Jharkhand High Court
Hemant Kumar Jha vs State Of Jharkhand on 13 January, 2016
Author: R.R.Prasad
Bench: R. R. Prasad, R. N. Verma
1
Criminal Appeal (D.B) No.1513 of 2006
with
Criminal Appeal (D.B) No.1296 of 2006
with
Criminal Appeal (D.B) No.1456 of 2006
-------
Against the judgment of conviction dated 19.8.2006 and order of sentence
dated 21.8.2006 passed by the learned Additional Sessions Judge, FTC VII,
Hazaribagh in Sessions Trial No.273 of 2002.
Subhash Kumar Jha @ Munna Jha...Appellant [Cr.App(D.B) No.1513 of 2006]
Hemant Kumar Jha.........................Appellant [Cr.App.(D.B) No.1296 of 2006]
Krishna Kumar Singh @ Babua..... Appellant [Cr.App.(D.B) No.1456 of 2006]
For the Appellants: M/s. Deepak Kumar and Nilesh Kumar
For the State :M/s.Shekhar Sinha,Sanjay Kumar Pandey & Krishna Shankar
P R E S E N T
HON'BLE MR. JUSTICE R. R. PRASAD
HON'BLE MR. JUSTICE R. N. VERMA
By Court: All the aforesaid three appeals arising out of same case were heard
heard together and are being disposed of by this common judgment. The three appellants were put on trial on the accusation of committing dacoity in the State Bank of India, Lapunga Branch and looted away a sum of Rs.4,47,208/- as well as a DBBL gun and ten cartridges and also on the charge of retaining money looted from the Bank. The trial court having found the appellants Krishna Kumar Singh @ Babua and Subhash Kumar Jha @ Munna Jha guilty for the offences punishable under Sections 395, 397 and 412 of the Indian Penal Code and the appellant, Hemant Kumar Jha for the offence punishable under Section 412 of the Indian Penal Code convicted them accordingly, vide judgment dated 19.8.2006 and sentenced both the appellants Krishna Kumar Singh @ Babua and Subhash Kumar Jha @ Munna to undergo imprisonment for life for the offence under Sections 395/412 of the Indian Penal Code and to pay a fine of Rs.5000/- and further to undergo imprisonment for ten years for the offence under Section 397 of the Indian Penal Code and sentenced Hemant Kumar Jha to undergo imprisonment for ten years for the offence under Section 412 of the Indian Penal Code and to pay a fine 2 of Rs.5000/- Both the sentences in case of Krishna Kumar Jha @ Babua and Subhash Kumar Jha @ Munna Jha were ordered to run concurrently.
The case of the prosecution is that on 9.7.1999 at about 11.45 a.m. while the officers and staff of the Bank were engaged in discharging their duties, one unknown person entered into the Bank and told to the Guard, Ramu Lohar (P.W.7) that he has to open an account and hence, is to see the Manager. The Guard signalled him to go to the direction where the Manager sits. Meanwhile, another person entered into the Bank with firearm and fired shot but it did not hit anybody. Meanwhile, both the miscreants started assaulting the Guard and snatched away his DBBL gun. One of the miscreants came to the cash counter and overpowered the Cashier, Surendra Kumar Rajak (P.W.1) and collected entire money and put it in a bag. The said Cashier Surendra Kumar Rajak was taken to strong room on the point of pistol and was asked to open the door. Being fearful, the cashier opened the lock of the grill which was fixed outside of the strong room. Meanwhile, two miscreants with revolver and carbine came and overpowered the Accountant, Prashant Kumar, the informant (P.W.5) and forced him to open the lock of the strong room from where they took a sum of Rs.82,000/- and kept in a bag. Thereafter all the miscreants came out of the Bank and fled away along with miscreants who were keeping watch from outside. It was found that the miscreants had looted Rs.82,000/- from cash-shelf (strong room), a sum of Rs.1,60,000/- from cash counter which had been kept for making payment to the customers and also a sum of Rs.2,05,208/- from cash counter which the customers had deposited. In total a sum of Rs.4,47,208/- was looted away. Apart from it, they also took away DBBL gun and ten cartridges.
