Tapendra Kumar Singh, Laddu Singh vs State Of Jharkhand

H.C. Mishra, J.:-Â Heard learned senior counsel for the appellant and learned counsel for the State.

The appellant is aggrieved by the impugned Judgment of conviction dated 31st January 2012 and Order of sentence dated 02.02.2012, passed by the

learned Additional Sessions Judge-II, Godda, in S.T. No. 35 of 1998, whereby, the appellant along with other co-accused, viz., his father Kuldeep

Narayan Singh (since dead), had been found guilty and convicted for the offences under Sections 302 / 34 of the Indian Penal Code, and Section 27 of

the Arms Act. Upon hearing on the point of sentence, both the accused were sentenced to undergo R.I. for life for the offence under Section

302 of the Indian Penal Code, and R.I. for five years and fine of Rs.5,000/- each, for the offence under Section 27 of the Arms Act, and the

sentences were directed to run concurrently. It may be stated that the co-accused, father of this appellant, died during the pendency of his appeal filed

separately, i.e., Cr. Appeal (DB) No. 188 of 2012, which stood abated.Â

The prosecution case was instituted on the basis of the fardbeyan of the informant Umakant Chaudhary, recorded on 20.08.1997 at 22:45 hours at

Pathargama Road, near Raj Medical Hall, P.S. Pathargama, District Godda. It is stated in the fardbeyan that on 20.08.1997, at about 9:00 P.M., in the

night, the informant and his father were talking in their house. He heard the gunshots from the roof of the house of Rajendra Singh, whereupon, he

came out of the room and saw from his verandah, that at the roof of Rajendra Singh, the present accused Tapendra Singh, and one Sandeep Anand @

Pappu armed with guns, Kuldeep Narayan Singh armed with pistol and Rajendra Singh armed lathi were roaming on the roof. They were visible to

the informant, as it was a moonlit night. They were abusing in filthy languages and were also firing the guns. The informant has also stated that his

villagers Jago Manjhi, Nemani Manjhi, Kailu Manjhi, Kishori Manjhi, Janki Manjhi and Chhedi Manjhi went upon the roof of Rajendra Singh, armed

with spears and all of them were instigating the accused persons to kill the informant’s side entering their house, and they would support them.Â

It is further alleged that thereafter, the accused persons came near the door of his cousin Pradeep Chaudhary and they were abusing the father of the

informant in filthy languages. Pradeep Chaudhary opened his door and prevented them from using filthy languages, whereupon on the order given by

Kuldeep Singh, the accused Tapendra Kumar Singh @Â Laddu Singh fired his licensed gun injuring Pradeep Chaudhary, who fell inside the door

towards the courtyard of his house. Upon the alarm raised by the father of Pradeep Chaudhary, the accused persons fled away. The informant and

the neighbouring persons rushed there and saw    Pradeep Chaudhary in injured condition with bleeding firearms injuries on his face and he was

unconscious. They brought the injured on a cot to Pathargama Hospital, but as no doctor was available at Pathargama Hospital, they proceeded

towards Godda, and near Raj Medical shop, the police arrived, where the informant gave his fardbeyan to the police. He has stated in the fardbeyan

that the occurrence had taken place due to the dispute of sale proceeds of the fishes of a pond situated in the village. On the basis of the fardbeyan

of the informant, Pathargama P.S. Case No.100 of 1997, corresponding to G.R. No.622 of 1997, was instituted for the offences under Sections 147,

148, 149, 307 and 504 of the Indian Penal Code, and Section 27 of the Arms Act. As the deceased died in the same night, Section 302 of the Indian

Penal Code was added. It may be stated at this place that though the FIR is said to be registered on 20.8.1997, but the same has been received in

the Court of Chief Judicial Magistrate on 22.08.1997, and there is no explanation for this delay. After investigation, the police submitted the charge-

sheet in the case against the accused Kuldeep Narayan Sinha, Tapendra Singh @ Laddu Singh and Sandeep Anand, but Sandeep Anand died.

Accused Kuldeep Narayan Singh, who had been tried with the appellant, died during the pendency of his appeal. As such, we shall confine to the

materials on record against this appellant only, as far as practicable. 4. After commitment of the case to the Court of Session, charge was framed

against the accused for the offences under Sections 302 / 34 of the Indian Penal Code, and under Section 27 of the Arms Act, and upon the accused's

pleading not guilty and claiming to be tired, he was put to trial.  In course of trial, 13 witnesses have been examined by the prosecution including

the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. The defence has also examined one

witness in the case, and also proved some documents.

