Jharkhand High Court
Prakash Rai @ Jai Prakash Kumar vs The State Of Jharkhand on 3 October, 2023
1
Criminal Appeal (DB) No. 1047 of 2012
With
Criminal Appeal (DB) No. 1076 of 2012
Against the judgment of conviction and order of sentence
dated 20.10.2012 passed by Smt. Seema Sinha, learned District &
Additional Sessions Judge-III, Ranchi in Sessions Trial Case No.
751 of 1998
Prakash Rai @ Jai Prakash Kumar ... Appellant
(Criminal Appeal (DB) No. 1047 of 2012)
Krishna Chandra Prasad ... Appellant
(Criminal Appeal (DB) No. 1076 of 2012)
Versus
The State of Jharkhand ... Respondent
(In both the appeals)
----
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE RAJESH KUMAR
For the Appellant : Mr. Indrajit Sinha, Advocate
(In Cr. Appeal DB No. 1047/2012)
Mr. A. K. Kashyap, Sr. Advocate
(In Cr. Appeal DB No. 1076/2012)
For the State : Mr. Bhola Nath Ojha, A.P.P.
(In both the cases)
C.A.V. on 28.07.2023 Delivered on 03.10.2023
Per R. Mukhopadhyay, J.
1. Heard Mr. Indrajit Sinha, learned counsel for the appellant in
Criminal Appeal (DB) No. 1047 of 2012, Mr. A. K. Kashyap, learned
senior counsel for the appellant in Criminal Appeal (DB) No. 1076 of
2012 and opposed by Mr. Bhola Nath Ojha, learned A.P.P.
2. Since both the appeals arise out of a common impugned
judgment, the same are being disposed of by this common order.
3. Both the appeals are directed against the judgment of conviction
and order of sentence dated 20.10.2012 passed by Smt. Seema Sinha,
learned District & Additional Sessions Judge-III, Ranchi in Sessions
Trial Case No. 751 of 1998, whereby and whereunder, the appellants
have been convicted for the offences punishable u/s 302/120B/34 of
the Indian Penal Code and the appellant in Criminal Appeal (DB) No.
1047 of 2012 has been further convicted for the offence punishable u/s
27 of the Arms Act and both the appellants have been sentenced to
undergo rigorous imprisonment for life along with a fine of Rs. 5,000/-
each for offences punishable u/s 302/34 IPC and 302/120B IPC and in
default in payment of fine to undergo simple imprisonment for one
month. The appellant in Criminal Appeal (DB) No. 1047 of 2012 has
been further sentenced to undergo rigorous imprisonment for 03 years
and a fine of Rs. 5,000/- for the offence punishable u/s 27 of the Arms
Act and in default in payment of fine he has been sentenced to undergo
simple imprisonment for fifteen days. All the sentences were directed
to run concurrently.
4. Th prosecution case arises out of a fardbeyan recorded by
Rajendra Prasad Singh in which it has been stated that on 28.03.1994
his nephew Suraj Singh along with his friends Rajendra Lohra, Chhotu
Sah, Sanju Sinha, Santosh Singh and Kana Raju were enjoying the
festival of Holi in the house of Mukri at Jaiprakash Nagar by having
food and liquor. After having meal, they started quarreling with Suraj
Singh over some issue and with a common intention had committed
the murder of Suraj Singh. It has been alleged that the occurrence of
murder was witnessed by Baleshwar Singh and Shatrughan Rai. After
the incident all the accused persons had fled away.
Based on the aforesaid allegations, Jagarnathpur P.S. Case No.
76/1994 was instituted for the offences punishable u/s 302/34 of the
I.P.C. On conclusion of investigation charge-sheet was submitted u/s
302/34/120B of the I.P.C. and u/s 27 of the Arms Act against Prakash
Rai @ Jai Prakash Kumar, Bachchu Singh @ Raju Kumar, Krishna
Chandra Prasad, Dharmendra Kumar, Baleshwar Singh and
Shatrughan Rai. After cognizance was taken, the case was committed
to the Court of Sessions where it was registered as S.T. No. 751 of 1998.
Charge was framed against the accused persons for the offences
punishable u/s 302/34/120 of the I.P.C. and additionally u/s 27 of the
Arms Act against the accused Prakash Rai @ Jai Prakash Kumar which
was read over and explained to them in Hindi to which they pleaded
not guilty and claimed them to be tried. The accused Shatrughan Rai
and Bachchu Singh died during the trial and accused Dharmendra
Kumar was absconding as such, his trial was split-up.
5. The prosecution has examined as many as six (06) witnesses in
support of its case.
