Jharkhand High Court
Hafiz Mian @ Hafij Ansari And Harihar Sao ... vs The State Of Jharkhand on 8 November, 2006
Equivalent citations: 2007CRILJ1986, [2007(2)JCR318(JHR)]
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
1. The appellants were tried and convicted for the offence under Section 395 of the Indian Penal Code by the VIth Addl. Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 126 of 1991 by order dated 31.8.1999 and each of them was sentenced to undergo imprisonment for a period of 10 years. Feeling aggrieved the appellants have preferred these appeals.
2. Facts of the case registered on the basis of the fard beyan of the informant Dost Mohammad (PW6) on 21.8.1989, is that on the previous night of 20.8.1989, the informant returned to his house and found his dog barking. While the informant was asking his brother Rustam the reason why the dog was barking, two persons came from behind and caught hold of him and brought him inside the court yard of the house and tied his legs and hands. The miscreants demanded money from the informant. The informant expressed that he had no money. Thereafter one of the miscreants brought a tin of kerosene oil from the house of the informant and poured it on the informant and lit a match stick threatening to burn the informant if the later did not reveal about his money. Meanwhile, the informant's father sneaked out from the back door of the house and raised alarms upon which several co- villagers came running. Seeing them, the miscreants fled away, but before that they had taken away several articles of the informant, and had also opened fire while retreating. The other members of the family of the informant informed him that the miscreants had earlier entered into the house and made them sit in the verandah in front of the room of Rustam and that the miscreants had taken away silver and gold ornaments, a wrist watch and cash amounting to Rs. 1350/- from the house and had also assaulted Rustam with the butt of the gun in course of committing the robbery. The informant also learnt that the dacoits had committed dacoity in the house of a co-villager Ram Lakhan Mahato and had taken away valuables also from his house besides assaulting Ramlakhan Mahato and his son namely Ashok Mahato with a lathi. All these three appellants were put on trial under Section 395 IPC on the aforesaid allegation.
Further case of the prosecution is that after, the appellants were arrested, they were put on test identification parade in course of which they were identified by the witnesses.
3. The appellants pleaded not guilty and preferred to be tried and the defence put forwarded on behalf of the appellants was that they were falsely implicated in the case because of previous enmity between informant and the appellant Harihar Sao.
4. At the trial, the prosecution examined altogether eight witnesses including the informant and other members of the, family of the informant who were the victims at the hands of the miscreants.
The trial court on considering the evidence on record had placed reliance on the testimony of the witnesses and also on the evidence that the witnesses had identified the appellants at the test identification parade as also at the time of the trial in the dork, as the persons who had committed the dacoity.
5. Assailing the judgment of conviction, learned counsel for the appellants has advanced several grounds including the ground of non examination of the investigating officer as having caused prejudice to the appellants in their defence, in as much as no explanation has come forward from the prosecution as to the delay of two months in holding the test identification parade and further more, the contradictions in the evidence of the informant and the witnesses since what they had stated before the investigating officer under Section 161 Cr.P.C. could not be brought on record. Learned counsel has further argued that the learned trial court has committed a serious error both on facts and in law leading to miscarriage of justice on account of placing reliance on the testimonies of the witnesses relating to the identification of these appellants at the test identification parade and also at trial, without taking into consideration the fact that the very holding of the test identification parade after lapse of more than two months from the date of the occurrence was bad and raised a serious doubt and reasonable suspicion that the features of the appellants namely Hafiz Mian and the appellant Ambika alias Amerika Mistry were made familiar to the witnesses prior to the holding of the test identification parade. Learned counsel further argued that no reliance could be placed on the identification made by the witnesses in the test identification parade, inasmuch as even according to the informant himself, on the date of the occurrence, it was dark and there was no sufficient source of illumination to enable any of the witnesses to see and identify the faces of the miscreants and furthermore, the witnesses have not stated as to the specific role played by the appellants whom they claim to have identified at the test identification parade. It is further submitted that from the evidence of the witnesses it would transpire that though some witnesses claimed to have identified the suspects at the test identification parade, they have failed to identify the present appellants in the dock at the trial. Likewise, though the prosecution has claimed that the informant and his family members were witnesses to the occurrence, the appellants at the test identification parade were not identified by all the witnesses. Rather, some of the witnesses had failed to identify the appellants both at the trial and the test identification parade. Furthermore, the witnesses themselves admitted that the dacoits had initially concealed their faces with galmocha and if it was so, the possibility of the witnesses having seen and identified the faces and features of the dacoits at the time of the occurrence becomes totally improbable and incredible and therefore the identification of these appellants in the test identification parade by the witnesses become tainted and not reliable. Learned counsel further adds that the trial court has failed to consider the above facts appearing in the evidence on record and has recorded his finding of guilt against these appellants without application of judicial mind.
6. Learned counsel for the State, on the other hand, has explained that the appellant Harihar Sao was earlier known to the informant from before the occurrence and therefore the informant has named the appellant Harhiar Sao as an accused in the FIR and likewise, members of his family who were examined as witnesses in the case have also identified Harihar Sao in the dock. Learned counsel adds that the identification of the remaining two appellants namely Hafiz Mian and America Mistry in the identification parade by some witnesses has also been confirmed by their identification by the witnesses in the dock.
7. From perusal of the judgment, it appears that the trial court has held the appellant guilty entirely on the basis of the identification of the appellants both in the test identification parade held in course of investigation of the case and later in the dock at the trial. However, since it is this identification made by the witnesses that has been seriously disputed by the appellants, a closer scrutiny of the evidence of the witnesses together with the test identification chart appears to be necessary.
