Jharkhand High Court
Unknown vs The State Of Jharkhand on 12 July, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 897 of 2003
With
Cr. Appeal (S.J.) No. 1020 of 2003
With
Cr. Appeal (SJ) No. 1041 of 2003
With
Cr. Appeal (SJ) No. 1119 of 2006
With
Cr. Appeal (SJ) No. 999 of 2003
.....
(Against the judgment of conviction dated 25.06.2003 and order of sentence dated 26.06.2003, passed by learned 8th Additional Sessions Judge, Hazaribagh, in S.T. No. 28 of 2000 and also against impugned judgment of conviction dated 17.06.2006 and order of sentence dated 19.06.2006 passed by 1st Additional Sessions Judge, Hazaribagh in S.T. No. 28 (A) of 2000).
Chattu Mahto @ Chotu son of Sewa Mahto, resident of Barkagaon, P.S.- Barkagaon, district- Hazaribagh.
.....Appellant [in Cr. Appeal (SJ) No. 897 of 2003] Charka Sao, son of Bajrang Sao, resident of Kumhartoli, P.S. Sadar, P.O. and District- Hazaribagh.
..... Appellant [in Cr. Appeal (SJ) No. 1020 of 2003] Bhola Ravidas, son of Sri Nageshwar Rabidas resident of Kumhartoli, P.S. Sadar, P.O. and District- Hazaribagh.
..... Appellant [in Cr. Appeal (SJ) No. 1041 of 2003] Jugal Mahto, son of Late Mohar Mahto, resident of village Barkagaon, P.S. Barkagaon, District- Hazaribagh.
..... Appellant [in Cr. Appeal (SJ) No. 1119 of 2006]
1. Bablu Rabidas son of Dhaneshwar Rabidas, resident of Khumar Toli Par Nalla, P.S. Sadar, District- Hazaribag.
2. Mahender Paswan, son of Late Kisun Paswan, resident of village- Keredari, P.S. Keredari, District- Hazaribag.
..... Appellants [in Cr. Appeal (SJ) No. 999 of 2003]
Versus
The State of Jharkhand .... Respondent (in all cases)
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
For the Appellant (s) : Mr. Hemant Shikarwar, Advocate
(Cr. A. (SJ) No. 897 of 2003) (Cr. A. (SJ) No. 999 of 2003)
Mr. Prabhat Kr. Sinha, Advocate
(Cr. A. (SJ) No. 1020 of 2003) (Cr. A. (SJ) No. 1041 of 2003) Mr. Shiv Kr. Singh, Advocate Mr. Arun Kumar, Advocate (Cr. A. (SJ) No. 1119 of 2006) For the State : Mr. Rakesh Kumar, Additional Public Prosecutor
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2By Court:- The instant Criminal Appeals have been preferred against a common judgment of conviction dated 25.06.2003 and order of sentence dated 26.06.2003, passed by learned 8th Additional Sessions Judge, Hazaribagh, in S.T. No. 28 of 2000, whereby the appellants namely Mahender Paswan, Bablu Rabidas, Bhola Rabidas, Charko Sao and Chotu Mahto have been convicted by the learned Trial Court for offence committed and punishable under Section 395 of the Indian Penal Code and awarded rigorous imprisonment for seven years each and Bablu Rabidas and Mahendra Paswan have also been convicted for the offence punishable under Section 412 of the Indian Penal Code and also awarded rigorous imprisonment for five years each, in Sessions Trial No. 28 of 2000, whereas the appellant Jugal Mahto, who has preferred Cr. Appeal (SJ) No. 1119 of 2006 has absconded after recording his statement under Section 313 Cr.P.C., in S.T. No. 28 of 2000 and case has been splited vide S.T. No. 28 (A) of 2000, in which the learned First Additional Sessions Judge, Hazaribag vide order dated 17.06.2006 convicted the appellant, Jugal Mahto for the offence committed and punishable under Section 395 of the Indian Penal Code and awarded rigorous imprisonment for seven years and a fine of Rs. 2000/- vide order of sentence dated 19.06.2006, in default of payment of fine, the appellant, Jugal Mahto will further undergo simple imprisonment for a period of six months. The period already undergone by the appellants are set off under Section 428 Cr.P.C.
