Jharkhand High Court
Ranjeet Yadav vs The State Of Jharkhand on 26 November, 2021
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 539 of 2010
(Against the judgment of conviction dated 20.05.2010 and the order of sentence
dated 01.06.2010 passed by the learned Additional Sessions Judge, Fast Tract
Court IX, at Giridih in Sessions Trial No. 407 of 2007)
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Ranjeet Yadav, Son of Basudeo Yadav, resident of Furka, P.O. &
P.S.- Ichak, District- Hazaribagh. ...... ..... Appellant
-Versus-
The State of Jharkhand ...... ..... Respondent
Heard through Video Conferencing
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PRESENT
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. Pradip Kumar Prasad, Advocate
For the State : Mr. Tarun Kumar, APP
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C.A.V. on 27.11.2020 Pronounced on 26/11/2021
Heard Mr. Pradip Kumar Prasad, the learned counsel appearing
on behalf of the appellant as well as Mr. Tarun Kumar, the learned APP for
the State.
2. The present criminal appeal is preferred against the judgment of
conviction dated 20.05.2010 and the order of sentence dated 01.06.2010 passed
by the learned Additional Sessions Judge, Fast Track Court IX, at Giridih in
Sessions Trial No. 407 of 2007, whereby and whereunder, the appellant was
found guilty and convicted for the offences under section 395 of the Indian
Penal Code (in short IPC) and sentenced to undergo rigorous imprisonment
for a period of six years and a fine of Rs. 2000/- and in default of the
payment of fine the convict is further sentenced to undergo S.I. for two
months. The period undergone in jail custody was ordered to be set off.
3. The case of the prosecution, in brief, as per the fardbeyan dated
13.08.2006 of the informant Ajay Kumar Baranwal (PW-9) is that in the
night of 12.08.2006 at about 9:45 pm he was sleeping in the first floor in the
eastern side of room. It is further alleged that mother, sister and children of
the informant started raising hulla on which informant woke up and in the
meantime one miscreant threatened the informant to open the door.
Informant saw from his window that miscreant was giving threatening to
[2]
the villagers to kill them and one of the miscreant opened fire in the air and
hence, out of fear informant opened the door. As soon as the informant
opened the door, four miscreants armed with pistols entered into his room
and one of the miscreant put country made gun at the informant and told
him to provide all the money and ornaments otherwise they would kill him.
Thereafter, the informant gave Rs. 3,000/- in cash to the miscreants and a
Nokia mobile of Model 1600 and Sim Card No. 9431538764. It is further
alleged that miscreants over powered the informant and the members of the
informant's family. Miscreants broke open box and suitcase and looted gold
mangtika of the informant's wife and mother. They also looted gold chain,
silver payal and 22-23 silver coins, silver pot. Miscreants also looted Rs.
7,000/- in cash from the suitcase of the informant's mother, Rs.5,000/- in
cash from drawer of the shop and looted gold ear-ring of informant's
mother Shanti Devi from her ear. It is further alleged that the miscreants
looted Rs. 15,000/- in cash and the ornaments of value Rs. 35,000/-. The
miscreants also compelled the informant to get the door of Govind Modi
opened. It is further alleged that miscreants entered into the house of
Govind Modi from roof. The dacoits came out from the house of Govind
Modi alongwith Pintu @ Dilip Kumar Bharti and in the meantime the
police jeep came and the dacoits started fleeing away but they left two
motorcycles at 100 yards east of the informant's house out of them one
motor cycle was Hero Honda Passion Plus, Silver in colour bearing
registration No. JH 02E-6018 and another motorcycle was Hero Honda
splendor red in colour, without number. One country made pistol loaded
with live cartridges and one optical was also recovered from the roof of
Govind Modi which was left by the dacoits. It is further alleged that the tool
box of motorcycle Passion Plus was opened in presence of police from
which owner book, photocopy of insurance paper and servicing-book were
recovered in which the owner of the motorcycle was stated as Ranjeet
Kumar Yadav, son of Basudeo Yadav of village-Furka, Post-Deokuli, Ichak,
Hazaribag. Dilip Kumar Bharti also disclosed that the miscreants looted
'Sonata' watch, one gold chain, gold mangtika, two gold ring, gold tabij and
cash of Rs. 14,500/-,the total value of belongings as well as cash about Rs.
