Vikash Gaur @ Vikash Gond vs The State Of Jharkhand
2021 Latest Caselaw 228 Jhar

IS THE HIGH COURT OF JHARKHAND AY RANCHI

(Criminal Appellate Ju risdiction)
Criminal Appeal (D.B.) No. 481 of 2012

wdement of conviction dated 17.02.2012 and the «

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eras

(Against the
sentence dated 3
m Sessions Trial

Qo
UZ 2012 passed by the learned Sessions Judge-D, Garhwa
No. 86 of 2010)

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3
a

Vikash Gaur @ Vikash Gond, son of Buchun Gand, resident of
Midage- Sonpurwa, PO and PS- Garhwa, District Garhwa vee Appellant
Versus
The State of Jharkhand . . Respondent

(Heard threugh VC. an 18. O12024) PRESENT

HON BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON' BLE MR, JUSTICE » RATNABKER BHENGRA

ARN oe

Far the Appellant : Mir ALR Kashyap, Sr. Advocate Mr, Anurag Kahsyap, Advocate Por the State 'Mr Ravi Prakash, Spl PP

ee Bw Se

Oral Judgement 1.01202]

Pose OSes oO i x Per Shree Chandrashekhar J

In Sessions Tal No.6 ef 2010, the appellant has faced the

~

charge under section 302 of the Indian Penal Code Gn short IPOS and

t

oy

tion 27 of the Arms Act for committing murder of Anup Prajapati. He was convicted and sentenced to Ri for life and a fine of Rs. 50004 under section 302 IPC and Ri for § years and a fine of Rs. 10004 under section 27 ofthe Arms Act

2. Garhwa PS. Case No. 30 of 2010 was lodged on 10.02.2010

gainst Vikash Qaur a! Vikash Gond, the appellant. The informant who is the mother of Anup Prajapati has stated in her fardbevan which was recorded at O7:00 AM on 10.02.2010 in OPD of Sadar Hospital, Garhwa that in the everting of 09.02.2010 she had gone with her son to attend m: arrlage

ceremony of the daughter of Bharat Mahto, At about 16:00 PM, when

iMwearpuje was being performed Vikash Gaur @ Vikash Gand whoa was

b3

Crintnal Appent (DH) Ne. 43) af 2032

walking with her son fired at him. When she raised nile (ories) that Vikash Gaur has shot her son the persons around there including few on the side of the bridegroom carried her son on a Jeep to Sadar Hosnital, Garhwa, where ne was declared brought dead. During the vestigation the elder son of the vormant and her neighbours Including the sons of Bharat Mahto were exumined and they supported the informant that Vikash Gaur had Sred at Amup Prajapati. Dr. Ram Naresh Singh Diwakar who conducted the post-mortem examination has found one laceraied wound of the size of mx a" cavity deep, on the right ac fossa. Cin dissection, he removed one metallic piece fram the Hiac bone. In his opinion, the death was caused due te shock and haemorrhage caused by firearm injury, Afler the investigation a charge-sheet was filed against the appellant and, asi noticed above, a charge unser section 302 IPC and section 27 of the Anns Act was framed which he has dented and claimed the trial, 3, In the trial, the prosecution has examined wight witnesses out of whom the informant is PW6. Three witnesses viz. PW1-Vinay Mahto, PW2-Pradeep Prajapati and PW3-Ramashish Mahio are the sons of Bharat Mahto: PW4-Ashok Praj anatl is cousin brother of the deceased and: PWS-Pradeep Prajapati is elder son of the Informant. PWS has claimed that his brother told him narne of the assailant and he was with him when his brother was taken to the hospital by Ashok Prajapati and others. On behalf

afthe accused four witnesses were examined who have deposed in the Court

that Vikash Gaur was not resent at the place of ceeurre ence and there was

h

eye peste ot oe os yy 5 yey eres ete "Phas Tawar BER O TP OAE frmg by the Gurratis at the time of Owarpuya. The learned Sessinms

Judge-Ii, Garhwa has held that PW4 and PWS have fully supported the

, >

mlormant who is a reliable and trustworthy witness; there was no delay in lodging the First Information Report: ocular evidence is sufficiently carrohorated by medical evidence, and; defence witnesses have not s spoken the uth. The learned trial Judge has discussed testimony of the informant in

the Jolowing manner:

"bad. During fhe course af argument, i was alsa subinited on behalf of the accused person that PM 6 Ruatria Aiowar is not fully retladle. H was subvaltied that she hes nee state ed they Be son Anup Prafapati hed died on

Fae oo t Beer office ofsemwtasey ihe spot and on the otter place, she says that he died during

