Allowed

Chandra Mohan Choudhary v. State of Jharkhand

Jharkhand HC5 Sept 2018Cr.A(SJ)/154/2003

Case brief

AI extract

What is this about?

Criminal appeal against conviction for dacoity. The High Court set aside the conviction and acquitted the appellant due to doubtful identification by witnesses, inconsistencies in evidence regarding bullet injuries, and lack of recovery of weapons or looted articles.

What did the court decide?

Appeal allowed, conviction and sentence set aside, appellant acquitted of dacoity and discharged from bail liability.

Chandra Mohan Choudhary Vs State of Jharkhand — Writ and Judicial Review | Jharkhand HC (2018)

¶1

¶2

Cr. Appeal (S.J.) No. 154 of 2003

¶3

[Against the judgment of conviction dated 23.12.2002 and the order of sentence dated 24.12.2002, passed by the learned 8^th Additional Sessions Judge, Hazaribag in S.T. No.98 of 2001]

¶4

Chandra Mohan Choudhary, son of Ram Lal Choudhary, resident of VillageGumo, PS- Jhumri-telaiya, District-Kodarma.

¶5

.. Appellant

¶6

--Versus--

¶7

The State of Jharkhand …. Respondent

¶8

¶9

PRESENT : THE HON'BLE MR JUSTICE RATNAKER BHENGRA

¶10

For the Appellant : Mr. Prem Pujari Roy, Advocate; Mr. Deepak Kr. Dubey, Advocate. For the State : Mr. Sanjay Kr. Pandey, APP.

¶11

By Court: Heard both the counsels.

¶12

2. This appeal is directed against the judgment of conviction dated 23.12.2002 and the order of sentence dated 24.12.2002 passed by the learned 8^th Additional Sessions Judge, Hazaribag in S.T. No.98 of 2001 whereby and where under the learned court-below has convicted the appellant under section 397 IPC and sentenced to undergo RI for seven years. The period undergone by the appellant during investigation and trial was ordered to be set-off.

¶13

3. The prosecution case in brief as per the fardbayan dated 03.07.2000 of the informant Rajendra Sao P.W.5 is that Informant reached Kodarma (Telaiya) Railway Station at 6:00 a.m. by train, Bombay Mail in the morning from Bombay along with co-villagers Rajkumar Sao and Kishun Sao. Jagdish Sao, the father of the informant came to Kodarma Railway Station to receive the informant. The informant Rajendra Sao hired a jeep bearing No. BHM-1717 for a sum of Rs.120/- and proceeded to his village. It is further alleged that as soon as the aforesaid jeep reached at Chandwara river bridge at about 7:10 a.m., a scooter was there with three persons standing there. When the jeep crossed the said bridge, one black colour Rajdoot motorcycle was also there and three persons were standing there out of whom one of them asked to stop the jeep. When the jeep stopped they demanded 10 or 12 number wrench. The jeep driver denied to have such instrument and moved his vehicle ahead. It is further alleged that

¶14

¶15

the motorcyclist overtook the jeep and at about 7:20 a.m. when jeep reached near Biratar village the aforesaid motorcycle was seen standing there and jeep was forced to stop. In the meantime the other three persons arrived there on the scooter bearing No. CIO/ 6325 or 6335. All the accused persons were armed with pistol, knife and bomb and attacked them. Thereafter, accused persons asked them for money then informant gave 2200/- to them from his pocket. One of the accused person broke open his suitcase and looted 50 to 60 thousands of rupees. In the meantime one of the accused person gave knife blow, on the chest of the Rajkumar Sao. Thereafter, the accused persons had left the place by throwing a bomb and puncturing the tire of the jeep. It is further stated one of the accused person fired shot on the informant which passed the informant and caused injuries to the driver of the jeep.

