Anil Singh @ Dhurwa Ji @ Rakesh Ji vs The State Of Jharkhand
2022 Latest Caselaw 3029 Jhar

                Criminal Appeal (D.B.) No. 78 of 2018
   [Against the judgment of conviction dated 20.09.2017 and order of
   sentence dated 23.09.2017 passed by Sri Biresh Kumar, learned
   Additional Sessions Judge-III, Garhwa in S.T. No. 86/2011]
                                   ...........

Anil Singh @ Dhurwa Ji @ Rakesh Ji, S/o Kabir Nath Singh, R/o Village Marda, P.O. & P.S. Bhandaria, District Garhwa ... ... Appellant Versus The State of Jharkhand ... ... Respondent ...........

For the Appellant : Mr. Ramesh Kumar, Advocate For the State : Mr. Bhola Nath Ojha, A.P.P.

For the Informant : Mr. Zubair Khan, Mr Asif Khan, Advocate PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH ...........

07/04.08.2022 Heard Mr. Ramesh Kumar, learned counsel for the appellant and Mr. Bhola Nath Ojha, learned A.P.P. for the State assisted by Mr. Zubair Khan, learned counsel appearing for the informant.

2. This appeal is directed against the judgment of conviction dated 20.09.2017 and order of sentence dated 23.09.2017 passed by Sri Biresh Kumar, learned Additional Sessions Judge-III, Garhwa in S.T. No. 86/2011, whereby and whereunder the appellant has been convicted for the offence punishable u/s 302 and 452 of the IPC as also u/s 27 of the Arms Act and has been sentenced to undergo imprisonment for life along with a fine of Rs. 20,000/- for the offence u/s 302 of the IPC, R.I. for seven years along with a fine of Rs. 10,000/- for the offence u/s 452 of the IPC and R.I. for seven years and a fine of Rs. 10,000/- for the offence u/s 27 of the Arms Act. All the sentences shall run concurrently.

3. The fardbeyan of Binda Devi was recorded on 06.05.2008 at 10:00 A.M, in which, she has stated that on 05.05.2008 at about 7:00 P.M. she along with her husband Rajeshwar Baitha @ Sanjay Baitha and her children after locking the door was cooking when the sound of some persons could be heard. The door was knocked at which she opened the door and found 8-10 persons in Khakhi dress armed with rifles were standing. One of the persons who was short and thin was calling

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the informant Bhabhi and was repeatedly demanding her mobile. She was being hesitant but when threats were extended she had handed over her mobile to them. As soon as the mobile was handed over 8-10 extremists entered into the house, caught hold of her husband and started dragging him outside by saying that he is a spy who gives all information about the movement of naxalites to the Police and therefore he should be eliminated. It has been alleged that she pleaded with them but it fell on deaf ears. Her husband was dragged and was taken towards the house of Jairam Singh where he was thrashed to the ground and was riddled with bullets as a result of which he died at the spot. After committing the murder the extremists fled away by raising slogans. At the time of the incident one of the extremists disclosed his name as Anil Commander and told her not to disclose his name to the Police. Since it was night the Police could not be informed.

Based on the aforesaid allegations Ranka P.S. Case No. 47/2008 was instituted against Anil Commander and 8-9 extremists for the offences punishable u/s 147, 148, 149, 302, 342, 452, 171 of the I.P.C., Section 27 of the Arms Act, Section 17 of the CLA Act and Section 38/39 of the Unlawful Activities (Prevention) Act. On conclusion of investigation charge-sheet was submitted against Anil Singh @ Dhurwa Ji @ Rakesh Ji (appellant) and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 86/2011. Charge was framed against the accused for the offences u/s 148, 452, 302 of the I.P.C., Section 27 of the Arms Act, Section 17 of the CLA Act and Section 38/39 of the Unlawful Activities (Prevention) Act which was read over and explained to the accused in Hindi to which he pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as eleven witnesses in support of its case.

5. P.W.1 (Gopal Tiwary) has produced the material exhibits on the order of the Officer-in-Charge. The same included

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05 empty cartridges of 7.62 mm which have been marked as Material Exhibit Nos. I to I/4, one pellet marked as Material Exhibit-II, one live cartridge of 7.62 mm of SLR rifle marked as Material Exhibit-III and blood soaked earth marked as Material Exhibit-IV. The material exhibits bore the mark MR-21/40. The challan of the material exhibits was in the handwriting of the Officer-in-Charge Binay Prasad Mandal and which also bears his signature and which has been marked as Exhibit-1.

6. P.W.2 (Mahendra Singh) and P.W.3 (Jai Ram Singh) did not support the case of the prosecution and were declared hostile by the prosecution.

