Back
JHARKHAND HIGH COURT
Navneet Kumar, J.
Nago Pandey – Appellant
versus
State of Jharkhand – Respondent
Cr. Appeal (SJ) No.1607 of 2003
Decided on 22.11.2021
Counsel for the Parties:
For the Appellant:Mr. Aashish Kumar, Advocate
For the Respondent: Mr. Abhay Kr. Tiwari, A.P.P.
IMPORTANT POINT
It is not proper for trial court to rely upon all documents whose makers have not been examined.
Headnote:
Indian Penal Code, 1860 – Section 395 – Dacoity – Conviction and sentence – IO of this case has also not been examined and manner of T.I. Parade remains unproved in eyes of law in absence of examination of IO – Nor accused-appellant got opportunity to bring to notice of court course of trial about contradictions of witnesses examined during course of investigation – In addition to this, time, place and manner of commission of offence also gets unproved and it causes serious prejudice to appellant – It is highly unjust and unfair that trial court relied upon all documents whose makers have not been examined – Appellant and informant were known to each other and possibility of false implication is very imminent in view of fact that trial was conducted against six accused persons but only appellant has been held guilty by trial court only on the basis of identification in absence of any other cogent and reliable evidence – There is no material for trial court to hold guilt of accused-appellant as there is no cogent evidence upon which charges levelled against accused were proved – Identification at the time of commission of offence about involvement of appellant is totally false and fabricated – Impugned judgment of conviction and order of sentence is purely non-application of judicial mind – Judgment of conviction and order of sentence set aside. (Paras 7, 9 to 13)
Result: Appeal allowed.
JUDGMENT
Navneet Kumar, J.—This appeal is directed against the judgment of conviction dated 22.08.2003 and order of sentence dated 23.08.2003 passed by the learned Additional District & Sessions Judge, Fast Track Court-IV, Deoghar in Sessions Case No. 18 of 1990 by which the appellant Nago Pandey has been convicted u/s 395 IPC and acquitted along with the five accused persons under sections 412 IPC. The other accused persons have been acquitted u/s 395 IPC also. The learned trial court has sentenced the appellant to undergo rigorous imprisonment for four years u/s 395 IPC.
Prosecution Story
2. The prosecution arose in the wake of fardbeyan of Naresh Chandra Pandey recorded by S.I. Sudhir Chandra Choudhary on 10.03.89 in village at 10 a.m. while the informant was sleeping he woke upon the sound of “Khat Khat” and asked his son that who is on the door, upon which the accused persons pushed the door due to which the lock was broken and at that time a “lantern” was burning and his wife Jugmaya Devi was also there. The informant has further disclosed that all the accused persons were wearing “Baniyan” and half pants and one of the accused persons put dagger on his neck and thereafter committed dacoity in his house. The name of the articles has been given and thereafter the accused persons locked the door from outside and fled away. It is further stated that the accused persons also committed dacoity in the house of his grandfather Manoranjan Pandey and thereafter accused persons also entered in the house of his nephew and with the help of the light of torch, the informant, his sister-in-law, Indrawati Devi and nephew, Purushottam Pandey have identified the appellant through his voice as well as in the light of the torch who has been married in the neighboring of the informant. The informant has also claimed to identify the accused persons and also stated that he came to the police station at 9 a.m. to lodge the case where he got information that dacoits have been arrested along with looted articles.
On the basis of the aforesaid “fardbeyan”, police instituted Lalajori P.S. Case No. 16/89 u/s 395/412 IPC against Nago Pandey the appellant and others. After investigation police submitted charge sheet u/s 395/412 IPC.
Thereafter it appeared the learned Chief Judicial Magistrate took cognizance of the case and transferred the case for commitment and the case has been committed to the court of sessions and vide order dated 19.09.2002, the case has been separated because of nonappearance of other accused persons and thus the charge has been framed on 25.10.2002 against the appellant and five others u/s 395/412 IPC.
3. Learned trial court after conducting the trial passed impugned judgment of conviction dated 22.08.2003 and order of sentence dated 23.08.2003 in Sessions Case No. 18 of 1990 which is under challenge.
4. Heard Mr. Ashish Kumar, learned counsel for the appellant and Mr. Abhay Kr. Tiwari, learned A.P.P. for the State.
Argument on behalf of the appellant:
5. Assailing the impugned judgment of the conviction and order of sentence, learned counsel for the appellant submitted that the learned trial court has failed to scrutinize the evidence and without application of mind relying upon the testimony of the interested witnesses, convicted the appellant. The learned trial court ought to have considered that the appellant might have been falsely implicated in the case because of family feud as both are related to each other where father-in-law of the appellant Shrishti Pandey is agnates of the prosecution party who wanted to show down the agnates who is in-laws of the appellant. The learned trial court has completely failed in scrutinizing the evidence and passed the judgment in mechanical manner. It has further been pointed out that the learned trial court did not apply judicial mind and passed the impugned judgment relying upon the testimony of interested witnesses. The trial court has completely failed in its jurisdiction
