Jharkhand High Court
Tikla Singh @ Birju Singh @ Chhotu Singh ... vs The State Of Jharkhand on 9 September, 2024
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Criminal Appeal (D.B.) No. 1036 of 2018
Against the judgment and order of conviction and sentence dated
19.07.2018 (sentence passed on 24.07.2018) passed by Sri Ravi Ranjan,
learned Additional Sessions Judge IV, Dhanbad in S. T. No. 403 of 2015.
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Tikla Singh @ Birju Singh @ Chhotu Singh son of Late Sarju Singh,
residing at Village Laludih, PO & PS Hariharpur, District Dhanbad
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
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For the Appellant : Mr. R. S. Mazumdar, Senior Advocate
For the Respondent : Mrs. Lily Sahay, A.P.P.
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Present:
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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C.A.V. on - 23.07.2024 Pronounced on - 09.09.2024
Per, R. Mukhopadhyay, J.
Heard Mr. R. S. M azumdar, learned senior counsel for the
appellant and Mrs. Lily Sahay, learned A.P.P. for the State.
2. This appeal is directed against the judgment and order of
conviction and sentence dated 19.07.2018 (sentence passed on 24.07.2018)
passed by Sri Ravi Ranjan, learned Additional Sessions Judge IV,
Dhanbad in S. T. No. 403 of 2015 whereby and whereunder the appellant
has been convicted for the offence under Section 302 of I.P.C. and has
been sentenced to undergo rigorous imprisonment for life and to pay a
fine of Rs. 5,000/- and in default in payment of fine to undergo simple
imprisonment for six months.
3. The prosecution case arises out of the fard beyan of Abdul
Qudus recorded on 04.03.2015 in which it has been stated that on
04.03.2015 itself a Holi Milan function was organized in the evening in
the campus of R.P.F. Barrack and there was a crowd consisting of the
persons of the locality. In the function, singing and dancing was going
on and the people were also enjoying the refreshments spread out and
the informant as well as his elder brother Md. Maqsood had participated
in the function. At about 10:15 P.M., he and his elder brother left for his
house on foot and at around 10:30 P.M. as soon as the brother of the
informant reached Shukla More near R.P.F. Sheo Mandir, 2-3 persons
came and all of a sudden caught hold of his brother and Tikla Singh
(appellant) took out a countrymade pistol and shot at the head of the
brother of the informant from point blank range. The brother of the
informant fell down on road and Tikla Singh and his associates started
fleeing away. The Officer Incharge of Hariharpur Police Station and
other police personnel started chasing the accused and though a bomb
was exploded as a deterrence, but the police personnel had caught Tikla
Singh red handed with a countrymade pistol. It has been alleged that the
associates of Tikla Singh in order to get him freed from the clutches of the
police had fired at the police personnel, but luckily no harm could be
caused to them. The accomplices of Tikla Singh managed to escape.
When the informant went to the place where his brother was lying, he
found him dead.
Based on the aforesaid allegations, Hariharpur P. S. Case No. 18 of
2015 was instituted against Tikla Singh and unknown assailants under
Section 302/34 of I.P.C. On completion of investigation, charge-sheet
was submitted and after cognizance was taken, the case was committed
to the court of Sessions where it was registered as S. T. No. 403 of 2015.
Charge was framed against the accused under Section 302 of I.P.C. which
was read over and explained to him in Hindi to which he pleaded not
guilty and claimed to be tried.
4. The prosecution has examined as many as 6 witnesses in
support of its case.
5. P.W. 1 - Dr. Vineeet P. Tigga was working as a Tutor in the
Department of F.M.T., PMC, Dhanbad and on 05.03.2015 he had
conducted autopsy on the dead body of Md. Maqsood Ansari and had
found the following:
"Antemortem external wounds
(i) Wound of entrance of firearm - 1 ¼" x ¾ " lacerated
wound over right parieto - occipital junction of head. Skull bones
found in multiple pieces and blood clots with surroundings
blackened. No evidence of burning or singing found. Tattoing
found at places over the periphery.
