Jharkhand High Court
Pawan Lohra vs The State Of Jharkhand on 9 February, 2022
1
Criminal Appeal (DB) No. 638 of 2016
with
Criminal Appeal (DB) No. 288 of 2016
With
Criminal Appeal (DB) No. 1374 of 2016
Against the judgment and order of conviction dated 30.03.2015
and sentence dated 04.04.2015 passed by Sri Yogeshwar Mani, learned
Additional Judicial Commissioner-XII, Ranchi in S. T. Case No. 285
of 2012
Pawan Lohra ... Appellant
(In Cr. Appeal (DB) No. 638/2016)
Manoj Toppo ... Appellant
(In Cr. Appeal (DB) No. 288/2016)
1. Bablu Lakra
2. Brish Lakra @ Somra ... Appellants
(In Cr. Appeal (DB) No. 1374/2016)
Versus
The State of Jharkhand ... Respondents
(In all cases)
----
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE SANJAY PRASAD
For the Appellants : Mr. Lukesh Kumar, Advocate
(In Cr. Appeal DB No. 638/2016)
Mrs. Vani Kumari, Advocate
(In Cr. Appeal DB No. 638/2016)
Mrs. Anshu Dubey, Advocate
(In Cr. Appeal DB No. 1374/2016)
For the Respondent : Mrs. Priya Shrestha, Spl. P.P.
(In Cr. Appeal DB No. 638/2016 &
Cr. Appeal DB No. 1374/2016)
Mr. Ashok Kumar, APP
(In Cr. Appeal DB No. 288/2016)
C.A.V. on 03.01.2022 Delivered on 09.02.2022
----
Rongon Mukhopadhyay, J. These criminal appeals are directed against the judgment and
order of conviction dated 30.03.2015 and sentence dated 04.04.2015 passed
by Sri Yogeshwar Mani, learned Additional Judicial Commissioner-XII,
Ranchi in S. T. Case No. 285 of 2012, whereby and whereunder, the
appellants have been convicted for the offences punishable u/s 302/34 of
the Indian Penal Code and Section 27 of the Arms Act and sentenced to
rigorous imprisonment (R.I.) for life along with a fine of Rs. 10,000/- for the
offence punishable u/s 302/34 I.P.C. and R.I. for three years along with a
fine of Rs. 3,000/- for the offence punishable u/s 27 of the Arms Act.
2. The prosecution story reveals that the informant was working as a
Centering Mazdoor in the under construction St. Anna Nursing School. The
Munshi of the Contractor, Guard and others were sleeping at around 9.30
p.m. on 13.10.2011 when at around 11.30 p.m., four unknown persons had
entered into the room along with Vimal Munda. It has been alleged that out
of the four two persons had country made pistols while one had a Farsa.
They had demanded the phone number of the Contractor and the Munshi
and had also stated about the warning given earlier with respect to a
demand of Rs. 20 Lakhs. As they were giving the numbers all the miscreants
went outside and started asking the name of the informant and the others
present. It has been alleged that earlier the miscreants had entered the staff
room and had shot Suresh Oraon on his leg. When the informant and the
others craved for mercy, the miscreants had again fired at Suresh Oraon and
had also assaulted him with a Farsa. Further allegation has been levelled
that the informant and others fled away and went to the house of Sushil
Runda and after 10-15 minutes when they came back, they found Suresh
Oraon lying dead. The miscreants had in the meantime fled away. The
informant had given a physical description of the miscreants.
Based on the aforesaid allegations, Namkum P.S. Case No. 210/2011
was instituted for the offences punishable u/s 302/34/120B of the I.P.C. On
conclusion of the investigation charge-sheet was submitted against
Pawan Lohra [Appellant in Criminal Appeal (DB) No. 638 of 2016], Manish
Lakra, Brish Lakra @ Somra @ Dalda [Appellant No. 2 in Criminal Appeal
(DB) No. 1374 of 2016], Manoj Toppo [Appellant in Criminal Appeal (DB)
No. 288 of 2016] and Bablu Lakra [Appellant No.1 in Criminal Appeal (DB)
No. 1374 of 2016]u/s 302/34 of the I.P.C. and Section 27 of the Arms Act.
