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2003 DIGILAW 683 (JHR)

Sk. Khusdil v. State of Bihar

2003-06-17

VISHNUDEO NARAYAN

body2003
Judgment Vishnudeo Narayan, J.- This Revision has been directed by the petitioners named above against the judgment dated 19th March, 1990 passed by Shri Jiwan Tigga, 2nd Additional Sessions Judge, Singhbhum at Chaibasa in Criminal Appeal No. 275 of 1980 whereby and whereunder conviction and sentence passed against them in Sessions Trial No. 83 of 1977 by Shri Aditya Sharan, 1 st Assistant Sessions Judge, Chaibasa under Section 395 of the Indian Penal Code to undergo R.I. for four years was confirmed. 2. The facts giving rise to this Criminal Revision are as follows: A dacoity was committed in the night between 9th and 10th December; 1974 in the house of P.W. 1, Subodh Chandra Pati, the informant, situate in village Chherkhani, P.S. Rajnagar, District Singhbhum in which his household effects were taken away by the dacoits and a case against unknown dacoits was registered. It is alleged that six dacoits out of 10 or 12 unknown dacoits had entered into the house of the informant and caught hold of him and also tied him with rope and on his alarms, the villagers assembled there and the dacoits fled away and they were chased by the informant and others. It is also alleged that dacoits were armed with lethal weapons and in course of commission of the dacoity one of the dacoits attempted to inflict injury on the informant by the sword which he had warded off. It is also alleged that in spite of chase none of the dacoits could be apprehended. There is specific averment in the F.I.R. that the informant and others had seen the dacoits in the flash of the torch light and the gait and facial features of the dacoits have been stated in the fardbeyan and the informant claims to identify them by their gait and physical features. 3. In course of investigation some of the dacoits were arrested and they were put on Test Identification Parade conducted by the Magistrate and they were identified. After completing the investigation charge-sheet has been submitted in the case against nine accused including the petitioners aforesaid and besides that six accused persons were shown as absconder in the charge-sheet. Nine charge-sheeted persons were put on trial including the petitioners. The learned trial court acquitted accused Sk. After completing the investigation charge-sheet has been submitted in the case against nine accused including the petitioners aforesaid and besides that six accused persons were shown as absconder in the charge-sheet. Nine charge-sheeted persons were put on trial including the petitioners. The learned trial court acquitted accused Sk. Hafizuddin on the ground that he was not put on Test Identification Parade and identified there and his identification for the first time in the court by P.W. 1 after six years of the occurrence was not found reliable. Accused Chotu Mian and Boro Mian (not petitioners in this Revision) were identified by P.W. 1, P.W. 3 and P.W. 4 in the Test Identification Parade as well as in the dock. Petitioner Sk. Khushdil was identified by P.Ws. 1 and 3 and petitioner Sk. Sahebjan was identified by P.W. 1 and P.W. 4 in the Test Identification Parade held on 03.1.1975. Petitioners Sk. Wokil, Sk. Babudin and Sk. Kurban were identified by P.W. 1 only in the Test Identification Parade whereas petitioner Bhondu Mian was identified by P.W. 3 in the said Test Identification Parade and they were also identified by the aforesaid witnesses in the dock in course of evidence. The learned trial. court relying upon the evidence of the aforesaid witnesses have convicted the aforesaid petitioners besides co-accused Chotu Mian and Boro Mian finding them guilty for the offence under Section 395 of the Indian Penal Code. It is pertinent to mention here that co-accused Chotu Mian and Boro Mian did not prefer an appeal against the order of conviction and sentence passed against them as they were throughout in custody. The petitioners aforesaid preferred Criminal Appeal No. 275 of 1980 against the judgment of their conviction and sentence for the offence under Section 395 of the Indian Penal Code before the Sessions Judge, Chaibasa. Their appeal was dismissed vide judgment dated 19.03.1990 passed by 2nd Additional Sessions Judge, Singhbhum at Chaibasa and the judgment of the trial court was upheld. The petitioners aforesaid have preferred this Revision against the concurrent finding of the learned courts below regarding their conviction and sentence. 4. Their appeal was dismissed vide judgment dated 19.03.1990 passed by 2nd Additional Sessions Judge, Singhbhum at Chaibasa and the judgment of the trial court was upheld. The petitioners aforesaid have preferred this Revision against the concurrent finding of the learned courts below regarding their conviction and sentence. 