Patna High Court
Ramadhar Chamar And Ors. vs State Of Bihar on 20 August, 1985
Equivalent citations: 1986(34)BLJR335
JUDGMENT S.N. Jha, J.
1. Both these appeals have been heard together as they arise out of the same judgment, and they are being disposed of by this common judgment.
2. Cr. Appeal No. 114/1981 has been filed by the five appellants who have been convicted under Section 3% of the Indian Penal Code In short' the Penal Code), and have been sentenced to undergo regorous imprisonment for ten years.
3. Cr. Appeal No. 114/1981 has been filed by the sole appellant who has been convicted under Section 412 of the Penal Code and has been sentenced to undergo rigorous imprisonment for ten years.
4. The prosecution case, in short, Is that a dacoity was committed in the night of the 27th of August, 1973 in the house of the informant P.W. 3 at about 8,00 P.M. in village Dabanpur within Bhagwanpur Police Station in the district of Rohtas. According to the First Information Report, while the If forant (P.W. 3) was talking to one co-villager Sankata Pendey, P.W. 4 in his "Hatikhana" and his sons, namely, Narmdeshwar Pandey P.W. 1, Narsingh Pandey P.W. 2 and Nanku Dusadh (not examined), were also sitting there, suddenly 16 to 18 persons came armed with lathis, bhalas and gun and, all of a sudden, started assaulting the informant P.W. 3 as well as Sankata Pandey P.W. 4 with lathi and bhala and demanded the gun of the Informant P.W. 3 at which the Informant stated that he had sent his gun to his relation. It is said that Sankata Pandey, D.W. 4 raised alarm at which the villagers came there. The dacoits fired gun as a result of which, the villagere scattered away and the dacoits are alleged to have taken away gold ornaments of 50 bhari, each of Rs. 10,000/-, cloths, double barred gun and 18 live cartridges. It is further alleged that the dacoits also assaulted Narmdeshwar Pandey P.W. 1. The informant P.W. 3 has specifically denied to nave identified any dacoits at the time of commission of the dacoity.
5. The Informant lodged the First Information Report (Exhibit-1) on the basis of the aforesaid information, the police registered a case under Section 395 of the Penal Code against 18 unknown persons being Bhagwanpur P.S. case No. 25(8)73. The police took up the investigation and after completing the same, submitted charge-sheet against these six appellants of both the Criminal Appeals along with one Kedar Chamar, whose case was bifurcated due to this absconding and one Ram Nath Chamar, who died during pendency of the Sessions case.
6. The prosecution has examined 8 witness. Out of them, P.Ws. 1,2,3 and 4 are said to be present at the place of occurrence. P.W. 5 has been tendered. P.Ws. 6 and 7 are seizure list witness, in whose presence a gun has been recovered by P. W. 8 from the house of Jagganath Dhobi, the sole appellant in Cr. Appeal No. 114/81, it is not in dispute that in this case neither the Magistrate who held the Test Identification Parade, nor the Investigating Officer who investigated this case, has been examined by the prosecution.
7. The defence of the appellants in Criminal Appeal No. 118/1981 is that they have been falsely implicated in this case due to the previous enmity. According to them, these appellants were known to the witnesses from before the date of occurrence. It is further stated that Appellant No. 1 Ramadhar Chamar was a candidate for Mukhiya of Gram Panchayat of villages Babanpur and Oregaon in the year 1970, and he was elected in the said election after defeating the Informant P.W. 3 and other appellants were his supporters. Therefore, they have been falsely implicated in this case.
8. So far as the defence of the sole appellant in Cr. Appeal No. 114/81 is concerned, his defence is that he has been falsely implicated out of enimity and, as a matter of fact, he is an innocent person.
9. The learned Assistant Sessions Judge, after going through the evidence on the record, gave benefit of doubt to the sole appellant Jaggarnath Dhobi, in Cr. Appeal No. 114/under Section 395 of the Penal Code, but he convicted him under Section 412 of the Penal Code and sentenced him to undergo rigorous imprisonment for ten years as stated above. Hence this Cr. Appeal No. 114/81 has been filed on his behalf.
10. So far as other appellants in Cr. Appeal No. 118/81 are concerned, the learned trial court after considering the evidence on the record, convicted all of them under Section 395 of the Penal Code and sentenced them to undergo rigorous imprisonment for ten years as mentioned above. Hence this Cr. appeal No. 118/81 has been filed on their behalf.
11. Mr. Ashwini Kumar Sinha, learned Counsel has appeared on behalf of the appellants in Cr. Appeal No. 118/81 and Mr. B.P. Pandey, learned Counsel has appeared on behalf of the sole appellant in Criminal Appeal No. 114 of 1981.
12. First of all, I will deal with Criminal Appeal No. 118 of 1981. Mr. Sinha has contended that the factum of dacoity has not been challenged in this case. The only question for consideration is as to whether these appellants have participated in the said decoity. He has challenged the identification of of these appellants by some of the witnesess on the ground that since the Test Identification Chart has not been legally proved in this case, so there is no test identification parade in the eye of law and the identification of these appellants in the court after a lapse of nine years of the occurrence, cannot be made basis for their conviction. According to him, even if the Test Identification Parade is held, it is held after inordinate delay. Therefore it cannot be safely relied upon.