(ii) Abrasion -
(a) 1" x ¾" on the left side of forehead.
(b) 2" x 1" on the lateral aspect of left eyebrow.
(c) ½" x ½" on front of right knee.
(d) 1" x 1" on inner side of right knee.
On dissection
On exploration of injury no. 1 blood clots found beneath skin and scalp all
over. Brain matter found lacerated and full of blood clots and the
deformed bullet of length 3.2 cm and breath 0.7 cm. found lodged in left
side of frontal bone. The bullet sealed and labeled in a match box and
handed over to the constable for exhibit. No abnormality found in soft
tissue of neck. Hyoid intact. Both lungs found pale. Heart and bladder
found enlarged Stomach contained 250 cc of yellowish brown colour pasty
food fluid. All other internal organs found pale."
The cause of death was as a result of the aforementioned contact
shot bullet injury. He has proved the post mortem report which has been
marked as Exhibit 1.
6. P.W. 2 - Amarjeet Singh has stated that the incident is of
04.03.2015 at about 10:30 P.M. There was a Holy Milan function at Shiv
Mandir at Gomoh R.P.F. Barrack. There was arrangement for
refreshment and dance in the said function. After everyone has had
refreshments the dance party had started. The Officer Incharge of
Gomoh Police Station, R.P.F. Inspector and other police personnel were
present. The persons of the locality like, Kudus, Maqsood and others
were present including himself. At about 10:30 P.M., a call was received
in the mobile of Maqsood and he went out of the small gate of Shiv
Mandir towards the big gate while conversing on mobile. He along with
Kudus and 4-5 persons also started going out when all of a sudden, Tikla
Singh and his two accomplices started firing and throwing bombs. Tikla
Singh had fired at the head of Maqsood with a countrymade pistol and
resultantly Maqsood died at the spot. He has stated that Tikla Singh and
his associates by firing and throwing bombs had started fleeing away.
The Officer Incharge of Gomoh Police Station and a constable had chased
and apprehended Tikla Singh with the countrymade pistol while his
accomplices managed to flee away. Due to the light arrangements made
at the function, the entire incident was witnesses by him and others. He
had come to know that there was a dispute between Mumtaz Ansari and
Irfan Ansari with Maqsood regarding railway contract and these two
persons in conspiracy with Tikla Singh had committed the murder.
In cross-examination, he has deposed that he does not know as to
how many cases were instituted against Maqsood. Maqsood was his
friend and he used to supply water to him.
This witness was discharged without further cross-examination
since the counsel for the defence did not appear in spite of repeated calls.
7. P.W. 3 - Md. Abdul Kuddus is the informant who has stated
that on 04.03.2015 in the night, a Holy Milan function was in progress in
the R.P.F. Barrack. He, Sahid, Md. Kayamuddin Ansari and Amarjeet
Singh had gone to attend the function. All had light refreshment and at
about 10-10:30 P.M., Md. Maqsood who was his own brother had left
through the small gate and soon thereafter Tikla Singh along with 3-4
associates of him had caught hold of him and Tikla Singh shot at his
head from point blank range and thereafter Tikla Singh started fleeing
away. However, Tikla Singh was apprehended by the police with a
countrymade pistol. The accomplices of Tikla Singh in order to free him
had thrown some bombs at the Officer Incharge. He has stated that Md.
Maqsood had died and the accomplices of the Tikla Singh managed to
flee away. Thereafter they had gone to the police station where his fard
beyan was recorded. He has proved his signature on the fard beyan
which has been marked as Exhibit 2. Tikla Singh had committed the
murder on the direction of Mumtaz who is a criminal and who had
demanded money from Maqsood, who had refused. He has stated that
Maqsood had assisted Md. Irfan in becoming Mukhiya, but thereafter
Md. Irfan got involved in illegal business of coal and wood. The police
had conducted a raid in the house of Md. Irfan who had suspected the
involvement of Maqsood in the said raid. He has reason to believe that
Mumtaz and Irfan under a conspiracy had got murdered his brother
Maqsood.