8. Referring to the evidence of the witnesses, PW1 Ashok Mahato claims himself to be an eye witness to the occurrence. He. has claimed to have seen and identified two suspects who were put on the test identification parade, namely Alauddin Mian and Safi Mian. He does not appear to have identified any of the present appellants including Harihar Sao. Furthermore, his contention is that the dacoits had concealed their faces.
PW3 namely, Rustam Ansari, brother of the informant, is another eye witness. who claims to have identified amongst suspects three persons namely the present appellant Hafiz Mian and two others Safi Mian and Phul Mohammad. He admits that the appellant Harihar Saw was not known and as such he did not identify Harihar Sao in the dock also. He too confirms that the dacoits had concealed their faces.... Significantly, although he claims to have Identified Hafiz Mian in the test identification parade, but does not specify the role played by the appellants in course of the occurrence. He admits thatat the time of the occurrence, it was dark and admits that the test identification parade was held two months after the occurrence and claims to have seen faces of the persons identified in the light of a lamp (dhibri) burning inside the room. Interestingly, in his corss-examination he admits that he had identified the appellant Hafiz Mian on being told earlier by the Magistrate who had conducted the test identification parade about the said suspect.
PW4, Baijnath Mahato has not claimed to have identified any of these appellants, although he claims to have identified Safi Mian and Zannat Hussain, the other two suspects , at the test identification parade. He has not identified any of the present appellants at the trial. He too claims tha't the test identification parade was held after 1½ months of the occurrence.
PW5 Ram Lakhan Mahato has not identified any of the appellants at the test identification parade , nor has he identified them in the dock in course of the trial.
PW6, the informant has claimed that he attended the test identification parade on three occasions. He claims that he had seen and identified Harihar Sao at the time of the occurrence, but he does not specify the role played in the occurrence by the said appellant Harihar Sao. He admits that there was a litigation pending between him and the cousin of Harihar Sao in respect of money which the informant had owed to the latter. He claims that the appellant Harihar Sao is known to him since the latter is a resident of village Karnpura and is son of Vanarsi Sao.
9. It thus appears that the appellant Hafiz Ansari was identified by the solitary witness namely PW3 Baijnath at the test identification parade and subsequently in the trial. No other witness including the informant has identified the apepllant Hafiz Mian either at the test identification parade or in the trial. The appellant America Sao does not appear to have been identified by any witness in the dock.
10. The question of relevance is what is the value of the evidence relating to the identification of the appellant by the solitary witness PW3? The test identification in which PW3 had participated, was held two months after the occurrence, although the appellant Hafiz Mian was in custody much prior to the holding of the test identification parade in connection with another case. The prosecution has not offered any explanation for the delay in holding the test identification parade, since admittedly, all the witnesses were available at the village, The investigating officer could have possibly explained the delay, but he has not been examined. Further-more, if the evidences of PW1 1, 4 and 5 are taken into consideration, the dacoits, except two suspects namely Safi Mian and Alauddin had covered their faces. If it was so, the claim of identification of Hafiz Mian by PW3 becomes suspicious. Equally significant is the fact that no other witness belonging to the same family of the informant claims to have identified the appellant Hafiz Mian in the test identification parade or in course of the trial. In such circumstance, it would be too hazardous to place implicit reliance on the sole testimony of PW3 relating to the identification of Hafiz Mian, unless reliable corroboration is available to his evidence from any other source.
11. As regards the appellant Amrica Mistry, it appears that none of the witnesses have identified him at the trial and there is no reliable evidence on the point of his identification by the witnesses at the trial.
12. Thus, I find that the evidence on the point of identification in respect of the appellant Hafiz Mian and America alias Ambika Mistry are deficient and do not eliminate the possibility of doubt regarding prosecution's claim of their involvement in the occurrence.
13. As regards the appellant Harihar Sao, it is the informant who claims to have seen and identified him both at the time of the occurrence and subsequently in the dock at the trial. The informant explains that the appellant was known to him from before as being a resident of a neighbouring village and has also attributed specific overt-act against the said appellant in the FIR by stating that Harihar Sao had brought out kerosene oil from inside the house of the informant and poured on the informant threatening to set him on fire if the demanded money was not paid. It is significant to note that no other member of the informant's family has claimed to have identified Harihar Sao or even the other appellants from before, although it is the informant's own admission that there was a prior litigation pending between the informant and Harihar Sao over non payment of the loan amount which the informant had borrowed. It is also significant to note that though the informant has claimed that he was doused with kerosene oil by the appellant Harihar Sao, but none of the witnesses who are members of his family, have corroborated this statement or even claimed that they had seen the informant's clothes soaked in kerosene oil or even that the informant had revealed the name and identity of Harihar Sao to any of them at the time of the occurrence or even thereafter. It is also significant to note that according to PWs 1, 3, 4 and 5, all the dacoits excepting the two suspects namely Md. Safi and Allauddin had concealed their faces with galmocha. It is unlikely that the accused would commit dacoity in the house of known persons without taking care of concealing his face and identity . Thus, the evidence of the sole witness, namely the informant PW6 in respect of the alleged involvement of the appellant Harihar Sao cannot be considered as reliable in the absence of any corroboration from any other source. From the impugned judgment, I find that the learned trial court has not taken into consideration the above inconsistencies appearing in the evidence of the witnesses. The trial court has also failed to consider that the defence has suffered prejudice due to non-examination of the investigating officer.
14. For the aforesaid reasons, I find merit in these appeals, which deserve to be allowed. Accordingly, these appeals are allowed. The judgment of conviction and sentence of the appellants imposed by the trial court is hereby set aside and the appellants are acquitted of the charge under Section 395 of the Indian Penal Code.
The appellant Ambika alias Amerika Mistry is on bail. He is absolved from the liability of his bail bonds. The appellants Hafiz Mian @ Hafij Ansari and Harihar Sao are in custody. They are directed to be released forthwith, if not required in connection with any other case.