CHAITU ORAON, DEOMOHAN SINGH vs STATE OF JHARKHAND

The present Criminal Appeals are arising out of a common judgment of conviction and order of sentence. The appellant Chaitu Uraon has preferred

Criminal Appeal (S.J.) No. 1063 of 2003 and the appellant Deomohan Singh has preferred Cr. Appeal (S.J.) No. 1193 of 2003, whereby the court

below has convicted appellant Chaitu Uraon u/s 412 I.P.C and appellant Deomohan Singh u/s 397/412 I.P.C. By the impugned judgment, the learned

Trial Court has acquitted Balku Sao, Chuni Lal Sao, Ropna Sao as well as Chaitu Uraon u/s 397 and all the accused have been acquitted for offence

u/s 376 I.P.C. as well as 120(b) I.P.C. The State has not preferred any acquittal appeal against the acquittal of the other accused persons and also

against these two appellants Chaitu Uraon and Deomohan Singh. The learned Trial Court found Chaitu Uraon and Deomohan Singh guilty for offence

u/s 412 I.P.C. against both the appellants and awarded them to undergo rigorous imprisonment for five years and a fine of Rs. 1000/- in case of

default of payment of fine, the appellants shall further undergo S.I. for three months, so far appellant Deomohan Singh is concerned, he has been

separately convicted u/s 397 IPC and has been awarded a rigorous imprisonment for seven years, against the said impugned, judgment the present

appeals have been preferred. The impugned judgment of conviction and order of sentence has been passed by learned Additional District and Sessions

Judge (Fast Track Court No. II), Gumla in Sessions Trial No. 196 of 1995/S.T. No. 75 of 1998.

The prosecution case is based upon the fardbeyan of informant Basant Sao (P.W. 11) which was recorded by A.S.I. Rabindra Prasad Singh. As

per the prosecution case, the informant has stated that in the night of 16.04.1994 (Saturday) after taking dinner, all the inmates of the house were

sleeping in the house, closing the door and on hearing the noise of breaking the door, they got up and raised hulla about thieves. Upon which accused

persons exploded a bomb and also threatened that if the inmates are raising hulla they will start firing. Upon this the inmates of the house stopped

raising hulla and after breaking the door, the accused persons entered into the house and one of the accused was having a gun who fired, which hit on

the left hand of the father of the informant Bhadar Sao, causing bleeding injury. The informant has categorically stated that after breaking the door,

five accused persons entered the house and some of the accused have surrounded their house. It is stated that accused persons after entering into the

house have looted utensils, hero bicycle, one wrist watch H.M.T., 2.5 horse power Machine, other ornaments of silver, cloths and cash of Rs. 5,000/-.

The informant has further stated that they were assaulted by the accused persons asking them to disclose about their other articles. The informant has

categorically stated that his brother Rajendra Sao, mother Balki Devi have been assaulted and threatened, that if they will raise noise, they will be

killed. The informant has stated that one of the accused was having a small gun, others were having baluwa, tangi and danda. The informant has

stated that at that time, dhibri was burning in the room, in which he has identified the accused. Three of the accused persons were tall, fair in

complexion and two were short. They were using Hindi language and the informant has claimed to identify them after seeing them. On threat given by

the accused persons, the informants and others did not raise hulla, during the commission of the dacoity, two other bombs were exploded, due to which

none of the persons came there. The dacoits have also assaulted his eldest Uncle Chuni Lal Sao and stripped off the cloths of wife of the younger

brother and a match stick was used for burning the hair of the head.

On the basis of the fardbeyan of the informant, police registered  Sisai, P.S. Case No. 39 of 1994 dated 17.04.1994 under consequent G.R. No.

257 of 1994 and after investigation police submitted Chargesheet, vide Chargesheet no. 31 of 1994 dated 16.07.1994 against five persons, Balku Sao,

Chuni Lal Sao, Ropna Sao, Chaita Uraon and Budhu Uraon and an absconder of this case namely Budhu Uraon.Â

That after cognizance of this offence was taken, the case was committed to the court of sessions where charge has been framed on 02.03.1998

against Balku Sao, Chuni Lal Sao, Ropna Sao, Chaitu Uraon and Deomohan Singh u/s 397 and 120 B IPC and separately Deomohan Singh and Chaitu

Uraon has been charged u/s 376 I.P.C., but no charge has been framed u/s 412 of the Indian Penal Code.Â

   The appellants have pleaded their innocence and thus appellants have been put for trial.Â

The prosecution has examined altogether thirteen witnesses but the investigating officer of the case has not been examined. . Ropna Sao as P.W.1,

Mahabir Sao as P.W. 2, Rajendra Sao (brother of the informant) as P.W.3, Izhar Anwar (doctor) as P.W. 4, Dr. Shakuntala Pandey (another doctor)

as P.W. 5, Rohit Kumar Sharma as P.W. 6, Bhadar Sao (injured and father of the informant) as P.W. 7, Chinta Devi (wife of the informant) as P.W.

