Allowed

Chhedu Pradhan And Ors. v. State of Jharkhand

Jharkhand HC10 Sept 2018Cr.A(SJ)/1128/2003

Case brief

AI extract

What is this about?

In this dacoity appeal, the High Court acquitted the appellants. The court found the prosecution evidence unreliable due to contradictory statements by witnesses regarding the victims' whereabouts after the incident, failure to recover the stolen bicycle and watch besides the cash, and non-examination of the Investigating Officer and T.I.P. witnesses.

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellants acquitted of charges and discharged from bail bond liability.

Chhedu Pradhan And Ors. Vs State of Jharkhand — Quashing and FIR | Jharkhand HC (2018)

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Criminal Appeal (S.J.) No. 1128 of 2003

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[Against the judgment of conviction and order of sentence dated 24.06.2003 and 25.06.2003 respectively, passed by the learned Additional District & Sessions Judge, Fast Track Court No.V, Gumla in S.T. No. 248/86 of T.R. No.45/2003]

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Chhedu Pradhan son of Karamdayal Pradhan;

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Galu Kandulna son of Gendo Kandulna;

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Tanis Topno son of Joseph Topno;

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Sukhdeo Topno son of Jaman Topno;

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Daud Topno son of Sanika Topno.

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All are residents of village Pahargaon, Police Station-Kamdara, DistrictGumla. …Appellants

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--Versus-The State of Jharkhand …. Respondent ---

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PRESENT : THE HON'BLE MR JUSTICE RATNAKER BHENGRA

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For Appellant Nos. 1,3,4 & 5: Mr. Mahesh Kumar Sinha, Advocate; Mr. Ram Naresh Singh, Advocate. For Appellant No. 2 : Mr. Dharmendra Kr. Malityar, Advocate. For the State : Mr. Gouri S. Prasad, A.P.P.

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By Court:

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Heard learned counsel for the appellants.

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2. Instant appeal arises out of judgment of conviction and order of sentence dated 24.06.2003 and 25.06.2003 respectively, passed by the learned Additional District & Sessions Judge, Fast Track Court No.V, Gumla in S.T. No. 248/86 of T.R. No.45/2003 whereby and whereunder all the appellants were convicted under Sections 395 of the Indian Penal Code and further appellant no. 1, 2, 4 and 5 were convicted under 412 of I.P.C. All the appellants were sentenced to rigorous imprisonment for 3 years and 6 months under Section 395 of the Indian Penal Code. Further the appellant no. 1, 2, 4 and 5 were sentenced to undergo rigorous imprisonment for 3 years for the offence under Section 412 of the Indian Penal Code. Both the sentences were ordered to run concurrently.

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3. Prosecution case,in brief, as per the fardbayan dated 18-06-1985 of the informant Laxman Lohra P.W.1 is that on 17-06-1985 informant along with his cousin brother Feeru Lohra P.W.3 had gone to the Kurkura Bazar to purchase hens. But as they reached late in the market hence they could not purchase hens and both brothers were returning from bazar in one bicycle at about 5:30 p.m. Informant further stated that in course of their returning when they reached on the unmetalled road near the Pakra railway crossing they found six persons standing there and they stopped them and asked to give their money. On this the informant replied that they had no money. Then one person put knife on the informant’s chest and the remaining accused persons surrounded them and threatened to give money failing which they would kill him. Informant out of fear took out Rs.303/- from his pocket and gave it to them. But they took search of informant and his brother. Thereafter, they snatched wrist watch of the informant’s brother and informant’s bicycle of Hero model and fled towards North of Tongri. It is further stated that all the criminals were of the age between 24 years and 28 years and were speaking local language. Therefore, the informant and his brother went to Pakra village and informed the people about the occurrence. The informant’s brother Feeru Lohra went to his village and on the next day morning his father and elder brother Balkishun Lohra came to village Pakra. They were going towards the place of occurrence when they saw two persons passing from there and they identified them who were in the yesterday’s looting occurrence. Then both of them were chased and one person ran away and other person was caught, who disclosed his name as Lajrus Topno of village- Pahargaon, PS- Kamdara, District- Gumla and disclosed the names of his associates as Chhedu Pradhan, Galu Kandulna, Sukhdeo Topno, Tanish Topno and Daud Topno all resident of village- Pahargaon, PS-Kamdara, District Gumla. It is also alleged that looted cash of Rs 303/- was also recovered from the accused persons.

