Jharkhand High Court
Jaideep Banerjee @ Kapil vs The State Of Jharkhand on 20 February, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
[Against the judgment and order of conviction and sentence dated
18.10.2002 passed by Sri P.M. Lal, learned Additional Judicial
Commissioner (FTC), Ranchi in S.T. No. 572 of 2000 and S.T. No. 650 of
2000]
Criminal Appeal (DB) No. 700 of 2002
---------
Jaideep Banerjee @ Kapil, S/o Late Santosh Kumar Banerjee,
R/o Kanke, Police Station- Kanke, District- Ranchi.
.... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
With
Criminal Appeal (DB) No. 771 of 2002
---------
Rajesh Tirkey @ Rajesh Ram Tirkey, S/o Gopal Lohra, R/o
Village Prem Nagar, P.S. Kanke, District- Ranchi
.... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
With
Criminal Appeal (DB) No. 257 of 2003
---------
Rakesh Mahto, S/o Late Karma Mahto, R/o Tangra Toli, P.S.-
Kanke, District- Ranchi. .... .... Appellant
Versus
The State of Jharkhand .... .... Respondent
---------
CORAM : HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
---------
For the Appellant : Mr. Sankalp Goswami, Advocate
(In Criminal Appeal (DB) No. 700 of 2002)
Mr. Sameer Saurabh, Amicus Curiae
(In Criminal Appeal (DB) No. 771 of 2002 &
Criminal Appeal (DB) No. 257 of 2003)
For the Respondents : Mr. Tarun Kumar, A.P.P.
Mr. B.N. Ojha, Spl. P.P.
---------
JUDGMENT
Order No.08/ Dated, 20th February, 2025
Per Rongon Mukhopadhyay, J.
Heard Mr. Sankalp Goswami, learned counsel for
the appellant in Criminal Appeal (DB) No. 700 of 2002, Mr. Sameer
Saurabh, learned Amicus Curiae for the appellants in Criminal
Appeal (DB) No. 771 of 2002 and Criminal Appeal (DB) No. 257 of
2003 and Mr. Tarun Kumar as well as Mr. B.N. Ojha, learned
A.P.P. and Spl. P.P. for the respondents respectively.
2. Since all these appeals arise out of a common
judgment they are being disposed of by this common order.
3. These appeals are directed against the judgment
and order of conviction and sentence dated 18.10.2002 passed by
Sri P.M. Lal, learned Additional Judicial Commissioner (FTC),
Ranchi in S.T. No. 572 of 2000 and S.T. No. 650 of 2000, whereby
and whereunder, the appellant in Criminal Appeal (DB) No. 700 of
2002 has been convicted for the offence u/s 302/120B of the IPC
and sentenced to R.I. for life while the appellants in Criminal
Appeal (DB) No. 771 of 2002 and Criminal Appeal (DB) No. 257 of
2003 have been convicted for the offence u/s 302 of the IPC and
u/s 27 of the Arms Act and have been sentenced to undergo R.I.
for life for the conviction u/s 302 of the IPC with a fine of Rs.
1000/- and imprisonment for three years along with a fine of Rs.
500/- for the conviction u/s 27 of the Arms Act.
4. The prosecution case arises out of the fardbeyan of
Sk. Sayeed, in which, it has been stated that the son of the
informant namely, Sk. Amanat worked as a salesman in Kapil
Medical and he used to go out for his duty at 9:00 A.M. and
return at 10:00 P.M. It has been alleged that today i.e. on
12.11.1999 the informant at around 8:45 P.M. was in his house
along with his family members when he heard a sound of firing
coming from outside, at which, the informant and his family
members rushed outside where they found Sk. Amanat lying on
the ground in a pool of blood and two boys fleeing away who were
chased but could not be apprehended. It has been alleged that
after giving information to the Police Station the informant had
taken his son to RMCH where the Doctors declared him dead. The
son of the informant always used to remain in the company of the
owner of Kapil Medical, Rajesh Modak and the younger brother of
the owner of Kanchan Studio, Manna. About 15-20 days back
there was a quarrel with Rakesh and Rajesh Lohra and they had
issued threats and it was suspected that these two persons had
hatched a conspiracy and committed the murder of the son of the
informant.
