Jharkhand High Court
Suresh Rajwar @ Suresh Pd. Rajwar vs The State Of Jharkhand on 26 November, 2021
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 335 of 2010
(Against the judgment of conviction and order of sentence, both dated
16.02.2010, passed by the learned Additional Sessions Judge, FTC-IV,
Bokaro, in Sessions Trial Case No. 148 of 2006)
1. Suresh Rajwar @ Suresh Pd. Rajwar, S/o Rajendra Pd. Rajwar
2. Pranay Kumar Rajwar @ Pranab, S/o Hemant Rajwar
3. Sapan Rajwar, son of Yamuna Pd. Rajwar
All residents of village- Bandhgora Side, PO and PS-
Pindrajora, District- Bokaro. .....Appellants
-Versus-
The State of Jharkhand ...... Respondent
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CORAM : HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellants : Mr. Rajesh Kumar, Advocate
For the State : Mr. Bishwambhar Shastri, A.P.P.
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CAV ON 02.07.2021 PRONOUNCED ON 26.11.2021
RATNAKER BHENGRA, J.
Heard the learned counsel for the appellants and the learned counsel for the state.
2. This appeal is directed against the judgment of conviction and order of sentence both dated 16.2.2010 passed by the learned Additional Sessions Judge, Fast Track Court No. IV, Bokaro in Sessions Trial Case No. 148 of 2006 arising out of Pindrajora PS case No. 116 of 2004 corresponding to GR Case No. 1336 of 2004, whereby and where under, the appellants have been convicted for the offence under sections 147,149,341,323 and 353 of the IPC and sentenced to undergo rigorous imprisonment for a period of six months for each of the offences. All the sentences were ordered to run concurrently.
3. The prosecution case is based on the fardbayan dated 23.12.2004 at 2:00 am of the informant Md. Alimuddin (PW-2), officer-in- charge of Pindrajora PS, Dist- Bokaro and recorded by ASI K.S. Horo of the same police station. The prosecution story, in brief, as per the fardbayan of the informant is that informant along with other police officials proceeded on 22.12.2004 at 5:00 p.m. for village Jaala for investigation of Pindrajora Case No. 114 of 2004 in police jeep No. BR-20E/3498. When they were returning from village Jaala to Bandhgora by Telidih-Sonabad Road, the informant received information from control room that four unknown criminals had looted one black colour Hero Honda Passion 2 motorcycle bearing No. JH 09C-0283 from Sector-XII F and were fleeing away towards Bandhgora side riding on two motorcycles out of which one motorcycle was of black colour Hero Honda No. JH10D-7989. After moving a little distance, they saw light of three motorcycles coming and when they reached near them, they shouted to which criminals turned the motorcycle and fled towards Bandhgora and they followed the criminals. At 7:15 am, criminals reached at village Bandhgora side and dashed one tempo which was coming from the opposite side near Harila Shiv Mandir due to which they fell down from the motorcycle. Criminals left the motorcycle and started fleeing away but police chased them and caught one of the criminals but others escaped taking advantage of night. Informant further stated that two of the tempo passengers were also injured. In the meantime hundred of villagers assembled there and they assaulted the informant and constable Binod Kumar Singh. Thereafter other police officials came there and saved their life and the villagers fled away. Villagers also damaged their jeep bearing BR-20E/3498 and also assaulted the criminals which police had caught and anyhow saved his life from the villagers. The apprehended criminal disclosed his name as Babloo Dutta ,resident of old market, Chass, P.S. Chass, District- Bokaro. The criminal accepted that some time ago, he with his other associates had looted a black coloured Hero Honda Motorcycle no. JH09C-0283 from sector XII F. Informant further stated that they recovered two motorcycles bearing no. JH10D-7989 and JH09C-0283 used in commission of crime and left by the criminals and four live cartridges of .315 bore and one Nokia mobile from the apprehended criminal for which the informant himself had filled a written report separately for the registration of FIR. Informant further stated that he and police no. 265 Binod Kumar Singh were undergoing treatment at BGH, B.S. City. Passengers of tempo Kurban and Naushad, resident of Narayanpur were injured and the apprehended criminals Babloo Dutta was also sent for treatment of his injury. informant further stated that hundred of villagers by forming an unlawful assembly, assaulted him, constable Binod Kumar Singh and the apprehended criminal with intention to kill them, damaged the Government Jeep and obstructed the Government work.
