Kajal Sen Vs State of Jharkhand

2025:JHHC:12357

Cr. Appeal (S.J) No. 703 of 2006

[Against the judgment and order of conviction and sentence dated 07.03.2006 and 17.03.2006 passed by learned Additional Sessions Judge, Fast Track Court No.II, Civil Court, Jamshedpur in connection with S.T. No. 228/2004 arising out of Jugsalai P.S. Case No. 172 of 2003 (G.R.) Case No. 1684 of 2003]

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Arun Kumar Das son of Sri Kartik Das

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Residents of M.E. School Road, Jugsalai, Police StationJugsalai, District-Singhbhum (East). …. Appellant

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Versus

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The State of Jharkhand ….. Respondent

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With

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Cr. Appeal (S.J) No. 532 of 2006

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1. Gurucharan Paul @ Gulla Paul, Son of Sri Jeet Mohan Paul, resident of Dimna Bastee, P.S. Mango, Town Jamshedpur, District-East Singhbhum (Jharkhand)

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2. Raj Kumar Singh, Son of Sri Kalu Singh, Resident of Dimna Bastee P.S. Mango, Town Jamshedpur, Dist- East Singhbhum (Jharkhand) …. Appellants

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Versus

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The State of Jharkhand ….. Respondent

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With

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Cr. Appeal (S.J) No. 557 of 2006

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Arun Kumar Singh @ Vicky son of Sri Sahajeet Singh, resident of H.No. 44, Road No.3, New Rani Kudar, P.S. Kadma, TownJamshedpur, District-East Singhbhum. …. Appellant

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Versus

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The State of Jharkhand ….. Respondent

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With

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Cr. Appeal (S.J) No. 572 of 2006

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Rajiv Mishra Son of Hari Shankar Mishra, Resident of Naya Basti, Bagbera, P.O. & P.S. Jugsalai, District- Singhbhum East. …. Appellant

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Versus

The State of Jharkhand

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Respondent

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With

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Cr. Appeal (S.J) No. 653 of 2006

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Basant Kumhar @ Basant Kumbhar, Son of Gadhadhar Kumbhar, resident of Dimna Bastee, Upper Tola, P.O. & P.S. Ulidih, Mango, District-East Singhbhum.

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…. Appellant

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Versus

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The State of Jharkhand ….. Respondent

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With

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Cr. Appeal (S.J) No. 826 of 2006

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Kajal Sen, son of Sri Gaur Sen,

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Residents of Dimna Bustee, Mango, Police Station- Ulidih, Town- Jamshedpur, district-Singhbhum (East).

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…. Appellant

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Versus

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The State of Jharkhand ….. Respondent

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PRESENT

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HON’BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA

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For the Appellants	-------- : Mr. Chandan Kumar, Advocate. [Cr. Appeal (SJ) No. 703 of 2006 & 826 of 2006] Mr. D.K. Chakraverty, Advocate. [Cr. Appeal (SJ) No. 572 of 2006] Mr. D.K. Karmakar, Advocate. [Cr. Appeal (SJ) No. 532 of 2006 & 653 of 2006]
For the Resp.-State	: Mr. Jitendra Pandey, A.P.P. [Cr. Appeal (SJ) No. 703 of 2006, 557 of 2006 & 572 of 2006]
	Mr. Tarun Kumar, A.P.P. [Cr. Appeal (SJ) No. 557 of 2006]
	Mrs. Vandana Bharti, A.P.P.
	[Cr. Appeal (SJ) No. 532 of 2006]

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2025:JHHC:12357

JUDGMENT

C.A.V. On 11.02.2025 Pronounced On: 24/04/2025 Heard learned counsels for appellants Mr. Chandan Kumar, Mr. D.K. Chakraverty, Mr. D.K. Karmakar as well as learned Additional Public Prosecutors appearing for the Respondents-State Mr. Jitendra Pandey, Mr. Tarun Kumar and Mrs. Vandana Bharti.

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2. Above criminal appeals are directed against the judgment and order of conviction and sentence of the appellants dated 07.03.2006 & 17.03.2006 respectively passed by Additional Sessions Judge, Fast Track Court No.II, Civil Court, Jamshedpur in Sessions Trial No. 228 of 2004 whereby and where under the appellants have been held guilty and sentenced for the offence under Section 395 of the I.P.C. and directed to undergo R.I. for seven years each and the appellants have been acquitted from the charge under Section 412 of the I.P.C.

