Mansa Lohar vs The State Of Jharkhand
2023 Latest Caselaw 756 Jhar

                Criminal Appeal (D.B.) No. 916 of 2013
                                 with
                Criminal Appeal (D.B.) No. 584 of 2012
                                 with
                Criminal Appeal (D.B.) No. 668 of 2012
                                 with
                Criminal Appeal (D.B.) No. 723 of 2012
    [Against the judgment of conviction dated 13.04.2012 and order of sentence
    dated 17.04.2012 passed by Sri Ranjeet Kumar Choudhary, learned Additional
    Sessions Judge-II, Jamshedpur in S.T. Case No. 79 of 2009, S.T. Case No. 80
    of 2009 and S.T. Case No. 81 of 2009]
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Mansa Lohar ... Appellant (In Criminal Appeal (D.B.) No. 916 of 2013) Sanjay Prasad @ Munna Chamar @ Munna Ram ... Appellant (In Criminal Appeal (D.B.) No. 584 of 2012)

1. Kishan Mukhi @ Krishan Mukhi @ Kishun Mukhi

2. Sunil Kumar Verma ... Appellants (In Criminal Appeal (D.B.) No. 668 of 2012) Satish Prasad @ Satish Langra ... Appellant (In Criminal Appeal (D.B.) No. 723 of 2012)

Versus The State of Jharkhand ... ... Respondent (In all cases)

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For the Appellants : Mr. Rohit, Advocate (In Cr. Appeal (D.B.) No. 916 of 2013 & Cr. Appeal (D.B.) No. 723 of 2012) Mr. Indrajit Sinha, Advocate (In Cr. Appeal (D.B.) No. 668 of 2012) Mr. P.P.N. Roy, Senior Advocate (In Cr. Appeal (D.B.)No. 584 of 2012) For the State : Mr. B.N. Ojha, A.P.P (In all cases)

PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH

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15/13.02.2023 Heard Mr. Rohit, Mr. Indrajit Sinha and Mr. P.P.N. Roy, learned counsels and learned Senior Counsel appearing for the appellants in their respective cases as well as Mr. B.N. Ojha, learned A.P.P. for the State.

2. Since all these appeals arise out of a common judgment they are being disposed of by this common order.

3. These appeals are directed against the judgment of conviction dated 13.04.2012 and order of sentence dated 17.04.2012 passed by Sri Ranjeet Kumar Choudhary, learned Additional Sessions Judge-II, Jamshedpur in S.T. Case No. 79 of 2009, S.T. Case No. 80 of 2009 and S.T. Case No. 81 of 2009, whereby and whereunder the appellant Mansa Lohar and Satish

Prasad @ Satish Langra have been convicted for the offences punishable u/s 302 of the IPC and Section 27 of the Arms Act and they have been sentenced to undergo R.I. for life along with a fine of Rs. 10,000/- for the offence u/s 302 of the IPC and R.I. for 03 years for the offence punishable u/s 27 of the Arms Act along with a fine of Rs. 5000/-. The rest of the appellants have been convicted for the offence punishable u/s 302/34 of the IPC and have been sentenced to undergo R.I. for life along with a fine of Rs. 10,000/-. In default of payment of fine imposed for the offence punishable u/s 302 of the IPC all the appellants have to undergo S.I. for 06 months and in default of payment of fine for the offence punishable u/s 27 of the Arms Act, the appellant Mansa Lohar and Satish Prasad @ Satish Langra have to undergo S.I. for 04 months. All the sentences are to run concurrently.

4. The prosecution story in brief is that the informant Mithilesh Pandey had left his house on 29.03.2008 at 8:00 A.M. for the house of his friend Buchu Ghosh and reached at about 8:30 A.M. After having tea, he left with Buchu Ghosh in the Bolero of Buchu Ghosh at 9:00 A.M. to Ramnagar and on reaching started supervising the newly constructed house of Buchu Ghosh. In the meantime, their common friend Raja Chakrabarty who stays at Parsudih came and started conversing with Buchu Ghosh regarding some work. At about 9:20 A.M. all of them went near Road No. 6 where construction of another building was going on. As soon as they reached near Road No. 6, six persons in three motorcycles came and Krishna Rao, Deepak Munda, Mansa Lohar, Munna Ram, Nimai Chandra Agrawal, Satish Langra and Sunil Verma were amongst them. He could also identify Kishun Mukhi. About 03 days back Dablu Seth @ Dablu Agrawal was following him and Buchu Ghosh on a scooter. It has been alleged that Munna Ram throw a bomb on Buchu Ghosh and both Buchu Ghosh and Raja Chakrabarty fell down injured. It has also been alleged that Krishna Rao with a pistol had fired at Buchu Ghosh

