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2019 Supreme(Jhk) 1896
IN THE HIGH COURT OF JHARKHAND
S. Chandrashekhar, Ratnaker Bhengra, JJ.
Dilip Singh and Ors. – Appellants
Versus
The State of Jharkhand – Respondent
Cr. Appeal (DB) Nos. 422, 449 and 523 of 2009
Decided On : 05-10-2019
Advocate Appeared:
For the Appellant : Laljee Sahay, Jai Shankar Tripathi, Mahesh Kumar Sinha, Tejo Mistry, A.K. Chaturvedy, Hadish Ansari and Amit Kr. Chaubey
For the Respondent: Vinay Kumar Tiwary
Headnote:
Indian Penal Code1860 – Sections 120-B and 364 - Recovery of victims - On basis of his recorded on P.S. Case was registered under section 364 IPC and section 364-A IPC against unknown - Victims were recovered from a house belonging to Dr - Chandra at Patna and appellants were arrested during an encounter there - In this connection was lodged - After investigation a charge-sheet was submitted against nine accused persons was killed in encounter at and was murdered during trial - Held, Additional Sessions Judge has rightly referred to decision in State of Gujarat reported in to brush aside these contentions by observing that defective investigation by itself cannot be a ground for acquitting an accused - On plea raised by appellants that in absence of their identification by victims and they not being put on Test Identification Parade they cannot be held guilty for offence under section 364 IPC and under section 364-A IPC it needs to be recorded that victim namely in his testimony has stated not on one place but on several places that he had no occasion Jo see his abductors - It was a dark evening on abductors put band on his eyes he was kept in a room where he was served food from outside and on he was so frightened that he could not see face of accused persons - In above scenario arrest of appellants in night with arms and ammunitions and other circumstances narrated in – Appellant cancelled
JUDGMENT :
S. Chandrashekhar, J.
1. These three criminal appeals; Criminal Appeal (DB) No. 422 of 2009 by Dilip Singh @ Dilip Kushwaha and Md. Jaffar Ali @ Jafar Ali, Criminal Appeal (DB) No. 449 of 2009 on behalf of Rajeev Ranjan Sah @ Chhotu Gupta and Virendra Singh @ Virendra Kushwaha and Criminal Appeal (DB) No. 523 of 2009 by Virendra Paswan, arise out of a common judgment dated 17.4.2009 in S.T. Case No. 43 of 2008.
2. The learned Additional Sessions Judge, Fast Track Court-II, Seraikella has convicted the appellants, namely, Dilip Singh @ Dilip Kushwaha, Md. Jaffar Ali @ Jafar Ali, Rajeev Ranjan Sah @ Chhotu Gupta, Virendra Singh @ Virendra Kushwaha and Virendra Paswan under section 364 IPC and section 364-A IPC read with section 120-B IPC. The appellants have been sentenced to R.I. for Ten years under section 364 IPC and R.I. for life under section 364-A IPC read with section 120-B IPC with fine of Rs. 2,000/- each and in default of payment of fine to undergo further R.I. for two months. No separate sentence under section 120-B IPC has been inflicted upon the appellants.
3. The accused, namely, Mrs. Renu Singh who was also sent up for trial has been acquitted by the learned Additional Sessions Judge extending the benefit of doubt to her.
4. By an order dated 14.10.2019, Criminal Appeal (DB) No. 422 of 2009 qua the appellant, namely, Dilip Singh @ Dilip Kushwaha who is an absconder has been dismissed in default.
5. The informant of this case is brother of one of the victims, namely, Vishwanath Garg. On the basis of his fardbeyan recorded on 18.7.2007, Chandil P.S. Case No. 118 of 2007 was registered under section 364 IPC and section 364-A IPC against unknown. The victims, namely, Dipak Rai and Vishwanath Garg were recovered from a house belonging to Dr. Chandra Bhushan Mishra at Kankarbagh, Patna and the appellants, namely, Md. Jaffar Ali @ Jafar Ali, Rajeev Ranjan Sah @ Chhotu Gupta, Dilip Singh @ Dilip Kushwaha, Virendra Singh @ Virendra Kushwaha and Virendra Paswan were arrested during an encounter there. In this connection, Kankarbagh P.S. Case No. 148 of 2007 was lodged. After the investigation, a charge-sheet was submitted against nine accused persons-Babua Jaiswal was killed in the encounter at Kankarbagh, Patna and Arun Kumar Rai was murdered during the trial. The accused persons, namely, Kamesh Singh @ Kameshwar Singh @ Brajesh Singh and Shailendra Paswan were shown absconders, however, Kamesh Singh @ Kameshwar Singh @ Brajesh Singh surrendered in the court and Sessions Trial No. 16 of 2009 commenced against him.
6. During the trial, the prosecution has examined 19 witnesses; the victims, namely, Dipak Rai and Vishwanath Garg were examined as P.W. 8 and P.W. 19 respectively. The officer-in-charge of Kankarbagh Police Station who has conducted the rescue operation has been examined as P.W. 17.
7. The prosecution witnesses-Satish Kumar Garg-P.W. 2, Amit Garg-P.W. 3, Chittaranjan Sharma-P.W. 4, Chandramani Rai-P.W. 5, Atam Prakash Kedia-P.W. 6 and Jitendra Garg-P.W. 7 are the related witnesses. They have given evidence on the point of abduction of Dipak Rai and Vishwanath Garg. They are not the eyewitnesses either at the first place of occurrence or on recovery of the victims from the house of Dr. Chandra Bhushan Mishra at Kankarbagh, Patna.
8. The prosecution witnesses-Shakaldeo Ram-P.W. 10(A), Manoj Kumar Thakur-P.W. 11, Dhananjay Kumar Srivastava-P.W. 12, Abid Khan-P.W. 13, Choudhary Prakash Narayan-P.W. 14, Manoj Kumar Mahato-P.W. 15, Surya Bhushan Sharma-P.W. 16 and Ramakant Prasad-P.W. 17-are the police witnesses. They were involved in the rescue operation and they are witness on the point of raid, exchange of fire, death of Babua Jaiswal in the encounter, recovery of the victims and arrest of four of the appellants. Testimony of these witnesses and the documentary evidence produced by the prosecution during the trial have formed the basis for conviction of the appellants under section 364 IPC and under section 364-A
