Jharkhand High Court
Nago Pandey vs The State Of Jharkhand on 22 November, 2021
1
Cr. Appeal (SJ) No. 1607 of 2003
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Appeal (SJ) No. 1607 of 2003
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(Against the judgment of conviction dated 22.08.2003 and order of
sentence dated 23.08.2003 passed by the learned Additional District
& Sessions Judge, Fast Track Court-IV, Deoghar in Sessions Case
No. 18 of 1990.)
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Nago Pandey ... Appellant
Versus
The State of Jharkhand ... Respondent
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For the Appellant : Mr. Aashish Kumar, Advocate
For Respondents : Mr. Abhay Kr. Tiwari, A.P.P.
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PRESENT
HON'BLE MR. JUSTICE NAVNEET KUMAR
Navneet Kumar, J. This appeal is directed against the judgment of conviction dated
22.08.2003 and order of sentence dated 23.08.2003 passed by the learned
Additional District & Sessions Judge, Fast Track Court -IV, Deoghar in
Sessions Case No. 18 of 1990 by which the appellant Nago Pandey has
been convicted u/s 395 IPC and acquitted along with the five accused
persons under sections 412 IPC. The other accused persons have been
acquitted u/s 395 IPC also. The learned trial court has sentenced the
appellant to undergo rigorous imprisonment for four years u/s 395
IPC.
Prosecution Story
2. The prosecution arose in the wake of fardbeyan of Naresh
Chandra Pandey recorded by S.I. Sudhir Chandra Choudhary on
10.03.89 in village at 10 a.m. while the informant was sleeping he
woke upon the sound of "Khat Khat" and asked his son that who is on
the door, upon which the accused persons pushed the door due to
which the lock was broken and at that time a "lantern" was burning
and his wife Jugmaya Devi was also there. The informant has further
disclosed that all the accused persons were wearing "Baniyan" and
half pants and one of the accused persons put dagger on his neck and
thereafter committed dacoity in his house. The name of the articles
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has been given and thereafter the accused persons locked the door
from outside and fled away. It is further stated that the accused
persons also committed dacoity in the house of his grandfather
Manoranjan Pandey and thereafter accused persons also entered in
the house of his nephew and with the help of the light of torch, the
informant, his sister-in-law, Indrawati Devi and nephew,
Purushottam Pandey have identified the appellant through his voice
as well as in the light of the torch who has been married in the
neighboring of the informant. The informant has also claimed to
identify the accused persons and also stated that he came to the
police station at 9 a.m. to lodge the case where he got information
that dacoits have been arrested along with looted articles.
On the basis of the aforesaid "fardbeyan", police instituted
Lalajori P.S. Case No. 16/89 u/s 395/412 IPC against Nago Pandey
the appellant and others. After investigation police submitted charge
sheet u/s 395/412 IPC.
Thereafter it appeared the learned Chief Judicial Magistrate
took cognizance of the case and transferred the case for commitment
and the case has been committed to the court of sessions and vide
order dated 19.09.2002, the case has been separated because of non-
appearance of other accused persons and thus the charge has been
framed on 25.10.2002 against the appellant and five others u/s
395/412 IPC.
3. Learned trial court after conducting the trial passed impugned
judgment of conviction dated 22.08.2003 and order of sentence dated
23.08.2003 in Sessions Case No. 18 of 1990 which is under challenge.
4. Heard Mr. Ashish Kumar, learned counsel for the appellant
and Mr. Abhay Kr. Tiwari, learned A.P.P. for the State.
Argument on behalf of the appellant:
5. Assailing the impugned judgment of the conviction and order
of sentence, learned counsel for the appellant submitted that the
learned trial court has failed to scrutinize the evidence and without
Cr. Appeal (SJ) No. 1607 of 2003
application of mind relying upon the testimony of the interested
witnesses, convicted the appellant. The learned trial court ought to
have considered that the appellant might have been falsely
implicated in the case because of family feud as both are related to
each other where father-in-law of the appellant Shrishti Pandey is
agnates of the prosecution party who wanted to show down the
agnates who is in-laws of the appellant. The learned trial court has
completely failed in scrutinizing the evidence and passed the
judgment in mechanical manner. It has further been pointed out that
the learned trial court did not apply judicial mind and passed the
impugned judgment relying upon the testimony of interested
witnesses. The trial court has completely failed in its jurisdiction and
has considered the documents not admissible under the law for
conviction of the appellant and failed to apply the law of equality and
equity with regard to appellant.