and Mansa Lohar fired at the stomach of Buchu Ghosh. Nimai Chandra Agrawal made indiscriminate firing upon Raja Chakrabarty. Deepak Munda and Satish Langra had also fired at Buchu Ghosh and Raja Chakrabarty. It has been alleged that previously also Laltu Mahto and Dhananjay Chalak had threatened Buchu Ghosh with dire consequences if they were not given any work by him.

Based on the aforesaid allegations Kadma P.S. Case No. 34/2008 was instituted for the offences punishabe u/s 302, 120B/34 of the I.P.C. and Section 27 of the Arms Act against Krishna Rao, Deepak Munda, Mansa Lohar, Munna Ram, Nimai Chandra Agrawal, Satish Langra, Sunil Verma, Kishun Mukhi, Dablu Seth @ Dablu Agrawal and others. The Police had submitted three separate charge-sheets and after cognizance was taken the cases were committed to the Court of Sessions where separate Sessions Trial were registered being S.T. Case No. 79 of 2009, S.T. Case No. 80 of 2009 and S.T. Case No. 81 of 2009. All the Sessions Trials were amalgamated and tried together. Charge was framed against the accused persons for the offences punishable u/s 302/34 of the IPC while charge was framed against Mansa Lohar and Satish Prasad u/ 27 of the Arms Act and against Munna Ram @ Munna Chamar u/s 3 of Explosive Substance Act which was read over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried.

5. The prosecution has examined as many as 12 witnesses in support of its case.

6. P.W.1 (Sapan Sao) did not support the case of the prosecution and was declared hostile by the prosecution.

7. P.W.2 (Tape Singh) has stated that the incident is of 29.03.2008 at about 9:00-9:15 A.M. He was in his house having breakfast when all of a sudden he heard an explosion at Road No. 6 at which he came out and saw people running helter skelter. When he reached about 500 feet from his house he saw a person

squirming whose name was Raja. About 10 feet away another person was squirming whom he could recognize as Buchu Ghosh. He was unconscious and there were injuries on his body. He has stated that Pappu Singh had thereafter come with a vehicle and with the help of Mithilesh, Buchu Ghosh was taken to the hospital. At that point of time, he had seen 4-5 persons running towards the river. He claims to identify two of the said persons and he pointed towards Mansa Lohar and stated that he was one of the persons running.

In cross-examination, he has deposed that after one minute from the time he reached the place of occurrence Pappu and Mithilesh had also reached the place of occurrence. Pappu and Mithilesh had come almost at the same time. Pappu Singh had come with a car while Mithilesh had come on a motorcycle. He has stated that the house of Mithilesh is at a distance of 5-6 kilometer from the place of occurrence. The accused whom he had identified in Court was not identified by him in Test Identification Parade.

8. P.W.3 (Pappu Singh @ Mukesh) has stated that the incident is of 29.03.2008 at around 9:15 A.M. He was going out from his house on a Tata Safari vehicle when Mithilesh Pandey called him and asked him to come to Road No. 6 as an attempt on the life of Buchu Ghosh has been made. He speedily drove his car and reached the place of occurrence where he found Raja Chakrabarty lying besides the road and Buchu Ghosh was also lying at about 8-10 feet from him. Both had injuries and blood was oozing out. He thereafter saw 5-7 persons running away by discussing that the work has been done. He had identified Munna Ram, Kishun Mukhi, Sunil Verma, Mansa Lohar and Satish. He and Mithilesh had thereafter put Buchu Ghosh on his vehicle and took him to T.M.H where doctors declared him dead. He has stated that Buchu Ghosh had an enmity with the accused persons with respect to a Plot in Road No. 2 and he was threatened not to

interfere otherwise he will be done to death. He has identified Sunil Verma, Munna Ram, Mansa Lohar and Satish in Court.