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FACTUAL MATRIX

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3. Factual matrix giving rise to these appeals are that on 01.10.2003 at about 21:45 P.M., the informant Nand Kishor Agarwal (P.W.15) along with his staff members namely, Pankaj Kumar Gupta, Jitendra Pandey, Jayprakash Yadav, Madanlal Sharma, his father B.K. Barnwal (P.W.8) and brother A.K. Barnwal (P.W.6) were sitting at cloth shop situated at Mahalpara Road, Jugsalai, District-Jamshedpur and counting

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cash received from their collection. It is further alleged that the currency notes were bundled with stickers of H.D.F.C. Bank and amount was sealed with shop mark B.H.E. The informant was about to store the entire amount in the cash box keeping the shutter of the shop half down, meanwhile at about 22:10 P.M., 7-10 miscreants suddenly entered into the shop, surrounded the inmates and pointed revolver, pistol and Bhujali towards the informant and other staff members and ordered them to keep quite otherwise, they would be killed. As such, putting into fear of instant death at the point of revolver all the miscreants started plundering the bundle of money and putting in their respective packets. Some currency notes were left uncounted which was also taken away by the miscreants in a raisin bag of the shop and another green coloured bag on which the name of the shop was printed. Thereafter, miscreants managed to flee away towards west of Mahatopara Road, Baikunth Dham Mandir. It is claimed that Rs.1,37,210/- have been looted by the dacoits.

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4. Above occurrence was immediately informed to Jugsalai Police Station and police arrived at the place of occurrence and recorded the Fardbeyan of the informant at about 22:25 P.M. and some police personnel chased the miscreants. It is further alleged that the police party reached near Garib Nawaz Colony Railway Bride, Jugsalai at about 22:45 P.M., where the Officer-In-Charge Ramchandar Ram (P.W.16) and other police personnels found few persons hiding in the bush under

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suspicious circumstances. The miscreants started firing on police party and there was exchange of firing by police also in self-defence and ultimately, the police succeeded to arrest the accused Arun Kumar Singh [Appellant of Cr. Appeal (S.J) No. 557 of 2006] and Arun Kumar Das [Appellant of Cr. Appeal (S.J) No. 703 of 2006]. A country-made pistol containing cartridge was recovered from the possession of Arun Kumar Singh along with cash amount of Rs.20,000/- looted from Barnwal Handloom Emporium, Jugsalai. It is further alleged that on search, a double barrel loaded country-made pistol was recovered from the possession of accused Arun Kumar Das along with looted amount of Rs.10,000/-. It is further alleged that both the accused persons had confessed their guilt regarding their participation in commission of dacoity at the shop of the informant and also disclose the name of other co-accused persons. Thereafter, on the basis of disclosure statement and further search at another place, two more miscreants namely, Gurucharan Paul and Raj Kumar Singh [Appellants in Cr. Appeal (S.J) No. 532 of 2006] were arrested and Rs.20,000/- was recovered from Gurucharan Paul and Rs.10,000/- from Raj Kumar Singh respectively. It is further alleged that on the basis of confessional statement, two more accused persons namely Kajal Sen [Appellant of Cr. Appeal (S.J) No. 826 of 2006] and Basant Kumhar [Appellant of Cr. Appeal (S.J) No. 653 of 2006] were arrested on a tempo bearing registration No. BHS-8518 and on search,

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Rs.15,000/- was recovered from the aforesaid vehicle and bhujali was recovered from the possession of accused Kajal Sen.

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5. On the basis of above information of the informant, Jugsalai P.S. Case No. 172 of 2003 was registered for the offence under Section 395 and 412 of the I.P.C. and charge-sheet was submitted under Section 395 and 412 of the I.P.C. Another case Jugsalai P.S. Case No. 173/2003 was registered for the offence punishable under Section 307/34 of the I.P.C. and Section 25(1-b)a/26/35 of the Arms Act.

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6. After conclusion of investigation, charge-sheet was submitted against all the accused persons including present appellants for the offences punishable under Section 395/412 of the I.P.C. and the case was committed to the court of sessions where the charges were read over and explained to each of the accused persons for which they pleaded not guilty and claimed to be tried. After conclusion of trial impugned judgment and order of conviction and sentence passed.