4. On the basis of fardbeyan of the informant Pindrajora PS case No. 116 of 2004 dated 23.12.2004 was registered under sections 147,148,149, 341,323,307, 353 and 427 IPC against unknown hundreds of 3 villagers of Bandhgora. On completion of the investigation, the police filed charge-sheet No. 03/06 dated 24.01.2006 under the aforesaid sections against these appellants. Accordingly, cognizance of the offences were taken and the case was committed to the Court of Sessions for trial. Charges were framed against the appellants under sections 147, 149, 323, 341, 307, 353 and 427 of IPC and trial was held. At the conclusion of the trial the appellants were convicted and sentenced as aforesaid. Hence, this appeal.
5. Prosecution in support of its case has examined altogether 6 witnesses out of whom PW-2 is Md. Alimuddin, who is the informant of the case; PW-1 is Nayan Kumar Bannerjee, who is the tempo driver; PW-3 is Mahendra Choudhary and PW-4 is Binod Kumar Singh and both were members of police party; PW-5 is Nityanand Pramanik, who is a formal witness and PW-6 is Manpuran Gope.
6. PW-2 Md. Alimuddin, is the informant of the case and on the day of the occurrence, he was posted as officer-in-charge of Pindrajora police station. Informant has reiterated his fardbayan in his evidence and identified the appellants present in the court. informant has proved his fardbayan which was marked as Ext.-1. In his cross-examination informant stated that after the arrest of the accused persons, no TIP of the accused persons were held. He was treated in BGH in night and on the next day after 10:00 am he was discharged.
7. PW-3 is Mahendra Choudhry, who was a member of the police party. PW-3 has stated in his evidence that they were in combing operation on information of loot of a motorcycle from sector XII F. When police party reached at Bandhgora, then criminals on seeing them turned around but dashed a tempo by their motorcycle. Criminals left their motorcycle and fled away but they chased and caught one of the criminals. Villagers thought that police jeep had dashed the tempo, so, villages damaged the police jeep and Officer-in-charge and police Binod Kumar Singh had sustained injury.
8. PW-4 Binod Kumar Singh is a constable and was member of police party. PW-4 has stated in his evidence that they were in combing operation on information that criminals had looted a motorcycle from Sector XII F and criminals were fleeing towards Bandhgora. On seeing them, criminals turned around and fled away to the opposite direction but dashed a tempo by their motorcycle. There 300-400 persons had assembled 4 and public thought that the tempo was dashed by the police police jeep. Public assaulted the officer-in-charge and him. Alimuddin (PW-2) sustained injury on his head and he sustained injury on his whole body.
9. PW-1 is Nayan Kumar Banerjee, who is the tempo driver. He has stated in his evidence that he heard about the occurrence from the villagers. He further stated that police had not asked him about the occurrence. PW-1 was declared hostile.
10. PW-5 Nityanand Pramanik, is an advocate clerk. He has proved the formal FIR, charge-sheet, injury report of Md. Alimuddin and injury report of Binod Kumar Singh which were marked as Ext- 2, Ext-3, Ext-4 and Ext- 5 respectively. In his cross-examination he deposed that he is an advocate clerk and he never worked with Pindrajora police station. ARGUMENTS ON BEHALF OF THE APPELLANTS:
11. Learned counsel for the appellants submitted that the evidences of the prosecution witnesses go in favour of the appellants. He has referred to PW-1 Nayan Kumar Banerjee, who is the auto driver, has been declared hostile and his evidences has not got much value. PW-1 has stated that he had signed on the blank paper and nothing was recovered in his presence.