In cross-examination, on behalf of all the accused persons except Kishun Mukhi he has deposed that Buchu Ghosh used to do the business of liquor. Buchu Ghosh had several times gone to Jail. This witness had also gone to Jail in a murder case. He has stated that he is acquainted with Mithilesh Pandey for the last 5-6 years. When he had reached the place of occurrence there were no vehicles at the said place. He knows Tape Singh whom he had seen at the place of occurrence. He had not witnessed the occurrence. He knew Raja Chakrabarty for about 3-4 months. He had not told the Police that 5-7 persons including Munna, Kishun Mukhi, Sunil Verma, Mansa Lohar and Satish Langra were fleeing away. He had also not told the Police that the persons who were fleeing away were saying that the work has been done. He knows that Mithilesh Pandey had also gone to Jail.

In cross-examination, on behalf of Kishun Mukhi, he has deposed that at the place of occurrence he could not find empty cartridges or splinters of bomb.

9. P.W.4 (Shankar Rao) has stated that he was informed by Pappu Singh over phone that Buchu Ghosh has been murdered. Pappu had stated that Kishun Mukhi, Munna Chamar, Mansa Lohar, Krishna Rao, Satish Langra, Sunil Verma and Ramdas Pramanik had committed the murder. Buchu Ghosh had an enmity with the said persons. He has stated that Buchu Ghosh was a property dealer. After the incident of murder the body was taken to the hospital. At the hospital, he had received a call on his mobile from Krishna Rao who admitted to have murdered Buchu Ghosh.

In cross-examination, he has deposed that he had reached the place of occurrence after the incident. This witness had also gone to Jail in the murder case of Banti Rajak.

10. P.W.5 (Ganesh Mahali) has stated that on the date

of the incident he was in his house when he was informed by Pappu Singh that there has been a fight between Buchu Ghosh and Raja Chakrabarty with Krishna Rao, Mansa Lohar, Kishun Mukhi, Sunil Singh, Munna Chamar, Ramdas Pramanik and Satish Langra. On receiving this information, he had gone to Road No. 6 where he found Buchu Ghosh and Raja Chakrabarty lying on the ground drenched in blood. He had seen the persons named by Pappu Singh fleeing away towards the river. Both the injured died at the place of occurrence itself. He has stated that the dispute was with respect to the land dealings and a threatening was given by the accused persons.

In cross-examination, he has deposed that Buchu Ghosh used to do the business of country made liquor and several times he had gone to Jail. This witness had also admitted that on several occasions he had gone to Jail in various cases including a case of murder. He has deposed that Mithilesh Pandey was the Supervisor of Buchu Ghosh. He had told the Police that he had seen the accused persons fleeing away towards the river. He had taken Buchu Ghosh to T.M.H. and Munna Dey, Shankar Rao, Mithilesh Pandey, Pappu Singh and others were also present at T.M.H.

11. P.W.6 (Munna Ghosh) has stated that on 29.03.2008 at around 9:00-9:15 A.M. his brother Buchu Ghosh had called him over phone after which he went to Ramnagar. He saw near the main road Pappu Singh speedily going towards Road No. 6 on his Safari vehicle. He also followed Pappu Singh on his Sumo vehicle and at the place of occurrence he saw Buchu Ghosh and Raja Chakrabarty lying in the ground. Their wounds were inflicted by bombs and gun fire. He had seen Kishun Mukhi, Mansa Lohar, Munna Raja, Krishna Rao, Satish Langra and Sunil Verma fleeing away from the place of occurrence by saying that the work has been done. Shankar Rao and his brother Kallu had followed them but they managed to escape. His brother and Raja

Chakrabarty were taken to T.M.H. but they were declared dead. There was a business dispute between Buchu Ghosh and the accused persons.

In cross-examination, he has deposed that he had gone to Jail 2-4 times. He had stated before the Police that he had seen Kishun Mukhi, Mansa Lohar, Munna Ram, Krishna Rao, Satish Langra and Sunil Verma fleeing away and they were discussing that the work has been done and Buchu is now dead. In 1998 also Krishna had fired at Buchu Ghosh for which a case was instituted. He had not witnessed the occurrence but had seen the accused persons fleeing away.

