Jharkhand High Court
State Of Jharkhand vs Santosh Singh on 27 February, 2023
Acquittal Appeal No. 4 of 2002
With
-1- Criminal Revision No.112 of 2002
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Acquittal Appeal No. 4 of 2002
(Against the Judgment of acquittal dated 19.12.2001, passed by the 1st
Additional Sessions Judge, East Singhbhum, Jamshedpur in Sessions
Trial No.578 of 1995).
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State of Jharkhand ... ... Appellant
Versus
1. Santosh Singh, son of Uday Narayan Singh, Resident of
Line No.9, House No.257, Kasidih, P.S. Sakchi, Jamshedpur,
District East Singhbhum.
2. Manoj Kumar Jaiswal, Son of Sheo Nath Pd. Jaiswal,
resident of Line No.6, Holding No.148, Kasidih, P.S. Sakchi,
Jamshedpur, District East Singhbhum.
3. Chandrwali Singh alias Chandra, Son of Ram Kishore
Singh, resident of Line No.171, Bhalubasa, P.S. Sitaramdera,
District East Singhbhum.
4. Mahesh Kumar Gupta alias Mama Son of Jugan Shah,
resident of Naya Tola Bakhtiarpur, Patna District Patna.
5. Bishu Chourasiya, son of Rama Kat Chaurasiya resident of
Line No.8 Kasidih, P.S. Sakchi, Jamshedpur, District East
Singhbhum.
6. Dilip Kumar, Son of Radha Kant, Resident of Nehru Colony,
Golmuri, Jamshedpur, District East Singhbhum.
7. Pradeep Kumar, son of Radha Kant resident of Ratu Road,
P.S. Sukhdev Nagar, District Ranchi.
8. Deleted vide order dated 5th November, 2012.
9. Sankar Dayal Dubey, son of Swami Dayal Dubey, resident
of Sidhgora, Cross Road No.1, P.S. Sidhgora, Jamshedpur,
District East Singhbhum.
10. Binod Kumar, Son of Radha Kant resident of Ratu Road,
P.S. Sukhdev Nagar, District Ranchi.
... ... Accused Persons/Respondents
With
Criminal Revision No.112 of 2002
Birendra Kumar, S/O Late T.P.Singh, Resident of Quarter
No.114, East Plant Basti, P.S. Barmamines, Town
Jamshedpur, District - Singhbhum East.
... ... Petitioner
Versus
1. The State of Jharkhand
2. Santosh Singh, S/O Uday Narayan Singh, Resident of Line
No.9, House No.257, Kasidih, P.S. Sakchi, Jamshedpur,
Acquittal Appeal No. 4 of 2002
With
-2- Criminal Revision No.112 of 2002
District East Singhbhum.
3. Manoj Kumar Jaiswal, S/O Sheonath Prasad Jaiswal,
Resident of Line No.6, Holding No.148, Kasidih, P.S. Sakchi,
District Jamshedpur.
4. Chandrabali Singh @ Chandar, S/O Ram Kishore Singh,
resident of House No.171, Bhalubasa, P.S. Sitaramdera,
Jamshedpur, District Singhbhum East.
5. Mahesh Kumar Gupta @ Mama S/O Jugan Saw, Resident
of Nayatola Baktiarpur, Patna.
6. Bishu Chourasia, S/O Rama Kat Chaurasia Resident of
Line No.8 Kasidih, P.S. Sakchi, Jamshedpur, District
Singhbhum East.
7. Dilip Kumar, S/O Radha Kant, Resident of Nehru Colony,
P.S. Golmuri, Jamshedpur, District Singhbhum East.
8. Pradeep Kumar, S/O Radha Kant Resident of Ratu Road,
P.S. Sukhdeo Nagar, District - Ranchi.
9. Deleted vide order dated 5th November, 2012.
10. Sankar Dayal Dubey, S/O Swami Dayal Dubey, Resident
of Sidhgora, Cross Road No.1, P.S. Sidhgora, Jamshedpur,
District Singhbhum East.
11. Binod Kumar, S/O Radha Kant Resident of Ratu Road,
P.S. Sukhdeo Nagar, District - Ranchi.
... ... Opposite Parties
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In Acquittal Appeal No. 4 of 2002
For the Appellant : Mr. Saket Kumar, A.P.P.
For Resp. Nos.1,2, 3 & 5 : Mr. A.K.Chaturvedy, Advocate
For Resp. Nos. 6 & 7 : Mr. Nilesh Kumar, Advocate
Miss Sonal Sodhani, Advocate
Ms. Priyanka Agrawal, Advocate
For the Resp. No.9 : Mrs. J.Mazumdar, Advocate
Mr. Parambir Singh Bajaj, Advocate
For the Resp. No.10 : Mr. A.N. Deo, Advocate
In Criminal Revision No.112 of 2002
For the Petitioner : Mr. P.P.N.Roy, Sr. Advocate
: Mr. Pandey Ashok Nath Roy, Advocate
Mrs. Pragati Prasad, Advocate
For Resp.-State : Mr. Pankaj Kr. Mishra, A.P.P.
For Resp. Nos.2,3,4 & 6 : Mr. A.K.Chaturvedy, Advocate
For Resp. Nos. 7 & 8 : Mr. Nilesh Kumar, Advocate
Ms. Priyanka Agrawal, Advocate
For the Resp. No.10 : Mrs. J.Mazumdar, Advocate
Mr. Parambir Singh Bajaj, Advocate
For the Resp. No.11 : Mr. A.N. Deo, Advocate
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PRESENT
Acquittal Appeal No. 4 of 2002
With
-3- Criminal Revision No.112 of 2002
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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C.A.V. on 01.02.2023 Pronounced on 27.02.2023
Per Sujit Narayan Prasad, J.
Acquittal Appeal No.4 of 2002 has been preferred by the
State whereas Criminal Revision No.112 of 2002 has been
preferred by Birendra Kumar Singh, the informant challenging
the same impugned Judgment by which the accused persons
have been acquitted, as such, with the consent of the learned
counsel for the parties, the acquittal appeal and criminal
revision have been heard together and are being disposed of
by this common Judgment.
2. It appears from order dated 5th November, 2012 passed
in the instant appeal that since Radha Kant-Respondent No.8
in Acquittal Appeal No.4 of 2012, has died the appeal stands
abated against him and in Criminal Revision No.112 of 2002
his name has been deleted from the array of the respondents.
3. It has also come in the order dated 24th August, 2016
that Mahesh Kumar Gupta- Respondent No.4 in Acquittal
Appeal No.4 of 2012 and Respondent No.5 in Criminal
Revision No.112 of 2002, has also died.
Therefore, the appeal stands abated against him. His
name be deleted from the array of respondents.
4. In Acquittal Appeal No.4 of 2012 the State appellant has
been represented by Mr. Saket Kumar, A.P.P., Respondent
Acquittal Appeal No. 4 of 2002
With
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Nos.1, 2, 3 and 5 have been represented by Mr.
A.K.Chaturvedy, learned counsel, Respondent Nos. 6 and 7
have been represented by Mr. Nilesh Kumar, Respondent No.9
has been represented by Mrs. J. Mazumdar and Mr. Paramvir
Singh Bajaj, learned counsel and Respondent No.10 has been
represented by Mr. A.N.Deo, learned counsel.
In Criminal Revision No.112 of 2002, the petitioner has
been represented by Mr. P.P.N. Roy, Senior counsel whereas
Respondent No.1-State has been represented by Mr. Pankaj
Kumar Mishra, A.P.P., Respondent Nos.2, 3, 4 and 6 have
been represented by Mr. A.K.Chaturvedy, learned counsel,
Respondent Nos. 7 and 8 have been represented by Mr. Nilesh
Kumar, Respondent No.10 has been represented by Mrs. J.
Mazumdar and Mr. Parambir Singh Bajaj, learned counsel and
Respondent No.11 has been represented by Mr. A.N.Deo,
learned counsel.
5. The State-appellant in Acquittal Appeal No.4 of 2002 and
the informant-petitioner in Criminal Revision No.112 of 2002
are aggrieved by the impugned Judgment dated 19.12.2001,
passed by the 1st Additional Sessions Judge, East Singhbhum,
Jamshedpur in Sessions Trial No.578 of 1995, whereby the
accused respondents/opposite parties, who were facing the
trial for the offences under Sections 302/34, 302/120B and
302 of the Indian Penal Code and Section 27 of the Arms Act,
were acquitted of the charges.
Acquittal Appeal No. 4 of 2002
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6. The prosecution story in short is that the informant
Birendra Kumar Singh, son of Thakur Prasad Singh, resident
of East Plant Bastee, P.S.Burmamines. Jamshedpur, District
East Singhbhum gave a fardbeyan on 15.04.1994 at about
8.30 A.M morning in T.M.H before Sub-Inspector S.M. Singh
of Sakchi Police Station alleging therein that today i.e., on
15.04.1994 at about 7.35 A.M. in the morning, as per his
usual routine he, proceeded from his house on his scooter No.
