Jharkhand High Court
Gujra Karmali Son Of Late Ramu Karmali vs The State Of Jharkhand on 25 April, 2018
Equivalent citations: 2018 (3) AJR 541, (2018) 3 JLJR 74
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 171 of 2004
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(Against the judgment of conviction dated 17.12.2003 and order of sentence dated 19.12.2003 passed by 5th Additional Sessions Judge, Bermo at Tenughat in S.T. Case No. 63 of 2002.
Gujra Karmali son of Late Ramu Karmali, resident of Ayar, P.S.- Mahuwatar, District Bokaro. ..... Appellant Versus The State of Jharkhand .... Respondent
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CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
For the Appellant :Mr. Gopal Krishna Sinha, Advocate
For the State :Mr. Pankaj Kumar, Additional Public Prosecutor
By Court:- Heard learned counsel for the appellant Mr. Gopal Krishna Sinha,
Advocate as well as learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor.
2. The instant Criminal Appeal has been preferred against the judgment of conviction dated 17.12.2003 and order of sentence dated 19.12.2003 passed by 5th Additional Sessions Judge, Bermo at Tenughat in S.T. Case No. 63 of 2002, whereby the sole appellant has been convicted for offence committed under Section 394 and 397 I.P.C. and awarded rigorous imprisonment for seven years for the offence punishable under Section 397 IPC and rigorous imprisonment for four years and a fine of Rs. 1000/- under Section 394 I.P.C. and in default of payment of fine rigorous imprisonment for one month, both the sentences are directed to run concurrently. By the said impugned judgment, the learned Trial Court has acquitted the appellant Gujra Karmali of the offence under Section 411 of the Indian Penal Code.
3. Being aggrieved by the said impugned judgment of conviction and order of sentence, the present appeal has been preferred before this Hon'ble Court, which has been admitted on 22.04.2004 and since then the appeal is pending before this Court.
4. The prosecution case is based upon fardbeyan of Jagdish Turi (P.W. 4) recorded by S.I. Uday Kumar (P.W. 7), Officer-in-Charge, Tenughat outpost on 29.09.2000 at 1.10 a.m. at Tenughat outpost premises, where the informant has stated that in the night at 10-11 p.m, while the inmates of the house were inside the house, watching television, the three accused persons came climbing over the boundary wall and entered into the courtyard. One of the accused came near the informant and caught hold of him. The informant raised hulla as dacoit dacoit.
2The informant thrashed one of the dacoit on the ground and asked his son to bring farsha and also snatched the farsha from the hand of one of the accused. Another dacoit having farsha in his hand, assaulted him at his abdomen and left hand causing injury. Third accused having iron rod and a knife in his hand, assaulted him due to which informant became unconscious. Thereafter he was put inside the cot and was covered by a mattress and other two dacoits also assaulted the family members. The dacoit also gave threatening and after committing dacoity for half an hour took four bronze plate, two bronze lota, one brass lota, two bronze glass, one new aluminium utensil, one bronze plate, one bronze lota written as Moti/Moti Turi. The accused persons have also taken three new saree, one of the saree is brown in colour, other is green in color and one is of red colour and 9-10 old sarees, one pair silver payal, four silver finger ring have been looted away. The informant has alleged that the dacoit with whom he had scuffle was aged about 30-35 years, good built, wearing brown pant and shirt. The second dacoit was young, black in color, wearing pant and banyan, both were having average height having a muscle lump at the back. Third dacoit was tall, fair and wearing pant-shirt. The informant has further stated, that dacoit with whom he has scuffle came to his house earlier in the afternoon at 2-2.30 P.M. on 27.09.2000 for breeding cow with one another person claiming as an owner of the cow, resident of village Khetko and they have said that the cow will be brought by 4.00 p.m. for the purpose of breeding and thereafter both went away. The informant has further stated that on 28.9.2000, out of those two persons, one person (dacoit) came at 2.30 p.m. and disclosed that from Silly saram two cows are being brought for breeding. The said person had only came to inform the informant as he is not available in house all the time. On enquiry made by the informant, the person said that he has houses at 3 places, one is in village Khetko and second is in Silly Saram and third is at Jainamore and he is working in the C.C.L. The informant has scuffle with this person, who is a dacoit. The informant has further stated that as soon as the dacoit reached inside the house, they first damaged the bulb and after committing dacoity fled away. The neighbourers namely Laxman Ganjhu and Niranjan Mahto have disclosed that some of the dacoits were standing in front of their house and they were threatening, the neighbourers not to open the door. The informant has stated, that dacoits were using local Khortha Language and while they were fleeing away, they asked the children not to go to file a case in the police station rather take their father for treatment as he has been assaulted severely. The informant and family members, have claimed to identify the accused persons after seeing them 3 and also claimed to identify the looted articles. The fardbeyan of the informant was written in presence of neighbourers Laxman Ganjhu and Niranjan Mahto and signature have been put on the fardbeyan as a witness to the fardbeyan.
