Jharkhand High Court
Sheikh Hresamuddin @ vs Y on 16 August, 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdictian)
Criminal Appeal (D8) Ne. 63 af 2019 --
With
Criminal Appeal (DB) No. 1223 of 2018
fAguinsl ihe juclgmant af conviotion deufed G7. 3¢ & and the order of sentence dated
GR LASS pass by the learned Advitional Sessiona Jurge-NT Jamshedpur in
Seasions Trial No, 289 of 2O1G}
Aft
in Criminal Appeal (DB) No.G3 of 2019;
Sheikh HResamuddin @
oF Sakehi City
winghbhum, Jarishes "pe > Appellant
Nabir, son of Sheikh Kupubuddin, res side rut
mire Budding, PS-Sakehi, Distriet-k ast
Has &
The State of Jharkhand .. Respondent
In Criminal Appeal (DB) No. 1223 of 2018:
Pankaj} Dubey @ Santosh Singh, son of Viday Shankar Dubs
resident of Bagbers Colany, PS- Be xbeera, District-Rast sirighbhurn,
Jamshedpur ve Appellant
Versus
y
s
The State of Jharkhand ... Respondent
(Through V.C part-heard on 27% hily and Gar | Auguist, 2023}
PRESENT
HON BLE MR. JUSTICE SHREE CHANDRASHERHAR
HON BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant(s} : Mr. ALK. Kashyap, Sr. Advocate
Mr. Amit Kumar, Advocate
{in Crivrdersed Ay ithe F al Gs
RR Wes ees erage Dairy BRE & a
Mr. Sameer Saurabh, Adve
Por the State : Mr. Saket Kumar A
iki Orimaneal Appeal (OE No. G8 of
Mr. Saniay Kurnar Srive
igh No i
JUDGMENT
Coe Yoo OS SOR fOr] Pronounced on 16/08 (2001 PM oy ge OR ae on PY x re fer, Shree Chandrashekhar. J.
Pankaj Dubey a Santosh Singh fn short, Pankal Dubey} and Sheikh Hesamuddin @ Kabir (in short, Kab: ir} faced the trial im Sessions Trial No. O84 of 2016 on the chs arge uricer i EAP LPLPELOESELEELESOSEEEEE:
we Crhutns! Appeal (DEY Rec 63 af BOTS WEh Usienal Appeal Sah) Ne. TRIS oF QELS a 3 section S02 /34 of the Indian Penal Code ard section 2? £35 of the Arms Act for murder of Or, Prabhat Kumar, They _ found guilty oF cosnmittine ¢ the aforesaid offences and Smritencedd to RE for Hike and fine of Rs, OG, 000/- under section 302 (34 of the Indian Fenal Code with default st ipulation fo undergo further imprisonment for Six months and: RE for ten years and Ane af Rs. 10.000 f- under section 27 of the Arms Act with default stimulation to undergo '. MALS + further imprisonment for three months. The iearnecd Additional Sessions Jue ge-XHl, Jamshee pur has ordered that the eritire fine amount recovered fram the convicts shall be paid ta wife of the deceased, S. Dr. Prabhat Kumar was shot by unkno his hause in the evening of 17.12.2000, Ne was brought to Tata Main Hospital fin short, TMH) but he could mob survive and succumbed to the mjuries around O8:00 PAY in the same SVveTUnE, His elder son gave his sta ttement tn the police at Q8:15 PM in 1 ward of TMH and on that basis Eistupur PS Case No. 376 of 2009 WaS Tegistered against unknown, The informant Rave description of Ene assailants in his fardbeyan and the wife and younger san af Or. Prabhat Kumar claimed before the investiga: ling officer that aye aN they have alse seen the accused an ad car slentity therm. The wife of Dr. Prabhat Kumar stated before the investigating officer that she came out from the room on hearing sound of frin 8 and found pro urLknown persons fleein & Away carrying pistols in their hand, The younger son of Dr, Prabhat Kumar stated before the police thar { the everting of 17.12.2009 while he Was comune heme after ta * tuition he saw two persors flee ig away from his house. The pohce made Inquiries in course of the inve stigation but could not get ary clue about the assailants.
3. On 25.01.2010, the polce stumbled upen pve persons near O. Town Club and then the st ory unfolded how Dr, Prabhat Kumar owas killed, Pankal Dubey and Kabir suffered disclosure statements Before the police and a vase unde:
R. Sa PEE re se ees RA POS for me Aek eye eearletan set ere dan end sector 25 oti. ~EAY «O/33 of the Arn IS Act was p eRistsred ARAUIST them on 25.02.2010 vide mistupur PS Case No. 20 of SOTO, Prom their possession one O mm pistal, one countrymade pistel, 8 mm toa tad Uinitinad dpgmad Hy No. 6S of ang With Crissinat Sugent OG) No, PARA of ROS two live cartridges, one 315 live cartridge, mobile phones and « several SIM cards were seized. The police obtained CDRs of the mobile phoriss recovered fron possession of beth the accused and they were identified in Test Identification Parade | by the younger son of Dr. Prabhat Kurnar. After the prosecution evidence NSLS closed, Pankaj Dub vey and Kabir were examined under section 313 of the Code of Criminal Procedhy ins, wherein they denied their mvolvement in murder of Dr. Prabhat Kumar and stated that they were picked up by the police on 17/1801 2016 and not on
2.012010 when they are show: arrested by the police, and demed that pistols were recovered from their possession on "5.012010 near G. Town Club.