P.W.-10 Umakant Chaudhary is the informant in the case. This witness has stated that the occurrence had taken place on 20.08.1997, at about 9:00

P.M. He was talking with his father, when he heard the gunshots from the roof of the house of Rajendra Singh. He came out at his verandah and

in the moonlight, he saw that Kuldeep Narayan Sinha, Tapendra Singh @ Laddu Singh, Sandeep Anand and Rajendra Singh were there on the roof.Â

Kuldeep Singh @ Kuldeep Narayan Sinha was armed with pistol, whereas Tapendra Singh and Sandeep Anand were armed with double barrel guns

and Rajendra Singh was armed with lathi. They were roaming around on the roof and abusing in filthy languages and firing the gunshots.Â

Thereafter all the four accused persons came near a well in front of the house of Pradeep Chaudhary and they were abusing the father of this witness

in filthy languages. Pradeep Chaudhary came out of his courtyard, preventing them using filthy languages and as soon as he opened the door, on the

orders given by Kuldeep Narayan Sinha, Laddu Singh fired the gun causing injuries on the face of Pradeep Chaudhary, due to which Pradeep

Chaudhary fell towards his courtyard. The father of Pradeep Chaudhary raised alarm, whereupon, the accused persons fled away. This informant and

other persons came there and saw Pradeep with bleeding injuries on his face and he was unconscious. They were bringing the injured on a cot to

Pathargma Hospital and in the way, they got a jeep and they proceeded to Pathargama Hospital on the jeep. As no doctor was there, they proceeded

for Godda Hospital and near Raj Medical Hall, he met the police and informed the police about the occurrence. His fardbeyan was recorded and he

has proved the fardbeyan, which was marked Ext. 2. Thereafter, they proceeded towards the Godda Hospital, but Pradeep was declared dead at

the hospital. On the next day, the post mortem was done. He has identified the accused in the Court. In his cross-examination, this witness has

contradicted his fardbeyan itself. He has stated that on roof of Rajendra Singh, only four accused persons were there and there was no other

person. He has denied the suggestion that in the fardbeyan, he had stated that apart from the four accused persons, six persons were also there,

namely, Jago Manjhi, Nemani Manjhi, Â Â Â Kailu Manjhi, Kishori Manjhi, Janki Manjhi and Chhedi Manjhi and they were instigating the accused

persons to kill the informant’s side, entering their house and they would be supporting them. He has again stated in his cross-examination that

his another fardbeyan was not recorded by Godda police at Godda Hospital. He was confronted with the question that his fardbeyan was recorded

by Godda police on 21.8.1997 at 5:00 A.M., in the morning, to which he has stated that he had given no such fardbeyan. He has again stated that there

was no dispute with the accused persons for any pond. This witness was again confronted with the question that in the fardbeyan he had stated that

the occurrence had taken place for the sale proceeds of the fishes of the pond, whereupon, he has stated that he had not given any such statement.Â

He has stated that no one was injured by the firings made from the roof of the house. He has denied the suggestion that he and Shaligram Chaudhary

were fishing in the pond on that day, which was objected by the accused persons, due to which, they had planned to kill the accused persons, and

there were firings from both the sides in the night, in which, the deceased had died.

P.W.-3 Bijender Prasad Singh, P.W.-4 Sachidanand Chaudhary, P.W.-5 Sitabi Chaudhary, the father of the informant and the uncle of the

deceased and P.W.-7 Saligram Chaudhary have supported the case as eyewitnesses to the occurrence, supporting the prosecution case in more or

less the same manner as stated by the informant. Though there are some contradictions in the evidences of these witnesses, but the fact remains that

they have stated that the accused persons came near the door of   Pradeep Chaudhary, and upon the orders given by Kuldeep Singh, the accused

Tapendra Kumar Singh had fired the gun causing injuries upon Pradeep Chaudhary, which proved fatal. P.W.-5 Sitabi Chaudhary, who is the father

of the informant, has stated in his examination-in-chief, that while they were taking the deceased to Godda hospital, they met the police. He has stated

that his signature was taken by the police on a plain paper, and the statement of Umakant (the informant) was also taken by the police, on which

Umakant might have signed. This fact has not come in his cross-examination, rather, he has stated this in his examination-in-chief itself, and the

fardbeyan proved by his son as Ext.-2, bears his signature also. Except P.W.-3 Bijender Prasad Singh, all these witnesses have denied the

suggestion that there was any enmity between the parties due to the pond of the village, or the sale proceeds of fish. In his cross-examination,

P.W.-7 Saligram Chaudhary has stated that the well is at a distance of about 50 feet from the house of the deceased. He has also denied the

suggestion that he and Umakant Chaudhary were fishing in the pond on that day, which was objected by the accused persons, due to which, they had

planned to kill the accused persons, and there were firings from both the sides in the night, in which, the deceased had died.