B.P.N.9087 along with his father Thakur Prasad Singh to open
his shop Bihar Motors, situated at Kalimati Road, Sakchi. He
dropped his father in the shop and to make enquiry about his
Bus Saraswati Travel he went to Sakchi Bus stand. After
sometime he was returning again to his shop along with his
cousin brother Radho Sharan Singh from the Bus stand. It is
also alleged that as soon as he reached Sagar Hotel at about 8
A.M. he heard two or three fired shot sound and when he
reached in front of his shop, on road, he saw his father fallen
on the ground sustaining fire shot and also saw Santosh
Singh son of Uday Singh of Kashidih, Line No. 9, P.S. Sakchi,
Sanjay Prasad, son of Rajendra Prasad of Old Baradwari.
P.S.Sakchi and Chandrabali Singh @ Chandan son of Kishore
Singh, House No.171, Bhalubasa P.S. Sitaramdera pointing
pistols in their hands and they were uttering nobody should
come forward otherwise they will be killed like T.P.Singh. By
the side of them for their help Manoj Prasad son of Sheo Nath
Acquittal Appeal No. 4 of 2002
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Prasad, Kashidih. Road No.4, P. S. Sakchi, Bisu Chourasia
son of Ramanand Chourasia, Kashidih, Road No.8,.P.S.
Sakchi, who had pistols in their hands were also shouting in
order to threatened as many people were standing there who
witnessed the occurrence with their own eyes and identified
the miscreants. The criminals were seven in number, out of
them he could not identify two but claimed to identify by face.
It is further alleged that, in the meantime they all went
towards Kashidih Bagan Area through a lane situated beside
the place of occurrence giving threats to the people. All the
criminals were local and they used to sit in the generator shop
of Bishu Chourasia. It has been alleged that the informant
and his cousin brother along with Shyam Sundar Singh took
his injured father to T.M.H. on a tempo for treatment where
the doctor declared his father to be dead. The reason and
motive for the occurrence is that of Chaibassa -Purulia Road
route for which there was a difference between him and Radha
Kant son of Lakhan Lal of Ranchi since the year 1988. The two
sons of Radha Kant namely Binod Kumar and Pradeep Kumar
used to live at Chakradharpur and Dilip Kumar resident of
Nehru colony, P.5, Golmuri, Jamshedpur. It has been further
alleged that one day before the occurrence Dilip Kumar had
come to his shop where he was with his father. On reaching,
Dilip Kumar threatened his father saying that in the matter of
permit he would not go to High Court. On this his father told
Acquittal Appeal No. 4 of 2002
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that he will go to High Court till 24th May, upon this Dilip
Kumar became very much agitated and uttered that by that
time if you are alive then you will go and left the shop. The
informant has claimed that the above named accused Radha
Kant and his three sons Dilip Kumar, Binod Kumar and
Pradeep Kumar hatching a deep routed conspiracy with the
above criminals namely Santosh Singh, Sanjay Prasad,
Chandrabali, Manoj Prasad, Bishu Chourasia and two
unknown murdered his father and now he and his family
members and relative apprehends future danger.
7. On the basis of the fardbeyan Sakchi P.S.Case No.62/94
dated 15.4.94 was instituted against nine F.I.R. named
accused and two unknown miscreants under Sections
302/120B of the Indian Penal Code and Section 27 of the
Arms Act. After investigation the police submitted charge-
sheet against accused Chandrabali Singh Chandar, Santosh
Singh, Shankar Dayal Dubey, Manoj Kumar Manoj Kumar
Agarwal, Dilip Kumar, Rabi Chourasia, Mahesh Kumar Gupta
@ Mamu, Radha Kant, Binod Kumar and Pradeep Kumar and
also submitted charge sheet against accused Bishu Chourasia,
Sanjay Prasad and Sinu Rao showing them absconders. Out of
these accused persons two accused Sanjay Prasad and Sinu
Rao did not face trial as they were absconding and accused
Rabi Chourasia was also absconding, hence his trial was
separated and the case was numbered as Sessions Trial No.
Acquittal Appeal No. 4 of 2002
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578A of 1995. The police after investigation submitted charge-
sheet on 11.07.1994 in Court vide Charge sheet No.66/94
dated 30.6.94.
8. The case was committed to the Court of Sessions in
which the accused persons pleaded not guilty and claimed to
be tried.
9. The prosecution in support of its case has adduced
altogether seven charge sheet witnesses namely P.W. 1
Gurudeep Singh @ Pappu. P.W.2 Ragho Sharan Singh, P.W. 3
Upendra Kumar, P.W.4 Dr. Lalan Choudhary, P.W.5 Lalan
Choudhary, P.W.6 Birendra Kumar(informant) and P.W.7
Kanhaiya Upadhaya, the I.O. The prosecution has further
adduced two non-charge-sheeted witnesses P.W.8 Bishwanath
Sahu, a photographer and P.W.9 Shyam Sundar Prasad
Singh.
Three witnesses as court witness have been examined as
C.W.1 Sashi Bushan Prasad, Principal, Panch Parjung Kishan
College, Bundu, C.W.2 Dr. Anil Kumar Mahto, Controller of
Examination, Ranchi University and C.W.3 Vijay Kumar
Choudhary.
Prosecution has also got exhibited material exhibits.
The learned trial court, on appreciation of the rival
submissions advanced on behalf of the parties as also by
taking into consideration the oral and documentary evidence
adduced on behalf of the parties, has found that the
Acquittal Appeal No. 4 of 2002
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prosecution has not been able to prove any of the charge
beyond reasonable doubt and has held the accused persons
not guilty of the charges and, as such, acquitted them from
the said charges, which is the subject matter of the instant
appeal and revision.
10. Mr. Saket Kumar, learned A.P.P. appearing for the State
appellant in criminal appeal as also Mr. P.P.N. Roy, learned
senior counsel appearing for the petitioner in criminal
revision, have taken the ground in assailing the impugned
judgment of acquittal that the testimony of the eye witnesses
i.e., P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary along
with the testimony of the Investigating Officer, P.W.7 have
totally been discarded without taking into consideration the
fact that P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary
have witnessed the occurrence committing crime of murder of
deceased and, therefore, the impugned judgment of acquittal
is perverse and, as such, not sustainable in the eyes of law,
hence fit to be set aside.
11. On the other hand, learned counsel for the respondents
have submitted that P.W.3 Upendra Kumar and P.W.5 Lalan
Choudhary cannot be considered to be the eye witnesses as
would appear from their testimony read with the testimony of
P.W.7 the Investigating Officer, and from its perusal it is
evident that P.W.3 and P.W.5 were never at the place of
Acquittal Appeal No. 4 of 2002
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occurrence said to have witnessed the commission of crime of
murder of the deceased.
It has been submitted that the version of P.W.3 and
P.W.5 cannot be considered to be the testimony of and eye
witness since the very reliability of their testimony has not
been proved by the Investigating Officer, P.W.7. Even the
version of the informant, P.W.6 Birendra Kumar is very much
clear that he even has not witnessed the crime of commission
of murder, which would be evident from his conduct since
being the son he had not accompanied the dead body of his
father at the hospital since there is no reference as has been
made by the Investigating Officer about his presence in the
O/D Slip issued by the T.M.H.
Further, the Investigating Officer has stated that the
informant's cloth was having no blood stained which can only
corroborate the non-presence of the informant at the place of
occurrence since it has come in the testimony of P.W.3 and
P.W.5 that immediately after commission of crime, the
informant had rushed to the place of occurrence and
thereafter carried his father to the hospital in the injured
condition.
It is evident from the testimony of P.W.3 three bullet
injuries have been given upon the deceased and, as such, it
cannot be denied that the place where the occurrence has
been committed will be in pool of blood but it has transpired
Acquittal Appeal No. 4 of 2002
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from the testimony of the Investigating Officer that no blood
has been seized from the place of occurrence, save and except
the spectacles with the mark of blood.
It has been submitted that the question would be that
when it is the case of the prosecution that the deceased had
been given three shots by bullet and it is the case of the
informant P.W.6 that he carried the deceased, his father, to
the T.M.H. hospital over a tempo but very surprisingly the
cloth of informant was not found with any blood stained.
Mr. A.K.Chaturvedi, learned counsel appearing for the
Respondent No.1, 3 and 5, therefore, submits that the P.W.3
and P.W. 5 cannot be said to eye witnesses and, therefore, the
trial court, after taking into consideration the aforesaid aspect
of the matter since has not considered the testimony of P.W.3
and P.W.5 to be eye witnesses which led the learned trial court
to acquit the respondents concerned, the same cannot be said
to suffer from an error.
It has further been pointed out that the Investigating
Officer at paragraph 88 and 89 has clearly stated that P.W.3
has not narrated the story while giving statement about his
presence at the place of occurrence. It has been submitted
that the tempo driver has not been examined and even the
blood stained spectacles or the bullets have not been sent for
its chemical/forensic examination. Therefore, submission has
been made that the learned trial court, after taking into
Acquittal Appeal No. 4 of 2002
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consideration the facts and evidence in entirety, has acquitted
the accused persons which cannot be said to suffer from an
error.
