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2011 DIGILAW 2449 (PAT)

Kailash Sahni v. State of Bihar

2011-12-12

GOPAL PRASAD

body2011
JUDGMENT Gopal Prasad, J.-Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 412, I.P.C. and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case as alleged that a dacoity was committed in the house of the Informant. On the basis of fardbeyan F.I.R was lodged. During investigation some of the articles were recovered from the house of this appellant for which seizure list was prepared and articles were put on T.I. Parade. 4. PWs 1, 3, 6 and 9 have identified those articles in T.I. Parade conducted by the Circle Officer. The police after investigation submitted charge-sheet. The appellant was charged under Section 412, I.P.C. for retaining the looted articles in the dacoity. 5. The trial Court convicted the appellant taking into consideration the evidence of 16 witnesses who were examined by the prosecution. The seizure list "witnesses PWs 2 and 4 have turned hostile as they have not supported the prosecution case. PW 16 is the I.O. and he supported the recovery of the articles from the possession of the appellant. Seizure list duly prepared regarding seized articles in presence of PWs 2 and 4 and proved the seizure list which has been marked as Ext. 3/1. However, the Circle Officer who conducted T.I. Parade has not been examined. but the T.I. chart has formally been proved by the I.O. PW 16 who asserted that T.I. Parade was conducted and the chart prepared. The said T.I. chart has been marked as Ext. 4. 6. However. PWs 1, 3, 6 and 9 claimed to have identified the articles seized and put on T.I. Parade at the police station itself. though. PWs 1 and 3 have asserted that T.I. Parade was conducted at police station in presence of the I.O. 7. The trial Court taking into consideration the evidence held that since PWs 1, 3, 6 and 7 that they have stated in their evidence that they have identified the seized articles in T.I. Parade which was theft articles, hence convicted the appellant. 8. Learned counsel for the appellant, however, contends that independent seizure list witnesses before whom articles were seized have not supported the prosecution case about seizure. The Circle Officer before whom T.I. Parade was conducted has not come to support the prosecution case regarding conduct of T.I. Parade. 8. Learned counsel for the appellant, however, contends that independent seizure list witnesses before whom articles were seized have not supported the prosecution case about seizure. The Circle Officer before whom T.I. Parade was conducted has not come to support the prosecution case regarding conduct of T.I. Parade. It has further been contended that T.I. Parade was conducted at the police station and some of the witnesses PWs 1 and 3 have stated that said T.I. Parade was conducted in presence of the police. Further witnesses have not identified the articles looted in the house of the informant in the Court as the article seized not identified by witnesses in Court. Hence it is submitted that order of conviction cannot be sustained as the identification of the article in Court is missing. 9. However, in the present facts and circumstances of the case looted articles which was seized and put on T.I. Parade and alleged to have been identified by the witnesses has not been produced before the witnesses in Court and the witnesses have not identified those articles in Court. Hence substantive evidence regarding identification of the articles seized is missing and corroborative evidence regarding identification of the articles in T.I. Parade is concerned. the said Circle Officer who conducted T.I. Parade has not been examined. T.I. Parade of the seized articles were conducted at the police station in presence of the Police Officer who is I.O. as per evidence of PWs 1 and 3 and hence conduct of T.I. Parade in the police station before the Police Officer itself does not inspire confidence. Moreover, Test Identification Parade has got only corroborative value it can only evidence for corroboration of the identification and is not substantive evidence. 10. Hence having regard to the fact and circumstance of the case since the substantive evidence regarding identification of the article in Court is missing and the T.I. Parade of article seized in police station before Police Officer lost its significance and hence T.I. chart a corroborative evidence lost its significance. Hence, prosecution has not beer able to prove that seized articles were looted articles and was recovered from the house of the appellant as witnesses have not identified the said articles in Court nor the santity of T.I. Parade of article mentioned. 11. Hence, prosecution has not beer able to prove that seized articles were looted articles and was recovered from the house of the appellant as witnesses have not identified the said articles in Court nor the santity of T.I. Parade of article mentioned. 11. Hence, I find and hold that prosecution has not been able to prove the charges levelled against the appellant for offence under Section 412. I.P.C. beyond all reasonable doubt and hence order of conviction and sentence recorded by the lower Court is hereby set aside and the appeal is allowed. Appeal allowed.