7. P.W.4 ( Dr. Arun Kumar) was posted as a Medical Officer at Sadar Hospital, Garhwa and on 06.05.2008 he had conducted autopsy on the dead body of Rajeshwar Baitha @ Sanjay Baitha and had found the following antemortem injuries:

               i.     One wound of entry of about ¾ diameter
               having         inverted     and      lacerated       margin

communicating in the left back side of chest just below the sub scapular region size 1½" diameter with averted and lacerated margin.

ii. In the right sub scapular region there is wound of entry of about ½" diameter on (burning inverted and lacerated margin) communicating in right chest cavity with exit right anterior axillary line size 1" diameter with averted and lacerated margin. iii. Lacerated wound at right side of shoulder region with ¾ diameter and communicating to right chest cavity with exit in left side of chest.

               iv.    At the lower part of abdomen about ½"
               diameter       wound      having   averted    margin     and

lacerated margin (communicating in the abdominal cavity with exit at right side of lower abdomen) size 2½" averted and the lacerated margin.

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In his opinion death was caused more likely due to excessive blood loss with trauma of vital organs, caused by firearm injury. He has proved the postmortem report which has been marked as Exhibit-2.

8. P.W.5 (Suraj Malwar) was also an Investigating Officer who had made further investigation. He had written down paragraphs 50 to 59 of the case diary. He had tried to obtained the postmortem report but he was told that the same has already been collected by the earlier Investigating Officer.

In cross-examination, he has deposed that he could not obtain the original postmortem report due to the non- cooperation of the Doctor and the Sub-Inspector Manish Chandra Lal.

9. P.W.6 (Prakash Toppo) had also conducted part investigation. He has stated that the previous Investigating Officer had recorded the statement of the witnesses and had also inspected the place of occurrence. He had not made any substantial progress in the investigation.

10. P.W.7 (Binda Devi) is the informant who has stated that the incident is of 05.05.2008 and she was in her house and her husband and children were also present. Somebody had knocked at her door. When she opened the door, she found 8-10 persons standing. The person who had knocked at the door disclosed his name as Kamlesh. Her husband was caught and he was told to show them the road. She has stated that she was threatened by them at which she had to part with her mobile. One of the extremists disclosed his name as Anil Area Commander. She has further deposed that her husband was dragged outside and though he pleaded for his life he was shot dead. The extremists thereafter went away raising slogans. It was night and therefore she could not inform the Police. She could not identify the accused persons since it was night but they had disclosed their names as Kamlesh and Anil Singh. She has identified Anil Singh in the court

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but at the same time she has stated that it was night and she could not identify the accused persons properly. She had recorded her fardbeyan before the Police and on it being read over and explained to her she had put her signature which has been marked as Exhibit-3.

In cross-examination, she has deposed that the houses of Jairam Singh, Shailendra Sao, Mahendra Singh and Radha Baitha are adjoining to her house. The accused persons were wearing uniforms. The accused persons had not covered their faces. She has deposed that it was night and she cannot say as to who had shot at her husband.

11. P.W.8 (Sushil Baitha) has deposed that the incident is of eight years back at about 9:00 P.M. When he had gone on the next day he had seen the dead body of Sanjay Baitha. The persons who were present had disclosed that the murder has been committed by the party workers. They were also expressing apprehension that perhaps Anil had murdered Sanjay Baitha.

In cross-examination, he has admitted that whatever has been deposed by him is on the basis of hearsay information.

12. P.W.9 (Laxman Vishwakarma) has deposed that the occurrence had taken place about 10-12 years back. He came to know about the murder of Sanjay Baitha when he came back home from his relatives place. He had come to know that the party workers had committed the murder.

In cross-examination, he has stated that he does not know who had disclosed to him about the assailants being party workers.

13. P.W.10 (Manish Chandra Lal) has deposed that on 06.05.2008 he was the Officer-in-Charge of Ranka P.S. and an information was received that Sanjay Baitha has been murdered by the extremists. He had recorded the fardbeyan of Binda Devi which is in his handwriting and bears his signature which has also been

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signed by Binda Devi, Shailendra Baitha, Sardayal Singh and Jairam Singh and which has been marked as Exhibit-3/1. He has proved the endorsement which is in his handwriting and bears his signature and which has been marked as Exhibit-3/2.

From the place of occurrence 05 empty cartridges of 7.62 mm, one pellet, one live 7.62 mm cartridge and a handwritten pamphlet claiming responsibility for the murder of Sanjay Baitha and blood soaked earth were seized and a seizure list was prepared. He has stated that Jairam Singh and Sardayal Singh had signed on the seizure list. He has proved the seizure list which has been marked as Exhibit-4. He had prepared the inquest report at the place of occurrence which is in his handwriting and bears his signature as well as the signature of the witnesses Jairam Singh and Mahendra Singh. He has sent the dead body for postmortem to Sadar Hospital, Garhwa and he has proved the carbon copy of the requisition which has been marked as Exhibit-5.

