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2013 DIGILAW 691 (PAT)

Raghunath Nut v. State of Bihar

2013-06-25

AKHILESH CHANDRA

body2013
C.A.V. JUDGMENT Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State. 2. Both the appellants convicted for the offences under section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years by 1st Additional Sessions Judge, Saran, Chapra, in connection with Session Trial No. 538/1993 arising out of Kopa P.S. Case No. 15/1993. 3. The prosecution case in short as revealed from fard-e-beyan cum-formal First Information Report (Exhibit-3) of Jagannath Prasad (Mahto) P.W.7 recorded on 22.03.1993 in the morning at 6.00 A.M. is that in the previous night i.e. 21/22.03.1993 at about 12.00 P.M. in the common house of the informant and his brother, some miscreants entered from the tiled roof, after broken doors committed dacoity and taken away several articles and also assaulted the inmates, and when neighbour fired with the licensee gun during escape with the booty. The informant and other family members claimed to identify the miscreants by face, though they are not known to them. Consequently, case was instituted against unknown. The police during investigation apprehended some of the suspects put them on Test Identification Parade and on identification by the witnesses submitted charge-sheet against the appellants and one Mohan Nut. Initially trial commenced against on 15th September 1994 Mohan Nut and Raghunath Nut (appellant no. 1) since appellant no. 2 namely Tulsi Nut did not appeared at initial stage of commencement of trial. However, on his apprehension in separated record appellant no. 2, Tulsi Nut also joined the Trial on 30.06.1995, since by that time no witness could have been produced by the prosecution. However, after closure of prosecution case at the stage of Section 313 Cr.P.C. co-accused facing trial Mohan Nut absconded, ultimately his case appears separated vide order dated 16.04.1996. only thereafter statement under section 313 Cr.P.C. of the appellants were recorded. 4. Here it is pertinent to mention that during trial prosecution examined altogether nine witnesses besides producing list of Exhibits. Exhibit – 1 – Signature of Jagannath Prasad on Fard-e-beyan Exhibit – 2 – T.I.P. Chart dated 29.03.1993 within and under the signature of Sri Santosh Kumar, J.M. Exhibit – 3 – First Information Report written and signed by Harendra Bihari Verma, S.I. And in defence denying the complicity, on behalf of the appellants, two witnesses were also examined. Exhibit – 1 – Signature of Jagannath Prasad on Fard-e-beyan Exhibit – 2 – T.I.P. Chart dated 29.03.1993 within and under the signature of Sri Santosh Kumar, J.M. Exhibit – 3 – First Information Report written and signed by Harendra Bihari Verma, S.I. And in defence denying the complicity, on behalf of the appellants, two witnesses were also examined. On consideration of all such materials the trial court convicted and sentenced the appellants giving rise the present appeal. 5. It is contended on behalf of the appellants that in this case instituted against unknown, the appellants before formal Test Identification Parade they are shown to the witnesses participating in the Test Identification Parade, consequently such Test Identification Parade has got no relevance besides this investigating officer has also not examined, and if it is gone there is no other material against the appellants to establish their complicity. 6. learned Additional Public Prosecutor while supporting the findings of the court below submitted that during examination of the witnesses who also participated in the Test Identification Parade, neither there is any cross examination or even suggestion to them about any such alleged illegality conducting of Test Identification Parade, even there is nothing surfacing any statement contradictory to the statement recorded under Section 161 Cr.P.C. or any prejudice caused to the appellants due to non-examination of the Investigating Officer. Hence, finding of the court below needs no interference. 7. Prosecution witness no. 1 Ganesh Prasad has said about the occurrence but stated not to identify any of the miscreants due to his age and short-site. 8. P.W.2 namely, Sipahi Mahto was not present in the village he known about the occurrence two days after on his return, so practically these two witnesses are not relevant either of the side. 9. P.W.3 namely, Saraswati Devi one of the family inmates of the family whose name also finds place in the fard-e-beyan as the person first noticing arrival of the miscreants and closed her room from inside which was to be broken during the occurrence. She has stated about the manner under which entire occurrence had taken place and also claimed to identify appellant no. 1 and one Mohan Nut during Test Identification Parade. During cross examination this witness was consistent about the activities and wearings etc. of the two whom were identified by her one of which Raghunath Nut. She has stated about the manner under which entire occurrence had taken place and also claimed to identify appellant no. 1 and one Mohan Nut during Test Identification Parade. During cross examination this witness was consistent about the activities and wearings etc. of the two whom were identified by her one of which Raghunath Nut. True it is that Exhibit – 2 the T.I. Chart indicates that this witness identified during Test Identification Parade only appellant no. 1 Raghunath Nut, but not the absconding accused Mohan Nut. There is nothing from her cross examination to disbelieve her on the point of participation of appellant no. 1 and his identification by this witness during Test Identification Parade. 