2. The prosecution case is based upon the fardbeyan of Dineshwar Sahu (P.W. 5), recorded by S.I. R.S.P. Singh of Muffasil police station, on 07.10.1998 at 22.45 hrs. in chapwa jungle, two and half k.m. north, from the village of the informant, in presence of his son, Arun Sahu and other villagers, where the informant has alleged that on 07.10.1998 he left his tea shop, situated at Demotand Road, for dinner at his house and reached his house about 8.00 p.m., as soon as he reached at the door of his house, four persons already present at his door, caught hold of him and took him in the courtyard of the informant's house itself. The informant saw that two persons have already entered into the house having pistol in the their hands, the two persons have surrounded the informant's wife Toshan Devi (P.W. 6), daughter-in-law Hemanti Devi (P.W. 7) and his grandson SriKant Kumar @ Chhotu, aged about nine years, near the kitchen. All the accused persons asked the informant and his family that "they are party men"
and they are 60-70 in number. They ordered the family to cook food for all of party men 60-70 in number, who will eat in the informant's house. They asked not to fear. Subsequently, the accused persons took the family into the nearby room of the informant's son, Arun Sahu. Out of these accused persons, five were having 3 pistols and one person was having a dagger and by means of these weapons they were threatening the informant side asking them to give all the articles. The informant side became very frightened and understood, that these persons are dacoits. Two of the dacoits gave threatening by pistol and other four took the keys of the cupboard and took out Rs. 3500/- cash, kept by the informant's son and also took golden ornaments from the box and suit case of his daughter-in-law and other article from the informant's room as mentioned in the fardbeyan. The informant has further stated, that after committing the dacoity the accused persons locked the family members of the informant in the room and took the informant for some distance with them towards the North of his village and thereafter left him in the forest threatening to collect Rs. 50,000/- till 15 October otherwise they will cut the neck of the informant and his son. The informant has further stated, that in the meantime, villagers got knowledge of the incident and on brawl started from their house, upon which the accused persons fled towards the North and the informant came running to his house. It is further stated, that Arun Sahu (son of the informant) and police also reached there. The informant has further stated, that he along with his son, Arun Sahu and police party chased the accused persons and two of the accused persons namely Mahendra Paswan and Bablu Rabidas were apprehended by the police, in the forest. On the disclosure of Mahendra Paswan, certain looted ornaments worth Rs. 40,000/- and a double barrel country made pistol were recovered. On the disclosure, other articles along with cash and a loaded country made pistol has been recovered from the accused Bablu Rabidas, from his vest. The informant has further stated, that on the disclosure made by the apprehended accused, name of the rest accused persons figured in the First Information Report.
3. On the basis of the fardbeyan of the informant, Dineshwar Sahu, police registered Sadar Mufassil P.S. Case No. 422 of 1998 under Sections 395 and 412 of the Indian Penal Code and further submitted the chargesheet against all the accused persons vide charge sheet no. 188 of 1998 dated 29.12.1998 under Sections 395 and 412 of the Indian Penal Code.
4. The cognizance of the offence has been taken on 07.01.1999 and case has been committed to the court of Sessions vide order dated 17.01.2000.
The learned Trial Court framed the charge against all the six accused persons under Section 395 and also against Mahendra Paswan and Bablu Rabidas under Section 412 of the Indian Penal Code vide order dated 18.08.2000, to which the appellants have pleaded their innocence and thus they were put under trial.4
5. The prosecution has examined altogether 7 witnesses and also exhibited a number of documents up to Exhibit- 4/1.
Ramchandra Sao, brother of the informant and a hearsay witness, has been examined as P.W. 1, Arun Sao, son of the informant and a hearsay witness, has been examined as P.W. 2, Jairam Prasad, another brother of the informant and a hearsay witness, has been examined as P.W. 3, Damodar Prasad, nephew of the informant and a hearsay witness, has been examined as P.W. 4, Dineshwar Sao, informant of the case, has been examined as P.W. 5, Toshan Devi, wife of the informant, has been examined as P.W. 6 and Hemanti Devi, daughter- in-law of the informant, has been examined as P.W. 7.
