Criminal Appeal (DB) No. 208 of 2004
With
Criminal Appeal (DB) No. 376 of 2004
Against the judgment of conviction and order of sentence dated 12th January 2004 and 13th January 2004 respectively, passed by Sri Alok Kumar Dubey, Additional District & Sessions Judge, Fast Track No.­I, Gumla in Sessions Trial No. 84 of 2003.
Anil Singh…………………
Appellant (In Cr. Appl No. 208/2004)
Prem Singh....................
Appellant (In Cr. Appl No. 376/2004)
Versus
State of Jharkhand………………… Respondent (In both the appeals)
……
For the Appellant
: Mr. B.M.Tripathy, Sr. Advocate
Mr. Naveen Kr. Jaiswal, For the State
: Mr. Ravi Prakash, A.P.P.
……
P R E S E N T
The Hon’ble Mr. Justice R.K.Merathia
The Hon’ble Mr. Justice D.N.Upadhyay
J U D G M E N T
By Court.
Both these appeals arise out of the judgment of conviction and sentence dated 12/01/2004 and 13/01/2004 respectively, passed by learned Additional District & Sessions Judge, Fast Track Court No. I, Gumla in Sessions Trial No. 84 of 2003, convicting both the appellants for the offences under Section 302/394/34/411 of the Indian Penal Code and 27 of the Arms Act and sentencing them to undergo R.I. for life for the offences under Section 302/34 IPC; R.I. for 10 years for the offences under Section 394/34 IPC; R.I. for 3 years for the offences under Section 411 IPC and R.I. for 5 years for the offence under Section 27 of the Arms Act. However, all the sentences were directed to run concurrently.
Both the cases were heard together and are being disposed of by this common judgment.
2.
The prosecution case, in short, is as follows:­
PW­9 Pramod Kumar lodged a Fardbeyan on 28/09/2002 at about 1.50 P.M., in Sadar Hospital that he is cashier from the last 20 years in the Sahu Brothers Petrol Pump. He and PW­2, another employee, were working in the petrol pump. The owner Mithilesh Kumar Sahu @ Nanhi (deceased) was also present on one of the counters. At about 1.30 P.M., two unknown persons entered into the office with countrymade pistol in their hands. Another person, with pistol, was standing outside the counter. Both the miscreants demanded money from the informant keeping the pistol on his temple. He gave money, which was kept by the miscreants in their “Ganji”. The miscreants went to Mithilesh and asked for more money on pointing pistol. Mithilesh told that all the money was in the cash counter. On this, the miscreants assaulted Mithilesh with butt of the pistol and continued demanding money and asked to open the drawer. When Mithilesh was going to open it, one miscreant fired at him by putting the pistol on his temple. Thereafter, both the miscreants fled away by outer gate. Third miscreants was standing outside the office. He made a blank fire.All the three miscreants fled away from motorcycle after looting an amount of Rs. 1 lakh and committing murder of Mithilesh. The informant claimed to identify the miscreants. He stated that the occurrence was seen by others also.
3.
The prosecution examined 15 witnesses. PW­1 is the Doctor, who conducted Post Mortem. He found the cause of death to be gun shot injury from point blank range and one lacerated wound near right eyebrow. PW­2 Suresh Prasad @ Surendra Prasad is the other employee named in the FIR, who was also working in the petrol pump at the relevant time. Pws­3, 4 and 7 are the hearsay witnesses. PW­5 saw the miscreants while fleeing away. He identified the witnesses in the Test Identification Parade (T.I. Parade) as well as in the Court. PW­6 also saw the miscreants while fleeing away from the place of occurrence. However, this witness was not taken for T.I. Parade. PW­8 is the Judicial Magistrate, who conducted T.I. Parade. PW­9 is the informant. PW­10 is the other eyewitness, who was present at the place of occurrence. This witness has identified appellant Anil Singh in the T.I. Parade as well as in Court. PWs­ 11 and 12 are the witnesses to the seizure of firearms and some amount of cash on the confession of both the appellants. PW­13 is the Investigating Officer. PWs­ 14 and 15 are the police personnels, who produced materials exhibits.
The defence examined two witnesses­DW­s 1 and 2 on the point that appellant Anil Singh was known to PW­10 Krishna Singh from before.
4.