12. Mr. A.N.Deo, learned counsel appearing for Respondent
Binod Kumar and Mr. Nilesh Kumar, learned counsel
appearing for the Respondents, namely, Bishu Chourasia and
Dilip Kumar respectively, have submitted that against these
respondents no material has come regarding conspiring to kill
the deceased and taking into consideration the aforesaid
aspect of the matter, the respondents have been acquitted,
hence the same does not suffer from any infirmity.
13. Mr. Parambir Singh, learned counsel appearing for the
Respondent Sankar Dayal Dubey, has also submitted that no
evidence has come for hatching conspiracy of committing
murder of the deceased. The learned trial court, therefore,
after finding that no material has come attracting any
ingredient of Section 120-B of the Indian Penal Code and that
no case is made out for commission of crime, acquitted the
respondents which cannot be said to suffer form an error.
14. This Court, after having considered the arguments
advanced on behalf of the parties, is now proceeding to
examine the testimony of the prosecution witnesses,
particularly, P.W.3 Upendra Kumar and P.W.5 Lalan
Choudhary along with P.W.7, the Investigating Officer, in
Acquittal Appeal No. 4 of 2002
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order to scrutinize the legality and propriety of the impugned
judgment.
This Court is also discussing the testimony of other
witnesses in order to come to the just and proper finding by
taking into consideration the testimony of the entire
prosecution witnesses in entirety.
P.W.1 Gurdeep Singh Pappu who has deposed in his
examination-in-chief that he known Thakur Prasad Singh. He
was Secretary of Transport Association and Bus owners
Association. Since the year 1988 he had some litigation with
Dilip Agarwal and his family members in respect of permit for
the route of Chaibassa-Purulia. Dilip Agarwal and others had
obtained the permit by producing false certificate. Earlier the
Bus of Thakur Prasad Singh was plying on Chaibasa-Purulia
route and due to the said litigation there was no good relation
between T.P. Singh and Dilip Agarwal as well as his family
members. He has further stated that in the year 1990 he was
going to Calcutta where he met with one Surendra Singh who
introduced him with one Dipu Agarwal. The said Dipu Agarwal
stated that one man in disturbing him in Jamshedpur and not
allowing him to run the bus. Surendra Singh asked him who
is that man. Dipu gave out the name of Thakur Prasad Singh.
Surendra Singh stated that he will go and chastise him by
giving slaps upon which Dipu stated that man is not worthy
for chastening rather requires to be completely finished. Upon
Acquittal Appeal No. 4 of 2002
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which Surendra Singh stated that well he would go and see
him at Jamshedpur. This witness has further stated that
when they left the room of Dipu, he handed over a packet from
his suitcase to Surendra Singh. When he enquired about the
article in packet, he found money in the said packet. In the
night they left Howrah and on the next day return Tata. On
the next day he came to the shop of T.P.Singh and stated all
the fact where the son of T.P. Singh, namely, Birendra Kumar
Singh was also sitting. T.P. Singh was assassinated on
15.04.1994 at about 8 A.M morning. This accused identified
Dipu @ Dilip Agarwal in Court.
P.W.2 Ragho Sharan Singh - He, in his examination- in-chief
has stated that the occurrence is of 15.04.1994. It was 8:00
A.M morning. He was coming from Sakchi Bus stand to Bihar
Motor with Birendra. When they reached near Sagar Hotel,
they heard 2-3 sounds of fire arms shot and he saw T.P. Singh
lying. He also saw accused Sanjay, Santosh and Chandrawali
standing with pistols in their hands. Accused Bishu
Chourasia, Manoj and two other were also standing there who
were unknown. He has stated that out of them one was of
short structure and fatty and the other was long with dark
complexion. They were also armed with pistols. He claimed to
identify these unknown persons. The accused persons were
also uttering that whoever will try to approach they would be
short dead like T.P. Singh. They moved away in an adjacent
Acquittal Appeal No. 4 of 2002
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lane going towards Kashidih. T.P. Singh was carried to Tata
Main Hospital on a Tempo where doctor declared him dead. He
has further stated that T.P. Singh was plying vehicle on
temporary permit on Chaibasa-Purulia Road, thereafter,
Binod, Pradeep, Dilip Kumar and Radha Kant by producing a
forge certificate snatched that permit and against the order of
the said permit issued to the accused persons, T.P. Singh had
to prefer appeal. That permit was bone of quarrel. This witness
has also stated that on 14th April, 1994 at about 9 A.M Dilip
came to Bihar Motors and stated T.P. Singh that he should not
go to High Court for preferring appeal. Upon which he replied
that he must go to prefer appeal. Accused Dilip in anger
uttered that he would go when he will be alive. This witness
identified all the accused persons in the dock.
P.W.3 Upendra Kumar - He has stated in his examination-in-
chief that the occurrence is of 15.04.1994 at 8 A.M. At that
time he was taking tea in the Tea Stall of Mina Devi. Lalan
Choudhary, P.W.5, was also with him. He observed that seven
boys were crossing the road armed with pistol from the side of
Gulab Hotel. After crossing the road they reached near the
Chabutara of Bihar Motors. At that time T.P.Singh was
reading newspaper. T.P.Singh stood up seeing them. At first
some talk prevailed among them which he could not say.
Thereafter, Sanjay Prasad gave the first fire shot on him.
Second shot was made by Santosh and third fire shot was
Acquittal Appeal No. 4 of 2002
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made by Manoj. These shots were made in few seconds
intervals. The rest accused persons among them were Bishu
Chourasia, Chandrawali and uncle (Mama) of Sanjay Prasad
who were threatening those persons trying to approach there.
He has further stated that T.P. Singh fell down after receiving
firearm shot injury. In the meantime, his son Birendra came
with Ragho Sharan Singh. The accused persons fled away
through an adjacent lane going towards east. Thereafter,
Birendra Singh and Ragho Singh along with two persons
carried T.P. Singh to T.M.H. He has further stated that on the
date of occurrence at about 9.30 A.M. the police in front of
Bihar Motor recorded his statement. Birendra Singh was
weeping on the place of occurrence and was uttering that
yesterday T.P.Singh was threatened by Dipu Agarwal and
today this occurrence took place. He has stated that where he
was taking tea that place is situated just opposite of Bihar
Motors. T.P. Singh received first bullet injury in the right side
of his abdomen second bullet injury was on the right side of
cheek and third on the left side of the back. This witness
identified accused Dilip Agarwal, Santosh, Mama @ Mahesh
Gupta, Chandrawali, Shankar Dayal Dubey, Pradeep, Binod
and Radha Kant in dock and claimed to identify Sanjay.
P.W.4 Dr. Lalan Choudhary, who had conducted autopsy on
the dead body of deceased T.P.Singh. He has stated in his
examination-in-chief that the margin of kurta was blacked and
Acquittal Appeal No. 4 of 2002
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tiny torns with powder marks over an area of 15 cm x 12 cm.
Vest (Ganji) was centrally torn of size 4 cm x 3 cm. A shell of
bullet was recovered from the kurta of the deceased. He found
the following anti-mortem injuries over the body of the
deceased.
i) Entry wound of size 4 cm x 1 cm on was present over left
side of back, 7 cm lateral to vertibral column and 30 cm below
the shoulder line left. Tattooing of an area about 17 cm x 13
cm was present around the wounds.
ii) Entry wound of size 3 cm x 1.5 cm was present over right
cheek. Tattooing of size 35 cm x 25 cm extending from right
shoulder to left shoulder whole face and front of neck.
iii) Abrasion of size 6 cm x 4 cm present over right lumber
region of back.
iv) Tattooing was present over front of left thigh measuring 12
cm x 8 cm.
On dissection he found (a) Chest and abdomen - 7th Rib
on left side back was fractured, left lung was pierced. Lateral
Valve of heart laterated, Pericardium raptured, 3rd and 4th ribs
in front of left side were fractured. One metallic bullet was
embedded in the muscle of the left side chest wall in front.
Bullet traversed upward and forward making a track from
entrance to where it was found. All verses were pale, chest
cavity on left side contained about one litre of blood. (b) Skull -
Brain matter pale.
Acquittal Appeal No. 4 of 2002
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Neck- First cervical vertebra fractured, and a metallic
bullet found embedded in the muscles of the left side neck.
Opinion:- Cause of death haemorrhage and shock. All above
injuries except no.3 were caused by fire arm such as pistol.
Injury No.3 was caused by hard and blunt substance such as
due to fall on a hard surface. Time since death between 6
hours to 9 hours approximate at the time of post mortem
examination. Two bullets and one jacket were sealed properly
and handed over to the constable who has identified the dead
body. Injuries were sufficient to cause death. He has proved
the Postmortem Report as Ext.1. As per this witness the Post
Mortem was conducted on 15.04.1994 at 2.15 P.M.
P.W.5 Lalan Choudhary has stated in his deposition that
occurrence is of 15.04.1994 at about 8 A.M. At that time he
was taking tea in the Tea Stall of Mina Devi situated in front of
Bihar Motors on Klimati road. He saw seven persons armed
with pistol, who after crossing the road surrounded T.P.Singh
in front of Chabutara of Bihar Motors. Sanjay gave first fire
shot on T.P.Singh, Santosh gave second fire shot and Manoj
gave third fire shot. Accused Bishu Chourasia, Chandrawali
and two others who were armed with pistols, were threatening
the people and uttering that T.P. Singh has been murdered
and if anyone would try to come they would also be shot dead.
