Jharkhand High Court
Md.Firoz Alam vs State Of Jharkhand on 19 January, 2010
Author: Pradeep Kumar
Bench: Pradeep Kumar
Criminal Appeal No. 364 of 2002
With
Criminal Appeal No. 374 of 2002
With
Criminal Appeal No. 396 of 2002
(Against the judgment of conviction and order of sentence dated 04.06.2002 and
05.06.2002respectively passed by Shri A. Kumar, Additional Judicial Commissioner, F.T.C., Ranchi in Sessions Trial No. 364 of 1999).
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Munna @ Minbaj ........ Appellant (in Cr. Appeal No. 364 of 2002) Anil Malakar ........ Appellant (in Cr. Appeal No. 374 of 2002) Md. Firoz Alam ........ Appellant (in Cr. Appeal No. 396 of 2002)
-Versus-
The State of Jharkhand ......... Opposite Party
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Appellant (in Cr. Appeal No. 364 of 2002) : Mr. B.M. Tripathy
Appellant (in Cr. Appeal No. 374 of 2002) : Mr. Pradeep Kumar Nayak
Appellant (in Cr. Appeal No. 396 of 2002) : Mr. Indrajit Sinha
For the State (in Cr. Appeal No. 364 of 2002) : Mr. Tapas Roy, A.P.P.
For the State (in Cr. Appeal No. 374 of 2002) : Mr. Amaresh Kumar,
A.P.P.
For the State (in Cr. Appeal No. 396 of 2002) : Mr. I.N. Gupta, A.P.P.
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P R E S E N T
THE HON'BLE MR. JUSTICE PRADEEP KUMAR
C.A.V. on 7.11 .2009 Pronounced on 19-1-2010
Pradeep Kumar, J.: Heard learned counsels for the petitioners and learned counsels for the State.
2. These three criminal appeals are arising out of the same judgment of conviction and order of sentence dated 04.06.2002 and 05.06.2002 respectively passed by Shri A. Kumar, Additional Judicial Commissioner, F.T.C., Ranchi in Sessions Trial No. 364 of 1999, by which order he found the appellants Munna @ Minbaj, Anil Malakar and Md. Firoz Alam have found guilty under Section 395 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for ten years. He separately found the accused Md. Firoz Alam guilty under Section 397 of the Indian Penal Code and sentenced him to undergo separately for rigorous imprisonment for seven years and he also found him guilty under Section 27 of the Arms Act and sentenced him to undergo rigorous imprisonment for five years. He separately found the accused Md. Firoz Alam guilty under Section 412 of the Indian Penal Code, but since he was already sentenced under Section 395 of the Indian Penal Code, no separate sentence was passed against him.
3. It is submitted by learned counsel for the appellants that although it is a case of broad day light dacoity in the crowded Main Road, 2 Ranchi in the jewellery shop named as Tirupati Jewellers where two persons were fired upon and seriously injured by the dacoits and they claimed to identify the accused persons but none of the witnesses have identified the accused persons in Court and as such the conviction of the appellants under Section 395 of the Indian Penal Code is bad in law and fit to be set aside.
4. It is submitted by learned counsel for the appellants that the conviction of the appellants is solely on the basis of Test Identification Parade, which is not in accordance with law. He relied in a decision reported in 1998 Criminal Law Journal page 264 for the said proposition.
5. On the other hand, learned counsel for the State has opposed the prayer and submitted that the above relying does not stand in the above case, since in this case Test Identification Parade is corroborated by the self inculpatory confession of the accused leading to recovery, which prove beyond doubt that the two appellants committed broad day light dacoity and caused grievous injury to the shop owner and his friend and as such the conviction is proper and requires no interference by this Court.
