Kallu Rajak @ Rahul Rajak vs The State Of Jharkhand
2021 Latest Caselaw 4822 Jhar

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Criminal Appellate Jurisdiction)

                   Criminal Appeal (DB) No. 396 of 2015
                                    With
                   Criminal Appeal (DB) No. 313 of 2015
                                    With
                   Criminal Appeal (DB) No. 387 of 2015

(Against the judgment of conviction dated 17th April 2015 and the order of
sentence dated 20th April 2015 passed by the learned Judicial Commissioner-IV,
Ranchi in Sessions Trial No. 689 of 2012)
                                  --------
Kallu Rajak @ Rahul Rajak, s/o Ramesh Rajak, r/o village-Karamtoli,
PO- Karamtoli, PS-Lalpur, District-Ranchi          ...... Appellant
                                        [in Criminal Appeal (DB) No. 396 of 2015]
Ashok Rajak, s/o late Chhotelal Rajak, r/o H.H. Colony, Harmu, PO-
Harmu Housing Colony, PS-Argora, District-Ranchi     ...... Appellant
                                        [in Criminal Appeal (DB) No. 313 of 2015]
Sushil Kumar, s/o Harendra Singh Azad, r/o village-Dhanout, PO-
Nawanagar, PS-Nawanagar, District-Baxur, at present r/o Qr. No. 152/2,
Army Campus, Karamtoli, PO-Karamtoli, PS-Lalpur, District-Ranchi
                                                       ...... Appellant
                                         [in Criminal Appeal (DB) No. 387 of 2015]
                                   Versus
The State of Jharkhand                                        ...... Respondent

                                (Heard through V.C on 15th December 2021)
                                   --------
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
         HON'BLE MR. JUSTICE RATNAKER BHENGRA

For the Appellant(s) : Mr. Nikhilesh Kumar Chatterjee, Advocate
                         [in Criminal Appeal (DB) No. 396 of 2015]
                         Mr. Ajay Kumar Singh, Advocate
                         [in Criminal Appeal (DB) Nos. 313 of 2015 & 387 of 2015]
For the State          : Mr. Sanjay Kumar Srivastava, APP
                         [in Criminal Appeal (DB) No. 396 of 2015]
                         Mr. Azeemuddin, APP
                         [in Criminal Appeal (DB) Nos. 313 of 2015 & 387 of 2015]
                                      --------
                            JUDGMENT

15th December 2021 Per, Shree Chandrashekhar,J.

Kallu Rajak @ Rahul Rajak, Ashok Rajak and Sushil Kumar faced the trial on the charge under section 302/34 of the Indian Penal Code and section 27 of the Arms Act for committing murder of Shiva Tirkey. In Sessions Trial No. 689 of 2012, they are convicted for 2 Cr. Appeal (DB) No. 396 of 2015 and analogous cases

committing murder of Shiva Tirkey and sentenced to RI for life and a fine of Rs.10,000/- each under section 302/34 of the Indian Penal Code with a default stipulation to undergo further SI for six months. Kallu Rajak @ Rahul Rajak is further convicted and sentenced to RI for two years under section 27 of the Arms Act. Ashok Rajak and Sushil Kumar are acquitted from the charge under section 27 of the Arms Act by the learned trial Judge.

2. An information about the murder of Shiva Tirkey was given to the officer-in-charge of Lalpur PS by his father on 08 th March 2012 at about 07:30 AM and, accordingly, Lalpur PS Case No. 69 of 2012 was lodged against Kallu Rajak and two unknown under section 302/34 of the Indian Penal Code and section 27 of the Arms Act. The investigating officer found blood marks near the house of Deepak Tirkey where his son was shot dead. Kallu Rajak surrendered in the Court on 14th March 2012 and he was taken on remand the next day when he suffered disclosure statement at 08:30 PM before the investigating officer. On the pointing of Kallu Rajak, one Intex mobile phone was recovered by the investigating officer from the house of Prakash Ekka. The investigating officer recorded statement of the witnesses and three of them - Prakash Ekka, Bablu Tirkey and Ishu Tirkey - agreed to give their statement before a Magistrate under section 164 of the Code of Criminal Procedure. Dr. Binay Kumar who conducted the postmortem examination found that Shiva Tirkey had suffered antemortem firearm injury over right side of his occipital region.

