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2020 DIGILAW 391 (GAU)

Jamal Uddin @ Jamu v. State Of Assam

2020-03-13

MIR ALFAZ ALI

body2020
JUDGMENT Mir Alfaz Ali, J. - Heard Mr. H.R.A. Choudhury, learned Sr. Counsel, assisted by Mr. Azad Ahmed, learned counsel for the appellant and Mr. T.K. Misra, learned Addl. P.P., Assam for the respondents. 2. This appeal is directed against the judgment and order dated 26.04.2012 passed by the learned Addl. Sessions Judge (FTC), Karimganj, in Sessions Case No. 12/2011. By the said judgment, the learned Sessions Judge convicted the appellant under Section 395 IPC and sentenced him to imprisonment for five years and fine of Rs. 2,000/- with default stipulation. 3. As per prosecution case, at about 1.30 AM, in the intervening night of 11.12.2007 and 12.12.2007 some dacoits entered into the house of the informant Rathindra Malakar and robbed away Rs. 37,500/- and other valuable materials on gun points. The dacoits also threatened to kill the son of the informant, unless he pays Rs. 1,00,000/-, which he had allegedly withdrawn from Bank. Rathindra Malakar lodged an FIR, on the basis of the FIR, police registered Patharkandi P.S. Case No. 208/2007 under Section 395 IPC. During investigation, four accused persons were arrested and a Test Identification Parade (TIP) was conducted in respect of two of the accused, wherein the present appellant was identified by one of the witnesses. After completion of the investigation, charge sheet was laid against six persons including the present appellant under Section 395 IPC. Out of the six accused persons, who were charge sheeted, the accused Badul Hoque died during pendency of the trial and another accused Suboddin absconded and eventually the four accused persons including the present appellant stood trial for the offence of dacoity. Learned Sessions Judge framed charge against the four accused persons including the present appellant under Section 395 IPC, to which they pleaded not guilty. 4. In order to bring home the charge, prosecution examined six witnesses. On appreciation of the evidence, learned Sessions Judge convicted the present appellant under Section 395 IPC and awarded the sentence as indicated above and rest of the co-accused were acquitted. 5. Learned Sr. Counsel, Mr. Choudhury for the appellant, submits, that there was no evidence, except the testimony of the PW-5, who stated to have identified the present appellant in the TIP. 5. Learned Sr. Counsel, Mr. Choudhury for the appellant, submits, that there was no evidence, except the testimony of the PW-5, who stated to have identified the present appellant in the TIP. The contention of the learned counsel is that the TIP was not properly done and as such, no conviction could be based on the basis of sole testimony of the PW-5 and identification in the TIP. Learned counsel further contends that no evidence was brought on record to show that there were five or more persons so as to constitute an offence of dacoity as defined under Section 391 IPC. 6. Learned Addl. P.P., supporting the impugned judgment of conviction and sentence contends that the charge against the accused appellant has been proved beyond reasonable doubt and as such, the impugned judgment calls for no interference. 7. The first witness examined by the prosecution was one Promode Malakar, who testified that on the night of occurrence, he was in the house of the informant. He further deposed that at the midnight, some people entered into the house and threatened them not to make any hue & cry. The dacoits also put quilt on their faces and after the dacoits have left, he came to know from the informant (PW-4), that dacoits have taken Rs. 37,500/- and other valuable articles including ornaments. During cross examination, it was elicited that there was darkness in the house. He also stated that there was no partition in the house and all of them were in the same room. 8. Pw-2 was one Jhunu Makalar, who happens to be the wife of the informant. According to her, at about 1 to 1.30 AM at night, some dacoits being armed with weapons entered into their house and robbed Rs. 37,500/- and other valuable articles. She also stated that there was a lantern in their house, but she could not recognize any of the dacoits. She further stated that her husband told that he recognized only one of the dacoit. She however, did not state before police that her husband told her regarding recognizing one of the dacoit. 9. Pw-3, Liton Malakar, also stated to have slept in the house of PW-4 on the night of occurrence. According to him, while they were sleeping, suddenly hearing a sound he woke up. However, the dacoits threatened not to make any noise, and therefore, he remained slept. 