35,000/- were looted from his house. It is further alleged that one watch
written 'Sono quartz' on it of golden colour was found on the spot.
[3]
Informant further stated that seizure list of the recovered items were made
in his presence on which Govind Modi (PW-5) and Vinod Mandol signed
on it. It is further alleged that the informant along with his family and
Govind Modi and Dilip Kumar Bharti had identified the face of the dacoits
in the moonlight as well as in the light of torch used by the dacoits.
Informant also stated that Govind Modi said that two person at about 7
O'clock in the night came to his shop for petrol and Govind Modi saw the
motor cycle bearing No. JH 02E-6018 by which the two persons came to
his shop. Informant further stated that the aforesaid motor-cycle was left by
the miscreants and hence Ranjeet Yadav along with other miscreants had
committed dacoity.
4. Accordingly, as per the fardbeyan Hirodih P.S. Case No.
41/2006 dated 13.08.2006 was instituted against the appellant Ranjeet
Yadav and eight others unknown persons under sections 395 of IPC and
later on section 412 of IPC was added. After completion of the
investigation, charge-sheet was filed against the four accused persons,
namely, Dinesh Yadav, Raju Thakur, Raj Kumar Singh and Ranjeet Yadav
under sections 395 and 412 IPC and cognizance of the offences were taken
and the case was committed to the court of Sessions. The case of the
appellant was split up from the other accused persons on 05.10.2007 as
such the appellant Ranjeet Yadav alone faced trial. Charges under section
395 and 412 IPC were framed against the appellant and at the conclusion of
the trial, appellant was convicted and sentenced as aforesaid. Hence, this
appeal.
5. The prosecution examined altogether 11 witnesses out of
whom PW-9 Ajay Kumar Baranwal is the informant of the case; PW-1 is
Santosh Prasad Srivastava, PW-2 is Dilip Kumar Bharti @ Pintu, PW-3 is
Sunil Kumar Choudhary, PW-4 is Deo Nandan, PW-5 is Govind Modi, PW-
6 is Shanti Devi, PW-7 is Neelam Devi, PW-8 is Seema Kumari, PW-10 is
Radha Krishna and PW-11 is N. Topno, who is the I.O. of this case. PW-10
is the Judicial Magistrate before whom T.I.P. of the accused persons were
held.
6. PW-9 Ajay Kumar Baranwal is the informant of the case. He
has stated in his evidence that the occurrence took place on 12.08.2006 at
[4]
about 09:45 in the night and at that time he was sleeping in his room.
Informant further stated that his mother, grandmother, sister and children
were sleeping on the roof of house. He heard hulla of his mother and woke
up and saw through his window that four persons were on the roof of his
house and two miscreants told from window to open the door otherwise
they would be killed. The miscreants who were saying from the window
were armed with country made pistol. Informant opened the door then four
miscreants entered into his house, who were armed with country made
pistol. Informant gave Rs 3,000/- from his purse and criminals took Nokia
mobile bearing SIM No. 9431538674. Criminals broke open box and
suitcase and took Rs 7,000/- in cash from suitcase. Criminals also took
mangtika of his wife and mother, silver pot, 22-23 silver coins, silver payal,
gold chain and Rs 5,000/- cash from the drawer of his shop. Informant
further stated that thereafter, criminals went to the house of Govind Modi
and looted them. In the meantime, police came there and the dacoits fled
away and in course of fleeing away Criminals left their two motorcycles on
the spot, one Hero Honda Passion Plus, silver in colour bearing registration
no. JH 02E-6018 and other motorcycle Splendor Plus red in colour, which
was without number. The miscreants also left country made pistol and
optical at the house of Govind Modi. Police seized the motorcycle. The tool
box of the Hero Honda Passion plus was opened and owner-book of the
vehicle, photocopy of the insurance of vehicle and servicing-book was
recovered from it. On perusal of the owner-book it was revealed that the
vehicle is in the name of Ranjeet Yadav and he was also involved in
committing dacoity. Informant has proved his fardbeyan which was marked
as Ext.-3. Informant further stated that he went to Markacho P.S. under
Koderma police station and he identified his ring which was looted by the
dacoits and also identified accused Ranjeet Yadav in TIP. Informant
identified the accused Ranjeet Yadav in the court also. In his cross-
examination informant stated that TIP was held after nine months from the
date of occurrence.