In course of investigation, he had recorded the restatement of the informant Binda Devi and had also inspected the place of occurrence. The place of occurrence is at village Bardari besides the house of Jairam Singh which is an unmetalled road and besides the said road Sanjay Baitha was said to have been riddled with bullets by the extremists. In course of investigation, he had recorded the statement of Sardayal Singh, Shailendra Baitha, Mahendra Singh and Jairam Singh. He had also taken the statement of Nand Lal Prasad and Ramnath Singh and all the witnesses have supported the occurrence. In course of evidence the informant as well as the witnesses had disclosed that a short and thin person was calling himself Anil Commander and he had told them to tell his name to the Police. On transfer the investigation was handed over to Sub-Inspector Prakash Toppo.

In cross-examination, he has stated that he does not remember as to whether in any other case involving Anil Singh

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he had given his evidence or not. He has also stated that he had not arrested the accused Anil.

14. P.W.11 (Dinesh Prasad Surin) has proved the sanction letter of Sri Rajendra Prasad Sinha the then Deputy Commissioner, Garhwa and which has been marked as Exhibit-6 with objection.

In cross-examination, he has stated that he never worked with Rajendra Prasad Sinha. The signature of Exhibit-6 was not put in his presence and he is not acquainted with the signature of the then Deputy Commissioner, Garhwa.

15. The statement of the accused was recorded u/s 313 Cr.P.C. in which he has merely denied about being involved in the commission of the murder.

16. Mr. Ramesh Kumar, learned counsel for the appellant has submitted that there is no evidence worth taking note of to indicate that it was the appellant who had committed the murder of the husband of the informant. Learned counsel has submitted that P.W.7 is the only eye-witness to the occurrence but she has also categorically stated that she could not identify any of the accused on account of the fact that it was night and there was darkness all over.

17. Mr. Bhola Nath Ojha, learned A.P.P. as well as Mr. Zubair Khan, learned counsel for the informant have opposed and submitted that in the fardbeyan of P.W.7 the name of the appellant has categorically been revealed and which fact has been reiterated in her evidence as P.W.7.

18. We have given our anxious consideration to the submissions advanced by the learned counsels for the respective sides and have also perused the Lower Court Records.

The factual aspects of the case reveals that extremists had entered into the house of the informant dragged out her husband and near the house of Jairam Singh had shot him dead. The informant had named Anil Commander as one of the

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extremists and the First Information Report was instituted against Anil Commander and other unknown extremists. In course of trial the informant has been examined as P.W.7 and she has added the name of Kamlesh as one of the extremists apart from spelling out the name of the appellant. P.W.7 has also identified the appellant in court. It is to be noted that P.W.7 is the sole eye-witness to the occurrence and the conviction of the appellant was predominantly on the basis of the evidence of P.W.7. The evidence of P.W.7 therefore has to be thoroughly scrutinized. Though P.W.7 has claimed to have identified the appellant in the dock but such identification however is tinged with grave doubt. P.W.7 in her examination-in-chief has repeatedly stressed upon the fact that it was night and therefore she could not identify the accused persons properly. In her cross-examination, she has stated that she cannot say as to who had shot at her husband since it was night. The identification of the appellant by P.W.7 as per her own evidence becomes unreliable. We have also noticed the fact that no Test Identification Parade was held. We are also conscious of the fact that the evidence of P.W.7 was recorded after seven years from the date of occurrence and with the lapse of time memory fades. But that by itself would not dilute the case of the defence since the defence has primarily made a challenge to the identification of the appellant. As we have noticed above, the evidence of P.W.7 with respect to the identification of the appellant as one of the extremists involved in committing the murder of her husband cannot be relied upon. Absence of any corroborative evidence which would imply about the presence of the appellant at the time of the incident would further go to show that the appellant could not have been convicted solely on the basis of the evidence of P.W.7.

19. In such circumstances, therefore, we have no hesitation to come to a conclusion that the learned trial court had committed an error in convicting the appellant and sentencing him

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vide judgment of conviction dated 20.09.2017 and order of sentence dated 23.09.2017 passed in S.T. No. 86/2011 and accordingly the same is set aside.

20. This appeal is allowed.

21. Since the appellant is in custody for about 14 years, he is directed to be released immediately and forthwith, if not, wanted in any other case.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

High Court of Jharkhand at Ranchi Dated, the 4th day of August, 2022.

Alok/NAFR