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2024 DIGILAW 384 (JHR)

Arvind Kumar Verma @ Bittu v. State of Jharkhand

2024-04-10

GAUTAM KUMAR CHOUDHARY

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JUDGMENT : Gautam Kumar Choudhary, J. 1. All the aforesaid three Criminal Appeals arise out of the common judgment delivered in S.T. No.304 of 2002 and as such, they are being heard together and disposed of by this common judgment. 2. These Criminal Appeals are directed against the common Judgment of conviction dated 28.05.2012 and order of sentence dated 31.05.2012 passed by District & Additional Sessions Judge-4th Cum Special Judge, Vigilance, Hazaribagh, in S.T. No.304 of 2002 whereby the appellants have been convicted under Section 395 of Indian Penal Code. 3. As per the fardbeyan of the informant-Santosh Kumar, recorded on 03.12.2001, in the intervening night of 02/03.12.2001, he along with his family members were sleeping in their home in different rooms when some unknown criminals entered by opening the door and one of them, on the point of pistol and knife, made inquiries about the inmates of the house. Brother of the informant (Dilip) was a disabled person and therefore, one of the accused was left there to guard him. All the three brothers were sleeping on the first floor of the house in different rooms. Informant’s mother, father and other members were sleeping on the rooms of the ground floor of the house. Informant and the elder brother, on the point of pistol, were overpowered and were forced to open the door of the ground floor. Father and mother of the informant had disclosed about the ornaments. Cash of Rs.60,000/-and gold jewelleries of 18 Bhars and silver ornament of 1 Kg. were looted. Altogether 10-11 persons were involved in the commission of dacoity. Outside the house, 6-7 criminals were also there. After the commission of dacoity, they locked the inmates of the house inside the rooms, except the father of the informant was taken away by them and was tied in a Mahua tree. 4. On the basis of the written report, Mandu P.S. Case No.356 of 2001 was registered under Section 395 IPC against 10-11 unknown accused persons. During investigation, Arvind Verma, Bhola Rajak, Shakeel Ahmed, Dwarika Prasad, Binod Mahto and Mahendar Sao were identified on TIP. Police on investigation, submitted charge-sheet against Shakeel Ahmad, Mahendra Sao, Arvind Kumar Verma, Dwarika Mahto, Binod Mahto & Bhola Ravidas. 5. Five accused person were put on trial, namely, Arvind Kumar Verma, Shakeel Ahmad, Bhola Ravidas, Dwarika Mahto and Mahendra Sao under Section 395 IPC. 6. Police on investigation, submitted charge-sheet against Shakeel Ahmad, Mahendra Sao, Arvind Kumar Verma, Dwarika Mahto, Binod Mahto & Bhola Ravidas. 5. Five accused person were put on trial, namely, Arvind Kumar Verma, Shakeel Ahmad, Bhola Ravidas, Dwarika Mahto and Mahendra Sao under Section 395 IPC. 6. During trial, accused, Bhola Ravidas and Mahendra Sao were absconded and their trial was split up from the other accused persons and was declared absconder. 7. Altogether eight witnesses were examined on behalf of the prosecution and relevant documents including TIP Chart was proved. 8. The appellants have been convicted under Section 395 of the IPC and sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 10,000/-. 9. Learned Amicus Curiae appearing on behalf of the appellants-Arvind Kumar Verma and Shakeel Ahmad submits that the test identification parade is not a substantive piece of evidence, but the learned trial Court has returned the judgment of conviction solely based on test identification chart. Furthermore, none of the Investigating Officers have been examined causing prejudice to the accused as the place of occurrence has not been established. The details of gold and silver jewelleries alleged to have been looted, have not been given. The looted articles have not been seized from any of the appellants neither pistol nor knife which was used during dacoity, has been seized. 10. It is submitted that there has been inordinate delay of six months in conducting the test identification parade which makes test identification parade to be suspected. 11. It is argued that there is infirmity of identification of Tara Devi which will be apparent from Exhibit-3 which is the T.I.P. chart wherein it has been noted that learned Magistrate conducted the T.I.P, but that identification was based upon having seen the accused, Mahendra Sao and Dwarika Mahto in the police station. Tara Devi identified one Shankar Yadav who was not the accused in this case. It is also argued that Dilip Sao has also stated that he identified only accused Shakeel Ahmad, who was sitting along with the witness on first floor, but he did not identify the other accused. He identified the Brahmdeo Thakur, who is not accused in this case. 12. It is also argued that Dilip Sao has also stated that he identified only accused Shakeel Ahmad, who was sitting along with the witness on first floor, but he did not identify the other accused. He identified the Brahmdeo Thakur, who is not accused in this case. 12. It is submitted by the learned counsel on behalf of appellant that as per the prosecution case the father of informant, Tulsi Sao had remained with the accused persons for pretty long time as he was abducted by the miscreants and was taken to some distance and was tied in a tree. He has been examined as P.W. 2, but he has deposed that he cannot identify any of the dacoits. 