12. P.W.7 (Mithilesh Pandey) is the informant of the case. This witness has deposed that the incident is of 29.03.2008 at about 9:00-9:15 A.M. He had gone to the house of Buchu Ghosh at 8:30 A.M. and from their both had gone to Ramnagar in the Bolero of Buchu Ghosh to look after the construction work of a house. After sometime, Raja Chakrabarty had come and both started talking. This witness was asked to inspect the Cement godown thereafter they had gone to the second construction site at Road No. 6. When they reached at the said place, he saw Munna Ram and Kishun Mukhi throw something upon Buchu Ghosh. He thought that it was a bomb which was thrown. He thereafter saw Buchu Ghosh and Raja Chakrabarty squirming. He has further stated that six persons on three motorcycles came and Krishna Rao, Mansa Lohar, Sunil Verma, Satish Prasad and Ramdas Pramanik could be identified. They had fired at Buchu and Raja. This witness was shouting to save the victims. He has stated that Kishun Mukhi had fired at Raja Chakrabarty and Kishun was saying that no one should be spared. He had called up Pappu. Munna Ghosh also reached the place of occurrence and he had disclosed to him about the incident. He has further stated that about fifteen days prior to the incident some persons had come to the office of Buchu Ghosh and a quarrel had taken place which

was the cause of the incident. Both the injured were taken to T.M.H where they were declared dead. He has proved his signature on the written report which have been marked as Exhibit-1 and 1/1.

In cross-examination, he has deposed that he used to work with Buchu Ghosh. Buchu Ghosh used to be a land dealer. This witness had earlier gone to Jail. He had not seen any splinters of bomb or empty cartridges. He had not stated in his written report that he had seen Munna Ram and Kishun Mukhi throwing something upon Buchu. He had also not stated in the written report that when he had shouted for help, Kishun was saying that no one should be spared and he had fired at Raja. He had stated in his statement that Nimai Chandra Agrawal had indiscriminately fired upon Buchu Ghosh and Raja Chakrabarty. He had also stated that Laltu Mahto and Dhananjay Chalak had earlier threatened Buchu Ghosh that he shall face dire consequences if they are not given work. The accused persons did not commit assault upon him. He had not stated in his written report that Pappu and Munna had come to the place of occurrence. At the time when firing was made and bombs exploded no one was present. Even on hearing the sound of bombs and pistols the labourers working in the construction site did not appear.

13. P.W.8 (Kallu Ghosh) is the elder brother of the deceased Buchu Ghosh. He has stated that Buchu Ghosh used to supply sand, bricks etc. On 29.03.2008 at 9:00 A.M. his elder brother Munna Ghosh called him over phone and asked him to come to Road No. 6, Ramnagar to inspect a land. When he reached the said place he saw a crowd having gathered. He saw Buchu Ghosh squirming. He had also seen Kishun Mukhi, Munna Ram, Sunil Verma, Satish Prasad, Mansa Lohar and some Pramanik who he knew and all were coming and conversing that the work has been done. Both the injured were taken to the hospital where they were declared dead.

In cross-examination, he has deposed that he had twice gone to Jail, his brother Buchu Ghosh had several times gone to Jail. His brother had called him over phone but never said that an incident of assault had taken place. He had not witnessed the firing but had seen the accused persons fleeing away.

14. P.W.9 (Dr. Lallan Choudhary) was posted as an Assistant Professor in the Department of Forensic medicine MGM College, Jamshedpur and on 29.03.2008 he had conducted autopsy on the dead body of Rajiv Chakrabarty and had found the following:

(A) Explosive lacerated wounds-

(i) 19 cm x 19.5 cm x muscle deep area left side back of chest 17 cm below left shoulder. Containing 5 cm x 12 cm x chest cavity deep 4 cm x 6 cm x chest cavity deep and 6 cm x 6 cm muscle deep.

(B) Explosive burns superficial wounds with blackening over surface.

(i) 2.5 cm linear over right phalanx of back of abdomen.

(ii) 5 cm x 3 cm surrounded by bruise 9 cm x 6 cm over back of left arm lower part.

(iii) 2.5 cm linear area outea expect of left elbow.

(iv) 13 cm x 5 cm are left fore arm back. (C) Fire Arms wound of 3 cm x 1.8 cm x bone deep over occipital region. A metallic bullet recovered embedded in the wound. The proximal part deformed. Length is 3.3 cm and circumference 2.5 cm.

(D) Abrasion 1.5 cm x 4 cm just above right eyebrow.

