Arvind Rajwar vs The State Of Jharkhand
2024 Latest Caselaw 9014 Jhar

Jharkhand High Court

Arvind Rajwar vs The State Of Jharkhand on 6 September, 2024

Author: Ratnaker Bhengra

Bench: Ratnaker Bhengra, Ambuj Nath

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
               Cr. Appeal (DB) No. 930 of 2018

Arvind Rajwar, son of Rambachan, resident of village: Jhahsipur, PO & PS:
Gorabadshah, District: Jaunpur, State: U.P.             ... Appellant
                                  -Versus-
The State of Jharkhand                 ...                ... Respondent
                                    With
                   Cr. Appeal (DB) No. 1113 of 2019

Arun Singh @ Arun Kumar Singh, son of Bhim Singh, resident of village:
Sipra Matkhan, PO: Dhelwa, PS: Beure, District: Patna, Bihar ... Appellant
                               -Versus-
The State of Jharkhand             ...                    ... Respondent

      CORAM:- HON'BLE MR. JUSTICE RATNAKER BHENGRA
                 HON'BLE MR. JUSTICE AMBUJ NATH

            For the Appellant(s) : Mr. Birendra Kumar, Advocate;
                                    Mr. Raj Kishore Sahu, Advocate
                                            [in both cases]
            For the State         : Mr. Anup Pawan Topno, APP
                                    [in Cr. Appeal (DB) No. 930 of 2018]
                                      Mrs. Vandana Bharti, APP
                                      [in Cr. Appeal (DB) No. 1113 of 2019]
                                      ...

CAV on: 20/02/2024                         Pronounced on: 6/9/2024


      Heard the parties.

2. These criminal appeals are directed against the judgment of conviction dated 16.05.2018 and order of sentence dated 17.05.2018 passed by the learned Additional Judicial Commissioner VII-cum-FTC (CAW), Ranchi in Sessions Trial No. 699 of 2016 and Sessions Trial No. 163 of 2017 (TR No. 08 of 2017), arising out of Namkum PS Case No. 170 of 2016 being GR Case No. 3657 of 2016 whereby and whereunder, the appellants were convicted under section 396 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs.20,000/- each and in default of payment of fine to undergo simple imprisonment for three months.

3. The prosecution case, in brief, as per the fardbeyan dated 28.06.2016 of the informant PW-1 Pappu Yadav is that the informant is a driver of truck bearing no. BR- 27E-2791 and wheat grain worth Rs.3-3.5 lacs was loaded in his truck. Informant further stated that when his truck was crossing Jam Chuan, another truck, on which N.N.T.C was written, overtook his truck and forcibly stopped his truck. Thereafter, altogether eight persons came down

Cr. Appeal (DB) No. 1113 of 2019 from the aforesaid truck and captured the informant and his cleaners Sonu Kumar (PW-2) and Gautam Kumar. Informant further stated that one of the miscreants took out something from paper and put it in water and forcibly made them to drink the mixture as a result of which they became semi- conscious. Miscreants assaulted and injured them and took their truck towards Tata. Miscreants were aged about 30 to 32 years and were talking in Maghi language. Informant further stated that occurrence took place on 28.06.2014 at about 4 A.M in the morning.

4. On the basis of the fardbeyan FIR being Namkum P.S. Case no. 170/ 2016 dated 28.06.2016 was registered under section 395 of the Indian Penal Code against unknown persons. The Investigating Officer submitted first charge-sheet against the accused Arvind Rajwar and Ajay Kumar @ Gorelal and investigation was kept pending against other accused, thereafter, Supplementary charge-sheet was submitted against the accused Arun Kumar Singh. Cognizance of the offences were taken and case was committed to the court of sessions for trial. Charges were framed against the accused persons including the appellants under sections 395, 396 and 328 of IPC and trial was held. During pendency of trial accused Ajay @ Gorelal did not appear and his record was split up from the original record. At the conclusion of trial appellants were convicted and sentenced as aforesaid.