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4. On the basis of the fardbayan of the informant FIR was registered as Kamdara P.S. Case No. 08/85 against the six accused persons under Section 395 I.P.C. After investigation, charge sheet was submitted under Sections 395/ 412 of I.P.C. against the accused persons and cognizance of the offence was taken and the case was committed to the Court of

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Sessions. Charges were framed under section 395 of I.P.C against all the accused persons or appellants herein including one other accused person Lazrus Topno. Charge under section 412 of I.P.C. were further framed against four accused persons or appellant no. 1, 2, 4 and 5 herein. Here it is pertinent to note that the trial of the accused Lazrus Topno was separated. Trial was held and at the conclusion of trial accused persons or appellants herein were convicted and sentenced as aforesaid. Hence, this appeal.

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5. Prosecution has examined altogether thirteen witnesses in support of its case out of whom P.W.1 Laxman Lohra is the informant of the case. P.W.2 is Ranjeet Ohdar; P.W.3 is Feeru Lohra, who is the cousin brother of the informant and he had accompanied the informant to the market on the day of occurrence; P.W.4 Balkishun Lohra is also the brother of the informant; P.W.5 Ajfarullah Malik is the station master of Pakra Railway Station and seizure list witness; P.W.6, P.W.7, P.W.8, P.W.10 and P.W.11 are tendered witnesses; P.W.9 Budhdeo Sao is also a seizure list witness; P.W.12 Siyaram Gope and P.W.13 Birendra Kumar Khatri are formal witnesses.

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6. PW-1 is Laxman Lohra is the informant of the case. Informant has deposed that on the date of occurrence, i.e. on 17.06.1985 at about 5:00 p.m. he along with his brother Feeru Lohra had gone to Kurkura market for purchasing hens. When they were returning to their house from Kurkura Market by bicycle and they crossed railway crossing and reached Pakra unmetalled road, they were stopped by 6 persons and they demanded money. On refusal, one out of them namely Galu put knife on his stomach and remaining accused persons surrounded them and threatened them. Galu put hand in his pocket and then he gave Rs 303/ to him. They looted wrist watch of his brother and informant’s Hero Royal bicycle and fled away. Informant further deposed that both brothers went to Pakra village and informant stayed at Pakra village and his brother went home at Bakaspur village. Next morning, his father and elder brother Balkishun Lohra came to him at Pakra village and thereafter they went to the place of occurrence and they saw two accused persons on the way. On seeing them both the accused persons started fleeing away but they were chased and one of them was caught, who disclosed his name as Lazrus Topno, thereafter, he

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disclosed the name of his companions. The other accused person fled away. Informant further stated that he had identified all the six accused persons in identification parade.

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7. PW-2 Ranjeet Ohdar has deposed that on 18.06.1985 at about 8:00 a.m. Laxman Lohra and others had brought one person who disclosed his name as Lazrus Topno and he disclosed the name of his companions. Lazrus Topno had admitted that he along with his other companions had looted the informant and his brother. P.W.-2 further deposed that the said Lazrus Topno was taken to the police station and handed over there. P.W.2 further said that he also gone to the police station.

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8. PW-3 Feeru Lohra is the cousin brother of the informant and he had accompanied the informant to the market on the date of occurrence. P.W.3 stated in his evidence that on the day of occurrence at about 5:00 p.m. he was returning along with his brother Laxman Lohra from the market on bicycle. When they reached near Pakra unmetalled road they were stopped by the six persons and one of the accused person showed knife to his brother and looted a sum of Rs.300/- and bicycle from him and looted his wrist watch. Thereafter, they went to Pakra village and they stayed during night there. P.W.3 further deposed that next morning while they were returning they met with his father and brother Balkishun, to whom they informed about the occurrence. When they were going towards the place of occurrence they saw two persons who had participated in the looting and they chased and caught one of the miscreant, who disclosed his name as Lazrus Topno and he disclosed the name of his other companions,.