P.W.-1 Vibush Kumar Chaudhary and P.W.-2 Sri Prasad Singh are hearsay witness and they had seen the deceased in injured condition. They

are also the witnesses to the seizure of blood stained soil form the place of occurrence, but the original seizure list was not available.Â

P.W.-6 Shanker Pandit and P.W.-9 Shiv Narain Pandit are the witnesses to the seizure of two double barrel guns, twenty live cartridges and ten

fired cartridges from the house of Rajendra Singh. They have also stated that the police also arrested the accused persons at the time of seizure of the

guns and cartridges. P.W.-6 Shanker Pandit had also seen the deceased in injured condition.

P.W.-8 Parphool Kumar Singh is the owner of the jeep, on which the deceased was taken to Godda hospital from Aamdeeha, where he had met

the informant and other persons who were bringing the injured on a cot, from where he took the injured to Pathargama Hospital. At Pathargama

Hospital, the doctor was not available and then he sent the injured to Godda Hospital on his Jeep and he returned back. He has stated that a boy

named Rajesh Kumar Chaudhary had gone to his house and informed him that Kuldeep Singh and his family members had assaulted the deceased by

gun, whereupon he proceeded with his jeep .Â

P.W.-12 Rakesh Kr. Chaudhary is only a witness to the inquest report of the dead body of the deceased, prepared at Godda hospital, which on his

identification was marked Ext. 4.Â

P.W.-11 is the Dr. Vijay Kumar Bhagat, who had conducted the post-mortem examination on the dead body of the deceased on 21.8.1997, at

Godda, and had found the following ante-mortem injuries on the dead body:-Â

 (i) Multiple lacerated wound 16 in numbers in size of 1/8†with blackening and charring of the surrounding skin with skin margin inverted over

frontal and parietal part of skull, both side of face and near nasal side of both eyes with pellets intact. (ii) Three lacerated wounds of size of 1/8â€

blackening and charring of surrounding skin with skin margin inverted over left shoulder and upper part of left side of chest with oozing of blood. On

Dissection - Blood clots on soft tissues, scalp and face. Six pellets removed from scalp and face, few pellets entered into scalp cavity and had

lacerated brain matter, and blood was present in the brain substance. Â

On dissection of thorax and shoulder - blood was present in soft tissues, lungs were pale and normal. Pericardium was intact, all chambers of heart

were empty and normal. Â

On further dissection - no abnormality in spleen, liver, kidney, etc. Â

 This witness has stated the injuries in his view were gunshot injuries and head injury sustained by diseased, in ordinary course of nature, was

sufficient to cause death. The cause of death was shock and hemorrhage. He has stated that post-mortem report was not available, but the carbon

impression of the report prepared by him in the register was available, which he has proved and the same was marked Ext.-3. He has also stated

that six pellets were removed from the dead body and were sealed in a glass vial and sent to the police. In his cross-examination, he has stated that

the injuries could be possible by a single gunshot.Â

P.W.-13 is Gupteshwar Singh, the I.O. of the case. This witness has stated that on 20.8.1997, he was posted as Officer-Incharge of Pathargama

Police Station. He got a rumour that one person was injured by firearm at village Udaypura, who was being taken to Pathargama for treatment.Â

He made the Sanha entry of the information, which was perhaps entry No.457. He proceeded towards Pathargama Hospital, but he met the people

near  Raj Medical Shop on a jeep along with the injured. He recorded the fardbeyan of the informant Umakant Chaudhary at 22:45 hours and he

has identified the fardbeyan, which was earlier marked Ext. 2. He has also proved the endorsement on the fardbeyan, which was marked Ext. 5.Â

He has proved the FIR, which was marked Ext. 6. He has stated that he sent the injured to Godda Hospital and he came to the place of

occurrence, where he reached in the night at about 12:40 A.M. He recorded the statements of the witnesses and he had inspected the place of

occurrence.  He found the blood stains, which he seized, but the seizure list was not available. He arrested the accused persons and he also

seized two licensed guns, one in the name of Kuldeep and other in the name of Rajendra Singh and he also seized the twenty life cartridges and ten

fired cartridges. He has proved the seizure list, which was marked Ext. 7. The Guns were also produced in the Court and the same were marked