Based on the aforesaid allegations Kanke P.S. Case
No. 55 of 1999 was instituted u/s 302/120B of the IPC and
Section 27 of the Arms Act. On completion of investigation charge
sheet was submitted against Rajesh Tirkey @ Rajesh Ram Tirkey,
Rakesh Mahto and Jaideep Banerjee @ Kapil and cognizance was
taken. Before commitment Rakesh Mahto escaped from custody
and his case was split up. Later on, Rakesh Mahto was
apprehended and his case was committed to the Court of Sessions
where it was registered as S.T. No. 650 of 2000. The case of the
rest accused persons was already committed and registered as S.T.
No. 572 of 2000. The accused Jaideep Banerjee @ Kapil and Rajesh
Tirkey were charged u/s 302/120B of the IPC and Section 27 of
the Arms Act while the accused Rakesh Mahto was separately
charged u/s 302/120B of the IPC and Section 27 of the Arms Act
which were read over and explained to them in Hindi to which they
pleaded not guilty and claimed to be tried.
5. The prosecution has examined as many as twelve
witnesses in support of its case.
6. P.W.1 (Anil Kumar Singh) has proved his signature
in the fardbeyan which has been marked as Exhibit-1.
7. P.W.2 (Md. Meraj), P.W.3 (Moyin Ansari) and P.W.4
(Md. Zilani Qureshi) did not support the case of the prosecution
and were declared hostile by the prosecution.
8. P.W.5 (Md. Hafiz Ansari) has stated that he had
rushed to the place of occurrence on hearing the sound of firing
and had found Sk. Amanat lying on the ground. Sk. Amanat was
taken in an auto-rickshaw to RMCH where he was declared dead.
In cross-examination, he has deposed that he had
informed about the incident to the family members of Sk. Amanat.
He had not disclosed to them as to who had fired.
9. P.W.6 (Sk. Sayeed) is the informant and the father
of the deceased who has stated that on 12.11.1999 at 8:30 P.M. he
was in his house when he heard the sound of firing, at which, he
went outside and saw his son Sk. Amanat lying on the ground.
Rajesh and Rakesh were seen standing with pistols who
subsequently fled away on seeing him and others. About 15 days
prior to the incident there was a quarrel between Rajesh and
Rakesh with his son. He has stated that his son used to work in
the Medicine shop of Kapil and Rajesh and Rakesh also used to sit
in the said shop as they were friends of Kapil. His son had
disclosed that he had demanded his salary from Kapil which was
the cause of quarrel with Kapil which occurred a day prior to the
incident. He had taken his injured son to RMCH where he died. He
has proved his signature in the fardbeyan which has been marked
as Exhibit-1/1.
In cross-examination, he has deposed that initially
he had taken his son to the Police Station where they were asked
to go to RMCH. He had come out from his house within five
minutes from the time he had heard the sound of firing. Before the
people of the locality could assemble the accused persons had fled
away. He was the first person who reached the place of occurrence
followed by his son while his other family members had reached
after five minutes from the time the accused persons had fled
away. His son had a friendly relation with the accused persons. He
had disclosed in his statement the name of his son and the
description of the assailants. About a day prior to the incident his
son had a quarrel with Kapil regarding money. He had given a
separate accommodation for Amanat due to the reason that
Amanat used to come home late at night and this he had done
about 8-10 days prior to the incident. After the incident his wife
had gone to the house of Jaideep Banerjee to inform him about the
occurrence. He has stated that Jaideep Banerjee was present with
Rakesh and Rajesh though he did not have any weapon in his
possession.
10. P.W.7 (Nasima Khatoon) has stated that she was in
her house when she heard a sound of firing. Her husband went out
on hearing such sound and she and her son followed. She had
seen her son Sk. Amanat lying on the ground in a pool of blood.
Rajesh, Rakesh and Kapil were present there. Her son tried to
catch hold of the accused but they managed to flee away. Her
deceased son used to work for Kapil and a day prior to the
occurrence there was a quarrel between her son and Kapil relating
to payment of salary. She has stated that Kapil had threatened her
son.
In cross-examination, she has deposed that her son
used to be in the company of Kapil as he had a good relation with
Kapil. She and her husband had both come out of the house
together. It was a dark night and there was no other person of the
vicinity present outside. She had seen the accused Rajesh, Rakesh
and Kapil. Rajesh and Rakesh were got identified by her husband.
Her deceased son was given a separate accommodation since he
used to come home late at night.
11. P.W.8 (Md. Raja Kureshi) has stated that on coming
to know about the incident he had gone to RMCH where he found
the dead body of Sk. Amanat.