3 Criminal Appeal (BB) No. 432 af 2812

y hawk saga owed daxghier of Ghariat Molva and she

myer f ies beg efeeteret bewn shitfed by! Wer She has steed,

was a suriage had beer rand

IN pard + af He

i} ffi hosp eh ay OSA

ik Fe SHE POINET ned 0 out, Af fhal Loe,

sfanding with Aer san. She hus piven name ° of se RE af the village, who we Ve presen i at tre inte Resides, fired op her SOR, SHE ha aot caught the accused but she started 7 fo } Fase hull that the accused had shot fire on her nye af the nH ured on the Jeep of buarartis, goiig i gnd mat fo the Police station, Pher soa fy the docien reaching of "statement af the infornsar Kanan ve and reg stration oF BER an the ad Ning of charre shee efc, all ix Therefore, { do net Arad

a learned lawyer pr LHe

~

3, The intial case projected by the prosecution was that PW, PW2, PWS, PW and PW6 have seen firing at Anup Prajapati, however, during the trial PW, PW2 and PW3 have flatly denied to have made any staternent before the police. PW when stated in the Court that his siatement

was not recorded by the police, at that point he was declared hostile at the

instanes of the prosecution. In the trial when a w itness UePOses COMMPAry iG His Ataternent under section 161 CrPC or derues to have made any statement ara part of the statement under section 161 CrPC with the permission of the

Court the presecution can cross-examine him and make a formal request te

the Court to declare him hostile. The statement of a hostile witness in the

jade

examination-in-chief and cress-exaiination can be used by the prosecution

t NO

fo the extent the hostile witness supports Hs case, and by the defence if it i

dean

erebablizes the defence story, In "Syad dkbar x Stare of Karnataka" f7880}) SCC 36, the Hon'ble Supreme Court has observed that evidence of a hostile witness cannot be rejected wholesale merely on the ground that the prosecution has dubbed him hastile and cross-examined him. The evidence

of PW, PW2 and PW3 is of no worth for the prosecution, however, a part

of the examination-in-chief of PW4 who was also declared hostile supports

4 Croninal Appead (2.8.3 No. 437 ef 2688

eR

the prosecution case, His evidence that at about 10:30 PM Anup Prajapati suffered a flrearm injury on his waist in the marriage ceremony of the daughter of Bharat Mahto and that Anup Praiapati was taken to hospital for treatrnent can be used by the prosecution, His evidence in crass-examination by the defence whereunder he has made certain statements favorable to the accused carmot be used by the defence ~ the evidence ofa hostile witness in the cross-examination by the defence is in the realm of hearsay, and that is so primartiy for the reason that if remains urftested in the absence of any further cross-examination by the prosecution.

S, PWS is the elder breather of Arup Prajapati. His eviderice is that in the fateful night he was sleepme in his | house and on hearing fudla bad rushed to the place of occurrence. Ne has stated that un inquiry bis brother told hum that Vikash Gaur has fired at him, He is an inquest witness whe has claimed that the police has recurded his statement. He has aNirmed in his orags-examination that several persons including Ashok Prajapati were also mresent there. His statement that his brother told him name of the assailant,

if prev ed, would be highly incriminating material against the appellant. An

accused can be convicied solely on the basis of a dying declaration and it is

nat necessary that a dying declaration must be corrsborated by independent evidence, though the Court as a matter of prudence may seek corroboration. in "Aveda Bala Sy sh sratunanyvant vo State of AP" €7G93) 2 SCC 6&4, the Son'ble Supreme Court has observed that a staternent made by a person on the verge of his death must be accorded a special sanctity because at that solemn moment the person is most unlikely to make any untrue statement. What we gather from the prosecution evidence is that the statement of PWS that his brother has disclosed name of the assailant is highly doubt, His Own statement is that several persons were present at the place of ccourrence, however, except him no other witness, not even his mother, has slammed that Anup Prajapati had made dying declaration before his brother tine him name of the assailant. No one has stated, and the doctor and rurse who attended Him were not examined to support PWS that after sustaining the firearm imury Anup Prajapati was ina fit condition to talk. Ts

