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2013 DIGILAW 195 (UTT)

SOMNATH v. STATE OF UTTARAKHAND

2013-04-09

Alok Singh

body2013
JUDGMENT Per : Hon’ble Alok Singh, J. 1. At the outset, it is pertinent to mention here that CRJA No. 47 of 2010 is not on board. Since the same is also arising out of same impugned judgment and order dated 08.07.2010 passed by Additional Sessions Judge, Rishikesh, District Dehradun in Sessions Trial No. 41 of 2008 whereby appellants were convicted for the offences punishable under Section 395, 397, 412 IPC and appellant Raju Mandal was also one of the accused in the said trial, so in the interest of justice, this Court summoned this case and appointed Mr. Vishwadeepak Bisen, as Amicus Curiae for the appellant Raju Mandal, who is ready to argue the matter instantly. It is also pertinent to mention here that appellants Jalil, Zaheed and Sakoor have preferred appeal from jail bearing no. CRJA No. 50 of 2010 and have also filed appeals in their individual capacity bearing Nos. CRLA No. 172, 171, 170 of 2010, so there is no need to appoint any Amicus Curiae in the CRJA No. 50 of 2010, as Mr. Kurban Ali is present in the Court and ready to argue the appeals on their behalf. 2. All these appeals are arising out of judgment and order dated 08.07.2010 passed by Additional Sessions Judge, Rishikesh, District Dehradun in Sessions Trial No. 41 of 2008 whereby appellants were convicted for the offences punishable under Section 395, 397, 412 IPC and sentenced to undergo 10 years rigorous imprisonment and to pay fine of Rs. 10,000/- each and in default, to further undergo six months imprisonment on each count. 3. Brief facts of the present case, inter alia, are that PW2 Suman Joshi lodged an FIR with police station Rishikesh on 15.10.2007 at 06.45 a.m. to the effect that her husband was serving in Japan while she was residing in house no. 10,000/- each and in default, to further undergo six months imprisonment on each count. 3. Brief facts of the present case, inter alia, are that PW2 Suman Joshi lodged an FIR with police station Rishikesh on 15.10.2007 at 06.45 a.m. to the effect that her husband was serving in Japan while she was residing in house no. 35, Ashutosh Nagar, Rishikesh along with her children; in the intervening night of 14/15.10.2007 at about 02.00 a.m., six miscreants entered into her house, after breaking the grill of window; one of them was armed with country made pistol while other miscreants were armed with knife and on the point of knife, miscreants overpowered and then pushed her, her children, her tenant Mukesh Kirsali and her driver in a room and threatened to kill them, in case, they make noise; two miscreants remained in the room while four of them looted ornaments of gold and silver, Rs. 8,000/- cash from her room and Rs. 31,000/- cash and gold jewellery, three mobile sets from the room of Mukesh Kirsali; miscreants had disconnected the phone by pulling out wire thereof; after committing dacoity, they had put a lock from outside; after dacoits left the place, their neighbours heard their noise and came there for their rescue and broke the lock of room and released them. 4. From the side of prosecution, Mahipal Singh Rawat PW1, Suman Joshi PW2, Mukesh Kirsali PW3, Vijay Laxmi PW4, Pradeep Pant PW5, Om Prakash Arya PW6, Rakesh Rawat PW7, Sheesh Pal Singh PW8 and Constable Sunil Kumar PW9 were examined. 5. Identification parade of the appellants was held on 01.03.2008 in District Jail, Dehradun in the presence of Magistrate. PW2 could identify only appellant Zaheed but could not identify others; PW4 Vijay Laxmi, mother-in-law of PW2, failed to identify anyone; PW3 Mukesh Kirsali tenant of PW2, failed to identify anyone; as mentioned in Exhibit A-3. 6. Not only this, PW2 could not identify any of the appellants while appearing in the witness box. PW2 could identify only appellant Zaheed but could not identify others; PW4 Vijay Laxmi, mother-in-law of PW2, failed to identify anyone; PW3 Mukesh Kirsali tenant of PW2, failed to identify anyone; as mentioned in Exhibit A-3. 6. Not only this, PW2 could not identify any of the appellants while appearing in the witness box. She has stated that she cannot identify either of miscreants because on the date of incident they had closed her eyes by tying cloth and she could not see either of the miscreants; PW3 also could not identify any of the appellants while appearing in the witness box saying since long time has expired, therefore, he is not able to identify any of the miscreants; PW4 also could not identify either of the miscreants while appearing in the witness box saying since long time has elapsed, therefore, she is not in a position to identify the miscreants. PW2, PW3, PW4 during identification of ornaments recovered from the possession of appellants had identified item no. 3 one gold ring only, saying it is the ring, which was looted from them. 7. In view of the above identification, of looted ornament one ring cannot be looted from three different persons, therefore, identification losses its importance. 8. In the peculiar facts and circumstances of the case, that none of the witnesses was able to identify any of the appellants as miscreants either in the court room or during their identification parade and in view of the fact that PW2, PW3 & PW4 had identified the same gold ring said to be looted from them, conviction of the appellants seems to be unjustified, therefore, is not sustainable in the eyes of law. 9. In the result, all the appeals are allowed. All the appellants stand acquitted. Let they be released forthwith, if not wanted in any other case.