Dhirendra Singh @ Pappu vs The State Of Jharkhand on 1 March, 2021


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Supreme Court of India

Dhirendra Singh @ Pappu vs The State Of Jharkhand on 1 March, 2021

Author: M.R. Shah

Bench: Hon’Ble Dr. Chandrachud, M.R. Shah

                                                        1


                                                                          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



                                                 JUDGMENT

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
Signature Not Verified

Digitally signed by
Sanjay Kumar
Date: 2021.03.01

the Arms Act, the original accused No. 2 has preferred the present appeal.
15:18:57 IST
Reason:

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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



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