5. Prosecution had examined altogether 10 witnesses out of whom PW-1 Pappu Yadav @ Pappu Kumar, is the driver and informant of the case; PW-2 Sonu kumar, is the cleaner of the truck; PW-3 is Ramakant Prasad and he is also driver; PW-4 is Nagendra Prasad and he the owner of the truck; PW-5 is Bashita Narayan Roy, who is the investigating officer; PW-6 Bhola Prasad Singh and PW-8 Ratibhan Singh, are police inspector; PW-7 is Dr. A.K. Choudhary; PW-9 Rajendra Kumar Dubey, is police inspector-cum-officer- in-charge of Namkum police station and PW-10 is Sourabh Kumar Gautam, who is judicial officer.

6. PW-1 Pappu Yadav @ Pappu Kumar is the informant of the case. Informant has stated in his evidence that occurrence is of 28.06.2016 at 4 a.m. in the morning. He proceeded from Buti More from his truck bearing registration no. BR-27E-2791 to Tata and wheat was loaded on the truck. As soon as he reached near Jam Chuan Tower (Mobile), another truck over took him and forcibly stopped his truck. Two persons came out from the aforesaid truck and gave him two fist blow and climbed on his truck. Total eight persons came out from that truck and they forcibly made to drink, Sonu

Cr. Appeal (DB) No. 1113 of 2019 Kumar and Gautam Kumar medicine. Six persons strangulated the informant with towel as a result informant became senseless. Miscreants took his truck and their truck to Tata, on which total wheat of value Rs.3.50 lacs were loaded in the truck. They were given medical treatment in the Maa Kalawati Hospital. Informant has identified his signature on the fardbeyan and his signature on the fardbeyan was marked as Exhibit-1. Gautam Kumar was referred to RIMS, Ranchi, where he was declared dead. TIP of the accused persons was conducted on 17-11-2016, where he identified the accused persons. Informant identified accused Gorelal and Arun Kumar present in the court. Informant stated that he had identified accused Arvind Rajwar and Gorelal in TIP. Informants signature on TIP was marked as Exhibit-1/1. Informant has stated in his cross-examination that when he regained sense, he found himself in forest, at about 7-7:30 a.m.

7. PW-2 is Sonu Kumar, who was cleaner in the truck. PW-2 has stated in his evidence that on 28.06.2016, they were going to Tata from a truck bearing registration no. BR-27E-2791. He was sleeping inside the truck and woke up when the truck stopped. Eight persons entered into the cabin and assaulted them and forcibly made them to drink medicine. They threw them out from the truck and he became senseless. Wheat worth Rs.3.50 lacs was loaded on the truck and they drove the truck towards Tata. They were given medical treatment in hospital and the cleaner Gautam Kumar died during medical treatment. The truck taken by the accused persons is still traceless. PW-2 identified the accused persons present in the Court. In his cross- examination PW-2 stated that he had identified the accused persons in jail and photograph of the accused persons were published in newspaper.

8. PW-3 is Ramakant Prasad; he is also a driver of another truck. PW-3 has stated in his evidence that the occurrence is of 28.06.2016 and he was at Tipudana. He received phone of his staff and was informed that Pappu Kumar, Sonu Kumar and Gautam Kumar were admitted in hospital. He reached Kalawati Hospital and found that Pappu was giving statement before the police and saw Gautam Kumar in an injured condition and after 10 to 15 minutes, he died. He sent Sonu Kumar to RMCH. PW-3 identified his signature on fardbeyan and his signature on fardbeyan was marked as Exhibit-2.