¶16

4. On the basis of the fardbeyan of the informant Chouparan P.S. Case No. 118/2000 under sections 395 and 397 IPC was registered against six unknown persons. After investigation charge sheet was submitted against the accused persons and cognizance of the offence was taken and the case was committed to the Court of Sessions. Charge was framed under section 397 of I.P.C. and trial was held and at the conclusion of the trial accused person or the appellant herein was convicted and sentenced as aforesaid. Hence, this appeal.

¶17

5. Posecution has examined altogether six witnesses to prove the case out of whom P.W.5 Rajendra Sao is the informant of the case. P.W.1 is Hedyat Mian, the driver of the jeep; P.W.2 is the investigating officer of the case; P.W.3 is a hostile witness; P.W.4 Jagdish Sao is the father of the informant and P.W.6 is the Judicial Magistrate who conducted the Test Identification Parade of the accused person.

¶18

6. PW-5 Rajendra Sao is the informant of this case. Informant has stated in his deposition, almost the same as stated by him in his fardbayan. In his cross-examination the informant stated that the accused persons in the course of fleeing away had fired a gun shot which passed his temporal region and hit the jeep driver. PW-5 further stated in para-9 of his evidence had seen the accused at the place of occurrence and at police station. Informant identified the signature of

¶19

¶20

Kishun Sao and Jagdish Sao in the fardbayan which was marked as Ext. 1/1 and 1/2 respectively.

¶21

7. PW-4 Jagdish Sao is the father of the informant. P.W.4 in his deposition stated that accused had broke the box and looted Rs. 25000 from it. Another accused shot gun fire on the informant which hit the informant oh his temporal region and then the bullet hit on the arm of the driver. P.W.4 further stated that in the Test Identification Parade he identified the accused standing in the court. In his cross-examination P.W.4 stated that he had identified the accused person for the first time in the police station.

¶22

8. PW-1 Md. Hedyat Mian is a driver of the jeep. In his crossexamination, P.W.1 stated that dacoits were six in numbers and he had not seen the face of the dacoits. He further stated that dacoits had not covered their face. P.W.1 identified the accused produced in Court during trial but stated that he is a leader of Jharkhand Party and he is known to him from before and this accused was not in commission of the said dacoity.

¶23

9. PW-6 is the Judicial Magistrate, who conducted Test Identification Parade of Chouparan P.S. case no. 118 of 2000. He proved his signature on the T.I.P. chart which was marked as Ext. 4.

¶24

10. PW-2 is the Investigating Officer of this case. Investigating Officer has proved the signature of the informant on the fardbayan, endorsement on the F.I.R. and signature of the Officer-in-charge in the formal F.I.R which was marked as Ext.-1, Ext.-2 and Ext.-3 respectively.

¶25

Arguments of learned counsel for the appellant:

¶26

11. Learned counsel for the appellant Mr. Prem Pujari Roy submitted that first and foremost it is to be noted that the appellant Chandra Mohan Choudhary has not been named in the fardbeyan or FIR by the informant Rajendra Sao or PW-5. Therefore, the issue how his name came to appear in the case is important and crucial. The fact that he has not been named in the FIR would suggest that the appellant was not known to any of the witnesses or victims and therefore, the case was lodged against unknown persons. However, from the evidence of PW-4 Jagdish Sao, who is the father of the informant and identified the applicant in the test identification parade, it is apparent

¶27

¶28

that P.W.4 had known the appellant from before. The issue then arises if they had known the appellant from before then why did not they name him in the first instance during the lodging of the FIR. Therefore, when the name of the appellant Chandra Mohan Choudhary was included during investigation and after identification at the TIP, then the identification is one of a doubtful nature when at least two of the witnesses i.e. PW-4 and also PW-1, who was the driver of the jeep i.e. Md. Hedyat Mian gave reasons to know the appellant from before.