On getting information about dacoity being committed in the State Bank of India, Lapunga Branch, Sub-Inspector, Uma Shankar Singh (P.W.16),Officer-in-Charge of Bhadani Nagar Outpost came to the Bank and recorded the Fardbeyan (Ext.3/1) of the informant Prashant Kumar, 3 (P.W.5), who narrated about the incident in the same manner as has been stated above.
On the basis of the Fardbeyan (Ext.3/1), a case was registered against unknown and a formal FIR was drawn. The said Uma Shankar Singh took up the investigation and recorded the statement of the witnesses. Subsequently, the investigation was taken over by Sub- Inspector, Gopal Krishna Yadav (P.W.23). Upon taking over investigation, he collected some information from secret source about the miscreants who could have committed the aforesaid offence. Accordingly, with the permission of the superior officer, he, along with other police personnel Raj Kishore Prasad (P.W.18), Udai Pratap Singh, Narshingh Gautam (P.W.14), Sarwan Kumar Shukla (P.W.19), Abhay Kumar Jha (P.W.22), Prithvi Nath Tiwari (P.W.21), Rama Kant Ram (P.W.20) proceeded in order to lay a raid in the house of suspect Krishna Kumar Singh. In the way near Kali Mandir, one person coming on Suzuki Motor Cycle, was signalled to stop but he instead of stopping, started fleeing away. He was apprehended and on search being made, he was found in possession of loaded country made pistol. The said loaded pistol as well as Suzuki Motor Cycle was seized under seizure list (Ext.9) in presence of the witness Shiv Kumar Verma and Prakash Mandal (P.W.15). He, on being interrogated, confessed his guilt and also disclosed the name of other accused persons, who had participated in the occurrence of looting of the Bank. On getting clue from his confessional statement, the police party laid a raid in the house of Asma Munda from where single barrel gun was recovered which was subject matter of another dacoity. Thereafter laid was raid in the house of Sukra Kujur from where carbine and live cartridges as well as Yamaha Motor Cycle were recovered. At that place, the appellant, Subhash Kumar Jha @ Munna Jha was apprehended, who also confessed his guilt. He in his confession also disclosed that a sum of Rs.50,000/- out of looted money had been given to his brother Hemant Kumar Jha, the appellant. Thereupon the police party upon clue being 4 given by the appellant, Krishna Kumar Singh @ Babua laid a raid in the house of Krishna Kumar Singh from where Rs.60,000/- having seal of the Bank was recovered in presence of witness Shiv Kumar Barua and Prakash Mandal (P.W.15). The said money was seized under seizure list (Ext.4/1). Subsequently, the police party acting on the disclosure made by Subhash Kumar Jha laid a raid on Mangla Lodge, from where looted money of a sum of Rs.8330/- having seal of the Bank was recovered which was seized under seizure list (Ext.7) in presence of the witnesses, Gyan Prakash Ratnesh (P.W.27) and Akhilesh Prasad Sahu (P.W.26), both turned hostile. Again on the basis of clue given by the said appellant, Subhash Kumar Jha, a raid was laid in the house of the appellant, Hemant Kumar Jha, from where a sum of Rs.16,700/- was recovered which was seized under seizure list (Ext.5) in presence of the witnesses, Jai Prakash Oraon (P.W.25) and Sheo Shankar Kumar (P.W.24). Both turned hostile. The Investigating Officer having arrested all the three appellant got them remanded to jail custody. Subsequently, at the instance of the Investigating Officer when aforesaid three appellants were put on trial, they were identified by Ramu Lohar (P.W.7) and Pulu Karmali (P.W.9). Both were declared hostile when they did not identify the appellants in course of their evidences. The money recovered from the possession of the aforesaid three appellants was also put on identification in test identification parade, conducted by Awadhesh Kumar Singh, BDO (not examined). During which course, Bank Manager, Samir Kumar Sinha (P.W.4), the informant, Prashant Kumar (P.W.5) and Surendra Kumar Rajak (P.W.1) did identify the money.