5. On the basis of the fardbeyan, police instituted Peterwar P.S. case No. 110/2000 dated 29.9.2000 under section 395 and 397 of the Indian Penal Code. Subsequently Section 412 I.P.C. has been added vide order dated 14.11.2000 consequent G.R. No. 770 of 2000. After investigation the police submitted Charge-sheet vide No. 156/2000 dated 26.12.2000 under Section 395 and 412 of the Indian Penal Code only against Gujra Karmali (appellant) and the investigation was continuing with respect to the offence while submitting the first Charge-sheet. The second Charge-sheet was submitted vide No. 88 of 2001 dated 27.6.2001 under Section 395, 397 and 412 of the Indian Penal Code against Chandra Karmali and Shibu Karmali.
6. That cognizance of the offence has been taken and the case has been committed to the court of sessions vide notification dated 28.01.2002. Learned Trial Court has framed the charge against the sole appellant Gujra Karmali under Section 394, 397 and 411 of the Indian Penal Code on 6th March, 2002. The appellant has pleaded his innocence and thus appellant has been put for trial.
7. The prosecution has examined, altogether eight witnesses in support of their case and also exhibited a number of document. P.W. 1 is Dashmi Devi, P.W. 2 is Mundri Devi, P.W. 3 is Krishna Kumar, P.W. 4 is Jagdish Turi, P.W. 5 is Laxman Ganju, P.W. 6 is Dr. Binod Kumar, P.W. 7 is Uday Kumar and P.W.8 is Anil Kumar Tiwari.
8. Exhibit-1 is signature of the witness on the fardbeyan, Exhibit 1/1 is signature of Laxman Ganjhu on fardbeyan. Exhibit ½ is signature of Niranjan Mahto on fardbeyan. Exhibit 1/3 is fardbeyan. Exhibit 2 is injury report of Jagdish Turi and Exhibit 2/1 is signature of Dr. Binod Kumar (P.W. 6). on Exhibit 2, Exhibit 3 is signature of Ravi Pratap Bajpayee over formal F.I.R., Exhibit 4 is confessional statement of Gujra Karmali recorded by police during police custody. Exhibit 5 is seizure list of one new silk saree firozi in colour, Exhibit 6 is another seizure list of one old cotton sky blue saree with white print and Exhibit 7 is Charge-sheet. Exhibit 8 is T.I. chart of the seized article. Exhibit. 8/1 is signature of Anil Kumar Tiwari (P.W. 8) on the Exhibit 8 and signature of George Munda as Exhibit 8/2 on Exhibit 8. The Test Identification Parade of the suspected accused was conducted on 16.10.2000 by learned Judicial Magistrate, has not been exhibited in this case and all the Exhibits have been exhibited without objection.
49. Dasmi Devi, one of the wife of Jagdish Turi (informant) has been examined as P.W. 1. This witness has stated during examination-in-chief, that when miscreant were beating her husband, out of fear, she fled away to call neighbours for support to fight with the miscreant. The miscreant has looted away 17-18 sarees of this witness and some utensils of bronze, aluminium, brass and others. The witness has identified two of the looted sarees during Test Identification Parade in the court after 10-15 days of the occurrence, she could not identify the accused present in the dock.
10. Mundri Devi, another wife of the informant Jagdish Turi, has been examined as P.W. 2. This witness has stated that while she was watching television along with her children and her husband was sleeping outside verandah. The dacoit has assaulted her husband and out of fear she also ran from the house to get help from neighbours. Her husband sustained injury by the assault of dacoits but she will not recognize the miscreant/dacoit even if she will saw them. The miscreant looted some utensils of bronze, aluminium and 15 to 20 sarees from her house. She has identified two of the sarees looted during the Test Identification Parade.