9. Pw-3, Liton Malakar, also stated to have slept in the house of PW-4 on the night of occurrence. According to him, while they were sleeping, suddenly hearing a sound he woke up. However, the dacoits threatened not to make any noise, and therefore, he remained slept. He further stated that after the dacoits have left, he came to know that the dacoits had taken money and ornaments etc. 10. Pw-4 was the informant Rathindra Malakar. He stated that at about 1.30 AM at night, some people entered into his house by breaking the door and at that time, PW-3, Liton Malakar and PW-1, Promode Malakar were also in his house besides his wife and other members of the family. According to him, the dacoits tied his hands and asked for key showing pistol and had taken away Rs. 37,500/- from the drawer. They also took 5 tolas of gold and other valuables. He also stated to have identified one of the dacoits in TIP. During cross examination of this witness, it was further confirmed that all the PWs were sleeping in the same room, which was of the size of 10 hands X 14 hands. He also stated that there was a lantern on the dressing table. As he was in deep sleep while the dacoits entered, he could not raise any alarm. He also stated that he did not give any description of the persons in the FIR whom he identified later on, in TIP. It was also elicited in his cross examination, that at the time of TIP, one police personal was sitting by his side. This witness also did not state before police that at the time of occurrence he could identify one of the accused persons who had shown him pistol. It was elicited from his evidence, that the persons who were paraded with suspect in the TIP were not of same height. 11. Pw-5 was the Judicial Magistrate, who conducted the TIP. He stated in his evidence that the TIP was conducted on 27.12.2007 as per the order of the CJM dated 18.12.2007. According to him, the TIP was conducted inside the jail and he paraded the suspects with the persons of equal heights. It was elicited from his cross examination, that initially date was fixed for TIP on 19.12.2007 on the prayer of the Investigating Officer. According to him, the TIP was conducted inside the jail and he paraded the suspects with the persons of equal heights. It was elicited from his cross examination, that initially date was fixed for TIP on 19.12.2007 on the prayer of the Investigating Officer. However, on that day, neither the Investigating Officer attended the court nor the witnesses turned up nor any cause was shown by the Investigating Officer for not producing the witnesses for TIP. However, later on, TIP was conducted on 27.12.2007. The report of the TIP has been proved as Ext.2. 12. A dispassionate scrutiny of the oral testimony as discussed above, sows that except the oral testimony of PW-4 that he had identified the present appellant during TIP, there was no other evidence in this case. Although it was in the evidence of the Investigating Officer that some materials were recovered from the house of the co-accused Ashik Ali, it was also in the evidence of Investigating Officer and the other seizure witnesses that except the cash money no other incriminating article was seized. The Investigating Officer deposed that on the basis of secret information, he conducted a raid in the house of Ashik Ali, wherefrom he arrested the present appellant and thereafter he again went to the house of Ashik Ali and recovered money from his house. Apparently, there was no evidence to establish that the money recovered from the house of Ashik Ali, was the stolen money taken away from the house of the informant. Therefore, even if it is assumed for the sake of argument, that some money was recovered from the house of Ashik Ali, such recovery of money in absence of any evidence to connect the same with the offence, the seizure of the cash money was of no consequence. 13. As indicted above, learned defence counsel comes down heavily on the TIP evidence. It is the contention of the learned counsel for the appellant that though the Judicial Magistrate, who conducted the TIP stated, that the suspects were paraded with the person of similar height, the PW-4, who identified the appellant has admitted in his evidence that the people, paraded with suspect were not of similar height. It is the contention of the learned counsel for the appellant that though the Judicial Magistrate, who conducted the TIP stated, that the suspects were paraded with the person of similar height, the PW-4, who identified the appellant has admitted in his evidence that the people, paraded with suspect were not of similar height. Referring to the record of the Judicial Magistrate, it is submitted, that though the date was fixed for TIP on 19.12.2007, on that day, neither the witness nor the Investigating Officer appeared for TIP nor any explanation was given for their non-appearance and the learned Judicial Magistrate suo-moto fixed the date for TIP on 27.12.2007 and on that day, the TIP was conducted. The record shows that on 27.12.2007, the appellant and another co-accused were produced before the Judicial Magistrate and on the same day, the Investigating Officer also appeared before court along with the witnesses and later on, the TIP was conducted in jail at about 3.15 PM on the same day. 14. One of the most important guideline for holding the TIP is that the witness, who identifies the suspect in the TIP, must not have the opportunity to see the suspect before the TIP. In the present