REPORTABLE CRIMINAL APPELLATE JURISDICTION Lakshman Singh

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 606 OF 2021

Lakshman Singh

Versus

…Appellant

State of Bihar (now Jharkhand)

…Respondent

WITH

CRIMINAL APPEAL NOS. 630-631 OF 2021

Shiv Kumar Singh & Others Etc. Versus
State of Bihar (now Jharkhand)

...Appellants ...Respondent

J U D G M E N T

M.R. SHAH, J.

Signature Not Verified

Digitally signed by

Sanjay Kumar

Date: 2021.07.23

14:49:36 Reason:

1.IST

Feeling aggrieved and dissatisfied with the impugned common

judgment and order dated 31.10.2018 passed by the High Court of
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Jharkhand at Ranchi in Criminal Appeal Nos. 232/1999 and 242/1999, by which the High Court has dismissed the said appeals preferred by the appellants herein and has confirmed the judgment and order of conviction and sentence passed by the learned trial Court convicting the appellants for the offences under Sections 323 and 147 IPC and sentencing them to undergo six months simple imprisonment under both sections, original accused nos. 9, 8, 12, 11, 10, 14, 2 and 13 – Lakshman Singh, Shiv Kumar Singh, Upendra Singh, Vijay Singh, Sanjay Prasad Singh, Rajmani Singh, Ayodhya Prasad Singh and Ramadhar Singh have preferred the present appeals.
2. As per the case of the prosecution, an FIR was lodged at Paatan Police Station by the first informant – Rajeev Ranjan Tiwari on 26.11.1989 alleging inter alia that on the eve of general election, he was working as a worker of Bhartiya Janta Party at village Golhana Booth No. 132 under Paatan Police Station and was issuing slips to the voters towards two hundred yards north away from the polling booth; at that time, at around 10:40 a.m., the accused persons who belong to another village Naudiha came armed with lathis, sticks, country made pistols and asked him to stop issuing voter slips and handover the voters list which he was possessing and on his refusal the accused persons started physically beating him (PW8 – Rajiv Ranjan Tiwari) with hands, fists,
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lathis and sticks; the brother of the first informant-PW8, Priya Ranjan Tiwari (PW10) upon knowing about the incident came to rescue him and at that time accused Dinanath Singh @ Dina Singh fired gun shot at PW10 with his country made pistol, due to which he received pellet injuries. Accused Ajay Singh fired at Dinesh Tiwari (PW12), due to which he was injured. It was further alleged that due to scuffle, accused Hira Singh snatched wrist watches of PW8 & PW10; the villagers rushed there and then all the accused persons ran away towards village Naudhia. Based on the statement of PW8 – Rajiv Ranjan Tiwari, which was recorded at 12:30 p.m. on 26.11.1989, an FIR was registered at about 2:00 p.m. on the very day, i.e., 26.11.1989 against 16 accused named persons for the offences under Sections 147, 148, 149, 307, 326, 324, 323 IPC and Section 27 of the Arms Act. At this stage, it is required to be noted that even some of the accused – Lakshman Singh, Shiv Kumar Singh and Ayodhya Prasad Singh also sustained injuries. After conclusion of the investigation, the investigating officer filed chargesheet against 15 accused including the appellants herein.
2.1 The learned trial Court framed the charge against the accused persons for the offences under Sections 323, 307, 147, 149 and 379 IPC. Accused Dinanath Singh and Ajay Singh were further charged under Sections 148 IPC and accused Hira Singh was also charged
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under Section 379 IPC. As the case was exclusively triable by the Court of Sessions, the case was committed to the learned Sessions Court, which was numbered as Sessions Trial No. 36 of 1991.
2.2 To prove the case against the accused, the prosecution examined in all 15 witnesses including PW8, the first informant – Rajiv Ranjan Tiwari, Priya Ranjan Tiwari (PW10) the brother of the first informant and PW5 – Dilip Kumar Tiwari, who all were injured eye witnesses. The prosecution also examined Dr. Jawahar Lal (PW7), who examined PW10, PW12 and PW5 on the very day at Sadar Hospital, Daltonganj and who found injuries on the said persons. The prosecution also examined the investigating officer – Shivnandan Mahto (PW13). Prosecution also examined independent witnesses, i.e., PW1, PW3 & PW4. After closure of the evidence on behalf of the prosecution, statements of the accused persons under Section 313 Cr.P.C. were recorded. They denied to the allegations. The defence also examined DW1 to prove the injuries on accused Ayodhya Prasad Singh, Rama Singh, Shiv Kumar Singh and Lakshman Singh and brought on record their injury reports.
2.3 Thereafter, on conclusion of the full-fledged trial and on appreciation of the entire evidence on record and relying upon the deposition of PW8, PW10 & PW5, who all were injured eyewitnesses
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and other eyewitnesses, the learned trial Court convicted the appellants herein for the offences under Sections 323 and 147 IPC and sentenced them to undergo six months simple imprisonment for both the offences. The learned trial Court also convicted accused Dinanath Singh for the offences under Sections 326 & 148 IPC and sentenced him to undergo seven years and two years RI respectively. The learned trial Court also convicted accused Ajay Singh for the offences under Sections 324 & 148 IPC and sentenced him to undergo three years & two years RI respectively.
2.4 Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence, convicting and sentencing the appellants herein, original accused nos. 9, 8, 12, 11, 10, 14, 2 preferred appeal along with other accused being Criminal Appeal No.232 of 1999 and accused no. 13 preferred appeal being Criminal Appeal No. 242 of 1999 before the High Court. By the common impugned judgment and order, the High Court has dismissed the said appeals and has confirmed the judgment and order of conviction and sentence passed by the learned trial Court.
2.5 Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the High Court, original accused nos. 9, 8, 12, 11, 10, 14, 2 & 13 have preferred the present appeals.