Signature of Ramchandra Sao on seizure list has been proved and marked as Exhibit- 1 and signature of Jairam Prasad on seizure list has been proved and marked as Exhibits- 1/1 and 1/2, the signature on the test identification parade, of the looted articles has been proved and marked as Exhibit- 2, the test identification parade of the looted articles has been proved and marked as Exhibit- 3, the signature on the fardbeyan of the informant has been proved and marked as Exhibit- 4, the signature of Arun Sahu on the fardbeyan has been proved and marked as Exhibit- 4/1.
6. After closure of the prosecution evidence, all the appellants except appellant Yugal Mahto were examined under Section 313 Cr.P.C. on 21.04.2003 and Yugal Mahto was examined under Section 313 Cr.P.C. on 02.06.2006. Defence has examined two defence witnesses. Jiwa Sao (D.W. 1) and Dhaneshwar Ram (D.W. 2).
7. On the basis of the material available on record and after hearing the parties, the learned Trial Court has convicted all the appellants under Section 395 of the Indian Penal Code and further Mahendra Pawan and Bablu Rabidas also under Section 412 of the Indian Penal Code by two separate judgments but the evidence against the appellants is common and same, so far all the appellants are concerned. Since Jugal Mahto, who has preferred Cr. Appeal (SJ) No. 1119 of 2006, has absconded, his case has been split up vide order dated 27.03.2003 and subsequently by a separate judgment Jugal Mahto has been convicted under Section 395 of the Indian Penal Code by the learned Trial Court. By judgment of conviction dated 25.06.2003 and order of sentence dated 26.06.2003 passed in Sessions Trial No. 28 of 2000, the learned Trial Court has convicted five persons namely Mahendra Paswan, Bablu Rabidas, Bhola Rabidas, Charka Sao, Chhatu Mahto under Section 395 of the Indian Penal Code and Mahendra Paswan and Bablu Rabidas has further been convicted under Section 412 of the Indian Penal 5 Code, whereas in the case of Jugal Mahto vide S.T. Case No. 28 (A) of 2000 vide judgment of conviction dated 17.06.2006, Jugal Mahto has been convicted under Section 395 of the Indian Penal Code and vide order dated 19.06.2006 Jugal Mahto has been awarded rigorous imprisonment for seven years along with a fine of Rs. 2000/- and in case of default in payment of fine further simple imprisonment for six months.
8. Heard, learned counsel for the appellants, Hemant Shikarwar in Cr. Appeal (SJ) No. 897 of 2003 and Cr. Appeal (SJ) No. 999 of 2003, Prabhat Kr. Sinha in Cr. Appeal (SJ) No. 1020 of 2003 and Cr. Appeal (SJ) No. 1041 of 2003 and Mr. Shiv Kr. Singh assisted by Mr. Arun Kumar, Advocate in Cr. Appeal (SJ) No. 1119 of 2006. Learned counsels for the appellants have submitted, that these five appellants can be categorized in two groups, one, where all the accused persons have been convicted under Section 395 of the Indian Penal Code and another, where Mahendra Paswan and Bablu Rabidas have also further been convicted under Section 412 of the Indian Penal Code. Learned counsels for the appellants have further submitted, that Mahendra Paswan and Bablu Rabidas were caught by the villagers and police, on chase and from their disclosure looted ornaments and cash with double barrel country made loaded pistol have been recovered, from the vest of Mahendra Paswan and looted country made pistol, from the vest of Bablu Rabidas have been recovered. The looted articles from the house of the informant was subsequently placed on test identification parade, the signature on test identification parade of looted articles has been marked Exhibit- 2 and on the basis of identification, which has been marked Exhibit- 3, the conviction of the appellants namely Mahendra Paswan and Bablu Rabidas was passed by the learned Trial Court under Section 412 of the Indian Penal Code.