Cognizance was duly taken and after supply of police paper, the case was
committed to the Court of Sessions on 13.03.2012. Charge was framed on
25.07.2012 for the offences punishable u/s 302/34 of the I.P.C. and Section
27 of the Arms Act and the contents of the charge were read over and
explained to the accused in Hindi to which they pleaded not guilty and
claimed to be tried. One of the accused Manish Lakra was declared a
juvenile vide order dated 10.09.2014 and his case was split up and sent to
the learned Principal Magistrate, Juvenile Justice Board for trial and
disposal.
3. The prosecution has examined as many as nine (09) witnesses in
support of its case.
P.W. 1 Pradeep Kachchhap is the informant who has stated that the
incident is of 13.10.2011 at around 11.30 p.m. when he was at St. Anna
Nursing School. He was sleeping along with Binod and Julius Kerketta
while in the Staff Room Safu Kujur, Vimal Munda, Suresh Oraon and
Gurudayal Oraon were sleeping. All of a sudden at around 11 p.m. five
persons had entered and rebuked them for not opening the door. The
miscreants stated about the warning given earlier demanding Rs. 20 Lakhs
as extortion money from the Contractor. They thereafter took the phone
number of the Contractor Roshan Lal Bhatiya. He has further stated that all
the five persons came outside and started asking the name of the informant
and others. He had seen Suresh Oraon writhing in pain as a bullet was shot
at his leg. One of the miscreants suggested that the leg of Suresh Oraon has
to be amputated which was protested by the informant and the others. This
witness has further stated that all of a sudden one of the miscreants had fired
a shot at the chest of Suresh Oraon while another one tried to assault him as
well as the others with a Farsa. A Farsa blow was given on the neck of Suresh
Oraon. This witness has further disclosed that he and the others fled away
on the face of such onslaught and went to the house of Sushil Runda where
the incident was disclosed to him. When they returned back to the place of
occurrence, they saw Suresh Oraon lying dead. The Contractor was
informed who in turn informed Namkum P.S. after which the police came
and his Fardbeyan was recorded which was proved and marked as Ext. 1.
He has also identified the seizure list which is with respect to seizure of
blood stained earth and an empty cartridge and which has been marked as
Ext. 2. The inquest report was also proved and marked as Ext. 3.
In cross examination, this witness has stated that it was dark when the
incident occurred and therefore he was not able to properly see the faces of
the miscreants.
P.W. 2 Vimal Munda has stated that on 13.10.2011 he was in the
campus of Raja Ulatu Nursing School. It was around 11.30 p.m. and he was
sleeping after having meal. With him Safu Kujur, Gurudayal Oraon and
Suresh Oraon were sleeping in one room while in the other room Pradeep
and Binod Kerketta were sleeping. All of a sudden five persons had opened
the door and while four of them came inside one had stood outside. He has
stated that on entering the room, they started firing and one of the bullets
struck Suresh Oraon on his leg. They were demanding the mobile number
of the Contractor and the Munshi for demanding extortion money of Rs. 20
Lakhs. He has stated that Suresh Oraon was taken outside and made to sit
near the door. Suresh Oraon was writhing in pain at which one of the
miscreants suggested to cut his leg. One of the miscreants fired at Suresh
Oraon while another gave a Farsa blow from behind on his neck. Safu Kujur
also had a bullet struck on his right hand. The Contractor was informed and
thereafter police came, prepared the inquest report and seized an empty
cartridge on which he had put his signature and which has been marked as
Ext. 3/A and 4. This witness has identified all the accused persons in the
dock, but could not name anybody.
In cross examination, he has stated that he was working in the project
for the last two months. Previously villagers from Chene village used to
work in the project. He has stated that it was dark when the incident had
taken place. The accused persons had threatened him at the time of giving
his evidence. On the date of occurrence, he was sleeping with the lights off
at which point of time, the miscreants had entered the room and started
firing. After the murder, this witness had fled away. He had hid himself
behind a bush and the accused persons were fleeing away through that road.
He has further stated that at the time of the murder he had identified the
assailants, but he was not able to identify them when he was hiding behind
the bush. He was acquainted with the accused by their face, but was not
knowing their names.
P.W. 3 Safu Kujur has disclosed that on the date of occurrence he was
sleeping with Vimal, Gurudayal and Suresh and at around 11.30 p.m. four-
five persons had entered and started firing and one bullet struck him on his
hand. Suresh was also fired upon which hit his leg. This witness and
Gurudayal managed to flee away and hid themselves in the paddy field. He
has stated that he does not know any of the miscreants.
