Jharkhand High Court
Surendra Pandey vs The State Of Jharkhand on 14 January, 2022
1
Cr. Appeal (SJ) No. 1798 of 2003
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Appeal (SJ) No. 1798 of 2003
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(Against the judgment of conviction dated 16.10.2003 and order of
sentence dated 22.10.2003 passed by the learned VIth Additional
District & Sessions Judge (Fast Track Court), Palamau at Daltonganj in
Sessions Trial No. 44 of 1990 arising out of Chainpur P.S.case no. 32 of
1989 Palamau at Daltonganj at Jharkhand.)
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Surendra Pandey ... Appellant
Versus
The State of Jharkhand ... Respondent
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CORAM: HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellant : Mr. Pankaj Kumar, Amicus Curiae
For Respondents : Mr. Ashok Kumar, A.P.P.
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HON'BLE MR. JUSTICE NAVNEET KUMAR
CAV on 07.01.2022 Judgment Pronounced on 14.01.2022
1. This appeal has been preferred by the appellant against the
judgment of conviction dated 16.10.2003 and order of sentence dated
22.10.2003 passed by the learned VIth Additional District & Sessions
Judge (Fast Track Court) Palamau at Daltonganj in Sessions Trial No. 44
of 1990 whereby and whereunder the aforesaid appellant has been
convicted for the offence punishable under section 395 of IPC and has
been sentenced to undergo R.I. for a period of 8 years.
2. The prosecution case in brief is that the informant P.W. 3 -Fatima
Bibi stated before the police on 27.03.1989 at about 10.30 pm at Chainpur
Police station in the District of Palamau at Daltonganj alleging therein
that on the same date 27.03.1989 at about 8.30 pm when she along with
her two daughter namely Ashma (P.W.4) and Sazda Begum (P.W. 2)
were lying on bed, on seeing a man on her roof, she called Sarfoo, but in
the meantime the said accused person jumped in her courtyard and
opened the outer door of her house from inside providing opportunity to
nine other accused persons to enter inside the house. She further alleged
that the dacoits who jumped from her roof into her courtyard were
armed with gun to whom she identified as Bhola Singh.
Cr. Appeal (SJ) No. 1798 of 2003
She has also identified Surendra Pandey as one of the dacoit armed
with pistol. It is further alleged that the accused persons asked the
whereabouts of the articles and they also assaulted her. She also alleged
that the accused persons also assaulted Ashma and got knowledge of the
said articles which were kept for the marriage of her daughter Sazda.
It is further alleged that the said dacoits looted away a cash of Rs. 4000/-
and ornaments, clothes, utensils worth Rs. 10,000/- from her house.
It is further alleged that when the accused persons at the time of
returning opened fire on Ram Raj Mistry P.W.1 causing injury to him
thereafter the informant along with Ram Raj Sharma came to the police
station and got her statement recorded. It is also stated by the informant
that on the fateful night her husband Hazar Khan was away from his
house.
3. On the basis of aforesaid statement formal FIR was drawn by the
appellants and investigation of the case was commenced. After
completing of the investigation, the charge sheet was submitted and the
case was committed to the court of Sessions. The learned trial court
framed the charges against the accused appellant along with one another
accused Bhola Singh for the offence punishable u/s 395 IPC on 2.02.1993
and the trial of the case commenced. It appears from the record that the
co-accused Bhola Singh absconded during the course of the trial after
framing of the charge and the learned trial court has separated the trial
vide its order dated 14.05.2003 by splitting the record of this case vide
S.T. no. 44A/90 from the present appellant Surender Pandey.
4. After conclusion of the trial of the appellant, the learned trial court
has passed the impugned judgment of conviction and order of sentence
against the accused appellant which is under challenge.
5. Heard Mr. Pankaj Kumar, the learned counsel for the appellant
and Mr. Ashok Kumar, the learned A.P.P. for the State.
Arguments on behalf of the appellants:-
6. Assailing the impugned judgment of conviction and order of
sentence the learned counsel appearing on behalf of the appellant
submitted that the impugned judgment of conviction and order of
sentence is bad in law as well as on facts and as per the evidence of P.W.
