Mohd. Azim @ Raju and Bijay Singh vs The State of Jharkhand

Both the aforesaid appeals arose from the judgment dated 12.03.2003 passed in Sessions Trial No. 198 of 1998 by the Additional Sessions Judge (F.T.C.- II), Jamshedpur, Singhbhum East, whereby and whereunder the Appellants of Criminal Appeal No. 752 of 2003 (Md. Azim @ Raju and Bijay Singh) have been convicted u/s 302/ 34 and 394 of the I.P.C. and u/s 27 of the Arms Act whereas Appellant of Criminal Appeal No. 823 of 2003 (Kalyan Ghosh) has been convicted u/s 302 & 394 of the I.P.C. and u/s 27 of the Arms Act. All the aforesaid three Appellants were sentenced to undergo imprisonment for life for the offence u/s 302 of the I.P.C. and also sentence to undergo imprisonment for 10 years for the offence u/s 394 of the I.P.C. They are also sentenced to undergo imprisonment for seven years for the offence u/s 27 of the Arms Act. However, the court below has directed all the sentences to run concurrently.

As both the appeals are directed against the same judgment of court below, therefore they are heard together and are being disposed of by this common judgment.

The case of the prosecution in brief is that on 15.02.1998 at about 6:00 P.M. when the informant Sumit Kumar Rana (P.W.-10) was returning along with his father Bhupati Bhusan Rana (deceased) and Parfulla Chandra Rana to their village Mohalisole on a motorcycle and when they reached near a broken bridge situated at Mohalisole, three unknown young boys stopped them on the point of pistol. Thereafter the aforesaid three unknown persons took away a bag from the possession of informant which contained silver ornaments. The miscreants had also forcibly took away three thousand rupees from the informant''s father (deceased) and Rs. 20/- from Parfulla Chandra Rana (P.W.-2). The miscreants forcibly, took away the motorcycle, on which the informant and others were returning, and tried to fled away from the place of occurrence, but the informant''s father namely Bhupati Bhushan Rana caught hold of the motorcycle from back, whereupon one of the miscreants shot pistol as a result the deceased received fire arm injury on his chest and fell down. The miscreants fled away on the aforesaid motorcycle. Then, informant went to the village and informed the villagers and family members about the occurrence. The deceased was taken to Ghatshila Hospital where he was declared dead.

On the basis of fardbeyan, Dalbhum P.S. Case No. 07 of 1998 dated 15.02.1998 was registered u/s 302 and 394 of the I.P.C. and Section 27 of the Arms Act and police took up investigation. Police after completion of the investigation submitted charge sheet against the Appellants u/s 302, 394 and 412 of the I.P.C. and Section 27 of the Arms Act.

Cognizance of the said offences was taken and the case was committed to the court of Sessions.

The trial court framed charges against the Appellants u/s 302/ 34 and 394 of the I.P.C. and also u/s 27 of the Arms Act and explained the same to the Appellants to which they pleaded not guilty and claimed to be tried.

In order to prove the said charges prosecution examined altogether ten witnesses. The prosecution brought on record the documents in support of its case i.e. Ext-1 - the signature of P.W.-1 on Seizure List, Ext-2 - signature of P.W.-1 on Inquest Report, Ext-2/1 - signature of P.W.-7 on the Inquest Report, Ext-3 - Post-mortem Report, Ext-4 and 4/1 - the signatures of P.W.-8 on Seizure List, Ext-5 - signature of P.W.-9 on Seizure List, Ext-6 and 6/1 - signatures of informant (P.W.-10), P.W.-2 and Krishna Gopal Rana on fardbeyan.

The statements of Appellants were recorded u/s 313 of the Code of Criminal Procedure, in which their defence was of total denial.

The learned court below after considering the evidence on record, had convicted and sentenced the Appellants as aforesaid, against that the present appeal has been filed.

Assailing the impugned judgment, learned Counsels for the Appellants have submitted that the entire case is based upon the evidence of P.W.-10, who claimed to identify the Appellants during the T.I. parade held in jail. Identification in the said T.I. parade is vitiated as P.W.-10 had admitted during the cross examination that the Appellants were shown to him in the police station as well as in the court before the T.I. parade. So the said T.I. parade have of no value in the eye of law. The claim of identification by P.W.-3 Santosh Kr. Rana and P.W.-6 Amiyo Ranjan Rana, is of no consequence because these witnesses had only stated that prior to the occurrence while they were returning from market, they saw these Appellants while they were standing near the broken bridge of Mohalisole. Hence, it is clear that they were not present at the P.O. at the time of occurrence and they have also not alleged any specific overt act against these Appellants and as such their testimony is without any credential. Learned Counsel for the Appellant further submitted that the evidence of P.W.-8 that some ornaments were seized in his presence from the house of these Appellants is also not reliable because the said ornaments were not put on T.I. parade and it is not established that the said ornaments were looted in course of occurrence. The Test Identification Chart has not been produced in the court nor the Magistrate has been examined to prove the T.I. chart. The I.O. had also not been examined in this case who could have proved the alleged seizure of ornaments from the house of these Appellants. No clinching evidence has been adduced by the prosecution on which the conviction of these Appellants can be sustained. Thus, the judgment of conviction and order of sentence passed by the court below suffers from serious legal infirmities material and are not sustainable.

