. Before parting with this Judgment, we must record that we have been given very able assistance in this case by Sri Yogesh Modi, the learned amicus curie. We direct the Secretary, High Court Legal Services Committee, to make the payment of the prescribed remuneration to Sri Yogesh Modi, the learned amicus curie. Let a copy of this Judgment be sent to the Secretary, High Court Legal Services Committee, for the needful.
15. In the result, this appeal is allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.
( H.C. Mishra, J.) (Ananda Sen, J) High Court of Jharkhand at Ranchi Dated 13.07.2017.
NAFR/ Sharma/