13. In order to appreciate his contentions, it is necessary to look into the evidence adduced by the prosecution in this case. It is an admitted position that the First Information Report was lodged against unknown. It appears that during the course of investigation, these appellants were made suspects in the case and they were apprehended on different dates and were put on T.I. Parade on different dates. Appellant No. 1 was arrested on 15-10-1973 and was put on T.I. Parade on 12-12-1973, i.e., after 57 days of his arrest. Appellant No. 2 was apprehended on 19-9-1974 and he was put on T. I. Parade on 2-4-1975, i.e., after about 6 months. Appellant No. 3 was arrested on 3-11-1973, and he was put on T.I. Parade on 22-1-1974, i.e., after two and half months. Appellant No. 4 was arrested on 4-10-1974, and he was put on T. I. Parade on 12-12-1973, i.e, after about more than two months. Appellant No. 5 was arrested on 7-9-1973 and he was put on T.I. Parade on 14-9-1973, i.e., after one week.
14. So far identification of the appellants is concerned, appellant Nos. 1 and 2 have been identified by P.Ws. 1,2 and 3, appellant No. 3 has been identified by a single witness, i.e., P.W. 3 the informant himself, applicant No. 4 has also been identified by P.W. 1 and 2 as also W. 5.
15. The learned Assistant Sessions Judge has convicted these appellants on the identification of these witnesses, which has been challenged by the learned Counsel for the appellants on the ground that these identification parades have not been legally proved in this case, I have already indicated above that neither the Magistrate who held the Test Identification parade, nor any person on behalf of the prosecution has come forward to prove these T.I. charts. From the records of the case, it appears that the carbon copies of the identification charts have been marked as Exhibits No. 3 to 3/4. From the order-sheet of the case, it also appears that these carbon copies of the Test Identification charts have been marked as Exhibits 3 to 3/3 on 28-4-1980. In the order dated 28-4-1980 it is not mentioned as to who proved these documents.
16. The learned Counsel has also pointed out that so far as Exhibit 3/4 is concerned, this document was marked as Exhibit on 16-5-1980, i.e., after the case of the prosecution was closed, without being proved by any prosecution witness. Nothing has been shown to me on behalf of the prosecution that who actually proved these documents. Therefore, it is impossible for me to say as to what is exactly the nature of the report, i.e., the persons who are said to have identified these persons who were suspects, identified them as regards "what". The documents, i.e., the test identification parade charts, had not been brought on the record of this case upon which any conviction can be passed. The original T.I. parade charts which were alleged to have been prepared by the Magistrate, are not on the record and in absence of the original documents, 1 fail to understand as to how the learned Assistant Sessions Judge marked the carbon copies of these documents as Exhibit. The Magistrate who prepared the test identification chart, has not been examined as witness in this case, and it is argued by the learned Counsel for the applicants that this identification report was not admissible in evidence without examining the learned Magistrate. I agree with this contention. On a mere perusal of this chart, I am construed to say that there is no evidence of identification of the appellants in the present case, I find that the learned Assistant Sessions Judge has convicted these appellants only by relying on these inadmissible evidence. In my view, where a chart of test identification is not proved by the Magistrate who held the T.I. parade and full particulars of the identification are not given by him, such report is no evidence of the identification.
17. In support of his contention, the learned Counsel has also relied on a Full Bench decision in the case of Sheo Raj v. State . In therefore said case the point for decision before the Full Bench was whether the memorandum of identification proceedings held by a Magistrate acting under Section 164 of the Code of Criminal Procedure is admissible without proof and their lordships after full consideration answered the question in the negative. It was observed in the said case as follows:
A memorandum of identification proceeding contains not only statements of the witnesses to the effect that such and such persons were the offenders but also many other facts, such as that the suspects were put up for identification mixed with so many persons that all precautions were taken, that the witnesses had no opportunity of communicating with one another during the Identification, that the suspects were free to occupy any position in the parade, whether a witness pointed out the suspects in the first round or subsequently the demeanour or of witnesses etc. These facts are not statements and a memorandum of them is not a memorandum to which Section 60 could on any interpretation, apply and cannot be presumed to be genuine. If they have not been proved by the witnesses, who were present at the identification proceedings, they must be proved by the Magistrate.
In the aforesaid case the dispute was whether a memorandum of identification proceedings was admissible in evidence on being presumed to be genuine under Section 80 of the Indian Evidence Act and their lordships decided that the memorandum of identification proceedings held by a Magistrate acting under Section 164 of the Code of Criminal Procedure (in short 'the Code), is not admissible without proof. In the instant case from the records, It appears that the T.I. Parade Chart was not proved by the Magistrate who recorded it nor it was proved by any prosecution witness giving the evidence in the case. In that view of the matter, I am of the view that the T.I Chart has not been legally proved in this case. So in the eye of law, there was no test identification parade chart before the Assistant Sessions Judge on which he has passed his conviction of these appellants.