9. PW-4 is Nagendra Prasad, who is the owner of the truck. PW-4 has stated in his evidence that some unknown person informed him on phone that staff of his truck were lying on ground and his truck was traceless. He

Cr. Appeal (DB) No. 1113 of 2019 came to Ranchi and went to Namkum police station where he was informed that his staffs were admitted in Maa Kalawati Hospital. He reached the hospital but none of them were in condition to speak. Gautam Kumar died and Sonu Kumar was referred to RIMS. The registration number of the truck was BR-27B-2791 and wheat was loaded on it.

10. PW-6 is Bhola Prasad Singh, who was posted as officer-in-charge on 25.08.2016 at Sadar police station, Ranchi. PW-6 has stated in his evidence that a team was constituted regarding Namkum PS Case No. 170 of 2016. They proceeded for Tilaya on 25.08.2016 and there they got information that a truck was seen having number plate on its front bearing registration no. NL-01K-413 and on its back number plate was displaying registration no. NL-09K-0493. Six accused persons were on that truck and were moving towards Barhi. The police team chased that truck near Kuju valley, but, the truck driver took the truck to Kuju market and then accused persons started to flee from the truck. Two accused persons entered into a temple where festival of Janmashtami was being celebrated. One of the accused persons jumped from the 3rd floor of the temple on the asbestos roof of a shop and was injured. He was caught and he disclosed his name as Ajay Kumar @ Gorelal Yadav. Another accused was caught from inside the temple and he disclosed his name as Arvind Rajwar. Police force got information that truck had proceeded towards Bokaro and the truck was apprehended by Nirsa police. One accused, namely, Arun Kumar was arrested from Sindhrol, and one country made pistol was recovered from his possession.

11. PW-5 is Bashita Narayan Roy, who is the investigating officer of the case. Investigating officer has stated in his evidence that on 28.06.2016, he was posted at Namkum police station on the post of Sub Inspector. On 28.06.2016, at about 4:30 a.m. he got information on telephone that truck was being looted near Jamchua and he proceeded there and a person near Bathandih told him that two trucks were standing ahead and there was quarrel between them. PW-5 further stated that officer-in-charge directed him to come to Kalawati Hospital where injured persons were being treated and at the hospital, he saw three injured persons. The cleaners of the truck, namely, Sonu and Gautam were senseless and Pappu Yadav was conscious but he was also injured and he took fardbeyan of Pappu Yadav. He got information from Maa Kalawati Hospital that Gautam Kumar died during treatment. He came to hospital and prepared inquest report and sent the dead body to RIMS, Ranchi for post-mortem. He took re-statement of the

Cr. Appeal (DB) No. 1113 of 2019 informant and visited the place of occurrence which is 8 Km South-East of police station situated at village: Bathandih and 500 m ahead from CDF School on NH 33 Road, which goes from Ranchi to Tata. He got information that the truck used in crime was seen in Hazaribagh. He obtained CCTV footage from toll tax station, Ormanjhi and obtained call details of mobile number which was used near Ormanjhi toll tax station. Two mobile phone numbers were detected and accused Arvind Rajwar and Gorelal Yadav were arrested from Kuju and accused Arun Kumar Singh was arrested from Sidhrol. The seizure list dated 25.08.2016 was prepared which is in handwriting and signature of Rajendra Kumar Dubey and seizure list was marked as Exhibit-5.

12. PW-8 is Ratibhan Singh and PW-8 has stated in his evidenced that on 25.08.2016 he was posted at Argora police station on the post of officer-in- charge. A team was constituted regarding Namkum PS Case No. 170 of 2016. The team proceeded to Tilaya on the information that six accused persons were seen on a truck and they were going towards Barhi and the truck was having number plate on its front bearing no. NL-01K-0413 and in its back a different number was displaying as NL-09K-0493.The truck was chased and in Kuju valley the truck attempted to cause damage to the police vehicle. The truck came to Kuju market and the accused persons started to flee and two accused persons entered in a temple where festival of Janmastmi was being celebrated. One of the accused jumped from 3 rd floor of the temple to an asbestos roof of a shop and was injured. He was arrested and his name was Ajay Kumar @ Gorelal Yadav and another accused Arvind Rajwar was arrested from the temple. When the police team returned, it was found that the truck was traceless and they came know that the truck had proceeded towards Bokaro. PW-8 further stated that Nirsa police had apprehended the aforesaid truck but the accused persons fled away. Other accused, namely, Arun Kumar Singh was arrested from Sidhrol, on identification of Arvind Rajwar and one country made pistol was recovered from his possession. PW-8 in his cross-examination stated that they had proceeded for Tilaya from Ranchi on 25.08.2016 and there were three police officers in the team.