Exts. P/1 and P/2. He also arrested the accused persons. On the next day, at village Udaypura, while he was recording the statements of the

witnesses, he was informed about the death of    Pradeep Chaudhary. He has proved the inquest report of the dead body, which was prepared

by A.S.I. of Godda Police Station, and earlier marked as Ext. 4. He got the post mortem report, but the post mortem report was not available in the

case diary. He has also stated that the seized guns and fired cartridges were tested by the Sergeant Major, Godda, and he also received the report, but

the report was not available with him and he did not know, where the report was. He has also stated that he did not remember the contents of the

report. After completing the investigation, he submitted the charge-sheet. In his cross-examination, this witness has stated that during

investigation, he was informed that there was a dispute between the parties for a pond, but he did not make any investigation about the said dispute.Â

He has also admitted in his cross-examination that he also received one fardbeyan of Umakant Chaudhary, recorded by the Officer-Incharge of the

Godda Police Station, along with the inquest report. He had mentioned about the fardbeyan in the case diary and the same was recorded on 21.8.1997

in the Godda Hospital. He has denied the suggestion of making the faulty investigation.

The statement of the accused was recorded under Section 313 of the Cr.P.C., where the accused has denied the evidence against him. The

defence has also examined one witness D.W.-1 Mahendra Prasad Mandal, who is a formal witness proving a rent receipt. Some certified copies

have also been proved by the defence, which related to a complaint about the occurrence of the same day. On the basis of the materials on record,

the accused has been convicted and sentenced by the Trial Court as aforesaid. Â

Learned senior counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court

below, cannot be sustained in the eyes of law, as there are several contradictions in the evidence, and the prosecution is not able to bring home

charges against the accused beyond all reasonable doubts. It is submitted    by the learned senior counsel that as admitted by the I.O., P.W.-13

Gupteshwar Singh, the post mortem report and the ballistic expert report are not available, even though they were made available to the I.O. It is

also submitted by learned senior counsel that the present fardbeyan is a manufactured and ante-dated document, as is apparent from the fact that

P.W.-5 Sitabi Chaudhary, who is the father of the informant, has clearly stated in his examination-in-chief itself, that the signatures were obtained by

the police on a plain paper. P.W.-13 Gupteshwar Singh, the I.O., has admitted in his cross-examination that he had received the fardbeyan of

Umakant Chaudhary, recorded on 21.8.1997 by the Officer-Incharge of the Godda Police Station, at the Godda Hospital. Had any fardbeyan been

recorded by the I.O. of the case earlier, there was no occasion for recording any further fardbeyan by the Officer-Incharge of the Godda Police

Station. Even the contents of fardbeyan itself, is disputed by the informant himself, stating that he had not given any statement before the police, that

apart from the four named accused persons, six more persons were there, who were instigating the accused persons to kill the accused. The cause

of dispute as stated in the fardbeyan is also not supported either by the informant or by the witnesses, who have clearly stated that there was no

dispute for the pond or the sale proceeds of fishes, between the parties. The fardbeyan was recorded on 20.8.2004, which was a Thursday, and still

the FIR was sent to the Court of Chief Judicial Magistrate only on 22.8.2004 and there is no explanation of this delay, which shows that the FIR is an

ante-dated document. Learned senior counsel also submitted that even though in the FIR as also in the evidence of other eyewitnesses, it is stated that

the accused persons had assembled near the door of the cousin of informant and the present accused had fired the gun as soon as the deceased

opened the door, but in his evidence, the informant himself has stated that the accused persons had assembled near the well in front of the house of

the deceased, and the gun was fired from the well. P.W.-7 Saligram Chaudhary has stated that the said well was at the distance of about 50 feet

from the house of the deceased.Â

Learned senior counsel submitted that the evidence of P.W.-11 Â Â Â Dr. Vijay Kumar Bhagat shows that there were blackening and charring on

the surrounding of skin near the wounds, which show that the firing was made from a near distance, and not from a distance of about 50 feet from the

house of the deceased. Learned counsel further submitted that the I.O. has specifically admitted in his cross-examination, that guns recovered from

the house were licensed guns and it was sent for examination to the Sergeant Major and report was also received, but that report has been concealed

by the prosecution for the reasons best known to it. It is further submitted by learned senior counsel that the fardbeyan of the informant recorded at

Godda Hospital on 21.8.2004 at 5:00 A.M., is mentioned in the case diary, which shows that there was allegation upon two persons to have fired upon

the deceased. Learned counsel accordingly, submitted that the entire prosecution case is full of doubts, the benefits of which must go to the

accused.Â

Learned counsel for the State on the other hand has opposed the prayer submitting that the eyewitness, P.W.-3 Bijender Prasad Singh, Â P.W.-4

Sachidanand Chaudhary, P.W.-5 Sitabi Chaudhary, P.W.-7 Â Â Saligram Chaudhary and P.W.-10 Umakant Chaudhary, the informant, have fully

supported the prosecution case stating that it was this accused, who had fired the gun upon the deceased, and their ocular evidence is fully

corroborated by the medical evidence of P.W.-11 Dr. Vijay Kumar Bhagat. Learned counsel accordingly, submitted that there is no illegality in the

impugned Judgment of conviction and Order of sentence.