6. After hearing both the parties and after going through the evidences available on record, I find that the prosecution case was started on the basis of a fardbeyan given by Sandeep Banerjee, an employee of Tirupati Jewellers, Main Road, Ranchi before the Officer-In-Charge of Hindpiri Police Station, Ranchi on 11.11.1998, stating therein that he works as a sales man at Tirupati Jewellers, Main Road, Ranchi, whose owner is Paresh Mukherjee and Radha Arya. On that day at about 1.45 P.M. in the afternoon when he was standing on the counter, then a pair of husband-wife with their child in their lap came inside the shop and wanted to see some 'Jadau set', whereupon Paresh Mukherjee and Swaroop Mukherjee started showing different design of the set. Thereafter, a young man, aged about 30 years, white in complexion, about 5 ft. 7 inches tall entered into the shop with a pistol in his hand and threatened everybody to keep silent, when Paresh Mukherjee said as to what he is doing, then he asked to keep quiet and thereafter, four more persons entered with pistol in their hand, whereupon Pareshji asked to who are they and what they want, then they said they are the men of Anil Sharma. Then Pareshji said he knows Anil Sharma and he is in jail. Thereafter, one of the accused went and stationed himself on the gate and the other three went with pistol on the counter and started taking out ornaments from the showcase and keep it in a 'Jhola' and all the accused persons were 30-35 years of age. The third accused was about the age of 27 years. Subsequently, two more accused entered from the main road and three to the Jever Jewellers. They took out the wrist watch, golden ring from the hand of Paresh Mukherjee and also took Rs.2, 000/- from his pocket. One of the employees Swaroop Mukherjee went inside the strong room with a mobile but he was seen by the man and assaulted him from the But of the 3 pistol and snatched the mobile and stated that he will be killed within seven days. Then, they took all the ornaments kept in the showcase of the shop including 10-15 thousand rupees from the counter. At that time, Prem Prakash Arya, the owner of 'Jever Jewellers' shop stopped his car in front of the shop and wanted to come into the shop then Pareshji said him that don't come in because dacoity is going on and one of the accused wanted to take him inside the shop by force, but when he did not came inside another dacoit fired upon him and thereafter they started running away. Whereupon Paresh @ Nadu Babu caught hold of one of the dacoits and another dacoit fired in his stomach causing serious injury on his stomach. Thereafter, one of them exploded a bomb and ran away to Mallah Toli. Thereafter, the injured Prem Babu and Pareshji, who were seriously injured were taken to Raj hospital and from there they taken to Seva Sadan on the advice of doctors. It was heard that the accused person who had got a Maruti car bearing No. BR31A9842 standing on the Mallah Toli ran away from there along with the ornaments and other looted articles.
7. In course of investigation on the basis of the said F.I.R., police registered as case under Section 397 of the Indian penal Code and subsequently after recovery of some articles Section 412 of the Indian penal Code was also added and after investigation police submitted chargesheet in the case.
8. Since, the case was exclusively triable by the court of Sessions, learned magistrate after taking cognizance, committed the case to the court of Sessions and lastly the case was tried by Additional Judicial Commissioner, F.T.C., Ranchi as aforesaid, who found the appellants guilty and convicted them there under as aforesaid.
9. It appears that in course of trial, prosecution has examined as many as 15 witnesses and has also proved the seizure list as Ext.2, seizure of fire bullet from the shop as Ext.4, recovery of the theft article from the house of accused Firoj Alam at Sabji Baag, Pir Baho, Patna, seizure of gold ornaments and other things from the house of Kallu Mian from the room of his tenant Sallaudin, the injury report of injured Paresh Mukherjee and Prem Prakash Arya as Ext.4 and 4/1. The prosecution has also proved the T.I. Parade of ornaments as Ext.6 and T.I. Parade of the accused as Ext.7. The prosecution has also proved the confessional statement of the accused Firoj Alam as Ext.15 wherein he confessed that the part of looted ornaments he has kept in his house and some ornaments were kept in the house of Kallu Mian at Ranchi and oter ornaments were recovered from his house also i.e. the house of Kallu Mian.
10. To prove the charges, prosecution has examined 15 witnesses including P.W.1, Tahera Khatoon, P.W.2, Sandeep Banerjee, P.W.3, Swarup Mukherjee, P.W.4, Nabin Khalkho, P.W.5, Md. Reyaz Alam, P.W.6, Janki Nath Mukherjee, P.W.7, Aloke Kumar Srivastav, P.W.8, Nazirul Haque @ Kallu Mian, 4 P.W.9, Paresh Mukherjee, Proprietor of the shop, P.W.10, Dr. Shyam Sundar Narnoli, P.W.11, Prakash Kumar, P.W.12, Md. Nasim, P.W.13, Yatindra Prasad, Executive Magistrate, who conducted T.I. Parade of ornaments, P.W.14, Isratullah, Judicial Magistrate, who conducted the T.I. Parade of accused persons and P.W.15, Indrasan Choudhary, I.O. of the case.