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7. Learned counsel for the appellant has vehemently argued that none of the appellants were caught red handed at the time of commission of dacoity and nothing was recovered from their possession. No currency notes alleged to be seized in this case were produced in evidence, during the trial of the case. Therefore, in absence of cogent and reliable evidence, the appellants have been acquitted from the charge of offence under Section 412 of the I.P.C. It is further submitted that so

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far, commission of dacoity is concerned, none of the prosecution witnesses including the informant have been able to identify the appellants as perpetrators in the said crime. It is further contended that P.W.16 (Ram Chandra Ram) has clearly deposed that at the identification of Pankaj Kumar Gupta, accused persons were alleged to be have been arrested, but Pankaj Kumar Gupta declined to support the version of police personnel. It is further submitted that the informant Nand Kishor Barnwal (P.W.15) has lodged the F.I.R. against unknown 7 to 8 miscreants and in his entire fardbeyan, he has not claimed to identify them as per description of his bags in which the currency notes were containing. Admittedly, no test identification parade was conducted in order to identify the appellants. Therefore, the identification of the appellants for the first time during trial by the witnesses and on the basis of alleged confessional statement before police is absolutely not acceptable in legal par lance and cannot be acted upon. In this connection, learned counsel for the appellants has place reliance upon judgment in P. Sasikumar versus The State Rep. by the Inspector of Police (2024) IIV SC 474.

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It is further submitted that it is specific case of prosecution that currency notes were recovered from the possession of some appellants which was validly seized and sealed, but the prosecution has miserably failed to establish the charge under Section 412 of the I.P.C. beyond all reasonable doubt against

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the appellants and there is no iota of evidence to prove that charge of Section 395 of the I.P.C. against the appellants beyond all reasonable doubts. The learned trial court has miserably failed to consider the aforesaid material aspects of the case and arrived at wrong conclusion. Therefore, conviction and sentence of the appellants for the offence under Section 395 of the I.P.C. is fit to be set aside.

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8. On the other hand, learned A.P.P. appearing for the State has defended the impugned judgment and order of conviction and sentence of the appellants and submitted that the learned trial court has meticulously considered overall evidence available on record and finding no reason to disbelieve the prosecution story and the testimony of the victim girl. Therefore, conviction and sentence of the appellants do not require any interference. Hence, these appeals are fit to be dismissed.

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9. For better appreciation of the case, I have to take brief resume of the prosecution evidence.

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PW 15- Nand Kishor Barnwal (Informant) is the informant of the case, he has stated before the court that on the alleged date and time of occurrence he was present in his shop namely, Barnwal Textile at Jugsalai. PW-6 and 8 were also present there along with his staff. They were counting the currencies, which was collected by them. The shutter of the shop was half down. In the meantime, 6-7 miscreants entered into the shop and at the point of revolver threatening to kill, they took away the entire money which amounted to

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Rs.1,37,210/-. There was sticker of H.D.F.C. Bank on the bundle of the notes and the seal of the shop. When the accused persons fled away, he informed the police about the incident after which the police came and ran towards the direction in which the accused persons had fled away. He also followed the police and subsequently, the police arrested seven miscreants and recovered entire money along with the bag. A country made pistol was also recovered from the possession of the accused persons. His fardbeyan was recorded and he put his signature on the fardbeyan, which has been marked as Ext. 11. Pointing towards the accused Arun Das, he has further stated that there is suspicion with regard to his identification, but other six, accused persons who are present in the court are the persons who committed dacoity in his shop.

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PW 6- Awadh Kishore Barnwal has deposed that on 01.10.03 at about 10.10 p.m. he along with Nand Kishore Barnwal, Braj Kumar Barnwal, Jai Prakash Yadav, Jitendar Kumar Pandey, Madan Sharma were in his shop namely, Kishore Textile Barnwal Handloom Emporium. He has further stated that 7-8 miscreants entered into the shop having pistols in their hands. They came and stopped him, and they started putting currency notes in their pocket. Rexine bag was also taken away by them. Thereafter, they fled away. The above incident was informed to the Police and soon after, the police chased the dacoits. Near the bank of river miscreants were caught. He has

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further alleged that they are the same persons who had committed offence in the shop. All of them were identified by this witness the amount of looted money was recovered. Further this witness by pointing towards the accused Arun Das has deposed that he is person who had pointed out the pistol upon him and asked him to sit down. He has also identified all the accused persons in the dock.