Evidence in the Trial q. Aogether 18 witnesses were examined by the Prosecution fo prove the charges under section 802/384 of the indian Penal Code and section 27/35 of the Arms Ast. A cAapyY ¢ the fardbeyan, pastmartem report, keisure list of GR Case No. 180 af S010, ORs af Mobile nos. SPOSOSISTGS and BSS2858630, other ™' Seizure lists, PSL re eports, TIP chart and confessional state ments of Pankaj Dubey and Kabir were ¢ wy proved during the tial and marked exhibits without objection, except CDRs and the comfessianal gts atements of the accused.
w : PWT Lal Narayan Gupte was posted as Officer In-charge of Bistupur PS. Cn 17.12.2006 #, at about 0&:15 PM, he recorded the fardbeyan of Shiv Saurabh at 'Tata Main Hospital, Jarishedpur. He has depased in the Court that he tool stas ement of Shiv Saurabh in the Intensive Care Unit of TMH and the Staternent was signed by him in preserice of R. Nassan. He has identified his own endorsement over the fardheyan for registration "
x af a case. PW1 was not crass examined by the defence and accordingly he was discharged, G. PWS Rajesh Prakash Sinha and PW4 Sy dhir Kumar are the police officers who apprehended Pankal Dubey and Nabir near Town Clab and from their possession the aforesaid articles were recovered, PWS has stated that he was a member of a special team af police officers formed for tackling the recent serial crimes in OANA a Cvinwand Appeal (OG) We, G8 af BIE Wen Criningt Supeal sD No. LAI af 2078 Jamshedpur. On 25.01.90) Q, at about 02:00 PM, a. secret information was received shout tec Persons caming rigar OG. Tuer Club and the police team apprehended wo young meen there. Frors possession of Pankaj Dubey one @ mm pistol loaded with nwa Hve NS hartriiges, three mobile sets of Nakia GOU0, Nokia G&600 and Reliance Mobile with SIM cards a! Aircel, Airtel and Tata Indicom were recovered, PW4 conducted search af Kabir aril he was found carrying courtrymade pistol loaded with on ® 31S cartridges, ors Nokia mobile phone with Vodafone SIM card and bike parking receipt. The recovered articles were est cerecl in the seizure lists anc the accused were provided copies of the same. Panka; Dy sullerecl a disclosure statement and confessed his invelvement in several crimes, He revealed before PWR that Dr. Prabhat Kumar was shot by Kabir from 9 mm pistel recovered from his possession, PW has stated that the secret information received about Some criminals comin BR onear G. Town Chib on 28.01.0010 was shared Nth the serdor officers and he along with Raiesh Prakash Sinha and Ajit Kurnar proceeded for G. Town Club. Soon thereafter he vas joined by Sunil Kumar Choudh ary and Shatlesh Chouhan. Two persons Moving In Suspicious condition were apprehended by the police and they disclose: their names Santosh Singh @ Pankaj Tnabey and. Sheikh Hesamudelin @ Kabir. The accused were Searched in presence of the independent witness, namely, Rajesh Kumar and Alam and fram their possession several incriminating articles were recovered. PW4 has stated that he conducted search of the person of Kabir and from his pussessiun one countrymade pistol loaded with 215) cartri idee, one mobile phone and bile parking receipt were recovered while Pankaj Dubey was searched by PWS. He has recorded the confsesional «: tatement of Rabir who disclosed before him Kis own invol ivement if Nes arid confesasd that on the instruction af Panka; Dubey he fired at Ur, Prabbat Kumar from 9 mm piste! provided by him. Ext-3 is the seleure list of the articles recovered and seized from possession of Pankaj) Dubey and Ext-4 is the seizure Not of foun trymade pistol loaded with ore S15 car tridge, Nokia mobile with SIM card af Vodafone and parking receipt seized fram Kabir, Crhninal Appeaf {D4} No. SA of A929 With Cstrind Appeal GRY Ne. PERS of SOUR ¥. PW Dr. Vibhakar Kumar, PWS Dr. J. Srinbwas Rao and PWY Dr. Lalan Choudhary were members of the medical team which conducted autepeay over the dead bedy af Dr. Frabhat Kumar. The postmortem report has been rmarked Ext-2 in this case on identification of Dr. Vibhakar Kumar.
8, PWS Dr. Dheeraj Kumar Yadav is a hearsay witness:
PW1O Om Prakash Patra and PWil Atal Chhabra were working in Emergency Department of TMH. They have stated in the Court that r Dr. Prabhat Kumar was HOD ef Emergency Department and he suffered firearm inpury in the evening af 17.12.2009. These witnesses have seen bullet inpury on the person of Dr. Prabhat Kumar who was admitted in ICU at TMH. However, PWIO has stated in the Court that his statement was not recarded by the police and he was declared hostile at the instance of the prosecution, PWIS Krishradeo Rai is a neighbor who has deposed in the Court that in the evening of 17.12.2009 he heard criss of the ife of Dr. Prabhat Kurriar. Ne has sant that he went there and saw Dr. Prabhat Kumar in inpared condition; he was taken to TMH but could met survive. PW14 Suri Kumar Choudhary was working in 4 fay the Technical Cell in the office of Superintendent of Police. He has stated in. the Court that on requisition of the Investigating Officer CDRs of mobile nos. GYOQORIGIQG and S8OSS68G30 and ather phones were retrieved. These documents were marked as EXt-o and 6/1] with objection fram the defence. This witness has admitted In his ecress-examination that there is mo signature over computer printouts of CORs. PWI? Dr. Birendra Kumar Singh and PWLS Md. Razibul Hassan are friends of Or. Prabhat Rurar. PWLY has stated that seven fired cartridges and pellets were scized by the golice in his presence and the police alas collected blood stained mattress, PWIS has however professed his ignerance about the articles seisecl by the police at the house of Dr. Prabhat Kumar.
