Jharkhand High Court
Karu Mian vs The State Of Bihar (Now Jharkhand) on 2 May, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:13389-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B) No.6 of 1999 (R)
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[Against the Judgment of conviction dated 16.12.1998 and Order of sentence dated 18.12.1998 passed by learned 5th Additional Sessions Judge, Giridih, in Sessions Trial No.263 of 1995]
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Karu Mian, son of late Bandhan Mian, resident of village Dharampur, P.S. Dhanwar, District Giridih ......... ... Appellant Versus The State of Bihar (Now Jharkhand) ..... Respondent
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PRESENT HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Akhouri Avinash Kumar, A.C For the State : Mr. Pankaj Kumar Mishra, A.P.P
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Order No.33/Dated: 2nd May, 2025
1. The instant appeal is directed against the Judgment of conviction dated 16.12.1998 and order of sentence dated 18.12.1998, passed by learned 5th Additional Sessions Judge, Giridih, in Sessions Trial No.263 of 1995, arising out of Birni P.S. Case No.38 of 1994 (G.R. Case No.728 of 1994) registered under Section 396 of the Indian Penal Code by which the appellant has been convicted under section 396 of the Indian Penal Code (IPC) and has been directed to undergo rigorous imprisonment for life.
2. It needs to refer herein that although the appeal has been preferred by Mr. Shree Niwas Roy, learned counsel, but, as would be evident from the order dated 23.11.2023, Mr. Akhouri Avinash Kumar, learned counsel, has been appointed as Amicus Curiae. Factual Matrix
3. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems
-1- Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB it fit and proper to refer the background of institution of prosecution case.
4. The prosecution story in brief as per the allegation made in the First Information Report reads hereunder as :-
5. According to prosecution case, in short, is that one Nandlal Sao @ Panehu Sao has lodged a fardbeyan on 9.5.1994 stating therein inter alia that on the last night at 11.30 P.M., they went for sleeping but he was talking with his wife Tipani Devi in his room. In the meantime, he heard sound of hammer on the door, on which he raised hullah, but two miscreants entered into the house and caught hold of him and taken him out in the angan(courtyard) and thereafter 8-10 dacoits came in the angan and one of the dacoits assaulted him on eyebrow by knife and they have looted away various articles.
6. It has also been alleged that 3 dacoits entered into the room of Mosamat Sita and also looted away articles. They also entered into other rooms and looted away articles. He has also stated that when the villagers came for his rescue, one of the dacoits threw 3-4 bombs which caused injuries to Mitlal Sao and he died there. Thereafter, the accused persons fled away.
7. On the basis of the statement of the informant, FIR being Birni Police Station Case No. 38/1994 was registered against the unknown under Section 396 of the Indian Penal Code and thereafter police after investigation has submitted charge-sheet against accused Karu Mian under Section 396 I.P.C.
8. After cognizance of the offence, the case was committed to the Court of Sessions. Charge under Sections 396 of the IPC was framed
-2- Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB to which the accused person pleaded not guilty and claimed to be tried.
9. The prosecution has altogether examined 07 witnesses, namely, P.W-1 Etwari Sao,, P.W-2 Sita Devi, P.W- 3 Nandlal Sao, (informant), P.W-4 Sheo Dhyan Singh (Judicial Magistrate who held T.I Parade), P.W-5 Srikant Singh,Investigating Officer (I.O), P.W-6 Dr. B. P. Singh and P.W-7 Arvind Upadhaya.
10. The Defence has examined one witness, i.e. clerk of the Giridih Jail in support of his case.
11. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused person, found the charge levelled against the appellant proved beyond all reasonable doubts. Accordingly, the appellant had been found guilty and convicted for the offence punishable under Section 396 of the Indian Penal Code.
12. The aforesaid judgment of conviction and order of sentence is subject matter of instant appeal.
Submission of the learned Amicus Curiae for the appellant:
13. Mr. Akhouri Avinash Kumar, learned counsel, has argued the matter at length and has submitted that the impugned Judgment of conviction and Order of sentence, passed by the trial court cannot be sustained in the eyes of law.