P.W. 1 Sudarshan Singh is the father of the deceased who has
stated that it was 28.03.1994 and the festival of Holi was being
celebrated and at around 2.30 p.m., he was in his house along with his
wife Balmati Devi, his daughter-in-law Rekha Singh and their children,
when Dharmendra Thakur who was a tenant in his house came and
took away his son Suraj Singh despite objections raised by his wife.
After sometime, he along with his wife and daughter-in-law went
outside to find out where Suraj had gone. He thereafter saw near the
house of Rajendra Hotelwala, Krishna Mahto and Dharmendra
Thakur, holding his son while Prakash Rai shot at him. He has further
stated that Bachchu Singh had assaulted his son with a Bhujali. Due to
the firearm injury his son died. On seeing the incident, he became
unconscious. After 5-6 days from the date of occurrence, his statement
was recorded before the Magistrate. He has proved his statement,
which has been marked as Ext. 1. After two days of the occurrence, he
came to know that Rajendra Singh and Shatrughan Rai had lodged a
false F.I.R. implicating innocent persons.
In cross examination on behalf of Baleshwar Singh, he has
deposed that Baleshwar Singh was not present at the place of
occurrence.
In cross examination on behalf of Krishna Chandra Prasad, he
has deposed that after the incident he had become unconscious. He
cannot say as to what happened during the period, he remained
unconscious. He regained consciousness after three days from the date
of occurrence. He was told by the police that on the date of occurrence
itself, Rajendra Singh had lodged a First Information Report.
In cross examination on behalf of Prakash Rai, he has deposed
that he had not heard of the incident after he regained consciousness.
He had not stated about the incident to anyone. His family consists of
8-10 members who reside with him. He has further deposed that on the
date of occurrence, all were in the house except Suraj Singh who was
at the place of occurrence. He had given a written report to the police
after 4-5 days from the date occurrence. On seeing the written report
he has deposed that he had not mentioned the name of any witness in
the said report. It is a fact that in the murder case of the brother of
Prakash Rai, namely, Shatrughan Rai, he is an accused. The house of
Yugal Kishor is adjacent to his house and there are 7-8 houses near the
house of Yugal Kishor. On the western side of the house there are 5-6
houses. On the eastern side of house is Bandhu Hotel and adjoining the
hotel are 3-4 houses. He was aware about the locality namely,
Panchwati, but he has never visited it. He has deposed that near the
place of occurrence, there are 20-25 houses. His wife, daughter-in-law
and several persons according to him had seen the occurrence. On
witnessing the incident, he and his wife became unconscious, but he
regained his senses immediately thereafter. He remained unconscious
for 30 minutes while his wife remained unconscious for 45 minutes.
P.W. 2 Rekha Singh is the wife of the deceased who has stated
that on 28.03.1994 in between 2-2.30 p.m., she was in the house when
Dharmendra Thakur had come and had called her husband Suraj
Singh. She and her parents-in-law started following them. She has
stated that near the house of Rajendra, Prakash had fired at the neck of
her husband, Kishor Mahto had assaulted him with Danda and
Bachchu Singh with a dagger. Her husband fell down at the place of
occurrence and died at the spot. She has identified in Court Prakash,
Krishna and Baleshwar Singh.
In cross examination on behalf of Baleshwar Singh, she has
deposed that Baleshwar Singh was not seen at the place of occurrence.
In cross examination on behalf of rest of the accused, she has
deposed that Dharmendra Thakur was a tenant about 5-6 years prior
to the incident. There was no previous enmity with Dharmendra
Thakur. Earlier also, her husband used to go out with Dharmendra
Thakur. There was no reason for them to follow her husband. She
thereafter has stated that since it was the day of Holi in order to prevent
any untoward incident with any one, they had followed her husband.
Her statement at Para-2 was not told to her by someone, but they had seen
the murder committed. This was not disclosed by her to the
Investigating Officer. It is a fact that her father-in-law on hearing about
the murder of his son remained unconscious for three days. After
sometime, when she was in her house, she came to know that her
husband has died. They had gone to see her husband after 30 minutes
from the time her father-in-law had become unconscious.
P.W. 3 Niranjan Minz was posted as a Tutor in RMCH, Ranchi
and on 29.03.2014, he had conducted postmortem on the dead body of
Suraj Singh and had found the following:-
"Fire arm injury:-
(1) Having would of entrance 1 ½ cm. On the front part of the
neck at its root in the mid lines, the margin of the would was
abroded. The projectile passed through the soft tissue, the
trachea and entered into the left chest cavity just below the
left clavicle perforted the left lung, then passed through the
left chest wall posterior region brokes the left scapula and
made an exit would 3 cm X 1 cm. on the left scapular region.
The track of the would was contused and lacerated. There
was presence of blood and blood clots in the left chest cavity."