case, record shows that on 27.12.2007 the appellant was produced before court from jail and the witness who identified the accused in TIP was also present in court and later on, in the afternoon the TIP was held in jail. Therefore, presence of the accused and the witness in court before the TIP clearly suggests that the witness had the opportunity to see the accused in court or atleast the possibility of the witness seeing the accused in court before the TIP cannot be ruled out. Evidently, the appellant was an unknown person to the PW-4, inasmuch as, there was no evidence on record to show that the present appellant was known to the PW-4. Although, PW-4 & PW-2 stated that there was a lantern in the house, PW-1, who was an independent witness, clearly deposed that it was dark and there was no light in the house. If the evidence of PW-1, apparently an independent witness is believed, then evidently at the time of occurrence, there was darkness in the house. Admittedly, the PW-1 was also in the same room where the robbery was committed. If the evidence of PW-1, apparently an independent witness is believed, then evidently at the time of occurrence, there was darkness in the house. Admittedly, the PW-1 was also in the same room where the robbery was committed. It can be understood that when the person is known beforehand, he can be identified from his movement, gait etc. even in darkness or insufficient light. In the instant case when the house was dark, identification of an unknown person at 1 O clock in the night is also a circumstance having potential to create doubt on the credibility of the identification of the appellant by PW-4 in the TIP. Though, PW-4 has stated in his evidence that one of the accused showed him dagger and demanded Rs. One lakh, no such statement was made before police recorded under Section 161 CrPC. Another suspicious circumstance shrouding the TIP was the selective TIP, inasmuch as, only the selective suspect was/were made to stand in the parade, inasmuch as, the memorandum of TIP does not reflect, that all the suspect were subjected to the TIP. The facts that the accused was not known to the PW-4 and the house was dark at the time of occurrence, possibility of the PW-4 having seen the accused in court on 27.12.2007 before the TIP, conduct of the Investigating Officer not producing the witness for TIP immediately after the arrest, though a prayer was made and date was fixed and producing the witness after delay of 12/13 days that too, on a day when the witness had the opportunity to see the suspect in court before the TIP and subjecting only the selective suspects to the TIP seriously affected the credibility of the TIP conducted in this case and rendered the TIP farcical. Therefore, in my considered opinion, it would highly unsafe to base conviction on the sole testimony of TIP as deposed by PW-4. 15. Apparently, though PW-4 & PW-2 stated that a lamp was there in the room, such evidence was belied by PW-1, who have candidly stated that there was no light. The lamp was also not seized by police in the instant case. 15. Apparently, though PW-4 & PW-2 stated that a lamp was there in the room, such evidence was belied by PW-1, who have candidly stated that there was no light. The lamp was also not seized by police in the instant case. In a similar situation, when the witness claimed to have identified the accused in the light of lantern and torch which was not seized, the Apex Court refused to rely on the testimony of such witness and observed that when the Investigating Officer did not seize the lantern or torch by which the witnesses had seen or identified the accused person, the identification of the accused was doubtful and the accused appellant shall be entitled to benefit of doubt (see Kapildeo Mandal & Ors. Vs. State of Bihar, (2008) AIR SC 533) as well as Shrishti Narain Jha v. Bindeshwar Jha, (2009) 6 SCC 457 . The Apex Court in Thimmareddy & Ors. Vs. State of Karnataka, (2014) 13 SCC 408 also observed that when the TIP is held after sufficient delay and the accused is not known to the witness, such TIP does not deserves much credibility. In the said case, the occurrence took place on 08.10.2004, the accused was arrested on 28.10.2004 and the TIP was conducted on 09.11.2004 i.e. within 13 days of the arrest. In the present case also the accused was arrested on 13.12.2007 and the TIP was held on 27.12.2007, that too under the circumstances, which themselves created doubt on the credential of the TIP. Situated thus, once the TIP and the evidence of PW-4 is discarded, prosecution is literally left with no evidence which would supports its case. 16. In view of the above, it has become abundantly clear that prosecution evidence was grossly inadequate to establish the charge against the present appellant or at least he shall be entitled to benefit of doubt. Therefore, the conviction and sentence of the appellant under Section 395 IPC is not sustainable. Accordingly, the conviction and sentence of the appellant are set aside. Consequently, the appeal is allowed. 17. Bail bond, if any, stands discharged. 18. Send down the LCR.