Learned counsel for the appellant, Mr. Hemant Shikarwar has submitted that Block Development Officer of the Sadar Block has not been examined in this case, who has conducted the test identification of the looted articles nor the Investigating Officer of this case has been examined and on the basis of the seizure which was marked Exhibit 1, 1/1 and 1/2 coupled with the Exhibit- 2 and 3 which are the signature and the test identification parade of the looted articles, the learned Trial Court has convicted these two appellants under Section 412 of the Indian Penal Code also, and as such they have suffered serious prejudice because of the non-examination of the investigating officer and the Block Development Officer.
Learned counsel for the appellant has further submitted that because of non-examination of the investigating officer, he could not draw the 6 attention of this Court that if the appellants Mahendra Paswan and Bablu Rabidas were apprehended on the same date on chase i.e. on 07.10.1998 then why the arrest memo has been issued on 08.10.1998 and as such non-examination of the investigating officer has certainly caused prejudice to the appellants and the appellants have been falsely implicated in this case as Mahendra Paswan was working in the shop of the informant.
9. Learned counsel for the State, Mr. Rakesh Kumar, Additional Public Prosecutor appearing in all the five criminal appeals has submitted that Mahendra Paswan and Bablu Rabidas were caught on the same date, the seizure list was prepared which was duly proved and marked as Exhibit- 1, 1/1, and 1/2. The test identification parade of the looted articles have been marked as Exhibit- 2 and Exhibit- 3. The looted articles were recovered and subsequently these articles were released in favour of the informant after due verification by the learned Trial Court. No application was made by Mahendra Paswan and Bablu Rabidas claiming these articles as their own and as such the case has reached its finality, so far release of the looted article to its lawful owner is concerned. Learned counsel for the State has further submitted that it is a case where the accused persons were apprehended on chase and looted articles were recovered. Since the arrest memo has not been exhibited by the learned Trial Court and as such the submission made by the learned counsel for the applleant appearing for Mahendra Paswan and Bablu Rabidas that accused persons were arrested on 08.09.1998 is meaningless. It may be argued but this point have never been raised in the Trial Court by the appellants and arrest memo has not been marked Exhibit in this case. Learned counsel for the State has further submitted that the impugned judgment of conviction and order of sentence against Bablu Rabidas and Mahendra Paswan has been passed on the material available on record by the learned Trial Court under Sections 395 and 412 of the Indian Penal Code and as such this Court may not interfere in the impugned judgment of conviction and order of sentence passed against Bablu Rabidas and Mahendra Paswan.
10. Learned counsels for the appellants, have submitted, that conviction of the appellants Chattu Mahto, Charka Sao, Bhola Ravidas and Jugal Mahto, under Section 395 of the Indian Penal Code, is on the basis of two material, first that their names have been transpired during the confessional statement of the accused Bablu Rabidas and Mahendra Paswan, before the police, after they were apprehended by the villagers and the police, soon after the commission of the offence, secondly that the identification made by Dineshwar Sao (P.W. 5- informant), Toshan Devi (P.W. 6) and Hemanti Devi (P.W. 7) daughter-in-law of 7 the informant in the dock.
Learned counsels for the appellants have further submitted that, in the evidence of Hemanti Devi (P. W. 7) made in paragraph- 4 of her cross- examination, that on the second day police called her, along with her mother-in- law and father-in-law at police station and allowed them to identify the dacoits. P.W. 7, Hemanti Devi has further stated, that all the accused persons present in the dock, were present at the police station, on that day. Subsequently, she has stated, that a paper was prepared with respect to identification and she along with her father-in-law and mother-in-law have put their signatures on that paper. Learned counsels for the appellants have further submitted, that considering the evidence of Hemanti Devi (P.W. 7) in paragraph 4 of her cross-examination, the test identification of the accused persons at the police station, as admitted by P.W. 7 completely demolished the test identification parade, as the same has lost its sanctity. Learned counsels for the appellants have further submitted, that in the dock, the accused persons have been identified with wrong name and as such, the entire material of identification of the accused, which is the basis of conviction of these four appellants namely Chattu Mahto, Bhola Rabidas, Charka Sao and Jugal Mahto is not sustainable in the eyes of law and they are entitled for the benefit of doubt. Learned counsels for the appellants have further submitted that, so far appellants Mahendra Paswan and Bablu Rabidas, who have also been convicted under Sections 395 and 412 of the Indian Penal Code, are concerned, their case is different from the case of other four appellants. Learned counsels for the appellants have further submitted, that once the benefit of doubt is granted in favour of four appellants, the conviction of Mahendra Paswan and Bhola Rabidas under Section 395 of the Indian Penal Code will not sustain in the eyes of law.
