Pankaj Kumar Sahu Vs State of Jharkhand

Criminal Appeal (DB) No. 218 of 2019

Against the judgment and order of conviction and sentence dated 15.01.2019 passed by Shri Swarn Shanker Prasad, learned Judicial Commissioner-VII-cum-Special Judge, C.B.I. (AHD)-cum-Special Court (CAW), Ranchi, Deoghar in Sessions Trial No. 420 of 2017/ T.R. No. 71 of 2017

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Pankaj Kumar Sahu, son of Sri Ganesh Sahu, resident of Pithoria, P.O. & P.S. Pithoria, District Ranchi

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

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PRESENT

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HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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For the Appellant : Mr. Vikash Kumar, Advocate For the Respondent : Mr. Vishwanath Roy, Spl.P.P. For the Informant : Mr. Awanish Shekhar, Advocate

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CAV on 09.09.2024 Delivered on 01.10.2024

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Rongon Mukhopadhyay, J. : 1. Heard Mr. Vikash Kumar, learned counsel for the appellant and Mr. Vishwanath Roy, learned Spl.P.P. as well Mr. Awanish Shekhar, learned counsel appearing for the informant.

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2. This appeal is directed against the judgment and order of conviction and sentence dated 15.01.2019 passed by Shri Swarn Shanker Prasad, learned Judicial Commissioner-VII-cum-Special Judge, C.B.I. (AHD)-cum-Special Court (CAW), Ranchi, in Sessions Trial No. 420 of 2017/ T.R. No. 71 of 2017, whereby and whereunder, the appellant has been convicted for the offence punishable u/s 307 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life along with a fine of Rs. 10,000/- and in default in payment of fine to undergo further simple imprisonment for three months.

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3. The prosecution case arises out of the Fardbeyan of Shiv Brat Sahu recorded on 26.01.2017 wherein it has been stated that on the same day at 3.45 p.m. he was in his shop Krishi Kendra-cum-Anokhi Telecom along with his wife Basanti Devi when all of a sudden Pankaj Kumar Sahu (appellant)

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entered into his shop and started indiscriminate firing as a result of which he sustained two firearm injuries on his left hand and his wife was struck with 3-4 bullets on her abdomen. The accused thereafter fled away and in course of fleeing the brother of the informant, namely, Madhu Sahu was also fired upon, but he had a providential escape. The informant and his wife were taken to RIMS where their treatment is going on. The informant has claimed that Pankaj Kumar Sahu along with his accomplice Lalu @ Nitesh Gope under a conspiracy have repeatedly tried to commit the murder of the informant.

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Based on the aforesaid allegations, Pithoria P.S. Case No. 14/2017 was instituted for the offences punishable u/s 324, 326, 307 and 120B of the I.P.C. and Section 27 Arms Act against Pankaj Kumar Sahu and Lalu @ Nitesh Gope. Charge-sheet was submitted against Pankaj Kumar Sahu while investigation was kept pending against Lalu @ Nitesh Kumar Sahu and after cognizance was taken, the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 320 of 2017. Charge was framed against the accused person for the offences punishable u/s 324, 326, 307 and 120B of the I.P.C. and Section 27 of the Arms Act which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

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4. The prosecution has examined as many as ten (10) witnesses in support of its case.

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P.W. 1 Gutan Oraon has stated that on 26.01.2017 at 4 p.m. he had gone to purchase seed from the shop of Shiv Brat Sahu. Shiv Brat Sahu as well as his wife were present in the shop. He has stated that a man wearing a helmet had entered in the shop and started firing from his pistol as a result of which Shiv Brat Sahu and his wife suffered firearm injuries. The person who had fired was named Pankaj.

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In cross examination he has deposed that he does not know about the incident and has stated whatever has been heard by him.

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P.W. 2 Uttam Kumar has stated that the incident is of 27.01.2017 at 9 am and he had gone to Krishi Kendra, the shop of Shivbrat Sahu on seeing the presence of Police. A seizure list was prepared of empty cartridges in which he had signed as a witness. He has identified his signature in the

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seizure list which has been marked as Exbt-1. He had heard that on the previous day Pankaj had fired upon Shivbrat Sahu and his wife.

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In cross-examination he has deposed that he was not present when the incident had occurred.

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P.W.3 Ajay Mahto has stated that on 27.01.2017 at 09:00AM he and the others were taking a walk when he saw the presence of Police in front of the shop of Shivbrat Sahu. He found the Police involved in investigation and seizure was made of five spent cartridges and two front portion of a cartridge made of copper. He has identified his signature on the seizure list which has been marked as Exbt.-1/1. He had heard that firing was done at the said place by the nephew of Shivbrat Sahu.