It is further submitted on behalf of the appellant that the
impugned judgment is bad in law as well as in fact and passed in
most mechanical manner relying upon the testimony of interested
and partisan witnesses (Prosecution Party) who are agnates of the in-
laws of the appellant. The learned trial court has completely failed to
scrutinize the evidence of the prosecution witnesses and also acted
like prosecution in examining the Court witness in exhibiting the
documents which has not been exhibited by the prosecution and even
objection from the defense considered the same for convicting the
appellant. Learned trial court has committed error in passing the
impugned judgment of conviction on the same sets of evidence by
which the learned trial court has acquitted the other five accused
persons. Learned trial court ought to have considered the fact that
because of non-examination of I.O., the appellant is highly prejudiced
as he could not draw adverse inference for non-examination of
independent witnesses as all the witnesses examined by the I.O. are
related and member of the same family and there is every chances of
connivance against the appellant and because of the non-examination
Cr. Appeal (SJ) No. 1607 of 2003
of the I.O. the defense could not be able to draw attention of the
learned Trial Court for non-examination independent witnesses other
than the family members. The appellant's defence is also prejudiced
for non-examination of I.O. as he could not get the opportunity to
cross examine him on the point of place of occurrence, manner of
occurrence and sequence of occurrence.
Argument on behalf of the State:
6. Learned A.P.P. on behalf of the State opposed the submissions
rendered by the learned counsel for the appellant. It has been
contended that there is no legal point to interfere in the impugned
judgment of conviction and order of sentence.
Findings:
7. It appears that the appellant and the informant were known to
each other and therefore the possibility of false implication is very
imminent in view of the fact that trial was conducted against six
accused persons but only this appellant has been held guilty by the
trial court only on the basis of identification in absence of any other
cogent and reliable evidence while as a matter of fact it is
meaningless to evaluate the evidences of prosecution on the point of
the identification in view of the admitted fact that the accused
appellant Nago Pandey and the informant people are gotias (cousins),
they are neighbors and fully known to each other and as such the
learned trial court has committed gross error in convicting the
appellant only on the basis of T. I. Parade chart Ext. 5 which is also
not legally admissible evidence in absence of any cogent evidence to
corroborate the case of the prosecution about the involvement of the
appellant in the commission of the offence. It is also found from the
evidences that after the commission of the offence all the gotias people
including then ziza (brother-in-law) of the accused-appellant, namely,
Diwaker Pandey who is cousin (Gotia) of the informant had also gone
to the alleged place of occurrence and thus conviction only on the
Cr. Appeal (SJ) No. 1607 of 2003
point of identification is not based on reliable and trustworthy
evidences due to partisan and inimical evidences.
8. P.W. 1 Jogmaya Devi who is the wife of the informant stated in
para 3 of her deposition that this appellant - Nago Pandey was
identified by P.W. 1 (Wife of the informant) and further stated that
the in-laws place of the accused appellant is situated just vicinity, say,
25 hands, to the house of the informant and apart from being
neighboring, the accused appellant is related to this informant, as the
daughter of father-in-law of the informant has been married with the
brother in law of this accused appellant. P.W.1 further stated in para
3 of the cross examination that there had been differences with them
after this incident. Therefore this witness is not reliable at all and her
testimony is not trust worthy particularly with respect to
identification of appellant inasmuch there is fair chance of false
implication because of the version of P.W. 1 which is further
corroborated with the testimony of P.W.5 who is the informant of the
present case and husband of the P.W.1. From para 2 of the statement
of P.W. 5 it is clear that the appellant is admittedly named by this
witness in the FIR when the name of the appellant was disclosed by
bhabhi (Sister-in-law) and bhatiza (Cousin), meaning thereby the name
has not been disclosed by the wife of the informant P.W.1 who has
stated in her deposition that she has identified the appellant as she is
said to have been present at the time of the occurrence in the house.
