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2015 DIGILAW 1389 (PAT)

Shiv Kumar Paswan v. State of Bihar

2015-11-05

GOPAL PRASAD

body2015
JUDGMENT : Gopal Prasad, J. 1. Heard learned counsel for the appellant and learned counsel for the State. 2. The sole appellant has been convicted under Sections 395 and 412 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years each and further to pay a fine of Rs. 2,000/- each and in case of default to undergo rigorous imprisonment for one year. 3. The prosecution case, as alleged in the First Information Report by the informant Krishna Nand Jha, aged about 70 years is that on the last night i.e. on 03.10.2011 after taking dinner at 10:00 P.M. he slept at the upper floor of his house. His son, namely, Raman Kumar Jha @ Lal Jha (P.W.4) and his wife Mamta Devi were sleeping at the ground floor, whereas his younger brother Radha Govind Jha was sleeping at the front of house. It is alleged that at about 12:30 hours, 10-12 miscreants came and they took his younger brother in their possession and after knocking the door, it was opened by his son, three miscreants entered into his house and tied the hand of his son by his shirt. It is further stated that two miscreants were at the door of room and six miscreants were at road started watching. On the voice of his son, when informant came down he was pushed by the miscreants to force to enter into the room and given threatening. After opening the wooden almirah miscreants had taken Rs. 6,000/-, two golden rings, three pair silver Payal and other articles. Miscreants had also taken mobiles of his son and daughter-in-law which were numbered as SIM Nos. 8877675144, 9931397244 and 8051624137 and miscreants further searched revolver and key of almirah. In the meantime, informant, his son Raman Kumar Jha and his younger brother Radha Govind Jha fled away from there and they started shouting at the roof of their house and they had also thrown stones. Further the descriptions of the miscreants were given as stated that they were aged between 25 to 30 years. On hulla, the villagers also woke up and upon which miscreants had attacked to them by explosion of six bombs and Bulo Jha and others sustained injury. Thereafter, miscreants fled away from there, but they were chased by and during that course informant found his younger brother in injured position. On hulla, the villagers also woke up and upon which miscreants had attacked to them by explosion of six bombs and Bulo Jha and others sustained injury. Thereafter, miscreants fled away from there, but they were chased by and during that course informant found his younger brother in injured position. Lastly, it was claimed by the informant that he will identify the miscreants, who were speaking Maithili and Khari language and had not hidden their face. 4. However, on the fardbeyan of the informant, First Information Report drawn. On information, police reached at the place of occurrence, recorded the statement of Krishna Nand Jha and read over the same, he put his signature on the fardbeyan, thereafter forwarded the fardbeyan to the Officer-in-Charge of the police station where the First Information Report lodged under Sections 395, 397 and 412 of the Indian Penal Code. Thereafter the Investigating Officer inspected the place of occurrence, prepared the seizure list of the seized articles at the place of occurrence and recorded the statement of the witnesses. He has stated that the CDR of the theft mobile was taken out of which IMEIN 354600045088870 and on this number bearing mobile No. 9525804770 has been used. The second theft mobile set having IEMIN 359568018878390 used in mobile SIM No. 9525804770. It was learnt that the mobile No. 9525804770 is in the name of Pawan Devi and on that basis raid was conducted in her house. The police found a person, namely, Shiv Kumar Paswan and from his possession two mobiles were seized. The seized mobile was bearing IMEIN 354600045093879 with a SIM No. HI 8991752260021047859 which was in closed state. The another mobile found from the possession of the appellant was black mobile of Nokia and bearing IMEIN 359568018878390 in which Idea SIM No. 8991706006119745889 bearing mobile No. 9525804770 was in running state. The seizure list was prepared with regard to the recovery of the said mobile which was recovered from the possession of the appellant and he was apprehended. The seizure list prepared marked as Exts. 2/2 and thereafter at the instance of the appellant, the suspect Vidya Nand Paswan was arrested. Lallan Kumar Paswan was also arrested and from his possession a mobile was recovered bearing IMEIN 359259035247849 and SIM No. H.1-8991752263067437232. Thereafter on the confessional statement of the appellant he had named several accused persons having their indulgence in the occurrence. 2/2 and thereafter at the instance of the appellant, the suspect Vidya Nand Paswan was arrested. Lallan Kumar Paswan was also arrested and from his possession a mobile was recovered bearing IMEIN 359259035247849 and SIM No. H.1-8991752263067437232. Thereafter on the confessional statement of the appellant he had named several accused persons having their indulgence in the occurrence. On the statement of the appellant, the raid was conducted and Baua Lal Paswan was arrested who confessed to have got Rs. 500/- as share in the dacoity and one pair of Payal was recovered for which the seizure list was prepared. The Test Identification Parade of the seized articles was conducted. Krishna Nand Jha and Raman Kumar identified the looted mobile and the silver Payal. The Test Identification Parade of the accused persons was conducted and Raman Kumar and Shiv Kumar identified the appellant as well as other accused persons. Thereafter the police after investigation submitted charge-sheet and convicted the appellant for the offence under Sections 395, 397 and 412 of the Indian Penal Code. On the submission of the charge-sheet, cognizance taken, case committed to the Court of Sessions and charge was framed under Sections 395, 397 and 412 of the Indian Penal Code against the appellant and other accused persons and after framing of the charge 10 witnesses were examined by the prosecution. 