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Jharkhand High Court · body

2009 DIGILAW 229 (JHR)

Nikodin Munda v. State of Jharkhand

2009-02-12

JAYA ROY

body2009
Judgment The sole appellant has preferred this appeal against the judgment dated 10th April, 2001 passed by Sri Rakesh Ranjan Verma, 1st Additional Judicial Commissioner, Khunti in Sessions Trial No. 593 of 1993 whereby the appellant has been convicted under Section 395 of the I.P.C. and is sentenced to undergo R.1. for a period of seven years. 2. The prosecution story, in brief, is that on 12.3.1993 between 8.30 P.M. to 9 P.M. the informant, Hanuman Mal Jain resident of Main Road Chakradharpurwas going to Chakradharpur from Ranchi with Gauresh Kumar Jagatram and his son Satyam Jagatram on Maruti Car bearing no. B.R.-18C-1344 when he reached near village under Murhu Police Station, he found that a log of the tree had been kept on the road and the road was blocked. The informant stopped his car. Immediately, 8 to 10 persons from both sides of the road came to the informant. Amongst them, one had a pistol and he asked the informant to handover the key of the car. When the informant handed over the key of the car, the said miscreants told the informant and other occupants of the car to come out from the car. AU the occupants of the car including informant came out from the said car. The said miscreants surrounded the informant and others and few of them took out clothes, Attachee, shoe etc. from the said car and further they looted Rs. 5100/- from the informant and Rs 400/- from the other two persons. After looting the informant and others, they injured the informant on his head by the butt of the pistol and ordered not to raise any 'Hulla'. Thereafter, they fled away. The informant went to Bandgaon Police Station and informed about the occurrence but the police of Bandgaon Police Station told him to go to Murhu Police Station as the jurisdiction of the case is under Murhu Police Station. The informant, due to the late night, did not go to Murhu Police Station and returned to Chakradharpur. 3. On the basis of Fardbeyan of the informant, a formal F.I.R. was drawn and after investigation, the I.O. submitted the charge-sheet under Section 395 of the I.P.C. against the appellant. After taking cognizance, the case was committed to the Court of Sessions and thereafter, the case was transferred to the Addl. Judicial Commissioner, Khunti for trial. 3. On the basis of Fardbeyan of the informant, a formal F.I.R. was drawn and after investigation, the I.O. submitted the charge-sheet under Section 395 of the I.P.C. against the appellant. After taking cognizance, the case was committed to the Court of Sessions and thereafter, the case was transferred to the Addl. Judicial Commissioner, Khunti for trial. The appellant, Nikodin Munda pleaded not guilty and claimed to be tried. 4. The prosecution examined four witnesses in support of the prosecution case. Amongst them, P.W. 3 is declared as hostile. P.W. 3 has been cross-examined and from his deposition, it is established that few boys were committing something and hearing their voice, he had come out from his house but immediately again returned to his house. The informant is P.W. 1 he has stated about the occurrence happened with him. He has further stated that he and his companions were subjected to road dacoity and his articles and cash money were looted away by the dacoits. The informant (P. W. 1) has further stated that he had identified one of the dacoits (appellant) in T.I. parade held in the jail. P.W. 2 is Gourish Kumar Jagatram who was with the informant in the car at the time of alleged occurrence, has supported the occurrence of dacoity as alleged in the F.I.R. He has also stated that his Prestige brief-case and his new shoes, his pen and a sum of Rs. 400/- in cash had been looted away by the dacoits in the said road dacoity. He has also stated that he had identified one of the dacoits (appellant) in the test identification parade held in the jail. 5. I find from the Fardbeyan which is Exhibit (1) that the date of occurrence is 12.3.1993 at about 8.30 P.M. to 9 P.M. but the Fardbeyan of the informant was recorded by the S.I., Sri T.N. Singh, the Officer in-Charge of Murhu Police Station on 23rd March, 1993 at the shop of the informant. It has further come in the evidence of P.W. 1 that he did not inform the Murhu Police Station about the dacoity and all of a sudden on 23rd March, 1993, the S.I. came to his shop and recorded his Fardbeyan which really casts a great doubt on the prosecution story. It has further come in the evidence of P.W. 1 that he did not inform the Murhu Police Station about the dacoity and all of a sudden on 23rd March, 1993, the S.I. came to his shop and recorded his Fardbeyan which really casts a great doubt on the prosecution story. No explanation has been given that why the informant did not go to Murhu Police Station at least on the next day of the alleged occurrence to lodge a F.I.R. The I.O. has not been examined in this case who can only explain this matter. Thus, it is mysterious that as to how the police got the information and how he came to know about the address of the informant. 6. P.W. 4 is the Judicial Magistrate, Sri Hari Niwas Gupta, who held the test identification parade. 7. Learned counsel for the appellant submits that test identification parade was held on 18.6.1993 though the appellant was arrested on 29th March, 1993. Practically after two and half months after his arrest, the appellant was apprehended in this case only on the basis of confession of one Rego Soy who was not made either an accused or a witness in this case. Regarding the test identification parade, it is submitted that P.W. 4 who conducted the test identification parade, stated in his evidence that all the suspected produced in the T.1. Parade, were not in similar type of dress which is one of the important procedure for conducting T.I. Parade. Both the witnesses who identified the appellant, have stated in the evidence that the means of identification of the appellant is the headlight of the Maruti Car but they have not stated before the police that the headlight of the Maruti Car was on at the time of the alleged occurrence or not. 8. The learned counsel of the A.P.P. submits that two persons have identified this appellant in T.I.P. He further states that there is explanation for delay in holding the T.I.P. after arrest of the accused. 9. From perusal of the evidence of the witnesses and the records of the case, I find that the delay in lodging the F.I.R. has not been explained. Secondly, the T.I. Parade was held after two and half months of the arrest of the appellant though the witness had been residing in Chakradharpur which is not even 100/125 KM from the Khunti Sub-Jail. Secondly, the T.I. Parade was held after two and half months of the arrest of the appellant though the witness had been residing in Chakradharpur which is not even 100/125 KM from the Khunti Sub-Jail. Admittedly there is a serious lacuna in the procedure in holding the said test identification parade. Furthermore, no recovery has been made from the possession of the appellant. 10. In view of all these facts, in my opinion, the prosecution has not able to prove the charge of 395 of the I.P.C. against the appellant beyond reasonable doubt. In this situation, the appellant should get the benefit of doubt. In the result, giving the benefit of doubt, I acquit the appellant, Nikodin Munda from the charge under Section 395 I.P.C. and allowed this appeal. The appellant is discharged from the liabilities of the bail bonds, if any.