11. Krishna Kumar, son of the informant, aged about 12 years has been examined as P.W. 3. This witness has stated during examination-in-chief, that while he was watching television with the family members and father was sleeping in the verandah, three dacoits came into his house after jumping the boundary wall and assaulted his father. When his father raised hulla and asked him to get farsha, while this witness was going to give farsha to his father, one of the accused assaulted him and snatched the farsha from him. The dacoit put him and his father beneath the khatia/cot and looted away the apparels, jewellery and utensils from his house. This witness has further stated, that while fleeing away dacoits told him, that his father is severely injured and advised him to arrange for his treatment. The witness has identified, the accused standing in the court at the time of his deposition as one of the accused, present there at the time of commission of dacoity. The witness identified Gujra Karmali who is single accused present in the court and facing trial as stated in paragraph 6 of his examination-in-chief. During cross-examination, this witness has stated, that he is studying in class 4 and has five to six house near his own house. One of the house has been occupied by Niranjan Mahto, while the other houses are vacant. During cross-examination this witness has stated, that police took him to jail for Test Identification Parade. There 9-10 persons were shown to him but he could not identify any of the dacoits from them. This witness has further stated, that 5 they were shouting during commission of dacoity but none came there for rescue. After dacoity was committed, the witness and others reached to the police station within 20-25 minutes. His father, mother and another person went to the police station namely Laxman Ganjhu and Niranjan Mahto. His father walked on his own to the police station and returned to his house at about 10-11 a.m on the next date. My mother and Niranjan Mahto also came with him. This witness has stated that police has recorded his statement on the very night of the occurrence and took his signature.
12. Jagdish Turi, informant of the case, has been examined as P.W. 4. This witness has stated that occurrence took place, one and half year ago, about 9.00 P.M. The family members were watching television inside the house. Three dacoits came inside the house, after jumping over the boundary wall and some dacoits were standing outside the boundary wall. One of the dacoit hit him nearby left elbow with a knife. The informant has asked his children to bring farsha but one of the dacoit snatched the farsha from the hand of his son Krishna, another dacoit hit him with farsha on his abdomen and another dacoit kicked him. This witness fell down on the floor and sustained injury on fore head. Another dacoit hit him with a rod in his back. One of the dacoit hit, him near the knee of left leg with lathi. The dacoits thereafter took him inside the house and put him under cot, covered with mattress, thereafter dacoits have looted the utensils. The witness has further stated that one of the dacoits came to his house two days prior to the occurrence for breeding the cow. The same person also came to his house at around 2.30 P.M on the date of occurrence. The dacoits were talking in local language. While they were leaving, they told his children for providing treatment to him and not to report the matter to the police. In paragraph 6 of his examination-in-chief, this witness has stated that he went for Test Identification Parade, but it was dark by then and thus he was unable to see in the dark and he could not identify the dacoits. The witness has identified the accused Gujra Karmali present in the court today and said that he hit him with the knife on the day of the alleged occurrence. This witness has further stated that he has reported the matter in Tenughat outpost along with Niranjan Mahto, Advocate and Laxman Ganjhu, Munsi on the day of occurrence. The daroga of the outpost recorded the content of his fardbeyan, which was read over and explained to him and finding them to be true, he put his signature there. His signature on the fardbeyan has been proved and marked as Exhibit 1 and the signature of two witnesses, Sri Niranjan Mahto and Sri Laxman Ganjhu, who have also signed in his presence and the same have been proved and marked as Exhibit 1/1 and ½ 6 respectively. Police thereafter took him to Sub-Divisional hospital, Tenughat for treatment. During cross-examination, this witness has stated that he has retired from his service in the year 1996 at the age of 58 years and his vision is alright. He could see clearly up to a distance of 15 feet and never took any treatment of his eyes. This witness has further admitted in paragraph 13 of his cross- examination that he was taken to jail for Test Identification Parade after 2½ to 3 months of the alleged occurrence. His family members also went for Test Identification Parade and disclosed that around 8 to 10 persons were present during the Test Identification Parade. He told the person concerned that he is unable to see without proper light at the time of Test Identification Parade. On that day he has not seen, whether this accused Gujra Karmali was present in the Test Identification Parade or not.