All the accused persons went away through a lane coming
towards east for Kasidih. He has further stated that on
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14.04.1994 at 9.00 A.M. Dilip Agarwal came to Bihar Motors
and asked T.P.Singh not to think to go to High Court. T.P.
Singh replied that he must go to High Court. The accused
Dilip Agarwal stated that if you will be alive then you go to
High Court. This witness claimed to identify accused Bishu,
Manoj, Santosh, Chandrawali and further claimed to identify
one accused by face but not name. He also identified Dilip
Agarwal.
P.W.6 Birendra Kumar - He is the informant of the case. He
has stated in his examination-in-chief that deceased T.P.
Singh was his father. On 15.04.1994 at about 7.35 A.M.
morning he proceeded with his father for his shop Bihar
Motors on scooter which is situated in New Kalimati Road,
Sakchi. He dropped his father at Bihar Motors and proceeded
to see his Bus Saraswati to Sakchi Bus stand. He stopped for
some time in Sakchi Bus stand after that he along with his
cousin brother Ragho Sharan Singh again proceeded to Bihar
Motors. As soon as they reached near Sagar Hotel, they heard
two sounds of fire arm shot. By that time it was 8 O'clock.
When he reached near his shop he saw his father lying on
verandah. He also saw Sanjay Prasad, Santosh Singh,
Chandrawali Singh and just besides them Bishu Chourasia,
Manoj Prasad and two others armed with pistols. They all were
threatening and uttering that they killed T.P.Singh and
whoever will come they will be done to death. By uttering these
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words they went away through an adjacent lane. He claimed to
identify two unknown miscreants. He also identified accused
Santosh Singh, Manoj Prasad, Chandrawali Singh, Dilip
Kumar, Binod Kumar, Radha Kant and Predeep Kumar in
Court and also claimed to identify Shankar Dayal Dubey and
Bishu Chourasia. He has further stated that he with the help
of Shyam Sundar Singh, Ajay Kumar and Ragho Sharan Singh
brought his father to T.M.H on a Tempo where doctor declared
him dead. He has stated that his fardbeyan was recorded in
T.M.H. which was read over to him and after finding it correct
he put his signature. He proved his signature on the
fardbeyan which was marked as Ext.2. He has further
deposed that one day prior to the occurrence on 14.04.1994
accused Dilip Kumar had come to Bihar Motors where he was
also present. Accused Dilip asked his father not to go to High
Court as per his programme, upon which his father replied
that he must go to High Court. Dilip Kumar became agitated
and uttered that if he will survive by that time. Thereafter,
Dilip Kumar went away. He has stated that the motive for
murder of his father was that his father had got a temporary
permit in the year 1988-89 for the route Chaibasa- Purulia for
plying bus. Again he stated that the Bus was plying since
1985. In the year 1988 on 11.03.1988 accused Pradeep
Kumar by presenting forged B.A. certificate and forged sale
letter of chassis obtained a permit in his favour. Since then his
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father used to give information to the Superior Officers and
the officers of State Transport Department. Accused Pradeep
Kumar and his family members used to ply that Buses in the
name of School Bus or Tourist Bus. In this connection his
father had also informed the competent authority. His father
had lodged a case in Ranchi Kotwali against Pradeep Kumar,
Radha Kant and Dilip Kumar and in the said case on
25.04.1994 he had to depose in the Ranchi Court. In the year
1987-88 the house of Radha Kant was to be auctioned in
which his father participated. The deceased has also written
letter against Pradeep Kumar, Radha Kant, Binod Kumar,
Dilip Kumar and his family members to the Superior Officers
of the Government for misappropriating the tax of Government
by committing forgery, upon which the proceeding of recovery
of Rs. 30,00,000/- was initiated before the Certificate Officer
and being aggrieved with this act of the deceased, he was
murdered. He has further stated that accused Dilip Kumar
had given five bundles of 100 rupees denomination in a Hotel
situated at the back of Kishan Verma Vendor's shop to
Shankar Dayal Dubey, who is Agent of Binod Bus. Out of said
amount, Rs. 50,000/- was handed over to Ravi Chourasia by
Shankar Dayal Dubey and Ravi Chourasia gave one bundle
from that amount to Sanjay Prasad and rest of the amount
was given to his brother Bishu Chourasia. Then Sanjay
Prasad, and Bishu Chourasia with accused Manoj Prasad,
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Chandrawali Singh, Santosh Singh and two others committed
murder of his father. He has proved some documents also.
This witness was again recalled on 6.3.99. He has stated
in his examination-in-chief that at the time of occurrence
there were two more accused out of whom one Mahesh Kumar
Gupta is present in Court to whom he identified. He has stated
that he could know the name of accused Mahesh Kr Gupta in
the month of May-June, 1994.
P.W.7 Kanhaiya Upadhaya is the Investigating Officer of the
case. He has stated in his examination-in-chief that on
15.04.1994 he was posted as Officer-in-Charge, Sakchi P.S.
On that day he got information about the murder of Thakur
Prasad Singh. He recorded that information in Station Diary
and proceeded to the place of occurrence. Thereafter, he went
to Tata Main Hospital where statement of Birendra Kumar was
recorded by S.I. Shiv Mangal Singh. He proved the fardbeyan.
He has also proved his endorsement on the fardbeyan, Ext.4.
He has proved the formal F.I.R which was marked as Ext.5. He
has stated that he took up the investigation and on the date of
occurrence he inspected the place of occurrence. According to
him, the place of occurrence is the Chabutara in front of the
shop of the deceased, namely, Bihar Motors, situated in
Kalimati Road, within Jamshedpur town. Bihar Motors is a
shop of motor parts. P.W.7 has stated that he found blood on
the Chabutara and the spectacle was mixed with blood. A
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photograph of place of occurrence was obtained by Raja
Studio. He has further stated that adjacent to the place of
occurrence towards south-east there is a lane which
approaches to Kashidih where an empty cover of bullet of .315
was found lying and it was seized. He has further stated that
he recorded the statements of informant and witnesses. The
dead body of deceased Thakur Prasad Singh was sent to
M.G.M. Hospital. The Inquest Report was also got prepared.
He has further stated that on the confessional statement of
accused Mahesh Kumar Gupta a pistol was recovered from the
roof of quarter No. 86 Purana Baradwari. He has proved the
confessional statement recorded by S.I. Manohar Prasad on
his instruction which bears his signature. There is signature
of accused Mahesh Kumar Gupta and it was exhibited as
Ext.7. He has further stated that the accused Mahesh Kumar
Gupta stated that the same pistol was used in the murder of
T.P.Singh. He has further stated that he submitted the charge-
sheet showing Bishu Chourasia, Sanjay Prasad and Sinu Rao
as absconders.
In his cross examination, the Investigating Officer has
stated that he had examined Gulab Chandra Jaiswal, Samir
Bera Ram Roop Singh, Awtar Singh, Md. Alam, Rajesh Gupta,
Rajen Goswami but they were not cited as witnesses in the
charge sheet. He has also stated that on reaching the place of
occurrence, during his first visit, he had examined Paramjeet
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Singh but he was also not cited as a witness. He has further
stated that he has not mentioned in the case-diary as to where
and at what time he had examined Ragho Sharan Singh,
Lallan Choudhury, Upendra Kumar and Gurdip Singh. He has
stated that he is not aware as to who had sent the telephonic
message. He has stated that the photograph of the place of
occurrence was taken on 15.04.1994 but it was received on
27.04.1994. The photograph shows that al the shops shown
there were closed. He stated that he did not find any footprints
at the place of occurrence.
He has stated that in order to ensure that the place of
occurrence is not disturbed or changed he had deputed
Havildar Jamuna Singh of T.O.P. at that place before going to
T.M.H. He found that the place of occurrence had not been
altered or tampered with and somebody might have pulled
down the shutter of Bihar Motors. Photograph of Bihar Motors
was taken after he returned from T.M.H. and there was no
alteration of the place of occurrence till the photograph was
taken. He has further stated that when he had first reached
the place of occurrence, he had seen Newspaper, chair and
spectacle there but during his second visit he did not find the
newspaper and chair.
He has stated that he did not seize any blood from the
place of occurrence but he had seized the blood stained
spectacles without preparing any seizure list.
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He has also stated that he did not send any blood found
there and the spectacles for chemical examination to ascertain
as to whether it was human blood or not. He did not seize the
clothes of T.P. Singh nor examined them. He has stated that
he did not search for the Tempo driver and owner in which
T.P. Singh was taken to T.M.H. as also he did not try to
ascertain as to when the dead body of T.P.Singh was placed on
Tempo for taking it to T.M.H. He has further stated that he
had examined independent witnesses Paramjeet Singh and
Gulab Jaiswal but he has not cited them as witnesses in this
case. Meena Devi is not witness in the charge-sheet nor the
other customers who were in her shop. He did not examine
any independent witness about Birendra going to the Bus
Stand and returning therefrom.
