Jharkhand High Court
Jitendra Kumar Singh @ Pappu Don @ Sadhu vs The State Of Jharkhand on 3 September, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 612 of 2011
With
Criminal Appeal (D.B.) No. 567 of 2011
With
Criminal Appeal (D.B.) No. 573 of 2011
[Arising out of judgment of conviction dated 17.09.2011 and order of sentence
dated 21.09.2011 passed by learned Sessions Judge-I, East Singhbhum in
Sessions Trial Nos.99 of 2008 / 227 of 2008 / 252 of 2008]
Criminal Appeal (D.B.) No. 612 of 2011
Jitendra Kumar Singh @ Pappu Don @ Sadhu
.... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
With
Criminal Appeal (D.B.) No. 567 of 2011
Amlesh Kumar Singh @ Amlesh Singh .... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
With
Criminal Appeal (D.B.) No. 573 of 2011
Binod Kumar Singh .... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellant : Mr. Jitendra Shankar Singh, Advocate
Mr. Amritanshu Singh, Advocate
[In Criminal Appeal (D.B.) No. 612 of 2011]
Mr. Indrajit Sinha, Advocate
Mr. Anjani Kumar, Advocate
[In Criminal Appeal (D.B.) No. 567 of 2011]
Mr. B.M. Tripathy, Sr. Advocate
Ms. Nutan Sharma, Advocate
Mr. Naveen Kumar Jaiswal, Advocate
[In Criminal Appeal (D.B.) No. 573 of 2011]
For the State : Mr. Bhola Nath Ojha, A.P.P.
[In Criminal Appeal (D.B.) Nos. 612 of 2011
& Criminal Appeal (D.B.) No. 567 of 2011]
Ms. Priya Shrestha, Special P.P.
[In Criminal Appeal (D.B.) No. 573 of 2011]
For the Informant : Mr. Amit Kumar Das, Advocate
-----
PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
-----
1
JUDGMENT
Reserved on: 13.08.2024 Pronounced On: 03.09.2024
Per Gautam Kumar Choudhary, J. All these criminal appeals arise out of the
common judgment of conviction and sentence passed in Sessions Trial Nos.99
of 2008, 227 of 2008 and 252 of 2008, whereby and whereunder appellant
Jitendra Kumar Singh @ Pappu Don @ Sadhu and Amlesh Kumar Singh have
been convicted and sentenced under Section 302/120B of the IPC and appellant
Binod Kumar Singh has been convicted and sentenced under Section 302/109
of the IPC.
2. Jamshedpur is a famed city for its first steel plant in Asia established in
1907. Lately, this industrial hub has seen a spurt in organized crime. Prosecution
story is about a broad day light gruesome murder of a business man in the
market place by unidentified gun man in connection with extortionist demand.
3. As per the fardbeyan of Tapas Das, Manager, of Sreeleathers shop
situated at Sakchi market, like any other day, on 02.11.2007 at 8.55 a.m. he was
waiting for the owner of the shop Ashish Dey (deceased), when he received
information from someone that he had received fire arm injury and was lying
near the tri junction crossing. Ashish Dey was taken from there to Tata
Memorial Hospital where on examination, he was declared to be dead.
4. On the basis of the fardbeyan, Sakchi P.S. Case No.240/2007 was
registered against unknown persons under Sections 302/34, 120B of the IPC
and Section 27 of the Arms Act.
5. On investigation, three separate charge sheets were submitted against
Jitendra Kumar Singh @ Pappu Don @ Sadhu, Binod Kumar Singh and Amlesh
Kumar Singh. After cognizance and commitment, separate Sessions Trials were
registered against the accused persons and they were separately charged.
6. Jitendra Kumar Singh @ Pappu Don @ Sadhu was charged for offence
under Section 302/120B and 201 of the IPC, Binod Singh was charged for
offence under Section 302/109 of the IPC and Amlesh Kumar Singh under
Section 302/120B of the IPC and Section 27 of the Arms Act. Sessions cases
were amalgamated on 25.08.2008 and 15.01.2011.
7. Altogether ten prosecution witnesses were examined in Sessions Trial
Nos.99/08 and 227/08, whereas six witnesses were examined in Sessions Trial
No.252/08. Some of the witnesses examined in both the cases are common.
After amalgamation, six witnesses were examined in the joint trial. Relevant
documents including fardbeyan, seizure list, inquest report and post-mortem
examination report have been adduced into evidence and marked as exhibits.