He has opined that all injures were antemortem caused by
firearm. The cause of death was due to haemorrhage and shock. He has
proved the postmortem report which has been marked as Ext. 1.
In cross examination, he has deposed that no bullet or pellet
were recovered from the dead body.
P.W. 4 Balmati Devi is the mother of the deceased Suraj, who has
stated that the incident is of 28.03.1994 which was the day of
celebrating Holi festival at 2.30 p.m. and her son Suraj Singh was
sleeping. She has stated that Dharmendra had come and had taken
away her son to Panchwati. She followed them along with her husband
and daughter-in-law (wife of the deceased) and had seen Krishna
Mahto and Bachchu surrounding her son. Prakash had fired a shot on
the neck of her son and her son fell down and died. The place where
the occurrence had taken place is more than 20 degs from her house.
Her statement was recorded before the Magistrate 5-6 days after the
occurrence. She has identified Prakash, Krishna Mahto and Baleshwar
Mukhiya in court.
In cross examination on behalf of Baleshwar Singh, she has
deposed that when she came to Panchwati, Baleshwar Singh was not
present. No one had disclosed to her that Baleshwar Singh had
committed the murder.
In cross examination on behalf of Prakash Rai, she has deposed
that she had cordial relationship with Baleshwar Singh, Rajendra Singh
and Shatrughan Singh. Her son was called by Dharmendra Thakur
who was earlier her tenant. She had a cordial relationship with
Dharmendra Thakur. Dharmendra used to roam around with her son.
She and her other family members did not have any suspicion over
Dharmendra Thakur. On the date of occurrence, when Dharmendra
Thakur had taken away her son, the same did not arise any suspicion.
She has stated that they thought that her son will return back shortly.
She has deposed that Dharmendra and her son had gone for ten degs
when she and the others started following them. There was no reason
for following her son and Dharmendra Thakur. She followed them
after 15-20 minutes. There is no witness to her following her son and
Dharmendra Thakur. She has stated that prior to the incident, she had
never gone to Panchwati. She has also stated that Panchwati cannot be
seen from her house.
P.W. 5 Suresh Kujur has stated that the incident is of 15 years
back. He had returned home from his duty at 3.30 p.m. when he heard
some commotion specifying that someone has been murdered. He
went to the place of occurrence, which is near a tap adjacent to the
railway line and had seen the dead body of Suraj Singh. After the police
came an inquest was prepared. He has proved his signature in the
inquest report which has been marked as Ext. 3.
In cross examination he has deposed that neither he had
witnessed the incident nor has any knowledge about the same.
P.W. 6 Rajendra Prasad Singh is the informant of the case who
has stated that the incident is on the day of Holi and the year was
perhaps 1994. Suraj Singh was his nephew who had a tiff with Rajendra
Lakra, Kanu Raja and some other persons on the day of Holi and a
firing was done and the bullet hit Suraj Singh. He has stated that some
local persons like Baleshwar Singh Mukhiya, Shatrughan Ram and
others had seen the occurrence. He had not seen the occurrence.
This witness was declared hostile by the prosecution.
In cross examination on behalf of Prakash Rai he has deposed
that he knows Prakash Rai by his face, but he was not there at the time
of occurrence.
In cross examination on behalf of the rest accused persons he has
stated that he cannot recognize anyone due to the long passage of time.
6. The statements of the accused were recorded under Section 313
Cr.P.C. in which they have denied to have any role in the murder.
7. It has been submitted by Mr. Indrajit Sinha learned counsel for
the appellant in Criminal Appeal (DB) No. 1047 of 2012 that the
prosecution has miserably failed to prove the involvement of the
appellant in the commission of murder of Suraj Singh. He has
submitted that the informant who has been examined as PW 6 has been
declared hostile. The Investigating Officer has not been examined and
he therefore could not be confronted with the evidence of the witnesses
and the same has caused prejudice to the defence. In fact PW 1, PW 2
and PW 4 are the eye witnesses to the occurrence and only on account
of previous enmity between PW 1 and the appellant, a concocted story
has been narrated by PW 1 implicating the appellant.
8. Mr. A. K. Kashyap, learned senior counsel for the appellant in
Criminal Appeal (DB) No. 1076 of 2012 has submitted that as per PW
1, he had submitted a written report to the police after he regained
consciousness, but the said report has been suppressed by the police.
Learned senior counsel has drawn the attention of the Court to the
evidence of PW 1 who had stated that he had not disclosed about the
incident to anyone. If as per PW 1, the entire First Information Report
was concocted, the informant should have been criminally prosecuted.
It has been submitted that the evidence of PW 1, PW 2 and PW 4 by no
stretch of imagination can be considered to be an eye witness account
and their presence itself at the place of occurrence is doubtful.