¶29

12. Learned Counsel for the appellant has then argued that according to the FIR as well as the evidence certain amount of cash, clothes and belt were looted during the occurrence. Counsel says that even on this looting of items the informant himself is inconsistent in his evidence, as he stated in his evidence the amount of Rs.85,000/was looted from him but in the fardbeyan the informant stated that Rs.50,000-/ or 60,000/- was looted from box. Counsel therefore, submitted that there is inconsistency about the looted amount. He also says that the scooter involved in the loot, bearing no. CIO/ 6325 or 6335 has not been seized or recovered and neither Rajdoot was seized or recovered. Counsel says that appellant was arrested on the next day and so if the appellant was involved but the recovery of alleged scooter or Rajdoot or the looted items or the money was not made. Counsel also argues that from the FIR as well as the evidence that there is indication of bullet injury on the temporal region of the informant and on the arm of the driver of the jeep but no recovery of alleged arms was made and neither weapon used in the assault been made exhibits and produced in court. Counsel therefore submitted because of the total lack of evidence regarding looted articles and weapon used in the offence hence conviction of the appellant under section 397 IPC cannot be sustained.

¶30

13. Counsel has also argued that though there is allegation of shooting and that too on the temple or head and arm, however, there is no blood-stained earth or blood-stained clothes recovered and exhibited. Moreover, there is no medical evidence of the doctor to substantiate the allegation of shooting being done and its accompanying injury. The offence alleged under section 397 IPC

¶31

¶32

consists of dacoity and accompanying bodily harm to the victims, however, without recovery of the alleged pistol or even bullets or spent cartridges, and in absence of injury report conviction of the appellant under section 397 IPC is not possible.

¶33

Arguments of learned counsel for the State:

¶34

14. Learned counsel for the State has argued that there is enough evidence against the appellant for his conviction under section 397 of I.P.C. First and foremost, appellant was arrested immediately i.e. on 07.07.2000 and he was put on parade on 31.07.2000 itself which is not very distant in time and he was identified during the TIP and also during the trial. Therefore, this is a case of clear cut identification by the witnesses. Further, from the evidence it is revealed that two persons were also injured. Learned counsel for the State further submitted that the Investigating Officer who is PW-2 had also visited the place of occurrence and he had found that the jeep’s tyre was punctured and this could only have been done by the shot. Learned counsel for the State further submitted that the impugned judgment of conviction and order of sentence passed by the learned trial court below is based on proper evidence and be sustained and upheld by this court.

¶35

FINDINGS

¶36

15. Having heard both the counsels and gone through the records of the case and the evidences, the following points stand out:

¶37

(i) First and foremost that this is a case in which in the fardbayan or in the FIR no accused has been named and neither has this appellant been named, therefore, at the beginning the appellant has not been identified straightway, rather his name has come subsequently. Therefore, it is very necessary to see how his name has appeared in the case. For such identification, two of the witnesses are crucial and they are P.W.4 Jagdish Sao, who is the father of the informant and P.W.-1 Md. Hedyat Mian, who is a driver of the jeep. P.W.-4 Jagdish Sao, the father of the informant has in his evidence claimed to identify the accused and deposed that in the Test Identification Parade he identified this accused or the appellant herein. But P.W.4 in his crossexamination at para-11 stated that officer-in-charge had brought the accused to the police station and told him to identify the accused and

¶38

¶39

he had identified the accused for the first time in the police station. So, as per deposition of P.W.4 he had identified the accused for the first time in the police station then the identification of the appellant in the Test Identification Parade is doubtful. Further on the point of identification, the evidence of PW-1 Md. Hedyat Mian, who is a driver of the jeep, is important. He has in his evidence in para-4 & 5 deposed that after the incident he had gone to the police station and that after the incident a person had been arrested and he was shown that person. P.W.1 further deposed that he was not able to recognize or identify that person. The evidence of PW-1 in para-4 would indicate that he as well as PW-4 was called at the police station but unlike PW-4 this driver had said that he did not identify or recognize the person in police station and therefore, this is inconsistent or in contradiction to the evidence of PW-4 who had identified the accused or the appellant at the police station. The evidence of PW-1 in para-5 is also important wherein P.W.1 has deposed that he knows the accused or appellant because he is the leader of the Jharkhand Party and he deposed that this person Chandra Mohan Choudhary was not present in the looting. Therefore, from the evidence of PW-1 and PW-4 the identity of the appellant in the involvement of the crime does not seem to be established.