11. Mr. Rakesh Kumar, Additional Public Prosecutor has submitted that from perusal of para- 4 of cross-examination of P.W. 7 Hemanti Devi, it is true that witness (P.W. 7) has deposed before the court, that prosecution parties, Dineshwar Sao (P.W. 5), Toshan Devi (P.W. 6) and Hemanti Devi (P.W. 7) have occasion to see the accused persons in the police station and has further submitted that, as per the deposition of Dineshwar Sao (P.W. 5), he has identified the accused persons with wrong names in the dock during the trial but learned counsel for the State has vehemently argued, so far the case of Mahendra Paswan and Bablu Rabidas is concerned, who have been convicted under Sections 395 and 412 of the Indian Penal Code, by submitting that these accused persons have entered into the house of the informant. If four persons, who have been convicted by the learned Trial Court is acquitted by this Hon'ble Court, on the basis of benefit of doubt, then 8 also the number of persons, who have committed the criminal offences will not reduce to two, rather if these persons are acquitted by giving benefit of doubt and as such, the conviction of the appellants Bablu Rabidas and Mahendra Paswan under Section 395 of the Indian Penal Code is justified and the impugned judgment of conviction and order of sentence passed by the learned Trial Court is based on material available on record. Learned counsel for the State Mr. Rakesh Kumar has further submitted, that this is clear case of Section 412 of the Indian Penal Code has been established against Mahendra Paswan and Bablu Rabidas, from whose possession the looted articles were recovered and those articles were released in favour of the informant after due verification by the learned Trial Court and no application was made by the appellants Mahendra Paswan and Bablu Rabidas claiming these articles as their own and as such the conviction of the appellants Mahendra Paswan and Bablu Rabidas under Section 412 of the Indian Penal Code, passed by the learned Trial Court is justified, on the basis of the material available on record.
12. After hearing the learned counsels for the appellants, Hemant Shikarwar in Cr. Appeal (SJ) No. 897 of 2003 and Cr. Appeal (SJ) No. 999 of 2003, Prabhat Kr. Sinha in Cr. Appeal (SJ) No. 1020 of 2003 and Cr. Appeal (SJ) No. 1041 of 2003 and Mr. Shiv Kr. Singh assisted by Mr. Arun Kumar, Advocates in Cr. Appeal (SJ) No. 1119 of 2006 and learned counsel for the State, Mr. Rakesh Kumar, Additional Public Prosecutor and from perusal of the materials available on record, F.I.R., depositions and seven prosecution witnesses, Exhibits, statements of the accused persons under 313 Cr.P.C. and two defence witnesses on behalf of the appellants and from perusal of the record, it appears that six accused persons have been convicted under Section 395 of the Indian Penal Code but the name of four accused persons namely Chattu Mahto, Bhola Rabidas, Charka Sao and Jugal Mahto (whose case has been splited) figured in this case as accused, on the basis of confessional statement of Mahendra Paswan and Bablu Rabidas. The identification made by prosecution witnesses namely Dineshwar Sao (P.W. 5), Toshan Devi (P.W. 6) and Hemanti Devi (P.W.7) in the Court during trial is demolished from the evidence of P.W. 7, Hemanti Devi in paragraph 4 of her cross-examination, where she has stated that after apprehending the accused persons, the informant side were called at the police station and where all the accused persons present in the dock have been identified by these witnesses at the police station itself and furthermore, from the evidence of Dineshwar Sao (P.W. 5- informant) at paragraph 12 of his cross-examination, he has identified the accused persons but by different names in the Court and as such, on the basis of such 9 sketchy evidence, the conviction of the appellants namely Chattu Mahto, Bhola Rabidas, Charka Sao, Jugal Mahto under Section 395 of the Indian Penal Code is not justified and thus this Court is acquitting them by giving benefit of doubt.
