Criminal Appeal (DB) Nos. 1324 and 1163 of 2005. Case: Dhirendra Singh and Ors. Vs State of Jharkhand. Jharkhand High Court
| Case Number | Criminal Appeal (DB) Nos. 1324 and 1163 of 2005 |
| Counsel | For Appellant: Munna Lal Yadav and Sanjay Kumar Tiwary, Advocates and For Respondents: Kailash Prasad Deo and Gaurav, Advocates |
| Judges | Harish Chandra Mishra and Dr. S.N. Pathak, JJ. |
| Issue | Arms Act, 1959 - Section 27; Code of Criminal Procedure, 1973 (CrPC) - Sections 164, 313; Indian Penal Code 1860, (IPC) - Sections 302, 307, 34 |
| Judgement Date | February 28, 2017 |
| Court | Jharkhand High Court |
Judgment:
Harish Chandra Mishra, J.
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Both these criminal appeals arise out of the common Judgment and as such, they are taken up together and disposed of by this common Judgment.
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Heard learned counsels for the appellants in both the appeals and learned counsel for the CBI.
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The appellants are aggrieved by the Judgment of conviction dated 6.7.2005 and Order of sentence dated 14.7.2015 passed in Sessions Trial No. 122 of 2001/Sessions Trial No. 240 of 2003, by the learned Addl. Sessions Judge, Fast Track Court No. 8, Jamshedpur, whereby, the appellants have been found guilty and convicted for the offence under Section 302 r/w Section 34 of the Indian Penal Code and Section 27 of the Arms Act. Upon hearing on the point of sentence, the appellants have been sentenced to undergo imprisonment for life for the offence under Sections 302/34 IPC and rigorous imprisonment for three years for the offence under Section 27 of the Arms Act. Both the sentences were directed to run concurrently.
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The prosecution case was instituted on the basis of fradbeyan of P.W. 27 Suraj Mandal, who was then a member of Legislative Assembly from Jharkhand Mukti Morcha party (hereinafter referred to as "J.M.M."), recorded at Tata Main Hospital, Jamshedpur, on 8.8.1987 at 12.15 hours, wherein, he has stated that the informant along with Nirmal Mahto (the deceased), Gyan Ranjan Jee, Ex-MLA, Babulal Soy and Shivaji Rai had reached Jamshedpur in the previous night at about 10.30 pm and had stayed at TISCO Guest House (which is also known as Chamariya Guest House). They had come for attending the last rites of mother of one Avtar Singh Tari. On 8.8.1987 at 11.45 am, they along with some other persons came out of the guest house for going to the house of Avtar Singh Tari. Some other persons also came there, who were also to go to the house of Avtar Singh Tari. In the meantime, one Car bearing No. DEA-2544 came there and five persons alighted from it. The informant asked Nirmal Mahto as to who they were, where upon Nirmal Mahto told that two of them were Pandit and Pappu (the appellants herein), who were brothers of Birendra Singh. Pandit went inside the guest house and came out along with his brother Birendra Singh and they started talking amongst themselves. In the meantime, Birendra Singh fired firearm upon Nirmal Mahto, which hit Nirmal Mahto and he fell down. Pandit also assaulted Nirmal Mahto by firearm from behind and he again fired firearm, injuring the informant also, whereupon, Sunil Singh opened fire and the accused persons fled away. The driver of the car also tried to flee away with the car, but he was stopped by Sunil Singh, but he also fled away, leaving behind the car. The informant was informed by Sunil Singh that he (the driver) was Akhileshwar Singh. Soon thereafter, Nirmal Mahto was brought to TMH, where he was declared dead. The informant claimed that the accused persons, namely, Birendra Singh and his brothers, Pandit and Pappu and other accused persons in furtherance of their common intention had committed murder of Nirmal Mahto and had also assaulted and injured the informant with intention to cause his death.
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On the basis of the fardbeyan of the informant, Bistupur P.S. Case No. 169 dated 8.8.1987, corresponding to G.R. No. 1201 of 1987 was instituted under sections 302/307/34 of the Indian Penal Code and Section 27 of the Arms Act, and investigation was taken up. Subsequently the case was investigated by the CBI and upon investigation, the CBI submitted charge sheet against the apprehended accused Birendra Singh, showing these appellants to be absconders. It may be stated that said Birendra Singh faced trial in another sessions trial, in which, he was convicted and sentenced for the offence, who subsequently, died during the pendency of his appeal in the High Court. After apprehension of the appellants, supplementary charge sheets were submitted against the appellants.