13. Laxman Ganjhu, one of the signatory of fardbeyan has been examined as P.W. 5. This witness has stated that a dacoity was committed in the house of Jagdish Turi who has sustained injury during dacoity. This witness along with Niranjan Mahto and the family members of Jagdish Turi brought Jagdish Turi to Tenughat out-post police station in an injured condition at about 1.30 a.m. in the fateful night. This witness has proved fardbeyan written by Mr. Uday Kumar, Sub-Inspector in his presence which has been marked Exhibit 1/3. From Tenughat police out-post, they accompanied Jagdish Turi for Tenughat Sub- Divisional hospital and got him admitted there. This witness has identified his signature and signature of Niranjan Mahto (P.W.5) on fardbeyan, which has been proved and already marked as Exhibit 1/1 and 1/2. During cross-examination this witness has stated that he has no personal knowledge about the dacoity and he was not examined by the police.
14. Doctor Binod Kumar, has been examined as P.W. 6. He is the medical officer, posted at Sub-divisional hospital, Tenughat on 29.9.2000 and on the same day at 2.30. a.m. he examined Jagdish Turi and found following injuries on his person :-
(i) Lacerated injury 6 cm x 3 cm upto skin deep margin
inverted over. Supra pubic space.
The injury was simple in nature and might have been
caused by sharp and heavy weapon like farsha.
(ii) Small lacerated wound 2 cm x 1/2 cm spindage over left
lower axillary area. The injury was simple in nature and
might have been caused by hard and blunt substance like
lathi and iron rod.
(iii) Lacerated wound over left forearm.
(iv) Small abrasion over right knee.
(v) Abrasion over left shoulder.
The injury no. (iii), (iv) and (v) are simple in nature and 7 might have been caused by lathi, and iron rod.
15. All the injuries were lacerated or abrasion and simple in nature. The injury report written in the hand-writing of the doctor has been marked Exhibit 2 and the signature on the injury report as Exhibit 2/1.
16. Uday Kumar, Sub-Inspector of the police has been examined as P.W. 7. This witness was Officer-in-Charge of Tenughat Police out-post and on getting information, that a dacoity has been committed in the house of Jagdish Turi at Quarter No. 327, I type colony, Tenughat, went there and recorded the fardbeyan of Jagdish Turi and took up investigation of the case. The fardbeyan of Jagdish Turi was recorded by him in his own handwriting which has already been marked Exhibit 1/3.
The formal F.I.R. written by Sri Ravi Pratap Bajpayee, Officer-in- Charge, Peterwar is marked Exhibit 3. During investigation Uday Kumar (P.W.
7), has arrested the accused Gujra Karmali, who is standing in the court and during investigation the accused has confessed his guilt. This witness has recorded the confessional statement of Gujra Karmali in police custody and the same has been proved and marked Exhibit 4. In his confessional statement, accused Gujra Karmali has disclosed that the looted articles are kept in the house of Sibhu Karmali and Chandra Karmali of village Gago. Thereafter the Investigating Officer, conducted a raid in the house of Sibhu Karmali as shown by the accused Gujra Karmali and Gujra Karmali led him to discovery of the new silk saree of firozi in colour kept in a bora. The witness (P.W. 7) has also conducted raid in the house of Chandra Karmali as shown by the accused Gujra Karmali and Gujra Karmali led him to discover a looted cotton saree of sky blue and white print. The witness has prepared seizure list of both the looted saree in presence of witnesses, which are marked as Exhibit 5 and 6 respectively. On 16.10.2000 both seized silk sarees were put for Test Identification Parade, in presence of Sri Sunil Kumar Sinha "Mukul" learned Judicial Magistrate, 1st Class. After investigation submitted Charge-sheet which has been marked Exhibit
7. This witness has stated that he never attempted for recording the statement of the accused under Section 164 of the Cr.P.C.
17. Anil Kumar Tiwari, Bench Clerk in the court of Sri Sunil Kumar Sinha "Mukul" learned Judicial Magistrate, 1st Class, Bermo at Tenughat has been examined as P.W. 8, on 16.10.2000 and proved his signature on the Test Identification Parade of Saree in connection with Peterwar P.S. case No. 110 of 2000 made in his presence, as he is acquainted with writing and signature of the 8 Learned Judicial Magistrate Sunil Kumar Sinha "Mukul" and proved the signature which has been marked Exhibit 8. This is his signature thereon, which has been marked as Exhibit 8/1 and the signature of the orderly George Mewa has also been marked Exhibit 8/2. This witness has stated that witness Dasmi Devi, Mundri Devi and Sonam Kumari have identified two looted sarees in their presence during Test Identification Parade.