13. That so far the conviction of the appellants Mahendra Paswan and Bablu Rabidas are concerned, they have been convicted under Sections 395 and 412 of the Indian Penal Code by the learned Trial Court is concerned from perusal of the evidence brought on record, this court is of the opinion, that the case of these two appellants is different from four other appellants, who have been acquitted by this Court, on the ground that these two persons were apprehended at the spot, subsequent thereto, the looted articles were recovered from their possession, which has already been released in favour of the informant after due verification by the learned Trial Court and these two appellants have never said that the said articles were owned by them and as such, these two appellants have rightly been convicted by the learned Trial Court under Sections 395 and 412 of the Indian Penal Code. As the prosecution case is consistent, that these accused persons have committed the offence, even if four of the accused persons, who have been sent up for trial by the police are acquitted by giving benefit of doubt but the number of accused involved in the commission of the offence will not reduce to two and as such, the conviction of these two appellants Mahendra Paswan and Bablu Rabidas under Sections 395 and 412 of the Indian Penal Code is hereby affirmed. Accordingly, the sentence passed by the learned Trial Court is also affirmed by this Court.
14. In the result, the impugned judgment of conviction dated 25.06.2003 and order of sentence dated 26.06.2003, passed by learned 8th Additional Sessions Judge, Hazaribagh, in S.T. No. 28 of 2000 and impugned judgment of conviction dated 17.06.2006 and order of sentence dated 19.06.2006 passed by 1 st Additional Sessions Judge, Hazaribagh in S.T. No. 28 (A) of 2000, both in connection with Sadar Mufassil P.S. Case No. 422 of 1998, consequent to G. R. No. 1981 of 1998 are set aside with respect to the appellant Chattu Mahto @ Chotu in Cr. Appeal (SJ) No. 897 of 2003, appellant Charka Sao in Cr. Appeal (SJ) No. 1020 of 2003, appellant Jugal Mahto in Cr. Appeal (SJ) No. 1119 of 2006 and appellant Bhola Ravidas in Cr. Appeal (SJ) No. 1041 of 2003 as stated above.
The impugned judgment of conviction dated 25.06.2003 and order of sentence dated 26.06.2003, passed by learned 8th Additional Sessions Judge, Hazaribagh, in S.T. No. 28 of 2000 in connection with Sadar Mufassil P.S. Case No. 422 of 1998, consequent to G. R. No. 1981 of 1998 is upheld, so far in Cr. Appeal (SJ) No. 999 of 2003, preferred by the appellants Mahendra Paswan and 10 Bablu Rabidas.
15. The appellants who have been acquitted by this Court namely Chattu Mahto, Charka Mahto, Jugal Mahto and Bhola Rabidas are discharged from the liabilities of their bail bonds whereas the appellants Bablu Rabidas and Mahendra Paswan of Cr. Appeal (SJ) No. 999 of 2003, their bail bonds are hereby cancelled and they are directed to surrender before the court below forthwith to serve out the rest of the sentence. If they are not surrendering, the court below is directed to take all methods for apprehending the appellants, Mahendra Paswan and Bablu Rabidas to serve out the rest of the sentence, as awarded by the learned Trial Court and also upheld by this Court. The period already undergone by these two appellants will be set off under Section 428 Cr.P.C.
16. Thus, Cr. Appeal (SJ) No. 897 of 2003, Cr. Appeal (SJ) No. 1020 of 2003, Cr. Appeal (SJ) No. 1119 of 2006, Cr. Appeal (SJ) No. 1041 of 2003 are hereby allowed and Cr. Appeal (SJ) No. 999 of 2003 preferred by Mahendra Paswan and Bablu Rabidas is hereby dismissed.
17. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.
(Kailash Prasad Deo, J.) Jharkhand High Court Dated 12.07.2018 Pallavi/-