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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 580 OF 2018
Dhirendra Singh @ Pappu .. Appellant
Versus
State of Jharkhand .. Respondent
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment and order
dated 28.02.2017 passed by the High Court of Jharkhand in Criminal Appeal (DB)
No. 1324 of 2005, by which the High Court has dismissed the appeal preferred by
the appellant herein-original accused and has confirmed the order of conviction
and sentence passed by the learned Sessions Court convicting the accused for the
offences punishable under Section 302 read with Section 34 IPC and Section 27 of
the Arms Act, the original accused No. 2 has preferred the present appeal.
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2. The prosecution case in nutshell was that one Suraj Mandal – P.W.27 gave
the Fardbeyan recorded at Tata Main Hospital, Jamshedpur on 08.08.1987 at 12.15
hours. The case of the prosecution was that the informant along with one Nirmal
Mahto (the deceased) and others reached Jamshedpur in the previous night at about
10.30 p.m. and stayed at TISCO Guest House. They had come for attending the
last rites of mother of one Avtar Singh Tari. On 08.08.1987 at about 11.45 a.m.,
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. In the meantime, one car bearing No. DEA-2544
came there and five persons alighted from it. The informant asked Nirmal Mehto
as to who they were, whereupon he told that two of them were Pandit and Pappu,
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 from firearm upon Nirmal
Mehto, which hit him and he fell down. Pandit also assaulted Nirmal Mehto by
firearm from behind and he again fired firearm injuring the informant also. The
case was registered against the accused for the offences punishable under Sections
302/307/34 IPC and Section 27 of the Arms Act. On the basis of the Fardbeyan
given by the informant, the FIR was registered. The investigation was
subsequently taken up by the CBI and upon investigation the CBI submitted the
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charge-sheet against the apprehended accused Birendra Singh, showing the
appellant and others to be absconders. That Birendra Singh came to be tried in a
separate sessions’ trial and he came to be convicted and sentenced for the offences
under Sections 302/34 IPC. Subsequently, he died during the pendency of his
appeal in the High Court. After a period of 13 to 15 years, the appellant and one
another surrendered/were arrested. Therefore, a supplementary charge-sheet was
filed against the appellant and one another. As the case was triable by the learned
Court of Session, the case was committed to the learned Sessions Court. The
appellant and one another came to be tried by the learned Sessions Court for the
offences under Sections 302/34 IPC and Section 27 of the Arms Act, as they
pleaded not guilty.
3. To prove the case against the accused, the prosecution examined 35
witnesses and also brought on record several documentary evidences through the
aforesaid witnesses. Suraj Mandal-informant who was an injured eye-witness
came to be examined as P.W.27. One Md. Akhtar Hussain and Nirmal
Bhattacharya, who were also the eye-witnesses to the incident, came to be
examined as P.W.7 and P.W.8 respectively. The prosecution also examined the
doctor who performed the post-mortem on the dead body of the deceased as well
as who examined the injured Suraj Mandal. On conclusion of the trial, learned
Trial Court convicted the accused for the offences punishable under Section 302
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read with Section 34 IPC and Section 27 of the Arms Act and sentenced him to
undergo life imprisonment.
3.1 Feeling aggrieved and dissatisfied with the judgment and order of conviction
passed by the learned Trial Court, the appellant herein preferred an appeal before
the High Court. By the impugned judgment and order dated 28.02.2017, the High
Court has dismissed the said appeal. Hence, the present appeal.
4. Shri Cinmoy, learned Advocate appearing on behalf of the appellant
Dhirendra Singh @ Pappu has vehemently submitted that as such there are
material contradictions in the depositions of P.W.7, P.W.8 and P.W.27 with respect
to the role attributed to the appellant and/or the overt act by the appellant–accused.
It is submitted that as such it is not proved beyond doubt that the appellant-accused
was responsible for the death of Nirmal Mehto and/or he fired on the deceased
and/or on the informant.
4.1 It is further submitted by the learned Advocate appearing on behalf of the
appellant that as per the prosecution there were five eye-witnesses. However, the
prosecution examined only three eye-witnesses. It is submitted that as material
contradictions were coming out from the depositions of P.W.7 and P.W.8 and
therefore the prosecution dropped other two witnesses. It is submitted by the
learned Advocate appearing on behalf of the appellant that both, learned Trial
Court as well as the High Court, have materially erred in relying upon the
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depositions of P.W.7, P.W.8 and P.W.27, who named the appellant. It is submitted
that their evidence is full of contradictions. It is further submitted that in the FIR
there is no allegation of assault on the appellant and as such the presence of the
appellant at the place of incident is absolutely doubtful. It is further submitted by
the learned Advocate appearing on behalf of the appellant that as such there is no
recovery/seizure of any firearm from the appellant. It is submitted that though
P.W.7 named the appellant, but he clearly stated that he could not say as to by
whose assault the deceased was injured. It is submitted that therefore in view of
the vital contradictions in the evidence of the eye-witnesses, the appellant is
entitled at least to the benefit of doubt.