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In his cross examination, he has deposed that he was present at the time of recovery.

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PW 7- Jai Prakash Yadav according to his evidence he has deposed that there was a dacoity committed at the Kishore Textiles on 1.10.2003 at about 10:15 P.M. He along with Awadh Kishore Barnwal, Madan Sharma, Nand Kishore Barnwal, Braj Kishore Barnwal, Pankaj Kumar and Jitendra Pandit were also present at the shop.

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PW 8- Braj Kishore Barnwal is another brother of the informant. According to his evidence, he was also present in the shop when the accused persons entered into the shop and on the point of pistol and revolver, miscreants got the inmates fear and they took away the entire money of Rs. 1,37,210/- and police was informed about the said occurrence. Police came and ran towards the direction in which the miscreants had fled away. Seven accused persons were arrested by the police and indicating towards the accused Guru Charan Pal this witness has deposed that he is the person who has demanded the

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money from him at the point of Bhujali. Rest of the accused persons were not identified by him on the ground so many days have passed, therefore, he is not remembering the face of other six accused persons. In his cross-examination he has stated that the seizure list was prepared in his presence at the spot.

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PW 9- Jitendra Pandit according to his evidence, he is one of the staffs at Barnwal Textiles Handloom and that he was present at the time of the occurrence. The dacoity took place around 10:00 P.M. at night. He has also admitted that he did not identify any accused persons in the court.

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P.W.10- Madan Sharma is one of the staffs of Barnwal Textiles Hand Loom shop. He has deposed that the occurrence took place on 01.10.2003 at about 10:15 PM. He further states that he was present in the shop at the time of occurrence, when they were counting currency notes. It is further submitted that 7 to 8 miscreants entered the shop and looted the money at gun point and fled away. He stated that 5 to 6 miscreants were held captive near Garib Nawaz Colony. This witness has also admitted that he did not identify the accused persons in the court.

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PW 16- Ram Chandra Ram is Officer In-charge of the Police Station at Jugsalai. According to his evidence, on the basis of fardbeyan of PW-15 (Nand Kishore Barnwal), Jugsalai P.S.Case No.172/03 was registered and investigation was taken by him.

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The fardbeyan was recorded by one Pardeep Choudhary. The place of occurrence is situated at Mahto Para, Jugsalai, Barnwal Handloom Emporium, a cloth shop. On 01.10.03 dacoity was committed in the aforesaid shop. He found nothing special on the place of occurrence. He along with other police personnel proceeded in the direction in which the accused persons were said to have fled away. One of S.I. Pardeep Choudhary was dropped at the place of occurrence, Surendar Parsad and home-guards were along with this witness, They reached near Kharkhai river and when they reached Garib Nawaz Colony, near the railway bridge and wanted to get the trace by standing near the bank, in the meantime, he heard some gossiping of some persons. He did care in that direction flashed his torch on the bush and saw a head of a man who was peeping. On suspicion, he proceeded and challenged the miscreants to come out. Thereafter, he heard the sound of fleeing, then he shouted that you have been surrounded from the sides by the police. Thereafter, miscreants started Firing upon the police party. Seeing the danger, he also shot fired in reply at about six rounds, with the Government revolver. One of the miscreants started fleeing by firing towards Garib Nawaz Colony and two miscreants were started fleeing towards East and North. Police party raised alarm, till that time the staff of Kishore Textiles had arrived and with the help of mobile, P.C.R was informed and police personnel surrounded the entire bush area. In the meantime, police came there and villagers also