7. PW-1 Santosh Prasad Srivastava, has stated in his evidence that
the occurrence took place on 12.08.2006. In the evening he was sitting at
the shop of Govind Modi and Ajay Modi and in the meantime one person
came on Hero Honda Motor cycle bearing Registration No. JH 02 E- 6018
[5]
and was demanding petrol from Govind Modi. On next day in the morning,
he heard that the dacoity was committed in the house of Ajay Modi and
Govind Modi and dacoits had left the motorcycle. In his cross-examination
PW-1 stated that police had not taken his statement.
8. PW-2 Dilip Kumar Bharti, has stated in his evidence that the
occurrence took place on 12.08.2006 at 10.00 pm in the night. He heard
shouting from the house of Ajay Modi, then, he told his father who saw
some persons standing on the roof of Ajay Baranwal. He made telephone
through his mobile to Hirodih P.S. After committing dacoity in the house of
Ajay, dacoits came to this house along with Ajay Modi and compelled Ajay
to get the door opened. Thereafter, he opened the gate of his house and two
dacoits entered into the house and three dacoits were standing at the gate.
Two dacoits entered into his shop and house and they took Rs.15,000/- in
cash. Dacoits also looted ornaments from the room of his uncle Harihar
Modi and Prakash Modi. In the meantime police came there, thereafter, the
dacoits started fleeing away. PW-2 has further stated that the police
recovered two motor cycles at a distance of 100 meter from his house out of
which one motorcycle was bearing no. JH 2E 6018. Police also recovered a
country made pistol, one optical and one watch from the roof of his house.
Police opened the dicky of motorcycle and from the owner book the motor-
cycle was found in name of Ranjeet Prasad Yadav. PW-2 has proved his
signature on the seizure list which was marked as Ext.-1 and his signature
on the fardbeyan which was marked as Ext.-2.
9. PW-4 Deo Nandan is seizure list witness. He has stated in his
evidence that two motor cycle and paper of the motorcycle, one country
made pistol loaded with cartridges, cap, helmet, optical and watch were
seized in his presence. PW-4 has proved his signature on seizure list which
was marked as Ext.-1/1.
10. PW-6 Shanti Devi is the mother of the informant and PW-7
Neelam Devi is the wife of the informant. Both have stated in their
evidence that on the day of occurrence dacoits threatened to open the door
and when door was opened by the informant, dacoits entered into the house.
PW-6 stated that dacoits looted her ear-rings, 23-24 silver coins and Rs
7,000/- in cash. PW-7 Neelam Devi stated that miscreants had taken mobile
[6]
and cash money from her husband. Miscreants looted mangtika, payal, ear-
ring and other belongings kept in the dressing table. Both PW-6 and PW-7
identified the accused Ranjeet Yadav present in the court.
11. PW-8 is Seema Kumari, who is the sister of the informant. She
has stated in her examination-in-chief that the occurrence took place on
12.08.2006 at about 10:00 pm in the night. At that time she was sleeping
along with her grandmother and children of her brother on the roof of her
house. Six miscreants armed with weapons came on the roof and over
powered them. Her brother opened the door of the room. Miscreants looted
ornament, cash money, payal and utensils. PW-8 identified the accused
Ranjeet Yadav present in the court.
12. PW-10 Radha Krishna is the Judicial Magistrate 1st Class,
Giridih and he has stated in his evidence that on 07.05.2007 he was posted
in Civil Court, Giridih as J.M. 1st Class. He conducted TIP in connection
with Hirodih P.S. Case No. 41/06 dated 13.08.2006 under section 395 IPC
at Giridih Jail for identification of suspect Ranjeet Yadav. Witness Ajay
Kumar Baranwal and Mohan Mandal also identified the suspect. PW-10 has
proved the TIP chart which was marked as Ext.-4.