11. After going through the prosecution witnesses, it appears that P.W.1, Tahera Khatoon turned hostile and did not support the evidence given by her u/s 164 Cr.P.C. before the Magistrate and she denied that she never stated before the Magistrate that police raided her house then she gave the ornament kept in Ranchi by the accused Munna and Kallu of Jahanabad. He has also not stated that in a blue jhola with the accused persons she has stated that the jhola was full of gold and silver ornament and her Dever Mister had stated that "give this jhola to Kallu when he comes".
12. P.W.2, Sandeep Banerjeee is he informant of the case, who has stated that docoity took place on 11.9.1998 In Tirupati Jewellers in Ranchi where he works and at that time his owner-employer, Paresh Mukherjee was present in the shop. One husband and wife came there and asked him to show some golden sets. When Paresh Mukherjee started showing the golden sets then one boy aged about 28-30 years entered with revolver and asked them to sit down below the counter otherwise he will kill them. Subsequently, 3 / 4 more boys entered the house, then the said husband and wife went away. All the four accused had jhola in their hand. Then they firstly took the golden 'kara' from the hand of Paresh Mukherjee and Rs.2000/- from his pocket and watch. Thereafter, they took all the ornaments kept in the show case of the counter. Suddenly, Prem Prakash Arya of neighbouring shop, "Jewer Jeweller" went to enter the shop. Then Paresh Mukherjee told him not to come since, docoity was going on. One of the accused tried to pull him inside the shop by force, but when he did not came inside another docoit fired upon him and he became injured. Then the docoits ran away. Paresh Mukherjee caught hold of one docoit then another docoit fired upon him also. He also become injured. The docoits ran away. Both injured were taken to Raj Hospital where after giving first aid they were send to Nagarmal Modi Seva Sadan, where they were treated. The Officer - In charge of Hindipiri police station came to the hospital to whom he gave his statement. The statement-F.I.R. Is exhibited as Ext.1. He has stated that he he is able to identify 1 / 2 accused by face. When the ornaments were recovered, he identified the ornaments also. During the test identification parade, he has identified one accused. But, he stated in the court that since, long time has elapsed, he cannot identify any of the accused.
13. P.W.3, Swarup Mukherjee has also supported the factum of the docoity in the shop committed by 4 un-known docoits on 11.9.1998 and stated that by running away the docoits thrown one bomb which was seized by the 5 police and he had put his signature under Sutli, khakhi etc which was recovered. He has stated that he had identified the recovered articles belonging to the shop and during test identification parade he has not identified any accused and today also he cannot identify any of them.
14. P.W.4, Nabin Khalkho, another employee of the shop has also proved the factum of docoity and also the fact that ornaments were recovered. During investigation, he has also identified the accused during test identification parade, but fail to identify any of the accused standing in the court.
15. P.W.5, Md. Reyaz Alam has only proved his signature on the seizure list marked as Ext. 2. In his cross examination, he has stated that nothing was seized in his presence.
16. P.W.6, Janki Nath Mukherjee, Cashier of Tirupati Jeweller has also supported the prosecution case and stated that he had not identified any of the docoit during the commission of docoity.
17. P.W.7, Alok Kumar Srivastava was also declared hostile and said nothing in favour of the prosecution.
18. P.W.8, Nazirul Haque @ Kallu Mian has proved his signature on the seizure list marked as ext. 3 and stated that nothing was recovered in his presence.
19. P.W.10, Dr. Shyam Sundar Narnoli has proved the injury caused to the injured P.W.9 and another injured, Prem Prakash Arya.
20. P.W.11, Prakash Kumar is the witness of seizure. He has proved his signature in the seizure list and stated that nothing was recovered in his presence.