a, The fate of the accused hangs on the testimony of family members of Or, Prabhat Kumar who are the prime witnesses for prosecution, The younger son of Dr. Prabhat Kumar identified both "aN i the accused in Test Identification Parade and the TYP chart was laid in evidence vide Ext-Y. At this stage, we would mot discuss ' Sone & S = ow Ses $ i a @ cto & , ws We . ~ , cae ju ad a :
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Sy 8 Deer oe Mae et Gi "ESS OS. Ree OY $
ii) "Afohod, fgbal A. Shaikh vs. Siate af M State of Punjab' and " "Raut vs. State', LS. Mr. Sameer Saurabh, the learned counsel for Kabir has coritendsd thal the informant is the «aniy person who had interaction with Kabir but he has not identified him in the dock and this alone is a sufficient reason to hold that Kabir was not invelverd in murder of Dr. Prabhat Kumar. The learned counsel has reac cut relevant paragraphs of the fudgments in G) "Mohd. Sejfeact EIT ARI NER RAEN UE MR INR BAR AR ARNE OARS ORR SERA SN rey Ores ft XP OPPS pees ae Flies Bean. oP, we Bee ce we SNR ey Foe aS ps. State of WoBO tip "Jayendra Vishau PTRhekur ps. State of Kf are gn ney SS S3y Ww PBS Re. * ~ SS ga Jos teppei Gi give Reese Maharashtra' fin} "Bac Pastuan vs. Birke Malykar®?* tiv) "Nomal of Jharkhand Pe Test identiioation 16, The identifcahton of the perpetratmr of a crime is often the only issue needs to be determined in @ criminal trial, "A vs. Donrnint?'' held that the issue of identification is one for the Court to decide as a question of fact. Phipson has stated that "it is offen important ta establish the identity of a person who a witness testifies that he saw on a relevant occasion. Sometimes, the witness will testify that he had seen the person before, or even Isriaw the persan well and therefore recogrized the person observed on the relevant accasion™*.
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ao. The appellants, as they sav, were picked up by the police an 17 /18.01.2010 and this made headlines in the fecal newspapers. The father of Pankal Dubey lodged a complaint on 20.01.2010 in the office of the Superintendent of Police alleging Ulegal detention of his son. The father of Kabir also lodged a Torgd and ' BRD oversee eles af lide mee FRR gedeeagens complaint at Sakchi PS about missing of his son. The story He Criminal Appeal (38) No, SB of WIS Wish Sleunisal Suuval GB? Na, TIVE of BOL published in the newspaper indicates that in view of recent spate of erimes in the caty few criminals were called by the police in the pohee station are the appellants were among those criminals. The appellants were mot detained in connection te the present case and belure they suffered disclawure statements before PWO and PW4 their Involvement in the murder of Dr. Prabhat Kumar was not krionwn ta the police, It was brought ont in the prosecution evidence that phetographs of the appellants were published in the newspaper but wher and under what circumstances or referenos thei photographs were published in the newspaper are not known ~ those newspaper reports are mot on record. Ashish Vaishnay has denied the suggestion from the defence that he had SOCTE photograph of Pankay Dubey in the newspaper before he identified ow himin TIP. He has frmiy held his grounds and said that x Re cicd not know the accused before the oecurrence nor had he ever seen him tedore. He has also denied the sus that the accused were shawn te him in the police station. From the cross-exarmination of Ashish Vaishnav, we gather that the defence took a stand chuirine the trial that Test Identification Parade was arranged in such a manner as to make identification af the ancused caster for him. The TYP chart which was laid in evidence vide Ext-? does not indicates height, face and somplexion of the persens who were mixed up with the accused, but no suggestion was pul te the investigating afficer and the Magistrate who conducted the test mientifcation on MO Si. Panik} Pavey and Kabir were arrested on 25.01.28 cen TS.09 2010. There was delay in holding TIP but what we need to keep in mind is that the family members of Uh. Prabhat Kurar had mo animosity with the accused and s sot. would not falsely invalve any inmiecert person far murder of his father. The evidence of PWIS who cencducted TIP is a strong corroborative piece of evidence and the defence, except giving suggestions to the witnesses, could not paint cut any serious Haw in TYP so as to discard this piece of evidence. In "hal Singh us, State of UP? the Hon'ble Supreme Court has held that no time frame os i ot beoee oe bed Low ot ad ' i.
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Urkukel Appest PB} er, SA of BATS With Rina Agger PNY Boe. TRIS of QR witnesses in a routine manner.