5. P.W. 1 Gulo Jha, P.W. 2 Radayal Jha, P.W. 3 Man Mohan Mishra, P.W. 4 Raman Kumar Jha, the son of the informant, P.W. 5 Krishna Nand Jha, the informant, P.W. 6 Chandradeep Ram, the Sub-Inspector of Police, P.W. 7 Sunil Kumar-III, Judicial Magistrate, 1st Class who conducted the Test Identification Parade and the Test Identification Chart was marked as Ext. 3. 6. P.W. 8 is Sanjay Kumar Mishra, the Investigating Officer of this case who conducted the Test Identification Parade of the seized mobile as well as the silver Payal. However, in his cross-examination he has stated that the suspected articles were not sealed and only one mobile and silver Payal was produced before the Court. He has further stated in paragraph 14 that the suspected articles were not mixed-up with any other articles. He has further stated that at the time of identification, except the Officer-in-Charge and the Officers of the police station, no other were present. He has further stated in paragraph 14 that the suspected articles were not mixed-up with any other articles. He has further stated that at the time of identification, except the Officer-in-Charge and the Officers of the police station, no other were present. He has further stated that he did not go to the Malkhana to take out the articles, hence, apparently, the provisions of Test Identification Parade has not been conducted as per the police manual. 7. P.W. 9 is Madan Kumar Mahto. He has formally proved the seizure list Exts. 2/5, 2/6/2/7 and 2/8. 8. P.W.10 Praveen Kumar Jha is the security guard and has formally proved the seizure list Exts.2/9 and 2/10. 9. The trial proceeded against three accused persons, namely, Baua Lal Paswan, Lallan Paswan and Shiv Kumar Paswan. Lallan Paswan and Baua Lal Paswan were acquitted by the trial Court in view of the fact that the Test Identification Parade was conducted after 2 months and 22 days after the arrest of the accused persons and in between this period the accused were remanded several times and in that view of the matter and from perusal of the record it was observed that the accused persons were produced several times in Court and hence, observed that the possibility of their identification by the witnesses during their remand on several dates in the trial Court, the trial Court further considered the evidence of P.W. 3 that after their arrest on the very next day their photos were published in the newspaper. Hence, the trial Court doubted the Test Identification Parade. The trial Court further observed that a co-accused Vidya Nand Paswan was juvenile so his case was bifurcated and sent to the Juvenile Justice Board, Darbhanga. Hence, the trial Court doubted the Test Identification Parade. The trial Court further observed that a co-accused Vidya Nand Paswan was juvenile so his case was bifurcated and sent to the Juvenile Justice Board, Darbhanga. It was further held that regarding Baua Lal Paswan there was no evidence for his involvement in the crime and though the accused Lallan Paswan and Shiv Kumar Paswan having been identified by the informant and his son in the Test Identification Parade and in addition to that witness No. 2 in paragraph 3 and witness No. 3 in paragraph 2 identified Shiv Kumar Paswan in Court and since they had not participated in the Test Identification Parade and hence, acquitted the accused Lallan Paswan and Baua Lal Paswan, but convicted the appellant Shiv Kumar Paswan in view of the fact that from the possession of the appellant an old mobile G-5-U969 bearing IMEIN 354600045093879 identified by the son of the informant and the informant and hence, convicted the appellant and sentenced as mentioned above. 10. Learned counsel for the appellant, however, contended that the appellant has been convicted by the trial Court whereas the two other accused were acquitted giving them the benefit of doubt that the identification by the witnesses in the Test Identification Parade is doubtful and hence, the appellant is also entitled to benefit of doubt as the photographs of the appellant was also published in news paper and the appellant was also put on Test Identification Parade after about three months after his apprehension and during the period he was produced in Court on several dates and the probability of the appellant has been seen by the witnesses cannot be ruled out. It has further been contended that though there is evidence that the appellant was identified and from his possession two mobiles were recovered and one mobile was put on Test Identification Parade and has been identified by the witnesses, but the Test Identification Parade of the articles i.e. the mobile and Payal having been conducted is not in accordance with law and those articles were not mixed-up with other similar articles in Test Identification Parade and the Magistrate who conducted the Test Identification Parade has also stated that the articles seized were not sealed and were not mixed with other similar article and hence, the identification is not reliable to record the conviction. It has further been