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3. Shri Manoj Swarup, learned Senior Advocate has appeared on behalf of the appellants – accused and Shri Arunabh Chowdhury, learned Additional Advocate General in Criminal Appeal No. 606/2021 and Shri Tapesh Kumar Singh, learned Advocate in Criminal Appeal Nos. 630-631/2021 have appeared for the State of Jharkhand. 3.1 Learned Senior Advocate appearing on behalf of the appellants – accused has vehemently submitted that in the facts and circumstances of the case both, the learned trial Court as well as the High Court have committed a grave error in convicting the accused for the offences under Sections 323, 147 IPC. 3.2 It is further submitted that both the courts below have materially erred in relying upon the deposition of PW8, PW10 & PW5. It is submitted that the aforesaid witnesses are unreliable and untrustworthy. It is submitted that they are not the independent witnesses. It is submitted that as such PW12 – Dinesh Tiwary turned hostile. It is submitted that the aforesaid witnesses belong to the same village. 3.3 It is further submitted that even both the courts below have materially erred in coming to the conclusion that the appellants were part of the unlawful assembly and thereby have committed a grave error in convicting the accused for the offence under Section 147 IPC.
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3.4 It is further submitted that the motive has not been established and proved. It is submitted that the common object was alleged to be to cast bogus votes, which was never cast. It is submitted that even the voter slip was also available with all other parties and therefore the motive as per the prosecution case is questionable. 3.5 It is further submitted that so far as the impugned judgment and order passed by the High Court is concerned, the individual role and/or the merits of the case qua the respective appellants – accused have not at all been considered by the High Court. It is submitted that the High Court has only stated at page 26, para 23 qua the present appellants that so far as the rests of the appellants are concerned, they have been rightly held guilty under Sections 323 & 147 IPC. It is submitted that there is no independent assessment of the evidence qua the appellants herein. 3.6 It is further submitted that both the courts below have not properly appreciated the fact that the presence of the accused at the polling station was natural. It is submitted that because of the bye-election, the accused persons along with the other persons belonging to different political parties were present. It is submitted that it was natural for the people belonging to different parties to call persons from different
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villages or otherwise to be present at booth and that itself would not be sufficient to prove the guilt.
3.7 It is further submitted that even otherwise, the courts below have materially erred in convicting the accused for the offence under Section 323 IPC. It is submitted that so far as PW8 – informant is concerned, there was no injury sustained by him. It is submitted that no injury certificate of PW8 has been brought on record. It is submitted that the prosecution has brought on record the injury certificates of three persons only, namely, PW10 -Priya Ranjan Tiwari, PW12 – Dinesh Tiwari and PW5 – Dilip Tiwari. It is submitted that all the injuries are by gunshot except two simple injuries caused to Dinesh Tiwari – PW12. It is submitted that PW12 turned hostile. It is submitted that the appellants are alleged to have used lathis and sticks only against the first informant – PW8 as per the prosecution case. It is submitted that therefore in the absence of any corroborating evidence/material in support of the case of the prosecution that the appellants have beaten PW8 and sustained injuries, the courts below have materially erred in convicting the accused for the offence under Section 323 IPC.
3.8 It is further submitted that even the conduct on the part of the first informant – PW8 creates doubt about his credibility. It is submitted that he has roped in several persons belonging to the opposite camp. It is
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submitted that after the incident he went to the village and the police SHO came to his house and taken him to the government hospital, Patan and thereafter recorded his fardbyan (statement). It is submitted that neither he went to his injured brother nor he has ever gone to see him at the hospital nor any family member went to see the injured in the hospital. It is submitted that in such circumstances, PW8 is not a reliable and trustworthy witness and therefore the courts below ought not to have relied upon the deposition of PW8. 3.9 It is further submitted that even there is no recovery of lathis and sticks. It is submitted that even the voting slips have also not been recovered from the informant. It is submitted that non-exhibit of voter slips demolishes the case of the prosecution. It is submitted that FIR, PW1 and informant and consistently all witnesses have stated that Rajiv Ranjan Tiwari refused to give voter slips to the accused, upon which scuffle occurred. It is submitted that the voting slips are not exhibited. It is submitted therefore uncorroborated testimony of asking voter slips is not proved. 3.10 Making the above submissions and relying upon the decisions of this Court in the cases of Kutumbaka Krishna Mohan Rao v. Public Prosecutor, High Court of A.P., reported in 1991 Supp. 2 SCC 509 and
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Inder Singh v. State of Rajasthan, reported in (2015) 2 SCC 734, it is prayed to allow the present appeals.
4. The present appeals are opposed by the learned counsel appearing on behalf of the State of Jharkhand.
4.1 It is submitted that as such there are concurrent findings of fact recorded by both, the learned trial Court as well as the High Court, holding the appellants guilty for the offences under Sections 323 & 147 IPC.
4.2 It is submitted that in the present case the prosecution has been successful in proving the case against the accused by examining PW8, PW10 & PW5, who are the injured eyewitnesses. It is submitted that the injured eyewitnesses – PW8, PW10 & PW5 are reliable and trustworthy. It is submitted that all the aforesaid three witnesses were thoroughly cross-examined and from cross-examination, nothing adverse to the case of the prosecution has been brought on record by the accused. It is submitted that even the prosecution examined thee other witnesses, PW1, PW3 & PW4 who are independent witnesses, who supported the case of the prosecution. It is submitted that as such the learned trial Court has discussed the entire evidence on record and analysed the injury reports and thereafter by a detailed judgment has convicted the appellants for the offence of voluntarily causing hurt under Section 323
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