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In cross-examination he has deposed that he was not present at the time of the occurrence.

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P.W. 4 Madhu Sahu has stated that the incident is of 26.01.2017 at 03:45PM in the shop of Shivbrat Sahu. He was at that time sitting in a shop adjacent to the shop of Shivbrat Sahu. He had heard sounds of firing from the shop of his brother Shivbrat Sahu at which he came out of the shop and peeped at the shop of his brother. He saw Pankaj Kr. Sahu coming out of the shop with a pistol in his hands. Pankaj Kr. Sahu was wearing a white helmet and blue track suit. He out of fear, entered into his shop and closed its door. He has stated that Pankaj Kr. Sahu had however, fired at him from the ventilator but he escaped unhurt. After the situation became normal, he came out and went to the shop of Shivbrat Sahu and found him in an injured condition with a firearm injury on his left hand. He had seen blood coming out from the wound in the abdomen of his sister-in-law. He had immediately taken his brother and sister-in-law to RIMS where they were treated. He has stated that about two years back the accused had stabbed his son.

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In cross-examination he has deposed that Pankaj Kr. Sahu is his nephew. There is a litigation pending in Court between the parties with respect to a land. He has deposed that the accused was wearing a helmet. There has been a compromise between the parties with respect to partition of properties.

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P.W. 5 Shivbrat Sahu is the informant who has stated that the incident is of 26.01.2017 at 03:45PM. He was in his shop Krishi Kendra cum Anokhi Telecom along with his wife when all of a sudden Pankaj Kr. Sahu and Nitish Gope had entered into his shop and Pankaj Kr. Sahu had resorted to indiscriminate firing as a result of which he was struck with two bullets on his left hand and his wife suffered three fire arm injuries on her abdomen and she fell on the ground. Pankaj Kr. Sahu thereafter started fleeing away and in course of his escape he had fired upon Madhu Sahu who escaped unhurt. He and his wife were thereafter taken to RIMS where both were treated. His fardbeyan was recorded by the Police in the Emergency Ward of the hospital. He has proved his signature in the fardbeyan which has been marked as Exbt2. Prior to this incident on 31.12.2016, Pankaj Kr. Sahu had entered into the same shop and fired at him as a result of which he had suffered injuries on his left thigh for which a separate case was instituted. On 26.09.2013 Pankaj Kr. Sahu had stabbed Suraj Deo Sahu 5-6 times. Suraj Deo Sahu is the son of Madhu Sahu. He has stated that on 20.04.2016 Pankaj Kr. Sahu, his father Ganesh Kr. Sahu and Vikash Kr. Sahu had set fire on his shop at 11:30 PM.

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In cross-examination he has deposed that Ganesh Sahu is his brother and Pankaj Kr. Sahu is his nephew. There is a case of partition going on between them. Due to the sudden firing, he could not see as to who was standing at which place. He had not raised any alarm. Except him no body had seen the occurrence. The Police had not recorded his fardbeyan.

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P.W. 6 Basanti Devi was with her husband in the shop on 26.01.2017 at 3.45 p.m. She has stated that suddenly Pankaj Kumar Sahu had entered into the shop and started firing and the bullets struck her as well as her husband. Her husband received firearm injuries on his left hand while she received such injury in her abdomen. Both of them fell on the ground and later on they were taken to RIMS for treatment. She had become unconscious on account of the firearm injuries she suffered and she regained consciousness after five days in RIMS. Prior to this incident on 31.12.2016 Pankaj Kumar Sahu had entered into the shop and had fired at her husband and two bullets had struck him on his left thigh.

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In cross-examination she has deposed that the person who was firing was wearing a helmet. She does not know the owner of the adjacent shop. Pankaj is her nephew. A land related case is going on between the parties in Court. The house of Pankaj is adjacent to her house. Both the families are not on talking terms since the last 9-10 years. At the time of the incident there was no customer in the shop.

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P.W. 7 Tusar Kant Jha was posted as a Sergeant Major in Ranchi District and on 21.04.2017 he had received a sealed envelope seized in connection with Pithoria P.S. Case No. 14/2017 and on opening the seal the materials which were found were five empty cartridges of 7.65 m.m. and two pellets of 7.65 m.m. The seized materials were manufactured in the ordnance factory. After examination of the cartridges and pellets, the same were sealed and handed over to Sub Inspector Chunwa Oraon. He had prepared the report which has been marked as Ext. 3.

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In cross-examination he has deposed that the seized materials were not produced before Court.

