Jharkhand High Court
Arun Kumar Das Son Of Sri Kartik Das vs The State Of Jharkhand on 24 April, 2025
2025:JHHC:12357
Cr. Appeal (S.J) No. 703 of 2006
[Against the judgment and order of conviction and sentence dated
07.03.2006 and 17.03.2006 passed by learned Additional Sessions
Judge, Fast Track Court No.II, Civil Court, Jamshedpur in connection
with S.T. No. 228/2004 arising out of Jugsalai P.S. Case No. 172 of
2003 (G.R.) Case No. 1684 of 2003]
Arun Kumar Das son of Sri Kartik Das
Residents of M.E. School Road, Jugsalai, Police Station-
Jugsalai, District-Singhbhum (East). .... Appellant
Versus
The State of Jharkhand ..... Respondent
With
Cr. Appeal (S.J) No. 532 of 2006
1. Gurucharan Paul @ Gulla Paul, Son of Sri Jeet Mohan Paul,
resident of Dimna Bastee, P.S. Mango, Town Jamshedpur,
District-East Singhbhum (Jharkhand)
2. Raj Kumar Singh, Son of Sri Kalu Singh, Resident of Dimna
Bastee P.S. Mango, Town Jamshedpur, Dist- East Singhbhum
(Jharkhand) .... Appellants
Versus
The State of Jharkhand ..... Respondent
With
Cr. Appeal (S.J) No. 557 of 2006
Arun Kumar Singh @ Vicky son of Sri Sahajeet Singh, resident
of H.No. 44, Road No.3, New Rani Kudar, P.S. Kadma, Town-
Jamshedpur, District-East Singhbhum. .... Appellant
Versus
The State of Jharkhand ..... Respondent
With
Cr. Appeal (S.J) No. 572 of 2006
Rajiv Mishra Son of Hari Shankar Mishra, Resident of Naya
Basti, Bagbera, P.O. & P.S. Jugsalai, District- Singhbhum
East. .... Appellant
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2025:JHHC:12357
Versus
The State of Jharkhand .....
Respondent
With
Cr. Appeal (S.J) No. 653 of 2006
Basant Kumhar @ Basant Kumbhar, Son of Gadhadhar
Kumbhar, resident of Dimna Bastee, Upper Tola, P.O. & P.S.
Ulidih, Mango, District-East Singhbhum.
.... Appellant
Versus
The State of Jharkhand ..... Respondent
With
Cr. Appeal (S.J) No. 826 of 2006
Kajal Sen, son of Sri Gaur Sen,
Residents of Dimna Bustee, Mango, Police Station- Ulidih,
Town- Jamshedpur, district-Singhbhum (East).
.... Appellant
Versus
The State of Jharkhand ..... Respondent
PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
--------
For the Appellants : Mr. Chandan Kumar, Advocate.
[Cr. Appeal (SJ) No. 703 of 2006 & 826 of 2006]
Mr. D.K. Chakraverty, Advocate.
[Cr. Appeal (SJ) No. 572 of 2006]
Mr. D.K. Karmakar, Advocate.
[Cr. Appeal (SJ) No. 532 of 2006 & 653 of 2006]
For the Resp.-State : Mr. Jitendra Pandey, A.P.P.
[Cr. Appeal (SJ) No. 703 of 2006, 557 of
2006 & 572 of 2006]
Mr. Tarun Kumar, A.P.P.
[Cr. Appeal (SJ) No. 557 of 2006]
Mrs. Vandana Bharti, A.P.P.
[Cr. Appeal (SJ) No. 532 of 2006]
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JUDGMENT
C.A.V. On 11.02.2025 Pronounced On: 24/04/2025
Heard learned counsels for appellants Mr. Chandan
Kumar, Mr. D.K. Chakraverty, Mr. D.K. Karmakar as well as
learned Additional Public Prosecutors appearing for the
Respondents-State Mr. Jitendra Pandey, Mr. Tarun Kumar
and Mrs. Vandana Bharti.
2. Above criminal appeals are directed against the judgment and
order of conviction and sentence of the appellants dated
07.03.2006 & 17.03.2006 respectively passed by Additional
Sessions Judge, Fast Track Court No.II, Civil Court,
Jamshedpur in Sessions Trial No. 228 of 2004 whereby and
where under the appellants have been held guilty and
sentenced for the offence under Section 395 of the I.P.C. and
directed to undergo R.I. for seven years each and the
appellants have been acquitted from the charge under Section
412 of the I.P.C.
