- (1.) These appeals have been preferred against the impugned judgment and order dated 22.3.2012 passed by the High Court of Jharkhand at Ranchi in Criminal Appeals (DB) Nos. 273 of 1998 (R) and 262 of 1998 (R) affirming the judgment and order of conviction and sentence dated 26.8.1998 and 31.8.1998 respectively passed by the 3rd Additional Sessions Judge, Dhanbad in Sessions Trial No. 112 of 1997, by which and whereunder, the appellants in both these appeals stood convicted alongwith others, namely, Binod Kumar, Asgar Mian @ Asgar Ansari, Paiki Ramm @ Poki Ramm and Mantu Das under Sections 302 read with 120- B of Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') and sentenced to undergo RI for life.
(2.) Facts and circumstances giving rise to these appeals are that: A. As per the case of the prosecution, Dr. Gopal Prasad Sinha (PW.7), informant/complainant was going alongwith Sant Kumar Sinha (deceased), to Rajganj, Dhanbad on his motorcycle at about 8.00 P.M. on 6.9.1996. When they reached near Sant Nirankari Chowk, they saw a scooter and a motorcycle parked at the side of the road and six persons including the appellants were standing in the close proximity thereof, and they signalled the complainant to stop. The complainant stopped his motorcycle and enquired as to why they were waiting. But within no time, Yakub Ansari and Dhiren Mahto - appellant took out their pistols from their waist and pointed towards them and asked why Sant Kumar Sinha (deceased) was disturbing the working of the institute run by Binod Kumar. They threatened Sant Kumar Sinha (deceased) to remain away from the institute. Sant Kumar Sinha (deceased) asked the accused persons how they were related to running the affairs of the institute, which led to an exchange of hot words between the deceased and the accused persons. Accused Asgar started inflicting blows by means of a knife and told his companions to complete the task for which they had come. Immediately, Yakub opened fire at point blank range from his revolver on the left side of the neck of Sant Kumar Sinha (deceased) due to which the deceased collapsed and died immediately. The informant/complainant being scared ran away from the place of occurrence, leaving his motorcycle at the spot. He met a police party to whom he narrated the incident. On the basis of the Fardbeyan of the informant, a case under Sections 302/120- B/379 IPC and Section 27 of the Arms Act, 1959 (hereinafter referred to as the 'Arms Act') against the accused, including both the appellants, was registered vide FIR No. 175 of 1996. Thus, the investigation ensued accordingly. B. After the conclusion of the investigation, a charge sheet was filed against all the accused, showing Yakub @ Ayub as an absconder. Accordingly, the trial vide S.T. No. 112 of 1997 commenced. The co- accused Yakub @ Ayub was apprehended later and was tried separately vide S.T. No. 405 of 1998. C. In order to prove its case, the prosecution examined eight witnesses including Mithilesh Kumar Sinha (PW.1) real brother of the deceased, Arvind Kumar (PW.2) cousin of deceased, Dr. Dhiraj (PW.6), who conducted the post-mortem examination, Dr. Gopal Prasad Sinha (PW.7), informant/complainant and brother of deceased and Jagdish Prasad (PW.8), the Investigating Officer. D. The defence also examined three witnesses. Gurpreet Singh Mittal (DW.1), was examined only to prove that there was no light in Sant Nirankari Bhawan at the relevant point of time, and further to show that Nirankari Chowk was at a distance of about 200-250 feet away from Nirankari Bhawan. Vijay Kumar Singh (DW.2) and Suresh Dass (DW.3) were merely formal witnesses. E. As per the case of the prosecution, Gulam Sarbar, appellant ran away on Yakub's motorcycle after the incident. He was chased by the police and arrested at a short distance from the place of occurrence after he jumped a police barricade. F. Similarly, Dhiren Mahto left the place of occurrence on LML Vespa Scooter alongwith Asgar Mian. So far as Dhiren Mahto (appellant) is concerned, he was arrested after a few days on secret information of his presence at Naya Bazar. At the time of raid, the said appellant tried to run away on the scooter after seeing the police but was chased and captured near Bartad. G. In his statement under Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), Gulam Sarbar simply denied all allegations against him and even denied his presence at the place of occurrence. Dhirendra Chandra Mahto denied his involvement by any means in the murder of Sant Kumar Sinha (deceased) stating that he had nothing to do with the main accused Binod Kumar. He was a small contractor, however, he did not deny his presence at the place of occurrence nor that he had run away on the scooter taking away Asgar Ansari as pillion rider. H. After considering the material on record, the trial court vide its judgment and order dated 31.8.1998 convicted both the appellants under Sections 302 and 120-B IPC alongwith other accused and sentenced as referred to hereinabove but acquitted Dhirendra Chandra Mahto of the charge under Section 27 of the Arms Act. I. Aggrieved, they preferred appeals alongwith others before the High Court which stood dismissed by the impugned judgment and order dated 22.3.2012. Hence, these appeals.
(3.) Shri Amarendra Sharan, learned senior counsel appearing on behalf of Gulam Sarbar and Shri Ashok K. Srivastava, learned senior counsel appearing on behalf of Dhiren Mahto, have submitted that there is no material on record to prove the existence of a conspiracy to kill Sant Kumar Sinha (deceased); none of these appellants was involved in the affairs of the institute for which there was some dispute between Sant Kumar Sinha (deceased) and Binod Kumar (accused). In fact, both of them had been running a institute jointly and one Shipra Sen Choudhery was working as a clerk in the institute with whom Binod Kumar (accused) developed illicit relationship which was not liked by Sant Kumar Sinha (deceased), who tried to persuade Binod Kumar (accused) not to continue that relationship but he was not willing to give up the same. Sant Kumar Sinha (deceased) also informed the wife of Binod Kumar (accused) about this relationship and there was a quarrel between Shipra Sen Choudhery and Binod Kumar's wife over the same. Earlier, Binod Kumar had opened a new institute and made Shipra Sen Choudhery its Director. However, none of these appellants were involved in the entire episode. Even the arrest of Gulam Sarbar from a place near to the place of incident is doubtful. Had it been so, the FIR which was registered after the arrest of Gulam Sarbar, would contain such facts. Even the general diary did not mention what the distance was between the police station and the place from where Gulam Sarbar, appellant, was arrested. The investigation had not been conducted properly and fairly. The witnesses, particularly, Mithilesh Kumar Sinha (PW.1) and Arvind Kumar (PW.2) not being eye-witnesses could not be relied upon. No independent witness was examined by the prosecution to prove the arrest of any of the appellants nor to prove alleged recoveries of the motor cycle and the scooter in the case. The prosecution case is based on speculation and conjecture thus, the appeals deserve to be allowed and the judgment and order of the courts below are liable to be set aside.;