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2012 DIGILAW 966 (PAT)

Ram Milan Singh v. State of Bihar

2012-07-13

SHEEMA ALI KHAN

body2012
SHEEMA ALI KHAN, J.:–These two appeals are directed against the judgment of conviction dated 22nd December, 1999 and the order of sentence dated 23rd December, 1999 passed by the Additional Sessions Judge VI, Aurangabad in Sessions Trial No. 30 of 1999. 2. Initially, in this case, 11 persons were made accused out of which all except these two appellants have been acquitted. These two appellants have been convicted for the offences punishable under Sections 395 and 412 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. 3. The prosecution case is that in the night between 28th and 29th of September, 1998, Bhonu Pal, the driver of truck bearing registration no. UP 65H-0597 was apprehended by some unknown criminals. The truck was carrying 169 bags of flour. The driver, the assistant driver and the khalashi (conductor) of the truck were tied up. Their eyes were also tied up by a piece of cloth. The truck was taken to some remote place and thereafter, these three persons were asked to wait for miscreants till they returned. After some time, they were successful in untying themselves and thereafter they went in search of Police Station to report the matter. 4. After lodging the First Information Report, Ram Janam Pal was arrested and the truck and flour bags were seized on the same day i.e. 29th September, 1998. The truck and flour bags were recovered from the line hotel of Ram Janam Pal. It is on the basis of the said seizure that the arrest was also made. 5. In this case, altogether ten witnesses have been examined on behalf of the prosecution. PWs 1, 2 and 3 are relevant for the purposes of proving the manner of occurrence which cannot be doubted in view of the statements given by them in their examination-in-chief. However, PWs 1 and 2 have not identified the appellants during the Test Identification Parade. 6. Counsel appearing on behalf of the appellant Ram Janam Pal has argued that only Kallu Yadav had identified the appellant in the Test Identification Parade, but his identification is also doubtful in view of the cross-examination regarding this aspect of the matter. PW 3 Kallu Yadav has stated in his cross-examination that he had identified Ram Janam Pal at the time of Test Identification Parade. PW 3 Kallu Yadav has stated in his cross-examination that he had identified Ram Janam Pal at the time of Test Identification Parade. He further goes on to say that the man present in the dock is not the person he had identified in the Test Identification Parade. The Trial Court had perhaps rightly held that since PW 3 admits his identification in the Test Identification Parade and admits his signature on the chart of Test Identification Parade, the fact that he denied the presence of person whom he had identified in the Test Identification Parade, may be just a lapse of the memory, as it may not be possible to remember a face seen once in a lifetime again after one year. However, the Trial Court cannot base its findings on conjectures. Keeping in view the consistent judgments of both, this Court and the Supreme Court, regarding reliance being placed on a single identification, I am unable to convict the appellant Ram Janam Pal only on the basis of the single identification. 7. The next issue is the seizure. PWs 4 and 5 are witnesses to the seizure of the truck, PWs 6 and 7 are the witnesses to the seizure of flour bags and PW 10 is the witness to the seizure of receipts (bilty) seized from the house of the appellant Ram Milan Singh. The witnesses have identified their signatures but have stated in their cross-examination that they had signed on blank papers and the seizure was not made in their presence, and thus, have virtually denied being witnesses to the actual seizure. 8. PW 9 Sacchidanand Singh has prepared the chart regarding the Test Identification Parade. 9. The entire judgment has been passed on the basis of the deposition of the Investigating Officer Mahfooz Alam who has been examined as PW 8. PW 8 has stated that the fardbayan was taken down on his orders by Sub Inspector of Police Ramanuj Singh which has been marked as Exhibit-3 and the formal First Information Report has been marked as Exhibit-4. After taking down the fardbayan, this witness went towards the Sone River where the truck had been apprehended by the miscreants and followed the route through the forest to come to the G.T. Road, where there were several line hotels. After taking down the fardbayan, this witness went towards the Sone River where the truck had been apprehended by the miscreants and followed the route through the forest to come to the G.T. Road, where there were several line hotels. It is said by him that he found the truck in the premises of the line hotel of the appellant Ram Janam Pal and thereafter confronted Ram Janam Pal and arrested him from his line hotel. At paragraph 6, it has been stated that Ram Janam Pal disclosed the names of other persons who were involved in the occurrence. He took down the confessional statement which has been proved by him and marked as Exhibit-5/2. On the basis of the confessional statement of the appellant Ram Janam Pal, appellant Ram Milan Singh was arrested and receipts (bilty) was seized from his house. In the cross-examination, the defence has tried to show that there was no boundary wall which would indicate that the truck was standing within the premises of the line hotel belonging to the appellant Ram Janam Pal. However, they have not been very successful in dislodging the attempts of the defence to show that the recovery was made from some other place. 10. Lastly, it has been argued that there was no occasion for the Investigating Officer to delay the production of the First Information Report in the Court of the Chief Judicial Magistrate, which was produced on 01.10.1998. The Investigating Officer has given an explanation for the delay, if any, as he claims that he was busy in conducting raids and arresting the persons whose names have been transpired in the confessional statement of the appellant Ram Janam Pal. The Investigating Officer has also stated in his deposition that he was making enquiries and questioning the appellant in order to facilitate the arrest of other persons who have been made accused in this case. Be that as it may, in the facts of this particular case, I do not find that the production of the First Information Report on 01.10.1998 would be fatal for the prosecution. 11. On appraisal of the evidence led in this case, it cannot be doubted that the occurrence is a true one, since the truck was recovered and seizure was made by the Investigating Officer. 11. On appraisal of the evidence led in this case, it cannot be doubted that the occurrence is a true one, since the truck was recovered and seizure was made by the Investigating Officer. As discussed earlier, the appellant Ram Janam Pal has been convicted only on the basis of identification by a single witness in the Test Identification Parade. This may not be a reason to sustain the conviction, however, the fact reveals that both the truck and flour bags were recovered from the premises of the line hotel owned by the appellant Ram Janam Pal. 12. On behalf of Ram Milan Singh, appellant of Cr. Appeal 12/2000 Mr. Arun Kumar Tripathi is appointed as Amicus Curiae as he was not represented by any Counsel. This Court finds that he was not identified by even a single witness and this Court disbelieves the recovery of the receipts (bilty) from the possession of the appellant Ram Milan Singh, as there was no occasion for the appellant to remove the receipts from the truck, much less keep them in his house, as they were of no value to him, once the goods loaded in the truck were delivered to a third person. 13. Considering the facts aforesaid, this Court comes to the conclusion that the appellant Ram Milan Singh is not guilty of the offences punishable under Sections 395 and 412 of the Indian Penal Code and accordingly he is acquitted of the charges levelled against him. 14. As far as appellant Ram Janam Pal is concerned, this Court finds no reason to set aside the judgment of conviction, but modifies the sentence to the period already undergone. 15. In the result, Criminal Appeal No. 12 of 2000 is allowed and Criminal Appeal No. 13 of 2000 is dismissed with the modification in the sentence. The appellants are also discharged from the liabilities of the bail bonds furnished earlier in this case.