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2017 DIGILAW 1175 (JHR)

Gul Mohammad Mian v. State Of Jharkhand

2017-07-17

RONGON MUKHOPADHYAY

body2017
ORDER Rongon Mukhopadhyay, J. – Heard Mr. Ajit Kumar, learned counsel for the petitioner and Mr. Manoj Kumar, learned A. P. P., for the State. 2. This application is directed against the judgment, dated 16-7-2001 passed by the learned Sessions Judge, Giridih, in Cr. Appeal No. 19 of 2001, whereby and where under the judgment and order of conviction and sentence dated 23-5-2001 (sentence passed on 24-5-2001) passed by the learned 2nd Assistant Sessions Judge, Giridih in S.T. No. 256 of 1999 by which the petitioner had been convicted for the offence punishable under section 395 of the Indian Penal Code and sentenced to undergo R.I. for four years has been affirmed. 3. The prosecution story in brief is that six persons had come on two motorcycles in the shop of the informant. It is alleged that five persons had entered into the shop and by giving threat with revolver and bombs had taken out an amount of Rs. 72,000/- from the cash box. The informant had named one Karamat Mian as one of the dacoits whereas the rest were unknown. 4. After investigation culminated in submission of charge sheet under section 395 of the Indian Penal Code cognizance was taken and after the case was committed charge was framed under section 395 of the Indian Penal Code and trial proceeded. 5. In course of trial six witnesses were examined on behalf of the prosecution. P.W. 1 Madhur Ram is the informant of the case who had stated that on the date of occurrence he was in his grocery shop where his servant and his son were also present. This witness had stated that five miscreants had come to his shop variously armed and on the point of revolver had taken out an amount of Rs. 72,000/- from the cash box. This witness had identified the petitioner in the dock. He has also deposed that the petitioner used to come to his shop for purchasing articles. P.W. 2 Atim Kumar alias Atim Ram is the son of the informant who was present in the shop when the dacoity was committed. This witness had stated that the dacoits had not covered their faces and he had identified the petitioner in the Test identification Parade. This witness had also stated that the petitioner used to come occasionally to the shop. This witness had stated that the dacoits had not covered their faces and he had identified the petitioner in the Test identification Parade. This witness had also stated that the petitioner used to come occasionally to the shop. P.W. 3 Babu Ram is an employee of the informant who was present in the shop at the time of the incident. This witness had also identified the petitioner in the Test Identification Parade. P.W. 4 Rajesh Kumar was the then Judicial Magistrate 1st Class who had conducted the Test Identification Parade and had proved the T.I. Chart which has been marked as Exhibit-2. P.W. 5 Manoj Kumar is the Investigating Officer who had visited the place of occurrence and after examining the witnesses under section 161, Cr. P.C., 1973 submitted charge-sheet against the petitioner and one Karamat Mian. This witness had admitted that the petitioner was kept in the lock-up from 4-7-1999 to 6-7-1999. P.W. 6 Md. Rauf is a formal witness. 6. It has been submitted by the learned counsel for the petitioner that the identification of the petitioner is itself doubtful. Learned counsel for the petitioner submits that P.W. 1 and P.W. 2 both have stated that the petitioner used to occasionally visit the grocery shop but in spite of the said fact the petitioner had not been named in the First Information Report. It has also been submitted that the petitioner was kept in the lock-up from 4-7-1999 to 6-7-1999 and therefore his identification in the Test Identification Parade itself becomes doubtful. Learned counsel for the petitioner submits that since no clear identification of the petitioner could be established by the prosecution the petitioner deserves to be acquitted from the criminal case. 7. Learned A.P.P. for the State has opposed the prayer made by the petitioner. 8. It appears from the evidence of P.Ws. 1, 2 and 3 that the same are corroborative with each other and are consistent with respect to the dacoits entering into the shop of the informant and thereby taking away Rs. 72,000/- from the cash box on the point of revolver and bombs. 8. It appears from the evidence of P.Ws. 1, 2 and 3 that the same are corroborative with each other and are consistent with respect to the dacoits entering into the shop of the informant and thereby taking away Rs. 72,000/- from the cash box on the point of revolver and bombs. Although P.W. 1 and P.W. 2 have stated that the petitioner occasionally used to visit the grocery shop of the informant but the same cannot be construed to mean that the petitioner was known to P.W. 1 and P.W. 2 and therefore he could have been named in the First Information Report. A grocery shop generally invites lots of customers as such shop caters to the general needs of the public. It would therefore be impracticable to think that merely because the petitioner used to occasionally visit grocery shop of P.W. 1 it was not necessary that he would be known by his name. The petitioner had been identified by P.W. 2 and P.W. 3 in the Test Identification Parade and a feeble attempt has been made by the learned counsel for the petitioner that the identification itself is doubtful considering the fact that the petitioner was kept in the lock-up from 4-7-1999 to 6-7-1999. Nothing has been elicited from any of the witnesses to suggest that they had visited the lock-up or had the opportunity to identify the petitioner prior to the Test Identification Parade and merely because the Investigating Officer had admitted about the petitioner having been kept in the lock-up from 4-7-1999 to 6-7-1999 the same by itself would not dilute the identification of the petitioner. The learned trial Court had rightly come to a conclusion about the involvement of the petitioner in committing dacoity and had thereafter convicted the petitioner for the offence punishable under section 395 of the Indian Penal Code and sentenced him to undergo R.I. for four years. The learned appellate Court also on proper appreciation of the materials available on record dismissed the appeal. There being no reason to conclude otherwise, the judgment of conviction passed by the learned trial Court and affirmed by the learned appellate Court is, hereby, sustained. 9. The learned appellate Court also on proper appreciation of the materials available on record dismissed the appeal. There being no reason to conclude otherwise, the judgment of conviction passed by the learned trial Court and affirmed by the learned appellate Court is, hereby, sustained. 9. So far as the sentence which has been imposed upon the petitioner is concerned although learned counsel for the petitioner has strenuously argued that the petitioner is facing the rigours of the prosecution case since the year 1999 and has also for some time remained in custody but considering the gravity of the offence as also the fact that the offence is a crime against the society no leniency is invited with respect to the sentence imposed upon the petitioner. 10. Consequent to the discussions made here in above, this application is dismissed.