In cross examination he has stated that the place where they were
sleeping was dark. He had not seen the faces of the miscreants.
P.W. 4 Sushil Runda in his examination-in-chief has stated that on
13.10.2011 at around 11.30 p.m. Pradeep Kachchhap woke him up and
disclosed that Suresh Oraon has been murdered. Pradeep had disclosed
about the manner of occurrence. About four days prior to the incident four
persons had come and demanded the phone number of the Contractor and
the Munshi. This witness has stated that those persons were demanding
money.
P.W. 5 Julius Kerketta in his examination-in-chief has stated that on
13.10.2011 at about 11.30 p.m. he was in the Nursing School along with
Pradeep and Binod. Vimal came and told them to open the door. Some
persons had opened the gate at which four persons armed with pistol and
Farsa entered and started demanding the phone numbers of the Contractor
and the Munshi. They were also demanding extortion money of Rs. 20
Lakhs. This witness has stated that the miscreants had fired at Suresh Oraon
who was crying in pain and Suresh Oraon was also assaulted with Farsa.
There were five miscreants and he had identified all of them in the dock.
According to this witness it was a moonlit night.
In cross examination he has stated that on 08.10.2011 some miscreants
had come, but no information was given to the police. He was not knowing
these miscreants from before. He had not gone to the jail for T.I.P. He has
further stated that he and the others had not gone for T.I.P. He had disclosed
to the police that due to darkness, he could not identify any of the assailants
and he had requested not to force him to attend the Test Identification
Parade.
P.W. 6 Dr. Jyotsna Kumari was posted on 14.10.2011 in the
Department of F.M.T. at RIMS as Junior Resident. She had conducted
autopsy on the dead body of Suresh Oraon and had found the following:-
(i) Average built rigor mortis is present all over the body.
(ii) Abdomen slightly distended. Dry blood stained face, neck, front
of upper part of chest and cloth.
Fire Arm Injury
(i) Wound of entrance 2 cm X 1 cm on front of right chest upper
part 12 cm right to midline and 10 cm above the right nipple
tattooing area.
(ii) 20 cm X 10 cm front of right chest upper part and fronto lateral
aspect of upper part of right arm adjoining front of right
shoulder.
Exit Wound
The projectile passes through soft tissue makes exit wound 3 cm
X 1 cm left lateral chest middle part.
Wound of Entrance
2 cm x 1 cm right ankle lateral side,the projectile pass through
soft tissue to break of right tibia bone lower part makes exit
wound 3 cm X 2 cm right leg lower part on medial side.
Incised Wound
(i) 15 cm X 2 cm X bone deep over left occipital lateral side and left
temporal and left ear cutting of soft tissue underline bone dura
matter and brain
(ii) 10 cm X 2 cm at bone deep left cheek with cutting of soft tissue
and underline bone
(iii) 15 cm X 2 cm X bone deep on fronto lateral aspect of upper part
of left neck adjoining left side of chin and cutting of soft tissue
blood vessel, trachea, oesophagus and cutting of second
cervical vertebra
(iv) 10 cm X 2 cm X bone deep on fronto lateral aspect of left neck
middle part and cutting of soft tissue blood vessel, trachea,
oesophagus and completely cut of fourth cervical vertebra.
Internal Organ
All the internal organs are pale. There is blood and blood clots
on soft and bony tissue.
Opinion
(i) The above noted injures are ante mortem. Fire arm injuries are
caused by firearm weapon.
(ii) Incised wound is caused by heavy sharp cutting weapon.
(iii) Death is due to above noted injuries.
This witness has proved the postmortem report which is in her
handwriting and bears her signature and which has been marked as Ext. 5.
P.W. 7 Satyendra Kumar Singh is the Investigating Officer who has
stated that on the relevant date he was posted as Officer-in-Charge,
Namkum P.S. On receiving the information of murder he had proceeded to
the place of occurrence, recorded the Fardbeyan, prepared the inquest
report and recorded the statement of the witnesses. The place of occurrence
is the under constructed St. Anna Nursing School situated at village Raja
Ulatu. Besides the main gate three rooms of bricks and asbestos had been
constructed from where one empty cartridge, a misfired cartridge and the
dead body of Suresh Oraon were recovered. He had prepared the seizure
list with respect to the seized empty cartridge and misfired empty cartridge
where he had signed and which has been marked as Ext. 2/1. Initially
Pawan Lohra had given a confessional statement followed by the other co-
accused persons. This witness has further stated that on the confession of
the accused, three country made pistols with cartridge and a misfired
cartridge were recovered from under the earth of the house of Pawan Lohra.