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9. P.W.4 Balkishun Lohra is brother of the informant. P.W.4 stated in his evidence that on the day of occurrence P.W.1 and P.W.3 had gone to Kurkura market for purchasing hens. At about 12:00 a.m. - 1:00 a.m. in the night, P.W.3 Feeru Lohra returned and told him about looting and said due to the said looting Laxman Lohra did return. Hence about 4:00 a.m. he along with his father went in search of Laxman Lohra who met them in Pakra village, who said about the incident of looting. Thereafter, they went towards the Place of occurrence and there they saw two persons were coming towards them. Laxman told that these boys were involved in the incident of looting and hence they were chased and one of them was

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caught, who disclosed his name as Lazrus Topno and he also disclosed the name of other companions.

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10. PW-5 and P.W.9 are the seizure list witnesses to the recovery of notes. Both these witnesses have deposed that search of the accused persons were taken in their presence. P.W.5 has proved his signature on the seizure list of notes which was marked as Ext.-2 to Ext.-2/3. P.W.9 has also proved the seizure lists which were marked as Ext.-3 to Ext.-3/C.

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11. PW-12 and P.W.13 are formal witness. P.W.-12 has proved Test Identification chart of the recovered notes prepared by Kamdra Block Development Officer, Kamdara, which is marked as Ext.-4. PW-13 has proved the TIP chart dated 02.09.1985, prepared by the Judicial Magistrate, Gumla which was marked as Ext.-4/1.

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Arguments of learned counsel for the appellants:

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12. Learned counsel for the appellants, in his arguments, has first taken this court through the depositions of the informant PW-1 Laxman Lohra, and submitted that this witness has deposed that after the incident of looting both the brothers had gone to Pakra village and informant stayed at Pakra village and his brother P.W.3 Feeru Lohra returned home at Bakaspur village. Subsequently, on the next day, his father and his elder brother Bal Kishun Lohra had reached Pakra village searching for the informant. Thereafter, they proceeded towards the place of occurrence wherein they saw two accused persons on the road. Seeing them both the accused started fleeing and then they chased them and had apprehended one of the accused. The apprehended revealed his name as Lazrus and then he revealed the names of the other accused who were involved in the incident of looting. Then they had taken this accused to Pakra village and then to his village and thereafter the accused was taken to the police station. Learned counsel pointed out para-22 and submitted that 5-6 persons had gone to the police station, amongst them were Parsuram Ohdar, Ranjeet Ohdar, Ranglal Lohra, Balkishun Lohra and the informant himself but in the fardbayan anyone else’s signature was not taken which raises doubt in the prosecution case.

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13. Learned counsel has then referred to the evidence of PW-3 Feeru Lohra, who is the brother of the informant. Counsel has, first and foremost,

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said that he is not a reliable witness because his first statement begins with wrong statement wherein he has stated that the date of incident is 14.09.1985 whereas actually the incident occurred on 17.06.1985. Counsel also says that this witness has referred to the amount of money being looted as amounting to Rs.300/- only while in the FIR it has been indicated as Rs.303/-. Counsel for the appellants then submitted that this witness has deposed in para-1 that after the incident of looting both the brothers had gone to Pakra village and stayed there in the night but, in his evidence PW-1 deposed that he stayed in Pakra village while his brother P.W.3 Feeru Lohra ran to Bakaspur village. Counsel says this is a significant difference as either both of them stayed in village Pakra after the incident of looting or they had stayed in different village i.e. informant stayed at Pakra village and P.W.3 returned at his home at Bakaspur village. So, there is inconsistency in the statements of both the brothers and therefore, the entire prosecution case becomes doubtful.

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14. Learned counsel for the appellants has then referred to the evidence of PW-4 Bal Kishun Lohra, who is another brother of the informant and submitted that this witness also deposed the date of occurrence first being on 14.09.1985 and then again he says 14.06.1985 and therefore says that PW-4 is fully confused and this is only possible because the allegations are not very definite against the accused persons or the appellants and therefore, the evidence of this person taken along with the others casts much doubt in the prosecution case.