FACTUAL MATRIX
3. Factual matrix giving rise to these appeals are that on
01.10.2003 at about 21:45 P.M., the informant Nand Kishor
Agarwal (P.W.15) along with his staff members namely, Pankaj
Kumar Gupta, Jitendra Pandey, Jayprakash Yadav, Madanlal
Sharma, his father B.K. Barnwal (P.W.8) and brother A.K.
Barnwal (P.W.6) were sitting at cloth shop situated at
Mahalpara Road, Jugsalai, District-Jamshedpur and counting
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cash received from their collection. It is further alleged that
the currency notes were bundled with stickers of H.D.F.C.
Bank and amount was sealed with shop mark B.H.E. The
informant was about to store the entire amount in the cash
box keeping the shutter of the shop half down, meanwhile at
about 22:10 P.M., 7-10 miscreants suddenly entered into the
shop, surrounded the inmates and pointed revolver, pistol and
Bhujali towards the informant and other staff members and
ordered them to keep quite otherwise, they would be killed. As
such, putting into fear of instant death at the point of revolver
all the miscreants started plundering the bundle of money
and putting in their respective packets. Some currency notes
were left uncounted which was also taken away by the
miscreants in a raisin bag of the shop and another green
coloured bag on which the name of the shop was printed.
Thereafter, miscreants managed to flee away towards west of
Mahatopara Road, Baikunth Dham Mandir. It is claimed that
Rs.1,37,210/- have been looted by the dacoits.
4. Above occurrence was immediately informed to Jugsalai Police
Station and police arrived at the place of occurrence and
recorded the Fardbeyan of the informant at about 22:25 P.M.
and some police personnel chased the miscreants. It is further
alleged that the police party reached near Garib Nawaz Colony
Railway Bride, Jugsalai at about 22:45 P.M., where the
Officer-In-Charge Ramchandar Ram (P.W.16) and other police
personnels found few persons hiding in the bush under
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suspicious circumstances. The miscreants started firing on
police party and there was exchange of firing by police also in
self-defence and ultimately, the police succeeded to arrest the
accused Arun Kumar Singh [Appellant of Cr. Appeal (S.J) No.
557 of 2006] and Arun Kumar Das [Appellant of Cr. Appeal
(S.J) No. 703 of 2006]. A country-made pistol containing
cartridge was recovered from the possession of Arun Kumar
Singh along with cash amount of Rs.20,000/- looted from
Barnwal Handloom Emporium, Jugsalai. It is further alleged
that on search, a double barrel loaded country-made pistol
was recovered from the possession of accused Arun Kumar
Das along with looted amount of Rs.10,000/-. It is further
alleged that both the accused persons had confessed their
guilt regarding their participation in commission of dacoity at
the shop of the informant and also disclose the name of other
co-accused persons. Thereafter, on the basis of disclosure
statement and further search at another place, two more
miscreants namely, Gurucharan Paul and Raj Kumar Singh
[Appellants in Cr. Appeal (S.J) No. 532 of 2006] were arrested
and Rs.20,000/- was recovered from Gurucharan Paul and
Rs.10,000/- from Raj Kumar Singh respectively. It is further
alleged that on the basis of confessional statement, two more
accused persons namely Kajal Sen [Appellant of Cr. Appeal
(S.J) No. 826 of 2006] and Basant Kumhar [Appellant of Cr.
Appeal (S.J) No. 653 of 2006] were arrested on a tempo
bearing registration No. BHS-8518 and on search,
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Rs.15,000/- was recovered from the aforesaid vehicle and
bhujali was recovered from the possession of accused Kajal
Sen.
5. On the basis of above information of the informant, Jugsalai
P.S. Case No. 172 of 2003 was registered for the offence under
Section 395 and 412 of the I.P.C. and charge-sheet was
submitted under Section 395 and 412 of the I.P.C. Another
case Jugsalai P.S. Case No. 173/2003 was registered for the
offence punishable under Section 307/34 of the I.P.C. and
Section 25(1-b)a/26/35 of the Arms Act.
6. After conclusion of investigation, charge-sheet was submitted
against all the accused persons including present appellants
for the offences punishable under Section 395/412 of the
I.P.C. and the case was committed to the court of sessions
where the charges were read over and explained to each of the
accused persons for which they pleaded not guilty and
claimed to be tried. After conclusion of trial impugned
judgment and order of conviction and sentence passed.
