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2014 DIGILAW 1226 (PAT)

Bali Musahar v. State of Bihar

2014-12-12

GOPAL PRASAD

body2014
GOPAL PRASAD, J.:–Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted under Section 395 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years with fine of Rs.5,000/- and in default to serve further simple imprisonment for three months. 3. The prosecution case as alleged in the First Information Report by the informant Raghu Ram P.W. 2 is that on 30.07.2008 at about 1:30 A.M. he loaded the cattle on Truck No. UP-65H-8582 from Chausa (U.P.) and at 3:00 P.M. truck proceed. Other businessmen boarded in truck and truck driver Vijay Yadav was driving the truck. At about 12:45 A.M. truck reached at N.H.-98 Lamari Parsawan More, where both back tyres were punctured and truck was stopped. In the meantime, six persons came and surrounded the truck including the informant and the accused persons boarded the truck. Two miscreants were armed with pistol and two were armed with iron rod, one had a chhura (knife) and one miscreant had a bag. Two miscreants were wearing lungi and shirt and other four were wearing shirt and pants. Dacoits looted away total Rs.36,200/- from the possession of informant and his associates on the point of pistol. Informant has given the description of dacoits, who were aged about 15 to 35 years and were speaking local language. Informant and others identified the dacoits in the light of truck and in torch light and claimed to identify them. After committing dacoity, accused persons fled towards east. The First Information Report lodged against six unknown persons. 4. The police after investigation submitted charge-sheet, on the charge-sheet cognizance taken, case committed to the Court of Sessions and after framing of the charge, trial proceeded. During trial 14 witnesses were examined on behalf of the prosecution. The documentary evidence proved as Ext. 1 formal First Information Report, Ext. 2 fardbeyan. 5. The trial court after taking into consideration the evidence of the witnesses convicted the appellant on the evidence of P.Ws. 1 and 2 who identified the appellant in dock and P.W. 2 has also identified him in the Test Identification Parade. 6. Learned counsel for the appellant, however, contended that the First Information Report is registered against unknown. 7. P.W. 13 has stated in his evidence that he apprehended the appellant on 04.08.2008 and took him to the police station. 1 and 2 who identified the appellant in dock and P.W. 2 has also identified him in the Test Identification Parade. 6. Learned counsel for the appellant, however, contended that the First Information Report is registered against unknown. 7. P.W. 13 has stated in his evidence that he apprehended the appellant on 04.08.2008 and took him to the police station. He has further stated that the informant (P.W. 2) was also with him in apprehending the appellant. 8. P.W. 2 claims to have identified the appellant in the Test Identification Parade and P.W. 13 has proved T.I.P. chart which has been marked as Ext. 6 but the Magistrate who conducted the Test Identification Parade has not been examined. The T.I.P. chart suggests that the appellant has simply been identified but neither the Test Identification Parade chart nor the evidence state about the act committed by the appellant while the appellant identified. 9. Learned counsel for the appellant further submitted that the identification by P.W. 2 in Test Identification Parade without stating about the fact that what act was being committed by appellant at the time he was identified has got no significance. The production-cum-seizure list has been proved by P.W. 11 but in his cross-examination he has stated that the seizure list was not prepared before him and he only signed on the seizure list at the instance of Investigating Officer and he does not know about the seizure. The Advocate Clerk (P.W. 14) formally proved the signature of the Judicial Magistrate on the T.I. Chart. The Judicial Magistrate who conducted the Test Identification Parade has not been examined. Hence, the seizure and T.I. Chart have formally been proved which caused great prejudice to accuse as he could not get the opportunity to cross-examine either the seizure witness or the Magistrate who conducted Test Identification Parade. 10. Learned counsel for the State supported the prosecution case. 11. However, the prosecution case in the fardbeyan is that six unknown persons looted the truck and snatched money from the possession of the informant and his associates worth Rs.36,200/-. However, the I.O. in his evidence has stated that on 04.08.2008, he arrested the appellant and on search Rs.490/- was recovered from his pocket and recorded his confessional statement. 