3. Though the firing took place after midnight, the night was alive as the villagers were celebrating Holika Dahan till late in the night but other co-villagers were not examined by the investigating officer. The firearm allegedly used by Kallu Rajak could not be recovered and the investigating officer did not collect blood soaked soil from the place of occurrence. But finding that the other evidences collected in course of the investigation are sufficient to lay a charge-sheet, Kallu Rajak, Ashok Rajak and Sushil Kumar were sent up for trial and, as noticed above, they 3 Cr. Appeal (DB) No. 396 of 2015 and analogous cases

faced the trial on the charge of murder.

4. Eight witnesses were produced by the prosecution to prove the charge against the appellants but four of them extended a helping hand to the accused and did not support the prosecution in the Court. The learned Judicial Commissioner-IV, Ranchi held that the confessional statement of Kallu Rajak and the statement of the witnesses recorded under section 164 of the Code of Criminal Procedure fully supported the prosecution case against the accused.

5. The learned trial Judge has held as under:

"15. ......The confessional statement of accused Kallu Rajak before police is an important piece of evidence because it is leading to the recovery of his Intex mobile phone as well as this fact that just after occurrence accused Kallu Rajak had made an extra judicial confessional statement before Prakash Ekka that he has killed Shiva Tirkey. So the Ext-1 the statement of Prakash Ekka u/s 164 Cr.P.C. is a very important piece of evidence to establish this case. This witness has also admitted this fact in his examination-in-chief that after occurrence in the night Ashok, Sushil and Kallu had come to him and had stated that they have killed Shiva Tirkey...."

6. Mr. Nikhilesh Kumar Chatterjee, the learned counsel, appears for Kallu Rajak who is the appellant in Criminal Appeal (DB) No. 396 of 2015 and Mr. Sanjay Kumar Srivastava, the learned APP, represents the State in this appeal.

7. Mr. Ajay Kumar Singh, the learned counsel, has appeared in Criminal Appeal (DB) No. 313 of 2015 and Criminal Appeal (DB) No. 387 of 2015 on behalf of Ashok Rajak and Sushil Kumar. Mr. Azeemudin, the learned APP, has argued on behalf of the State in these matters.

8. Mr. Nikhilesh Kumar Chatterjee, the learned counsel, submits that PW5 and PW6 are not witnesses to the occurrence rather PW2 and PW3 who according to the informant could see murder of his son turned hostile in the Court. The learned counsel would refer to the statement of the investigating officer who said in the Court that PW5 is not an eyewitness, to submit that Kallu Rajak was implicated in the case on suspicion.

9. The prosecution which projected its case on the basis of the 4 Cr. Appeal (DB) No. 396 of 2015 and analogous cases

statements made by Prakash Ekka, Bablu Tirkey, Ishu Tirkey, Ashok Toppo, Bimla Toppo and Deepak Tirkey lost four of its witnesses in the Court who did not support the case against the appellants. PW1 Prakash Ekka is a seizure witness who identified his signature over the seizure memo but made a statement in the Court that nothing was seized by the police in his presence. He is brother-in-law of Kallu Rajak, who admitted in the Court that he made a statement before the Magistrate that Kallu Rajak, Sushil Kumar and Ashok Rajak came to his house in the night and confessed before him that they killed Shiva Tirkey, but, he refused to identify Sushil Kumar and Ashok Rajak in the dock. The prosecution, however, did not seek permission of the Court to cross-examine him though he had completely resiled from his previous statement made before the police and Magistrate, rather permitted the defence to prompt PW1 to make statements favourable to the accused. We further see that PW1 stated in the cross-examination by the defence that he gave statement before the Magistrate under extreme conditions as his wife and children were made captive in the police station and he was threatened by the police to involve him in a false case. This witness rendered himself wholly unreliable and his evidence intended to help the accused cannot be used by the appellants. The evidence of a witness who takes U turn in the Court and sides with the accused is required to be scrutinized carefully. While examining evidence of such a witness the Courts need to keep in mind that the evidence of such a witness coming in the cross-examination by the defence would fall in the realm of hearsay and in any case would not destroy the prosecution case.