Dock Identification
26. The identification evidence may be compelling but many times inherently fragile. Mason, J. has said that identviication is notoriously uncertain!' When a witness identifies the accused in the Court for the first Hme and that ton after a long time the probative value of such evidence is diminished and therefore it is cansidered not safe to rely on such 2 plece af evidence. The necessity of a prior test identification to corroborate entification af an unknown accused in the Court is, however, a rule of prudence and net an absolute rule. In * Pap us. The Queen*!* the Privy Council has held that even in absence of a prior identification parade a dock identificat on is admissible. Lord Rodger af Earisferry who delivered the advice of the Board has . observed that: #0... . (The Judge} should have gone an fe warn the Jury af the dangers of identification without ; X parade ard should have explained to them the potential advan rage: OF an inconclusive parade te a defendant". Lard Rodger of Rarisierry has further observed that the Judge should have explained te the Jhury that this kind of evidence was undesirable in primeiple and the Gury was require fo approach such evidence with great care.
we, Mar good reasons, there are fudicially evolved exce PONS to the general rule that conviction 'should not be based on the Dasis af identification ofan unknown accused by a witness for the first time in the Court. W Here t the witriees had a chance ta interact with the accused er an opportunity to observe distinctive features of the accused and the deck identification class not suffer fram inherent improkability ar any inconsistency then identification of an accused for the first time In the Court can be aceepted even OPES i without corroboration. In "Medo us. The Queen the Privy Council has held that admission of dock ident ication evidence cannot be limited to the most exceptional circumstan mes; and that a trial Judge has always te consider whether the admission of such testimony maight inyperil a fair trial, particuarly where if was the 2 PPO Fy Fare rE we Sea oy (iGSTP IIS CLS 895 at 438 5 PS rye a ped ons t is ~ 4: 4¢ Be 2 8 Bx bd woo me ten es won, SF ree Sens me qed, ys tf nm noe pond ann eed et - Z tae and, at ewe "gem Se ; ree I sheet 3 rh of " + vy ws as ey OY seo . Sw Sob sae tend oa oF io wey & u > @ 2% Ss a : ted om, a ne vo veo tet oS a 'ae ee ga ' Sud fy , ns wee , £65 co % wheat on fon Eee oot wy Gt ae ore oh we reves * Sus 2% aot ped y ay ~~ Y ee ot oa LA peed ve = we at ee ad nn | OB my i tock a ded re hee oe MES we 'eit pet gS a fs, fn . . we ped, : ved ort ' a ott Sed, ' acl shed, het bie we QS aes rae 2H bes £5 By tee "iw & wd feet va food, wwe ee * wipes ~ we ad ooo wei , vm we tg vont, ah oe gene 3 Pa Ma * rean = & ts fee * " fj fk cael 'et oe , ~ LA Le tok ae fo oe Le en ve seed : Ne! Sat "ss a. " 'eet mn, tnd fod, reed id a B on Lo ? beet 'net om 'et % zB Peal na veiw, "ee ig we anh re ke a tee oes * DM Me , Sew x s te fot Lf Nt rd we %, get ot wn a ny wet ty vey e % mn pot ad re os e e ow : pa ea Bo +B a ; ~ x OB ae CG Lae my O bat wor By os ret ay 43 ns QP "hed 4 Be LG yan "head dent wed aed 7 ot oes os Yio ye tens we We Te, ; gee we eed, ane, 4 "epee pod, wens, "adh a ny on a anon, pat os a o , att ve us Ane om f ayn Liaw 's yt ae ~. he to re = ke 'ee he o Mee eo ms me Ly soe cS owe, nen mm aS ao "anes Y 3 vot Naot amend, Ne et os x ae oon mn ~ ' ay fh 4 4 xo mm va 5 oo 'te? fy ao wit ns 'one, x " S Sees: Band " mm % ™ oo or wi rg OS and . ad "heel bog a te vee ry Ay 'ev "het Nn? ws 'ded! mn 3 Z vgnet , ms , bee ' nec . shee! fend pet AY wy fae & : oy 63 ¥ 0% an woes ? % " --
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ot oa ae tft rey whe tA tom 'aoa Sarees agen s, f whew! gy thd "s 7 tepsinal Aiea (RG) Ra. &3 af SOLS PU Criminal Appest (D8) Na, 1228S af BOIS anyane, Si. Based on these statements, a plea is set mp by the defence that itis highly improbable that no other person has seen the accused firing at Dr. Prabhat Kiumar or even flee ning away fram his house. We gather from the prosecution evidence that the attack ef Dr. Prabhat Kumar was so sudden and swift that before the ssighbors could gather there the accused had fled aw: ay. The firing twok place inside the campus of his house and Ashish Vaishnay has seen firing marks on the doors and the wall, ars the police has seized empty cartridges from the house. The defence has challenged Ashish Vaishnav in the trial sugpesting that at the uistance of the police he has giver: false evidence. He has admitted in Ris crose-examination that the Sub Inepecter of Police D. WN. slatemert, however, cannot be construed fo mean that he has terdered tutared evidence. That was just an information giver to him about the date for his evidence in the Court. Sir mularily, his Statement that he was brought to the Court by the Sub Inspector of Police is not a circumstance to. doubt his testimony as the tutored one. It has corne on record that the family members of Dr. Prabhat Kurnar were provided police protection and that was the reason the police brought him to the Court, Sa. The learned Senior counsel appearing for Pankal Dhuibey has contended that Ashish Vaishnav is not an evewilresss as he Was not consistent in his examination in the Court, rather he was wavering in his eross-exarnination. We, Rowever, do not sce any miaterial departure in the cross-sxamination of Ashish Vaishnav.