18. Even assuming that the T.I. Parade was held, it was held after inordinate delay. I have already mentioned above that in case of appellant No. 1, T.I. Parade was held after about 57 days. T.I. Parade of appellants No. 2 was held after six months T.I. Parade of appellant No. 3and 4 was held after two and half months. The Test Identification Parade should be held at the earliest possible opportunity. In some of the cases, the Supreme Court has held that even a delay of 20 days between the arrest and the parade itself in absence of reasonable explanation is inordinate and it takes away its value. No doubt, the delay in holding the Test Identification Prade defeats this very purpose of T.I. Parade. In the case of Vakil Singh v. The State of Bihar . The Test Identification Parade was held after about three and half months of the dacoity and in view of such long lapse of time, the Supreme Court observed that it is not possible for any human being to remember the feature of the accused and is, therefore, very likely to commit mistakes. The Supreme Court observed that in the circumstances, unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony a single witness. In the instant case, I find that so far as appellants No. 3 and 4 are concerned, they have been identified by a sole witness, namely, P.W. 3 and P.W. 1 respectively, I may point out here that the Supreme Court in the case of Soni v. Slate of Uttar Pradesh 1982 (3) S.C.C. 268. has observed as follows:
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. Moori, Pritam Singh, Kewal, Chaitoo, 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 expression of the appellant, if this evidence cannot be relied upon, there is no other evidence which can sustain the conviction of the appellant.
19. Having closely examined the facts and circumstances as well as the evidence adduced in the instant case, I am of the view that the prosecution has not been able to establish guilt beyond all reasonable doubts that these appellants participated in the said dacoity,
20. Now coming to Criminal Appeal No. 114/81, it has been submitted by Mr. B.P. Pandey, learned Counsel appearing on behalf of the sole appellant that the prosecution has not been able to establish the fact that the gun in question was recovered from the house of the appellant. P.Ws. 6 and 7 are the witnesses on the seizure list Exhibit-2/2. The case of the prosecution is that P.W. 8 in course of an investigation in some other case raided the house of the appellant and recovered the gun in question in presence of P.Ws. and 7. P.W. 6 has stated in his deposition before the Assistant Sessions Judge that the gun was not, recovered in my presence. He merely signed the seizure list on the request of the Sub-Inspector of Police under compulsion as it was a period of Emergency. Similar statement has also been made by P. W. 7. These two witnesses have not been declared hostile on behalf of the prosecution. The statements of these two witnesses throw some suspicion of the prosecution case as to whether the gun in question was actually recovered from the house of the appellant. The learned Counsel has further submitted that even if the statements of P.W. 6 and 7 are not accepted and assuming that the gun was recovered, the prosecution has not proved that it was in concious possession of the appellant. According to the learned Counsel, the house is admittedly in joint possession of the two brothers and they are living together. Therefore, unless the prosecution proves that it was in concious possession of this appellant, the conviction cannot be based for the offence under Section 412 of the Penal Code. I may point out here that this appellant was also charged under Section 295 of the Penal Code and he was given benefit of doubt for the offence on that count and he was convicted only for the offence under Section 412 of the Penal Code.
21. In support of his contention, the learned Counsel has relied upon a decision in the case of Punia Mullah and Ors. v. Emperor A.I.R. 1946 Patna 169. which it was held that where an article alleged to have been stolen in a dacoity, is recovered from the house occupied by the accused and by his father and there is no evidence as to which portion of the house was occupied by the accused and which portion by the other members of the family and from which portion the article was recovered, the article cannot be said to have been recovered from the possession of the accused.
22. In the instant case, I find from the evidence of P.W. 6 who has deposed in his cross-examination that the appellant Jaggannath Dhobi has one more brother and both brothers are living jointly and they have also got joint cultivation One document, namely, Rayati Khatian Exhibit-6 has also been filed on behalf of the appellant, which shows that Sarjug Dhobi, Jaggannath Dhobi and Lodha Dhobi s/o Ram Brat Dhobi are in joint possession of the house. This document in one of the column shows that the house and sehan is in joint possession of the brothers. In that view of the matter, in my view, the onus lies on the prosecution to prove that the premises from where the gun in question is alleged to have been recovered, was in exclusive possession of this appellant. Mere proof that an indiscriminating article is found in a premises having number of rooms and occupied by number of persons belonging to a joint family does not by itself establish, prima facie, guilt on a particular person. The burden lies entirely on the prosecution to show that the article recovered must be in conscious and exclusive possession of the appellant. Having examined the evidence on the record, I find that this onus has not been discharged properly by the prosecution.
23. Having closely examined the facts, circumstances and the evidence on the record, I am of the view that the prosecution has not been able to establish its case beyond all reasonable doubts against all the appellants of these two appeals and it Is hazardous to convict them relying on such set of evidence. Therefore, they are entitled to benefit of doubt. For the reasons stated above, I give benefit of doubt to these appellants, and, they are, accordingly, acquitted.
24. In the result, both the appeals are allowed and the orders of conviction and sentence awarded to them are hereby set aside. They are discharged from the liabilities of bail bonds,