Jharkhand High Court
Albert Kujur vs The State Of Jharkhand on 31 July, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No.184 of 2004
(Against the Judgment of conviction dated 18.12.2003 and order of sentence
dated 19.12.2003, passed by the learned Additional Sessions Judge, Fast
Track Court-III, Gumla in S.T. No.129/2003).
1. Albert Kujur, S/o Andherious Kujur
2. Mukti Prakash Minz, S/o Baleshwar Minz
3. Sanjay Bhagat, S/o Ropna Bhagat
All (appellant Nos.1 to 3), residents of Village- Nawagarh, Sahitoli,
P.S.- Raidih, District- Gumla.
4. Karamljit Oraon, S/o Buder Oraon, resident of Morhitoli, P.S.- Raidih,
District- Gumla.
5. Karamchand Oraon @ Guddu, S/o Jatta Oraon, Resident of Garhtoli,
P.S.- Raidih, District- Gumla.
6. Anand Gope, S/o Laldeo Gope, resident of Village- Kapuluga, P.S.-
Raidih, District- Gumla. ... Appellants
Versus
The State of Jharkhand. ... Respondent(s)
Coram: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
For the Appellants No.2 and 3 : Mr. A. K. Chaturvedi, Advocate
Mr. Amit Kumar Choubey, Advocate
For the Appellants No.1, 4 and 6 : Md. Abdul Wahab, Advocate.
For the State : Mr. Sanjay Kumar Pandey No.2,
Additional Public Prosecutor
.....
By Court:- Since the original appellant No.5 (Karamchand Oraon @ Guddu) of the present Criminal Appeal, has died during pendency of the appeal and no application for grant of leave has been filed by the legal heirs or the relatives within 30 days of death of Karamchand Oraon @ Guddu under Section 394 Cr.P.C., as such, Criminal Appeal preferred by the original appellant No.5 stands abated.
2. Heard, learned counsel for the appellants, Mr. A. K. Chaturvedi assisted by Mr. Amit Kumar Choubey, Advocates appearing for the appellants No.2 & 3, and Md. Abdul Wahab, learned counsel for the appellants no.1, 4 & 6 and Mr. Sanjay Kumar Pandey No. 2, learned Additional Public Prosecutor, appearing for the State.
3. The instant Criminal appeal is directed against the judgment of conviction dated 18.12.2003 and order of sentence dated 19.12.2003, passed by the learned Additional Sessions Judge, Fast Track Court-III, Gumla, in S. T. No.129 of 2003 (arising out of Raidih P. S. Case No. 34 of 2002, corresponding to G. R. No. 678 of 2002), whereby the appellants, Albert Kujur, Mukti Prakash Minz, Sanjay Bhagat, Karamjit Oraon and Karamchand Oraon @ Guddu (now dead) have been convicted by the learned trial court for the offence committed and punishable under Section 395 of the Indian Penal Code and awarded rigorous imprisonment for five years and fine of Rs.1000/- each and in default of payment of fine, to undergo further rigorous imprisonment for six months each.
-2- [Cr. Appeal (SJ) No.184 of 2004] Appellant, Anand Gope has been convicted by the learned trial court for the offence committed and punishable under Sections 395 and 412 of the Indian Penal Code and awarded rigorous imprisonment for five years separately under each heading and fine of Rs.1000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months. Both the sentences of convict, Anand Gope are directed to run concurrently.
4. The prosecution case is based upon the written report submitted by the informant, Braj Singh (P.W.-8), recorded by Sub Inspector of Police, S.N. Prasad, Officer In-charge, Raidih Police Station, on 10.11.2002 at 22.45 hours, near the residence of the informant, Braj Singh. It is alleged by Braj Singh, informant of the case, that after taking dinner, he was sitting near the fire, when co-villager, Kailash Singh asked by raising voice to give one cigarette, upon which he said, that he will not open the door in the night, then one unknown person threatened the informant from outside of the house and asked him to open the door by abusing him. On threatening, the informant opened the door. Thereafter, accused persons entered into the house. The description of the accused persons were given by the informant, as accused were in the age- group of 23-28 years, armed with deadly weapons like bhuzali, Air gun etc. it is alleged, that after entering into the house, one of the accused persons caught hold the informant and demanded money and thereafter the informant was taken inside the shop, whereby seven pieces of five rupees note, eight pieces of ten rupees note and some coins, amounting to Rs.315/- and some biscuits, Doctors soaps, Ashoka soaps and also some other articles have been taken. The accused persons have also demanded the key of the newly purchased Super Moped Motorcycle, which was handed over by the informant under fear and thereafter all the accused persons fled away. In the way, it was found, that the said moped was not functioning, so they dragged the moped towards the river. The informant has assessed the property looted worth Rupees twenty four thousand five hundred. The informant has claimed, that he can identify the accused persons on seeing them. The informant has further stated, that co- villager Kailash Singh was threatened by the accused persons for opening the door.
