Ganesh Pujhar vs State Of Jharkhand

This jail appeal has been filed on behalf of the appellant namely, Ganesh Pujhar being aggrieved and dissatisfied by judgment of conviction dated 30.10.2006 and order of sentence dated 31.10.2006 passed by 5th Addl. District & Sessions Judge, FTC, Dumka in Sessions case no.232/2005, whereby the appellant was held guilty U/s 395 IPC and sentenced to undergo R.I for seven years. He was further sentenced to pay a fine of Rs. 1000/- and in deafult of payment of fine, he shall further undergo S.I for three months.

It appears that this was filed on 13.02.2007 and on 21.02.2007 it was admitted for hearing and Mr. Yogesh Modi was appointed Amicus Curiae to assist this court on behalf of the appellant and further vide order dated 13.03.2007, the appellant was admitted on bail.

After a period of 7 years, it was listed before a co-ordinate Bench and then after a period of five years it was listed for the first time before this Bench and after one adjournment, it is listed today before this Bench.

The prosecution, in short, is that the Fardbeyan of Jona Kisku (P.W.5), the informant, recorded by Sub-Inspector Anil Kumar, S.I. at about 11.30 P.M. alleging that while he was slipping longwith his family members, he heard some noise and asked his wife for torch and in the flash light of torch, he saw that four miscreants entered into his house and on the point of dagger, they asked for 'Sona'. The miscreants took away one philips Radio, philips-two-in-one tape-recorder, two ladies HMT watches and they also opened his tin box and took away two new Banarasi Sarees, house-hold articles and Rs. 21,000/- in cash as well as golden and silver jewellery. Thereafter, the miscreants entered into the house of his nephew Charlis Kisku and took away Rs. 13,000/- in cash, house-hold utensils, jewellery etc. The were calling themselves as Ashish and Munna. The informant has also given detailed body features of the dacoits in his fardbeyan.

On the basis of the fardbeyan, Jama P.S case no.110/2004 U/s 395 of the IPC was registered against unknown persons. The I.O after completion of investigation has submitted final form no.110/05 dated 10.10.2005.

The case was committed to the court of sessions being numbered as Sessions Case no.232/2005 and charge has been framed U/s 395/411 IPC on 29.11.2005 by Vth Addl. Sessions Judge, Dumka and the charges were read over and explained to the accused persons which they pleaded not guilty and claimed to be tried.

The prosecution in support of his case has examined altogether 06 witnesses.

P.W.1 Nayansi Paswan, wife of the informant (P.W.5),P.W.2 Churki Soren, P.W.3 Deepali Kisku, P.W.4 Charlis Kisku, P.W.5 Sona Kisku and P.W.6 is Shiv Narayan Ram, the I.O of this case. No witness examined by the defence.

The material exhibits are Ext.1 signature of Sona Kisku on the fardbeyan and Ext. 1/1 is fardbeyan.

Learned counsel for the appellant submits that in this case neither the informant was examined nor FIR was proved. However, the appellant was arrested in another case being Jama P.S. case no.32/2005, wherein his confession was recorded on 04.06.2005 and he has accepted his guilt at para-54 of the case diary that he has committed offence in the instant case.

Learned counsel for the appellant while relying upon the judgment in Manoj Prasad & Anr.Vs. State of Bihar, reported in (2010)2 East. Cr. Cases 252 (Pat) submits that the confession of the accused recorded in one case cannot be used against the accused in another case. The relevant paragraphs of the judgment are quoted herein below :

Confessional statement before the police on its own, is not admissible in law, more so, if the confessional statement has been recorded in connection with one case and photocopy of this same is being used in the other case.

Case diary was called for and the case diary does not show that there is any separate material from the copy of the confessional statement nor is there anything to show that any confessional statement was recorded by the police in the present case. This also does not appear from the record that subsequent to the the confessional statement any recovery was made by the police which could connect the confessional statement directly to the crime. This is also not denied that other accused persons including these petitioners have been allowed bail in other three cases. In the present case also except for these two petitioners, others have been allowed bail by this Court.

Therefore, in view of scanty materials available on the records of this case against petitioners and inadmissible photo copies of confessional statements used by the Investigating Officer of this case for submitting charge-sheet and in view of the fact that other accused persons have been allowed bail in this case as well as in other three cases also in which they have been implicated on the basis of said confessional statement, this application is allowed. Let both the petitioners be enlarged on bail on furnishing bail bond of Rs.10,000/- ( Rupees ten thousand) each with two sureties of the like amount each to the satisfaction o ACJM, Danapur in Bilram P.S.case no.79 of 2007 with conditions as laid down in sub section (3) of section 437 of the Code of Criminal Procedure as may be applicable and also that one of the bailors shall be close relation of the petitioner. In case of breach of any of the conditions at any stage to the satisfaction of the concerned Court below, it shall be at liberty to cancel the bail of the petitioners and take steps for their arrest.

On the other hand,learned Addl.P.P while referring the evidence of P.W.5-informant has submitted that the informant has disclosed the name this appellant and other accused persons and also disclosed about the whereabouts of looted articles, which were recovered and also identified in TIP.

From perusal of the records, it appears that appellant remained in custody from 02.01.2005 till 13.03.2007.

In the facts and circumstances of the case and the argument advanced on behalf of the appellant that in view of the judgment delivered by Hon'ble Patna High Court in Manoj Prasad & Anr.Vs. State of Bihar (Supra) that the confession of the accused recorded in one case cannot be used against the accused in another case and also the fact that informant was examined, the prosecution has failed to prove his case beyond all reasonable doubts.

In the result, this appeal is allowed, accordingly, judgment of conviction dated 30.10.2006 and order of sentence dated 31.10.2006 are, hereby, set aside and the appellant is discharged from the liability of his bail bonds.

Let a copy of judgment be communicated to the court below also to the Secretary, Jharkhand High Court Legal Services Committee for quantifying the fee of the Amicus Curiae.