A Farsa was also recovered from his house. A seizure list was prepared
which has been marked as Ext. 6. A cartridge was also recovered from
behind the bushes as per the confession of Pawan Lohra and a seizure list
was duly prepared which has been marked as Ext. 7. He has also proved his
signature and writing in the Fardbeyan which has been marked as Ext. 1/1.
The registration of the F.I.R. has been marked as Ext. 1/ 2 and the formal
F.I.R. has been marked as Ext. 9. He has proved his signature and writing
over the inquest report which has been marked as Ext. 3/b.
In cross examination he has stated that in the Fardbeyan the informant
never claimed to have identified the assailants and he was in a state of terror.
None of the witnesses stated about the identification of the assailants as all
were in a state of shock. The informant as well as the other witnesses were
noticed to attend the T.I.P., but all had expressed their inability since they
seemed to be totally terrorized. He has also disclosed that Vijay Munda and
Julius Kerketta had never claimed to have identified the assailants.
P.W. 8 Karma Lohra has identified his signature in the seizure lists
which have been marked as Ext. 6/1 and 7/1. In his cross examination he
has stated that on the direction of the police he had signed on blank papers.
P.W. 9 Dr. H. K. Sinha who was posted in the State Forensic
Laboratory has stated that one sealed wooden box was received in his office
on 04.01.20212 which contained two paper packets marked 'A' and 'B'. The
packet marked 'A' contained some blackish colour said to be blood which
bore reddish brown stain practically all over. The packet marked 'B'
contained one rusted Farsa fitted with bamboo handle. The blade of Farsa
measured 34.5 cm. in length and bamboo handle was 109 cm. in length. It
bore only a dot of reddish brownish blood.
The result of the examination was that blood had been detected all
over the packet marked 'A' while the blood detected on packet marked 'B'
was too small for serological test. As per the serological examination the
packet marked 'A' contained human source of blood of origin of Group B.
4. The appellants in their statements u/s 313 Cr.P.C. have merely denied
their involvement in the occurrence.
5. Mr. Lukesh Kumar, learned counsel appearing for the appellant in Cr.
Appeal DB No. 638/2016 has submitted that the identification of the
appellant itself is doubtful. He has submitted that there are contradictions
galore in the evidence of the so called eye witnesses with respect to presence
of the appellant in the place of occurrence. It has been submitted that
identification in the dock without any Test Identification Parade itself
negates such identification being a weak piece of evidence. While referring
to the evidence of P.W. 1 Mr. Lukesh Kumar submits that he had identified
Manoj Toppo (Appellant in Cr. Appeal DB 288 of 2016) and Bablu Lakra
(Appellant No. 1 in Cr. Appeal DB 1374 of 2016), in the dock by their
physical features and not the other accused while in his evidence he has
stated that it was dark and he could not identify the assailants. Learned
counsel submits that P.W. 2 and P.W. 5 had also identified the accused
persons in the dock, but their evidences are also fraught with doubt.
Learned counsel adds that the Investigating Officer (P.W. 7) in his cross
examination had disclosed that none of the witnesses had claimed to have
identified the assailants as all were in a state of shock. So far as the recovery
of arms and ammunitions on the confession of the present appellant is
concerned, learned counsel submits that the same have not been proved as
P.W. 8 who is a seizure list witness has clearly stated that the police had
taken his signature in a blank piece of paper. Mr. Lukesh Kumar adds that
the learned trial court has convicted the appellant u/s 27 of the Arms Act
only on the basis of assumption as neither the Sergeant Major was examined
nor the report prepared by him exhibited. He submits that P.W. 7 was not
confronted with the report of the Sergeant Major. It has been submitted that
though Farsa was purportedly recovered on the confession of the appellant,
but no serological test could be conducted as the blood detected on the
Farsha was too little for such test.
6. Mrs. Vani Kumari, learned counsel appearing for the appellant in Cr.
Appeal DB No. 288/2016 has submitted that the evidence of P.W. 2 and P.W.