21. P.W.12, Md. Nasim is the seizure list witness who has proved his signature marked as Ext.2/4. He had stated that nothing was recovered in his presence.
22. P.W.13, is the Executive Magistrate , Yatindra Prasad, who has proved he seizure of the ornaments and its identification during T.I.P. Of articles.
23. P.W.14, Isratullah, Judicial Magistrate, who has proved the T.I.P. Of the accused persons.
24. P.W.15, Indrasan Choudhary, Investigating Officer of the case has also proved the T.I.P. Of the accused persons marked as ext. 10.
25. Thus, from the evidences as discussed above, I find that the prosecution has proved beyond reasonable doubt that a docoity was committed in the jewellary shop namely M/s Tirupati Jewellers on the main road, Ranchi on 11.9.1998 at about 1.45 P.M. In which the ornaments were looted from the shop and when the owner of the shop caught hold of one of the accused, he was fired 6 upon and injury was caused to him. It is also been ;proved beyond reasonable doubt that another shop owner Prem Prakash Arya , who wanted to enter the shop at the time of docoity was also fired upon and injury was caused to him. But, the major question is to be seen as to whether these appellants who have been tried by the trial court and convicted u/s 395 of the I.P.C can be charged fo the said offence or not. Moreover, appellant, Md. Firoz Alam, who has been seperately found guilty u/s 412 of the I.P.C as also u/s 397 of the I.P.C and 27 of the Arms Act is maintainable or not.
26. Learned counsel for the appellant has relied upon the judgment of the Patna High Court reported in "1998 Criminal Law Journal page 246 in the case of Ramadhar Thakur Vrs. State of Bihar" wherein it has been held by the Hon'ble Patna High Court o the basis of the judgment of Hon'ble Supreme Court reported in " 1972 SCC page 283" where in it was held that "the substantive evidence is the statement of a witness in court and the purpose of test identification is to test that evidence the safe rule being that the sworn testimony of the witness in court as to identity of the accused who is a stranger to him, as a general rule, requires corroboration in the form of an earlier identification proceeding. If there is no substantive evidence about the appellant having been one of the docoits under T.I.P as against him cannot be of any assistance to the prosecution". On the basis of the said ruling the accused persons, who were, although identified during T.I.P., but since, the witness failed to identify them in the court which is substantive evidence are acquitted from the charge u/ 395 of the I.P.C. Subsequently, also the Patna High Court followed the same judgment in a case reported in "1998 Criminal Law Journal page 1042" .
27. In that view of the matter, since, in the instant case also learned trial court found all the appellants guilty only on the basis of their identification during T.I.P which is not in accordance with law as held by the Hon'b'le Supreme Court and also by the Patna High Court. Hence, the conviction of the appellants in absence of substantive identification in the court only on the basis of their identification in T.I.P is bad in law and fit to be set aside. Accordingly, the conviction of the appellants u/s 395 as also u/s 397 of I.P.C and 27 of the Arms Act is set aside and the appellants are acquitted from the charges leveled against them.
28. So far as the conviction of the accused Md. Firoz Alam u/s 412 of the I.P.C is concerned , it is maintained since, the ornaments were recovered as per the confessional statement of the accused Md. Firoz Alam and proved by the Investigating Officer in his evidence, subsequent recovery was made and seizure has been proved by the seizure list witnesses beyond reasonable doubt. As such, conviction of Md. Firoz Alam u/s 412 of the I.P.C is maintained. Since, no separate sentence was passed u/s 412 of the I.P.C, hence he is sentenced to 7 undergo R.I for 6 years and also directed to pay a fine of Rs. 2000/- and in default further sentence to undergo S.I for 2 months.
29. With the aforesaid change in the sentence, the conviction of the appellant Md. Firoz Alam is confirmed and all the other accused persons are acquitted from the charges and the appeal is accordingly, allowed in part.
30. Since, the conviction of the appellant, Md. Firoz Alam is maintained u/s 412 I.P.C, his bail bond is cancelled and the trial court is directed to issue warrant of arrest, non bailable against him for serving out the sentence.
(Pradeep Kumar, J.) Jharkhand High Court, Ranchi The 19th January /2010 A.K.M./N.A.F.R.