8. Learned trial court has recorded judgment of conviction and sentence on
circumstantial evidence.
9. Judgment of conviction and sentence is assailed by the learned counsels
on behalf of the appellants on the ground that the circumstances arrayed against
the appellants do not prove the charge against them. There are serious
infirmities in proof of each of the circumstance.
10. It is argued by the learned counsels on behalf of Binod Kumar Singh that
there is no legal evidence to prove the charge against the appellants. Past enmity
is sought to be proved on the basis of testimony of P.W. 9- Shekhar Dey, wherein
he has stated about an altercation that took place in a party thrown by Bablu
Ghosh. He was not an eye witness to that altercation which has been admitted
in para 36 and 37 of the cross examination and therefore, it cannot be accepted
into evidence.
11. I find force in the argument on behalf of the appellant that intercepted
phone call made by Binod Singh to another lady cannot be accepted as extra-
judicial confession, for the reason that it has not been proved as an electronic
evidence. Neither CDR duly proved with Section 65-B of the Evidence Act, nor
actual transcript of the conversation has been adduced into evidence. P.W. 12 -
Police Inspector was In-charge of the Technical cell, in para 8 he has deposed
that Binod Singh while in custody had been repenting for "one of his fault", but
he has not elaborated regarding that. So called "one of his fault" remains an
enigma and does not lead to inference that the said "one of his fault" was with
regard to murder of Ashish Dey. P.W.16- Navin Kumar Singh, the then S.P.,
East Singhbhum in para 8 has also deposed to the same effect and claims to
have over heard the conversation between Binod Singh and a lady.
12. It is argued by the learned counsel on behalf of appellant- Jitendra Kumar
Singh that only circumstance relied upon by prosecution against him, is
Circumstance No.VI which is interception of Mobile No.9431990030 between
appellant- Jitendra Kumar Singh and one Jaleshwar Mahto, Rakesh Singh and
one Arjun Singh wherein he disclosed that he had committed murder at
Jamshedpur in which he also sustained injuries. It is argued that Jaleshwar Sao
and Rakesh Singh have been examined as P.W. 13 and P.W. 7 respectively, but
they have not supported the prosecution case and became hostile. Under the
circumstance, testimony of P.W. 12 and P.W. 16 who claimed to have overheard
the conversation cannot be accepted, neither any C.D.R. report has been proved.
P.W. 15 who is also part I.O. has admitted that telephone call was not recorded.
13. It is argued by learned counsel on behalf of Amlesh Kumar Singh only
evidence brought against him is that of Shekhar Dey, who is the brother of the
deceased. He has deposed in para 25 that Amlesh had made an extortionist
demand of Rs.5000/- as Chanda for Durga Puja, whereas they insisted on giving
Rs.301/- only in the year 2006, whereas the incidence is of the year 2007. This
by itself cannot be a ground to draw an inference regarding complicity of this
appellant in the crime. Beyond this, there is no legal evidence against this
appellant. P.W. 10 and P.W. 11 who had stated in their statement under Section
161 that Amlesh Singh had inducted two persons in Hotel Smita just a day
before incidence and three persons in City Inn Hotel, have not supported the
prosecution version and were declared hostile.
14. Learned A.P.P. has defended the judgment of conviction and sentence.
15. Ashish Dey was shot dead, is not in any shade of doubt which has been
objectively established by the post-mortem examination report and duly proved
by the Autopsy Surgeon examined as P.W. 2. Without going into details of ante
mortem injury, suffice to say that two fire arm injuries with entry and exit
wounds were found over left side back of lower chest and over right side upper
abdomen. Doctor opined that death was due to the injuries which were caused
by fire arm. Prosecution evidence discloses the following circumstances: -
I. In the month of January, 2007 an extortion letter was received in the
house of deceased with a demand of 50 pieces of A.K. 47 rifle and Rs.1.5
Crore. In March, 2007, an anonymous call was received reiterating the
demand. On the next morning, when Ashish Dey returned from Puri, a
bomb was found from the roof top.
II. On the eve of Vishwakarma Puja, Bablu Ghosh was assaulted in a party
given by him, Binod Singh was present there, but he did not participate
in the assault.
III. In the year 2006, Amlesh Singh has demanded Rs.5000/- donation on the
eve of Durga Puja.
IV. Telephone call made by Jitendra Singh to Jaleshwar Mahto was
intercepted wherein he admitted to commit the offence.