¶40

(ii) The next aspect of the evidence which raises doubt in the prosecution case is the evidence regarding assault by firing of bullets and injury sustained by P.W.1 and P.W.5. PW-4 Jagdish Sao in para-3 and para-6 has deposed that the assailant has fired a bullet which had hit Rajendra Sao on his temple and then also the Jeep driver on his arms. PW-5 Rajendra Sao, has also in his evidence in para-3 deposed that the Jeep driver had been hit by a bullet. Further in para-8 he also deposed that he was hit on the temple and also the Jeep driver was hit by bullet. This evidence of PW-4 and PW-5 is shockingly absurd. First and foremost, the kind of injury that has been indicated that a shot was fired and it had hit on the temple and traveled out of the head of the informant would have been absolutely fatal and in all probability the informant would not have been alive. By strange coincident it also first hits PW-5 on the temple and then also hits the Jeep driver. All these allegations with the injury by the bullets is not at all supported

¶41

¶42

by any injury report or any evidence of the doctor. It is totally difficult to believe such occurrence as narrated by PW-4 and PW-5 in their evidence. Moreover, though it is said that the appellant was arrested on next day, there has been no recovery made of any money whatsoever, no recovery has also been made of the scooter or Rajdoot that was used in the alleged crime. Further, the incident is said to have been done with the help of 5-6 persons but no other names have been apparently brought on record. Even no recovery of any pistol or revolver or any bullets or cartridges was made out.

¶43

16. Thus, on the basis of identification of the appellant or more so on identification that was contrived by taking the witnesses to the police station before the Test Identification Parade. Further kind of assaults that have been indicated by bullet fired from pistol from which injuries being sustained on the head of the informant and on the arms of the jeep driver with no medical evidence to prove the same, totally destroys any kind of case, that is said to be set up against the appellant. Hence, the prosecution has failed to prove the charges against the appellant under section 397 of I.P.C.

¶44

17. Therefore, based on all the aforesaid evidences this Court is unable to sustain the judgment of conviction dated 23.12.2002 and the order of sentence dated 24.12.2002 passed by the learned 8^th Additional Sessions Judge, Hazaribag in S.T. No.98 of 2001 and the conviction and sentence are set-aside. The appellant, namely Chandra Mohan Choudhary is therefore, acquitted of the charge under section 397 IPC and set free. He is discharged from his liability of bail bonds.

¶45

18. Accordingly, this appeal is allowed.

¶46

(Ratnaker Bhengra, J.)

¶47

High Court of Jharkhand, Ranchi, Dated- 5^th September, 2018, SB/ NAFR.

Chandra Mohan Choudhary v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Chandra Mohan Choudhary v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Bhim Sharma And Anr. Vs State of Jharkhand

Babudhan Mariya Vs State of Jharkhand

Ragho Mahra And Anr. Vs State of Jharkhand

Lurdhu Mohuli And Ors. Vs State of Jharkhand

Barnabas Kisku Barna Vs State of Jharkhand

Wakil Murmu Akal Murmu And Anr. Vs State of Jharkhand

What is this about?

What did the court decide?

What is this about?

What did the court decide?

What the court decided

A compact analysis

Bhim Sharma And Anr. Vs State of Jharkhand

Babudhan Mariya Vs State of Jharkhand

Ragho Mahra And Anr. Vs State of Jharkhand

Lurdhu Mohuli And Ors. Vs State of Jharkhand

Barnabas Kisku  Barna Vs State of Jharkhand

Wakil Murmu  Akal Murmu And Anr. Vs State of Jharkhand

Barnabas Kisku Barna Vs State of Jharkhand

Wakil Murmu Akal Murmu And Anr. Vs State of Jharkhand