yy vt The oross-examination of Ashish Vaishray is spread aver 64 CA paragraphs which contain his response toa more than 200 questions. Gme thing which umediately comes to mind on reading his testimony is that the questions Hke G) whether he saw the accused fy) whether he saw Kabir carrying firearm GH) whether Parikal Dubey was carrying any firearm ete. were repeatedly put to him by the defence in two days of intense cross-examination, Ashish Vaishnav was deposing in the Court more than two years i sek ed sey ys syeged enyrengy fey Sheen versa eee ye en Ne atic ON after his father was shot dead and even to the wagering questions x is Crimiasf Ayyeid LOB: Re. €S ef BQN With Crasing Apnea COR) Ne. TERS of BQUR from the defence ~ such as, whether he can recollect face of the
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pahienis who came to the clinic of his father ~ he was unshaken arid wend stick to his stand that he has seen both the accused in the evening of 17.12.2009, one coming out from his house with the ristl in his hand and the other one was starting motoroyele oulside his house. The minor incorsiatencies in his testimony are on account of the defence repeatedly to huim = similar ~ questions differently worded. Section 146 of the Indian Evidence Act provides that a witness may be asked any questions which bevy fend to test his verac This provision has been considerably abused in India and even in WK. The trial Judges are helpleas to an extent ard if is only when questioning of a witness tends te injure his character the trial Judge may disallow a questien. Had the deposition of Ashish Vaishnay beer recorded in question-answer format any deubt over the testimony of Ashish Vaishnav would have been immediately clarified.
33. The wife of Dr. Prabhat Kumar has clairned in the Court that she can klentily the acmused who were responsible for murder of her husband and this piece of eviclence needs to be accepted as the defences did not abject to her claim. The effect of this in law is that Anamika is deemed to have identified the appellants as the persans who came to her howse, made inquiry abeut consultation found them fleeing away from her house with pistol in their hand.
At the time when her testimany was recorded in the Court the a 7 accused were not in the dock. The procee: ding dated OF 05.2015 records that they were represented through their counsels who dic not raise objection to her clam that she can identify both the accused, She is educated with Master's Degree and her response in the cross-examination was quite consistent. Unlike Ashish Vaishnav, mot even a suggestion was giver to her that she has given tutored evidence. The defence has tested her credibility in an intense crass-examination agam by putting similar questions repeatediy but her eviderce exudes confidence and clarity, We sce no reason ta disbeleve the testimony of a widow, who had recently lost her husband.
} S Urhaival Anmest (OEs No, 83 of 2019 Wib Craniud Apgeal GR} Ne. ESS3 af GS oe, Rois contended that there is disere spanoy in the testimony of Ashish Vaishnav and his mather to the extent that Ashish Vaishnay has stated that when he reached near home one .
bay Was Starting motoreyele while the other carne running out of his house. None of the witnesses Has seen actual firing at Or, Prabhat Kumar and by the time Anamika and Shiv Saurabh came outat the pvaranda the accused had alrnady started fleeing away. if might have so happened that one of the appellants ran fast and by the time Ashish Vaishnav could see him he was alrea iy engaged in starting the motoreycle. The other accused had followed him immediately and that is how Ashish Vaishnay has described the incident. We would, however: refrain fram entering inte speculation and accept the eviderice of these witnesses as it stands. Even then, we de nat find such iacrepancy in the evidence of Ashish Vaishnav which cannot be reconciled with testimor my of other witness. There are questions put to them re parding Row Or. Prabhat Kumar was taken to TMH and who acc cmparied him to TMM and, of course, there is some discrepancy in their evidence as regards transfer af Dr. Prabhat Kumar to TMH. but such discrepancy may occur in evidence of Avo or more wittesses ever though they were present at the Hme of occurrence. What is v5 umportant is that they have identified the appellants in dock and Ashish Vaishnay has identified them in TIP alss. Nothin iP Hiare 1s required to establish curnplicity of the appellants in the crime.
38. The learned Senier counsel has cantended that motive for murder of Dr. Prabhat Kumar was riot proved and omissions in the statements of the witnesses made before the pohes wou retider Ashish Vaishnav and his mother unreliable wimesses, The imvestigating officer has admitted in his cress-examination that Ashish Vaishnav did not inferm him that 3-4 days prior to the accurrence Pankaj Dubey had come to his house and made inquiries. He has further stated that he never told him that he saw the accused in the house or starting the motorcycle. The investigating officer has also admitted that the wife of Dr. Prabhat Kumar did not disclose during the investigation that her yournger x som hac seen the accused and identified then nm, ard that her 2 G Cstmin Apgpaat OM Ba. BR of GLY Wich Criminal Appeat (Oi Ho, 1823 «f BUTS busband was killed because he was protesting againat attack on a fellow docter and had demanded arrest of Par kay Dubey. We fine that even ignoring this part of their evidence what remains on record is suilicient te hold that they : chable witnesses, 3G. The eredibiity and trustworthiness of a witiess are examined on the anvil of broad probabilities and normal human conduct Every witriess cannot tender graphic description of all the events that happened on the fates uoday/nisht. The minor iconsistency in the evidence of a prosecution witness may appear due to error of observation, lapse af time, loss of memory or mental pon.
oh disposition at the time when his deposition is recorded in the Court. A line has to be drawn between a we syiddenee and inherently weak evidence. A piece of evidence may not by itself be sulficient ta prove guilt of an ack CUS ser] but when iis supported by ather independent evidence, such weak evidence becomes the main plank for fhe prosecution - for example, last eviderice. "Nos identification of the accused in TIP or ir .