Internal examination on dissection:-

Occipital bone fractured 3 cm x 1 cm, left and right lobe posterior part of brain contused 9 cm x 15 cm with laceration of size 1 cm x 1 cm x 0.5 cm posterior part of right lobe of brain. Inner table of occipital bone fractured 4 cm x 2 cm. Spleen ruptured.

The cause of death was opined to be due to haemorrhage and shock. Injuries in (A) (B) and spleen caused by explosive agent. Injury no. (C) and brain caused by firearms and

injury no. (D) was caused by hard and blunt object. He has proved the postmortem report which has been marked as Exhibit-2.

15. P.W.10 (Dr. J. Sri Niwas Rao) was posted as a tutor in the Department of Forensic Medicine MGM, College, Jamshedpur and on 29.03.2008 he had conducted autopsy on the dead body of Buchu Ghosh and had found the following:

(i) (A) Firearm wound of enterance 8 cm x 6 cm x original cavity deep over left back of the head 3 cm above and posterior of left ear, and 13 cm above upper above border of nape/neck, with blackening of surrounding tissues and bone with projection of brain matter, tith corresponding ward of exit of 2 cm x .7 cm over right front of the head 3.2 cm above right brow and 5.5 cm anterior to right ear coming its cause, bullet entered through of left side of headcontusing lacerating left posterior parietal & occipital region of scalp, fracturing parietal and occipital bone of skull, lacerating and contusing brain and then exit out from right frontal region of head. Bullet missing (fracture of right frontal and temporal bone).

(B) Fire arm wound of enterance 3 cm x 1 cm over lower back of neck left side, 8 cm below occipital and 2.5 cm left lateral to vertebral column, with surrounding tattooing over area of 20 cm x 8 cm over upper part of the chest and neck back. During its course bullet entered through back of the neck contusing. Lacerating underlying soft tissue muscle blood vessels travels from back to front of neck fracturing with cervical vertebra the bullet recovered from soft tissue of left side of neck just above just above left collar bone medial end. Size of bullet 3.2 cm, dia x 2.5 cm. This was preserved, sealed and handed over to the Police. Head deformed:-

(ii) Bomb explosion injuries:-

(A) Laceration 4 cm x 3 cm with surrounding multiple explosion wound marks with blackening over an area of 22 cm x 16 cm over front upper part of abdomen (21 cm and 7 cm above iliac spine) (B) Splintea mark over an area of 24 cm x 10 cm - Over front of the thigh upper and middle part.

(C) Laceration 2.5 cm x 1.5 cm over front middle of abdomen 15½ cm above anterior illiac spine and 13 cm left lateral to umbilicus.

(D) Multiple tiny superficial burns due to

explosive over right and left side of the front chest left arm, left fora and elbow.

It was opined that all the injuries were antemortem in nature and injury no. (i) was caused by firearm while injury no. (ii) by bomb explosion. The cause of death was on account of haemorrhage and shock. He has proved the postmortem report of Buchu Ghosh which has been marked as Exhibit-3.

16. P.W.11 (Raju Srivastav) has stated that it was a Saturday and the year was 2009 when Raja Chakrabarty came to him and told him to accompany him to Bachu Ghosh to collect his emoluments as he has done some civil works. Both had gone to the house of Buchu Ghosh at Ramnagar where his staff stated that Buchu Ghosh has gone to the site for some measurement work. Both of them reached the site where they found (4-5) persons present. After about 10 minutes somebody called on his mobile to whom Buchu Ghosh was abusing and he thereafter left on his motorcycle with Raja Chakrabarty and this witness. After going for some distance, he was asked by Buchu Ghosh to go to his house with an assurance that he will return within 10-15 minutes. He has stated that after about 15 minutes somebody called on Sapan the staff of Buchu Ghosh informing him that Buchu Ghosh has been shot. Immediately on coming to know about the same he rushed to the place of occurrence where he saw Buchu Ghosh being taken on a Safari vehicle to T.M.H. by some local persons. Raja Chakrabarty was squirming and ultimately he was taken on a Tempo to T.M.H.

In cross-examination, he has deposed that he does not know Pappu Singh and Tape Singh.

