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2005 DIGILAW 861 (JHR)

SADIQUE ANSARI v. STATE OF BIHAR

2005-12-15

AMARESHWAR SAHAY

body2005
Judgment : ( 1 ) THE sole petitioner has challenged the Judgment of 1st Additional Sessions judge, Garhvva dated 30-4-1998 in sessions Trial No. 220 of 1997 whereby the two accused including the present petitioner were convicted for the offence under Section 395 of the Indian Penal Code and were sentenced to undergo R. I. for a period of seven years each and also the Judgment dated 28-7-1998 passed by the Sessions judge, Palamau, Daltonganj in Criminal appeal No. 18/96 of 1998 whereby the learned appellate Court dismissed the appeal filed by the present petitioner against the conviction and sentence passed by the trial Court. ( 2 ) THE prosecution case in brief is that in the night of 29th November, 1996, some miscreants holding lethal weapons, ransacked the house of Satyanarain Ojha in village-Kanchanpur to secure arms from the house owner, tied them with rope, collected them in a room, broke open the boxes, removed the ornaments, wearing apparels, radios, tape-recorder and torches valued to Rs. 85. 000/- and made good their escape with booty. The house owner, who informed the police, claimed to identify one Buchun pandey by voice and also other dacoits by face. In course of Investigation, the present petitioner was arrested and in test Identification Parade, he was identified by satyanarain Ojha, P. W.-4, the house owner. ( 3 ) DURING trial, eight witnesses were examined including the house inmates. On the basis of oral and documentary evidence adduced by the prosecution, the trial Court convicted both the accused persons I. e. Buchun Pandey and the present petitioner for the offence under Section 395 of the Indian Penal Code and sentenced them to undergo RI. as stated in earlier paragraphs. ( 4 ) IT appears that the co-convict Buchun pandey challenged his conviction and was eventually acquitted in Criminal Appeal No. 57 of 1998 mainly on the ground that the identification of the said accused by voice was not found to be reliable. The appellate court, as it appears, has dismissed the appeal of the petitioner after considering the evidence on record, mainly on the ground that the house owner-P. W.-4, Identified the petitioner in Court as well as in the T. I. Parade and the said fact was corroborated by P. W.-6-t. he Magistrate who conducted the t. I. Parade. ( 5 ) MR. ( 5 ) MR. A. K. Kashyap, learned counsel appearing for the petitioner has submitted that the T. I. Parade of the petitioner was held after 21/2 months of his arrest and therefore, the same has got no value. He submitted that the petitioner was arrested on 12-12-1996 whereas, the Test Identification parade was held on 26-2-1997 and therefore the Test Identification Parade was held after an abnormal delay therefore the same cannot, be made basis for conviction. He further submitted that the Court below ought not have convicted the petitioner under Section 395, I. P. C. on the basis of evidence of solitary witness and on his solitary identification. In support of his submission, Mr. Kashyap relied upon the case of Wakil Singh v. State of Bihar reported in AIR 1981 SC 1392 . ( 6 ) SO far as the decision of the Supreme court in Wakil Singh (supra) is concerned, I find from the facts of the said case that the trial Court had acquitted the accused persons from the charges under Section 396, i. P. C. and then the High Court on an appeal against acquittal, relying on the evidence of a solitary witness, set aside the Judgment of acquittal and convicted the accused under Section 396, I. P. C. The Supreme Court, while testing the legality and validity of the judgment of the High Court, held that since identification was made in T. I. parade after 31/2 months, after the dacoity and in view of such a long lapse, it was not possible for a human being to remember features of the accused and he is very likely to commit mistakes, accordingly, in those circumstances, it was held that unless the evidence is very clear, it would be unsafe to convict the accused on the basis of evidence of a single witness. ( 7 ) WHAT has been noticed above in the aforesaid Judgment of the Supreme Court that therein the Supreme Court has held that unless the evidence is absolutely clear, it will be unsafe to convict the accused on the basis of testimony of a single witness. Therefore, it cannot be said that on the testimony of a single witness, no conviction can be made even if the evidence of that solitary witness is absolutely clear and convincing and is found to be wholly reliable. Therefore, it cannot be said that on the testimony of a single witness, no conviction can be made even if the evidence of that solitary witness is absolutely clear and convincing and is found to be wholly reliable. In the light of Judgment of the Supreme court rendered in the case of Wakil Singh ( AIR 1981 SC 1392 ) (supra), I have carefully gone through the evidence of P. W.-4 satyanarain Ojha from whose evidence it appears that he has clearly stated that at the time of occurrence, he could Identify one person who was holding a pistol. In cross-examination, he clearly stated that the dacoits had not concealed their faces, This witness further stated in cross-examination that he could identify the dacoits in the light of lantern and thereafter, that witness identified the petitioner in T. I. Parade also. The defence has made lengthy cross-examination of this witness, but as I find, that it has failed to take any contradiction in his statement so as to make his evidence unreliable. This witness P. W.-4 has given vivid description of the occurrence and I find him to be wholly reliable. P. W.-4 identified the petitioner in the dock as well as in the T. I. Parade and the same has been corroborated by the Judicial Magistrate (P. W.-6) who conducted the T. I. Parade. ( 8 ) THE Supreme Court, in the case of shiv Charan v. State of Haryana reported in air 1987 SC 1 , while dealing with an appeal against conviction under Sections 395 and 396,1. P. C. , although found in that case that three of the prosecution witnesses were not able to identify the said dacoit at the time of commission of the offence and in the test Identification Parade and on the basis of the testimony of the single witness, the supreme Court affirmed the conviction and sentence passed against the accused person. P. C. , although found in that case that three of the prosecution witnesses were not able to identify the said dacoit at the time of commission of the offence and in the test Identification Parade and on the basis of the testimony of the single witness, the supreme Court affirmed the conviction and sentence passed against the accused person. ( 9 ) IN view of my aforesaid discussions and findings, I do not find any illegality in the impugned Judgment of the Courts below wherein both the Courts below have concurrently found the petitioner to be guilty for the offence under Section 395 of the I. P. C, accordingly, I do not find any reason to interfere with the Judgment and Order of conviction and sentence passed against the petitioner by the Courts below and as such, this Criminal Revision is dismissed. The petitioner who is on bail, his bail bonds are cancelled and he is directed to surrender forthwith to serve out the sentence. Revision dismissed. --- *** --- .