for the first time by a bystander, neighbor anc passer inherently weak plece of evidence but identification of the accused by a close relative like son and wife of the victim: who have seen the ancused would net he inherently weak unless special nircumstances are shown to the Court to disbelieve them.
af. In "Moke vs. State of HaryanaS§ the Hon'ble Supreme . Court has held as under:
rothter
3 x PPO ECM. IEE PREP EY MECHSE 3s. The prosecution has projected the infermant as an eyewitness, The gist of the evidence of Shiv Saurabh is that twe persans aged bebveen 235-385 years came fo his house around O48 BM and inquired about his father. Ne asked them to wait til! 06:00 PM and went inside the house. After same time he heard sound of fring so he came out amd then saw his father lying on Jhuia drenched in blood. Sut at the same time he has also stated that photograph of Pankaj Dubey was published in the newspaper Supine {LYFE Ss SOO 26s i ;
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fardbeyan of Shiv Saurabh was recarded by the paling nobedy ao + knew that the appellants were invelved in murder ef Dr. Prabhat lsumar. After he suffered firearm infuries Dr. Prabhat Kumar was rushed to TMH but he died sean after he was admitted in 1U -- cb urdheyan of Shiv Saurabh was recorded around US:15 PM at PMH.4
'ase, re The narration of the occurrence given by the informant in the fardbeyarn was truc picture of the incident. He was the one who first attended the appellants when they visited his house pretending Uhemselves as patients. He had interacted with them and asked them ta wait for his father wha would come to the clinic at 0:00 BM. The presence of Shiv Saurabh in his house in the fateful evening is not challenged by the defence and far whatever reasons Shiv Saurabh has made the statements which were intended to help the accused, the defence could net overcame Rim completely,
43. The statement of Shiv Saurabh that he could identify Pankaj Dubey because his pho tograph was published in the hewspaper would not mean that he is not an eyewitness and that Lhe primary source of his identification was phat ograph published in, the resvapaper. The true import af the statement of Shiv sauraoh in paragraph no. 6 of his examination-incchief is that alter photagraphs of the accused were s published in the newspaper he could know identity of the accused whom he had seen fleeing away from his house immediately after firing toak olace. Ar unportant facet of testimony of Shiv Saurabh js that he Ras comlirmed presence of his mother and the brother when his father x was Shot by the appellants. He has stated that his younger brother SRLS Ashish Vaishnav wha was returtimg after taking tuition id aUiied the accused and his mather had aise seen ther.eo Criminal dppeal (No. 83 af 218
With Urhnivel Apmal (AB) Be PS83 of BO}
43. in "ferrell Neilly vs. The Queen? it has been held by the Privy Ceramcil that the decision whether to admit dock identification evidence is one for the trial Judge, te be exercised in the light of all the relevarit sarcumstances, Tf was one evening in the month of December, at about O6:00-06.15 PM, when the acoused were found running away from the house af Dr. Prabhat Kumar, The house was well It and arcording to Ashish Vaishnay there was an «electric larmp post near the main-gate of the houses. We observe that the defence did not seriously challenge the dock identification of the accused by the witnesses in the trial, rather the defence was trying to harp on technical objections. 4a, Pankaj Thubey has challenged his identification on the ground that he is a tall and fair complexioned person whereas in the fardbeycan the ivforrnant has given descripuicn of the accused which is in sharp contrast to his physical features 4S. The Court woukil act upon testimony of a witness terdered only in the Court but tis statement recarded under section TGi of the Code of Criminal precedure can be looked intc m the aid of trial, The renords produced before us centuin case dairy and statement of the witnesses recorded uriuier section 161 of the Code of Criminal Procedure. The learned tral Judge has observed that in their stalements befmre ths investigating officer the witnesses identified the two accused with their complexion arid height. They stated before the investigating officer that one of the two accusesl 'a wes tall and wheatish commplexionad and the other one was of average Height and dark corplexioricd. A person can be identiied by his height, body gait, complexion and other physical features. A person can alsa be identified by his distinctive voice and a particular bodily movement, but perception of a witness as regards complexion and beight of an accused may differ from person to person. The eyewitnesses who have giver description of the acmused to the investigating officer recorded their statements on the same right of the occurrence. By that time identity of the assauants was not kriaewn to arvone and, therefore, there is no doubt that statement of the witnesses was correctly recorded under BATS URRC Te at Csimingd Appoad (D8) Bo. 82 of G18 Wak Criminal Appeal (D8) No, URIS of BULS y sectiam JO of the Code of Criminal Procedure and it was riot manipulated to match with true description of the unknown assailants, PW1S who conducted TIP has deposed in the Court that there were about SQ persons lined up with the accused and they were correctly identified by Ashish Vaishnav. We are fulby satisfied that identification of the appellants by the witnesses in the Court does not suffer from any infirmity and if is strengthened further by their ulentification in TIP. The case set up by the appellants thet they were falsely implicated in this case and the prosecution witnesses have fendered evidence at the instance of the police have mo substance,
46. The yadgments relied upen by the learned counsels for the appellants do not come in aid to them. In "Moh. Sajiad™® wife af the missihe person expressed suspicion agsinst Mohd. Satiad and others. They were put on TIP and the witnesses identified them. The testimony of the Metrepolitan Magistrate that in TIP witnesses identified both the accused while one could identify - Mohd. Sajjad only was reed upen by the prosecution. The Hon'ble Supreme Court held that the accused cannot be convicted an the wasis of identification of the accused only on suspicion. In "Viiayar the witness who identified the accused for the frst time in the Court claimed that he had seen the accused. If was also brought on record and admitied by the witness that photograph of the accused was published in all local newspapers. "Viiayan'* was therefore a case different on facts. In "Saif the witnesses admitted im the Court that they saw photographs of the accused and had read their mames in the newspaper prier ta Test Identification Parade. The High Court did not believe evidence of the witnesses and the view taken by the High Court acguitting the accused was not interfered with by the Hon'ble Supreme Court.