13. PW-3 is S.I. Sunil Kumar Choudhary and he is the second
Investigating Officer of the case. He has stated in his examination-in-chief
that on 01.02.2007 he was posted at Hirodih P.S. as Officer-in-charge and
on that day he took over the charge of the case from S.I., N. Topno. He
brought the accused Ranjeet Yadav from Ichak P.S. to Hirodih Police
station. He recorded the confessional statement of Ranjeet Yadav. He
conducted the TIP of the accused Ranjeet Yadav in the presence of the
witnesses Govind Modi, Santosh Srivastava, Mohan Mandal, Ajay Kumar
Barnwal and Dilip Kumar Bharti. He submitted the charge-sheet against the
accused Ranjeet Yadav and showing Dinesh Yadav, Raju Thakur and Raj
Kumar Singh as absconder. PW-3 stated in his cross-examination that Ichak
police had arrested Ranjeet Yadav on 01.05.2007.
14. PW-11 is S.I. N. Topno and he is the first Investigating Officer
of the case. He has stated in his examination-in-chief that on 12.08.2006 he
was posted at Hirodih P.S. as Officer-in-charge. On the same day at about
[7]
11:00 pm in the night he got information that a dacoity was being
committed by dacoits at village Jarsoti. On this information he recorded
sanha and for the verification he went to village Jarsoti and found the
informant true and recorded the statement of informant Ajay Kumar
Baranwal. PW-11 further stated that from the spot he seized Hero Honda
motorcycle Passion Plus, silver in colour bearing registration number JH-
02E-6018, Engine No. 05D 08M61939, Chesis No.005DO9C 6297 and
other motorcycle Hero Honda Splendor, red in colour bearing Chesis No.
05LI6FO7858 and Engine No. 05L15E07558 left by the dacoits. PW-11
further stated that he seized one country made pistol loaded with cartridge,
black Helmet, one broken watch chain of the watch, one yellow cap and one
optical golden in colour and prepared the seizure-list. He visited the place
of occurrence and the first place of occurrence is the house of the informant
Ajay Kumar Baranwal of village Jarsoti and the second place of occurrence
is the house of Govind Modi. PW-11 further stated that in course of
investigation, he went to Markacho police station and he was informed by
Markacho P.S. that on 13.08.2006 at about 03:00 am in the morning there
was an encounter between the police and the miscreants and two
miscreants, namely, Nandu Verma and Santosh Sao were killed in that
encounter and other miscreants fled away.
ARGUMENTS ON BEHALF OF APPELLANT:-
15. Mr. Pradip Kumar Prasad, the learned counsel for the
appellant has first and foremost argued extensively on the point of
identification or the attempts of identification by the various prosecution
witnesses and tried to make out a ground that when appellant was not
identified or that the identification of the appellant was faulty then his
conviction and accompanying sentence cannot be sustained at all. Learned
counsel argued that amongst the seizures, a motorcycle was seized from
the dickey of which certain motorcycle related documents were also seized
and, therefore, the name of the appellant had come to figure in the crime
and only on this basis, appellant has been falsely implicated in the case.
Moreover, documents of motor-cycle recovered from the place of
occurrence were not produced in the court and therefore, it cannot be
sustained as evidence and hence, makes the case of the prosecution
doubtful.
[8]
16. Learned counsel for the appellant has also argued that the
identification of the appellant by PW-2, PW-6, PW-7 and PW-8 in the
court for the first time is valueless. To support this proposition, learned
counsel has relied on the Judgment of Hon'ble Apex Court passed in
Kanan and others versus state of Kerela reported in (1979)3SCC319 and
judgment of this Court passed in the case of Mashi Das Minz v. State of
Bihar, reported in 2000(1)PLJR86.
17. Learned counsel for the appellant has also pointed out the
evidences of PW-6 Shanti Devi, PW-7 Neelam Devi and PW-8 Seema
Kumari and submitted that all of them had identified the accused for the
first time in the court and they had not at all participated in the TIP. The
fact that they had not participated in the TIP itself is a source of suspicion
because if they had done so then they would have definitely made
themselves available for the identification in the TIP and therefore, the
identification of the accused in the court for the first times is deliberate
action on their part which is motivated in convicting the appellant for the
crime he did not commit.
18. Regarding the identification by PW-2 Dilip Kumar Bharti, the
learned counsel has submitted that he had not identified the appellant in
the TIP rather he had identified one Md. Sahabuddin, who was not suspect
at all but, in the court he had identified the accused-appellant for the first
time and, therefore, this identification is doubtful and is of no value. It is
also doubtful and clouded because he identified two different persons on
different occasions. Therefore, his evidence should not be conceded at all
towards convicting the appellant.