On completion of investigation, police submitted charge sheet against these appellants, upon which cognizance of the offences was taken. When the case was committed to the court of session, the appellants were put on trial, during which the prosecution examined altogether 27 witnesses. Of them, P.W.1, Surendra Kumar Rajak,a Cashier, P.W.2, Malay Kumar Nandi, Sr. Assistant, P.W.5, the informant, 5 Prashant Kumar, Accountant, did testify regarding the manner in which dacoity was committed in their Bank by the miscreants but did not identify the appellants as the persons who had committed dacoity. P.W.4, Samir Kumar Sinha, Branch Manager simply did testify that since he was in his chamber, he had no occasion to see the occurrence and as such, is unable to state about the manner of occurrence. However, he did testify that miscreants on committing dacoity, took away a sum of Rs.4,47,208/-. P.W.7, Ramu Lohar, Guard of the Bank and P.W.9, Pulu Karamali, Chowkidar, who had identified miscreants in course of test identification parade, did not identify the miscreants in course of their evidences and thereby both of them were declared hostile. Similarly, P.Ws. 10, 11, 12 and 13 did not support the case of the prosecution. P.W.14, Narshingh Gautam, P.W.17, Kailash Prasad, P.W.18, Raj Kishore Prasad, P.W.19, Sarwan Kumar Shukla, P.W.20, Ramakant Ram, P.W.21, Prithvi Nath Tiwari, P.W.22, Abhay Kumar Jha and P.W.23, Gopal Krishna Yadav, second Investigating Officer of the case, all members of the raiding party did testify about the factum of the recovery of the money as aforesaid from the possession of the aforesaid three appellants. However, P.W.24, Sheo Shankar Kumar, P.W.25, Jai Prakash Oraon, P.W.26, Akhilesh Prasad Sahu and P.W.27, Gyan Prakash Ratnesh in whose presence money was allegedly recovered, did testify that nothing has been recovered by the police in their presence and thereby all of them were declared hostile.
Thereupon the trial court taking into account the evidences of the Bank officials testifying about the manner in which dacoity was committed and also of the factum that the appellants had been identified by P.Ws.7 and 9 during test identification parade did find the appellants, Krishna Kumar Singh and Subhash Kumar Jha guilty of the offences punishable under Sections 395 and 397 of the Indian Penal Code. Further all the appellants were found guilty of the offences punishable under Section 412 of the Indian Penal Code on account of 6 the fact that money, as per the witness as aforesaid, had been recovered from their possession. Accordingly, the trial court recorded the order of conviction and sentence which is under challenge.
Mr.Deepak Kumar, learned counsel appearing for the appellants, Subhash Kumar Jha and Hemant Kumar Jha and Mr. Nilesh Kumar, learned counsel appearing for the appellant, Krishna Kumar Singh did submit that admittedly none of the witnesses even P.W.7 and P.W.9, who had identified the appellants in test identification parade as the persons who committed dacoity in the Bank, did not identify the appellants in course of their evidences and thereby no evidence was there before the court that it were the appellants who had committed dacoity in the Bank and thereby committed illegality in recording the conviction for the offence punishable under Sections 395 and 397 of the Indian Penal Code.
Further, it was submitted that so far recovery of the money is concerned, same is the situation as during evidence none of the witness including P.Ws. 1, 4 and 5, who had identified the money in course of test identification parade had occasion to identify the money in course of their evidences as the looted money was never produced in the court. Moreover, the money which had been recovered by the Investigating Officer,P.W.23 under seizure list, had never been sealed as per him and that none of the independent witnesses, P.Ws. 24, 25, 26, 27 and 15 in whose presence the money had been recovered have supported the case of the prosecution that the money was recovered from the possession of the appellants and thereby they have been declared hostile, still the trial court recorded the order of conviction for the offence punishable under Section 412 of the Indian Penal Code and thereby committed illegality in recording the order of conviction and sentence.