12. Learned counsel then referred to the evidence of the informant PW-2 Md. Alimuddin and pointed out that in paragraph no.7 he claims to make identification of the appellants. However, paragraph No.17 of the evidence of the informant shows that when this witness was officer-in- charge of concerned police station then he had once met them and then he is meeting with him in the court. Learned counsel says that this identification has been done only in court and then he referred to the paragraph no.19 of the deposition which shows that no TIP was done before identification in Court and therefore, such identification is improper. This witness seems to remember or recognize the accused persons on the basis of having met them once long time ago when he was officer-in-charge and therefore, he has simply taken their name in the Court. Learned counsel further says that occurrence was alleged to have occurred at the night and there was reference of street light and it was the month of December. Moreover, this witness has also said there were about 300-400 persons so only on the basis of some memory he had chosen these appellants and therefore, no conviction can be done. Counsel refers to the cross-examination of this witness and points out that in paragraph -12 this witness has stated in the 5 FIR several villagers were named so, when there was such a big crowd then to pin-point anybody and that too without holding TIP would be difficult.
13. Learned counsel then further refers to the evidence of PW-3 Mahendra Choudhary in which he has stated that he can't recognise anyone from the crowd. Learned counsel further refers to the evidence of PW-4 Binod Kumar Singh and refers to paragraph no. 17 of his deposition and points out that PW-4 has deposed that police did not take him for identification.
14. Learned counsel for the appellants then referred to the evidence of PW-5 Nityanand Pramanik, who is a formal witness and he has proved injury reports of both the injured PW-2 and PW-4 which are Ext. -4 and Ext.
-5 respectively. Counsel points out to the cross-examination of this witness where it has been deposed that he has not worked in particular police station neither he has worked in the concerned hospital and therefore, learned counsel submits that if he has not worked in the concerned police station or hospital then proving of any documents particularly Ext.-4 and Ext.-5 are simply not proper and therefore no support can be taken from the evidence of this witness for convicting the appellants. Counsel then refers to the evidence of PW-6, who is Manpuran Gope and submitted that he is a hearsay witness and he has deposed in his cross- examination that he came to the place of occurrence after the incident and therefore he could not see any of the appellants. Further from paragraph 7 of his evidence it appears that he had not identified any of the appellant.
15. Learned counsel further submitted that conviction of the appellants only seems to be based on the scanty and weak evidence of identification of the appellants by the informant PW-2 and PW-4 and without conducting TIP and hence, evidence of PW-2 and PW-4 are of no value. PW-5 is a formal witness, PW-6 is hearsay witness and PW-1 has been declared hostile. Learned counsel has relied on the Judgment of Budhsen and another vs. State of UP of the Hon'ble Apex Court reported in 1970 (2) SCC 128 wherein at Paragraph No.7 Hon'ble Apex Court has held that evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. Hon'ble Apex court further held that the purpose of a prior test identification is to test and strengthen the trustworthiness of that evidence. Learned counsel has further relied on judgment of Hon'ble Apex Court 6 rendered in case of Sadashiv Bajrang vs. State of Maharashtra reported in 1982 CRI. L. J. 2056 and Ramanbhai Naranbhai Patel and others Vs. State of Gujarat reported in (2000)1 SCC 358, wherein Hon'ble Apex Court has said about the purpose of conducting TIP.
16. Learned counsel has then referred and relied upon a case of "Bharat Mahato & others Vs. State of Jharkhand" reported in 2016 (2) JLJR 569 and submitted that this judgment deals with improper witnesses who are not competent. In the case in hand PW-5, who is an advocate clerk and is not a competent witness but he has proved Ext.-3, Ext.-4 and Ext.-5. Moreover, both the Investigating officer and the doctor were not examined by the prosecution and also no TIP was done hence, the case against the appellants is fully demolished. Learned counsel lastly submitted that identification done for the first time in Court without TIP would have not much value and that too even otherwise the case against the appellants rests on the weak evidence of the informant PW-2.