fact the statement of PWS that he has accormpanied his brother to hospital is

> Croninal Appeal (DB) Ne. 434 of 2623

aisc doubtful for the other witnesses do not speak about his presence af the place of occurrence after Anup Prajapati suffered firearm injury. In the erass-examination, PWS has stated that his house is at about ten steps away from the place of accurrence and, as noticed above, this is his statement that art hearing Aula he had rushed to the place of occurrence. However, be did not find any blood marks there though he says that when he reached the place of occurrence his brother was lying Injured on the ground. He further says that the blood stains were washed off. If his statement that on hearing fndfea be had reached the place of occurrence which ts just about ten steps away from his house is to be accepted it fs unbelievable that in such short span of Hime the blond marks were washed off. He has failed to state name of the driver and number of the vehicle on which bis brother was carried ty hospital. What is more important fo nete is that in his cross-examtination he says that besides him his mother and Dilip Prajapati had taken Anup Praiapati to hospital and he has stated that PW4 was also with him bur PW 4 has not stated that the elder brother of Arnup Prajapati was also with him when Anup Prajapati was taker to hospital. It has appeared in his crosa-examination thet Garhwa police station falls on the way to hospital and he has admitted that he did not send information to the police station. However, he has tried to cover up and nest said that in the night at about 11:00 ~ 1130 PM he himself hac gone to the police station and lodged the information, Quilts contrary to his stand, the Investigating Officer has deposed in the Court that when a body slip was received from Sadar hospital, Garhwa he had gone to hospital where he recorded the farubeves af the mather of Anup Prajapati. The Investigating Offeer has said that PWS did not state before him that on hearing Audie near his house he had gone there and found his brother lying Injured, and that his s brother told him that Vikash Gaur had fired at him. In our opinion, on sach contradictory evidence PWS has rendered himself an unreliable witness and the story ofa dying declaration by his brother floated by him in the Court cannot be believed and, accordingly, his evidence rust be excluded from consideration,

&. The prosecution has projected the vformant as an eyewiliness,

wv

& Criminal Appeal (2.8) No, 434 of 2812

mri AUK. Kashyap, the learned senior counsel for the appellant has referred

to the testimony of PW6 in extenso and contended that besides being an

unrehable witness PW6 is not an eyewitness as her presence at the place of occurrence and at the (ime of occurrence are not proved,

Y, Uhe leamed counsel for the appellant has referred to and relied

upon the fovowing judgments:

R&I B,

ft 2 i> tes rt y. ir fue "Due Nek Pandey F State of t £982) 2 S€ gE i . >. '~ 2 ony fay) steve of Servo Ko Ram one fe

As} "Byoeietheal ¢ udberns a Were of Wibese PY CONG @L CAs CRY MO OGYe OF Oey

Fogo Oy Re

"Aronear Pal & Stare ef Utreakhand

« P tof} "kh A fe é ei

a Su

in the Court, PW6 has stated that she has seen Vikash (saar

one at her son. Presumably to a suggestion by the defence that she did net

g tell the police that Vikash Gaur had fired at her son in her presence rather such statement was incorporated in her fentbovon by the police, she has

Stogd to ber grounds and said that in her fardbevan she did say that Vikash Gaur had fired at her son. There is not impediment in convicting 4 person on the basis of the testimony of a sol hary eyewitness and as a general rule the Court may act upon his testimony. Section 134 of the Indien Evidence Act provides that no particular number of witnesses is required ino any proceeding in proof ofa fact.

~~

'. "OD Rae Ga heyheowy i Y dathoe 4 :

In "Shivaff Sahabrae RBobade & Another Safe

t

s Fe

or Lee

Nie, %

Cy

a, the Hon'ble Supreme Court has observed

wo €ven tf the case © agains the accused hanes on the evidence of a

\

single eyewitness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence Court call for corroboration'. In yet another judgment, in "BAtmapa Chandappa Hosamani ve State af Karnataka' £2006) 77 SCC 323 on which the learned senior counsel for the appellant has placed heavy reliance the Hon'ble

Supreme Court has observed as under:

oR Fray in, ht "en Seat 4 hey, iy ad aa ae St +? wey wes : 8s Y a es ee % wee we oP as oa nee tet a "sg Seg a ha oo Neat x aon "a Bs sy tak os mow, im re a Ga we sh be hon ' n ; ne Sey % ° ot sped Now AS sohee tw bs uy a Way bon , Lt, po 'ahead a 3 a3 a4 based 3 Cn < od "on aed at ot 'ak x oak ae os Kym 8 . OS orn. an who, on Abas, aes "4 noe oS ty bs xy need, "4 oO r whet me i me we, a he bee psy "> oo gn rs ae Ua ba? a .

SO oe rag Co near 4 " $a x :

am, we oo 4 a £5 wa nd pee. "2 ore a3 = i MS ot ot te te ne ee cnet wen tt fp a 6 B aeed, awe A ar = seo Oe OF So Tit,

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Lb Bate won Oo = ne we tk ol ae need ee ' ' a

PORE DIE b CEE

& Criminal Appeal (B.B) No. 451 of 2012

us, Hegafive evidence was given that None of ihe witnesses have sfeted Sit nor come in the sarah Onder these

stances, £ i find th nad fhe defence witnesses Nave stated a fe fe} rexpeet of the absence of Aumaria Arewer at the spot, absence

~ oy not aay ye ay thy ge oF accused af the 3 spot aed fielag an the deceased af some ofhes

3. 2. f . ods ~ * -- - :

pines, flee: the front side of the wate of Bharat Afahto where + wie ;

Dwarpuja was to de performed

ig, Though we sre of the opinion that the defence witnesses have

also not spaken the true facts, their evidence that there was firing in the

Sad wn, ee fod re "

he en

berat is corroborated by the statement of the Investigating C

13, In "Dud Nath Pondev v. State of OP." (2981) 2 SCC 166 ¢

yee.