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P.W. 8 Chunwa Oraon was posted as an Officer-in-Charge in Pithoria P.S. and on 26.01.2017 at 5 p.m. he had recorded the Fardbeyan of Shiv Brat Sahu in the Emergency Ward. He has proved the Fardbeyan which has been marked as Ext. 4. He had taken over the investigation of the case. He has proved the endorsement on the Fardbeyan which has been marked as Ext. 4/1. He has proved the formal F.I.R. which has been marked as Ext. 4/2. He has proved the seizure list of five bullets and two pellets which has been marked as Ext. 4/3. On 17.01.2017 he had seized an Apache motorcycle bearing registration No. JH01BQ-1920 from the motorcycle stand in Ranchi Railway Station and the seizure list has been proved and marked as Ext. 4/4. The certificate of the CCTV footage as contained in memo No. 91/2017 dated 20.04.2017 has been proved and marked as Ext. 5/4. He has produced the CCTV footage which has been marked as Material Ext. IX. In course of investigation he had recorded the restatement of the informant Shjv Brat Sahu. The place of occurrence is at Krishi Kendra-cum- Anokhi Telecom situated at Main Road, Pithoria. He had recorded the statement of Ajay

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Mahto, Uttam Kumar, Madhu Sahu, Bhutan Oran, Basanti Devi and Braj Kishore who all have supported the prosecution case. He had obtained the injury report from RIMS and the report of the Sergeant Major. He had submitted charge sheet against Pankaj Kumar Sahu while the investigation continued against Lalu @ Nitesh Gope. The five empty cartridges were marked as Material Ext. II while the two pellets have been marked as Material Ext. III. On the orders of the court, the CD was run. In the CD, the accused persons are not identifiable.

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In cross-examination he has deposed that he does not know as to who is the owner of the motorcycle which was seized during investigation. No pistol was recovered during investigation. In the CD, the eyes, nose, ears, face and even no part of the body was visible as everything was covered in cloths. The accused was about 5’7” in height and there may be many persons in the vicinity of having the same height.

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P.W. 9 Dr. Amrisha Sharan was posted as S.O.D., Central Emergency, RIMS, Ranchi and on 26.01.2017, she had examined Basanti Devi and had found the following injuries:

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(i) 1 cm x 1 cm lacerated wound cavity deep over right hypochondriun, ontbelow costal margin in mid clavicular line.

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(ii) 1 cm x 1 cm lacerated wound cavity deep over left lumber region 1 cm below mid point of left spino umbilical-line.

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(iii) 1 cm x 1 cm lacerated wound cavity deep over night lumber region 1 Inch above right anterior superior iliac spine.

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(iv) 1 em. x 1 cm lacerated wound cavity deep over right side of lower lateral chest 10 cm lateral to spine and 5 cm above lower costal margin. Operation Exploratory laparotomy done on 26.01.2017. Findings:

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1. 1.5 liter of blood and blood clots in abdomen cavity.

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2. 20 cm x 30 cm mass in right ovary found in which three penetrating wounds were present.

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3. 2 cm x 2 cm through and through rent found in second part of duodenum.

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4. 1 cm x 1 cm rent seen in mesentry of small bowel with non expanding haermatoma in mesentry.

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5. 1 cm x 1 cm rent (2 number) found in ileum 2 feet proximal to ileocaecal junction.

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6. 1 cm x 1 cm serosal tear in decending colon.

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7. 1 cm x 1 cm serosal tear in ascending colon

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8. A bullet found posterior to stomach on opening lesser sac. Mark of identification

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1. Mole over right neck.

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2. Mole over right upper lateral forearm.

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The above noted injuries were caused by firearm. The nature of injury was grievous. He has proved the injury report which has been marked as Ext. 5.

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P.W. 10 Dr. Shashikant Suman was posted as a Senior Resident, Department of Orthopedic, RIMS, Ranchi and on 26.01.2017 he had examined Shiv Brat Sahu and had found the following:

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An entry wound over left forearm size about 1 cm x 0.5 cm

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An exit wound over left forearm size about 1 cm x 1 cm. X-Ray report: X-ray plate, report of left forearm showing fracture of left mid ulna.

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Mark of identification: Mole on right forearm.

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The nature of injury was opined to be grievous. He has proved the injury report which has been marked as Ext. 6.

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5. The statements of the accused was recorded under Section 313 Cr.P.C. in which he has denied his complicity in the incident.

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6. It has been submitted by Mr. Vikash Kumar, learned counsel for the appellant that the appellant has been implicated only on the basis of previous enmity. It has been submitted that the identity of the assailant has not been established by the prosecution as it is an admitted fact that he was wearing a helmet and as per PW-8 the CCTV footage did not assist in identifying the culprit as no part of his body was visible.

