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2013 DIGILAW 373 (PAT)

Ramdeo Uraon v. State of Bihar

2013-03-18

ASHWANI KUMAR SINGH

body2013
JUDGMENT (ORAL) Ashwani Kumar Singh, J.--By order dated 14.02.2013, the appeal was admitted and the lower Court records were summoned. By the same order, it was directed that the prayer for bail of the appellant shall be considered on receipt of the lower Court records. The lower Court records have already been received and the case has been listed under the heading "for Orders" for consideration of bail. However, with consent of the parties, the appeal has been taken up for final disposal. 2. Heard Mr. Ras Bihari Thakur, learned counsel for the appellant and Mr. Binod Bihari Singh, learned A.P.P. for the State. 3. The appeal is directed against the judgment of conviction dated 19.12.2012 and order of sentence dated 22.12.2012 passed in Sessions Trial No.1 of 2004/Tr. No. 156 of 2012 by the 1st Additional Sessions Judge, Araria whereby and whereunder the appellant after being held guilty for the offence punishable under Section 395 of the Indian Penal Code has been sentenced to undergo R.I. for ten years and to pay a fine of Rs. 5,000/-. In default of payment of fine, he has been directed to further undergo R.I. for six months. 4. The prosecution case is based on the fardbeyan of one Kailash Rai recorded by S.I., S.N. Singh of Narpatganj Police Station on 25.3.2003 at 8.15 p.m. in village-Mridaul. According to the informant, on the same day at about 6.30 p.m. while he was sitting at his door and talking with his wife, all on a sudden about 25-30 unknown persons came there. They surrounded them and asked the informant to hand over his D.B.B.L. gun and rifle. One of the miscreants exploded a bomb. Thereafter, miscreants took the informant and his wife inside the house. They ransacked the whole house. They looted cash, ornaments and other valuable articles, such as T.V. set, Telephone, etc. They also took away DBBL gun and ten live cartridges of 3.15 bore. They demanded for the rifle but, the informant told them that he has deposited the same with the arms dealer. The informant claims that he and his nephew could identify the miscreants by face. On alarm being raised, the villagers chased the miscreants but, the miscreants managed to escape. They demanded for the rifle but, the informant told them that he has deposited the same with the arms dealer. The informant claims that he and his nephew could identify the miscreants by face. On alarm being raised, the villagers chased the miscreants but, the miscreants managed to escape. The villagers and the choukidar came on shouting made by the informant but they could not dare to chase the miscreants as they were armed with bomb and pistol. 5. On the basis of the aforesaid information, Narpatganj P.S. Case No. 39 of 2003 dated 25.3.2003, was registered for the offence punishable under Section 395 of the Indian Penal Code against unknown and investigation was taken up. On conclusion of investigation, the police submitted charge-sheet against as many as six accused persons. The learned Chief Judicial Magistrate took cognizance of the offence under Section 395 of the Indian Penal Code. He committed the case to the Court of Sessions for trial. The trial Court framed charge under Section 395 of the Indian Penal Code against the appellant and four others. The accused persons denied the charge and claimed to be tried. The trial Court acquitted the other co-accused persons but, the appellant was convicted in the manner stated hereinabove. 6. In course of trial, altogether three witnesses were examined on behalf of the prosecution. The defence has also examined one witness in support of innocence of the appellant. 7. The informant Kailash Rai has been examined as PW 3. He has corroborated the prosecution case as narrated in tile FIR in course of trial. He has proved the fardbeyan which has been marked as Ext.-3. In his examination-in-chief itself, he has admitted that the miscreants had concealed their identity by putting cloth over their face, as a result of which, he could not identify anyone. He also failed to identify the accused persons present in the dock. In cross-examination, he has admitted that he had participated in T.I. Parade but, he failed to identify anyone. He further admitted that he could not know regarding the identity of the miscreants even after the occurrence. 8. PW 2 Dinesh Ram, is a formal witness. He has proved the formal FIR, seizure list and the writing and signature of police officer namely, Shyam Nandan Singh. In cross-examination, he admitted that the fardbeyan, the FIR and the seizure list were not prepared in his presence. 8. PW 2 Dinesh Ram, is a formal witness. He has proved the formal FIR, seizure list and the writing and signature of police officer namely, Shyam Nandan Singh. In cross-examination, he admitted that the fardbeyan, the FIR and the seizure list were not prepared in his presence. 9. PW 1 Lalan Kumar Rai, is nephew of the informant. He corroborated the prosecution case as narrated in the FIR. In examination-in-chief itself, he has stated that he could not identify any dacoit who participated in the occurrence but his daughter and son could identify one person who is a neighbour namely, Sita Ram Sah. However, he has further stated that he participated in the T.I. Parade held in jail in which he identified one person. He identified the appellant in Court. It is pertinent to note here that T.I. Parade chart of the appellant has not been proved in course of trial. PW 1 has simply proved his signature on the two material T.I. Charts which have been marked as Exts. 1 and 1/ A respectively. The material T.I. Charts are in respect of recovery of certain articles, such as, one bag, saree, katon, chain, payal, etc. In cross-examination, he stated that perhaps he had identified the appellant in T.I. Parade. He denied the defence suggestion that since the appellant belongs to the same village, he has falsely been implicated in the present case. 10. As discussed, hereinabove, the prosecution case rests on sole testimony of PW 1. As a general rule, the Court can and may act on the uncorroborated testimony of a single witness. However, in order to sustain an order of conviction on the basis of the testimony of a solitary witness, the evidence must be clear, cogent, convincing, and should be of an unimpeachable character. According to PW 3, the occurrence of dacoity took place on a dark night. The culprits had concealed their identity. He stated in examination-in-chief itself that he failed to identify the miscreants. However, subsequently he stated that he had identified the appellant. He, however, failed to explain as to how he was able to identify the appellant. In cross-examination, he has stated that perhaps he had identified the appellant in the T.I. Parade. The T.I. Chart of the appellant has not been proved by the prosecution in course of trial. 11. However, subsequently he stated that he had identified the appellant. He, however, failed to explain as to how he was able to identify the appellant. In cross-examination, he has stated that perhaps he had identified the appellant in the T.I. Parade. The T.I. Chart of the appellant has not been proved by the prosecution in course of trial. 11. Since, the prosecution has failed to prove the T.I. Chart of the appellant, it is not known as to when the T.I. Parade of the appellant was held. It is well settled that if the witness has an opportunity to see the accused before identification parade, the identification at parade looses all value. In the present case, in absence of proper proof of the T.I. Chart of the appellant, it would be presumed that the appellant was identified by PW 1 (Lalan Kumar Rai) for the first time in the Court. However, even in the Court, the appellant has not attributed any role of the appellant at the time of commission of dacoity. 12. The prosecution has also failed to examine the Investigating Officer of the case. The Magistrate who held the T.I. Parade has also not been examined. Nothing incriminating has been recovered from the possession of the appellant. 13. Taking into consideration the evidence on record, I am of the considered opinion that the prosecution has filed to prove its case beyond reasonable doubts and, as such, the judgment of conviction recorded by the trial Court cannot be sustained. 14. In the result, I allow the appeal, set aside the impugned judgment of conviction dated 19.12.2012 and order of sentence dated 22.12.2012, passed in Sessions Trial No. 1 of 2004/Tr. No. 156 of 2012, by the 1st Additional Sessions Judge, Araria. The appellant. who is in custody, is directed to be released forthwith, if not required in any other case. Appeal allowed.