Sones yok S

Hon'ble Supreme Court thas observed as under:

SES Le

HVE WURESSES GPE entivied fa-eyudl eaten!

st : wow " hos . ape seryeepeer og -

wih these OF fhe prosecution Aga conriy ough! tes overcome thelr tradinonal, Instinctive divhelief ie de

WHAORSES, AUR OREN, fhey felt Res but sa dao the

1a, In "State af Harvane vu Ram Sieh" (2002) 2 SCC 426 the

Hon'ble Supreme Court has observed as under:

itmesses canna' abvavs be levies BE GEFERCE witnesses § ure » onutien na ig as that af ihe

x ' _ , yey. ., "

fhe issue uf creatistiity ane the frustwarthines

ea oovgteedbveetered te eee Ne fey a Lied eyo Cond ve ts s ativibuied ta ihe defence WHAESTEY GH G POUL. Ke fEChor of ihe defence z

a evidence onderes 4

fected rather easuedly DH

5, Further, the informant has admitted in her cross-examination

nat her son was standing Just by her side and on her right Vikush Gaur was standing with her. She has further stated that Vikash Gaur fired from a pistol

which htt her son on the right side of his waist. There is a certain

"

disquictening silence in her testimony because after stating about firing at

her sort she does not say what happened thereafter. Though she has stated in

we

Cetaxt she dees not say sa. in

daubtiul Uf she he someone must come fonward to curroborate her and if she has not raised Au//a after seeing firing at her son her conduct

x

sAyret Ryne brated eerylten aa at Shara wae a fas crassa at th < ee must be held gaite unnatural. There was a large crowd at the house of Bharat

3 Onavival dppeal (9.8) No. 451 of 2083

Mahto and in her cross-examination PW6 has admitted that people were standing close to each other, [f that is so, it is highly unprobable that any person could have flred and sneaked away. This is not the prosecution sto that after firme at Anup Prajapati the people gathered there tried to apprehend the appellant, or that taking benefit of the crowd he had escaped away, PW6 has stated that her house and the house of Bharat Mahto are in the same lane in front of each other, bul Bharat Mahto was not examined during the trial and her own statement was recorded about "rent days after

the occurrence. The statement of the informant to the effect that Vikash Gaur had fired at her son from a distance of about 2 feet is not supported by the medical evidence. PWS has not observed any blackening or charring mark. around the wound and to a definite suggestion by the defence he has stated that the vietim was shat from a distance of more than 3 feet. In the aforesaid factual scenario, we find that the evidence of PW6 is surrounded suspicious circumstances, The case of the prosecution has been weakened further, to a certain extent, by the evidence of the Investigating Officer. At one place he says that fardbeyan of the informant was recorded at QO AM, Inquest was prepared at 07:;30 AM and the First Information Report was lodged at 10:00 AM on 10.02.2010. In the cross-examination, he says that he reached the place of occurrence at about [2:00 noon where he recorded statement of the informant. He admits that he did not find trace of blond at the place of occwrrence and admits that he has not recerded statement of Bharat Mahia nor bas be conducted investigation on the pout of enmity.

lO. The aforesaid state of affairs indicate that the prosecution has not disclosed the true manner of occurrence, Several persons had gathered near the house of Bharat Mahio on the date of occurrence for attending marriage of his daughter, fireorackers and gunshots were fired, bul, how

Anup Pralapati has suffered firearm injury is not established. The presence

af the informant ai the place of cccurrence even though accepted, her

testimony that she has seen firing at her son by the appellant does not inspire cordidence and on that basis the appellant cannot be convicted for

Trrarder.

1Q Croninal Appeal (DUE) No. &3f of 2623

V. For the aforesaid reasons, we are inclined to extend the benefit

of doubt to the appellant and, accordingly his conviction and sentence under section 302 IPC and section 27 of the Arms Act are set-aside.

18. Mr Ravi Prakash, the learned SplPP states that the appellant who has served more than fourteen years of imprisonment, with remission, is 19, Accordingly, the appellant, namely, Vikash Gaur @ Vikash

Gand shall be set free forthwith, if not wanted in connection to any other

2, fn the result, Cr Appeal (D.B.) No. 451 of 2012 is allowed. 21, LA. No. 1883 of 2020 stands disposed of.

a2 Let lower Court records be transmitted to the Court concerned,

forthwith.

23. Let a copy of the Judgment be transmitted to the Court cancerned through FAX'.

Sebi (Shree Chandrashekhar, J.) Sui (Ratnaker Bhengra, J)