10. PW2, PW3 and PW4 who are co-villagers of the appellants were declared hostile at the instance of the prosecution. PW2 identified the appellants in the Court and admitted his signature over his statement recorded before the Magistrate. He has also admitted in the cross- examination by the prosecution that his statement was recorded by the police but he denied that he ever made any statement to the investigating officer that Ashok Rajak gave a gun to Kallu Rajak and asked him to 5 Cr. Appeal (DB) No. 396 of 2015 and analogous cases

shoot at Shiva Tirkey. PW3 professed in the Court that he knew nothing about the occurrence and in the cross-examination by the prosecution he disowned his statement made before the investigating officer. PW4 followed these witnesses and made a statement in the Court that he could never know who was the assailant. Going one step further, he denied in the cross-examination by the prosecution that his statement was recorded by the investigating officer.

11. The learned trial Judge did not accept the defence contention that PW5 and PW6 gave exaggerated version of the occurrence to implicate the accused in the crime and, accordingly, they were found reliable witnesses.

12. We have also scrutinized the evidence of PW5 and PW6 and agree with the learned trial Judge that they are reliable witnesses who saw firing at Shiva Tirkey.

PW5-Examination-in-chief:

1. The occurrence happened on 7th March 2012 at about 01-01:30 AM. On that day Holika Dahan was being celebrated. Several boys of muhalla were also present there. When I came out of the house to call Shiva Tirkey for dinner I saw that Ashok Rajak was touching the pistol held by Kallu (Rajak). After few minutes, Kallu Rajak fired shot at Shiva Tirkey. I went running there and found Shiva Tirkey drenched in blood. Thereafter Ashok Rajak and Sushil Kumar helped Kallu Rajak to flee away from there. Thereafter I raised hulla and made arrangements for taking Shiva (Tirkey) to the hospital. The doctor declared Shiva Tirkey dead.

2. I identify all the accused. They are present in the Court. PW6-Examination-in-chief:

1. The occurrence took place two years back on the day of Holi Agja (Holika Dahan). It was around 01:30 in the night. All the persons were near Agja (bone fire). Ashok Rajak, Kallu Rajak, Sushil Kumar and Shiva Tirkey were there with several other persons. Kallu Rajak was demanding money from my son Shiva Tirkey. When my son refused, Ashok and Sushil caught hands of Shiva and Kallu fired at the head of Shiva.

2. Shiva was taken to RIMS where the doctor declared him dead. He was brought back home and a written complaint was given in the police station.

3. The inquest report bears my signature. This is marked as Exhibit-5.

4. The written report given to the police station was written by Sanjay Toppo and it bears my signature. This is marked as Exhibit-6.

5. I identify all three accused. Today they are present in the Court.

6 Cr. Appeal (DB) No. 396 of 2015 and analogous cases

13. The investigating officer has tendered evidence in the Court in support of the prosecution case, but, in paragraph no. 19 of the cross-examination he made a statement that Bimla Toppo is not an eyewitness.

14. The statement made by the investigating officer in paragraph no. 19 reads as under:

"19. lk{kh foeyk VksIiks nhid frdhZ dh vkokt lqudj ckgj fudyh FkhA xksyh pyus ds oDr og ?kj ij FkhA ?kVuk dh og p'enhn xokg ughs gSA"

English Translation:

"19. Witness Bimla Toppo came out of the house on hearing hulla raised by Deepak Tirkey. She was at home when firing took place. She is not an eyewitness of the occurrence."