13. PW-9 is Rajendra Kumar Dubey, who was on 25.08.2016, posted at Namkum police station on the post of officer-in-charge. PW-9 has stated in his evidence that a team was constituted for arrest of accused persons in connection with Namkum PS Case No. 170 of 2016. On 26.08.2016, he got

Cr. Appeal (DB) No. 1113 of 2019 information that culprits involved in looting of wheat from a loaded truck from Namkum, were planning to commit another offence at Koderma. Then team proceeded to Koderma and got confidential information that a truck displaying no. NL-01K-0413, in its front and a different number displaying on its back as NL-09K-0493 was going towards Barhi and 6-8 persons were seen on that truck. The truck was chased and in Kuju valley the truck attempted to cause damage to the police vehicle. The truck came to Kuju market and the accused persons started fleeing away. Two accused persons entered in a temple where festival of Janmastmi was being celebrated. One accused jumped from 3rd floor of the temple to an asbestos roof of a shop and sustained injury and the said accused was arrested, who disclosed his name as Ajay Kumar @ Gorelal Yadav and other accused was arrested from temple, who disclosed his name as Arvind Rajwar. Later on, another accused was arrested from Sidhrol, under Namkum police station, who disclosed his name as Arun Kumar Singh and a country made pistol was recovered from his possession.

14. PW-7 is Dr. A.K. Choudhary and PW-7 has stated in his evidence that Dr. Shakti Prakash Gawaskar, was a Junior Resident posted in his department on 28.06.2016 and on that day he conducted post-mortem under his supervision over dead body of Gautam Kumar. Doctor found rigor mortis was present all over body and whitish froth from both nostrils. Following injures were found:

Abrasion:

1. 2 x 1 cm over back of right shoulder.

2. 4 x 2 cm and 3 x2 cm over right side of abdomen lacerated middle part.

3. 3 x ½ cm over upper part of back of right forearm.

4. 9 x 2 cm over right scapular region.

Internal:

There was defuse contusion of right occipital scalp, crack fracture 4 cm long of right occipital bone, contusion of brain with presence of subdural blood and blood clot on both side of brain. The stomach contained pesty materials 150 gm and stomach wall were congested. Opinion:

Above-noted injuries were ante-mortem, caused by hard and blunt substance and death was due to head injury and time since death was between 3 to 18 hours from time of post-mortem. The post-mortem report of the deceased was marked as Exhibit-6.

Cr. Appeal (DB) No. 1113 of 2019

15. PW-10 Sourabh Kumar Gautam, is Judicial Officer and he had conducted TIP of the suspected accused persons on 17.11.2016 in connection with GR Case No. 3657 of 2016 in B.M.C., Jail Premises, Hotwar, Ranchi. The suspects Ajay Kumar @ Gorelal and Arvind Rajwar were mixed up with under trial prisoners and witnesses Sonu Kumar and Pappu Kumar identified the suspected persons. The TIP chart was marked as Exhibit-7.

Arguments of the learned counsel for appellants:

16. The learned counsel for the appellants has submitted that the proceedings of the TIP were conducted on 17.11.2016 and it loses all its significance and is liable to be disbelieved in view of the own admission of PW-2 Sonu Kumar in para-6 of his deposition that news about the occurrence had been published in newspaper and the photographs of the accused persons were also published therein. The words of paragraph no.6 read thus:

"There was an article in the newspaper about the incident. Photographs of the accused were also printed in it."