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came there. They entered into the bush and two miscreants were arrested. Police personnel namely, Radhey Shyam Tiwari, Bimal Kumar S.I. along with armed forces came at the spot. Arrested accused persons disclosed their name as Arun Kumar Singh, Vicky and Arun Kumar Das. In presence of two independent witnesses as per law search was made and amount of Rs.20,000/- was recovered from the person a of Vicky@ Arun Kumar Singh. There was sticker of H.D.F.C. and B.H.E. on the stapled note. Country made revolver with empty cartridge was also recovered from the person of Vickey @ Arun Kumar Singh. From the possession of Arun Kumar Das Rs.10,000/- was recovered having H.D.F.C. and BHE seal. A double barrel pistol was also recovered having 315 bore cartridge was loaded and the seizure list was prepared. It is further stated that the Miscreants were identified by one of the staff namely, Pankaj Kumar Gupta. The accused persons also confessed their guilt and disclosed the involvement of them in the commission of the dacoity. On their confessional statement, the names of the rest accused persons came into light and on the basis of the amount Rs.31,120/- and a bag was recovered from behind bush and on the pointing of two accused persons, Geru Charan Pal, Raj Kumar Singh was arrested near the bush. From the person of Guru Charan Pal Rs.20,000/- was recovered which was of looted money and from the person of Raj Kumar Singh Rs.20,000/- was recovered which was of looted money. Accused Raj Kumar Mishra fled away.

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Thereafter, on the confessional statement of the accused persons, the police rushed to Parvati Ghat, where a tempo bearing no.BHS-8518 was kept and there also two miscreants were arrested namely, Kajal Sen and Basant Kumhar and from their possession &. 15,000/- one bhujali was recovered from the person of Kajal Sen and Rs. 11,000/- was recovered from the person of Basant Kumhar. The way in which the accused Rajiv Mishra had fled Rs. 31,210 and a bag was recovered. This witness has further stated that a separate case u/s 307 of IPC. and u/s 25(1-b) a/ 26/27/35 of the Arms Act. were lodged which has been disposed of by the Addl.District & Sessions Judge, II vide Ext. 15.

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In his cross examination, he has deposed that the accused persons were arrested in presence of Pankaj Kumar.

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PW 17- Radhey Shayam Tiwari According to his evidence, he has deposed that on 1.10.2003 he was posted at P.S. Jugsalai and at about 10:15 P.M. the officer in-charge of the Police Station was informed about the dacoity committed at the Barnwal Textiles. On the direction of the officer in-charge, he along with the constable arrived at the place of occurrence and in his presence the accused persons were arrested from Garib Nawaz Colony. This witness has also identified all the accused persons to be miscreants who allegedly committed dacoity in the shop of the informant.

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PW 18- Bharat Shukla (Constable) This witness has deposed

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in his evidence that on 01.10.2003 he was posted at P.S. Jugsalai. At about 10.30 P.M., he went to Garib Nawaz Colony when he heard the sound of firing. Jugsalai Police Station Incharge was present there. There was a dacoity committed at the Barnwal Textiles. He has stated that the accused persons were arrested in his presence. It has also been stated by this witness that a country made pistol, bhujali and currency notes were recovered.

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10. From the aforesaid discussion of the evidence of the prosecution, it is clear that for the charge under Section 412 of the I.P.C., appellants have already been acquitted by the trial court and there is no concrete evidence led by the prosecution establishing the identity of the appellants. It is quite natural that the appellants have been dragged in this case only on the basis of second case registered under Section 307 of the I.P.C. and Section 25 (1-b)a/26/27/35 of Arms Act. There is no piece of evidence showing participation of the appellants in commission of dacoity and it is also clear from judgment of Hon’ble Supreme Court cited by the appellant , which clearly shows that “ test identification parade is part of investigation and it is not a substantive evidence. The question of holding T.I. Parade arises when the accused is not known to the witness earlier. The Court who has for the first time seen the accused in the incident of offence is a weak piece of evidence, especially when there is a large time gap between his evidence. In such a case,

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TI parade may make the identification of the accused by the witness before the Court trustworthy…” . Similarly, in this case the identity of the present appellants is in doubtful. The appellants could not have been convicted on the basis of very weak and doubtful evidence as to the appellant’s identity. Accordingly, the impugned judgment and order of conviction passed by learned Additional Sessions Judge, Fast Track Court No.-II, Jamshedpur, is hereby set aside and these appeals are allowed .

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11. Appellants are on bail, hence, they are discharged from the liability of bail bonds and sureties are also be discharged.

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12. Pending I.As, if any stands disposed of.

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13. Let a copy of this judgment along with trial court records be send back to the court concerned for information and needful.

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(Pradeep Kumar Srivastava, J.)

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Jharkhand High Court, at Ranchi Date: 24/04/2025 Amar/- N.A.F.R.

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Kajal Sen v. State of Jharkhand

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Kajal Sen v. State of Jharkhand

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