5 who claimed to have identified the appellant in the dock are full of
contradictions and not corroborative of each other. She adds that the
witnesses had the opportunity to participate in the Test Identification
Parade, but they did not do so. Since the identification of the appellant has
not been conclusively proved, the appellant deserves to be acquitted from
the charges levelled against him.
7. Mrs. Anshu Dubey, learned counsel appearing for the appellants in
Cr. Appeal DB No. 1374/2016 has basically reiterated what has been
submitted by the learned counsels for the other appellants.
8. Mrs. Priya Shrestha, learned Spl. P.P. has appeared in Cr. Appeal DB
No. 638/2016 and Cr. Appeal DB No. 1374 of 2016 while Mr. Ashok Kumar,
learned A.P.P. has put in appearance in Cr. Appeal DB No. 288 of 2016.
Mrs. Shrestha submits that the identification of the appellants have
been proved beyond any reasonable doubt. She has referred to the evidence
of P.W. 2 and P.W. 5. She has submitted that it was a moon lit night and
therefore identification of the appellants was quite possible. She has also
submitted that the all the appellants had confessed and in fact on the
confession of the appellant Pawan Lakra arms, ammunitions as well as the
Farsa used in the murder were recovered. Mrs. Priya Shrestha adds that the
identification of the appellants in the dock by P.Ws. 2 and 5 is a clear
indication about the involvement of the appellant and non-participation in
the Test Identification Parade would not cast a shadow of doubt over such
identification.
Mr. Ashok Kumar, learned A.P.P. has reiterated the submissions
advanced by Mrs. Priya Shrestha, learned Spl. P.P.
9. We have considered the rival submissions and have gone through the
lower court records. The issue for determination to prove the charge u/s 302
I.P.C. is whether the presence of the appellants at the place of occurrence
was beyond any reasonable doubt and if so whether all the appellants
showed a common intention or not.
10. The First Information Report reveals about some miscreants armed
with country made pistols and Farsa having entered into the room of the
informant along with Vimal Munda (PW 2). The miscreants had earlier gone
to the staff room and shot at Suresh Oraon on his leg. In spite of craving for
mercy by the persons present they had again shot at Suresh Oraon and
hacked him with a Farsa. Since the miscreants could not be identified, the
First Information Report was instituted against unknown persons.
11. The informant has been examined as P.W. 1. He has identified Manoj
Toppo and Bablu Lakra by their physical description, but he has not
properly identified them by face. In cross examination P.W. 1 has stated that
it was dark when the incident had taken place and as such he could not
properly see the face of the assailants.
P.W. 2 Vimal Munda has described the occurrence and in the dock he
had identified all the accused persons. This witness had identified the
appellants, but could not name them. In cross examination he has stated that
police did not take him to jail for identifying the accused. He was sleeping
by putting off the lights when the accused persons had barged into the room.
He had fled away and hid behind a bush. At the time of the incident he had
identified the assailants but when they left they could not be identified by
him from behind the bush. He has also stated that he was knowing the
accused from before though he did not know their names.
P.W. 3 Safu Kujur is another eye witness who was also struck by a
bullet on the elbow of his right hand. At the time of the incident he was
sleeping in a room along with Vimal (PW 2), Gurudayal and Suresh
(deceased). He has not identified any of the miscreants. In his cross
examination he has stated that it was dark at the place where they were
sleeping and he had not seen the faces of any of the accused.
P.W. 5 Julius Kerketta had shared the office room with Pradeep (PW
1) and Binod. He had identified all the accused persons in the dock. It was a
moon lit night. In cross examination he has stated that he was not knowing
the accused from before and came to know about them on the date of the
occurrence. They had not gone to attend the Test Identification Parade. He
had told the police that since it was night he could not identify any of the
accused. He had also stated that he may not be forced to attend the Test
Identification Parade.
The Investigating Officer (PW 7) in his evidence has stated that at the
time of investigation none of the witnesses had disclosed about identifying
the miscreants. The witnesses had refused to attend the Test Identification
Parade since they were in a state of terror and would not be able to identify
the assailants.
12. The narration of P.W. 1, P.W. 2, P.W.3, P.W. 5 and P.W. 7 does not
unequivocally prove the presence of the appellants during the commission
of the murder. The common thread which runs through the evidence of P.W.
1, P.W. 2 and P.W.3 is that it was dark when the incident is said to have
taken place. The lone dissenting evidence seems to have come from the
mouth of P.W. 5 who has stated that it was a moon lit night though in the
later part of his evidence he has stated about not identifying any of the
accused.