contended that another mobile which was alleged to have been recovered has not been put on Test Identification Parade. The identification of that mobile is on the basis of the Call Details Record but the Investigating Officer has not proved the Call Details on the basis of which he alleged to have learnt the IMEIN of the looted mobile. The Call Details Record has neither been proved nor marked as Exhibit and hence, there is missing link to prove that the mobile seized was the looted mobile. It has been contended that three mobile numbers had been given in the First Information Report which is alleged to have been looted but it has not been proved that the IMEIN of the mobile seized was learnt of which SIM as there is allegation that two mobiles were seized having their SIM Nos. 8877675144, 9931397244 as well as 8051624137. The Call Details of the above mentioned looted mobiles have not been there to find out the IMEIN of the mobile which was used in the three mobiles which is alleged to have been looted and the Investigating Officer has not stated in his evidence and has specifically stated that IMEIN of the looted mobile correspond to which of the looted mobile SIM by the accused persons hence, there is no link of IMEIN recovered was the IMEIN of the looted mobile and hence, contended that the judgment of conviction and order of sentence recorded by the trial Court is not sustainable. 11. Learned counsel for the State, however, contended that there is evidence of the Investigating Officer P.W.6 that he took the Call Details Report of the looted mobile and it was learnt that IMEIN of the looted mobile was 354600045088870 and IMEIN of another mobile was 359568018878390 and both the mobiles were using the mobile SIM No. 9525804770 and the same SIM 9525804770 belongs to one Pawan Devi and from the Call Details Report of Pawan Devi that is from the Call Details Report Number of the common mobile the Call Details Record location was found out and then raided the house of Pawan Devi and recovered two mobiles from the possession of Shiv Kumar Paswan which were recovered from the possession of the appellant and hence, the prosecution has able to prove the prosecution. 12. 12. I proceed to consider the evidence of the witnesses in the light of the submissions made. However, the appellant was arrested and was put on Test Identification Parade and identified by the witnesses as apparent from the evidence. However, the Test Identification Parade was conducted after two months and twenty two days of the occurrence and it has come in evidence that the photograph of the appellant was published in the newspaper and in the meantime the appellant was produced on several dates in the court below and taking into consideration these facts that the two accused persons were acquitted as the identification under the facts and circumstances of the case is doubtful. However, the appellant having been convicted taking into consideration the fact that while identification as well as the fact that the two mobiles were recovered from his possession and the said mobile had IMEIN which was the mobile used by the prosecution party or the daughter-in-law of the informant. However, the IMEIN of the mobile was not provided by the prosecution which was used by the daughter-in-law of the informant and though the Investigating Officer has stated that he found the IMEIN which was used in the mobile SIM which is alleged to have been looted. However, the Call Details of the looted mobiles having been proved or even on record in the case diary to suggest that the IMEIN of the mobile which was used in the SIM of the looted mobile neither the Call Details Report as the details of those mobile SIM which was looted along with the mobile have neither been proved and further the call details of the mobile from Pawan Devi though found out but the said call details has not been proved. However, those call details are in the case diary printed formally but the call details of the mobile which was looted is not more than one mobile was put which bears the IMEIN 354600045088870. However, though the mobile has been put on Test Identification Parade. The Test Identification Parade has not been conducted in accordance with law. The record shows that the witnesses identified as P.W. 8 has stated that alleged looted articles was not sealed and only one mobile was produced. However, though the mobile has been put on Test Identification Parade. The Test Identification Parade has not been conducted in accordance with law. The record shows that the witnesses identified as P.W. 8 has stated that alleged looted articles was not sealed and only one mobile was produced. He has further stated that the disputed articles were not mixed-up with similar articles in Test Identification Parade hence, the Test Identification Parade and further the Call Details of both the looted mobile and the SIM which was in the name of common people having been proved and analysis of the Call Details Report has been proved that the looted mobile having the IMEIN and the mobile seized used in a mobile. In such facts and circumstances, the appellant is entitled to benefit of doubt, hence, I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubt and the judgment of conviction dated 18.06.2014 and order of sentence dated 19.06.2014 passed by Sri Sudhakar Singh, learned Ad hoc 2nd Additional Sessions Judge, Benipur, Darbhanga in connection with Session Trial No. 102 of 2012 are hereby set aside and the appeal is allowed. Appellant, namely, Shiv Kumar Paswan who is in custody, be released forthwith if not wanted in any other case. Appeal Allowed.