Cr. Appeal (SJ) No. 1798 of 2003
2, P.W.3 and P.W. 4 the appellant Surendra Pandey and the co-accused
Bhola Singh were known to them from before as they used to visit their
house and they reside as their neighbor and often passes in front of their
house and according to their further evidence, the accused persons have
not covered their face but other accused persons were covered their face
which does not appear probable. It has also been pointed out by the
learned defence counsel that the P.W.1- Ramraj Sharma was injured and
had sustained injuries of gun shot on his leg by the accused persons but
the injury report of P.W. 1 i.e. Ext. 3/2 does not suggest the injury of fire
arm and according to the injury report, the injury was simple caused by
hard and blunt substance and thus the aforesaid injury report with
respect to the injuries of P.W. 1 falsified the prosecution case because it
is established that none of the miscreants had fired at him.
7. Further, the learned defence counsel has contended that the trial
court below has failed to consider that the P.W. 1 in his evidence
deposed that the informant had disclosed the name of dacoits in the
police station in which the name of the appellant and Bhola Singh had
come. It has further been pointed out that as per the evidence of P.W. 5
two women had sustained the injuries but neither the women had been
named in the FIR nor examined on behalf of the prosecution and
therefore, the injury report of second wife of Hazar Khan namely Mazida
Bibi suggest that all the injury reports were fabricated and moreover
Mazida Bibi has not been examined by the prosecution. The learned trial
court has erroneously rejected the defence of the appellants that there
has been inimical terms between both the parties and admittedly the
inimical evidence has not been appreciated by the learned trial Court in
the right perspective of the Court below and the learned trial court in this
regard has completely overlooked the evidence of P.W. 2 (daughter of
the informant) who in para 9 of her deposition stated that Sarfuddin
Mian was her neighbour with whom land dispute was going on and the
accused persons used to help Sarfuddin Mian and a suggestion was
given by the defense that because of the aforesaid reason, the accused
person has falsely been implicated in this case and no independent
witness has been examined on behalf of the prosecution to support the
Cr. Appeal (SJ) No. 1798 of 2003
case of the prosecution by which it is established that the appellant is
involved in the commission of the offence and further neither the I.O. nor
the Doctor has been examined in this case and hence the judgment of
conviction and order of sentence only on accusing the appellant by name
by the informant and her two daughters without any independent
corroboration when there is admitted enmity between the parties is fully
wrong and perverse and fit to be set aside.
Arguments on behalf of the State:-
8. On the other hand the learned A.P.P. appearing on behalf of the
State opposed the contentions raised on behalf of the appellants and
stated that the learned trial Court has rightly relied upon the evidences
available on record particularly the informant P.W. 3 and her two
daughters P.W. 2 and P.W. 4 and there is no legal point to interfere in the
impugned judgment of conviction and order of sentence and this appeal
is fit to be dismissed being devoid of merit.
FINDINGS
9. Having heard the learned counsel for the parties, perused the
record of the case including the Lower court records.
10. It is found that the accused person Surendra Pandey was known to
the informant from before as both the parties had been neighbour and
vide paras 9, 10, 11 & 12 by which it appears that the sole appellant
Surendra Pandey had been in inimical terms because in para 12, P.W. 2
categorically stated that the appellant Surendra Pandey had broken the
legs of the ox belonging to the informant people and there was a
panchayat to that effect in which a fine of Rs. 250/- was imposed but the
informant people wanted to a sum of Rs. 1,000/- which was not given
and, therefore, suggestion about the false implication due to false enmity
has been given to this witness P.W. 2. Further it has been pointed out in
para 6 in which this witness P.W. 2 stated that there had been electric
connection in their house but there was no supply of electric power at
the time of occurrence and the night was dark at the time of occurrence.
Subsequently, in para 7 she categorically stated that both the accused
Cr. Appeal (SJ) No. 1798 of 2003
persons including this appellant were known to him from before and
therefore possibility of their false implication cannot be ruled out when it
is admitted case of the prosecution that there was a dark and no power
supply at that time. Because none of the other miscreants have been
identified other than these two appellants who were known to the
informant people and both were acquainted with each other from before.
P.W. 1 Ram RaJ Sharma is said to have come out from his house after
hearing the noise (halla) and he sustained a gun-shot injury. From the
version of P.W. 1 Ram Raj Sharma it is found that he stated that he had
been inflicted gunshot injury but the injury reports indicated that the
injury of the P.W. 1 has been caused by hard and blunt substance and the
injury is simple in nature. The injury report of P.W.1 which has been
brought into evidence vide exhibit 3/2 falsified the deposition of this
witness P.W.1 inasmuch as no gun shot injuries have been found. Thus
the veracity of the testimonies of P.W. 1 is wholly doubtful and fit to be
discarded as unreliable. Further the injuries of other alleged injured vide
Exts. 3 and 3/1 are superficial and simple in nature and therefore even
then these injuries reports are not reliable documents, they did not
corroborate the case of prosecution.