19. Regarding the identification by the informant PW-9 Ajay
Kumar Barnwal, the learned counsel submitted that he had identified the
appellant in TIP and in his fardbayan informant has stated that he had seen
face of the accused in the light of torch held by the accused. Learned
counsel said that this identification of the appellant by holding a torch by
accused themself is simply unbelievable because no criminal would shine
a torch light on himself while committing any crime let alone a heinous
crime such as dacoity so that he would be identified by all. He has also
submitted that in the deposition of PW-7 Neelam Devi and PW-8 Seema
[9]
Kumari, both have not stated in their examination-in-chief about any
source of light. PW-5 Govind Modi has not identified the appellant.
Learned counsel for the appellant has also pointed out that another thing to
be noted is that the TIP was held after a long delay of nine months and by
such delay any identification made therein would be vitiated.
20. Learned counsel for the appellant submitted that PW-10 Radha
Krishna, the Judicial Magistrate has stated in his cross-examination that he
cannot tell whether after the identification by first witness, the position of
the suspect was changed. Learned counsel for the appellant therefore,
submitted that the TIP has not been conducted in a proper manner.
21. Referring to the evidence of PW-3 Sunil Kumar Choudhary,
who is the second Investigating Officer of this case, learned counsel for the
appellant has argued that he has not mentioned anything about the seizure
list and alleged motorcycle documents which were said to have been
recovered and seized and this were not at all produced in the court by
anyone during the trial. Learned counsel also submitted that the
Investigating Officer has not mentioned about any source of light in his
evidence, therefore, strengthening the ground of the appellant that the
identification of the appellant by the prosecution witnesses is very weak.
22. Learned counsel for the appellant further submitted that it is
apparent that the investigation by the Investigating Officer has been done
in a very casual manner, if not articles would definitely have been seized
and produced in the court. The non-production of the articles in the court
itself shows that either the investigation was done in a very perfunctory
manner or items were seized only to implicate the appellant.
ARGUMENTS ON BEHALF OF STATE:-
23. Mr. Tarun Kumar, the learned APP appeared on behalf of the
State, on the other hand, argued that the evidence of all the witnesses taken
together is a substantial and a good piece of evidence. The evidence of
informant PW-9 is corroborative of the prosecution story, moreover, the
evidence of PW-2, PW-6, PW-7 and PW-8 who have identified the accused
in the court and just because they have identified the accused in the court
for the first time, will not make the evidence redundant. Learned APP has
[10]
added that what is crucial is that the seized motorcycle and the documents
that were seized from the motorcycle in the name of Ranjeet Yadav is a
corroborative piece of evidence that strengthened the evidence of the
prosecution witnesses who have identified the appellant, therefore, there is
no manner in which the appellant can get away from the crime.
24. Learned APP, further submitted that it is clear from the
evidence of PW-1 Santosh Prasad Srivastava, PW-2 Dilip Kumar Bharti and
PW-4 Deo Nandan, PW-9 Ajay Kumar Barnwal, the informant himself and
PW-11 N. Topno, the first investigating officer of the case that motorcycle
was seized bearing Registration No. JH 02E-6018. Therefore, from
combined reading of the evidences on identification of the appellant as well
as the corroborative evidences of the seizure of the motorcycle as well as
the accompanying documents, it is apparent that the name of the accused
Ranjeet Yadav was mentioned in the document of motorcycle is the same
Ranjeet Yadav, who has been identified by many of the prosecution
witnesses. Learned counsel for the State has relied on the Judgment
rendered by the Hon'ble Apex court in the case of Raju Manjhi Vs. State of
Bihar, reported in (2019)12SCC784 and submitted that as a general rule,
identification tests do not constitute substantive evidence and the purpose
of identification test is only to help the investigating agency as to whether
the investigation into the offence is proceeding in the right direction or not.
Therefore, appellant's conviction needs to be sustained and upheld along
with the accompanying sentence by this court.
