Jharkhand High Court
Devi Sharan Sharma vs The State Of Jharkhand on 26 November, 2021
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 308 of 2010
(Against the judgment of conviction dated 10.03.2010 and the order of sentence
dated 11.03.2010 passed by the learned Additional Sessions Judge, FTC-VI
Jamshedpur, East Singhbhum in Sessions Case No. 65/ 2007)
------
Devi Sharan Sharma, S/o Vijay Kr. Sharma,
R/o Tayo Complex Colony, Qr. No.-A-42, P.O. + P.S.:- Gamharia, Distt.-
Seraikalla-Kharsawan. ...... ..... Appellant
-Versus-
The State of Jharkhand ...... ..... Respondent
Heard through Video Conferencing
------
PRESENT
HON'BLE MR. JUSTICE RATNAKER BHENGRA
------
For the Appellant : Mr. Sadish Ujwal Beck, Amicus Curiae
Mr. Rohit Agarwal, Advocate
For the State : Mr. Sardhu Mahto, APP
------
C.A.V. on 09/10/2020 Pronounced on 26/11/21
Heard Mr. Sadish Ujwal Beck, the learned Amicus Curiae as
well as Mr. Sardhu Mahto, the learned APP.
2. The present criminal appeal has been preferred by the appellant
against the judgment of conviction dated 10.03.2010 and the order of
sentence dated 11.03.2010 passed by the learned Additional Sessions Judge,
FTC-VI Jamshedpur, East Singhbhum in Sessions Case No. 65/2007,
whereby and whereunder, the appellant was convicted under sections 363
and 419 of the Indian Penal Code and sentenced to undergo RI for two
years with a fine of Rs. 5000/- under section 363 of IPC and sentenced to
undergo RI for two years under section 419 of IPC. In default of payment of
fine appellant was further sentenced to undergo six months and both the
sentences were ordered to run concurrently.
3. The case of the prosecution, in brief, as per the fardbeyan
dated 29.11.05 of the informant Krishna Giri (PW-2) aged about 15 years is
that informant is a student of 8th class in Rajasthan Vidya Mandir,
Aambegan and his father is an electrician. Informant had come to Sakchi
bazaar and at about 6:30 p.m. in the evening, he was standing near the Eye
Hospital, Sakchi, waiting for tempo to go home. There a Maruti car bearing
[2]
no. JH 05 C-5265 was parked and in the car two men aged about 28-30
years were sitting. Informant asked them whether they would go to Dimna?
Then, they got him seated in the vehicle. They started to drive the vehicle in
another direction, on this informant asked, why they were going to another
side as he has to go to Dimna. On this, one person, who was wearing a thick
glass said we are reporters of CBI and said "saala tum ladki ki dalaali karta
hai tumko barbaad kar denge". On this, the informant started crying and
they drove the vehicle here and there. At about 8:00 O'clock in the night,
they took the vehicle to Essar Petrol Pump at Adityapur and told that they
are buying petrol and they would burn him in the forest of Chandil. Saying
this, one man, who was wearing thick glass, went to buy petrol. The other
one who was wearing a white coloured shirt and trouser had kept him in the
vehicle. In the meantime, out of fear, informant started shouting 'bachao
bachao' and on this some people gathered there. Then, the person came
carrying petrol and threatened people that they are CBI personnels and
when he was asked to show his identity card or revolver, he replied that the
same is deposited before the S.P. of Tata and they are carrying out an
important enquiry. During this exchange of words, the other person fled
away. Meanwhile, looking at the patrolling vehicle, people shouted then the
police arrived and on enquiry the glass wearing man told his name as Devi
Sharan Sharma and he told the name of his friend, who fled as Rintu.
4. On the basis of the fardbeyan, Sakchi P.S. Case No. 275 of
2005 dated 29.11.2005 was registered against the appellant under Section
367, 419 and 504 of the Indian Penal Code. After investigation police
submitted charge sheet under section 419, 367 and 504 of IPC against the
appellant and cognizance of the offences were taken and the case was
committed to the court of Sessions. Charges were framed under sections
367 and 419 of IPC and trial was held and at the conclusion of the trial the
appellant was convicted and sentenced as aforesaid. Hence, this appeal.
5. Prosecution in support of its case has examined altogether four
witnesses out of whom PW-2 Krishna Kumar Giri is the informant of the
case and he was declared hostile; PW-1 Mahavir Shilanand Kindu is the
Investigating Officer of the case; PW-3 is Md. Shamim Quraisi and PW-4 is
Md. Naeem.