17. The learned counsel has further submitted that PW-10 Saurabh Kumar Gautam, Judicial Officer, in para-2 of his deposition says that it is supposed that no facilitation was given to the prosecution produced witnesses and hence, prior to conducting proceeding of TIP the learned Judicial Magistrate did not ascertain that the witnesses were not facilitated about the identification of the accused persons.

18. The learned counsel has further submitted that conviction cannot be based solely on the identification of the dacoits by the witnesses in the TIP. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles, which are the subject matter of dacoity and the alleged weapon used in the commission of the offence. In the present case, the truck, which was said to have been loaded with wheat has never been recovered till today, as the same is said by PW-3, PW-4 and PW-5 in para- 2, 1 and 5 & 6 of their respective depositions. PW-5 Basist Narayan Roy, who happens to be IO of this case says in para-5 of his deposition that the truck and looted wheat was not recovered.

19. The learned counsel has further submitted that prosecution case is that eight unknown miscreants entered into the truck and within few minutes, done the act of administering poison and assault. Admittedly, the occurrence

Cr. Appeal (DB) No. 1113 of 2019 is of 04:00 a.m. in the morning when it was still dark, but the prosecution has brought nothing on record to disclose the source of light in the truck, under which the miscreants were identified. Nothing is brought on record that the miscreants were identified either in truck light, bulb light or moon light or lantern etc.

20. The learned counsel further submitted that the learned trial Court has already acquitted the appellants for the offences punishable under section 328 of the Indian Penal Code. Thus, half of the prosecution case has already been disbelieved. In fact, whole of the prosecution case rests on the foundation of the fact of administration of poison and assault and if foundation goes, entire superstructure collapses.

21. The learned counsel has referred to and relied upon para-12 of the judgment of the Hon'ble Patna High Court in "Guru Prasad Singh v. State of Bihar" (2013) 1 East Cr C 80(Pat) and para-15, 16 and 17 of the judgment of Hon'ble Supreme Court in "Iqbal and others v. State of Uttar Pradesh", (2015) 6 SCC 623.

Arguments of the learned counsel for the State:

22. The counsel for the State has submitted that the accused persons including the appellants herein committed dacoity and assaulted the driver and cleaners of the truck. The learned counsel for the State has further submitted that one of the cleaners namely Gautam Kumar, died during his medical treatment. TIP was conducted in presence of the Judicial Magistrate in which two witnesses identified the accused persons. The eye-witnesses Pappu Yadav @ Pappu Kumar and Sonu Kumar supported the case of the prosecution. The doctor has proved the post-mortem report of the deceased Gautam Kumar. Lastly learned counsel submitted that impugned judgment of conviction and order of sentence are based on proper evidence and requires to be sustained and upheld by this court.

FINDING

23. We have heard counsel for the appellants as well as counsels for the State in both the appeals, gone through the records and the facts and circumstances of the case.

24. In brief, the allegation is that on 28.06.2016 at about 4 , while PW- 1 informant Pappu Yadav, who is truck driver, along with two cleaners Sonu Kumar (PW-2) and Gautam Kumar (deceased) were transporting wheat amounting to Rs.3,50,000/- on truck bearing no. BR-27E-2791, Sonu