13. It appears that P.W. 2 and P.W.3 were in the same room when the
assault had taken place. Both have stated that it was dark when the incident
had taken place and while P.W. 3 has been unable to identify any of the
assailants, P.W. 2 under the same circumstances claimed to have been able
to identify them. The identification of the accused in the dock by P.W. 5
seems to have been considerably diluted by virtue of the cross examination
of P.W. 5. Therefore it is only P.W. 2 who is consistent in stating about
identifying all the accused, but his evidence regarding identification is
fraught with contradictions. According to P.W. 2 he was sleeping by putting
off the lights and when the accused persons had barged into the room he
had fled away. This witness therefore seems to have at best managed a
fleeting glimpse of the accused considering the close proximity of time
between the entering of the accused into the room and the fleeing away of
this witness. Such identification supposedly by P.W. 2 and without there
being any corroborative evidence would be dangerous to rely upon to
convict an accused. In fact the identification as claimed by P.W. 2 appears to
have even been contradicted by P.W. 7, the Investigating Officer.
14. Thus there appears to be frailty in the evidence of the eye witnesses
regarding the identification of the appellants at the time of the incident. We
shall therefore now consider the evidentiary value of an accused being
identified in the dock for the first time. In this context reference be made to
the case of Sheo Shankar Singh v. State of Jharkhand and another reported
in (2011) 3 SCC 654 and the relevant are quoted as under:
46. It is fairly well settled that identification of the accused in the
court by the witness constitutes the substantive evidence in a case
although any such identification for the first time at the trial may more
often than not appear to be evidence of a weak character. That being so a
test identification parade is conducted with a view to strengthening the
trustworthiness of the evidence. Such a TIP then provides corroboration to
the witness in the court who claims to identify the accused persons
otherwise unknown to him. Test identification parades, therefore, remain
in the realm of investigation.
47. The Code of Criminal Procedure does not oblige the
investigating agency to necessarily hold a test identification parade nor is
there any provision under which the accused may claim a right to the
holding of a test identification parade. The failure of the investigating
agency to hold a test identification parade does not, in that view, have the
effect of weakening the evidence of identification in the court. As to what
should be the weight attached to such an identification is a matter which
the court will determine in the peculiar facts and circumstances of each
case. In appropriate cases the court may accept the evidence of
identification in the court even without insisting on corroboration.
15. The identification of the accused for the first time in Court though is
a substantive piece of evidence, but in absence of any T.I.P., the veracity of
such identification has to be sourced out by looking at other corroborative
piece of evidence. It is not a case where the police had not taken any
endeavour to hold the T.I.P. after the accused persons were apprehended,
but the witnesses refused to attend such T.I.P. as according to P.W. 7 they
were in a state of terror. As indicated above, out of four eye witnesses, P.W.
3 has failed to identify any of the accused persons. The evidence of P.W. 2
cannot be clinching in nature as he and P.W. 3 were in the same room and
both have given different versions regarding the identification of the
accused. So far as P.W. 1 is concerned, he has identified Manoj Toppo and
Bablu Lakra by virtue of their physical description, but it would be
imprudent to rely on such identification. The evidence of P.W. 5 who is an
eye witness does not state with certainty regarding the identification of the
accused. In such background facts, it would be unreliable to convict the
accused. The learned trial court has primarily relied upon the evidence of
P.W. 2 and P.W. 5 who had stated that it was a moon lit night and therefore
doubt cannot be raised about the identification of the accused by the said
witnesses. It has considered " bits and pieces" of the evidence of the
witnesses and not the totality of their version which as noted above has
generated varied contradictions and which cannot form the basis of
conviction u/s 302 I.P.C. We must state herein that we also cannot be
oblivious to the probability of the witnesses having seen the appellants
earlier as they have been examined after more than one year from the date
of the incident.
16. The appellants also seem to have been convicted u/s 27 of the Arms
Act. The basis for conviction is the recovery of firearm and cartridges on the
confession of the appellant Pawan Lakra. Learned trial court has relied upon
the evidence of P.W. 8 who had identified his signature in the seizure list.
The learned trial court has also taken note of the report of the Sergeant Major
as attached with the case diary.