18. Learned counsel for the appellant Mr. Gopal Krishna Sinha has submitted, that in the instant case the appellant with whom some altercation took place with the informant for breeding the cow has been falsely implicated with ulterior motive and the only legal material which has been considered for conviction of the appellant is the seized article (two sarees) identified in the Test Identification Parade (Exhibit-8), and identification of the accused in the dock by P.W. 3 Krishna Kumar and the informant Jagdish Turi (P.W. 4). Apart from that confessional statement of the accused Gujra Karmali recorded by the police during police custody (Exhibit 4) have been considered by the learned Trial Court.
19. Learned counsel for the appellant has further submitted that confessional statement recorded by the police in police custody of an accused cannot be legally marked as an exhibit and it is not an evidence but the same is a material for investigation and that is the reason the, investigating officer who has been examined in this case as P.W. 7 has admitted during cross-examination in paragraph 20, that he has never attempted for recording the statement of the accused under Section 164 Cr.P.C. The learned counsel has further submitted that the Test Identification Parade of the accused was also conducted during investigation on 16.10.2000 itself, when accused Gujra Karmali along with 9 other accused persons were put for Test identification but witnesses namely Jagdish Turi wrongly identified the another person Laro Gope, not a suspected accused of this case. Sonam Kumari (daughter of the informant) has identified Laxman Ganjhu, who is not the suspected accused of the present case and Krishna Kumar has identified Laro Gope, who is not suspected accused of the present case and as such the identification made in the court, approximately after two years of a single accused facing trial present in the dock cannot be relied upon as any person can say, that he is identifying the accused as the same accused has been charge sheeted by the police and the single accused is facing trial and present in the court. The Hon'ble Supreme Court in the case of Ronny @ Ronald James Alwaris and Ors. Vs. State of Maharashtra as reported in (1998) 3 SCC 625 at paragraph 18 has held that:-
9"18. Section 9 of the Evidence Act deals with relevancy of facts necessary to explain or introduce relevant facts. It says, inter alia, facts which establish the identity of anything or person whose identity is relevant, insofar as they are necessary for the purpose, are relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused person at his trial. The statement of the witness made in the court, a fortiori identification by him of an accused is substantive evidence but from its very nature it is inherently of a weak character. The evidence of identification in the TIP is not a substantive evidence but is only corroborative evidence. It falls in the realm of investigation. The substantive evidence is the statement of the witness made in the court. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what he has seen earlier, strength or trustworthiness of the evidence of the identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in the court. If a witness identifies the accused in court for the first time after a long time, the probative value of such uncorroborated evidence becomes minimal, so much so that it becomes unsafe to rely on such a piece of evidence."
20. Learned counsel has also drawn attention of this court regarding the judgment as reported in (2002) 7 SCC 295 in case of Dana Yadav @ Dahu & Ors. versus State of Bihar :-
"That identification in the court for the first time, as such no reliance should have been placed upon such an identification more so when there were no exceptional circumstances to place reliance upon his identification for the first time made in court without the same being corroborated by previous identification in the Test Identification Parade or any other evidence. Section 9 of the Evidence Act deals with the relevancy of facts necessary to explain or introduce relevant facts. It says, inter alia, facts which establish the identity of anything or person whose identity is relevant, insofar as they are necessary for the purpose, are relevant. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused at his trial. The identification of an accused by a witness in court is substantive evidence whereas evidence of identification in Test Identification Parade is though primary evidence but not substantive one and the same can be used only to corroborate identification of the accused by a witness in court. This Court has dealt with this question on several occasions. In the case of Vaikuntam Chandramppa and Ors. v. State of Andhra Pradesh, AIR (1960) SC 1340 has observed that the substantive evidence of a witness is his statement in court but the purpose of Test identification is to test that evidence and the safe rule is that the sworn Testimony of witnesses in court as to the identity of the accused who are stranger to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding or any other 10 evidence.