Confession, Motive and FSL Report a The confessional statement of Fankal Dubey was recorded by PWS soon after he was apprehended near G. Town Chub and PWe has taken confessional statement of Rabir nearly the same tine. The confessional statements of Pan ker Dubey and Kabir were proved by PWS and PW4 during the trial and these eam MROT HH HE ONE NN % Ly 2 2 raed ' ss oe £4 ta " wee a eed .
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may be y gore te sonately | befor & faking ends as to Ae a person PECLCES UFE a given CR Si. Phe plea set up by the accused is that the reports of Sonn pistel ard fred shells do not couchusively establish that Dr, Prabhat Kumar was shot dead by fring from seized | pistol bearing mumber 1120.
52. PWS was confronted with the seisure Het and he has admitted that 9 mm pistol seized from Pankal Dubey was an automatic pistol made in Rsly and the sealed firearm which was produced in the Court and marked as Mate rial FExt-l bears number 1120, He has stated that he was unable ts remember whether any special mark of identification was put on o rum pistel which was sent for PSL examination. He has further admitted that there can be many pistols of the kind seized { from Pankaj Dubey and, mare umportantly, he admitted that the RSL report in Bistupur PS case no. 20 of S010 was in respect af aut omatic pistol hearing rumber x Pi?O. He has further admitted in his crass. examination that (he cabnar remember whether he recovered automatic pistol bearing \ number 11?7O-from the passessian af Pankaj Dubey in any other x 3 ~ vase (i) length and width of firearm was n kat recorded im the seizure Hat Gh) the first page of the seizure st was not s signed by him or the accused (iv) PS case number was hot mentioned in the seizure Ust, and (} witnesses whos signed the seizure lets were 4 ot frorn the adjoining loc ality rather they were residents af Dhathkidih anc Kadma which are about ane Klemeter away from CG. Town Chgh. PW has alse testified similar facts in the Cent, 5S, There is moa doubt that Dr. Prabhat Kurnar suffered :
homicidal death by Srearm injuries. Dr. Vibhakar Kumar who w: AS & member of the medical team which conducted the postmortern Ras found three en ry wounds and it is the evidence" of the prosecution that four fired shells and three pellete were recovered a aaa a t ren 5 z >» &€ 6» i #2 G@ Be BS ot me rod on es o mw ed we 4 os rd erst rare ~~ 3 o as taf? on Ns 4 Ne Suchet a ren, for Saag? oe 73 vo mw Boge ay ms Go Me ge OO oR me am na oom od Be ves wd oom fm of e ar eS fe ok eg Le Est tet te hs hoe fs fone "3 Sy Ie wt Be Be oe, mS ' ve int po 2 yu Me Mee ae oo ae & re we oe Re We a owt Ge ee OF wae. BE HG 'det an a oy : tee 5 oe ff ben wwe ee wee bee es wie RS vy " we vheet Jew, Nod oda a3 ee) we me on ee " "AOR oh ae fe Ck fb foot oe es Tat foot we re OY ees we mp Me ev Oe at te on 3 rf, we ns <naet wo me = TS Op pe ae ~ ms is gg ad? Ne oye Sadat "ps pe ot fa Tr " iw % ane wa £ rs Pan > * w ee bed, me hope oy tee oo a * % x Py pts tabs, Wan, oa v? dk we reg "Oe 'eet Net AS we OT Jee S be om a4 os, a fod an ee om on pat yee, AOD mm ORS Lana ond a & fone wh ner "db fet Ys Hea wen ce oe Ms, Ce tee ach pat 5 a an 4) ' Son am) ¥ ; agit iN $4 <i rane « ' x " 43 ton . trod anes pred x eh ree Nak oF hs "Ss ", Set " ne rene 2B fy pea twee ne we ae @ Song tte * hee wees ; £3 Sea : te Pres go gE wm we os an | OM co e 5 me 2;
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55. There was tallaoing in an area of 9 om x 8 em over the upper part of right side of chest. In crass-examination, the doctor pee has stated that the pellet which was found during postmertem was sealed ard bears signatures of all the three Doctors who conducted the postmortem; there was mo overwriting but the particulars of cartridge were nat recorded in the Postmortem Report.