[3]
6. PW-2 Krishna Kumar Giri is the informant of the case. PW-2
has stated in his evidence that on the day of occurrence he was at Sakchi.
PW-2 further stated that he asked Devi Sharan Sharma whether he is going
towards Dimna Road and he sat in the Maruti car. Devi Sharan Sharma took
the informant to the Adityapur and stopped near Adityapur petrol pump.
Accused said that they would go further to which the informant resisted and
altercation took place between them and in the meantime police came and
took both the informant and the accused. Informant further stated that there
was no attempt to burn him by pouring petrol but the accused kept him for
an hour. Informant had not reported the matter at the police station.
Informant has proved his signature on the fardbayan which was marked as
A to B. In his cross-examination PW-2 stated that he had not given any
statement to the police that on 29.11.2005 he was waiting for a tempo in
Sakchi then the accused Devi Sharan Sharma got him seated in his vahicle
and took him to Adityapur and told him that he is a CBI officer and
restrained him in the car. PW-2 further stated that the fardbayan was not
read over to him and no assault did take place with him.
7. PW-3 is Md. Shamim Quraisi. He has stated in his evidence
that the occurrence was of about 2-2 ½ years ago, around 07:00-08:00
O'clock in the night and at that time he was taking petrol in his vehicle
from the petrol pump of Essar Company and his friend Naeem Quraishi was
also with him. When he was taking petrol, a Maruti 800 car was standing
exactly in front of the road and a boy came out from it carrying a plastic
bottle and he took petrol of Rs 20 or Rs 10 in the bottle. In the meantime
they heard crying sound of a child 'bachao bachao' from the car. In the car
in which the child was sitting, one more person wearing glass was sitting.
Then they inquired from person sitting in the Maruti car as to who are they.
PW-3 further stated that the child started crying and on this the person
sitting in the car told that they are personnel of the S.P., Crime Branch and
on demanding his identity card, he told that it got deposited to S.P. PW-3
further stated that one person out of the crowd made a phone call to the
police station and the patrolling jeep came there and took away the man and
the child sitting in the car and the person carrying petrol fled away. They
also went to the police station along with the police party and police had
took his signature on the fardbeyan Ext.-P1 which was marked as E to F.
[4]
Police had also seized the bottle containing petrol, whose seizure list Ext.-
P2 bears his signature which was marked as C to D. PW-3 further stated
that when the child started crying, he and other people from the crowd
questioned him, then the child told them that the accused brought him
forcefully from Sakchi getting him seated in the car and they were
threatening to kill him. PW-3 further stated that he couldn't identify the
appellant because of lapse of long time. In his cross-examination PW-3
stated that the paper was not read over to him and he does not know what
was written in it and he signed on it due to fear of the police. PW-3 further
stated that the police had not taken his statement.
8. PW-4 is Md. Naeem and he is the friend of the PW-3. He has
reiterated almost the same as PW3 in his evidence. PW-4 has proved his
signature on the fardbayan Ext.-P1 which was marked as G to H and his
signature on the memo of arrest Ext.-P3 which was marked as E to F.
9. PW-1 is S.I. Mahavir Shilanand Kindo, who is the
Investigating Officer of this case. He has stated in his evidence that he
received the charge of investigation of Sakchi P.S. Case No. 275 of 2005 on
29.11.2005. PW-1 further stated that he again recorded the re-statement of
the informant. Investigating Officer has further stated the place of
occurrence is an Eye Hospital, Sakchi which is an open place of road side in
Sakchi where the informant was standing and waiting for the tempo.
Investigating Officer has proved 200 ml of petrol in a plastic bottle which
was marked as Material Ext.-1 and Mobile Set of L.G. Company which was
marked as Material Ext.-2. Investigating Officer has proved the seizure list
memo Ext.P-2, memo of arrest of the accused which was marked as Ext.P-3
and formal FIR which was marked as Ext.-P4.
ARGUMENTS ON BEHALF OF APPELLANT:-
10. Mr. Sadish Ujwal Beck, amicus curiae appearing on behalf of
the appellant submitted that PW-2, who is the informant of the case has not
supported the prosecution case during the course of trial and turned hostile.