11. However, the prosecution case in the fardbeyan is that six unknown persons looted the truck and snatched money from the possession of the informant and his associates worth Rs.36,200/-. However, the I.O. in his evidence has stated that on 04.08.2008, he arrested the appellant and on search Rs.490/- was recovered from his pocket and recorded his confessional statement. He has further stated that the informant Raghu Ram (P.W. 2) identified the appellant in Test Identification Parade and he has proved the Test Identification Chart Ext. 6. 12. P.W. 1 in his cross-examination in paragraph 3 has stated that after two days of the occurrence he caught hold of the appellant and taken to the police station. He has further stated that in this case the informant P.W. 2 was also with him in apprehending of the accused person. Hence, in view of this statement the identification by P.W. 2 in Test Identification Parade lost its significance. 13. P.W. 2 is the informant of this case. He has stated that he identified the appellant Bali Musahar in Court as well as in jail but the identification in Test Identification Parade and Court lost its importance in view of evidence of P.W. 1 when he stated that P.Ws. 1 and 2 caught Bali Musahar. 14. P.W. 3 has stated in his evidence that he did not identify any of the accused persons or dacoits as all the accused persons had covered their face. 15. P.W. 4 has also stated in his evidence that 6-7 persons looted the truck but he did not identify any of them as they had covered their face by Gamacha. 16. P.W. 5 has been declared hostile having not supported the prosecution case and has stated that his statement was not recorded. 17. P.W. 7 has also been declared hostile. 18. P.W. 8 has formally proved the signature of the Investigating Officer on the formal First Information Report and fardbeyan which has been marked as Exts. 1 and 2. 19. P.W. 9 and 10 have also been declared hostile. 20. P.W. 11 has proved his own signature and the signature of Basant Narain Singh on the seizure list which has been marked as Exts. 3 and 3/1. 1 and 2. 19. P.W. 9 and 10 have also been declared hostile. 20. P.W. 11 has proved his own signature and the signature of Basant Narain Singh on the seizure list which has been marked as Exts. 3 and 3/1. However, he has stated that the money was shown to him at the police station but who caught hold of the appellant he does not know and at the instance of Investigating Officer he signed on the seizure list and he does not know about any seizure. 21. P.W. 12 is the formal witness. P.W. 13 is the I.O. P.W. 14 is an Advocate Clerk who has formally proved the T.I. Chart. 22. There is contradiction in the evidence of the I.O., P.Ws. 1 and 2. The I.O. has stated that he raided the house and caught hold of the appellant. However, P.W. 1 has stated that he caught hold of the appellant along with P.W. 2 the informant and then produced the appellant in the police station. 23. Hence, there is contradiction in the statement of the I.O. and P.Ws. 1 and 2, that who caught hold of the appellant and particularly when P.W. 1 caught hold of the appellant his identification in court or identification by P.W. 2 in the Test Identification Parade lost its significance. The I.O. in his evidence has also stated that after apprehending the appellant he has shown his house to the witnesses and hence, the identification by P.Ws. 1 and 2 in court as well as in Test Identification Parade has lost its significance. Moreover, the Magistrate who conducted the Test Identification Parade has not been examined to prove the Test Identification chart and the conduct of the Test Identification Parade 24. Having regard to the fact that since the appellant who was identified by P.Ws. 1 and 2 has been shown by the I.O. and further the Magistrate who conducted the Test Identification Parade having not been examined and the Test Identification chart having been formally proved by P.W. 14, Test Identification chart and Test Identification Parade lost its significance and hence, the identification of the appellant on the basis of the identification in court particularly in view of the fact that the appellant was shown to P.Ws. 1 and 2 lost its signification and hence, the judgment of conviction and order of sentence recorded by the lower court is not sustainable and is hereby set aside. The appeal is allowed. The appellant, who is in custody, be set at liberty forthwith, if not required to be detained in any other case. ?