In cross-examination, he has deposed that Maqsood has become a
contractor about 2 and 2 ½ years prior to the incident. There were one or
two criminal cases against Maqsood. He had also gone to jail in a case of
pick-pocketing. Maqsood had a cold drink shop. He has stated that
Maqsood had told him to come with him and he was going ahead
outside the boundary wall and he and others followed Maqsood.
Maqsood was ahead by about 10 feet from him, Sahid and Amarjeet
Singh. After the incident occurred, Sahid was the first person to reach
near Maqsood. He has reached after Sahid. When he reached the place
of occurrence, Maqsood had already died. When the firing was done, he
was inside the boundary wall. When Tikla Singh was apprehended from
inside the boundary wall, there were 150-200 persons were present.
8. P.W. 4 - Kayamuddin Ansari and P.W. 5 - Sahid Ansari did
not support the case of prosecution and they were declared hostile by the
prosecution.
9. P.W. 6 - Philip Minz is the Investigating Officer of the case
who has stated that on 04.03.2015 at 9:45 P.M., he was trying to gather
information from sensitive areas when he heard the sound of firing and
when he went to the place of occurrence, he saw a person flaunting a
countrymade pistol. He had chased the said person in spite of some of
the miscreants throwing bombs at him, as a result of which he sustained
some minor injuries. In course of interrogation, the apprehended person
disclosed his name as Tikla Singh and from his possession one
countrymade pistol, two live cartridges, one empty cartridge and a
mobile were seized. A separate case under the Arms Act was lodged
against Tikla Singh. He started investigation at the place of occurrence
itself, since the incident was serious in nature. Md. Maqsood was shot at
which resulted in his death. He has proved the inquest report which has
been marked as Exhibit 3. He has proved the seizure list which has been
marked as Exhibit 4. The endorsement on the seizure list by the accused
was marked as Exhibit 4/1. He had sent the body for post mortem
examination. He had inspected the place of occurrence which is about
500 yards in the northern side adjacent to the Shiv Mandir of the
railways. There is a R.P.F. Barrack nearby which is surrounded by a
boundary wall. He has proved the fard beyan of Abdul Kuddus which
has been marked as Exhibit 2/1. He has identified the signature of Md.
Nizam which was marked as Exhibit 2/2. The endorsement in the fard
beyan was proved and marked as Exhibit 2/3, while the formal FIR has
been proved and marked as Exhibit 5. He has gone through the case
diary part II and had found that Tikla Singh and his accomplices had
criminal antecedents. He has proved the confessional statement of Tikla
Singh which has been marked as Exhibit 6. The confessional statement of
Tikla Singh was once again recorded at the in-laws' place of Mumtaz
Ansari which has been marked as Exhibit 7. He has also proved the
C.D.R. from page 1 to 36 which has been marked as Exhibit 8. He had
recorded the statement of Md. Kayamuddin who had stated that Tikla
Singh had shot at Md. Maqsood. He had also recorded the statement of
Md. Sahid who has stated that under a conspiracy hatched by Md.
Mumtaz and his accomplice Tikla Singh and others were called upon and
Md. Maqsood was got murdered. He has proved the arrest memo of
Tikla Singh which has been marked as Exhibit 9. On completion of
investigation, he has submitted charge-sheet against Tikla Singh while
keeping the investigation pending against the other accused persons. A
separate case was lodged with respect to recovery of fire arms being
Hariharpur P. S. Case No. 19 of 2015.
In cross-examination, he has deposed that in course of
investigation, he had not recorded the statement of any R.P.F. personnel.
The deceased does not have any case lodged against him either in
Hariharpur Police Station or in any other police station. The report of the
Sergeant Major has not been submitted in this case. He has not obtained
any report as to whether any shot has been fired from the recovered fire-
arm or not. He has not recovered the splinters of the bomb.