P.W.8 Bishwanath Sahu - He is a photographer. He has
stated that he had taken the photograph of the place of
occurrence. He had taken the photograph on the request of
the Officer-in-charge, Sakchi P.S. Kanhaiya Upadhaya. He had
handed over the negative and positive of the concerned
photograph to the police station.
P.W.9 Shyam Sundar Prasad Singh - He has stated in his
examination-in-chief that in the year 1994 he was the
Secretary of Transport Association, Jamshedpur. On
15.04.1994 an Inquest Report was prepared at 9 A.M. in Tata
Main Hospital in the morgue by police officials of Sakchi P.S in
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his presence. This witness has proved his signature over it
which was marked as Ext.6. Inquest Report was exhibited as
Ext.10 and the son of his brother-in-law Ajay Prasad Sinha
has also put his signature on the said Inquest Report. He has
proved the signature of Ajay Sinha, Ext.10/1.
Apart from the aforesaid prosecution witnesses, three
court witnesses have also been examined in this case, namely,
C.W.1 Shashi Bhushan Pramanik, Principal of Kishan College,
Bundu, C.W.2 Dr. Anil Kumar Mahto, Controller of
Examination, Ranchi University and C.W.3 Vijay Kumar
Choudhary, Assistant in the office of Commissioner, State
Transport, Patna who have proved some documents.
The accused persons have also examined five witnesses
in their defence, namely, D.W.1 James Peter Lakra, Assistant
in District Transport Office, Jamshedpur, D.W.2 Arjun Singh,
Advocate, D.W.3 Rajesh Kumar Singh, D.W.4 Irshad Ahmad,
Inspector of Police and D.W.5 Karunakar Gope.
15. This Court, after having considered the testimony of the
witnesses, the exhibits including the postmortem report and
the inquest report, is now proceeding to examine the
submission advanced on behalf of the parties in order to
consider the legality and propriety of the impugned judgment.
16. The main argument advanced on behalf of the appellants
is that the P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary
are the eye witnesses to the occurrence but the same has been
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discarded by the learned trial court while acquitting the
respondents.
17. This Court, before proceeding to examine the complicity
of the respondents, is required to refer herein that the
allegations levelled against the respondents are different to
each other as per the prosecution version and the materials
came in course of investigation. The direct allegation of
committing murder is upon the Respondent Nos. 1 Santosh
Singh and Respondent No.2 Manoj Kumar Jaiswal and rest
respondents have been charged for conspiring commission of
murder of the deceased.
Therefore, this Court is now proceeding to examine the
testimony of P.W.3 Upendra Kumar and P.W.5 Lalan
Choudhary in order to assess as to whether the P.W.3 and
P.W.5 have said anything against Respondent Nos. 3 to 10 for
conspiring of committing murder of the deceased.
It is evident from the testimony of P.W.3 and P.W.5 that
no material has come regarding hatching of conspiracy against
Respondent Nos. 3 to 10 for committing murder of the
deceased T.P.Singh, rather, it would be evident from the
testimony of P.W.3 and P.W.5 that they have deposed against
Respondent Nos. 1 and 2 said to have been seen by them
committing murder of the deceased.
Learned counsel appearing for the revisionist and the
learned Additional Public Prosecutor have failed to point out
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any incriminating material against the Respondent Nos. 3 to
10 of conspiring to commit murder of the deceased along with
Respondent Nos. 1 and 2, save and except that in the
testimony reference of some money being handed over to
Surendra Singh, has been made by P.W.1 but the said
testimony of handing over money cannot be said to be
sufficient evident to prove the culpability of these respondents
in order to prove the allegation of conspiracy for committing
murder of the deceased.
The learned trial court, while considering the case of
these respondents, has taken into consideration the material
in entirety and has found no incriminating material having
been produced by the prosecution and, therefore, they have
been acquitted.
18. This Court, after considering the finding so recorded by
the learned trial court pertaining to Respondent Nos. 3 to 10,
is of the view that merely making an allegation of conspiracy
to commit murder of a person cannot be construed to be
applicability of Section 120-B of the Indian Penal Code in
order to attract the substantial provision i.e., Section 302 of
the Indian Penal Code.
The position of law is well settled that for proving the
charge of conspiracy, the requirement of law is that the cogent
evidence is to be produced by the prosecution in order to show
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the connectivity of the person concerned in commission of
crime.
It will be worthwhile to deal with this question of alleged
conspiracy at this stage. As per the settled proposition of law,
the essential ingredients of criminal conspiracy are:
(a) An agreement between two or more persons.
(b) Agreement must relate to doing or causing to be done
either
(i) an illegal act; or
(ii) an act which is not illegal in itself but is done by
illegal means.
The most important ingredient in the offence of
conspiracy is an agreement between two or more persons to do
an illegal act. However it is necessary for the prosecution to
show is the meeting of minds of two or more persons for doing
or causing to be done an illegal act, or an act by illegal means.
A criminal conspiracy is generally hatched in secrecy, and it is
difficult, if not impossible, to obtain direct evidence regarding
the manner and circumstances in which the offence has been
committed, and the level of involvement of the accused
persons are relevant factors.
It is pertinent to note here that conspiracy is mostly
proved by circumstantial evidence by taking into account the
cumulative effect of the circumstances indicating the guilt of
the accused, rather than adopting an approach by isolating
the role played by each of the accused but the acts or conduct
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of the parties must be conscious and clear enough to infer
their concurrence as to the common design and its execution.
In the facts of the present case, we find that there is no
any cogent material brought on record which creates a grave
suspicion about the involvement of the accused/respondents
in hatching the conspiracy for commission of murder of
deceased.
Herein, the whole argument of the State-appellant and
Revisionist-petitioner is that the learned trial court has not
considered the testimony of P.W.3 and P.W.5 and, as such, the
judgment of acquittal passed in favour of Respondent Nos. 3 to
10 cannot be considered to be legal and proper.
19. This Court, after considering the testimony of P.W.3,
P.W.5, P.W.7, the Investigating Officer and the testimony of
other witnesses, has not found any incriminating material
against these respondents and, as such, if in absence of the
same the judgment of acquittal has been passed against
Respondent Nos. 3 to 10, the same cannot be said to suffer
from an error.
20. Accordingly, the judgment of acquittal, so far as it relates
to Respondent Nos. 3 to 10 is concerned, the same, according
to our considered view, does not require any interference.
21. So far as the allegation of committing crime by
Respondent Nos. 1 and 2 is concerned, the argument has been
advanced that the version of P.W.3 and P.W.5, who have seen
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the commission of crime and P.W.6, the informant, has been
corroborated by the Investigating officer as also the
postmortem report prepared by the Doctor who had examined
the body of the deceased while conducting autopsy.
22. This Court, in order to examine as to whether the P.W.3
Upendra Kumar and P.W.5 Lalan Choudhary are the eye
witness or not, is proceeding to consider the testimony of
P.W.3 first who has stated in his examination in chief that at
the time of occurrence i.e., on15.04.1994 at 8 A.M., he was
taking tea in the Tea Stall of Mina Devi. P.W.5 Lalan
Choudhary was also with him. He observed that seven boys
were crossing the road armed with pistol towards Gulab Hotel.
After crossing the road they reached near the Chabutara of
Bihar Motors. At that time T.P.Singh was reading newspaper.
T.P.Singh stood up seeing them. Thereafter, Sanjay Prasad
gave the first fire shot on him. Second shot was made by
Santosh and third fire shot was made by Manoj. The rest
accused persons were Bishu Chourasia, Chandrawali and
uncle (Mama) of Sanjay Prasad who were threatening those
persons trying to approach there. He has further stated that
T.P. Singh fell down after receiving firearm shot injury. In the
meantime, his son Birendra came with Ragho Sharan Singh.
The accused persons fled away through an adjacent lane going
towards east. Thereafter, Birendra Singh and Ragho Singh
along with two persons carried T.P. Singh to T.M.H. He has
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further stated that on the date of occurrence at about 9.30
A.M. the police in front of Bihar Motor recorded his statement.
He has stated that where he was taking tea that place is
situated just opposite of Bihar Motors. T.P. Singh received first
bullet injury in the right side of his abdomen second bullet
injury was on the right side of cheek and third on the left side
of the back. This witness identified accused Dilip Agarwal,
Santosh, Mama @ Mahesh Gupta, Chandrawali, Shankar
Dayal Dubey, Pradeep, Binod and Radha Kant in dock and
claimed to identify Sanjay.
It is evident from his testimony that he has stated about
the presence of one Lalan Choudhary, P.W.5, who happens to
be the brother-in-law of the deceased. He has stated that at
the time of occurrence he was taking tea with Lalan
Choudhary in the tea stall of Mina Devi. He has also stated
that he has seen the occurrence of committing murder of
T.P.Singh by the Respondents, namely, Santosh Singh and
Manoj Kumar Jaiswal.