5. On the basis of written report of the informant, the police instituted First Information Report bearing Raidih P. S. Case No. 34 of 2002 dated 11.11.2002, under Section 395 of the Indian Penal Code against unknown accused persons.
6. After investigation, the Police submitted charge-sheet vide No.3 of 2003, dated 23.02.2003, under sections 395 / 412 of the Indian Penal Code against all the
-3- [Cr. Appeal (SJ) No.184 of 2004] six accused persons.
7. The cognizance of the offence has been taken vide order dated 20.03.2003 and the case has been committed to the court of sessions vide order dated 02.04.2003.
8. The charge has been framed against all the accused persons under section 395 of the Indian Penal Code and against the appellant/accused, Anand Gope also under Section 412 of the Indian Penal Code, on 02.08.2003, to which the appellants/accused pleaded their innocence and thus, they were put under trial.
9. The prosecution has examined altogether thirteen witnesses apart from documentary evidences to prove the case beyond all reasonable doubt against appellants.
10. Dhiraj Singh, bother of the informant, has been examined as P.W.1, Daundi Devi, mother of the informant, has been examined as P.W.2, Smt. Saraswati Devi, wife of the informant, has been examined as P.W.3, Laxmi Narayan Sahu, a co-villager, has been examined as P.W.4, Keshri Singh,a co- villager, has been examined P.W.5, Smt. Leelawati Singh has been examined as P.W.6, Kailash Singh, a co-villager, has been examined as P.W.7, Braj Singh, informant of the case, has been examined as P. W.8, Prabhu Singh has been examined as P.W.9, Budhnath Singh, a seizure witness, who has proved the seizure list of moped motorcycle, has been examined as P.W.10, Samat Singh, another seizure witness, who has proved the seizure list has been examined as P.W.11, Shivnath Prasad, investigating officer of the case, has been examined as P.W.12 and Aashif Eqbal, learned Judicial Magistrate has been examined as P.W.13.
Signature of Dhiraj Singh (P.W.1) on the fardbeyan, has been proved and marked as Exhibit-1, Photocopy of the owner book, insurance paper and sale letter of Moped have been marked as X to X/2 for identification, signature of Budhnath Singh ( P.W.10), on the seizure list, has been proved and marked as Exhibit-2, signature of Samat Singh (P.W.11), on the seizure list, has been proved and marked as Exhibit- 2/1, fardbeyan of the informant has been proved and marked as Exhibit-3, Formal First Information Report has been proved and marked as Exhibit-4, confessional statements of all the six accused persons have been proved and marked as Exhibits- 5 to 5/5, search and seizure list of Air gun and its cartridge, Air Pistols and Khukhri have been proved and marked as Exhibit-6, seizure list of new Blue colour T.V.S. Moped Motorcycle has been proved and marked as Exhibit-7, Aasif Eqbal, learned Judicial Magistrate, who has conducted the Test Identification Parade (T.I.P.) of the accused/ appellants, has proved the T.I.P. Chart and the same has been
-4- [Cr. Appeal (SJ) No.184 of 2004] marked as Exhibit-8.
11. After closure of the prosecution evidence, appellants' statement have been recorded under section 313 Cr. P.C, on 08.12.2003, to which the appellants have denied the allegations and the evidence levelled against them. The defence has not examined any witness nor adduced any documentary evidence.
12. After hearing the learned counsel for the parties and perusing the record, the learned trial court has convicted all the accused/appellants, under Section 395 I.P.C. and accused/appellant, Anand Gope has also been convicted under Section 412 I.P.C. by the impugned judgment of conviction and order of sentence.
Being aggrieved by and dissatisfied with the impugned judgment of conviction and order of sentence passed in Sessions Trial No.129 of 2003, the present Criminal Appeal has been preferred before this Hon'ble Court, assailing the impugned judgment of conviction and order of sentence.
13. During pendency of the appeal, one of the appellants, Karamchand Oraon @ Guddu (original appellant No.5) has died and his Criminal appeal stood abated, as no application, under Section, 394 Cr.P.C., for grant of leave has been filed by the relative or the legal heirs within 30 days of death of the original appellant no.5. Accordingly, the present Criminal appeal is pending so far the rest five appellants, namely, Albert Kujur (appellant No.1), Mukti Prakash Minj (appellant No.2), Sanjay Bhagat (appellant No.3), Karamjit Oraon (appellant No.4) and Anand Gope (appellant No.6) are concerned.