ARGUMENTS ON BEHALF OF STATE:
17. Learned counsel for the State-APP points out the evidence of PW-3 Mahendra Choudhary and submits that on the basis of suspicion, the police men were responsible for the accident and the assault occurred and in this assault the appellants carried out the particular offences and thus the identification made by the informant PW-2 is absolutely proper. Learned counsel then, referred to paragraph no. 16 of PW-4 Binod Kumar Singh and referred to those who assaulted and submitted that he recognized all the appellants though he does not name them but he recognized them. Counsel says that it is very possible that in a assault one may not know the names of the persons but surely assailants may be recognized and in this case, this witness is also one of the member of the police party and was injured, therefore, his recognition cannot be doubted. Learned counsel then referred to paragraph no.15 of the impugned judgment and submitted that learned trial court has rightly said that TIP was not conducted and it was a negligence on the part of the IO but this infirmity is not of such a nature that on the basis of it whole of the prosecution case be brushed aside in favour of the accused.
FINDINGS:
18. Having heard learned counsel for the appellants as well as learned counsel for the State and also gone through the records of the case, 7 it is a case in which conviction has been done under sections 147, 323, 341, 353 and section 149 of IPC. It has come in the evidence that the occurrence was a result of a crowd and hundreds of villagers had assembled at place of occurrence and had assaulted the informant PW-2, who is an officer-in- charge and constable PW-4 and damaged the police jeep. The occurrence had taken place in mid or late December night under the street light and a scuffle was taking place and on that occasion to pin point or to name some persons would be difficult. Only on the basis of identification that too only by a sole witness i.e. PW-2 Md. Alimuddin, who is the officer-in-Charge, appellants have been convicted. Informant has deposed at paragraph-14 that he came to know the name of the accused only on the basis of some secret information and at para-15 informant deposed that after 8-10 days of the occurrence he came to know about the name of the accused persons or appellants herein. So, in these circumstances, identification of the appellants for the first time in the court was not proper. Further, in the case in hand TIP of the appellants were not conducted and Investigating Officer of this case was also not examined by the prosecution and hence, prosecution case becomes doubtful. Hon'ble Apex Court in case of Budhsen (Supra) held that identification of the accused persons at the trial for the first time is inherently of a weak character. Moreover, PW-3 Mahendra Choudhary is a constable and was a member of police force at para-12 of his deposition has deposed that in the crowd he could not recognize any one and hence identity of the accused or the appellants is not possible from the crowd.
19. PW-4 is constable and was also one of the alleged injured but, he also claims to identify the appellants for the first time in the court during trial. Deposition of PW-4 was taken after about three and a half years of the occurrence and pin pointing after such a long gap during trial for the first time and that too without holding a TIP, cannot in the facts and circumstances be the basis of conviction. The other remaining witnesses PW-1 was declared hostile and PW-6, who is the constable, is a hearsay witness. PW-5 is an advocate clerk and a formal witness but has proved the final form as Ext.-3 instead of the Investigating Officer, who was not examined in the case. Further, PW-5 has proved the injury report of PW-1 and PW-4 instead of doctor and doctor was not examined by the prosecution. Drawing parallels from the case of Bharat Mahto(Supra) on the point of competence of the witness, learned counsel for the appellants 8 has rightly submitted that the PW-5 advocate clerk was not a competent witness as in his cross-examination he has stated that he would not have been able to identify the writing of either the police personnel or the doctor concerned.
20. Hence, singling out the appellants from hundred of villagers, who had assembled at the place of occurrence, without holding the TIP and also non-examination of both Investigating Officer and Doctor, charges against the appellants are not proved in the facts and circumstances of the case beyond reasonable doubt. Therefore, on the basis of all the aforesaid findings this Court comes to a conclusion that the appellants Suresh Rajwar @ Suresh Pd. Rajwar, Pranay Kumar Rajwar @ Pranab and Sapan Rajwar deserve to be acquitted of all the charges under sections 147, 341,323,353 and 149 of the IPC.
21. Accordingly, the impugned judgment of conviction and order of sentence both dated 16.02.2010, passed by the learned Additional Sessions Judge, Fast Track Court No. IV, Bokaro in Sessions Trial Case No. 148 of 2006 are set aside. The appellants are discharged from the liability of their bail-bonds.
22. Accordingly, the appeal is allowed.
(Ratnaker Bhengra,J) Jharkhand High Court,Ranchi Dated the 26.11.2021 N.A.F.R./Nibha