In his cross examination P.W. 8 has stated that he had put his
signature on blank papers. Such seizure therefore becomes doubtful. So far
as the Sergeant Major is concerned, neither he has been examined nor the
report submitted by him exhibited. In fact the Investigating Officer (PW 7)
was not even confronted with any question regarding such report. Such
circumstances render the seizure of arms and cartridges doubtful.
In this context it would be profitable to refer to the judgment of the
Hon'ble Supreme Court in the case of Mahabir Singh and others v. State of
Haryana reported in (2001) 7 SCC 148 and the relevant paragraphs for the
purposes of the present case are quoted herein below:-
13. If a Public Prosecutor failed to get the contradiction explained
as permitted by the last limb of the proviso to Section 162(1) of the Code,
is it permissible for the court to invoke the powers under Section 172 of the
Code for explaining such contradiction? For that purpose we may examine
the scope of Section 172 of the Code. That section deals with the diary of
proceedings in investigation. Sub-section (1) enjoins on the investigating
officer to enter in a diary the time at which he began and the place or places
visited by him during the course of investigation. Such entries should be
made on a day-to-day basis. Sub-sections (2) and (3) of Section 172 read
thus:
"172. (2) Any criminal court may send for the police diaries of a
case under enquiry or trial in such court, and may use such
diaries, not as evidence in the case, but to aid it in such enquiry or
trial.
(3) Neither the accused nor his agents shall be entitled to call for
such diaries, nor shall he or they be entitled to see them merely
because they are referred to by the court; but, if they are used by
the police officer who made them to refresh his memory, or if the
court uses them for the purpose of contradicting such police officer,
the provisions of Section 161 or Section 145, as the case may be, of
the Indian Evidence Act, 1872 (1 of 1872), shall apply."
14. A reading of the said sub-sections makes the position clear that
the discretion given to the court to use such diaries is only for aiding the
court to decide on a point. It is made abundantly clear in sub-section (2)
itself that the court is forbidden from using the entries of such diaries as
evidence. What cannot be used as evidence against the accused cannot be
used in any other manner against him. If the court uses the entries in a
case diary for contradicting a police officer it should be done only in the
manner provided in Section 145 of the Evidence Act i.e. by giving the
author of the statement an opportunity to explain the contradiction, after
his attention is called to that part of the statement which is intended to be
so used for contradiction. In other words, the power conferred on the court
for perusal of the diary under Section 172 of the Code is not intended for
explaining a contradiction which the defence has winched to the fore
through the channel permitted by law. The interdict contained in Section
162 of the Code, debars the court from using the power under Section 172
of the Code for the purpose of explaining the contradiction.
17. We must also indicate herein that so far as the blood stained Farsa is
concerned, the same could not undergo a serological test as the blood
detected was too little for carrying out such test as stated by P.W. 9 and
therefore the Farsa cannot be ascertained to be one of the weapons used in
the commission of the murder.
18. On consideration of the aforesaid facts, we come to the conclusion that
the prosecution has miserably failed to prove its case beyond all reasonable
doubts against the appellants u/s 302/34 I.P.C. and u/s 27 of the Arms Act.
We accordingly, set aside the judgment and order of conviction and
sentence dated 30.03.2015 (sentence dated 04.04.2015) passed by Sri
Yogeshwar Mani, learned Additional Judicial Commissioner-XII, Ranchi in
S. T. Case No. 285 of 2012, whereby and whereunder, the appellants have
been convicted for the offences punishable u/s 302/34 of the Indian Penal
Code and Section 27 of the Arms Act and sentenced to rigorous
imprisonment (R.I.) for life along with a fine of Rs. 10,000/- for the offence
punishable u/s 302/34 I.P.C. and R.I. for three years along with a fine of Rs.
3,000/- for the offence punishable u/s 27 of the Arms Act.
19. These appeals are allowed.
20. Since the appellants in Cr. Appeal DB No. 638 of 2016 and Cr. Appeal
DB No. 1374 of 2016 are in custody, they are directed to be released
forthwith, if not wanted in any other case. So far as the appellant Manoj
Toppo in Cr. Appeal DB No. 288 of 2016 is concerned, since he is on bail, he
is discharged from the liability of his bail bond.
(RONGON MUKHOPADHYAY,J.)
(SANJAY PRASAD, J.)
Jharkhand High Court, Ranchi
Dated the 9th February, 2022
MK/N.A.F.R.