4. Assailing the impugned judgment of the learned courts below it has been submitted by the learned counsel for the petitioners that the impugned judgment of both the courts below is perverse and suffers with manifest error which has caused miscarriage of justice and the same is in violation of established norms and principle of law. Elucidating further it has been submitted that in this case Test Identification Chart regarding their identification in the Test Identification Parade has not been brought on the record and admitted into evidence in this case and furthermore Shri S.Upadhyay, Judicial Magistrate, Saraikella who has conducted the Test Identification Parade in which the petitioners are allegedly to have been identified by the witnesses of the prosecution has not taken oath in this case to corroborate the fact regarding the identification of the petitioners by the prosecution witnesses and, therefore, there is no legal evidence at all on the record for the learned courts below to come to the finding of the guilt of the petitioners for the offence under Section 395 of the Indian Penal Code. It has also been submitted that the identification of the petitioners in the dock in course of evidence by the prosecution witnesses after six years of the alleged commission of the dacoity pales into insignificance and has no relevancy. It has also been submitted that the Investigating Officer of this case has also not taken oath in this case for the prosecution which has caused serious prejudice to the petitioners in the facts and circumstances of this case. Lastly it has been submitted that the finding of the learned court below regarding the guilt of the petitioners relying upon the testimony of the prosecution witnesses regarding their identification in course of the evidence after six years of the occurrence has no bearing in the absence of any corroborative evidence regarding their identification prior to that in the Test Identification Parade and in this view of the matter the impugned judgment of both the learned courts below is unsustainable. In support of his contention reliance has been placed upon the case of Ramadhar Chamar and others vs. State of Bihar (1985 BBCJ 749: 1986 PLJR 327 ) and the case of Budh Sen and another vs. State of U.P. (A.I.R. 1970 SC 1321). 5. The learned A.P.P. has submitted that there is concurrent finding of the learned courts below regarding the guilt of the petitioners having participation in the dacoity in question and they were put on Test Identification Parade and have been identified by the witnesses of the prosecution and in course of trial also they were identified by the said witnesses in the court. It has also been submitted that identification of the petitioners in the Test Identification Parade in course of investigation is not a substantive piece of evidence and as such the non-examination of the Magistrate conducting the Test Identification Parade and the Test Identification Chart not being admitted into evidence are not the lacunae of the prosecution case when both the learned courts below being satisfied by the evidence of the prosecution witnesses regarding the identification of the petitioners as a participation in the dacoity have come to the finding of their guilt and convicted them and in this view of the matter no question of any miscarriage of justice arises in this case and the impugned judgment of the courts below cannot be said to be improper, incorrect and illegal. 6. All the petitioners were found guilty for the charge under Section 395 of the Indian Penal Code by the learned trial court and he was convicted and sentenced to undergo R.I. for four years. It is pertinent to mention here that the case was lodged against unknown accused persons and in course of investigation no incriminating article has been recovered from the possession of these petitioners or other convicted co-accused persons who are not petitioners in this revision. In course of investigation these petitioners were put on Test Identification Parade in which they have been identified and that Test Identification Parade was conducted by a Judicial Magistrate. Thereafter, in course of evidence all these petitioners were identified in the dock by the prosecution witnesses who had earlier identified them in the Test Identification Parade. In course of investigation these petitioners were put on Test Identification Parade in which they have been identified and that Test Identification Parade was conducted by a Judicial Magistrate. Thereafter, in course of evidence all these petitioners were identified in the dock by the prosecution witnesses who had earlier identified them in the Test Identification Parade. It is pertinent to mention at this stage that the Test Identification Chart containing the report of the Judicial Magistrate conducting the Test Identification Parade has not been brought on the record and admitted into evidence. It is equally relevant to mention here that the said Judicial Magistrate who had conducted the Test Identification Parade had also not taken oath in this case. It, therefore, appears that the learned trial court only relied upon the evidence of identification of the petitioners in the dock in course of their evidence which is the basis for their conviction. The learned appellate court below also upheld the finding of the guilt of the petitioners arrived at by the learned trial court on the basis of the evidence aforesaid. It is well settled that the concurrent finding of the fact should not be disturbed unless it is shown that there has been a miscarriage of justice or the violation of some procedure or principle. The