7. Learned counsel for the appellant has vehemently argued that
none of the appellants were caught red handed at the time of
commission of dacoity and nothing was recovered from their
possession. No currency notes alleged to be seized in this case
were produced in evidence, during the trial of the case.
Therefore, in absence of cogent and reliable evidence, the
appellants have been acquitted from the charge of offence
under Section 412 of the I.P.C. It is further submitted that so
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far, commission of dacoity is concerned, none of the
prosecution witnesses including the informant have been able
to identify the appellants as perpetrators in the said crime. It
is further contended that P.W.16 (Ram Chandra Ram) has
clearly deposed that at the identification of Pankaj Kumar
Gupta, accused persons were alleged to be have been
arrested, but Pankaj Kumar Gupta declined to support the
version of police personnel. It is further submitted that the
informant Nand Kishor Barnwal (P.W.15) has lodged the F.I.R.
against unknown 7 to 8 miscreants and in his entire
fardbeyan, he has not claimed to identify them as per
description of his bags in which the currency notes were
containing. Admittedly, no test identification parade was
conducted in order to identify the appellants. Therefore, the
identification of the appellants for the first time during trial by
the witnesses and on the basis of alleged confessional
statement before police is absolutely not acceptable in legal
par lance and cannot be acted upon. In this connection,
learned counsel for the appellants has place reliance upon
judgment in P. Sasikumar versus The State Rep. by the
Inspector of Police (2024) IIV SC 474.
It is further submitted that it is specific case of prosecution
that currency notes were recovered from the possession of
some appellants which was validly seized and sealed, but the
prosecution has miserably failed to establish the charge under
Section 412 of the I.P.C. beyond all reasonable doubt against
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the appellants and there is no iota of evidence to prove that
charge of Section 395 of the I.P.C. against the appellants
beyond all reasonable doubts. The learned trial court has
miserably failed to consider the aforesaid material aspects of
the case and arrived at wrong conclusion. Therefore,
conviction and sentence of the appellants for the offence
under Section 395 of the I.P.C. is fit to be set aside.
8. On the other hand, learned A.P.P. appearing for the State has
defended the impugned judgment and order of conviction and
sentence of the appellants and submitted that the learned trial
court has meticulously considered overall evidence available
on record and finding no reason to disbelieve the prosecution
story and the testimony of the victim girl. Therefore, conviction
and sentence of the appellants do not require any interference.
Hence, these appeals are fit to be dismissed.
9. For better appreciation of the case, I have to take brief resume
of the prosecution evidence.
PW 15- Nand Kishor Barnwal (Informant) is the informant of
the case, he has stated before the court that on the alleged
date and time of occurrence he was present in his shop
namely, Barnwal Textile at Jugsalai. PW-6 and 8 were also
present there along with his staff. They were counting the
currencies, which was collected by them. The shutter of the
shop was half down. In the meantime, 6-7 miscreants entered
into the shop and at the point of revolver threatening to kill,
they took away the entire money which amounted to
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Rs.1,37,210/-. There was sticker of H.D.F.C. Bank on the
bundle of the notes and the seal of the shop. When the
accused persons fled away, he informed the police about the
incident after which the police came and ran towards the
direction in which the accused persons had fled away. He also
followed the police and subsequently, the police arrested seven
miscreants and recovered entire money along with the bag. A
country made pistol was also recovered from the possession of
the accused persons. His fardbeyan was recorded and he put
his signature on the fardbeyan, which has been marked as
Ext. 11. Pointing towards the accused Arun Das, he has
further stated that there is suspicion with regard to his
identification, but other six, accused persons who are present
in the court are the persons who committed dacoity in his
shop.
PW 6- Awadh Kishore Barnwal has deposed that on 01.10.03
at about 10.10 p.m. he along with Nand Kishore Barnwal, Braj
Kumar Barnwal, Jai Prakash Yadav, Jitendar Kumar Pandey,
Madan Sharma were in his shop namely, Kishore Textile
Barnwal Handloom Emporium. He has further stated that 7-8
miscreants entered into the shop having pistols in their hands.
They came and stopped him, and they started putting currency
notes in their pocket. Rexine bag was also taken away by
them. Thereafter, they fled away. The above incident was in-
formed to the Police and soon after, the police chased the da-
coits. Near the bank of river miscreants were caught. He has
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further alleged that they are the same persons who had com-
mitted offence in the shop. All of them were identified by this
witness the amount of looted money was recovered. Further
this witness by pointing towards the accused Arun Das has
deposed that he is person who had pointed out the pistol upon
him and asked him to sit down. He has also identified all the
accused persons in the dock.