Further, P.W.5 Lalan Choudhary has stated in his
deposition that the occurrence is of 15.04.1994 at about 8
A.M. At that time he was taking tea in the Tea Stall of Mina
Devi situated in front of Bihar Motors on Klimati road. He saw
seven persons armed with pistol, who after crossing the road
surrounded T.P.Singh in front of Chabutara of Bihar Motors.
Sanjay gave first fire shot on T.P.Singh, Santosh gave second
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fire shot and Manoj gave third fire shot. Accused Bishu
Chourasia, Chandrawali and two others who were armed with
pistols, were threatening the people. All the accused persons
went away through a lane coming towards east for Kasidih. He
has further stated that on 14.04.1994 at 9.00 A.M. Dilip
Agarwal came to Bihar Motors and asked T.P.Singh not to
think to go to High Court. This witness claimed to identify
accused Bishu, Manoj, Santosh, Chandrawali and further
claimed to identify one accused by face but not name. He also
identified Dilip Agarwal.
It is evident from the testimony of P.W.5 that he also
claims to have seen the occurrence from the tea stall of Mina
Devi where he was taking tea with Upendra Kumar.
P.W.6, Birendra Kumar, who is son of the deceased, has
also stated in his testimony that on 15.04.1994, the date of
occurrence, at about 7:35 a.m. in the morning, he proceeded
with his father to his shop Bihar Motors on Scooter and
dropped his father at Bihar Motors and proceeded to see his
Bus Saraswati to Sakchi Bus stand. While he was returning
from Sakchi Bus stand to Bihar Motors, when he reached near
Sagar Hotel, he heard two sounds of fire arm shot at about 8
O'clock. When he reached near his shop he saw his father
lying on verandah. He has stated that he saw Sanjay Prasad,
Santosh Singh, Chandrawali Singh and just besides them
Bishu Chourasia, Manoj Prasad and two others armed with
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pistols. He has further stated that they all were threatening
and uttering that they killed T.P.Singh and whoever will come
they will be done to death. He claimed to identify two
unknown miscreants. He also identified accused Santosh
Singh, Manoj Prasad, Chandrawali Singh, Dilip Kumar, Binod
Kumar, Radha Kant and Predeep Kumar in the Court.
The argument, thus, has been made on behalf of the
appellant and the Revisionist petitioner that the testimony of
P.W.3 Upendra Kumar and P.W.5 Lalan Choudhary should not
have been discarded since they are the eye witnesses who
have seen the occurrence of committing crime.
23. While on the other hand, learned counsel appearing for
the respondents has submitted that the P.W.5 Lalan
Choudhary and P.W.6 Birendra Kumar (informant) are highly
interested witnesses being related with the deceased since
P.W.5 Lalan Choudhary is the brother-in-law of the deceased
while P.W.6 Birendra Kumar (informant) is the son of the
deceased.
It has been stated that P.W. 3 Upendra Kumar also
cannot be said to eye witness since at that time he was not at
the place of occurrence said to have seen the commission of
crime.
Such submission has been made on the basis of the fact
that it is the version of P.W.3 Upendra Kumar and P.W.5 Lalan
Choudhary that they have seen the assailants surrounding the
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deceased and assaulting by bullet through pistol due to which
the deceased fell down and at that time P.W.3 was in the tea
stall just in front of the place of occurrence and at that
moment the P.W.5 was also there with him and, immediately
thereafter, P.W.6 Birendra Kumar (informant) also reached
there. However, P.W.5 Lallan Choudhary never stated in his
evidence about the presence of P.W.3 Upendra Kumar at the
Tea shop of Meena Devi at the time of alleged occurrence.
Therefore, the consideration of P.W.3 or P.W.5 to be eye
witness depends upon the testimony of the Investigating
Officer.
24. Therefore, this Court is proceeding to scrutinize the
testimony of the Investigating Officer, P.W.7 who has stated in
his examination-in-chief that he, after getting information of
the murder of T.P.Singh, he recorded the information in the
Station Diary and proceeded to the place of occurrence.
Thereafter, he went to Tata Main Hospital where statement of
Birendra Kumar was recorded by S.I. Shiv Mangal Singh. He
proved the fardbeyan. He has also proved his endorsement on
the fardbeyan, Ext.4. He has proved the formal F.I.R which
was marked as Ext.5. He has stated that he took up the
investigation and on the date of occurrence he inspected the
place of occurrence and according to him, the place of
occurrence is the Chabutara in front of the shop of the
deceased Bihar Motors situated in Kalimati Road, within
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Jamshedpur town. He has stated that he found blood on the
Chabuta and the spectacle mixed with blood was found at the
place of occurrence. He has also stated that a photograph of
the place of occurrence was obtained by Raja Studio and the
shops near the place of occurrence were lying closed at that
time. He has further stated that adjacent to the place of
occurrence towards south-east there is a lane which
approaches to Kashidih where an empty cover of bullet of .315
was found lying and it was seized. He has further stated that
the dead body of deceased Thakur Prasad Singh was sent to
M.G.M. Hospital. The Inquest Report was also got prepared.
He has further stated that on the confessional statement of
accused Mahesh Kumar Gupta a pistol was recovered from the
roof of quarter No. 86 Purana Baradwari. He has proved the
confessional statement recorded by S.I. Manohar Prasad on
his instruction.
In his cross examination, the Investigating Officer has
stated that he had examined Gulab Chandra Jaiswal, Samir
Bera Ram Roop Singh, Awtar Singh, Md. Alam, Rajesh Gupta,
Rajen Goswami but they were not cited as witnesses in the
charge sheet. He has also stated that on reaching the place of
occurrence, during his first visit, he had examined Paramjeet
Singh but he was also not cited as a witness. He has further
stated that he has not mentioned in the case-diary as to where
and at what time he had examined Ragho Sharan Singh,
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Lallan Choudhury, Upendra Kumar and Gurdip Singh. He has
stated that he is not aware as to who had sent the telephonic
message. He has stated that the photograph of the place of
occurrence was taken on 15.04.1994 but it was received on
27.04.1994. The photograph shows that al the shops shown
there were closed. He stated that he did not find any footprints
at the place of occurrence.
He has stated that in order to ensure that the place of
occurrence is not disturbed or changed he had deputed
Havildar Jamuna Singh of T.O.P. at that place before going to
T.M.H. He found that the place of occurrence had not been
altered or tampered with and somebody might have pulled
down the shutter of Bihar Motors. Photograph of Bihar Motors
was taken after he returned from T.M.H. and there was no
alteration of the place of occurrence till the photograph was
taken. He has further stated that when he had first reached
the place of occurrence, he had seen Newspaper, chair and
spectacle there but during his second visit he did not find the
newspaper and chair.
He has stated that he did not seize any blood from the
place of occurrence but he had seized the blood stained
spectacles without preparing any seizure list.
He has also stated that he did not send any blood found
there and the spectacles for chemical examination to ascertain
as to whether it was human blood or not. He did not seize the
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clothes of T.P. Singh nor examined them. He has stated that
he did not search for the Tempo driver and owner in which
T.P. Singh was taken to T.M.H. as also he did not try to
ascertain as to when the dead body of T.P.Singh was placed on
Tempo for taking it to T.M.H. He has further stated that he
had examined independent witnesses Paramjeet Singh and
Gulab Jaiswal but he has not cited them as witnesses in this
case. Meena Devi is not witness in the charge-sheet nor the
other customers who were in her shop. He did not examine
any independent witness about Birendra going to the Bus
Stand and returning therefrom.
It is evident from the testimony of the Investigating
Officer that the deceased was carried to the Tata Main
Hospital, thereafter to the M.G.M. Hospital but there is no
signature of the informant, P.W.6, in the O/D Slip.
It has also been gathered by this Court that the reference
of auto-rickshaw has come which was used for carrying the
injured/deceased to T.M.H. but very surprisingly the driver of
the auto-rickshaw has not been examined by the Investigating
Officer in order to prove the place of occurrence.
The submission has been made that it is the specific
version of the P.W.6 that immediately after hearing the sound
of fire, he rushed towards Bihar Motors and found his father
lying on verandah and accused persons were present there
armed with pistol.
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The P.W.6 has also stated in his testimony that he
immediately thereafter carried his father to the hospital in the
injured condition and there was profuse bleeding but the
Investigating Office has not disclosed the fact in his testimony
that the P.W.6 was present in the hospital.
Learned counsel for the respondents, therefore, has
submitted that P.W.6, if was present at the place of occurrence
at the time of commission of crime and being the son of the
deceased if he had carried his father in the injured condition
then in the O/D Slip there must be reference of his presence
but there is no reference of P.W.6 having been found in the
O/D Slip.
Further submission has been made that P.W.6 cannot be
said to be present at the place of occurrence since even the
dead body was not received by him, as would appear from the
testimony of P.W.6.
25. This Court has considered the submission and is of the
view that what is being submitted, cannot be disputed reason
being that the P.W.6 admittedly is the son and if the
occurrence of commission of murder has taken place in his
presence, as per his version, then being the son, he would
carry the injured father to the hospital and exactly the same
thing has been deposed by him in his testimony but no blood
stained cloth has been recovered by the Investigating Officer.