56. The rrucroscepic comparison of fired bullets of 9 mm caliber which were marked as Ext-R-1, B-2 and B-3 established that the striation on the surface of bullet mark 'A' were similar to bullets B-1, B-2 and B 3 and on that basis the learned trial Judge has concluded that the bullets marked A-1 and B-1 in Bistupur PS Case No. 376 of 2009 were fired from the firearm recovered from the accused. The learned Trial Judge has further held that the "pistol seized in Bistupur PS Case Noe. 20 of 2010 was 9 mim pistol bearing number 1120 and the PSL report was really in respect oof the said weapon. In the circumstances, we hold that the prosecution has proved the seizures from the appellants and there iS evidence om record ty connect the seized G mm pistol with ST. Mr A K. Kashyap, the learned Senicr counsel has lastly referred to the judgment i in "Rajesh™, In that case the victim himself was a co-accused in another case and his photograph was published in the newspaper. The © syewitn esses who claimed to have witnesses who ac cording to the eyewitnesses were also present at the spot. To discredit the eyewitnesses the defence set up a plea based on FSL report and it was in that context that the Hon'ble Supreme Court has observed that non-examination of the expert witness was fatal for the prosecution. A case on the puintis "State of Rajasthan us, Daud Khan®?') The PSL report in that case was not nonclusive in the sense that the bullet extracted from the badly of the deceased could not definite! y be linked with the recovered weapon bul if was found that the bullet was : rapable of F being : fired from the recovered gun. The Hor'ble Supreme Court has held that eR (2078) 2 SEC SOP Ne af inat Appedd (Oi; Ra. $3 of 2029 Wh.
vinings Appest (RY Ha, LVS of RUS there was no doubt both from the medical and the ocular evidence that Daud Khan has shat with a gun, SS. Section S73 of the Cade of Criminal Procedure provides an opportunity to an accused to defend birnself The provisions mnider section S13 of the Cade af Criminal Procedure are imperative in nature and all the incriminating materials should be put to hirn. The accused has a right to remain silent and his silerice can be considered independent incriminating circumstance in a case. The siand taken by the accused when he was examined under section 313 of the Code of Criminal Procedure cannot ke used against him vy but to fortily his stand the accused is required fo shew possibility a f his defence from th he prosecution eviderice, may be by wry af preponderance of probability. The accused may also lead eviderice in defence but a plea of alibiwithout anything on record cannatl be taken for the first me by the accused when he was called for examination wnder section 213 of the Cade ef Criminal Procedure. In the present case, the examination of the appellants under section J13 was an elaborate proceeding during which the accused were. put all incriminating circumstances appearing from the prosecntion evidence. They have denied every piece of prosecution evidence and claimed that they were arrested on OID and noton 25.01 2010; their mobile phones were Hlegally seized by the police; and claimed that CDRs of the mobile phones recovered from them do not indicate their presence near Bistupur rather the mobile phones WEE forcibly taken out from their possession and kept af Bistupur police station. Pankal Dubey raised a plea of c that in the evering of 19.12.2009 he was in his offf fe at Bishapar and did not vieat the house of Dr. Prabhat Kumar as claimed by the witnesses, A specific plea was raiscd on behalf of Pankaj Dubey that contrary to the description of the accused disclosed by the elder son of Or. Prabhat Kumar at the earliest point in time, he isa tall man about six feet in height and white cormplexioned, Sa. We clo not see any force in the defence set up by the appellants. Their resporise in the examination under section 215 of the s Code of Criminal Procecbure te the incriminating circumstances 37 ot oe . v ot wee Trina Appeal (Ry No. GS af 2919 WER Unlaad Agpeal DPR No. LIL ef BGS put ta them does not probablize their defence that they were falsely implicated in the case.
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0. In "Munish Mubar vs. State of Haryana' *, car of the 4 accused was tuarked at Delhi Airport and it was found there for about three hours on the date of occurrence. The call records of his telephone established that he was present in the vicinity of the place af ocourrence. The Hon'ble Supreme Court has held that it fas the duty of the accused to furnish some explanation in his Statement urcder section S13 of the Code af Criminal Proceclure as under what circumstances his car was parked at Delhi Airport and if remained there for three hours on the date of occurrence, and merely making a bald statement that he was innocent and recoveries had been planted and that ths call records were false and fabricated documents were not ens ugh.
Gi. The burden for prosecution is aniy to establish its case beyond reasonable doubt and "not all doubts® [refer, wet us, Mahabeer Singh'), A derabt must be actual and real, and a reasonable doubt on complicity or innocence of the accused must be shown from the evidence or lack of it. In "State of Punfah us.
32g dagir Singh?" the Hon'ble Supreme Court has observed that the Courts should not reject the evidence, which is ex-facie trustworthy, an the grounds which are fanciful or in the mature of conpecrure, 6&3. In Sessions Trial No. 284 of 23010, the learned Additional Seasions Judge-XHi, Jamshedpur has held as under
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ae wt 2 s & WA 34 Sceissinst Appasi (NB Ne, GF af BIB With Crunkext Appeal GOR} Na. PRSS af BHR evidence in right perspective. The norm al wear and tear in the ao evidence of the prosecution witnesses and stray staternents by them in the crass-cxamunation were xe faded by the learned trial Judge, while holding the accused guilly. We see no grounds to interfere with the judgment im s sessions trial against the appellants.
Aecordingly, we hold that the judgement of conviction of the appellants in Sessions Trink No. 284 of GOUG does noi suller ~ from. any tofirmity im few, i. Criminal Apps! (DE) Ne. 63 af 2019 and Criminal Appeal (DB) No, 1223 of: 2018 are dismissed.
5. A oopy of the judgment shall be sent to the concerned Jail Superintendent, and the Cour: center ed for necessary action. OG, Let the lower Court records be sert the Court monecerned forthwith.
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