FINDINGS
25. Having heard the learned counsel for both the parties, having
gone through the records of the case and also the evidences, I find that this
case hinges around the identification of the appellant. Regarding the source
of light PW-9 Ajay Kumar Baranwal, who is the informant has stated in his
fardbayan that the source of light was torch light and the torch was
possessed by the dacoits. It is quite absurd that anyone committing crime
and that too a dacoity would flash the torch light carried by him on his face
himself so that someone could recognize. He would rather use the torch for
seeing and on the other hand focusing it on the inmates of the house. The
Investigating Officer has also not mentioned anything about the source of light.
[11]
26. Apart from other witnesses, the identification of the appellant
has been done by PW-6 Shanti Devi, PW-7 Neelam Devi and PW-8 Seema
Kumari, for the first time in court and all three of them incidentally did not
participate in the Test Identification Parade. The identification for the first
time in court can be a source of identification, however, it may not be so
proper and appropriate, and it is more proper and appropriate if they had
also identified the suspect earlier in Test Identification Parade. There is also
the aspect of PW-7 or Neelam Devi, who deposed in her cross-examination
that bomb was also hurled by the miscreants as a result of which there was
smoke at the place of occurrence at the time of occurrence and also that she
has not stated about the source of light in her evidence. Therefore, read
along with the doubtful source of light, as I have already indicated from the
evidence of informant or PW-9 in the preceding para, the identification by
these three witnesses need to be taken with pinch of salt.
27. Another aspect regarding the test identification parade by the
informant or PW-9 Ajay Kumar Baranwal is that test identification parade
was done nine months after the incident. It is well established that the Test
Identification Parade has to be done soon after and a delay that has occurred
of around 8-9 months in this case in the identification done by PW-9 is
significantly delayed. In Kanan (Supra) case, the Hon'ble Apex Court has
held that where a witness identifies an accused, who is not known to him in
the court for first time, his evidence is absolutely valueless unless there has
been previous T.I. parade to test his power of observation. But, in the case
in hand PW-6, PW-7 and PW-8 had recognized the appellant for the first
time in the court though they did not take part in T.I.P.
28. Further, it has come in the evidence that firstly alleged dacoity
occurred at the house of the informant and thereafter, dacoity was
committed at the house of PW-5 and PW-2 who are father and son
respectively. PW-2 Dilip Kumar Bharti was one of the witness to identify
the suspect or appellant in the court but, PW-2 wrongly identified one Md.
Sahabuddin instead of this appellant. Therefore, the identification by PW-2
Dilip Kumar Bharti for the first time in the court would be of no value as far
as this appellant is concerned. Again, PW-5 has deposed that he cannot
identify any of the dacoits. Therefore, this Court sees that there is some
[12]
doubts about the source of light and the identification of appellant also
seems to be clouded.
29. Other aspect of the case is linking of this appellant to the crime
due to alleged seizure of documentation from one of the motorcycles and
that was apparently seized and left behind by the miscreants. The names in
the alleged recovered documents or specifically the owner book was of this
appellant. However, it is to be noted that this owner-book was not produced
in court or exhibited. Further, when Investigating Officer PW-11 of the case
was cross-examined on this point, Investigating Officer specifically
deposed that he did not go to the D.T.O office. So, to merely convict the
appellant on the basis of the documentation found at the place of occurrence
which was not produced in court may not be proper. Again, so many items
or mangtika, silver payal, gold chain, 22-23 silver coins etc were alleged to
have been looted from the house of the informant but nothing was
recovered or produced in the court to establish the prosecution case.
30. Therefore, in the facts and circumstances of this case and for
the reasons of doubtful source of light, doubtful identification in the Test
Identification Parade, non-production of the owner-book in court itself and
non-recovery of looted articles, this Court thinks it fit and appropriate to
extend the benefit of doubt to the appellant, namely, Ranjeet Yadav. Hence,
appellant is acquitted of the charges under Section 395 of the Indian Penal
Code.
31. Accordingly, the impugned judgment of conviction dated
20.05.2010 and the order of sentence dated 01.06.2010 passed by the
learned Additional Sessions Judge, Fast Track Court IX, at Giridih in
Sessions Trial No. 407 of 2007 cannot sustain and are hereby set-aside.
Appellant is set free from the liability of bail bonds.
32. Accordingly, the criminal appeal is allowed.
(Ratnaker Bhengra,J.)
Jharkhand High Court, Ranchi,
Dated: 26/11/2021
Madhav- NAFR