Further, P.W.5 Lallan Choudhary, who claims to be an
Acquittal Appeal No. 4 of 2002
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eye witness, never stated in his evidence that Birendra Kumar
and Ragho Sharan had reached Bihar Motors immediately
after Thakur Prasad Singh was fired upon.
Further, if the son was along with his injured father, then
there was no occasion for the Investigating Officer to obtain
the O/D Slip from the concerned hospital, rather, it would
have been handed over to the P.W.6 in the capacity of son of
the deceased.
Further, it is evident from the testimony of the P.W.6 and
the Investigating Officer, P.W.7, that even the dead body was
not handed over in the Tata Main Hospital to the P.W.6 and,
as such, it cannot be accepted with full authenticity about
presence of P.W.6 at Tata Main Hospital, otherwise, dead body
of the deceased must have been handed over to the son,
P.W.6.
26. This Court, on the basis of such analysis and the
common conduct of a son in a case where father sustained
bullet injury, is of the view that presence of P.W.6 is not being
corroborated from the testimonies and material available on
record, as such, he cannot be considered to be an eye witness.
So far as the testimony of P.W.5 Lalan Choudhary is
concerned, who happens to be the brother-in-law of the
deceased, who has also been treated to be eye witness by the
prosecution by considering his testimony wherein it has been
stated by him that while he was taking tea in the tea stall of
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Mina Devi situated in front of Bihar Moters in Kalimati Road,
he saw 7 persons armed with pistol, who after crossing the
road, surrounded T.P.Singh in front of Chabutara of Bihar
Mothors. According to his version, Sanjay Prasad gave the first
shot, Santosh gave the second shot and Manoj gave the third
shot. He has also stated that accused Bishu Chaurasia,
Chandrawali and two others were armed with pistol, were
threatening the people and uttering that T.P.Singh has been
murdered and if anyone would try to come, they would also be
shot dead.
However, the Investigating Officer, in his deposition at
Para 89, has stated that P.W.5 Lalan Choudhary had not
stated before him that he had seen seven persons crossing the
road and going to Bihar Motors.
P.W.3 has been considered to be an eye witness who has
stated that that when the occurrence took place he was taking
tea in the Tea Stall of Mina Devi. P.W.5 Lalan Choudhary was
also with him. He observed that seven boys were crossing the
road armed with pistol towards Gulab Hotel. After crossing the
road they reached near the Chabutara of Bihar Motors.
Thereafter, Sanjay Prasad gave the first fire shot on the
deceased. Second shot was made by Santosh and third fire
shot was made by Manoj. He has further stated that the rest of
the accused persons among them were Bishu Chourasia,
Chandwali and uncle (Mama) of Sanjay Prasad who were
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threatening those persons trying to approach there. He has
further stated that T.P. Singh fell down after receiving firearm
shot injury. In the meantime, his son Birendra came with
Ragho Sharan Singh. The accused persons fled away through
an adjacent lane going towards east. Thereafter, Birendra
Singh and Ragho Singh along with two persons carried T.P.
Singh to T.M.H. He has further stated that on the date of
occurrence at about 9.30 A.M. the police in front of Bihar
Motor recorded his statement. He has further stated that T.P.
Singh got first bullet injury in the right side of his abdomen
second bullet injury was on the right side of cheek and third
on the left side of the back. This witness identified accused
Dilip Agarwal, Santosh, Mama @ Mahesh Gupta, Chandrawali,
Shankar Dayal Dubey, Pradeep, Binod and Radha Kant in the
dock.
When we have considered the testimony of the
Investigating Officer, he has stated at Para 88 that P.W.3
Upendra Kumar had never stated before him that P.W.6
Birendra Kumar had reached to the place of occurrence
immediately after the occurrence and he had also not stated
before him that P.W.6 Birendra Kumar had carried his injured
father to the Tata Main Hospital.
27. This Court, after having discussed the testimony of the
witnesses including the testimony of the Investigating Officer,
has found from the submission made on behalf of the
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appellants and the Revisionist petitioner that their sole
contention is based upon P.W.3, P.W.5 and P.W.6 but they
have not argued or even not given a thrust upon the testimony
of the Investigating Officer wherefrom it is evident that as per
the discussion made hereinabove the presence of P.W.3, P.W.5
and P.W.6 at the place of occurrence is in cloud.
The position of law is well settled that the testimony of
the witnesses is to be considered in entirety, as has been held
by Hon'ble Apex Court in the case of Shyamal Ghosh v.
State of West Bengal, reported in (2012) 7 SCC 646 has
held at paragraph- 49 and 69, which reads as under:-
"49. It is a settled principle of law that the court
should examine the statement of a witness in its
entirety and read the said statement along with the
statement of other witnesses in order to arrive at a
rational conclusion. No statement of a witness can be
read in part and/or in isolation. We are unable to see
any material or serious contradiction in the statement
of these witnesses which may give any advantage to
the accused.
69. Another settled rule of appreciation of evidence as
already indicated is that the court should not draw
any conclusion by picking up an isolated portion from
the testimony of a witness without adverting to the
statement as a whole. Sometimes it may be feasible
that admission of a fact or circumstance by the
witness is only to clarify his statement or what has
been placed on record. Where it is a genuine attempt
on the part of a witness to bring correct facts by
clarification on record, such statement must be seen
in a different light to a situation where the
contradiction is of such a nature that it impairs his
evidence in its entirety."
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The Hon'ble Apex Court in the case of Bhagwan
Jagannath Markad & Ors. Vrs. State of Maharashtra,
reported in (2016) 10 SCC 537 had held at paragraph-19 &
20 as under:-
"19. While appreciating the evidence of a witness, the
court has to assess whether read as a whole, it is
truthful. In doing so, the court has to keep in mind
the deficiencies, drawbacks and infirmities to find out
whether such discrepancies shake the truthfulness.
Some discrepancies not touching the core of the case
are not enough to reject the evidence as a whole. No
true witness can escape from giving some discrepant
details. Only when discrepancies are so incompatible
as to affect the credibility of the version of a witness,
the court may reject the evidence. Section 155 of the
Evidence Act enables the doubt to impeach the
credibility of the witness by proof of former
inconsistent statement. Section 145 of the Evidence
Act lays down the procedure for contradicting a
witness by drawing his attention to the part of the
previous statement which is to be used for
contradiction. The former statement should have the
effect of discrediting the present statement but merely
because the latter statement is at variance to the
former to some extent, it is not enough to be treated
as a contradiction. It is not every discrepancy which
affects the creditworthiness and the trustworthiness
of a witness. There may at times be exaggeration or
embellishment not affecting the credibility. The court
has to sift the chaff from the grain and find out the
truth. A statement may be partly rejected or partly
accepted [Leela Ram v. State of Haryana, (1999) 9
SCC 525]. Want of independent witnesses or unusual
behaviour of witnesses of a crime is not enough to
reject evidence. A witness being a close relative is not
enough to reject his testimony if it is otherwise
credible. A relation may not conceal the actual culprit.
The evidence may be closely scrutinised to assess
Acquittal Appeal No. 4 of 2002
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whether an innocent person is falsely implicated.
Mechanical rejection of evidence even of a "partisan"
or "interested" witness may lead to failure of justice. It
is well known that principle "falsus in uno, falsus in
omnibus" has no general acceptability [Gangadhar
Behera v. State of Orissa, (2002) 8 SCC 381] . On the
same evidence, some accused persons may be
acquitted while others may be convicted, depending
upon the nature of the offence. The court can
differentiate the accused who is acquitted from those
who are convicted. A witness may be untruthful in
some aspects but the other part of the evidence may
be worthy of acceptance. Discrepancies may arise due
to error of observations, loss of memory due to lapse
of time, mental disposition such as shock at the time
of occurrence and as such the normal discrepancy
does not affect the credibility of a witness.
20. Exaggerated to the rule of benefit of doubt can
result in miscarriage of justice. Letting the guilty
escape is not doing justice. A Judge presides over the
trial not only to ensure that no innocent is punished
but also to see that guilty does not escape.
[Gangadhar Behera case, (2002) 8 SCC 381, p. 394,
para 17]"
The Hon'ble Apex Court in the case of State of
Himachal Pradesh v. Raj Kumar, reported in (2018) 2 SCC
69 has held at paragraph-16 as under:-
"16. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness
read as a whole appears to be truthful in the given
circumstances of the case. Once that impression is
formed, it is necessary for the court to scrutinise the
evidence more particularly keeping in view the
drawbacks and infirmities pointed out in the evidence
and evaluate them to find out whether it is against the
general tenor of the prosecution case. Jeewan Lal (PW
1) is the son of the deceased Meena Devi residing with
her and the accused in the same house, and a natural
Acquittal Appeal No. 4 of 2002
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witness to speak about the occurrence. Evidence of
PW 1 is cogent and natural and is consistent with the
prosecution case. The High Court was not right in
doubting the evidence of PW 1 on the ground of
alleged improvements made by Jeewan Lal (PW 1) and
rejecting his evidence on the premise that there were
certain improvements."