8, Balki Devi (mother of the informant) as P.W. 9, Kiran Devi as P.W. 10, Basant Sao (informant of the case) as P.W. 11, Mozahid Ansari (seizure

witness) as P.W. 12. and Kuldip Singh (formal witness) as P.W. 13. The defence has examined one witness Sri Chunilal Sao (D.W. 1) who is also

accused of this case also.

Apart from the oral evidence, the prosecution has also brought the signature of Ropna Sao on seizure list as Exhibit- 1, the injury reports of Balki

Devi, Taramani Devi and Chunilal Sao as Exhibit- 2, 2/1 and 2/2, the injury report of Kiran Devi as Ext. 3, The injury report of Basant Sao as Ext.

4, the injury report of Rajendra Sao as Exhibit- 4/1, the signatures of Basant Sao and Ropna Sao on fardbeyan as Exhibit- 1/1 and 1/2, the signature

of Mozahir Ansari on seizure list as Exhibit- 5, the formal F.I.R. as Ext. 6, fardbeyan as (Exhibit- 7), seizure lists as Exhibit- 8 to 8/3, the injury

report of Rajendra Sao, Basant Sao, Bhadar Sao and Balki Devi issued by Lohardaga Hospital as Exhibit- 9 to 9/3Â and the identification chart of

utensils in T.I.P. as Exhibit- 10 to 10/1.

Ropna Sao (P.W.1) has stated that having learnt about the incidence he rushed to the house of Bhadra Sao and learnt about dacoity and at about

2.00-3.00 p.m., they took Bhadra Sao hospital for treatment. From the fardbeyan it appears that Ropna Sao has also signed the fardbeyan.Â

Mahabir Sao (P.W. 2), Rajendra Sao (P.W. 3), Bhadar Sao (P.W. 7), Chinta Devi (P.W.8), Balki Devi (P.W.9) and Kiran Devi (P.W. 10) are the

material witnesses in this case, who have narrated about the commission of dacoity in their house on the alleged day of occurrence for which

investigating machinery was set into motion on the fardbeyan given by Basant Sao (P.W. 11). So this much is proved that a dacoity was committed in

the house of the informant on 16.04.1994.

P.W. 4 and P.W. 5 are the doctors who have examined Balki Devi and Kiran Devi and submitted the injury report as Exhibit- 2 and Exhibit- 3.

Kuldip Singh (P.W. 13) is an advocate clerk and formal witness who has proved the T.I.P. chart of materials, which were recovered during the

investigation by the Investigating Officer.

Learned counsel for the appellant, Mr. Amit Kumar Choubey has submitted that the impugned judgment of conviction u/s 412 IPC and order of

sentence so far Chaitu Uraon and Deomohan singh are concerned, the same is not sustainable in the eyes of law as no charge u/s 412 I.P.C. has been

framed. The learned counsel has further submitted that P.W. 12 Muzahid Ansari being seizure witness and proved seizure list as Exhibit-5 has

categorically stated that his signature is on seizure list but these things have not been written on the seizure list rather those are on a blank paper. So

far the ingredients u/s 412 is concerned, there is no evidence for convicting Chaitu Uraon and Deomohan Singh u/s 412 I.P.C. and the learned Trial

Court has erred in convicting them.Â

The learned counsel for the appellant, has further submitted that so far conviction of the appellant Deomohan singh is concerned for charge u/s

