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2010 DIGILAW 877 (JHR)

Tunu @ Anarul Islam v. State of Jharkhand

2010-09-07

PRADEEP KUMAR

body2010
JUDGMENT : 1. This appeal is directed against the judgment of conviction dated 26.8.2002 and order of sentence dated 27.8.2002 passed by Shri Shiv Kumar Yadav, 3rd Additional District and Sessions Judge, Dumka in Sessions Case No. 127(A)/87/254/02, by which judgment he found the Appellant guilty u/s 395 of the Indian Penal Code and sentenced him to undergo R.I. for 5 years. 2. It is submitted by the learned Counsel for the Appellant that it is a case of single identification during T.I. Parade. The Appellant has already remained in custody on 4.1.87 in connection with Mh. Bazar P.S. Case No. 2/87. He was only identified by P.W.2, Kamaresh Mandal. It will appear from the evidence of P.W.2 that he had not stated to Daroga that he had identified five persons and in court during his cross-examination at para 16 he has stated that he had not seen the dacoits who have entered into his house, rather he saw them while they were going from the house and as such it cannot be said that he had identified them in T.I. Parade and what act has been done by each of the dacoits and as such the evidence of P.W.2, is not reliable. However, learned Counsel further submitted that the Appellant has remained in custody during trial for about 51/2 years from 4.3.87 to 7.9.93 and subsequently also after the judgment was pronounced on 26.8.2002 he was also in custody for about one month. In that view of the matter, since he had already remained in custody for more than 51/2 years, hence he may be released as he has already suffered for more than 51/2 years during trial. 3. Learned Counsel for the State has opposed the prayer, but admits that the Appellant has remained in custody for more than five and half years during trial and after judgment he was also in custody for about one month. 4. 3. Learned Counsel for the State has opposed the prayer, but admits that the Appellant has remained in custody for more than five and half years during trial and after judgment he was also in custody for about one month. 4. After hearing both the parties and going through the record, I find that the prosecution case was started on me basis of a Fardbeyan given by Nikhil Kumar Mandal-P.W.3 stating therein that on 26.12.86 at about 4.30 P.M. when he was at his shop then one person came there and demanded Bidi and then two persons entered into his shop with pistol and demanded his gun and money and then at the point of pistol the accused snatched his wrist watch and took him to his house. In his house they assaulted him and they also committed dacoity in his house. 5. On the basis of the said Fardbeyan police registered a case u/s 395 of the Indian Penal Code and after investigation submitted charge-sheet in the case. 6. Since, the case was exclusively triable by a Court of Sessions, the same was committed to the Court of Sessions and 5th Additional Sessions Judge named the charges against the Appellant u/s 395 of the Indian Penal Code and tried him. 7. It appears that in course of trial, the prosecution has examined 8 witnesses. 8. P.W.1, Dhruw Saha is a hearsay witness. 9. P.Ws. 4, 6, 7, namely, Nimai Chandra Sah, Dipen Sah and Lakhan Saha were tendered for cross-examination and nothing was taken from them. 10. P.Ws. 2 & 3, namely, Kamaresh Mandal and Nikhil Kumar Mandal are cousin brothers and they have proved the factum of dacoity. 11. P.W.2 has also proved the fact that he identified five persons, including the Appellant, Tanu @ Anarul Islam during T.I. Parade, but it appears in his cross-examination he admitted in para 14 that he does not remember as to whether he had stated that he has identified five accused persons during the course of dacoity and also in para 16 he admitted that he cannot say as to which dacoit had committed what type of act while they were going from his house. He also stated in para 11 that his house was at the distance of only 20 hands from his shop. 12. He also stated in para 11 that his house was at the distance of only 20 hands from his shop. 12. P.W.3, Nikhil Kumar Mandal-informant has also stated the fact of dacoity although in para 1 he claimed he identified the dacoits during the course of dacoity, but the fact is he failed to identify anybody during T.I. Parade. Apart from the P.Ws. 2 & 3, P.W.8, Judicial Magistrate, who has conducted the T.I. Parade in para 10 he stated that he had mixed the accused persons with other under trial prisoner of the same height and physique but he had put some mark on them, which caste doubt upon the T.I. Parade itself. 13. In that view of the matter, I find that the finding of conviction and sentence is not proper. However, since Appellant has already remained in custody for more than 51/2 years, the sentence of the Appellant is altered to the period already undergone by him i.e. 51/2 years during trial. 14. The Appellant is on bail, he is discharged from the bondage of his bail bond. 15. The appeal is accordingly disposed of.