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7. Mr. Vishwanath Roy, learned Spl. PP has stated that the evidence of PW-5 reveals that repeated attempts to commit the murder of PW-5 were made by the appellant and apart from this case another case was earlier instituted in which the appellant had shot at PW-5 and PW-5 had suffered injuries on his left thigh. Even the nephew of PW-5, namely, Surajdeo Sahu was repeatedly stabbed by the appellant and all these attacks were premeditated arising out of the animosity between both the sides. He has stated that enmity is a doubled edged sword which can cut either way which is apparent from the evidence on record.

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8. We have heard the submissions of the learned counsel for the respective parties and have also perused the trial court records. 9. The prosecution has examined two witnesses in the form of PW-5 and PW-6 who bore the brunt of the firing as both suffered multiple firearm injuries. PW-4 had a providential escape as according to him on witnessing the incident, he had rushed back to his shop, which is adjacent to the place of occurrence and closed the door, but the assailant had fired at him from the opening in the ventilator. PW-4 Madhu Sahu though claims to have identified the appellant as the assailant, but he in his cross examination has deposed that the accused was wearing a helmet. PW-5 is the informant who has given a history of he and his nephew Surajdeo Sahu being at the receiving end of the frequent attacks committed by the appellant. He has stated in his cross examination that except him nobody had seen the occurrence through his wife (PW-6) was present in the shop and had suffered firearm injury on her abdomen. The cross examination of PW-5 seems to suggest incoherence as he has even stated that his fardbeyan was not recorded by the police. We are not taking cognizance of such incoherent statements for the reason that PW-5 is an injured witness and there is no dispute regarding the taking place of the incident of firing. We are primarily concerned with the identity of the appellant as to whether such identity has been proved by the prosecution beyond any reasonable doubt or not. The evidence of PW-6 clearly states that the accused was wearing a helmet. It has therefore been ascertained that the assailant was wearing a helmet at the time he had entered into the shop and

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started indiscriminate firing. The clinching evidence seems to be in the form of CCTV footage and as per PW-8 no part of the body of the assailant including his face and other parts were visible. PW-8 has stated that in course of investigation he had seized an Apache motorcycle from the two-wheeler stand at Ranchi Railway Station perhaps in order to link the appellant with the motorcycle though none have stated about the motorcycle being used in the crime, but he had not taken any efforts to find out about the owner of the motorcycle though such act even if undertaken would hardly be of any consequence to the culpability of the appellant. Both sides have stressed upon previous enmity being a fulcrum which assists both sides in their quest for proving their respective cases. In such context, we may refer to the case of Nand Lal and others v. State of Chhatisgarh in SLP (Crl.) No. 6134-35 of 2019 in which it has been held as follows:

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28. Undisputedly, in the present case, the injuries sustained by accused No. 11 Naresh Kumar cannot be considered to be minor or superficial. The witnesses are also interested witnesses, inasmuch as they are close relatives of the deceased. That there was previous enmity between the two families, on account of election of Sarpanch, has come on record. As observed by this Court in the case of Ramashish Ray v. Jagdish Singh, previous enmity is a double-edged sword. On one hand, it can provide motive and on the other hand, the possibility of false implication cannot be ruled out.

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10. Undoubtedly, animosity between the parties who are related to each other exists since long and in the backdrop of the prosecution evidence in which a clear doubt has been created regarding the identity of the appellant as the assailant in which case the assertion of the defence that the appellant has been falsely implicated due to the previous enmity gains credence.

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11. The circumstances noted above would lead us to conclude that the learned trial court has not appreciated the nuances of the evidence of the prosecution which tilts towards the innocence of the appellant without any reasonable doubt. Consequently in view of what has been stated above, the impugned judgment and order of conviction and sentence dated 15.01.2019 passed by Shri Swarn Shanker Prasad, learned Judicial Commissioner-VIIcum-Special Judge, C.B.I. (AHD)-cum-Special Court (CAW), Ranchi, in

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Sessions Trial No. 420 of 2017/ T.R. No. 71 of 2017 is hereby set aside. This appeal is allowed.

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12. Since the appellant is in custody, he is directed to be released immediately and forthwith, if not wanted in any other case. Pending I.A., if any, stands closed.

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(RONGON MUKHOPADHYAY,J.)

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(PRADEEP KUMAR SRIVASTAVA, J.)

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Jharkhand High Court, Ranchi Dated the 1^st October, 2024 MK/N.A.F.R.

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Pankaj Kumar Sahu v. State of Jharkhand

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Pankaj Kumar Sahu v. State of Jharkhand

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