V. Amlesh had arranged for stay of unidentified persons in two hotels.
VI. Jitendra Singh @ Pappu Don had admitted his guilt for committing the
murder of Ashish Kumar Dey and from his possession, Nokia Mobile
1600 was seized with SIM No.9431990030, was seized by which he had
talked with Jaleshwar Mahto admitting his guilt.
VII. S.P., Jamshedpur (P.W. 16) overheard the intercepted call of Jitendra
Singh where he admitted to commit the offence.
VIII. There was business rivalry between Ashish Dey and Binod Kumar Singh.
16. There are two basic requirements to prove a case based on circumstantial
evidence. First is that there should be a complete chain of circumstance which
should unerringly point to the guilt of the accused and secondly, each of the
chain should be independently proved. In the present case, neither the chain of
circumstance conclusively leads to the conclusion that appellants/accused
persons were guilty of the offence, nor each of the circumstance has been
proved. In order to prove the charge, it was incumbent upon the prosecution to
establish that the appellants were in some way linked to the extortionist demand,
or they had some business rivalry with the deceased and secondly were
connected to the assailants. It is understandable that evidence in such cases can
be scanty, as in such cases there is always a veil of secrecy in the modus
operandi to screen and cover up the principal offenders. But, there need to be
some legal evidence to connect the accused persons to the crime.
17. To begin with, there are two limbs of extortionist demands relied upon by
the prosecution case. Circumstance No.III as noted in the impugned judgment,
is the first one. There is absolutely no evidence on this part. No CDR has been
brought on record to establish the source of the extortionist call and how where
these appellants connected with the said call. Second is the Circumstance No.V
referred to above demand made in 2006, when appellant Amlesh Singh had
demanded Rs.5000/- donation on the eve of Durga Puja. This circumstance has
been proved by Shekhar Dey. Incidence is after about a year on 02.11.2007 and
mere demand for donation on Durga Puja by itself cannot connect the accused
to the offence charged. Something more need to be proved that he persisted with
the demand or had extended life threat to the deceased.
18. With regard to the extortionist demand of Rs.1.5 Crore, P.W. 9 has given
a detail in which the demands were telephonically made and notes containing
such demand was also received, but the callers could not be identified during
investigation. It has come in his evidence that there was some business rivalry
between Babloo Ghosh and Ashish Dey, but there is no evidence of business
rivalry between the appellants and the deceased.
19. Much reliance has been placed on the said telephonic conversation
overheard by the police officer, will not be legally admissible in evidence. It is
settled principle of law that extra judicial confession is a weak piece of evidence
and the witness must give the actual words used by the accused as merely as
possible. A mere statement that the accused had confessed is too vague and
uncertain to make the basis of confession. As discussed above, the lady to whom
the said confession was made, has also not been examined and the prosecution
seeks to rely on overheard conversation, where neither the CDR has been
proved nor the content of the conversation. Furthermore, what has been stated
is that the accused had confessed of having committed "one of his fault" but it
does not connect to the offence.
20. The present case is a sad indictment of the society where a broad day light
murder is committed in the market place, but none come forward to stand as eye
witness to the incidence. The state of policing and investigation is also one of
gross insensitivity and inefficiency. It has come in the evidence that the
deceased had received extortionist demand and also threat to his life, but no
preventive measure was taken for his safety and security. Brother of the
deceased- Shekhar Dey has deposed that police had been informed about the
earlier extortionist demand of Rs.1.5 Crores and one bomb was also found from
the roof top of the deceased the same year, but nothing was done to track the
persons involved in the extortionist demand. The only evidence is against
appellant- Amlesh Singh who had demanded Rs.5000/- as donation during
Durga Puja which could not be connected to the crime. Prosecution has relied
upon intercepted telephone call overheard by the police officers, but neither the
CDR has been proved nor the persons to whom the call was made, has been
examined. I therefore, find that the prosecution has utterly failed to prove the
charge against the appellants either by direct or circumstantial evidence.
Judgement of conviction and sentence is not sustainable and is accordingly set
aside.
All the Criminal Appeals are allowed.
Pending Interlocutory Application, if any, is disposed of.
Appellants are in custody, they are forthwith directed to be released from
custody if not required in connection with any other case.
Let the Trial Court Records be transmitted to the Court concerned along
with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Per Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, 3rd September, 2024
AFR/Anit