Thus the version of P.W.1 that she had seen the appellant is wholly
false and concocted. P.W.5 has identified the F.I.R. which has been
marked as Ext.1. One Aarti Devi has been examined as P.W.2 and in
her examination she did not identify any accused persons including
this appellant and thus in cross examination she stated that father in
law of the appellant Shrishti Pandey is their agnates and hence
possibilities of false implication in this case in order to show down
agnates due to family feud cannot be ruled out in absence of any
reliable and cogent evidence. P.W.3 Hemawati Devi has been
examined on behalf of the prosecution who stated that at the time of
Cr. Appeal (SJ) No. 1607 of 2003
occurrence she has identified three accused persons but in the court
she failed to identify the accused persons although Nago Pandey was
present in the court. It means the appellant was not amongst accused
persons who were involved in the commission of the offence. She has
also admitted the relationship between both the parties. P.W.4 Indra
Devi has been examined on behalf of the prosecution who also
admitted the relationship of the parties and therefor the conviction
solely on the ground of identification is not convincing under the
circumstances of the case when there is no iota of evidences to
corroborate the involvement of accused-appellant in the commission
of the offence.
9. Thus from the aforesaid discussions it is well established that
informant had come to know that the accused appellant Nago
Pandey was involved in the commission of the offence not because he
was identified by his wife (P.W.1) or by himself (P.W.5) rather he
came to know from the Bhabhi and Bhatija that Nago Pandey was also
involved. Further it is stated that the accused appellant is related to
him because sister of Nago Pandey was married to his cousin
Diwakar pandey. Therefore the learned trial court did not consider
the fact that it is admitted case of the prosecution that both the parties
including the prosecution party and the accused-appellant are related
to each other and on the date of occurrence P.W. 1, wife of the
informant, had identified the accused appellant, gets falsified by the
evidences of P.W. 5 who stated that he came to know about the
involvement of the accused appellant from his relative bhabhi and
bhatija and not from his wife (P.W. 1) who has claimed in her
deposition that she had identified the accused appellant. Thus, the
testimony of P.W. 1 read with P.W. 5 it gets clear that the
identification at the time of commission of the offence about the
involvement of the appellant is totally false and fabricated rather he
has been named later on after thought and since both were known to
each other and related to each other as Gotias their evidences are not
reliable at all and fit to be brushed aside inasmuch as the other co-
Cr. Appeal (SJ) No. 1607 of 2003
accused persons with the same sets of evidence have been acquitted
and this accused is convicted only on the ground of identification and
this identification gets doubtful because of the version of P.W. 1 and
P.W. 5.
10. It is evident that impugned judgment of conviction and order
of sentence is purely non application of judicial mind. C.W. 1 who is
the said to be the advocate's clerk has been examined as Court
Witness. He has identified and marked formal FIR as Ext. 2, the
signature of the S.I. Sudhir Choudhary, the seizure list as Ext. 3, the
chart of T.I. parade of seized articles which have been identified as
Ext. 4 and Ext 4/1 and all these important documents have been
marked and simply brought on record by naming them as exhibits
Ext.2, 3, 4, 4/1, by the Advocate's Clerk without following the
processes of ''Admissibility of documents into evidences". The
signatures of Circle Officer upon the T.I. Chart of articles have also
been identified by this Advocate's Clerk CW1 and marked as Ext. 4
and 4/1. The signature in the T.I. Parade chart of the accused persons
has also been identified and further in para 4 the signature of Mr.
Shiv Kumar Yadav, Judicial Magistrate, First Class has been
identified which is marked as Ext. 5 but the Judicial Magistrate has
not been examined. In para 5 this witness stated that T.I. Parade of
co-accused Debu Hazra (who has been acquitted) was conducted in
presence of J.M. Ist class and his signature has also been identified by
this advocate's clerk CW1 which has been marked as Ext. 5/1.