17. P.W.12 (Amarjeet Prasad) was the Officer-in-Charge of Kadma P.S. and on 30.03.2008 he had taken over investigation from Sub-Inspector Ranjeet Roshan. He has proved the formal First Information Report which has been marked as Exhibit-4. In course of investigation he had recorded the statements of Munna Ghosh, Kallu Ghosh, Sapan Sao, Pappu Singh, Ganesh Mahli,

Shankar Rao, Raju Srivastava and Tape Singh. He had amongst the accused Mansa Lohar, Krishna Rao, Deepak Munda, Ramdas Mukhi, Sunil Verma, Munna Chamar arrested Satish Langra and Deepak Munda had surrendered in Court. On his transfer he had handed over the investigation to Sub-Inspector Manoj Kumar Gupta.

In cross-examination, he has deposed that Tape Singh had never stated that he had seen five persons speedily running towards the river. Pappu Singh @ Mukesh had never stated before him that the persons he had seen were discussing that the work has been done. Pappu had also not stated that Kishun Mukhi used to give threats of doing away with the life of Buchu Ghosh. In his statement Shankar Rao had never disclosed that Pappu had confided in him the names of the persons who had committed the murder of Buchu Ghosh and Raja Chakrabarty. He had stated that Ganesh Mahli had disclosed to him about the name of the accused. Munna Ghosh had never stated that Kishun Mukhi, Mansa Lohar, Shankar Rao, Satish Langra and Sunil Verma were fleeing away while saying that the work has been done. None of the witnesses whose statements were recorded by him are eye-witnesses.

18. The statements of the accused persons were recorded u/s 313 Cr.P.C. and all have denied about their participation in the murder.

19. The defense has examined one witness.

20. D.W.1 (Dr. Ranjan Nayak) has stated that Sanjay Kumar was admitted in his hospital on 25.03.2008 as he was suffering from fever, malaria and abdominal pain. He has proved the OPD slip which has been marked as Exhibit-A. Sanjay Kumar was discharged on 02.04.2008. He has proved the discharge ticket which has been marked as Exhibit-B. The prescription written and signed by him has been marked as Exhibit-C.

In cross-examination, he has deposed that he had

not treated anyone named Munna. He does not know as to whether Munna and Sanjay are different persons.

21. It has been submitted by Mr. Rohit, learned counsel for the appellants in Cr. Appeal (D.B.) No. 916 of 2013 and Cr. Appeal (D.B.) No. 723 of 2012 that there are no eye-witnesses to the occurrence. It has been submitted that the informant (P.W.7) and the other witnesses have improved their version during trial as none of the witnesses had stated about seeing the appellants and other accused persons fleeing away towards the river by discussing among themselves that the work has been done. This would appear from the evidence of the Investigating Officer (P.W.12.) Elaborating on such submissions, Mr. Indrajit Sinha, learned counsel for the appellant in Cr. Appeal (D.B.) No. 668 of 2012 has referred to the testimony of P.W.2 who has stated that he was the first person to reach the place of occurrence and after one minute Pappu Singh (P.W.3) and Mithilesh Pandey (P.W.7) had reached which demolishes the claim of P.W.7 of witnessing the incident as P.W.2 had claimed so and had only seen some of the persons running away. Mr. Sinha, had submitted that as per P.W.2, P.W.3 and P.W.7 had reached the place of occurrence after him but though P.W.7 has stated about the incident of throwing bombs and firing at the deceased by the accused persons but Pappu Singh (P.W.2) had categorically stated that he had not witnessed the incident.

Mr. P.P.N. Roy, learned Senior Counsel for the appellant in Cr. Appeal (D.B.) No. 584 of 2012 has apart from pointing out the contradictions in the evidence of P.W.2, P.W.3 and P.W.7 which has been noted above and which denudes the prosecution case of any eye-witnesses has relied upon the evidence of the Investigating Officer (P.W.12) as before him most of the material witnesses had not stated about seeing the accused persons fleeing away. Mr. Roy, has also stressed on the plea of alibi by placing reliance upon the evidence of D.W.1.

22. Mr. B.N. Ojha, learned A.P.P. has opposed the submissions advanced by the learned counsels / Senior Counsel of the appellants and has stressed on the evidence of P.W.7 which according to him leaves no room for doubt about the complicity of the appellants in committing the murder of Buchu Ghosh and Raja Chakrabarty. The allegations against the appellant is corroborated by the postmortem reports as the injuries sustained by the deceased were on account of firearm and explosion of bomb.

23. We have heard the learned counsels/learned Senior Counsel for the respective sides and have also perused the Lower Court Records.