Mr. B. M. Tripathy, learned senior counsel appearing on behalf of the appellants in both the cases, submitted that the occurrence and the manner thereof is not disputed by the appellants, but their identification is disputed. He submitted that though the appellant Anil Singh was forwarded to Court on 02/10/2010 and Prem Singh was forwarded to Court on 13/11/2010 but the T.I. Parade was held separately, i.e. for Prem Singh on 14/11/2002 and then for Anil Singh on 16/12/2002. There was much delay in holding T.I. Parade and it is not known why T.I. Parade was held separately for the appellants. The appellants were produced in Court on several occasions before T.I. Parade and, therefore, the possibility of the witnesses seeing the accused persons­appellants prior to their identification in T.I. Parade cannot be ruled out. He also submitted that the pillet and countrymade pistol were not sent to Forensic Science Laboratory and the recovery of firearm and money was planted. He lastly submitted that the appellants have remained in jail custody for more than nine years. 5.
On the other hand, Mr. Ravi Prakash, learned APP supported the impugned judgment and submitted as follows:­
The occurrence took place in broad day light. The Fardbeyan was lodged within 20 minutes. The witnesses have categorically stated that they did not see the appellants in the police station or in Court prior to their identification in T.I. Parade. At the time of production of the accused persons, witnesses are not required to be present. There is nothing to show that they were present. The defence cannot argue on the basis of presumption that the witnesses had chance to see the appellants prior to their identification. The T.I. Parade is held only for the purpose of corroboration. The manner of identification by the Magistrate PW­8 is not under challenge. The seizure list witnesses have fully supported the seizure of firearm on the confession of the appellants. There is nothing wrong in conducting T.I. Parade on two dates. The prayer for test identification for Prem Singh, was made on 13/11/2002 and it was held on 14/11/2002 then immediately on 18/11/2002 prayer was made for holding T.I. Parade for Anil Singh but due to illness of the identifying witnesses, it could be held only on 16/12/2002. There is nothing to indicate false implication of the appellants. They have been rightly convicted and sentenced in this heinous crime.
6.
After carefully going through the records and hearing the parties at length, we find force in the submissions of the State counsel. The occurrence is not disputed. It took place in broad day light. The fardbeyan was recorded within 20 minutes of the occurrence. The informant (PW­9) disclosed the presence of PW­2, another employee of the petrol pump. All the witnesses are consistent and they corroborate each other on the manner of occurrence. The identifying witnesses, i.e PWs­ 5 and 9 had clearly identified both the appellants. They identified Prem Singh as the miscreant, who killed Mithilesh by gunshot injury in course of commission of robbery. PW­10 identified Anil Singh. The witnesses have clearly identified the appellants assigning their role as narrated in the fardbeyan. In similar manner they have identified the appellants in Court assigning their respective roles as alleged by the prosecution. They have categorically stated in Court that they did not see the appellants either in the police station or in Court prior to their T.I. Parade. Only on the basis of presumption that at the time of production of the appellants in Court prior to their identification, the witnesses might have seen them as they are interested witnesses, the categorical identification made by the witnesses cannot be brushed aside. There is nothing to indicate false implication of the appellants.
In our opinion, there was no delay in holding the T.I. Parade. There was nothing wrong if it was held one after another. As the manner of occurrence is not disputed and direct evidence are available, none sending of countrymade pistol for Forensic Science Examination will not make the prosecution case doubtful. It may also be noted that the appellants confessed their guilt and on their confession the firearms, used in the commission of crime, were recovered, which were concealed on different places. Even if, the recovery of some amount of cash is kept aside, the recovery of firearms, used in the crime, on the confession of the appellants is relevant factor in this case, supporting the case of prosecution. 7.
Mr. Tripathy also argued on the question of sentence of Anil Singh and submitted that he had no intention to kill the deceased as he was standing outside. At best he facilitated escape of the other miscreants.
8.
Such submissions is not acceptable. The prosecution has clearly proved that he was waiting on the running motorcycle at the exit of petrol pump. He also made blank fire in the air when all the three miscreants fled away on the motor cycle. He has taken active part and has jointly committed the crime.
9.
In our opinion, the appellants have been rightly held guilty for the said offences. The prosecution has proved it's case against the appellants beyond all reasonable doubts. There is no reason to interfere with the conviction and sentence, passed against the appellants, in this heinous crime.
Accordingly, by affirming the conviction and sentence passed by the trial court against both the appellants, both these appeals are dismissed.
(R.K.Merathia, J)
(D.N.Upadhyay, J) Jharkhand High Court, Ranchi
Dated the 23rd February 2012;
NAFR/Mukund/c.p. ­3