13. On the point of sentence, it is submitted that the incidence took place in 2001 and the appellants have suffered rigors of trial for more than twenty years. Appellant-Arvind Kumar Verma remained in custody for three years and six months, appellant-Shakeel Ahmad remained in custody for one year and ten months and appellant-Dwarika Mahto remained in custody for one year and two months. 14. Learned A.P.P. has defended the judgment of conviction and sentence. It is submitted that the matter involves dacoity, committed in the dwelling house. Dwarika Mahto has not been identified by any of the witness other than Tara Devi (P.W. 5) in dock wherein she has deposed in para 2 that she had seen the accused Dwarika Mahto in the police station and therefore, her identification cannot be relied upon. 15. Two Test Identification Parades were conducted in which the accused persons were identified. Judicial Magistrate, Sri Mahendra Prasad, who has been examined as P.W. 3, has deposed in para 2 that the witness Santosh Prasad identified the suspect Arvind Kumar Verma and Bhola Ravidas in TIP. He also identified some other persons, who were not accused. Tulsi Sao did not identify any of the suspect. Rohit Kumar Sao identified Arvind Kumar Verma and Bhola Ravidas. Another Magistrate, who conducted the parade, has been examined as P.W. 8 wherein he has stated that Dilip Sao had identified Shakeel Ahmad in para 4. P.W.6-Santosh Kumar has deposed in para 3 that cash of Rs.60,000/-and jewelleries were looted from the house. 16. Rohit Kumar Sao identified Arvind Kumar Verma and Bhola Ravidas. Another Magistrate, who conducted the parade, has been examined as P.W. 8 wherein he has stated that Dilip Sao had identified Shakeel Ahmad in para 4. P.W.6-Santosh Kumar has deposed in para 3 that cash of Rs.60,000/-and jewelleries were looted from the house. 16. After having considered the submissions advanced on behalf of both sides and considering the materials on record, it is evident that the commission of dacoity has been established by the consistent account as given by the witnesses. Testimony of the witnesses regarding the factum of incidence in which dacoity was committed has remained uncontroverted in the cross-examination. 17. Main point for determination is whether the prosecution proved the identity of the appellants to be involved in the offence. 18. Law is settled that test identification parade is not a substantive piece of evidence, but is corroboratory and confirmatory in nature. They are primarily an assurance to the investigating agency that their investigation is progressing in the right line. Identification of accused in dock is a substantive piece of evidence. [Refer to Matru @ Girish Chandra Vs State of UP, 1971(2) SCC 75 ] 19. Present case involves the commission of dacoity and therefore, quite naturally FIR has been lodged against unknown persons. Appellants Arbind Kumar Verma and Sakeel Ahmad have been identified both in TIP as well as well as in the dock whereas appellant Dwarika Mahto has been identified for the first time in the Court. 20. There are multiple factors which make the identification of the accused persons suspicious. Father of the informant (P.W.-2), who was taken away by the miscreants after the incidence and was tied down in a tree, has deposed that he could not identify any of the persons involved in the incidence. It is true that the power of observation of individuals vary and therefore, it cannot as a rule be held that if one of the witness failed to identify the accused persons, identification by other witnesses cannot be accepted. His wife (P.W.-5) has claimed to identify all the five accused persons in dock. She also claimed to have identified Mahendar Sao and Dwarika Prasad in TIP. His wife (P.W.-5) has claimed to identify all the five accused persons in dock. She also claimed to have identified Mahendar Sao and Dwarika Prasad in TIP. Her identification become suspect as it has come in the testimony of the Judicial Magistrate (P.W.-8), who conducted the TIP, that she had seen both of them in the police station and therefore, her testimony cannot be relied upon. 21. Other witness namely Dilip Sao identified one Brahmdeo Tahkur in TIP, was not an accused in the present case along with Shakeel Ahmad. Test identification parade was also held after six months. 22. What follows from the testimony of these two witnesses is that the identification of the accused persons in TIP as well and as in the Court, is not reliable and trustworthy. 23. In view of the discrepancies appearing in the identification of the accused persons, this Court is of the view that the appellants are entitled to benefit of doubt. Judgment of conviction and sentence is accordingly, set aside. Prosecution has failed to prove and establish the identity of the persons involved in the dacoity beyond the shadow of all reasonable and probable doubt. All these there Criminal Appeals, are allowed. Sureties of the appellants are discharged from the liabilities of their respective bail bonds. 24. The assistance given by Ms. Juhi Kumari, Amicus Curiae in Criminal Appeal (S.J.) No. 721 of 2012 and Criminal Appeal (S.J.) No. 633 of 2012 is appreciated and Member Secretary, JHALSA, is directed to pay Rs.5000/-each to the amicus curiae.