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15. Learned counsel has then referred to the evidences of P.W.6, P.W.7, P.W.8, P.W.10 and P.W.11 submitted that these witnesses are tendered witnesses and they have not supported the prosecution case. 16. Counsel has then referred to the evidence of P.W.9 Budhdeo Sao, who is a seizure list witness and submitted that his evidence is also doubtful because he is also confused about the date of occurrence because he opens by saying that the incident is of the year 1986 but the incident occurred in the year 1985.

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17. Learned counsel for the appellants has then pointed out to the evidence of P.W.12 Siyaram Gope and submitted that he has proved the signature of the BDO, Kamdara on the T.I.P chart of the recovered notes which is Ext.4. However, counsel for the appellants has deposed in his

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cross-examination that the TIP chart was not written in his presence. Also counsel has said that it has come in the evidence that he is a munshi and therefore, how can he recognize and prove the signature of the BDO and therefore, evidence of P.W.12 is full of discrepancies.

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18. Counsel for the appellants has then referred to the evidence of P.W.13 Birendra Kumar Khatri who is an Accountant in the Civil Court and a formal witness. He has proved the signature of judicial magistrate on the T.I.P chart of the accused persons, which has been marked as Ext.4/1. Counsel for the appellants, however, submitted that this witness has also deposed that the T.I.P chart was not made in his presence.

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19. Learned counsel for the appellants also points out that more crucially the other two items which could be considered more tangible and more valuable such as wrist watch and bicycle which would have been a big piece of evidence were not recovered at all. Counsel has argued that on the other hand some money or rupees have been recovered and whether the recovered money actually belonged to the informant or the victims or whether they belonged to the appellants themselves cannot proved beyond reasonable doubt. It is not believable that soon after the persons were apprehended i.e. on the next day looted money amounting to Rs. 303/- was recovered but it was not possible to recover the watch and bicycle, i.e. simply not believable and on this basis itself, the case of the prosecution totally collapses.

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20. Counsel for the appellants has also argued that the Judicial Magistrate, who conducted the T.I.P of the accused was not examined which is a big failure on the part of the prosecution case. Similarly, the Investigating Officer of the case has not been examined and for his nonexamination, there are many aspects of the case which could have been put to the Investigating Officer and hence due to non-examination of the investigating officer appellants have been prejudiced.

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Arguments of the learned A.P.P., appearing on behalf of the State:

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21. Learned A.P.P. Mr. Gauri Shankar Prasad, has argued that it has been argued by the appellants that the victim’s one of whom is an informant is an interested witness. Learned A.P.P. has argued that it is quite natural for a victim of a case to be examined and therefore, for the

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appellants to say that he cannot be examined is a very foolish argument. He has argued that simply they were threatened. It has come in the evidence of the victim brothers that they were threatened by knife and they were surrounded by six persons and therefore, under the circumstances, they are bound to be witnesses. Money was looted from them and even a wrist watch and a bicycle was looted and in such circumstances, it cannot be said that they cannot be made witnesses, they are being most natural and proper witnesses and their evidences have to be fully accepted.

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22. Learned A.P.P. further argues that the evidence of these witnesses are also very appropriate and relevant because it has not come anywhere in the evidence or in the records that the appellants were known to them from before. They are totally unknown persons and there is no reason why the informant or the victim brothers will make false allegations against the appellants unless such incident had taken place. Moreover, learned counsel has argued that there is not an iota of enmity indicated between the two parties and therefore, in the background of absence of any enmity and when the appellants are unknown to them they will not make false charges of a serious offence like dacoity against the appellants.

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23. Learned A.P.P. has also argued that it is not the amount of money that matters but it is a crime that matters. Whether one steal Rs.1000/- or Re.1/- but there should be five persons and in this incident accused were six persons and although they had looted even a small amount then it would come within the purview of dacoity under section 395 of I.P.C. and also under Section 412 I.P.C which they were convicted of. Learned A.P.P. has also pointed out from the evidence of informant PW-1 that three notes of Rs.100/- each were looted plus one note of Rs.2/- plus one note of Re.1/- and it has been graphically described. Therefore, it cannot be said by the appellants that the money that was recovered was of a lesser amount. Therefore, the amount has also been correctly proved. Learned A.P.P. has also argued that the person first apprehended was Lazrus and he had named all the other accused persons involved in looting. Learned A.P.P. has also argued that for convicting the appellants, only the evidence of PW-1 and PW-3,who are also victim are sufficient and hence, conviction of the appellants can be sustained.