14. Learned counsel for the appellants, Mr. A. K. Chaturvedi assisted by Mr. Amit Kumar Choubey, Advocate (appearing for the original appellant Nos.2 and
3) and Md. Abdul Wahab, learned counsel for the appellants (appearing for the appellant Nos.1, 4 and 6) have jointly submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsels for the appellants have submitted, that the learned trial court has passed the impugned judgment of conviction and order of sentence against the material available on record.
15. Mr. A. K. Chaturvedi, learned counsel for the appellants, while referring the evidence as made in Para-3 of examination-in-chief of P.W.8 (informant), has submitted that P.W.8 (informant) has not seen the accused persons, as such, he cannot identify any of the accused persons, though P.W.8 (informant) has claimed to have identified the accused persons in the 'fardbeyan. Learned counsel for the appellants has further submitted, that P.W.8 (informant) in Para- 15 of his cross-examination has admitted that he was asked by the
-5- [Cr. Appeal (SJ) No.184 of 2004] accused persons to put off the torch, but said torch has not been seized by Police nor produced in the Court during trial.
16. Md. Abdul Wahab, learned counsel for the original appellant Nos.1, 4 and 6, has submitted that Test Identification Parade (Exhibit-8) cannot be relied upon as the same is in contravention of Rule 236 of the Jharkhand Police Manual.
17. Learned counsel for the appellants, Mr. A. K. Chaturvedi assisted by Mr. Amit Kumar Choubey, Advocate has further submitted, that there are vital contradictions in the evidence of the prosecution witnesses and except P.W.8 (informant), there is no material against the appellants and the conviction of the appellants, on the basis of the solitary witness cannot be allowed to be sustained, under section 395 of the Indian Penal Code.
18. Mr. Sanjay Kumar Pandey No.2, Learned Additional Public Prosecutor appearing for the State, has submitted, that the impugned judgment of conviction and order of sentence is, well founded, on the basis of the material available on record, as the learned trial Court has passed the impugned judgment of conviction and order of sentence, on the basis of the evidence of the P.W.8 (informant), who has identified these accused persons in Test Identification Parade, which has been marked as Exhibit-8 and the same has been proved by the learnedJudicial Magistrate (P.W.13).
Mr. Sanjay Kumar Pandey No.2, learned Additional Public Prosecutor appearing for the State has further submitted, that the evidence of P. W. 8 (informant), P.W.12 (Investigating Officer-Shiv Nath Prasad) and evidence of P. W.13 (Aasif Eqbal), learned Judicial Magistrate, are consistent to each other and the same is sufficient for holding the conviction under section 395 of the Indian Penal Code and also against convict, Anand Gope also under section 412 IPC.
Learned counsel for the state has further submitted, that except accused/appellant -Anand Gope, all the accused persons were identified in the Court, as such there is no infirmity, as pointed out by Mr. Abdul Wahab, learned counsel appearing for the original appellant Nos.1, 4 and 6 (Albert Kujur, Karamjit Oraon and Anand Gope respectively), nor any of provisions of Rule, 236 of the Jharkhand Police manual has been violated in contravention of the law.
19. Mr. Sanjay Kumar Pandey No.2, learned Addl. Public Prosecutor appearing for the State, in support of his submission, has relied upon a judgment, as reported in 2018 (2) JLJR 1 wherein it has been held under Sections 138 and 146 of the Indian Evidence Act. "If a party wishes to raise
-6- [Cr. Appeal (SJ) No.184 of 2004] any doubt, as regards the correctness of the statement of a witness, said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which was objected to by the other party, as being untrue without this, it is not possible to impeach his credibility. "
Learned counsel for the State, has further submitted that no such question was raised with regard to the sanctity of the Test Identification Parade nor about the commission of the dacoity in the house of the informant, as such, under Sections 138 and 146 of the Indian Evidence Act, the appellants have no right to raise the same at the appellate stage, in view of the aforesaid judgment.
20. Heard, Mr. A. K. Chaturvedi assisted by Mr. Amit Kumar Choubey, learned counsels appearing for the original appellants no. 2 and 3, Md. Abdul Wahab, learned counsel appearing for the original appellants no. 1, 4 and 6 and Learned counsel for the state, Mr. Sanjay Kumar Pandey No.2, learned Additional Public Prosecutor appearing for the State and perused the entire records including the First Information Report, framing of charge, evidence of the 13 prosecution witnesses, Exhibits up to Exhibit-8, statement of appellant recorded under Section 313 Cr.P.C. and the impugned judgment.