Regarding PW-3 Md. Shamim Qureshi, amicus submits that this witness
has failed to identify the appellant in the dock during the course of trial and
during his cross-examination PW-3 has categorically stated that he has no
knowledge with regard to the fardbeyan and the same was not even read
[5]
before him. Amicus further submits that PW-3 has categorically stated that
due to fear of the police he had signed on the fardbyan and his statement
was not recorded by the police during the course of investigation.
11. Regarding the evidence of PW-4, amicus has submitted that he
never turned up for cross-examination despite several attempts were made
by the learned trial court which has come in para-12 of the impugned
judgment but, PW-4 did not come before the court. Amicus pointed out that
it is the mandatory and statutory requirement of a law to cross-examine the
witness and if the witness has not been cross-examined then the trial will be
vitiated. Amicus further submits that the learned trial court has failed to
consider that as per law there is no evidentiary value of evidence of witness
who has not turned up for his cross-examination. Learned trial court before
passing the impugned judgment has failed to appreciate that there is
absolutely no evidence against the appellant to convict him in the present
case.
12. Amicus has further submitted that the learned trial court has
also failed to appreciate that nothing has come against the appellant in the
evidence of PW-1, the Investigation Officer. Learned trial court has failed to
appreciate that PW-1 has categorically stated in his cross-examination that
he had not conducted the laboratory test of liquid which was alleged to be
petrol and said to be recovered from the possession of the appellant.
Learned trial court also failed to appreciate that the Investigating Officer
has also admitted that he had not verified the mobile phone which was
seized from the appellant and did not take measures to identify the person to
whom it belongs.
13. Amicus submitted that S.I. Binod Kumar Chaturvedi, who had
arrested the appellant and seized the articles from the possession of the
appellant was not examined. Learned trial court has also failed to appreciate
that even Kumar Samar Singh in whose presence seizure was made and
who had signed the seizure list was also not examined in the instant case
and hence, non-examining of this witnesses has caused prejudice to the
appellant.
14. Amicus submitted that learned court below has failed to
[6]
appreciate that there is absolutely no evidence to convict the appellant
under the aforesaid section. Amicus also submitted that the aforesaid case is
of the year 2005 and the appellant is having no criminal antecedent and he
is an employee of Tata Steel at Jamshedpur.
15. Amicus for the appellant has referred the judgment passed by
the Hon'ble Supreme Court in the case of Govindaraju ALIAS Govinda v.
State By Sriramapuram Police Station And Another reported in (2012) 4
SCC 722 in which the Hon'ble Apex Court held that when the principal
witness of the prosecution become hostile, greater is the requirement of
prosecution to examine all other material witnesses who could depose in
completing the chain by proven facts. Learned counsel for the appellant has
further cited the judgment passed by the Hon'ble Allahabad High Court in
the case of Smt. Rekha v. State of UP & Anr passed in an application under
section 482 No-43493 of 2019 and decided on 04.02.2020, in which the
Hon'ble Allahabad High Court held that the credibility of any witness can
be established only after the said witness is put to cross-examination by the
accused persons in connection with the charged offence. Amicus therefore,
submitted that the judgment passed by the learned trial court is improper
and is liable to be set-aside.
ARGUMENTS ON BEHALF OF STATE:-
16. Mr. Sardhu Mahto, learned APP has argued that informant
PW-2 Krishna Kumar Giri has fully supported the case of the prosecution.
Appellant took the informant to Adityapur on the pretext of taking him to
Dimna and the appellant was caught at the petrol pump and taken to the
police station.
17. Learned APP has further submitted that PW-3 and PW-4 have
deposed that the child was crying in a car parked near the Essar petrol
pump at 08:30 p.m. in the night and on being questioned, informant
narrated that the man sitting in the car had forcefully got him seated and
brought him here and he was also making death threats to him. Learned
counsel has further argued that it is clear that both these witnesses PW-3
and PW-4 were present at the petrol pump and had seen the informant or
victim, in the car along with the appellant and submitted that the appellant
had forcefully taken the informant without his consent.
[7]
18. Learned APP has also submitted that PW-1 Mahavir Shilanand
Kindo, the Investigating Officer has deposed that S.I. Binod Chatuirvedi
had arrested the appellant and handed over the appellant to him. Counsel
further says that the appellant is definitely guilty of cheating by personation
because on being questioned or asked by PW-3 and PW-4 the appellant had
said that he was a member of Crime Branch and on demanding his identity
card, he stated that he had deposited the same before the S.P. Learned APP,
therefore, says that this is definitely a clear case of committing the offence
of cheating by personation. Learned APP lastly submitted that the
impugned judgment of conviction and order of sentence passed by the
learned trial court needs no interference by this court and be sustain and
upheld.