In his cross examination, he has deposed that he was pre-
sent at the time of recovery.
PW 7- Jai Prakash Yadav according to his evidence he has
deposed that there was a dacoity committed at the Kishore
Textiles on 1.10.2003 at about 10:15 P.M. He along with
Awadh Kishore Barnwal, Madan Sharma, Nand Kishore Barn-
wal, Braj Kishore Barnwal, Pankaj Kumar and Jitendra Pandit
were also present at the shop.
PW 8- Braj Kishore Barnwal is another brother of the inform-
ant. According to his evidence, he was also present in the shop
when the accused persons entered into the shop and on the
point of pistol and revolver, miscreants got the inmates fear
and they took away the entire money of Rs. 1,37,210/- and po-
lice was informed about the said occurrence. Police came and
ran towards the direction in which the miscreants had fled
away. Seven accused persons were arrested by the police and
indicating towards the accused Guru Charan Pal this witness
has deposed that he is the person who has demanded the
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money from him at the point of Bhujali. Rest of the accused
persons were not identified by him on the ground so many
days have passed, therefore, he is not remembering the face of
other six accused persons. In his cross-examination he has
stated that the seizure list was prepared in his presence at the
spot.
PW 9- Jitendra Pandit according to his evidence, he is one of
the staffs at Barnwal Textiles Handloom and that he was pre-
sent at the time of the occurrence. The dacoity took place
around 10:00 P.M. at night. He has also admitted that he did
not identify any accused persons in the court.
P.W.10- Madan Sharma is one of the staffs of Barnwal Textiles
Hand Loom shop. He has deposed that the occurrence took
place on 01.10.2003 at about 10:15 PM. He further states that
he was present in the shop at the time of occurrence, when
they were counting currency notes. It is further submitted that
7 to 8 miscreants entered the shop and looted the money at
gun point and fled away. He stated that 5 to 6 miscreants were
held captive near Garib Nawaz Colony. This witness has also
admitted that he did not identify the accused persons in the
court.
PW 16- Ram Chandra Ram is Officer In-charge of the Police
Station at Jugsalai. According to his evidence, on the basis of
fardbeyan of PW-15 (Nand Kishore Barnwal), Jugsalai P.S.Case
No.172/03 was registered and investigation was taken by him.
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The fardbeyan was recorded by one Pardeep Choudhary. The
place of occurrence is situated at Mahto Para, Jugsalai, Barn-
wal Handloom Emporium, a cloth shop. On 01.10.03 dacoity
was committed in the aforesaid shop. He found nothing special
on the place of occurrence. He along with other police person-
nel proceeded in the direction in which the accused persons
were said to have fled away. One of S.I. Pardeep Choudhary
was dropped at the place of occurrence, Surendar Parsad and
home-guards were along with this witness, They reached near
Kharkhai river and when they reached Garib Nawaz Colony,
near the railway bridge and wanted to get the trace by stand-
ing near the bank, in the meantime, he heard some gossiping
of some persons. He did care in that direction flashed his torch
on the bush and saw a head of a man who was peeping. On
suspicion, he proceeded and challenged the miscreants to
come out. Thereafter, he heard the sound of fleeing, then he
shouted that you have been surrounded from the sides by the
police. Thereafter, miscreants started Firing upon the police
party. Seeing the danger, he also shot fired in reply at about
six rounds, with the Government revolver. One of the miscre-
ants started fleeing by firing towards Garib Nawaz Colony and
two miscreants were started fleeing towards East and North.
Police party raised alarm, till that time the staff of Kishore Tex-
tiles had arrived and with the help of mobile, P.C.R was
informed and police personnel surrounded the entire bush
area. In the meantime, police came there and villagers also
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came there. They entered into the bush and two miscreants
were arrested. Police personnel namely, Radhey Shyam Tiwari,
Bimal Kumar S.I. along with armed forces came at the spot.
Arrested accused persons disclosed their name as Arun Kumar
Singh, Vicky and Arun Kumar Das. In presence of two inde-
pendent witnesses as per law search was made and amount of
Rs.20,000/- was recovered from the person a of Vicky@ Arun
Kumar Singh. There was sticker of H.D.F.C. and B.H.E. on the
stapled note. Country made revolver with empty cartridge was
also recovered from the person of Vickey @ Arun Kumar Singh.