In cross-examination, he has deposed that he had a
conversation with the wife and father of Sk. Amanat and they had
disclosed about seeing a tall and a short heighted person fleeing
away.
12. P.W.9 (Sahnaj Khatoon) has stated that her
husband used to work for Kapil and on the date of occurrence he
was returning home from work. Her husband was found lying in a
pool of blood and he was taken to RMCH were he died.
In cross-examination, she has deposed that she
does not know as to how her husband died.
13. P.W.10 (Sahidul Alam) has stated that Hafiz had
informed him that his brother has been shot. He had gone to the
place of occurrence with his brother. He had not seen anybody
fleeing away from the place of occurrence. The deceased did not
have any animosity with Rajesh and Rakesh.
In cross-examination, he has deposed that he is
acquainted with Rajesh, Rakesh and Kapil since long.
14. P.W.11 (Nand Kishor Prasad) was posted as a
Junior Sub-Inspector of Police in Kanke P.S. and on 10.02.2020 he
had taken over the charge of investigation. He had submitted the
charge-sheet against Rajesh Lohra, Rakesh Mahto and Jaideep @
Kapil.
In cross-examination, he has deposed that after
taking over investigation he had not made any inquiry personally.
15. P.W.12 (Dr. Saroj Kumar) was posted as a Medical
Officer in the Department of Forensic Medicine, RMCH and on
13.11.1999 he had conducted autopsy on the dead body of Sk.
Amanat and had found the following:
"Fire Arm injury, having wound of entrance 2 cms. x 1
cm on right eye-bro medium size surrounded by tattooing
and blackening 12 cms. x 17 cms. area. The projectile
passed through right side of frontal bone, brain matter,
broke the left side of occipital bone and a bullet had been
found lodged under the left side of occipital scalp. The
track of the wound was contused and lacerated with
presence of blood and blood clot in the cranial cavity.
There was crack fracture of right fronto parieto occipital
bone starting from the posterior end of the said entrance
wound and the fracture line merged with the wound of
ervid."
The cause of death was due to the above noted
firearm injury. He has proved the post-mortem report which has
been marked as Exhibit-3.
16. The statements of the accused were recorded u/s
313 Cr.P.C., in which, they have denied their complicity in the
murder.
17. The defence has examined one witness in support
of its case.
18. D.W.1 (Prasanjit Kumar) is the brother of the
accused Kapil who has stated that the Medical Shop and its license
is issued in his name and Kapil is not the owner of the shop.
19. It has been submitted by Mr. Sankalp Goswami,
learned counsel for the appellant in Criminal Appeal (DB) No. 700
of 2002 that the informant has subsequently developed his case by
claiming to have witnessed the presence of the appellant but
primarily the prosecution has tried to project that the appellant
had conspired with the other accused persons in committing the
murder of Sk. Amanat since a day prior to the incident an
altercation had taken place between the appellant and the
deceased. It has been submitted that P.W.6 and P.W.7 are the eye-
witnesses but their evidence reveals contradictions and inherent
flaws which demolishes the case of the prosecution.
20. Mr. Sameer Saurabh, learned Amicus Curiae for the
appellants in Criminal Appeal (DB) No. 771 of 2002 and Criminal
Appeal (DB) No. 257 of 2003 has submitted that it was P.W.5 who
had informed the informant and other family members of the
incident and this fact has been corroborated by P.W.10. As per
P.W.6, P.W.7 and P.W.9 had reached the place of occurrence after
five minutes from the time the accused persons had fled away and,
therefore, P.W.7 cannot be said to be an eye-witness. The evidence
of P.W.6 further reveals that the body of his son was not with him
which would be apparent from paragraph 3 of his evidence. The
place of occurrence according to Mr. Saurabh has also not been
established by the prosecution.
21. Mr. B.N. Ojha, learned Spl. P.P. as well as Mr.
Tarun Kumar, learned A.P.P. for the respondents have submitted
that the evidence of P.W.6 and P.W.7 categorizes the involvement of
all the appellants in the murder of Sk. Amanat and the other
corroborative features by virtue of the evidence of the other
witnesses enhances the veracity of the evidence of P.W.6 and,
therefore, the appellants have rightly been held guilty for the
offence of murder.
22. We have heard the learned counsel for the
respective sides and have also perused the Trial Court Records.