11. Nevertheless the learned Trial Court has committed gross error in
the jurisprudence of law of evidence by admitting into the evidence
these injuries reports under section 294 of Cr.P.C. and as such the injury
reports (Ext.3 series) have not been brought on regard as a legally
admissible evidence as per the prescribed procedure. Neither the Doctor,
who had examined the injured and prepared the injury reports, have
been examined nor any other Doctor has been examined to prove the
injuries reports in order to appreciate the same into the evidences during
the course of their evaluation and the learned trial court illegally
exhibited these injuries reports on record as Ext. 3 series: Ext. 3/1, 3/2 &
3/3 under section 294 of the Code Of Criminal Procedure without formal
proof and relied upon them to corroborate the case of the prosecution
which is not tenable in the eyes of law.
12. The injury reports are not substantive evidence. They are only
medical examination reports which are prepared by the Doctor at the
Cr. Appeal (SJ) No. 1798 of 2003
time of examination of the injured and they are used to contradict or
corroborate. They become evidence only when the doctor is examined
and cross-examined in the court and says that he had examined the
injuries of the injured. His evidence will clearly give the opinion about
the nature of injury and also the weapons used or the manner of assault.
These are relevant things as corroborative piece of evidence to the oral
evidence of the witnesses. But these evidence (injury reports) can be
used only to contradict or corroborate the doctor. The injuries of the
victim may be noticed and observed even by a layman, but this layman
cannot give the opinion about the nature of injury and weapon used in
causing injury which is given by a doctor as an expert. Section 294
Cr.P.C. though provides for no formal proof of certain documents, but it
cannot take the place of the direct evidence of the doctor. The injury
report cannot be read in evidence unless the doctor is examined, subject
to exceptions provided under Section 32 of the Evidence Act. The Court
will have to consider the other evidence on the record if any help, at all,
is available, which may show the injuries, but that cannot become
substitute for the injury report in the absence of the examination of the
doctor barring the case covered by Section 32 of the Evidence Act. If, at
all, doctor is not easily available or not likely to come within reasonable
time and that there will be delay in the disposal of the case causing
harassment to the accused, then the injury report may be brought on the
record not under section 294 of Cr.P.C but it should be brought through
some person having technical knowledge of medical science and
jurisprudence or through some other doctor who may be able to answer
the questions put by the prosecution as well as the defence in respect of
the writings of the doctor of injury report.
Further, this witness P.W.1 has come to know about the name of
the appellant as offender from Fatima Bibi and he did not know them. In
para 13 this witness, P.W.3, has also disclosed that this accused was
known to her from before because they are the resident of the same
locality and she has also stated that her husband was not available on the
date of occurrence and on the date of occurrence he had gone to Latehar
court in connection of some cases. P.W. 4 is the daughter of the
Cr. Appeal (SJ) No. 1798 of 2003
informant who is also said to have present at the time of occurrence. In
para 5 this witness has categorically stated that both the accused persons
including this appellant Surendre Pandey were know from them from
before and he has been frequent visitor across her house and both were
known to her for long. P.W. 5 has been confronted with the earlier
statement. Since, the IO has not been examined in this case, the non-
examination of the I.O. has caused serious prejudice to the accused in the
present case inasmuch as the testimonies of P.W.1, P.W.2, P.W.3 and
P.W.4 are not in conformity with the allegations as made out in the FIR
as the accuse-appellant has been deprived of the opportunity to
effectively cross-examine the witnesses examined for the prosecution
and to bring out contradictions in their earlier statements before the
police. The examination of the I.O. is necessary in order to bring on
record the contradictions in the statement of witnesses and such a right
is a valuable right of the accused. Non-Examination of I.O. is a serious
infirmity in so far as it deprives the accused of an opportunity to show
that the witnesses were not reliable by proving contradictions in the
earlier statements particularly when the witnesses were only inimical
witnesses as in the present case.Thus the correctness of the statement of
the witnesses examined during the course of the investigation and
subsequently in the trial, particularly P.W.1, P.W.2, P.W.3, P.W.4 upon
which the learned trial court has relied upon, had not been tested by
cross-examining the Investigating Officer and since the learned Trial
Court has convicted the sole appellant relying upon the statements
P.W.1, P.W.2, P.W.3, P.W.4, the impugned judgment of conviction has
occasioned great miscarriage of Justice for the sole surviving Accused-
appellant due to non-examination of I.0.