Having heard learned counsels for both the sides and upon going through the record, we find that the prosecution evidence is full of contradictions.

The informant has not even supported the contents of his fardbeyan in the case, in as much as, in the fardbeyan there is mention about six more

persons, who were instigating the accused persons to commit the crime, but in his evidence, the informant has clearly stated that he had not given any

such statement before the police. Though in the fardbeyan, it is also stated that the occurrence had taken place due to dispute of the sale proceeds

of the fishes of the pond, but in his evidence the informant has clearly stated that there was no dispute of pond or for the sale proceeds of the fishes,

between the parties, and he had not given any such statement before the police. Even the other witnesses, examined by the prosecution, have clearly

stated that there was no such dispute between the parties.  P.W.-5 Sitabi Chaudhary, the father of the informant has clearly stated in his

examination-in-chief itself, that his signature was obtained by the police at the time of recording the fardbeyan on a plain paper. These facts raise

considerable doubts about the recording of the fardbeyan in the night of occurrence, supported with the fact, that though the FIR was recorded on

20.08.1997 itself, but it was sent to the Court of Chief Judicial Magistrate on 22.08.1997, and there is no explanation for this delay. The recording of

the fardbeyan of the informant at Godda Hospital by the Officer-Incharge of the Godda Police Station on 21.8.2004, also creates a reasonable doubt

that no fardbeyan was recorded earlier. We further find that though all the witnesses have stated that there was no dispute between the parties due to

pond, but the I.O., P.W.-13 Gupteshwar Singh has stated that there was dispute of pond between the parties, but he had not made any investigation

regarding the same. There also appears concealment of evidence in this case by the I.O., in as much as, though he has stated that the seized

licensed guns and fired cartridges were sent to Sergeant Major, Godda, for examination and he had also received the report thereof, but he has stated

that the said report is not available and he did not remember the contents of the report, which is not believable. It is apparent that the report of the

ballistic expert is being concealed and adverse interference has to be taken for the same. We also find from the evidence on record that though in

the FIR, it is stated that the firing was made from close range from the door of the deceased, but it is surprising as to why in his evidence, the

informant P.W.-10 Â Â Â Umakant Chaudhary has stated that the accused had not assembled near the door of the deceased, rather they had

assembled near the well, from where the gun was fired, and P.W.-7 Saligram Chaudhary has stated that the said well was situated at a distance of

about 50 feet from the house of the deceased. If the gun was fired from that distance, there was no occasion for finding charring and blackening

marks on the skin of the deceased. We have also looked into the case diary and find that the fardbeyan of the informant recorded on 21.08.1997 at

5:00 A.M., by Godda police is copied in the case diary, which shows that there is allegation against two persons to have assaulted the deceased by

firearm, but the contents and recording of this fardbeyan is completely denied by the informant in his evidence. We are of the considered view that

the entire prosecution case is full of doubts, the benefits of which must go to the accused. Â

This apart, even the impugned Judgment passed by the Trial Court below, prima facie shows complete non-application of judicial mind, in as much

as, the I.O. has clearly stated that the guns recovered from the accused were the licensed guns and even in the FIR itself, it is stated that the firing

was made from the licensed gun, still there is conviction and sentence for the offence under Section 27 of the Arms Act.Â

In the facts of this case and on the basis of the materials on record discussed above, we are of the considered view that the impugned Judgment

of conviction and the Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, and even though the witnesses have

supported the prosecution case, the prosecution has failed to bring home the charges against the accused beyond all reasonable doubts, and the

appellant was entitled at least to the benefits of doubt.

For the foregoing reasons, the impugned Judgment of conviction dated 31st January 2012 and Order of sentence dated 02.02.2012, passed by the

learned Additional Sessions Judge-II, Godda, in S.T. No. 35 of 1998, convicting and sentencing the appellant for the offences under Sections  302 /

34 of the Indian Penal code and Section 27 of the Arms Act, are hereby, set-aside. The appellant Tapendra Kumar Singh @ Laddu Singh is given the

benefits of doubt and he is acquitted of the charges. The appellant is in custody undergoing the sentence. He is directed to be released and set at

liberty forthwith, if his detention is not required in any other case.Â

This appeal is accordingly allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this

Judgment.