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24. Regarding the identification of the accused in the T.I.P, it has come in the evidence of PW-1 that he had identified all the six accused in the TIP and he had also recognized Lazrus and Tanis in the dock and that he had deposed that he will also be able to identify the others if they are shown to him. Therefore, learned A.P.P. has argued that on the basis of all aforesaid arguments, the appellants are bound to be convicted. Before parting, he has also said that the non-examination of the Investigating Officer will not prove fatal because the evidences of PW-1 and PW-3 are sufficient and they have fully described the place of occurrence and they have also described the manner of occurrence and on the basis of two victims, it is considered sufficient evidence. Here we have two witnesses, who are giving similar evidence regarding the place of occurrence and manner of occurrence and therefore, non-examination of the investigating officer did not cause prejudice to the appellants. Lastly, learned counsel for state submitted that learned trial court convicted the appellants based on evidence and hence the impugned judgement of conviction and order of sentence shall be sustained and upheld by this court.

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FINDINGS

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25. Having heard argument of the learned counsel of both the parties, gone through the evidence and fact and circumstances of the case, following is observed and concluded:-

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(i) I, find from the fardbayan and the deposition of the informant Laxman Lohra that on the day of occurrence informant P.W.1 along with his cousin brother P.W.3 Feeru Lohra were returning home in the evening by bicycle from Kurkura market and on the way the incident of looting took place at an unmetalled road near Pakra Railway crossing. Informant has further stated in his fardbayan as well as in his deposition at para-3 that after the incident of looting both the brothers i.e. P.W.1 and P.W.3 firstly went to Pakra village and informant stayed at Pakra village whereas P.W.3 returned his home at village Bakaspur. But, P.W.3 in his examination-in-chief deposed that after the incident of looting both the brothers went to Pakra village and both stayed in night at Pakra village itself. Hence, variation in deposition of both P.W.1 and P.W.3 as to after the incident of loot both the brothers stayed at Pakra village in night or P.W.1 stayed at Pakra village and P.W.3 returned his home at

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Bakaspur village makes the evidence of informant P.W.1 and P.W.3 incredible and unreliable.

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(ii) From the record, I find that incident occurred on 17-06-1985 and on the next day i.e. on 18-06-1985 all the accused persons or appellants herein were arrested and the seizure list of recovered notes were prepared. On the one hand prosecution claims to have recovered the notes from the appellants and made seizure list of the recovered notes and on the other hand prosecution did not recover the more tangible articles wrist watch and Hero bicycle said to be looted from P.W.1 and P.W.3 and this makes the prosecution case further doubtful.

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(iii) The judicial magistrate, who conducted the T.I.P. of the accused persons was not examined. Further, the BDO, Kamdara who conducted the T.I.P of seized notes was also not examined. Even the investigating officer of the case was also not examined and hence, the place of occurrence could not be proved. Hence, non-examination of the Judicial Magistrate, B.D.O. and investigating officer caused prejudice to the appellants particularly when the offence relates to conviction under 395 and 412 of IPC.

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26. Hence, for the aforesaid reasons, the prosecution has not been able to prove the charges under section 395 of I.P.C and consequently under section 412 of I.P.C. against the appellants.

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27. Accordingly the impugned judgment of conviction dated 24.06.2003 and order of sentence dated 25.06.2003 passed by the learned court below in S.T. No. 248/86 of T.R. No.45/2003 cannot sustain and is set-aside. Appellants are acquitted of the charges and discharged from the liability of bail bond.

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28. Accordingly, appeal is allowed.

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi, Dated 10^th September, 2018, SB/ NAFR

Chhedu Pradhan And Ors. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Chhedu Pradhan And Ors. v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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