13. Further it is found that P.W.6 Saiyad Naseem Haidher who is an
advocate clerk identified the formal FIR which is in the handwriting of
the then officer in charge of the police station and marked as Ext. 1 and
further he identified the para 10 of the case diary which is the
description of the place of occurrence and marked at the instance of this
witness as Ext. 2. In the cross examination this witness has categorically
stated that none of these documents was prepared or written before him
Cr. Appeal (SJ) No. 1798 of 2003
and he has no personal knowledge. Here also the non-examination of
the I.O. has caused serious prejudice in view of the fact that the place of
occurrence, the time and the date of occurrence have not been duly
proved rather the FIR has not been proved as per the prescribed
procedure as the FIR and the said para of the case diary has been
brought on record into evidence merely on the basis of the statement of
the advocate's clerk P.W.6 who has categorically stated in the cross
examination that he has no knowledge about the contents of the
documents and no personal knowledge about the incident. Therefore,
these documents vide Ext.1 and 2 have no evidentiary values in the eyes
of law and, therefore, the learned trial court has wrongly and erringly
relied upon these documents and convicted the accused appellants u/s
395 of IPC. This court is unable to understand that as to why the
prosecution did not choose to examine any police personnel. It may be
true that in spite of several steps taken, the prosecution could not
procure the attendance of I.O. who investigated the case and submitted
the Charge- Sheet. Thus the learned Trial Court has erroneously found
the appellant guilty for the charges imposed by the prosecution in
absence of cogent evidences and in absence of truthfulness of material
witnesses and as such not sustainable in the eyes of law.
14. Further, the veracity of the prosecution case also becomes
unbelievable because of the version of the witnesses the victim P.W. 3
along with P.W. 2 & 4 that only two offenders who were fully known to
the informant people have not covered their face while as per their
version the other miscreants/offenders have covered their face. This
version of the prosecution witness creates a doubt upon their reliability
and truthfulness inasmuch as this appellant is admittedly known to
them from before and inimical relationship had been persisting between
them as found from the testimonies of the prosecution witnesses as
discussed in the foregoing paragraphs. Further, learned defence counsel
by virtue of one supplementary affidavit has brought on record the facts
that a compromise has taken place in the light of the admitted facts that
this appellant was known to the informant and informant people from
before and there had been some dispute between them including the
Cr. Appeal (SJ) No. 1798 of 2003
informant herself and her two daughters as they have consistently and
uniformly deposed in their testimonies as discussed above. From the
perusal of the affidavit, it is found that the informant P.W. 3 Fatima Bibi
has asserted in her affidavit that due to intervention of the respectable
persons of the village she has now compromised the case with Surendra
Pandey, the appellant and she does not want to pursue this case. She has
also stated in the affidavit that she has not been pressurized and
threatened by Surendra Pandey-the appellant and she has put her thumb
impression on the compromise evidence. The photocopy of the notarized
affidavit from Daltonganj at Palamu has also been a part of the
supplementary affidavit by which it appears that the informant Fatima
Bibi has put her signature along with the appellant Surendra Pandey.
15. In view of the aforesaid findings and recapitulating the entire
evidences available on record as discussed elaborately in the foregoing
paragraphs, the impugned judgment of conviction and order of sentence
is found to be bad in law and fit to be set aside, accordingly in result the
judgment of conviction dated 16.10.2003 and order of sentence dated
22.10.2003 passed by the learned VIth Additional District & Sessions
Judge (Fast Track Court) Palamau at Daltonganj in Sessions Trial No. 44
of 1990 against the appellant Surendra Pandey for the offence punishable
u/s 395 of IPC, is set aside and appeal is allowed .
16. Since the appellant is on bail he is discharged from the liabilities of
the bail bond in this case.
17. Let the LCR be sent back to the concerned court forthwith with a
copy of this judgment.
(Navneet Kumar, J.)
Jharkhand High Court, Ranchi,
Dated the 14.01.2022/NAFR
MM/-