9. Mr. Bhola Nath Ojha, learned APP has submitted that the active
participation of both the appellants in the murder of Suraj Singh is
established beyond any reasonable doubt. PW 1, PW 2 and PW 4 are
the eye witnesses who have also specified the manner of assault
committed by both the appellants. Some minor contradictions in the
prosecution case would not at all be advantageous to the defence
especially in view of the eye witness account of PW 1, PW 2 and PW 4.
10. We have heard the rival submissions and have also perused the
lower court records.
11. In the First Information Report instituted by Rajendra Prasad
Singh (PW 6) relating to the murder of Suraj Singh, the name of the
appellants did not figure, but in course of investigation, the active
participation of the appellants in the murder of Suraj Singh surfaced
and accordingly, they along with some other accused persons were
charge sheeted and thereafter, the learned trial court had convicted and
sentenced these two appellants for committing the murder of Suraj
Singh.
PW 1, PW 2 and PW 4 have consistently stated about they having
witnessed the murder of Suraj Singh; the appellant Prakash Rai having
shot at him while the appellant Krishna Chandra Prasad has been
described variously as to have caught hold of the deceased,
surrounded the deceased and inflicted him with a Lathi blow. So far as
the question of assault with Lathi and Bhujali upon the deceased by the
appellant Krishna Chandra Prasad and another accused is concerned,
the same is contradicted by the postmortem report which merely
reveals presence of a gunshot injury. It is the case of PW 1, PW 2 and
PW 4 that after Suraj Singh had left the house along with Dharmendra
Thakur, they had started following them though without any reason
which is apparent from their evidence. Moreover, Dharmendra Thakur
was their tenant and had a cordial relation with the deceased which
was all more reason for PW 1, PW 2 and PW 4 not to have suspected
any foul play which again runs contrary to their conduct of following
the deceased. PW 4 has stated she started following her son and
Dharmendra Thakur after 15-30 minutes and there is no witness to
such act of her's. PW 2 who is the wife of the deceased although
claimed herself to be an eye witness, but had not witnessed the
participation of the appellants in the murder at the place of occurrence.
She has also stated that she was in her house when she came to know
that her husband had died. PW 1 has stated that after regaining
consciousness, he had submitted a written report to the police, as the
earlier report submitted by PW 6 did not give the true picture of the
incident, but the said report appears to have been suppressed by the
Investigating Officer. PW 1 had also stated that he had not mentioned
the name of any of the witnesses in the said report.
The incident is alleged to have taken place in the afternoon on
the festival day of Holi. As per PW 1 it was a dense locality where the
incident had taken place, but surprisingly no independent witness has
been produced by the prosecution barring PW 5 whose evidence also
is not of much consequence. PW 1, PW 2 and PW 4 are all related to the
deceased and are interested witnesses but that by itself would not lead
to discarding their evidence if the same speaks of truthfulness and
exudes confidence. However, in the present case the contradictions
appearing in their evidence creates an apparent doubt over the case of
the prosecution. The evidence of PW 4 seems to have discarded the
presence of PW 1 and PW 2 and PW 2 seems to have suppressed a vital
information from the I.O. regarding the manner of occurrence. The
examination of the Investigating Officer in such circumstances would
have been of paramount importance and considerable significance and
his non-examination has created a dent in the case of the prosecution.
The enmity between PW 1 and the appellant Prakash Rai cannot also
rule out the false implication of the appellant Prakash Rai.
The evidence of PW 1, PW 2 and PW 4 cannot be relied upon to
prove the case of the prosecution as major contradictions in their
evidence makes their presence at the place of occurrence doubtful. The
learned trial court while recording a finding of guilt has also gone
through the 161 Cr.P.C. statement of the witnesses which he was
precluded from doing so, but having considered such statements has
come to an erroneous finding that the defence has not been prejudiced
by non-examination of the Investigating Officer as there are no
contradictions in the 161 Cr.P.C. statement and the evidence of the
witnesses.
12. We therefore on the basis of the reasonings recorded above,
allow both these appeals and set aside the judgment of conviction and
order of sentence dated 20.10.2012 passed by Smt. Seema Sinha,
learned District & Additional Sessions Judge-III, Ranchi in Sessions
Trial Case No. 751 of 1998.
13. Since both the appellants are in custody, they are directed to be
released immediately and forthwith, if not wanted in any other case.
14. Both these appeals are allowed. Pending I.A. if any stands
disposed of.
(RONGON MUKHOPADHYAY,J.)
(RAJESH KUMAR, J.)
Jharkhand High Court, Ranchi
Dated the 03rd October, 2023
MK/N.A.F.R.