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It may also be stated at this place that initially appellant Dhirendra Singh @ Pappu was facing trial in Sessions Trial No. 122 of 2001 in the Trial Court at Jamshedpur, whereas, Narendra Singh @ Pandit was facing trial in the CBI Court at Ranchi. By the order of the High Court, both the trials were amalgamated and Narendra Singh @ Pandit was also tried in the Trial Court below at Jamshedpur in Session Trial No. 240 of 2003 after amalgamating both the cases and examining those witnesses afresh, who had earlier been examined.
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Upon commitment of the case to the Court of Session, charges were framed against the appellants for the offence under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act and upon the appellants' pleading not guilty and claiming to be tried, the appellants were put to trial.
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In course of trial, prosecution has examined 35 witnesses in this case and proved several documents. Out of these witnesses, only three witnesses are the eyewitnesses to the occurrence, who are, P.W.17 Md. Akhtar Hussain, P.W.8 Nirmal Bhattacharya and P.W. 27 Suraj Mandal, who is the informant of the case.
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P.W. 27, the informant Suraj Mandal, has fully supported the prosecution case. He has stated that he was MLA in the year 1987 from J.M.M. Party and prior to that, he belonged to Congress Party, when Gyan Ranjan Jee was also in the Congress Party. This witness has stated that he knew Birendra Singh, who was an accused in this case and he was also a worker of Congress Party. This witness had come to Ranchi for taking part in a party meeting and from Ranchi, on 7.8.1987 he, along with Gyan Ranjan Jee, Nirmal Mahto, Sivaji Rai and Babulal Soy came to Jamshedpur for taking part in the last rites of mother of Avtar Singh Tari. They reached Jamshedpur in the night and stayed in TISCO Guest House (which is also known as Chamariya Guest House), where they reached at about 10.30 in the night. On 8.8.87, in the morning he went to the room of Nirmal Mahto, where other persons also came, including, Aseem Mahto, the brother of Nirmal Mahto, and one Kalicharan Mahto, who was a relative of Nirmal Mahto. He had brought a new 407 vehicle for showing it to Nirmal Mahto, which was parked outside the guest house. All of them took a ride in the said vehicle and thereafter they returned to their room. After taking their breakfast, they came out from the guest house for going to the house of Avtar Singh Tari. When this witness and Nirmal Mahto reached near reception, they saw Birendra Singh sitting there. Other persons had also assembled there for going to the house of Avtar Singh Tari. In the meantime, an Ambassador car came, from which, five persons alighted and this witness asked Nirmal Mahto as to who those two persons were, who were coming towards them, upon which Nirmal Mahto told that they were Pappu and Pandit (appellants),the brothers of Birendra Singh. Birendra Singh talked to his brothers near reception and when these persons were going towards the vehicle, Pappu and Pandit again came there and Birendra Singh gave order to his brothers to kill them (the informant and Nirmal Mahto), whereupon, they tried to flee away towards the guest house, but Pappu caught hold the collar of Nirmal Mahto and Birendra Singh assaulted him by firearm. One fire was also made from behind by Pandit, which also hit Nirmal Mahto. One more firing was made which injured the small finger of right hand of the informant and this firing was made by Pappu. In the meantime, Gyan Ranjan Jee raised alarms. This witness and Nirmal Mahto fell down. Pappu was again loading his gun, but in meantime, Sunil Singh opened fire from his revolver, whereupon the accused persons tried to flee away on the car on which they had come, but Sunil Singh stopped the car. The accused persons fled away on foot. In the meantime, police reached there and Nirmal Mahto and this witness were taken to TMH, where Nirmal Mahto was declared dead and this witness was treated. The statement of the witness was recorded by the police at TMH, upon which, he had also put his signature. He has identified his signature on the fardbeyan, which was earlier marked Exhibit-25/1. This witness has identified both the accused persons in the Court. This witness was subjected to extensive cross-examination, in which, he has stated that he had deposed in the case Birendra Singh also, in Sessions Trial No. 203 of 1995. It appears that some contradictions were tried to be taken from the evidence, which he had given in Sessions Trial No. 203 of 1995, but it is not of much relevance. He has stated that upon treatment of his injury, he was shifted to cabin of the hospital where his statement was recorded by the police and subsequently, his statement was also recorded by the CBI at Circuit House, Jamshedpur. He has denied the suggestion to have given false evidence.
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The second eyewitness of the case is P.W. 7 Md. Akhtar Hussain. He was the driver of the Ambassador car No. DEA 2544, which belonged to Akhileshwar Singh. It appears that Akhileshwar Singh and this witness were made accused in the case, but in...
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