10. It has been submitted by the learned senior counsel for the
appellant that there was no eye-witness to the incident as P.W. 4 and
P.W. 5 did not support the case of the prosecution and the evidence of
P.W. 3 cannot be relied upon because of its inherent deficiency. Learned
senior counsel has also submitted that absence of ballistic report would
rule out the possibility of firing upon Md. Maqsood having been done by
the appellant.
11. Mrs. Lily Sahay, learned A.P.P. for the State has submitted
that the appellant had shot at the deceased on his head from a point
blank range and he was apprehended on the spot on a chase with a
countrymade pistol and the active participation of the appellant in the
murder has clearly being narrated by P.W. 2 and P.W. 3 and their
versions have not been shaken by the defence.
12. We have heard the learned counsel for the respective sides
and have also perused the trial court records.
13. The incident took place at the Holy Milan ceremony where
the appellant had committed murder of Md. Maqsood by firing on his
head. While fleeing away, bombs were exploded by the accomplices of
the appellant, but the appellant was apprehended by the police with a
countrymade pistol for which a separate case under the Arms Act was
lodged.
14. The evidence of the informant (P.W. 3) reveals that a large
crowd had gathered at R.P.F. Barrack to participate in the Holy Milan
revelry, but it is seen that there has been a dearth of prosecution
witnesses as at the initial stage only four witnesses seems to have
claimed themselves to be the eye-witnesses. P.W. 4 & P.W. 5 who have
claimed themselves to be eye-witnesses during the investigation, did not
support the case of the prosecution during trial and were accordingly
declared hostile by the prosecution. P.W. 3 is the informant and brother
of the deceased who in his cross-examination has deposed that after the
incident had occurred, Sahid (P.W. 5) was the first person to reach the
deceased. However as noted above, P.W. 5 was declared hostile by the
prosecution. When P.W. 3 reached near his brother, he was already dead
by then. It also appears from the evidence of P.W. 3 that the incident of
firing had taken place outside the boundary wall, while P.W. 3 was
inside the boundary wall. The incident had occurred at 10:30 P.M. These
circumstances would rule out P.W. 3 as an eye-witness to the occurrence.
The evidence of P.W. 2 though he has not been cross-examined would
reveal that firing and throwing of bombs were resorted to by the
appellant and his associates and even the murder of Maqsood had taken
place. It is difficult to fathom the version of P.W. 2 considering the
chaotic situation which must have engulfed the place of occurrence when
bombs were thrown and firing were being done. The evidence of P.W. 2
therefore cannot be concluded to be reliable and trustworthy. The other
aspects of the case is that another case had been instituted against the
appellant under Sections 307/353/34 of I.P.C. and Section 25(1-B)(a), 26,
35 & 27 of the Arms Act and Section 3/5 of the Explosive Substance Act
in which the appellant has been acquitted by the trial court vide
judgment dated 14.12.2016 passed in S. T. No. 277 of 2015. The certified
copy of the judgment has been produced by the defence and marked as
Exhibit A. In this context, the evidence of P.W. 6 gains significance who
has categorically stated that he has not obtained any report from the
Sergeant Major nor any report has been obtained whether shots were
fired from the same pistol which was purportedly recovered from the
appellant. Their also does not appear to be any recovery of bomb
splinters from the place of occurrence which further demolishes the case
of the prosecution.
15. The learned trial court has not considered the aforesaid
aspects and has overtly relied upon the evidence of P.W. 3 in convicting
the appellant.
16. We therefore on the basis of the discussions made
hereinabove, set aside the judgment and order of conviction and sentence
dated 19.07.2018 (sentence passed on 24.07.2018) passed by Sri Ravi
Ranjan, learned Additional Sessions Judge IV, Dhanbad in S. T. No. 403
of 2015.
17. This appeal is allowed.
18. Since the appellant is in custody, he is directed to be released
immediately and forthwith, if not wanted in any other case.
(Rongon Mukhopadhyay, J.)
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court at Ranchi
The 9th day of September, 2024
R.Shekhar/NAFR/Cp.3