FINDINGS
19. Having heard both counsels, gone through the records of the
case and the evidences, I find that in this case the appellant was convicted
under sections 363 and 419 of IPC.
20. From the perusal of the fardbeyan, I find that the informant
PW-2 has stated in his fardbeyan that the informant in order to go to Dimna
Road asked the appellant whether they would go to Dimna Road and
appellant said yes to this and got the informant seated in the Maruti car
bearing Registration no. JH-05C 5265 but drove the car in another
direction. When informant objected, then the appellant said "saala tum
ladki ki dalali karta hai hum tumko barbaad kar denge" and threatened
the informant to kill by pouring petrol and burning and stopped the vehicle
near Essar Petrol Pump, Adityapur for buying a petrol in the bottle. But, in
his deposition, informant deposed that that the appellant had not attempted
to burn him. Informant also deposed that he had not reported at the police
station. I find from the facts and circumstances of the case that the
informant himself got seated in the car and hence, no force was applied by
the appellant. Further, informant has deposed that he was with the appellant
for an hour in the car but, no hue and cry was made by the informant during
this time and it was when he reached near the Essar Petrol Pump he started
crying, which is totally strange and raises doubt in the story of the
prosecution.
[8]
21. Further, in the fardbeyan informant has stated that on his
crying crowd assembled and on inquiry the appellant told his name as Devi
Sharan Sharma, but, on the other hand Informant in his evidence has
deposed that he knew the appellant from before which further raises doubt
in the prosecution case. Moreover, prosecution has declared the informant
PW-2 as hostile witness. Amicus Curiae has referred the case of
Govindaraju (Supra) and pointed out in para 66 in which Hon'ble Apex
Court held that "when the principle witnesses of the prosecution became
hostile, greater is the requirement of the prosecution to examine all other
material witnesses who could depose in completing the chain of proven
facts...".
22. Further, from the perusal of fardbayan, I find that two
witnesses PW-3 and PW-4 had signed the fardbayan out of whom PW-4
was not cross-examined by the prosecution, while Md. Shamim PW-3
deposed in his cross-examination that he had signed on the paper out of fear
of police and the same was not read over to him, which cast doubt on the
procedure of investigation.
23. From the perusal of the impugned judgment at para 12 and the
deposition of PW-4 Md. Naeem, I find that appellant got no chance to
cross-examine this witness and hence due to his non cross-examination,
prejudice was caused to the appellant and the evidentiary value of the
examination-in-chief is vitiated if there is no cross-examination. Judgment
of Smt. Rekha (Supra) passed by the Hon'ble Allahabad High Court, in
which it is held that credibility of any witness can be established only after
the said witness is put to cross-examination by the accused person in
connection with the charged offence. But, in the case in hand looking into
para-12 of the impugned judgment, I find that learned trial court had itself
noted that "in spite of repeated attempts the prosecution has failed to put up
this witness for cross-examination" and hence, prejudice has been caused to
the appellant.
24. PW-1 Investigating Officer of the case has in his evidence
deposed that he had taken the charge of investigation from S.I. Binod
Kumar Chaturvedi and the said that Binod Kumar Chaturvedi had arrested
the appellant and prepared the seizure list but, prosecution did not examine
[9]
this witness. Further, Investigating Officer deposed that the seized article
i.e. a mobile phone of LG company which was marked as Material Ext.-2
was handed over to him at the time of taking the charge of investigation,
but, in his cross-examination, investigating Officer deposed that he had not
sent the exhibited articles for examination. Hence, prosecution has failed to
prove the charges against the appellant under sections 363 and 419 IPC,
beyond reasonable doubt.
25. Therefore, the impugned judgment of conviction dated
10.03.2010 and the order of sentence dated 11.03.2010 passed by the
learned Additional Sessions Judge, FTC-VI, Jamshedpur, East Singhbhum,
in Sessions Trial No. 65 of 2007, cannot sustain and are hereby set-aside.
The appellant is discharged of the liability of bail bond.
26. This Court is thankful to Mr. Sadish Ujwal Beck, amicus curiae
for his assistance rendered to this Court. Member Secretary, JHALSA is
directed to pay remuneration to Mr. Sadish Ujwal Beck, amicus, as per
rules.
27. Accordingly, this appeal is allowed.
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi,
Dated: 26 /11 /21
Madhav- NAFR