4.2 Learned Advocate appearing on behalf of the appellant has further submitted
that it is not possible that Fardbeyan was given by the informant. It is submitted
that the Fardbeyan is stated to be in writing of the informant, however, as per the
case of the prosecution and even P.W.27, the informant sustained the injury on
hand by firearm. It is submitted that therefore it was not possible for the informant
to give the Fardbeyan in writing.
5. The present appeal is opposed by Shri Arunabh Chowdhury, AAG for the
State of Jharkhand. He has supported the judgment and order passed by the
learned Trial Court as well as the High Court. It is submitted that as such there are
no material contradictions in the depositions of P.W.7, P.W.8 and P.W.27 so far as
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the presence of the appellant-accused and his active participation in the
commission of the offence. It is submitted that as such the appellant absconded for
13 to 15 years after the date of the incident and the depositions and the evidence
were recorded after 15 years and therefore as rightly observed by the High Court
there are bound to be some variations and/or contradictions. It is submitted that
therefore such minor contradiction/contradictions shall not be to the benefit of the
accused. It is submitted that so far as the informant P.W.27 is concerned, he is an
injured eye-witness and he also suffered an injury by an firearm, which has been
established and proved from the medical evidence and the deposition of the doctor
who treated the informant.
5.1 It is submitted that therefore when the accused has been convicted with the
aid of Section 34 IPC and his presence and participation has been established and
proved, no error has committed by the High Court in confirming the conviction of
the accused.
6. Heard learned counsel appearing on behalf of the respective parties at
length. We have gone through the judgment and order of conviction passed by the
learned Trial Court and confirmed by the High Court. We have also re-appreciated
the entire evidence on record, though not required at this stage.
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6.1 The case of the prosecution rests on the depositions of P.W.7, P.W.8 and
P.W.27. The aforesaid witnesses can be said to be the star witnesses. P.W.27 is the
informant-injured eye-witness whose presence at the time of incident is established
and proved. There is no reason to doubt his presence at the time of incident. He
also sustained the injuries by a firearm which has been established and proved by
the prosecution by leading medical evidence. The same is supported by the
deposition of the medical officer P.W.21 – Dr. Braj Kishore Prasad Singh. The
injuries sustained by the said witness P.W.27 by the firearm, as per the doctor,
were, abrasion wound on right-hand elbow joint; several wounds of pallets on right
hand and wound on little finger of right hand. As the injury sustained by him on
little finger was simple in nature, it was possible for P.W.27 to give
complaint/Fardbeyan in writing. There is no reason to doubt his presence at the
time of incident as well as his deposition. The presence of appellant at the time of
incident and his active participation has been established and proved by the
prosecution by examining other two witnesses P.W.7 and P.W.8 also, along with
P.W.27. There may be some contradiction/contradictions with respect to the role
attributable to the appellant-accused and/or overt act by the appellant-accused.
However, as rightly observed by the High Court, the deposition was recorded after
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a period of approximately 15 years, there are bound to be some minor
contradiction/contradictions. However, it is also required to be noted that the
appellant has been convicted for the offences punishable under Section 302 with
the aid of Section 34 IPC. Therefore, when the presence of the appellant-accused
at the time of incident and his active participation has been established and proved,
it cannot be said that both, the learned Trial Court as well as the High Court, have
committed any error in convicting the appellant-accused under Section 302 read
with Section 34 IPC.
6.2 At this stage, it is required to be noted that the appellant ran away and he
absconded for approximately 15 years. His trial was separated. He
surrendered/was arrested after the conclusion of the trial of another accused and
after another accused was convicted. Learned counsel appearing on behalf of the
appellant is not in a position to seriously dispute the finding recorded by both the
Courts below with respect to the presence of the appellant-accused at the time of
incident. The use of firearm by the appellant-accused has also been established
and proved. Merely because the weapon is not seized cannot be a ground to acquit
the accused when his presence and his active participation and using firearm by
him has been established and proved. We are of the opinion that both, the learned
Trial Court and the High Court, have rightly convicted the appellant-accused for
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the offences punishable under Section 302 read with Section 34 IPC. No
interference of this Court is called for.
6.3 In view of the above and for the reasons stated above, the present appeal
fails and the same deserves to be dismissed and is accordingly dismissed.
……………………………………J.
[Dr. Dhananjaya Y. Chandrachud]
………………………………….J.
[M. R. Shah]
New Delhi,
March 1, 2021