Further this Court Witness has also marked the Case diary as Ext.6.
and in the cross examination conducted on behalf of the defence this
witness has categorically stated that the aforesaid documents marked
and identified were not prepared before him nor he knew the
contents of the same. This witness candidly admitted in the cross-
examination that he had no acquaintance with the maker of the
aforesaid documents. Further the case diary, which is marked by
advocate's clerk CW - 1, cannot be used either in evidence or perused
to find the investigation was properly conducted or vitiated
Cr. Appeal (SJ) No. 1607 of 2003
inasmuch as the contents of the case diary was not proved by the
prosecution in absence of the examination of I.O. In fact, CW- 1
has admitted in his cross-examination that all the aforesaid
documents (exhibits 2, 3, 4, 4/1, 5, 5/1 & 6), were neither written nor
prepared before him and he did not know as to whether its makers
are alive or dead nor he knew the contents of these documents. This
court is unable to understand as to why the prosecution did not
choose to examine I.O. or J.M. who were makers of the aforesaid
documents. Therefore, this court does not find evidences to
corroborate the charges leveled against appellant.
11. Further it is found that the IO of this case has also not been
examined and therefore the manner of T.I. Parade remains unproved
in the eyes of law in absence of the examination of the IO. Nor the
accused-appellant got opportunity to bring to the notice of the court
during the course of the trial about the contradictions of the witnesses
examined during the course of investigation. In addition to this, the
time, place and manner of commission of offence also gets unproved
and it causes serious prejudice to the appellant in the present case
and moreover, in the circumstances when the conviction is based on
the identification of the accused appellant and the person conducted
the T.I. Parade of the accused persons (Ext. 5 and Ext.5/1) had not
been examined and this accused appellant did not get opportunity to
cross examine and therefore the judgment of conviction is bad in law
as non-application of judicial mind by the trial court. Further the
Magistrate in whose presence the T.I. Parade has been conducted is
also not examined. Similarly the T.I. Chart of articles (Ext.4 and Ext
4/1) has also not been proved by the person who conducted the T.I.
and thus its veracity remains doubtful. Therefore the basis of
conviction on the basis of the Exhibits is not reliable documents at all
to corroborate the case of the prosecution in the light of the unreliable
testimony of P.W.1 and P.W.5 as discussed above.
12. It is highly unjust and unfair that the learned trial court relied
upon all the documents whose makers have not been examined nor
Cr. Appeal (SJ) No. 1607 of 2003
there was any occasion by this Court Witness 1 to identify the
contents of the documents nor signature of the makers upon any one
of the documents which have been marked as Ext. 2, Ext. 3,Ext.
4,Ext.4/1,Ext.5,Ext.5/1 and Ext. 6 and thus the trial is wholly vitiated
because it is established that these documents were not proved as per
the prescribed procedure as held by Hon'ble Supreme Court in
Munna Kumar Versus the State of Bihar (2005) 12 SCC 209.
Therefore, there is no material for the learned trial court to hold the
guilt of the accused-appellant as there is no cogent evidence upon
which the charges leveled against the accused were proved. The way
the learned trial court has brought on record these documents and
relied upon them are not "Legally Admissible Evidences" and cannot be
relied upon. Therefore it is found that the judgment of conviction is
totally bad in law and fit to be set aside.
13. Accordingly, the judgment of conviction dated 22.08.2003 and
order of sentence dated 23.08.2003 passed by the learned Additional
District & Sessions Judge, Fast Track court -IV, Deoghar in Sessions
Case No. 18 of 1990 is set-aside.
14. In the result this appeal is allowed.
15. Since the appellants of this appeal are on bail and thus, they are
discharged from the liabilities of their bail bonds in this case.
16. Let the Lower Court records be sent back to the Court
concerned forthwith, along with a copy of this Judgment.
(Navneet Kumar, J.)
Jharkhand High Court, Ranchi,
Dated the 22.11.2021/NAFR
MM/-