On the other hand, learned A.P.P. supported the impugned judgment and submitted that P.W.-10, had identified the Appellants during the T.I. parade and had made elaborate description of act done by them in course of occurrence. She further submitted submits that the court below had rightly accepted the evidence of P.W.-10 and convicted and sentenced the Appellants. Therefore, the impugned judgment of conviction and order of sentence does not require any interference by this Court.

Having heard the submissions of the parties, we have scrutinized the evidences on record. P.W. -5 is the Doctor who held autopsy on the dead body of deceased. He found fire arm wound on the chest of deceased and had given opinion that the said injury was ante-mortem in nature and informant''s father died due to the said injury. There is nothing in the evidence of P.W.-5 on which his aforesaid testimony can be discarded. Thus, we find that the prosecution has been able to prove that the deceased Bhupati Bhusahan Rana had died a homicidal death.

Now, it has to be decided: whether these Appellants have any complicity in the commission of the said crime ? From the perusal of evidences available on record, it appears that P.W.-2 and P.W.-10 are the witnesses who were present at the time of occurrence whereas P.W.-1, P.W.-3, P.W.-4, P.W.-6 and P.W.-7 had reached at the place of occurrence after getting information regarding the occurrence subsequently. P.W.-8 and P.W.-9 are witnesses of seizure but P.W.-9 has not supported the case of prosecution and therefore, he had been declared hostile.

On reading of evidence of P.W.-2, Parfulla Chandra Rana, we find that though he had supported the factum of occurrence, this witness had not identified the Appellants during the Test Identification Parade, as well as in the court. Thus, evidence of tills witness is of no help to the prosecution. P.W.-3, P.W.-4 and P.W.-6 deposed that just prior to the occurrence, they were returning from market and on the way they saw that three unknown persons were standing near the broken bridge of Mohalisole. They deposed that they returned to their village without any hindrance caused by the aforesaid three unknown persons. P.W.-3 deposed that during the T.I. parade, he had identified these three Appellants whereas P.W.-6 had stated that he identified two accused persons namely Kalyan Ghosh and Md. Azim @ Raju. The aforesaid three witnesses further deposed that when they returned to their house and while they were changing their clothes they heard that Bhupati Bhushan Rana was shot by fire arm and thereafter they went to the place of occurrence and took the deceased to the Hospital when he was declared dead. Thus, from the careful examination of the evidences of these witnesses, we find that they were not present at the place of occurrence, when the occurrence took place. Thus, the claim of identification by these witnesses is also of on consequence.

Now, coming to the evidence of P.W.-10, it appears that this witness had supported the occurrence and claimed to have identified the Appellants in the Test Identification Parade. But this witness, at Paragraph No. 8 of his deposition, had stated that he was called by Officer-in-Charge in the Police Station for identifying the accused persons. He states that the Officer-in-Charge had shown the accused persons in the Police Station and thereafter he identified the accused persons during the Test Identification Parade. Thus, the aforesaid deposition of P.W.-10 at Paragraph No. 8 demolished the veracity of identifying the Appellants in T.I. Parade. Since the Appellants were shown to the witness by the police before the T.I. Parade, the identification lost its sanctity and the same cannot form basis for conviction of Appellants. Thus, in our considered view there is no legal evidence to establish the charges levelled against the Appellant. In this connection, it is also relevant to mention that the Magistrate who conducted the Test Identification Parade had not been produced by the prosecution to prove the T.I. Chart. Hence, no credence can be given to the alleged T.I. parade. It is well settled that if the T.I. Chart was not produced in court and the same has not been proved by the Magistrate, no conviction can be based on the said T.I. parade. In the instant case neither the Magistrate was examined nor the T.I. Chart has been brought on record. Thus, we find that the court below has committed serious illegality in convicting the Appellants on the basis of the statement of P.W.-10 that he identified the Appellants during the T.I. Parade.

In the instant case, P.W.-8 had stated that in his presence, the I.O. had seized some silver ornaments from the house of Appellants but there is nothing on record to show that the said seized silver ornaments were identified by any witness as articles looted during the course of occurrence. Even the I.O. has not been examined to prove the said seizure. Thus, in our considered view even assuming that some silver ornaments were seized from the house of these Appellants, since the said ornaments were not identified as the looted (stolen) articles, the same in no ways go to help to the prosecution to prove the charges levelled against the Appellants. Moreover, in the instant case, the court below had not framed any charge against the Appellants u/s 411 or 412 of the I.P.C.

In view of the discussion made above, we find that there is no cogent evidence on record to support the charges against the Appellants and sustain their conviction.

In the result, both the appeals succeed and are accordingly allowed. The impugned judgment of conviction and order of sentence are set aside. The Appellant(s) above named are acquitted of the charges levelled against them. They are directed to be released forthwith, if not wanted in any other case.