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2007 DIGILAW 212 (JHR)

SIKANDAR ANSARI v. STATE OF BIHAR

2007-03-29

D.G.R.PATNAIK, D.K.SINHA

body2007
Judgment : ( 1 ) THIS appeal is directed against the judgment dated 29-6-1998 passed by the Additional Sessions Judge, sahebganj, in S. T. No. 246 of 1995, whereby he was convicted for the offence under Section 396 IPC and sentenced to undergo rigorous imprisonment for life. ( 2 ) FACTS of the case, stated briefly, is that on the night of 25/26th September, 1994, a dacoity was committed in the house of the informant (PW4) in presence of all the members of the family, including father, mother and sister and household articles were looted away by the dacoits. On hearing alarms, one neighbouring resident namely Dhana hansda came to the house of the informant, but he was caught by the dacoits and one of them shot at him from point-blank range causing his instant death. The matter was reported to the police in the evening on the following day and on the basis of the report, the case was registered against unknown persons for the offence under Section 396 of the Indian Penal Code. The present appellant who was in custody in connection with another case and lodged in Jail at Gumla, was remanded to custody in this case on 19-8-1995 on the requisition filed by the investigating officer. The prosecution has claimed that the present appellant was seen and identified by two witnesses namely PWs 3 and 4 as one of the dacoits and the person who had killed the deceased. ( 3 ) THE appellant had denied the charge pleading not guilty and has claimed that he was falsely implicated in the case by the police in connivance with the witnesses. ( 4 ) AT trial, as many as seven witnesses, including the informant, the doctor who had conducted the post mortem examination on the dead body of the deceased as well as the members of the informants family were examined by the prosecution. The investigating officer of the case was not examined. ( 5 ) THE trial Court placed reliance on the testimony of the PWs 3 and 4, who claimed that they had seen and identified the appellant at the time of the dacoity and recorded its finding of guilt for the offence against the appellant. ( 6 ) SRI G. C. Sahu. learned counsel, representing the appellant as amlcus curiae, has raised certain interesting grounds challenging the impugned judgment of conviction of the appellant. ( 6 ) SRI G. C. Sahu. learned counsel, representing the appellant as amlcus curiae, has raised certain interesting grounds challenging the impugned judgment of conviction of the appellant. Learned counsel submits that the impugned judgment of conviction by the trial Court is totally against the evidence on record and, in fact, the learned Court below has recorded its finding without appreciating the evidence on record in proper perspective. Learned counsel explains that the trial Court has erroneously placed reliance on the evidence of PWs 3 and 4 accepting their statement that they had seen and identified the appellant at the time of the dacoity. The trial Court has ignored the fact that even though in his evidence, PW3 claims that much prior to the date of the occurrence, he knew the appellant not only by his name but also of being a known resident of a neighbouring village, yet the witness has not been named the appellant in his earliest statement to the police, nor did he give any description of the appellant in his statement. Referring further to the evidence of PW 4, learned counsel explains that though this witness also claims to have seen and identified the appellant at the time of occurrence, he has not offered any explanation, much less any reasonable explanation, as to why he being the informant, omitted to mention the name and other particulars regarding the identity of the appellant in his FIR or even in his subsequent statement recorded soon after the fir. Learned counsel refers next to the impugned judgment and points out that though the trial Court has relied on the evidence of these witnesses reading the same along with the test identification chart purportedly conducted during investigation and in which PW3 and other witnesses are claimed to have participated, but the aforesaid circumstance was not put to the appellant at the time of his examination under section 313 Cr. P. C. to enable him to explain the circumstance. Learned counsel adds further that even PW3 has not confirmed that he had ever participated in the test identification parade, or that he had seen and identified the appellant in the test identification parade. Learned counsel adds further that in fact, the purported TIP chart should not have been read as part of the evidence at all since it was never introduced in evidence by the prosecution. Learned counsel adds further that in fact, the purported TIP chart should not have been read as part of the evidence at all since it was never introduced in evidence by the prosecution. Adverting to another significant aspect appearing in the evidences, learned counsel explains that admittedly, at the time of examination of pw4, the