It is well settled that identification parades are held ordinarily at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offence or the persons who are alleged to have been involved in the offence. Such tests or parades, in ordinary course, belong to the investigation stage and they serve to provide the investigating authorities with material to assure themselves if the investigation is proceeding on right lines. In other words, it is through these identification parades that the investigating agency is required to ascertain whether the persons whom they suspect to have committed the offence were the real culprits. Reference in this connection may be made to the decisions of this court in the cases of Budhsen as reported in (1970) 2 SCC 128, and Sheikh Hasib (1972) 4 SCC
773. It is also well settled that failure to hold Test Identification Parade, which should be held with reasonable dispatch, does not make the evidence of identification in court inadmissible rather the same is very much admissible in law. Question is what is its probative value? Ordinarily identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous Identification in the Test Identification Parade or any other evidence. The purpose of Test Identification Parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence."
21. Learned counsel for the appellant has also relied upon judgment reported in 2016 Criminal Law Journal 1932 reiterated the earlier views, taken in the case of Dana Yadav @ Dahu Vs. the State of Bihar (supra) and has submitted, that in the present facts and circumstances where the witnesses have not identified the accused during Test Identification Parade and subsequently after a gap of approximately 2 years, identification of sole appellant who was facing trial and present in the dock, has been identified by P.W. 3 and P.W. 4 cannot be made basis for conviction as identification of an accused in a court, when he is singly facing the trial cannot be accepted. The witness has not identified this accused during Test Identification Parade rather identified wrongly to another person present along with the accused during Test Identification Parade though the said person, who has been identified by the P.W. 3 and P.W. 4 are not suspected accused of the present case and as such learned court below has convicted the appellant erroneously without considering the law laid down by the 11 Hon'ble Supreme Court.
22. Learned counsel has further submitted that Krishna Kumar (P.W.3) has admitted, during his cross-examination in paragraph 13 that he was taken by the police to jail for Test Identification Parade. There, 9-10 persons were shown to him, but he could not identify any of the dacoit out of them. Similar statement has been made by P.W. 4 Jagdish Turi at paragraph 13, that he was taken there for Test Identification Parade, after 2 to 3 months of the alleged occurrence along with the family members but he could not identify any of the accused. The learned counsel has submitted that from perusal of the evidence of P.W. 4 and P.W. 3 it seems that they have wrongly identified the appellant present in the Court rather P.W. 4 and P.W. 3 have identified wrong person during Test Identification Parade. Identification of sole accused present in the dock as he was a single accused facing the trial, is not acceptable and as such identification made in the court cannot be relied upon for convicting the appellant in view of the law laid down by the Hon'ble Apex Court.
23. Learned counsel for the appellant, has further submitted, that learned Trial Court has acquitted the appellant under Section 411 I.P.C as one silk saree and one cotton saree was seized but Test Identification of two silk saree was done. Neither the State nor the informant has preferred any appeal and as such appellant cannot be convicted on presumption that the looted saree was recovered at his confession. It has further been submitted, that the investigating officer has admitted during cross-examination that he has not taken any steps for recording the statement of the accused under Section 164 Cr.P.C. confessing his guilt and as such on such flimsy grounds, the appellant has been convicted.
24. Learned counsel for the appellant has further submitted that witnesses like Sonam Kumari, daughter of the informant and other inmates of the house have not been examined in the case nor Niranjan Mahto, Advocate has been examined in this case.
25. The learned counsel has further submitted that from perusal of the fardbeyan, it is apparent that informant has sustained some injury from farsha, iron rod and knife as stated by the informant and other inmates of the house but from perusal of Exhibit 2 proved by the doctor Binod Kumar (P.W.6), none of the injury were such, which can be caused by farsha or knife rather the injury were lacerated or abrasion which are simple in nature caused by lathi and iron rod and under such vital contradictions in the deposition and the injury report, the false implication of the appellant cannot be ruled down. The learned counsel has further submitted that from perusal of the fardbeyan, it is apparent, that informant 12 has shown suspect with respect to 3 persons who came on 27.09.2000 and 28.9.2000 for breeding their cow but the case has been instituted against unknown and the investigating officer has apprehended one of the accused Gujra Karmali regarding whom the informant was very clear in his First Information Report and Testimony of the informant has no credential, worth to accept as a legal material against the appellant.
26. Learned counsel for the appellant has submitted that benefit of doubt may be granted in favour of the appellant as the appellant has not identified the accused in the Test Identification Parade nor any injury as mentioned in the fardbeyan by the informant are consistent with deposition of the doctor corroborating the Exhibit 2 issued by P.W. 6 (doctor) and as such conviction of the appellant under Section 394 and 397 of the Indian Penal Code cannot sustain in the eyes of law.