Cr. Appeal (DB) No. 1113 of 2019 Kumar and Gautam Kumar were waylaid by eight accused persons and truck was taken over and they were forcibly administered certain substance due to which they became unconscious particularly Sonu Kumar and Gautam Kumar and unfortunately Gautam Kumar subsequently succumbed during his treatment. The informant Pappu Yadav had almost lost consciousness and when he recovered consciousness, he was in a forest somewhere and the truck was nowhere to be seen. It is clear from the FIR that at the time of recording of the fardbeyan the informant Pappu Yadav and Sonu Kumar had not recognized the accused persons including the appellants rather they must have been unknown to them. The claim is that the informant PW-1 Pappu Yadav and PW-2 Sonu Kumar had identified them in the TIP. PW-10 Saurav Kumar Gautam, who is Judicial Officer, had conducted the TIP of the suspected accused persons on 17.11.2016 in the jail premises at Hotwar, Ranchi. He has deposed that Ajay Kumar @ Gorelal and Arvind Rajwar were mixed with other under trial prisoners and witnesses Sonu Kumar and Pappu Yadav i.e. the cleaner as well as the informant had identified these two persons. It is to be noted that TIP was conducted on 17.11.2016 while the date of occurrence is allegedly 28.06.2016, so, there is a gap of about more than four months in which TIP had been conducted. Here, it is pertinent to note that appellant Arun Kumar Singh was not put on TIP. However, there is one aspect which needs to be taken into consideration is that PW-2 Sonu Kumar has also deposed that he had identified the accused persons in TIP and PW-2 has also deposed at paragraph-6 of his evidence that photograph of the accused persons were published in the newspapers. Now given the lengthy amount of time taken for conducting the TIP i.e. about more than 4 months and deposition of PW- 2 Sonu Kumar, who was an eye-witness that photographs of the accused persons had been published in the newspapers, would lead us to having some doubts regarding the identification of the accused persons or the appellants. The learned counsel for the appellants has on the question of identification relied on the judgment of the Hon'ble Patna High Court in Guru Prasad Singh(supra), wherein photographs of the accused persons were published in the newspaper and at paragraph-12 of the judgment, Hon'ble court held that such TIP loses all its significance. So, in the case in hand, such disclosure of the identity of the accused persons or the appellants in the newspapers or other public mediums would bring the identification of the accused persons by witnesses into question. Even otherwise, occurrence

Cr. Appeal (DB) No. 1113 of 2019 is said to have taken place at 4:00 a.m. when it would still be fairly dark and there is no indication of other source of light at place of occurrence, therefore, on this basis also identification is doubtful. Further, Investigation officer of the case PW-5 Basist Narayan Roy, has deposed at paragraph-5 of his cross-examination that truck and looted wheat were not recovered. Hon'ble Supreme Court in Iqbal and others(supra) at paragraph-17 has held that in order to bring home the guilt of the accused persons, it is the duty of the prosecution to prove that the stolen property was in possession of the accused persons. But, in the case in hand prosecution has failed to recover the alleged truck bearing no. BR-27E-2791 and looted wheat.

25. So, having heard both the counsels, noted the submissions and cited judgments, we think it appropriate to extend the benefit of doubt on the basis of doubtful identification of the appellants, namely, Arvind Rajwar and Arun Singh @ Arun Kumar Singh and non-recovery of truck and looted wheat. Hence, both the appellants are acquitted of the charges under sections 396 of the Indian Penal Code.

26. Accordingly, the impugned judgment of conviction dated 16.05.2018 and order of sentence dated 17.05.2018 passed by the learned Additional Judicial Commissioner VII-cum-FTC (CAW), Ranchi in Sessions Trial No. 699 of 2016 and Sessions Trial No. 163 of 2017 (TR No. 08 of 2017), arising out of Namkum PS Case No. 170 of 2016 being GR Case No. 3657 of 2016 cannot be sustained and are hereby is set aside. Appellant Arun Singh @ Arun Kumar Singh is on bail, he is discharged from his liability of bail bonds. Appellant Arvind Rajwar is in custody, he is directed to be released forthwith if not wanted in any other case.

27. Pending interlocutory application, if any, stands disposed of.

28. Accordingly, both the criminal appeals are allowed.

(Ratnaker Bhengra, J.)

(Ambuj Nath, J.) Jharkhand High Court, Ranchi, Dated: 6/9/2024 S.B.-NAFR

Cr. Appeal (DB) No. 1113 of 2019