said witness was in Jail in connection with a case of murder and the present appellant was also in the same jail at the relevant time. It was put by way of suggestion to PW3, who is the father of PW4 that in course of his frequent visits to Jail to meet his son (PW4), PW3 had occasion to see and acquaint himself with the features of the appellant with whom PW 4 had definite dispute in the jail. Learned counsel adds further that the examination of PW4 was conducted by prosecution in absence of the accused/appellant on being allowed by the trial court against the legal procedure and therefore the entire evidence of PW4 is liable to be expunged. Learned counsel adds further that non examination of the investigating officer has caused serious prejudice to the defence of the appellant and on this score alone, the appellant should have been acquitted of the charge. ( 7 ) LEARNED counsel for the State, while supporting the impugned judgment of conviction of the appellant by the Court below submits that on the point of dacoity committed in the house of the informant, there is ample evidence not only of PW3 and 4, but also that of PWs 5 and 6 and 7 and likewise, the factum of homicidal death of the deceased Dhena Hansda, is also confirmed by their evidence and supported by the evidence of PW2, the doctor who had conducted post mortem examination on the dead body of the deceased. Regarding the identity of the appellant and his involvement in this case, learned counsel for the State claims to rely on the testimony of the PWs 3 and 4, both of whom have stated that they had seen and identified the present appellant as one of the dacoits who had shot at the deceased and inflicted fatal injuries resulting in the death of the victim. The fact that a dacoity was committed in the house of the informant and the fact that the deceased Dhena hansda was killed in course of the dacoity by the miscreants, has not been disputed or controverted by the defence. ( 8 ) FROM the evidences available on the record, it appears that the prosecution has sought to rely upon the testimony of PWs 3 and 4 relating to the identity of the present appellant and his participation in the alleged offence. However, none of these witnesses has reasonably explained the omission of the name of the appellant in the FIR, or in their earliest statements made before the police or even for their failure to give any description of the present appellant by reference to his address, etc. The explanation was very much required in view of the claim of PW 3 in his deposition that he had known the present appellant from before not only by name but also as being a known resident of a neighbouring village. His claim is certainly a fresh introduction in the prosecution case appearing for the first time during trial almost two years after the date of the occurrence and therefore not worth credence. As rightly pointed out by the learned counsel for the appellant, the evidence of PW4 cannot be acted upon primarily for the reason that his evidence was recorded in absence of the appellant. From perusal of the order dated 27-11-1997, it appears that on that date, the appellant was in jail, but was not produced before the trial Court and there was no explanation offered by the jail authorities for the non-production. Yet, by adopting a strange procedure, the trial Court proceeded to obtain a petition purported to be under Section 317 Cr. P. C. from the appellants lawyer and proceeded to record evidence of PW 4 in absence of the appellant. Furthermore, it appears that the discrepancies in the depositions of PW3 and 4 as compared to their previous statements recorded under Section 161 Cr. P. C. , could not be highlighted by the defence on account of the failure of the prosecution to produce the investigating officer disabling the defence to elicit the contradiction. Learned counsel for the appellant has rightly claimed that the non examination of the investigating officer has caused serious prejudice to the defence of the appellant. P. C. , could not be highlighted by the defence on account of the failure of the prosecution to produce the investigating officer disabling the defence to elicit the contradiction. Learned counsel for the appellant has rightly claimed that the non examination of the investigating officer has caused serious prejudice to the defence of the appellant. ( 9 ) FROM perusal of the impugned judgment, it appears that the trial Court has not considered the above material aspects available in the evidences on record and has clearly misread the evidence thereby recording an erroneous finding of guilt against the appellant. ( 10 ) FOR the aforesaid reasons, we find merit in this appeal. Accordingly, this appeal is allowed and the impugned judgment of conviction and sentence of the appellant as recorded by the trial Court in Sessions case No. 246 of 1995, is hereby set aside and the appellant is acquitted of the charge under Section 396 IPC. The appellant is in custody. He is directed to be released forthwith, if not required in connection with any other case (s ). Appeal allowed. --- *** --- .