27. Mr. Pankaj Kumar, learned Additional Public Prosecutor has submitted that the impugned judgment of conviction requires no interference of this Hon'ble Court but has fairly submitted that it is true from perusal of the record, that Test Identification Parade was conducted and the witness P.W. 3 and P.W. 4 have admitted during cross examination that they were put for Test Identification Parade but they could not identify the accused present there along with other persons. The learned counsel has fairly submitted the judgment passed by the Hon'ble Supreme Court is binding upon this Court but has prayed that the impugned judgment of conviction and order of sentence may be affirmed by this Hon'ble Court. The State Counsel has refuted the allegation made by the learned counsel for the appellant that non-examination of some of the witnesses like Sonam Kumari is fatal for the prosecution as prosecution has been able to prove the case against the appellant even without examining those persons.
28. After hearing the counsel for the appellant and counsel for the State and on perusal of the record, this court is of the opinion that P.W. 1 and P.W.2, both, wife of the informant Jagdish Turi have given contradictory statement from the fardbeyan. The deposition of Krishna Kumar (P.W. 3) and Jagdish Turi (P.W. 4) as the informant, has never stated in the fardbeyan or his examination as P.W. 4 or examination of Krishna Kumar (P.W.3) that the lady members fled away from the house to raise hulla for calling the neighbours for rescue. Apart from this P.W.1 and P.W.2 have never claimed to identify the accused persons nor identified the accused present in the dock. P.W. 3 Krishna Kumar being a child has appeared in the Test Identification Parade on 16.10.2000 but has not identified the accused Gujra Karmali, who was standing with 9 persons in the 13 Test Identification Parade rather wrongly identified other person, who is not suspect of the present case and it is obvious that any witness can point out towards the sole accused facing trial present in the dock as miscreant, who has committed dacoity. Similar is the statement of Jagdish Turi, informant of the case, who has been examined as P.W. 4. This witness is not reliable or trustworthy as this witness has stated that he has sustained serious injury caused by farsha, knife and iron rod, but from perusal of the injury report which has been marked Exhibit 2. All the five injuries are simple in nature and none of them can be attributed either caused by farsha or knife. Apart from this, this witness has also appeared in the Test Identification Parade conducted by the learned Judicial Magistrate on 16.10.2000 but has wrongly identified the person, who is not suspect of the present case and during Trial, the sole appellant who is facing trial was present in the dock and this witness has said that he is the person who has committed the offence and tried to mislead the court by saying that because of poor light during Test Identification Parade he could not identify the accused.
29. The learned court was not justified in accepting this submission as this witness who is the informant of the case has identified one person out of 10 person present in the Test Identification Parade but that person was not suspect of this case and as such the credential of the P.W. 3 is highly doubtful and it would not be proper to convict a person on the Testimony of such witnesses as his evidence deposed in the court is contrary to the material available on record such as Exhibit 2 and the Test Identification Parade which is already available on record. So far P.W. 3 is concerned (Krishna Kumar) who is son of the informant, he has also identified wrong person during Test Identification Parade and has identified the appellant who was alone in the dock. The judgment referred by the learned counsel for the appellant as reported in (2002) 7 SCC 295 in case of Dana Yadav @ Dahu & Ors. vs. State of Bihar and the judgment reported in 1998 (3) SCC 641 in case of Ronny @ Ronald James Alwaris and Ors. Vs. State of Maharashtra are applicable for the present case, as the substantive piece of evidence remains uncorroborated and thus relying upon such deposition of the witnesses for convicting a person without having any corroborative evidence is unjustified.
30. This court is of the opinion for the aforementioned reason, the appellant is entitled for benefit of doubt. Thus the impugned judgment of conviction dated 17.12.2003 and order of sentence dated 19.12.2003 passed by 5 th Additional Sessions Judge, Bermo at Tenughat in S.T. Case No. 63 of 2002 in G.R. No. 770 of 2000 corresponding to Peterwar P.S. Case No. 110 of 2000 is set 14 aside and the appellant Gujra Karmali is acquitted of charge u/s 394 and 397 I.P.C. and the appellant who is on bail is discharged from liability of his bail bond.
31. The present Appeal is allowed.
32. Let the lower court record be sent down to the court below.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated the 25.04.2018 Pallavi/