397 IPC, the learned Trial court has relied upon the Test Identification Parade of Deomohan Singh but has completely erred in not taking a judicial

notice of the fact, that P.W. 2 Mahabir Sao has categorically stated during crossexamination, that when the accused were apprehended and brought to

the police station and assault was made upon them, they have admitted their guilt before the police and at that time he was allowed to identify the

accused persons. The learned counsel has submitted that the entire sanctity of the Test Identification Parade is vitiated as the witness has admitted

that before Test Identification Parade he has an opportunity to identify the accused persons at the police station by the police officer and as such

conviction u/s 397 of Deomohan Singh on the basis of T.I.P. is not sustainable in the eyes of law. The learned Counsel has further submitted that

there is a major contradiction in the deposition of all the prosecution witnesses and those contradictions are vital for the prosecution case as some of

the accused persons are agnates of the

prosecution party and next door neighbour of the prosecution party but the informant has not disclosed the name of those persons while giving his

fardbeyan on the basis of which F.I.R. has been lodged against unknown persons. The learned counsel has submitted that prosecution has not come

up with clean hands in disclosing the fact which was recorded approximately after more than twelve hours. The statement of the witnesses are

contradictory to each other with respect to manner of occurrence and commission of occurrence. The learned counsel has submitted that there is land

dispute with some of the accused persons who are uncle and brother of the prosecution witnesses although they have been acquitted by the learned

Trial Court. Neither the informant nor the State has preferred any appeal against such acquittal and on flimsy ground without any material, the learned

Trial Court has convicted appellant Deomohan Singh u/s 397 I.P.C.

The learned counsel for the State, Mr. Manoj Kumar, Additional Public Prosecutor has vehemently argued the case and has tried his best to

support the impugned judgment but has not disputed the contradictory evidence of the prosecution witnesses. The learned counsel for the State has

fairly submitted that no charge u/s 412 IPC has been framed but the learned Trial Court has rightly convicted Deomohan Singh u/s 397 on the basis of

evidence on record coupled with injury report Exhibit- 9/2 injury report of Bhadar Sao issued by Dr. M.M. Sen Gupta, Medical Officer, Lohardagga.

Although the said doctor has not been examined in the Trial Court. Upon this the learned counsel for the appellant has submitted that if Ext. 2 is taken

note of and compared, the same with the fardbeyan or the evidence adduced by the prosecution, there is a vital contradiction with respect to the injury

caused on person of Bhadar Sao. The injury report suggests that doctor has found one wound of entry on the left upper arm in the middle part of

3x2x1 inch, blackening of surrounding with one brass cap of cartridge was present with diffused laceration but no wound of exit. There was fracture

of shaft of left humerus bone. Learned counsel for the appellant has submitted that neither the doctor who has issued this injury report has been

examined nor the investigating officer of this case has been examined nor any medical report of R.M.C.H., Ranchi has been brought on record and if

the evidence of P.W. 2, 3 and 7 are taken together, there is a vital contradiction with regard to the place of injury. Considering the above facts, such

injury report cannot be relied for convicting a person u/s 397 IPC where Test Identification Parade has lost its sanctity and other accused persons

have already been acquitted u/s 397 I.P.C. As such charge u/s 397 IPC which has been framed against Deomohan Singh is not sustainable in the eyes

of law.Â

After hearing the parties and on perusal of the entire record particularly, the deposition of the witnesses, this court is of the opinion that the Trial

Court has erred in convicting Chaitu Uraon and Deomohan Singh u/s 412 I.P.C. as no specific charge has been framed u/s 412 IPC and the seizure

list is completely belied by P.W. 12 and the seizure list has been proved to be a forged document in view of the statement of Muzahid Ansari (P.W. 12

), that he put signature on blank sheet as such Exhibit-5 (Seizure list) has no legal sanctity in the eyes of law. This court has further found that

convicting Deomohan Singh u/s 397 IPC is also not sustainable in the eyes of law as there is a contradiction regarding place of injury in the deposition

of the witnesses as well as vital contradictions with respect to firing made by accused persons outside the house and causing such blackening injury on

the injured.Â

Thus, I am of the opinion that Deomohan Singh is entitled for benefit of doubt. In the above facts and circumstances of the case, judgment of

conviction dated 17.07.2003 and order of sentence dated 18.07.2003 passed by the learned Additional District and Session Judge cum Fast Track

Court No. II, Gumla in Sessions Trial No. 196 of 1995/S.T. No. 75 of 1998 of Sisai P.S. Case No. 39 of 1994 arising out of G.R. No. 257 of 1994 is

hereby set-aside and the appellant Chaitu Uraon is acquitted u/s 412 I.P.C. and Deomohan Singh is also acquitted u/s 412 IPC as well as u/s 397

I.P.C. and both are discharged from liability of their bail bonds.  Â

The appeals are accordingly allowed. Â

Let the record be sent to the lower court concerned. Â