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2022 DIGILAW 1036 (JHR)

Amrik Singh @ Billu v. State of Jharkhand

2022-08-18

DEEPAK ROSHAN

body2022
JUDGMENT : Heard learned counsel for the parties. 2. The instant criminal revision application is directed against the judgment dated 19.11.2005, passed by learned 2nd Additional Sessions Judge, Jamshedpur, whereby the Cr. Appeal No.120 of 2000, preferred by the petitioner has been dismissed and the judgment of conviction and order of sentence both dated 31.07.2000, in G.R. No. 842 of 1999, corresponding to T.R. No. 190 of 2000, passed by the learned Judicial Magistrate 1st Class, Jamshedpur, whereby the petitioner was convicted and sentenced to undergo rigorous imprisonment for three years under Section 392 of the Indian Penal Code, has been affirmed. 3. The prosecution case in brief is based upon the fardbeyan of the informant alleging therein that on 12.05.1999 at about 2.15 P.M., the informant, after withdrawing money from the counter at National Savings Bureau situated in TISCO company building, was standing near the scooter along with her husband when two accused persons accosted them and on pistol point looted away Rs.8,365/-. It is also alleged that two other accused persons were also standing thereon another scooter. The informant had claimed to identify the accused persons. After investigation, police has submitted chargesheet against the petitioner under Section 392/120-B IPC and cognizance has been taken against the petitioner; for which the petitioner pleaded not guilty and claimed to be tried. After trial, the petitioner was found guilty for the offence and he was convicted and his appeal was also rejected by the learned appellate court. 4. Mr. Arun Kumar Pandey, learned counsel appearing for the petitioner assailed the impugned judgment of conviction on two grounds. (i) There is a delay in TI parade and as per the settled law there should not be any delay in TI parade as it doubt its genuinety. (ii) No recovery has been made from the petitioner and the law is well settled that merely conviction on the basis of TI parade even assuming to be correct is not sustainable without any corroborative evidence. 5. Mr. Pandey further submits that this is a peculiar case wherein the petitioner has been taken into custody on 15.07.1999 and the TI parade was conducted on 21.08.1999 and thus the prosecution took 37 Days for TI parade. 5. Mr. Pandey further submits that this is a peculiar case wherein the petitioner has been taken into custody on 15.07.1999 and the TI parade was conducted on 21.08.1999 and thus the prosecution took 37 Days for TI parade. He further submits that the trial court has committed a gross error in convicting this petitioner only on the basis of identification in TI parade and failed to consider that the said TI parade was done after a delay of 37 days and there was no explanation given by the prosecution witness in respect to his contention. 6. Learned counsel relied upon the judgment passed in the case of Hari Nath and another v. State of U.P. reported in (1988) 1 SCC 14 wherein at para 23 the Hon’ble Apex court has held as under : “23. We are afraid in the present case, there is a serious lapse on the part of the prosecution in putting up the suspected culprits for a test identification after a lapse of four months after their arrest. There is no explanation at all for the delay. There might conceivably be occasions when there could be justification, or acceptable explanation, for the delay. There are cases where the delay was at the instance of the accused persons themselves as they expressed a choice as to the venue for the test parade. There may be other causes, which in the very nature of things cannot be exhaustively enumerated. Cases can only be illustrative.” 7. Learned counsel further submits that there is no recovery in the instant case and the Hon’ble Apex Court in the case of Iqbal and another v. State of Uttar Pradesh reported in (2015) 6 SCC 623 at para 15 has laid down as under : “15. The evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The evidence of identification of the miscreants in the test identification parade is not a substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. The prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime, like recovery of articles which are the subject-matter of dacoity and the alleged weapons used in the commission of the offence.” The law that conviction cannot be based solely on the identity of the dacoits by the witnesses in the TI parade and the prosecution has to adduce substantive evidence by establishing incriminating evidence connecting the accused with the crime and since in the instant case there is no recovery, conviction is bad in law. As such, both the orders of trial court and appellate court should be quashed and set aside. 8. Learned counsel for the State supported the judgment and submits that there is no error in the findings given by the Courts below. As such, the conviction cannot be set aside. 9. Mr. Shravan Kumar, learned counsel appearing for the opposite party No.2-informant submits that the delay in TI parade was due to the fact that on the date of TI parade there was a date of production of the convict in another case and that is why TI parade could not be taken up on that date; but when the next date was fixed, the TI parade was conducted. However, he could not dispute the fact that no recovery has been made from conscious possession of the petitioner. 10. Having heard learned counsel for the parties and after going through the document including the LCR it transpires that the petitioner has been convicted under Section 392 IPC. It further transpires that the TI parade was conducted after a delay of 37 days from the date of custody. The petitioner was taken into custody on 15.07.1999, however, he was finally identified in TI parade on 21.08.1999. 11. In the case of Soni Vs. State of Uttar Pradesh reported in (1982) 3 SCC 368 (I) wherein at para 2 the Hon’ble Apex Court has held as under : “2. After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. 11. In the case of Soni Vs. State of Uttar Pradesh reported in (1982) 3 SCC 368 (I) wherein at para 2 the Hon’ble Apex Court has held as under : “2. After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. The conviction rests purely upon his identification by five witnesses, Smt. Koori, Pritam Singh, Kewal, Chaitoo and Sinru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the appellant. We therefore allow the appeal and acquit the appellant.” Emphasis supplied. By going through the aforesaid judgment of Hon’ble Apex Court it clearly transpires that the law is now no more res integra, inasmuch as, the delay in holding identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the accused persons. 12. It further transpires from record that nothing has been recovered from the conscious possession of the petitioner. In the case of Iqbal (supra) the Hon’ble Apex Court has categorically held that the conviction cannot be based solely on the identity of the dacoits by the witnesses in the test identification parade. Even admitting the argument of the informant that there was sufficient cause for delay in TI parade; the fact remains that nothing has been recovered from the conscious possession of the petitioner and the looted article was seized from the market. All these aspects should have been considered by the learned trial court as well as learned appellate court. However, they failed to do so and convicted the petitioner. 13. All these aspects should have been considered by the learned trial court as well as learned appellate court. However, they failed to do so and convicted the petitioner. 13. Having regard to the facts of the case and the aforesaid discussion; the impugned judgment of conviction dated 31.07.2000, passed by trial court and the judgment dated 19.11.2005, passed by the appellate court both deserves to be quashed and set aside. 14. Ordered accordingly. 15. With the aforesaid observation, the instant criminal revision application stands allowed. 16. The petitioner shall be discharged from the liability of his bail bond. 17. Let the copy of this order be communicated to the court below. 18. Let the lower court record be sent back to the court concerned forthwith.