24. From the written report of P.W.7 what transpires is an assault upon Buchu Ghosh and Raja Chakrabarty by the accused persons initially by throwing a bomb and injuring them and thereafter ensuring their demise by firing at them. The learned trial court while convicting the appellants has primarily relied upon two factors; the first being the evidence of P.W.7 who claimed to have witnessed the entire incident and the evidence of P.W.2, P.W.3, P.W.5, P.W.6 and P.W.8 who had either seen the accused persons fleeing away towards the river or while running away conversing that the work has been done. Since the evidence of P.W.7 is the plank upon which the prosecution case is based we would consider the said evidence to demonstrate as to whether any frailties appear in such testimony or not. The written report of P.W.7 reveals that at the place of occurrence this witness along with Buchu Ghosh and Raja Chakrabarty were present when six persons riding on three motorcycles came and the appellant Munna Ram threw a bomb at which Buchu Ghosh and Raja Chakrabarty fell on the ground in an injured condition. This was followed by the appellants Kishun Mukhi and Mansa Lohar firing at them and Nimai Chandra Agrawal making indiscriminate firing resulting in the death of both Buchu Ghosh and Raja Chakrabarty.

P.W.7 was present with the deceased but it seems that he had not received any injuries. In his testimony during trial P.W.7 has stated that no one else were present there which would mean that this witness, the deceased and the accused were the only persons present. His evidence, therefore, discounts the presence of P.W.2 and P.W.3 at the place of occurrence. When we peruse the testimony of P.W.2 we find that he had reached the place of occurrence prior to P.W.7 as according to him P.W.3 and P.W.7 had reached after him after a minute. P.W.2 has not stated about witnessing the incident of firing and throwing of bombs. He had seen 4-5 persons running towards the river and he could identify only two of them. However, P.W.12 has stated that P.W.2 had not given any statement to the effect that he had seen some persons running towards the river. The presence of P.W.2 has even been acknowledged by P.W.3. in his cross-examination, though as per P.W.3 it was P.W.7 who had called him and disclosed that an attempt on the life of Buchu Ghosh has been made at Road No. 6. This disclosure by P.W.7 to P.W.3 would also not ensure that P.W.7 had witnessed the entire incident. The evidence of P.W.3 that he had seen the accused who were discussing that the job has been done has not been stated before P.W.12. Thus there appears to be an improvement in the version of P.W.2 and P.W.3 during trial.

25. The testimony of P.W.2, P.W.3 and P.W.7 leaves no room for doubt about their presence at the place of occurrence but mere presence would not elevate their status to that of an eye- witness. P.W.7 whose testimony the prosecution has banked upon seems to have remained not only uncorroborated but in view of what has been stated by P.W.2 has also fallen from the pedestal of a trusted and reliable witnesses. Even P.W.12 has admitted that none of the witnesses examined by him were eye-witnesses.

The other factor which also seems to be of some importance is the fact that though it is alleged that several of the accused persons had made indiscriminate firing upon the deceased

but the injury sustained by the deceased as per the postmortem report is not supportive of the said fact.

26. The learned trial court has erred in overtly relying upon the evidence of P.W.7 though the evidence of the other witnesses have created fissures in the evidence of P.W.7 and such testimony, therefore, cannot be relied upon for securing the conviction of the appellants.

27. As a consequence to the discussions made hereinabove we set aside the judgment of conviction dated 13.04.2012 and order of sentence dated 17.04.2012 passed by Sri Ranjeet Kumar Choudhary, learned Additional Sessions Judge-II, Jamshedpur in S.T. Case No. 79 of 2009, S.T. Case No. 80 of 2009 and S.T. Case No. 81 of 2009.

28. Since the appellant Mansa Lohar in Cr. Appeal (D.B.) No. 916 of 2013 is in custody he is directed to be released forthwith, if not, wanted in any other case.

29. So far as the appellants in Criminal Appeal (D.B.) No. 584 of 2012, Criminal Appeal (D.B.) No. 668 of 2012 and Criminal Appeal (D.B.) No. 723 of 2012 are concerned, since they are on bail they are discharged from the liabilities of their bail bonds.

30. All the appeals are allowed.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

High Court of Jharkhand at Ranchi Dated, the 13th day of February, 2023.

Alok/NAFR