Apex Court in the case of Amar Chandra Agrawal vs. Shanti Bose and another (A.I.R. 1973 Supreme Court 799) has observed that the revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is manifest error of point of law and consequently there has been a flagrant miscarriage of justice. Purpose of identification parade is to enable the witnesses to identify the persons who are 'concerned in the offence. Statement by a person identifying certain individuals in the course of Test Identification Parade is not made on oath and is made in extra judicial proceeding and it is no evidence until they are called as witnesses. It is equally settled that the evidence of Test Identification Parade is not a substantive piece of evidence but it can be used only for corroboration or contradiction and it is a weak type of evidence. The Magistrate has to observe certain norms while conducting the Test Identification Parade. It is equally settled that the evidence of Test Identification Parade is not a substantive piece of evidence but it can be used only for corroboration or contradiction and it is a weak type of evidence. The Magistrate has to observe certain norms while conducting the Test Identification Parade. In the case of Sheo Raj vs. State (A.I.R. 1964 Allahabad 290) it was observed that a memorandum of identification proceeding contains not only statements of the witnesses to the effect that such persons were the offenders but also many other facts, such as that the suspects were put up for identification mixed with so many persons, that all precautions were taken, that the witnesses had no opportunity of communicating with one another during the identification, that the suspects were free to occupy any position in the parade, whether a witness pointed out the suspects in the first round or subsequently, the demeanour of witnesses, etc. These facts are not statements and a memorandum of them is not a memorandum to which Section 80 of the Evidence Act could, on any interpretation, apply and cannot be presumed to be genuine. If they have not been proved by the witnesses, who were present at the identification proceedings, they must be the Magistrate and viewed thus the memorandum of identification proceedings held by a Magistrate acting under Section 164 of the Code of Criminal Procedure is not admissible without proof. Here in this case Test Identification Chart has not been legally proved and taken into evidence. So in the eye of law there is no Test Identification Parade Chart before the learned trial court. In the case of Ramadhar Chamar and others vs. The State of Bihar (1985 BBCJ 749 : 1986 PLJR 327 ) it has been held that the Test Identification Chart has to be proved by the Magistrate who has conducted the Test Identification Parade. The non examination of the Magistrate conducting the Test Identification Parade definitely causes prejudice to the accused as he stands debarred of eliciting facts in the cross examination of the Magistrate conducting the Test Identification Parade regarding the norms to be followed by him. Here in this case the Test Identification Chart has not been brought on the record and proved by the Magistrate conducting the said Test Identification Parade as the said Magistrate has not taken oath in this case. Here in this case the Test Identification Chart has not been brought on the record and proved by the Magistrate conducting the said Test Identification Parade as the said Magistrate has not taken oath in this case. Therefore, the very basis of the petitioners being booked in this case suffers with legal lacuna. Therefore, there is no material on the record to come to the conclusion that the petitioners were identified in the Test Identification Parade conducted by the Magistrate. Therefore, there remains the evidence of the prosecution witnesses identifying the petitioners for the first time in the court in course of their evidence which was recorded after about six years of the occurrence. The identification for the first time in the court in the case of robbery or dacoity lodged against unknown accused in the absence of any corroborative evidence regarding them having been put on Test Identification Parade duly proved by the Magistrate is definitely valueless and it cannot be acted upon being the sole basis for coming to the finding of the guilt of the petitioners. The non examination of the I.O. in this case is equally a fatal lacuna which has definitely caused prejudice to the petitioners in the facts and circumstances of this case. Therefore, there is manifest error committed by both the learned courts below in coming to the finding of the guilt of the petitioners which has definitely caused miscarriage of justice in the facts and Circumstances of this case. viewed thus, the judgment of conviction recorded by the learned trial court as well as learned appellate court below is unsustainable in law as it suffers with illegality, impropriety and is equally illegal. 7. There is merit in the Revision and it is allowed. The impugned judgments of both the courts below are hereby set aside. The petitioners are found not guilty for the offence under Section 395 of the Penal Code and they are, accordingly, acquitted and discharged from the liability of the bail bond.