Sukhdev Sahu @ Suman Bhagat @ Suman vs The State Of Jharkhand
2021 Latest Caselaw 1905 Jhar

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        Cr. Appeal (D.B.) No. 504 of 2020
     Sukhdev Sahu @ Suman Bhagat @ Suman                      --- --- Appellant
                              Versus
     The State of Jharkhand                               --- --- Respondent


                              .......

CORAM: HON'BLE MR. JUSTICE APARESH KUMAR SINGH HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY Through Video Conferencing

For the Appellant : M/s Jitendra Singh, Sr. Adv., D.K.Chakraverty,Adv.

     For the Respondent        : Mrs. Vandana Bharti, A.P.P.

05/15.06.2021      Heard learned Senior Counsel Mr. Jitendra Singh assisted by

learned counsel Mr. D.K.Chakraverty on behalf of the appellant and Mrs. Vandana Bharti, learned A.P.P for the State on the prayer for suspension of sentence made by this appellant through I.A. No. 2304 of 2021.

The sole appellant stands convicted for the offence punishable under Sections 302 of the I.P.C and Section 27(2) of the Arms Act by the impugned judgment of conviction dated 30.06.2020 passed in Sessions Trial Case No. 208 of 2018 by the learned District and Additional Sessions Judge-VI, Gumla and has been sentenced to undergo R.I. for life with a fine of Rs.20,000/- for each of the aforesaid offences punishable under Section 302 I.P.C and 27(2) Arms Act and default sentence by the order of sentence dated 07.07.2020.

Learned Senior Counsel for the appellant has submitted that the findings of the learned Trial Court are based on circumstantial evidence as there were no eye witness to the occurrence. It is submitted that the incriminating circumstances have not been fully established to complete the chain, which could lead only to the guilt of the accused / appellant and would be inconsistent with any other hypothesis. He submits that seizure of empty 0.315 bore cartridge of 9mm KF as per Ext.9 is inconsistent with the seized cartridge sent to the SFSL, which was of 8mm. He has referred to the statement of P.W.4 Chhavi Kant Sahu and P.W.5 Gopal Sahu, seizure list witnesses who have not been declared hostile on the request of the prosecution. Learned Senior Counsel for the appellant has also taken us to the statement of the Investigating Officer (P.W.13) Ranjit Narayan Jha and the Sergant Major (P.W.10) Vijay Narayan Choudhary upon whose testimony the vital inconsistency in the

seizure of the empty cartridges from the place of occurrence has been explained by the learned Trial Court by a completely erroneous line of reasoning. He submits that the statement of P.W.7 Shiv Sahu, who was witness to the seizure of the rifle, 36 live cartridges and empty cartridges from the house of the appellant, has categorically stated that 14 empty cartridges were seized from his house, which contradict the seizure list i.e., Ext. 15. The prosecution has shown seizure of two empty cartridges from the house of the appellant. It is submitted that the appellant in his statement under Section 313 Cr.P.C. has also stated that 14 empty cartridges were seized from his house on being confronted with the material evidence on this count. Though the said seizure was purportedly on the basis of his confession, but the seizure list does not record his signature thereupon. Pointing out to the confessional statement of the appellant, it is submitted that as per the statement of the Investigating Officer (P.W.13) Ranjit Narayan Jha , the accused/ appellant was nabbed at 0.45 hours on the night of 18.03.2018 i.e., early hour of 19.03.2018 but he was coerced into making confessional statement as would be evident from the arrest memo, which has been prepared at 8.45 hours in the morning of 19.03.2018 and the seizure has been effected at 1 p.m. on that date.

Relying upon the decision of the Apex Court in the case of Ashish Jain Vrs. Makrand Singh & others reported in (2019) 3 SCC 770 and that of the case of Selvi and others Vrs. State of Karnataka reported in (2010) 7 SCC 263, it is submitted that such a confession leading to recovery cannot be treated as admissible under Section 27 of the Evidence Act because the confession cannot be said to be voluntary. It is further submitted that if the seizure of the empty cartridges from the place of occurrence is not consistent with the material object sent to the SFSL i.e, 8 mm empty cartridge of 0.315 bore, then the SFSL report does not have any relevance to implicate the appellant in the crime. The seizure of such empty cartridge could not be treated to be an incriminating evidence against the appellant for recording his conviction.

Learned Senior Counsel for the appellant thus submits that the prosecution has completely failed to establish the vital links in the chain necessary to point out towards the guilt of the appellant and no one else.

The prosecution in a case of circumstantial evidence has not been able to prove the motive. The statement of Investigating Officer (P.W.13) Ranjit Narayan Jha regarding illicit relationship between the deceased and the appellant's wife has been discarded by the Trial Court. Moreover the suggestion of the informant regarding an incidence of Ram Navami of the previous year also does not connect the appellant to the crime. Therefore, the appellant, who is an ex-Army personnel and has undergone custody for approximately 3 years 3 months since his arrest on 19.03.2018 may be enlarged on bail by granting him the privilege of suspension of sentence.

Learned A.P.P. has strongly opposed the prayer. It is pointed out by her that the entire story of 9mm cartridge of 0.315 bore is a minor mistake in recording the seizure list by the ASI (since deceased), which has been adequately explained in the evidence of the Investigating Officer (P.W.13) Ranjit Narayan Jha and the Sergant Major (P.W.10) Vijay Narayan Choudhary. The learned Trial Court has also categorically held at para 35 of the impugned judgment that 1mm corresponds to 0.0394 inches and therefore, 0.315 inches would correspond to 8mm and not 9mm. It would be even arithmetically incorrect to infer that an empty cartridge of 0.315 inch bore was of 9mm instead of 8 mm recovered from the place of occurrence. It is submitted that the prosecution had been able to successfully establish the vital circumstances in the link of the chain such as the recovery of empty cartridge from the place of occurrence, the confession of the appellant leading to the recovery of the incriminating rife and two empty cartridge from his house, which is admissible under Section 27 of the Evidence Act. It is further submitted that there were no gaps in the chain of custody of the seized articles which were examined by the SFSL. The SFSL report adduced by P.W.7 Shiv Sahu, Joint Director, SFSL clearly shows that the firing took place from the same rifle. The post mortem report adduced by P.W. 9 Dr. Rajesh Kumar Toppo has also found 3 wounds of entry and 3 wounds of exit besides other sharp cutting injuries, which could be inflicted by a Bhujali, the cover of which was seized from the place of occurrence. It is submitted that the appellant has not been able to give any valid explanation in respect of recovery of the incriminating articles from his own house to discharge the burden of proof under Section 106 of the

Evidence Act nor given any satisfactory explanation thereto in his statement under Section 313 Cr.P.C. In such circumstances, when the appellant has remained in custody for about 3 years 3 months only, he should not be enlarged on bail in such a case of serious nature.

We have considered the submission of learned counsel for the parties and taken note of the relevant material evidence relied upon by them from the lower court records. Having regard to the recovery of empty cartridges from the place of occurrence and also the rifle with two empty cartridges from the house of the appellant on the basis of his confession recorded after his arrest admissible under Section 27 of the Evidence Act as also the corresponding fire arm injuries found on the deceased during post mortem and the confirmation of use of the fire arm as per the SFSL report, we are not inclined to enlarge the appellant on bail by granting the privilege of suspension of sentence at this stage. Accordingly, the prayer made in I.A. No. 2304 of 2021 stands rejected.

(Aparesh Kumar Singh, J.)

(Anubha Rawat Choudhary)

A.Mohanty