10. P.W. 4 namely Urmila Devi, another inmate of the house claimed to identify the miscreants and specifically claimed to identify appellant no. 1 during Test Identification Parade and also during trial in court, but as is evident from Exhibit – 2, she did not identified appellant no. 1 rather could be able to identify Sanjivan Nut, the accused neither faced trial nor the appellant. Hence, her evidence as regard to participation and identification of the appellants cannot be relied on. 11. P.W. 5 namely Kiran Kumari, another inmate of the house stating about the occurrence claimed to identify both the appellants during Test Identification Parade and also during trial. From Exhibit – 2 it appears that this witness has identified during Test Identification Parade the appellants besides one Kameshwar Nut the accused neither faced the trial nor the appellant and during cross-examination. Likewise P.W. 4 she also states about the means of identification i.e. small light (Diya) burning inside the room. 12. P.W. 6 namely Babita Kumari, another inmate stating about the occurrence and claims identification of appellant no. 1 during Test Identification Parade and in court also. Exhibit – 2 corroborates her claim. 13. Likewise P.W. 4 she also states about the means of identification i.e. small light (Diya) burning inside the room. 12. P.W. 6 namely Babita Kumari, another inmate stating about the occurrence and claims identification of appellant no. 1 during Test Identification Parade and in court also. Exhibit – 2 corroborates her claim. 13. P.W. 7 namely, Jagannath Prasad, the informant another eye witness of the occurrence stated in detail about the occurrence including the burning of the lantern in his room as means of identification claimed to identify all the three accused facing trial including the two appellants and identify the appellants during trial also and non appellant Mohan Nut, who was under representation also claimed to identify by him, but from Exhibit – 2, his statement as regard to identification of the appellants does not find support, though indicates that he could be able to identify only Mohan Nut, an absconding accused. During cross-examination there appears nothing more to disbelieve this witness on the manner of occurrence. 14. P.W. 8 namely, Santosh Kumar, Judicial Magistrate conducted Test Identification Parade and nothing from his cross-examination emerged to disbelieve him or raises any finger against the manner under which Test Identification Parade was conducted. There also appears no delay in holding Test Identification Parade which was conducted on 29.03.1993 i.e. almost within a week of the occurrence and few days of apprehension of the miscreants including the appellants. 15. P.W. 9 namely, Shambhu Nath Upadhyay, is a formal witness proved Exhibit – 3. 16. From overall careful perusal of statement of witnesses discussed above, it is evident that though all the five witnesses claiming to identify the miscreants, they have claimed to identify both the appellants during Test Identification Parade as well as during trial in court also, but only P.Ws. 3, 5 and 6 identified appellant no. 1 Raghunath Nut in Test Identification Parade, so their testimony as regard to case of appellant no. 1 deserves acceptance. But, it is only P.W. 5 namely Kiran Kumari, who identify appellant no. 2 Tulsi Nut during Test Identification Parade and since in spite of having opportunity to identify both the appellants to participate in the Test Identification Parade nothing else identified him, so his identification by them during trial in court has no relevance rather participation of appellant no. But, it is only P.W. 5 namely Kiran Kumari, who identify appellant no. 2 Tulsi Nut during Test Identification Parade and since in spite of having opportunity to identify both the appellants to participate in the Test Identification Parade nothing else identified him, so his identification by them during trial in court has no relevance rather participation of appellant no. 2 in the occurrence seems doubtful thus he deserves the benefit of such doubt. 17. In defence, two witnesses examined respectively Vishwakarma Manjhi (D.W.1) and Nandu Patel (D.W.2), they are only stated on the point that before commencement of Test Identification Parade both the appellants were introduced by name to a few persons, but none of these two witnesses have stated anything about the presence to whom the appellants were introduced by name after being apprehended nor either of them made any such statement at any earlier point of time. Thus, their testimony for the purposes they have come to the court cannot be treated reliable. 18. Since during entire evidence of the witnesses nothing surfaced compelling examination of the investigating officer nor during the course of argument learned counsel would be able to point out any such circumstance causing prejudice to the appellants for non-examination of the investigating officer, only due to his non-examination prosecution case cannot be brushed aside. 19. On overall consideration of the materials available, due to a case of single identification conviction of the appellant no. 2 Tulsi Nut who deserves benefit of doubt, cannot be sustained. But, appellant no. 1 namely, Raghunath Nut, has consistently been identified in Test Identification Parade and also in court by three of the undisputed eye-witnesses of the occurrence who also consistently identified him during trial in court, conviction of appellant no. 1 namely, Raghunath Nut needs no interference. 20. The record indicates that appellant no. 1 Raghunath Nut was remanded in this case on 28.03.1993 and remained in custody. During entire period of trial i.e. a quarter past three years he is under-trial prisoner and released on bail vide order dated 05.08.1996 in this appeal, that means he suffered detention for about 3½ years besides facing mental and financial trauma for the last about 20 years. It seems desirable that the sentence awarded to him be reduced as sentence undergone. 21. In the result, the appeal as regard to appellant no. It seems desirable that the sentence awarded to him be reduced as sentence undergone. 21. In the result, the appeal as regard to appellant no. 2 namely, Tulsi Nut, is allowed, his conviction and sentence is set aside. But as regard to appellant no. 1 namely, Raghunath Nut, only with modification in sentence, reducing the same as undergone, is dismissed.