From the possession of Arun Kumar Das Rs.10,000/- was re-
covered having H.D.F.C. and BHE seal. A double barrel pistol
was also recovered having 315 bore cartridge was loaded and
the seizure list was prepared. It is further stated that the Mis-
creants were identified by one of the staff namely, Pankaj Ku-
mar Gupta. The accused persons also confessed their guilt and
disclosed the involvement of them in the commission of the
dacoity. On their confessional statement, the names of the rest
accused persons came into light and on the basis of the
amount Rs.31,120/- and a bag was recovered from behind
bush and on the pointing of two accused persons,
Geru Charan Pal, Raj Kumar Singh was arrested near the
bush. From the person of Guru Charan Pal Rs.20,000/- was
recovered which was of looted money and from the person of
Raj Kumar Singh Rs.20,000/- was recovered which was of
looted money. Accused Raj Kumar Mishra fled away.
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Thereafter, on the confessional statement of the accused per-
sons, the police rushed to Parvati Ghat, where a tempo bearing
no.BHS-8518 was kept and there also two miscreants were ar-
rested namely, Kajal Sen and Basant Kumhar and from their
possession &. 15,000/- one bhujali was recovered from the
person of Kajal Sen and Rs. 11,000/- was recovered from the
person of Basant Kumhar. The way in which the accused Rajiv
Mishra had fled Rs. 31,210 and a bag was recovered. This wit-
ness has further stated that a separate case u/s 307 of IPC.
and u/s 25(1-b) a/ 26/27/35 of the Arms Act. were lodged
which has been disposed of by the Addl.District & Sessions
Judge, II vide Ext. 15.
In his cross examination, he has deposed that the accused
persons were arrested in presence of Pankaj Kumar.
PW 17- Radhey Shayam Tiwari According to his evidence, he
has deposed that on 1.10.2003 he was posted at P.S. Jugsalai
and at about 10:15 P.M. the officer in-charge of the Police
Station was informed about the dacoity committed at the
Barnwal Textiles. On the direction of the officer in-charge, he
along with the constable arrived at the place of occurrence and
in his presence the accused persons were arrested from Garib
Nawaz Colony. This witness has also identified all the accused
persons to be miscreants who allegedly committed dacoity in
the shop of the informant.
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PW 18- Bharat Shukla (Constable) This witness has deposed
in his evidence that on 01.10.2003 he was posted at P.S. Jug-
salai. At about 10.30 P.M., he went to Garib Nawaz Colony
when he heard the sound of firing. Jugsalai Police Station In-
charge was present there. There was a dacoity committed at
the Barnwal Textiles. He has stated that the accused persons
were arrested in his presence. It has also been stated by this
witness that a country made pistol, bhujali and currency notes
were recovered.
10. From the aforesaid discussion of the evidence of the prosecu-
tion, it is clear that for the charge under Section 412 of the
I.P.C., appellants have already been acquitted by the trial court
and there is no concrete evidence led by the prosecution estab-
lishing the identity of the appellants. It is quite natural that
the appellants have been dragged in this case only on the basis
of second case registered under Section 307 of the I.P.C. and
Section 25 (1-b)a/26/27/35 of Arms Act. There is no piece of
evidence showing participation of the appellants in commission
of dacoity and it is also clear from judgment of Hon'ble
Supreme Court cited by the appellant, which clearly shows
that "test identification parade is part of investigation and it is
not a substantive evidence. The question of holding T.I. Parade
arises when the accused is not known to the witness earlier.
The Court who has for the first time seen the accused in the in-
cident of offence is a weak piece of evidence, especially when
there is a large time gap between his evidence. In such a case,
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TI parade may make the identification of the accused by the
witness before the Court trustworthy...". Similarly, in this case
the identity of the present appellants is in doubtful. The appel-
lants could not have been convicted on the basis of very weak
and doubtful evidence as to the appellant's identity. According-
ly, the impugned judgment and order of conviction passed by
learned Additional Sessions Judge, Fast Track Court No.-II,
Jamshedpur, is hereby set aside and these appeals are
allowed.
11. Appellants are on bail, hence, they are discharged from the li-
ability of bail bonds and sureties are also be discharged.
12. Pending I.As, if any stands disposed of.
13. Let a copy of this judgment along with trial court records be
send back to the court concerned for information and needful.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, at Ranchi
Date: 24/04/2025
Amar/- N.A.F.R.
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