15. A police witness is not disbelieved by virtue of his official position rather he may be an eyewitness in the case. But in the present case the investigating officer who was not an eyewitness can tender evidence in the Court what he can read from the records. Generally the objective findings recorded by the investigating officer in the case diary form the basis of his evidence in the Court and he cannot render an opinion in the Court whether a witness was eyewitness or not. This has come on record that the place where Shiva Tirkey was shot dead was at a distance of about 100 feet from the house of PW5. She appears to have made a statement before the investigating officer that she was at home and she has firmly stated in the Court that she could see Kallu Rajak firing at her son. The defence could not elicit any relevant statement from her in the cross-examination so as to doubt her presence in the house at the time of occurrence. The accused did not set up a case that it was a dark night and there was no source of light, rather the prosecution has brought evidence during the trial that there was bone fire on occasion of Holika Dahan and, therefore, identification of the assailant was not difficult. As regards presence of PW6 in the house of PW5, we find that the investigating officer stated in the Court that they are relatives and stayed in the same house. Shiva Tirkey was son of PW6 and living in the house of PW5. It has come in the evidence that PW6 had a separate house 7 Cr. Appeal (DB) No. 396 of 2015 and analogous cases

but quite often he would visit PW5 and stay in her house.

16. The evidence of PW5 and PW6 that Kallu Rajak fired at Shiva Tirkey is supported by the medical evidence which is extracted below:

"External injuries:- Firearm injury having wound of entrance ½ cm in diameter with abraded and inverted margin over right side of occipital scalp in lower and lateral part.

The projectile passes upperward, forward and towards the left breaking the underneath occipital bone, then passes through substance of brain, then the perforetis the peturous part of left temporal bone, then again passes through the substances of brain and breaks the lateral part of left parital bone and makes an exit wound over line the same in scalp measuring 1 cm x ½ cm in size.

The back of the wound is contisued and lacerated. Remaining part of cranial cavity filled with blood and blood clots.

A stomach contains partly digested food material in pesti form 200 gm.

Opinion:-

(i) above mentioned firearm injury is antemortem nature.

(ii) Caused by firearm (bullet injury).

(iii) Death is due to head injury as a result of firearm injury.

(iv) Time elapsed since death is 12 hours (+) (-) six hours from the time of postmortem examination."

17. The firearm used in the crime was not recovered, yet, since the presence of Kallu Rajak and firing by him at Shiva Tirkey are established from the prosecution evidence, this lapse on the part of the investigating officer would not weaken the prosecution case. In "Rakesh v. State of U.P." (2021) 7 SCC 188, the Hon'ble Supreme Court has held that recovery of the crime weapon is not a sine qua non for conviction in a murder case.

18. In "Nankaunoo v. State of U.P." (2016) 3 SCC 317, the Hon'ble Supreme Court has held as under:

"9. The learned counsel for the appellant contended that the courts below failed to take note of the fact that the alleged weapon "country-made pistol" was never recovered by the investigating officer and in the absence of any clear connection between the weapon used for crime and ballistic report and resultant injury, the prosecution cannot be said to have established the guilt of the appellant. In the light of unimpeachable oral evidence which is amply corroborated by the medical evidence, non-recovery of "country-made pistol" does not materially affect the case of the prosecution. In a case of this nature, any omission on the part of the investigating officer cannot go against the prosecution case. Story of the prosecution is to be examined dehors such omission by the 8 Cr. Appeal (DB) No. 396 of 2015 and analogous cases

investigating agency. Otherwise, it would shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."

19. The confessional statement of Kallu Rajak is not admissible in evidence and the statement of witnesses recorded under section 164 of the Code of Criminal Procedure is not substantive evidence. Notwithstanding that, the evidence of PW5 and PW6 is sufficient to establish firing at Shiva Tirkey by Kallu Rajak. This also we need to keep in mind that a large number of prosecution witnesses turned hostile in the Court. All these four witnesses are co-villagers of the appellants and one of them was brother-in-law of Kallu Rajak. They were won over by the defence to give a jolt to the prosecution in the Court. Even so, the prosecution evidence laid through PW5 and PW6 does not admit any doubt on the role played by Kallu Rajak.

20. There was a quarrel between Kallu Rajak and Shiva Tirkey but no witness, except PW6, who saw how the quarrel had started came to depose in the Court, but that by itself is not a mitigating circumstance leaning in favour of Kallu Rajak. The medical evidence is that Shiva Tirkey suffered firearm injury over occipital region and PW8 has rendered a definite opinion that Shiva Tirkey died due to firearm head injury. Even if we accept the submission of the learned counsel for Kallu Rajak that firing by him was not with an intention to commit murder of Shiva Tirkey, we have no doubt in mind that his act is covered under Clause 4thly to section 300 of the Indian Penal Code.