The Hon'ble Apex Court, again in the case of State of
Karnataka v. Suvarnamma & Anr., reported in (2015) 1
SCC 323 has held that a criminal trial is a judicial
examination of the issues in the case and its purpose is to
arrive at a judgment on an issue as to a fact or relevant facts
which may lead to the discovery of the fact in issue and obtain
proof of such facts at which the prosecution and the accused
have arrived by their pleadings; the controlling question being
the guilt or innocence of the accused. Since the object is to
mete out justice and to convict the guilty and protect the
innocent, the trial should be a search for the truth and not a
bout over technicalities, and must be conducted under such
rules as will protect the innocent, and punish the guilty. The
proof of charge which has to be beyond reasonable doubt must
depend upon judicial evaluation of the totality of the evidence,
oral and circumstantial, and not by an isolated scrutiny.
28. This Court, on the basis of the aforesaid judgment, is of
the view that the consideration is to be made upon the
testimony in entirety not only on the testimony which suits the
prosecution.
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The matter would have been different if the case is based
upon the testimony of eye witnesses and if there is no
inconsistency in the testimony of eye witnesses, the testimony
of the Investigating Officer is to be discarded.
But, the said principle is only applicable in the fact where
the testimonies of the so called eye witnesses are consistent to
each other, duly been supported by the relevant documents.
But, if the testimony is inconsistent about the presence of
such witnesses at the place of occurrence, then certainly the
testimony of the Investigating Officer is of paramount
importance in order to come to the conclusion about the place
of occurrence, date and time of occurrence and the presence of
the eye witness.
Here, in the facts of the given case, the P.W.3 Upendra
Kumar and P.W.5 Lalan Choudhary, who claim to be eye
witness and P.W.6 Birendra Kumar who also claims to have
reached the place of occurrence just after the occurrence took
place, but their presence is under cloud on consideration of
the testimony of P.W.7, the Investigating Officer. The
Investigating Officer, in specific term, has stated that he has
found nothing except spectacles mixed with blood lying at the
Chabutara. The Investigating Officer has also stated in the
specific terms that there was no blood on the shirt of P.W.6
Birendra Kumar and, therefore, there was no seizure of the
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cloth while the P.W.6 has stated in specific terms that he had
carried his injured father to hospital by an auto rickshaw.
When the specific testimony of P.W.6 is that his father
had sustained bullet injury and fell down, then the question
arises that if he was carrying his father to the hospital by
auto rickshaw will it be possible that there will be no sign of
blood on his cloth. It cannot be in a situation when there is
injury caused by bullet but very surprisingly there is no blood
mark on the shirt and that is the reason explained by the
Investigating Officer in the cross examination that since the
cloth was having with no blood, therefore, the cloth was not
seized.
Further, the specific version of the prosecution including
the P.W.3, P.W.5 and P.W.6 that due to bullet injury, the
deceased had fallen down on Chabutara but the Investigating
Officer has specifically stated in his testimony that he even
has got the photograph of the entire area but all the shops
have been found to be closed and no blood was found therein
having been available in the said photograph.
The Investigating Officer, in order to prove the presence
of P.W.3 or P.W.5, has not examined the shop owner of the
aforesaid tea stall, namely, Meena Devi, where the P.W.3 and
P.W.5 were taking tea in the morning.
The P.W.6 although has stated in his testimony that he
was in the T.M.H. along with his injured father, but there is
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no reference of his signature in the O/D Slip and the
emergency slip and even his presence was not corroborated
by such witnesses.
Therefore, it cannot be said on the basis of the
testimonies of P.W.3, P.W.5 and P.W.6 read along with
testimony of P.W.7 that P.W.3 and P.W.5 are the eye witnesses
so as P.W.6 who said to have reached at the place of
occurrence after hearing the sound of fire.
The position of law is well settled that there cannot be
any conviction of a person snatching away the liberty to life if
the prosecution is not able to prove the charge beyond all
shadow of doubt as has been held by Hon'ble Apex Court in
the case of Rang Bahadur Singh and Ors. v. State of U.P.,
(2000) 3 SCC 454 wherein at paragraph 22 it has been held
which reads hereunder as:-
"22. The amount of doubt which the Court would
entertain regarding the complicity of the appellants in
this case is much more than the level of reasonable
doubt. We are aware that acquitting the accused in a
case of this nature is not a matter of satisfaction for
all concerned. At the same time we remind ourselves
of the time-tested rule that acquittal of a guilty person
should be preferred to conviction of an innocent
person. Unless the prosecution establishes the guilt of
the accused beyond reasonable doubt a conviction
cannot be passed on the accused. A criminal court
cannot afford to deprive liberty of the appellants,
lifelong liberty, without having at least a reasonable
level of certainty that the appellants were the real
culprits. We really entertain doubt about the
involvement of the appellants in the crime."
Acquittal Appeal No. 4 of 2002
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Further, in the case of Sheila Sebastian v. R.
Jawaharaj and Anr. reported in (2018) 7 SCC 581 the
Hon'ble Apex Court has held at paragraph 28 which reads
hereunder as :-
"28. In this case at hand, the imposter has not been
found or investigated into by the officer concerned.
Nothing has been spilled on the relationship between
the imposter and Respondent 1. Law is well settled
with regard to the fact that however strong the
suspicion may be, it cannot take the place of proof.
Strong suspicion, coincidence, grave doubt cannot
take the place of proof. Always a duty is cast upon the
courts to ensure that suspicion does not take place of
the legal proof. In this case, the trial court as well as
the appellate court got carried away by the fact that
accused is the beneficiary or the executant of the
mortgage deed, where the prosecution miserably failed
to prove the first transaction i.e. PoA as a fraudulent
and forged transaction. The standard of proof in a
criminal trial is proof beyond reasonable doubt
because the right to personal liberty of a citizen can
never be taken away by the standard of
preponderance of probability."
It is also well settled position of law that there is wide
difference between the word "may be" and "must be" as has
been held by Hon'ble Apex Court in the case of Chandrapal v.
State of Chhattisgarh reported in 2022 SCC OnLine SC
705 wherein at paragraph the issue has been dealt with in
detail which reads hereunder as :-
"7. At the outset, it may be stated that undisputedly
the entire case of the prosecution rested on the
circumstantial evidence, as there was no eye witness
to the alleged incident. The law on the appreciation of
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circumstantial evidence is also well settled. The
circumstances concerned "must or should be"
established and not "may be" established, as held
in Shivaji Sahabrao Bobade v. State of Maharashtra1.
The accused "must be" and not merely "may be" guilty
before a court can convict him. The conclusions of
guilt arrived at must be sure conclusions and must
not be based on vague conjectures. The entire chain of
circumstances on which the conclusion of guilt is to
be drawn, should be fully established and should not
leave any reasonable ground for the conclusion
consistent with the innocence of the accused. The five
golden principles enumerated in case of Sharad
Birdhichand Sarda v. State of Maharashtra2 laid down
in para 152 may be reproduced herein for ready
reference:
"152. A close analysis of this decision would show
that the following conditions must be fulfilled before a
case against an accused can be said to be fully
established:
(1) the circumstances from which the conclusion
of guilt is to be drawn should be fully
established.
It may be noted here that this Court indicated
that the circumstances concerned "must or
should" and not "may be" established. There is
not only a grammatical but a legal distinction
between "may be proved" and "must be or
should be proved" as was held by this Court
in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 ] where the
observations were made :
"Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distance between „may be‟ and „must be‟ is long
and divides vague conjectures from sure
conclusions."
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(2) the facts so established should be consistent
only with the hypothesis of the guilt of the
accused, that is to say, they should not be
explainable on any other hypothesis except that
the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible
hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused."
29. Here, this Court has considered the issue on the basis of
principle of proving the charge beyond all shadow of doubt
and considering the difference in between "may be" and "must
be" and found therefrom that the prosecution cannot be said
to have proved the charge beyond all shadow of doubt for the
reason as stated above.
30. This Court, after having discussed the factual aspect with
the legal position, has scrutinized the finding recorded by the
learned trial court and found therefrom that thoughtful
consideration has been given by scrutinizing the testimonies of
P.W.3, P.W.5, P.W.6 and P.W.7 and other witnesses also which
led the learned trial court not to have found that the
prosecution has been able to prove the charge beyond all
shadow of doubt and in that view of the matter, the judgment
of acquittal has been passed.
Acquittal Appeal No. 4 of 2002
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31. Having heard learned counsels for both the sides and
upon going through the record, we find that the Court below
has meticulously discussed the materials on record. The
reasons assigned by the Trial Court are cogent reasons and in
accordance with law. We do not find any such patent or
inherent illegality and / or irregularity in the impugned
Judgment passed by the Trial Court below, acquitting the
accused respondents for the offences under Sections 302/34,
302/120B and 302 of the Indian Penal Code and Section 27 of
the Arms Act, worth interference by this Court.
32. Consequently, the acquittal appeal as well as criminal
revision, both are dismissed, being bereft of any merit.
(Sujit Narayan Prasad, J.)
I agree
(Subhash Chand, J.) (Subhash Chand, J.)
Jharkhand High Court, Ranchi
Dated, the 27th day of February, 2023.
A.F.R.
Birendra /