23. The appellant in Criminal Appeal (DB) No. 700 of
2002 has been convicted for criminal conspiracy in tandem with
the other appellants with respect to the murder of Sk. Amanat
while the appellants in Criminal Appeal (DB) No. 771 of 2002 and
Criminal Appeal (DB) No. 257 of 2003 have been convicted for
directly participating in the murder. The informant and his wife
who have been examined as P.W.6 and P.W.7 claimed themselves
to be the eye-witnesses and while P.W.6 has deposed that Rakesh
and Rajesh were seen standing at the place of occurrence with
pistols and Kapil though present was not having any weapon in his
possession P.W.7 has also stated about the presence of the
accused persons. They have not directly witnessed the murder but
had come out of the house on hearing the sound of firing and had
seen the accused who had subsequently fled away. P.W.6 in his
fardbeyan has not identified the assailants but has merely stated
about two persons; one short and one tall fleeing away from the
place of occurrence who could not be apprehended even on chase.
As per the fardbeyan there was a quarrel between his deceased son
and Rajesh and Rakesh and it was suspected that they along with
Kapil had hatched a conspiracy in eliminating his son. The
prosecution story has been developed during the testimony of
P.W.6 ascertaining the identification of the assailants. Apart from
its inherent improvement such evidence has been contradicted by
P.W.5 who has stated that it was he who had informed about the
incident to the family members of Sk. Amanat in his house where
is father (P.W.6), mother (P.W.7) and another family members were
present. He had also not disclosed as to who had fired at Sk.
Amanat. P.W.8 has stated about P.W.6 and P.W.7 merely giving a
description of the assailants when he had a conversation with
them. The wife of the deceased who has been examined as P.W.9
has feigned ignorance as to how her husband had died. The claim
of P.W.7 to have seen and identified the appellants at the place of
occurrence seems to have eroded considerably on account of the
cross-examination of P.W.6 in which he has deposed that his other
family members had reached the place of occurrence after five
minutes from the time the accused persons had fled away.
Therefore, the presence of the accused persons as claimed by
P.W.7 stands negated. The quarrel between the accused and the
deceased a day prior to the incident was perhaps what prompted
P.W.6 to subsequently develop his case and involve all the accused
persons. The non-identification of the assailants as per P.W.6 in
his fardbeyan also appear to be on account of the fact that it was a
dark night as stated by P.W.7. The evidence of P.W.7 cannot be
relied upon on account of its inherent contradiction and
inadequacies emerging from the same. In this context, we may
refer to the case of "Narendrasinh Keshubhai Zala versus State of
Gujarat" reported in 2023 SCC OnLine SC 284, wherein it has been
held as follows:
8. It is a settled principle of law that doubt
cannot replace proof. Suspicion, howsoever great it may
be, is no substitute of proof in criminal jurisprudence
[Jagga Singh v. State of Punjab, 1994 Supp (3) SCC
463]. Only such evidence is admissible and acceptable
as is permissible in accordance with law. In the case of
a sole eye witness, the witness has to be reliable,
trustworthy, his testimony worthy of credence and the
case proven beyond reasonable doubt. Unnatural
conduct and unexplained circumstances can be a
ground for disbelieving the witness. This Court in the
case of Anil Phukan v. State of Assam, (1993) 3 SCC
282 has held that:
"3. ... So long as the single eyewitness is a
wholly reliable witness the courts have no
difficulty in basing conviction on his testimony
alone. However, where the single eyewitness is
not found to be a wholly reliable witness, in the
sense that there are some circumstances which
may show that he could have an interest in the
prosecution, then the courts generally insist upon
some independent corroboration of his testimony,
in material particulars, before recording conviction.
It is only when the courts find that the single
eyewitness is a wholly unreliable witness that his
testimony is discarded in toto and no amount of
corroboration can cure that defect..."
24. There is no other material which would indicate the
direct involvement of the appellants nurtured in the lap of
conspiracy in the murder of Sk. Amanat and consequently, we set
aside the impugned judgment and order of conviction and sentence
dated 18.10.2002 passed by Sri P.M. Lal, learned Additional
Judicial Commissioner (FTC) Ranchi in S.T. No. 572 of 2000 and
S.T. No. 650 of 2000.
25. These appeals are allowed.
26. Since the appellants are on bail, they are
discharged from the liability of their bail bonds.
(Rongon Mukhopadhyay, J.)
(Arun Kumar Rai, J.)
High Court of Jharkhand at Ranchi
Dated, the 20th day of February, 2025.
A. Sanga /-