21. For the aforesaid reasons, we do not find any merit in Criminal Appeal (DB) No. 396 of 2015 which is accordingly dismissed.

22. Mr. Ajay Kumar Singh, the learned counsel for Ashok Rajak and Sushil Kumar submits that the prosecution evidence on complicity of these appellants is cryptic, contradictory and liable to be ignored. PW6 made a sort of statement in the Court that the appellants were also brought up by him. The appellants were known to the informant and as we have held that there was sufficient source of light for identification near the house of PW5, still, the informant named only Kallu Rajak in his 9 Cr. Appeal (DB) No. 396 of 2015 and analogous cases

written complaint submitted to the officer-in-charge of Lalpur PS. This is the evidence of PW5 in her examination-in-chief that after firing at her son Ashok Rajak and Sushil Kumar helped Kallu Rajak to flee away. But the investigating officer admitted in the Court that PW5 did not make a statement before him that Ashok Rajak and Sushil Kumar helped Kallu Rajak flee away. We further find that in his cross-examination, PW6 admitted that he did not inform any one that Ashok Rajak and Sushil Kumar were holding hands of his son.

23. Ashok Rajak and Sushil Kumar are convicted with aid of section 34 of the Indian Penal Code which embodies joint liability in doing a criminal act. In "Chellappa v. State" (2020) 5 SCC 160, the Hon'ble Supreme Court held that before a person can be found guilty with the help of section 34 of the Indian Penal Code it must be established that there was a common intention and the persons being sought to be held liable must have participated in the crime for accomplishing the final act.

24. In paragraph no. 9 of the reported judgment, the Hon'ble Supreme Court has held as under:

"9. It must be noted that Section 34 IPC is not a substantive offence. Before a person can be held responsible under this section, it must be established that there was a common intention and the person being sought to be held liable must have participated in some manner in the act constituting the offence. The common intention shared by the accused should be anterior in time to the commission of the offence, but may develop on the spot when the crime is committed (see Virendra Singh v. State of M.P.). However, from a perusal of the impugned High Court judgment, as well as the submissions of the prosecution, it is clear that no reasoning or evidence has been advanced as to the fulfilment of the requirements for the conviction of the appellant-accused under Section 34 IPC in the present case."

25. We find that the evidences laid by the prosecution against Ashok Rajak and Sushil Kumar do not establish that they actively participated in murder of Shiva Tirkey. There is no evidence on record to infer that they possessed any intention to cause harm to Shiva Tirkey, much less sharing of common intention in furtherance of which Shiva Tirkey was murdered.

26. The above being the state of evidence, we hold that the 10 Cr. Appeal (DB) No. 396 of 2015 and analogous cases

prosecution has failed to establish the charge under section 302/34 of the Indian Penal Code against Ashok Rajak and Sushil Kumar.

27. Accordingly, the judgment of conviction of Ashok Rajak and Sushil Kumar dated 17th April 2015 and the order of sentence dated 20th April 2015 passed against them by the learned Judicial Commissioner-IV, Ranchi in Sessions Trial No. 689 of 2012 are set-aside.

28. Criminal Appeal (DB) No. 313 of 2015 and Criminal Appeal (DB) No. 387 of 2015 are allowed.

29. Mr. Azeemuddin, the learned APP, informs the Court that Ashok Rajak who is in custody has served sentence of more than 7 years while Sushil Kumar is on bail by virtue of order dated 15 th December 2016 passed by a co-ordinate Bench of this Court.

30. Ashok Rajak who is the appellant in Criminal Appeal (DB) No. 313 of 2015 shall be released forthwith, if not wanted in connection to any other case.

31. Sushil Kumar who is the appellant in Criminal Appeal (DB) No. 387 of 2015 is discharged of liability of the bail-bonds furnished by him.

32. Let the lower Court records be transmitted to the Court concerned, forthwith.

33. Let a copy of the Judgment be transmitted to the Court concerned through FAX.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.)

Jharkhand High Court, Ranchi Dated: 15th December, 2021 Sudhir/RKM NAFR