Heard Mr. Shekhar Sinha, Mr. Sanjay Kumar Pandey and Mr.Krishna Shankar, learned counsel appearing for the State. 7
Having heard leaned counsel appearing for the parties extensively and on perusal of the record, we do find that factum of commission of dacoity in the Bank gets established from the testimonies of P.Ws. 1, 2, 3 and 5. During commission of dacoity, a sum of Rs.4,47,208/- had been looted by the miscreants, who were identified during test identification parade by P.Ws. 7 and 9 but none of the witnesses either officials of the Bank P.Ws.1, 2, 3, 4, 5 or P.Ws.7 and 9 who had identified the appellants during test identification parade, have identified any of the appellants as the persons who committed dacoity. Thus, there does not appear to be any legal evidence against the appellants to the effect that it were the appellants, who had committed dacoity in the Bank and thereby the trial court committed gross error in recording the conviction and sentence against the appellants for the offence punishable under Sections 395 and 397 of the Indian Penal Code.
It would be worth while to mention here that test identification parade as such is not a substantive piece of evidence but it is done only for the satisfaction of the prosecution that the investigation was moving in the right direction.
In this regard Their Lordships in a case of Dhananjay Shanker Shetty vs. State of Maharashtra [(2002) 6 SCC 596] have been pleased to observe as follows:
" The main thrust should be on answer to the question as to whether evidence of an witness in court to the identity of the accused from before is trustworthy or not. In case answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused. But if, however, such an evidence is not free from doubt the same may be relevant material while appreciating the evidence of identification adduced in court. Further it was observed that evidence of identification of an accused in court by witness is substantive evidence whereas that of identification in test identification parade is though a primary evidence but not substantive one and the same can be used only to corroborate identification of the accused by an witness in court.
In this regard it was further held that identification parade are held during the course of investigation 8 ordinarily at the instance of investigating agencies and should be held with reasonable dispatch for the purpose of enabling the witnesses but identify either the property which are the subject matter of alleged offence or the accused persons involved in the offence so as to provide with material to assure itself if the investigation is proceeding on right lines and the persons whom it suspect could have committed an offence were the real culprits. Failure to hold test identification parade does not make the evidence of identification in court admissible, rather the same is very much admissible in law but ordinarily identification of an accused by an witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of an weak character unless it is corroborated by his previous identification in the test identification or any other evidence. The previous identification in the test identification parade is a check value to the evidence of identification in court of an accused by an witness and the same is rule of prudence and not law. However, in exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence can form the basis of conviction."
In view of the proposition laid down it can safely be said that no legal evidence is there against the appellants of committing dacoity in the Bank.
So far recovery of the looted money is concerned, the prosecution by leading evidences of the aforesaid witnesses, who were members of the police party including the Investigating Officer (P.W.23), has been able to show that a sum of Rs.60,000/-, Rs.8330/- and Rs.16,700/- were recovered from the possession of the appellants, Krishna Kumar Singh, Subhash Kumar Jha and Hemant Kumar Jha respectively but in absence of those money being identified in course of the evidence on account of its non-production, it can never be said that the prosecution has been able to establish the factum of recovery of looted money from the possession of the appellants.
In this regard, it be stated that P.Ws. 1, 4 and 5 had identified the money in course of test identification parade but the said money recovered from the possession of the appellants could not be identified as that of looted money on account of its non-production in course of the evidences and in that event, one does find that there has been no 9 legal evidence to the effect that the appellants retained money which had been looted from the Bank. We fail to understand as to why the money which had been recovered was not produced in the court by the Investigating Officer. Responsibility of production of the money was upon him and thereby he can be held responsible for non-production of the money.
Further we do find that as per the evidence of Investigating Officer (P.W.23), the money which had been recovered had never been sealed. In that event, even if the money would have been produced before the court, defence can easily be taken on behalf of the appellants that the money produced before the court could not be the same money which had been recovered from the possession of the appellants.
Thus, on the conspectus of the entire facts and circumstances, we do find that there has been no legal evidence either of the commission of offence under section 395 or 397 against these appellants nor there appears to be any evidence to the effect that the appellants had retained money looted from the Bank and thereby the trial court committed illegality in recording the order of conviction and sentence which is hereby set aside.
In the result, all the appellants are acquitted of the charges. Since the appellant, Subhash Kumar Jha @ Munna Jha has been in custody since long, is directed to be released forthwith if not wanted in any other case.
Thus, all these three appeals stand allowed.
(R.R.Prasad, J.) (R.N.Verma, J.) Jharkhand High Court, Ranch, The 13th January, 2016, NAFR/N.Dev.