From perusal of the record, it appears that P.W.1 (Dhiraj Singh), P.W.2 (Daundi Devi), P.W.3 (Saraswati Devi), P.W.6 (Smt. Leelawati Singh), they all are inmates of the house and they have only adduced evidence, so far commission of decoity in their house is concerned and there is no evidence, which has been adduced against these accused/appellants. So far as evidence of P.W.4 (Laxmi Narayan Sahu), P.W.5 (Keshri Singh) are concerned, they are co-villagers who have been informed by P.W.1 (Dhiraj Singh) about commission of decoity. P.W.7 (Kailash Singh) is the person, who was taken by the accused persons, under threat, for opening the door of the informant, Braj Singh (P.W.8). Prabhu Singh, another co-villager who has also been examined as P.W.9.
All these witnesses i.e. P.W.1 (Dhiraj Singh), P.W.2 (Daundi Devi), P.W.3 (Smt. Saraswati Devi), P.W.4 (Laxmi Narayan Sahu), P.W.5 (Keshari Singh), P.W.6 (Smt. Leelawati Singh), P.W.7 (Kailash Singh), P.W.8 (Braj Singh), P.W.9 (Prabhu Singh) are consistent, so far commission of decoity is concerned, in the house of the informant, Braj Singh (P.W.8). Budhnath Singh (P.W.10) and Samat Singh (P.W.11) are the seizure witnesses, who have proved their signatures, on the seizure list, with respect to recovery of Super Moped Motorcycle, on the confessional statement of the appellant Anand Gope
-7- [Cr. Appeal (SJ) No.184 of 2004] and their signatures have been proved and marked as exhibits 2 and 2/1 respectively and seizure list of the Super Moped Motorcycle has been proved and marked as Exhibit 7.
The defence has cross-examined all these witnesses, but nothing has been elucidated to disbelieve that dacoity has been committed in the house of informant, Braj Singh (P.W.8) and Super Moped Motorcycle has been recovered on the disclosure made by the accused Anand Gope. The evidence of informant (P.W.8-Braj Singh) is complete in corroboration with his fardbeyan, recorded by the police. P.W.8 (informant) has attended Test Identification Parade and as per the statement of P.W.13 (Aasif Eqbal), learned Judicial Magistrate, as stated in Paras 2, 3 and 4 of his examination-in-chief that the informant has rightly identified the accused persons with their roles and P.W.8 (informant) except Anand Gope during Test Identiciation Parade, has subsequently identified all the accused persons in the dock during trial, while examining in the Court. P.W.8 (Braj Singh) has identified the accused, Albert Kujur, who was standing outside the door. Accused, Guddu Oraon caught hold the hand of the informant (P.W.8) and took him inside the shop. Accused, Sanjay Oraon, Mukti Prakash Minj and Karamjit Oraon were standing besides the informant.
The learned counsels for the appellants have further submitted that the informant has not identified any other suspects, as such the submission made by learned counsel for the appellants, Mr. Abdul Wahab, appearing for the original appellant Nos.1, 4 and 6 (Albert Kujur, Karamjit Oraon and Anand Gope respectively) is non-sustainable and there is no contravention of the provisions of Rule, 236 of Jharkhand Police Manual, as submitted by him. The evidence of the informant coupled with the evidence of learned judicial Magistrate, who has been examined as P.W.13, there are sufficient materials against all the accused/appellants who have been convicted- under section 395 of the Indian Penal Code.
So far the evidence of P.W. 12 (Shivnath Prasad), Investigating Officer of the case is concerned, he has also corroborated the evidence of P.W. 8 (informant- Braj Singh) and has also admitted that Test Identification Parade of the accused was conducted in presence of the learned Judicial Magistrate.
Thus, it appears that evidence of P.W.8 (informant- Braj Singh), P.W.12 (Shivnath Singh) and P.W.13 (Aasif Eqbal), learned Judicial Magistrate are sufficient to hold the conviction of the appellants under section 395 and conviction of accused/ appellant, Anand Gope also under section 412 of the Indian Penal Code, as looted Moped has been recovered on disclosure made
-8- [Cr. Appeal (SJ) No.184 of 2004] by him.
21. Accordingly, the Judgment of conviction dated 18.12.2003 and order of sentence dated 19.12.2003, passed by the learned Additional Sessions Judge, Fast Track Court-III, Gumla in S.T. No.129/2003, is hereby upheld and confirmed.
22. The appellants are on bail, thus the bail bonds of the appellants, are hereby cancelled. The appellants are directed to appear before the court below to serve out the rest of the sentence, as awarded by learned trial court. failing which, the learned trial court will take all coercive steps for securing appearance of the accused/appellants, so as to serve out rest of the sentence.
23. The period already undergone by the accused/appellants shall be set off under Section 428 Cr.P.C.
24. Accordingly, the instant Criminal appeal stands dismissed.
25. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi.
Dated 31.07.2018 Sandeep/Jay/-