14. The following grounds have been taken by the learned Amicus Curiae for the appellant in assailing the impugned judgment of conviction:
(i) It is a case where only on the basis of the sole evidence of identification of the appellant in Test Identification Parade (TIP),
-3- Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB the conviction under Section 396 of the IPC has been inflicted.
(ii) It has been contended that even the said TIP cannot be said to be a corroborative piece of evidence to connect the culpability said to be committed by the appellant in commission of crime.
(iii) The argument has been advanced that although the identification said to be made in the TIP was not referred in the First Information Report (FIR), but, the P.W.-2 and P.W.-3 have deposed in course of examination that they have identified the appellant, particularly, the P.W.-3 has deposed to have identified the appellant in TIP, even though, as per the Investigative Officer (I.O.), before whom the statement was given by the witnesses at the time of recording of the statement under Section 161 Cr.P.C., that all the accused persons were covered their faces with the cloth. Hence, identification of this appellant in the TIP by the P.W.3 is doubtful and not fit to be relied upon.
(iv) It has been contended that it has also come in the testimony that on the date of the occurrence it was dark night and the P.W.-3, namely, Nandlal Sao, particularly, who has said to have sustained injury, has deposed that he has identified the appellant in TIP on the basis of mark of small pox on the face of the appellant. The question has been raised that such identification of the appellant on the basis of the marks of small pox in a case where the I.O has deposed that all the accused persons have been said to be covered their faces with the cloth.
Hence, identifying the sole appellant is not accepted to be
-4- Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB believed and as such, the testimony of P.W.-3 is lacking the trustworthiness which is the basis of the conviction of the present appellant in the present case.
(v) It has been argued that the P.W.-2, in her cross- examination, has deposed that she was having cataract in the eyes and as such, her identification said to be made upon the appellant in the dark night is also doubtful and as such, not credible evidence to be accepted by the learned trial court.
(vi) Mr. Akhouri, learned Amicus Curies, has relied upon the judgment passed by the Hon'ble Apex Court in the case of Wakil Singh & Ors. Vs. State of Bihar, reported in 1981 (Supp) SCC 28, wherein the conviction on the basis of the identification in the TIP by the sole witness has been taken into consideration.
(vii) Learned Amicus based upon the aforesaid ground has submitted that the impugned judgment, therefore, suffers from error and as such, not sustainable in the eyes of law. Submission of the learned APP for state:
15. Per contra, Mr. Pankaj Kumar Mishra, learned Additional Public Prosecutor appearing for the State, while defending the impugned judgment has submitted that the conviction is based upon the testimony of the P.W.-2 and P.W.-3, who, according to the learned counsel for the State, have identified the appellant in the TIP.
16. It has been contended that all procedure, as has been settled to identify the culprit in the TIP, has been followed, and hence, the argument cannot be advanced that the said TIP suffers from suspicion and is not credible to be accepted.
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17. Learned APP, based upon the aforesaid ground, has submitted that the conviction since is based upon the testimony of the P.W.-2 and P.W.-3 supported by the Investigating Officer and hence, the impugned judgment cannot be said to suffer from an error. Analysis
18. We have heard the learned counsel for the parties and gone through the findings recorded by the learned trial court in the impugned judgment, as also the testimony of the witnesses available in the trial court record along with other exhibits, as available in the trial court record.
19. Since, the consideration upon the said TIP has been given by the learned trial court making the same as the basis of conviction, as per the testimony of P.W.-3, namely, Nandlal Sao, therefore, we have also gone through the document pertaining to TIP, which has been marked as Ext.-2,
20. This Court, therefore, needs to consider as to whether the facts of the present case, as per the evidence collected in course of trial, the prosecution has been able to prove the charge said to be proved beyond all reasonable doubt?
21. But, this Court before considering the aforesaid issue needs to refer herein the testimony of the witnesses.
22. The prosecution has altogether examined 07 witnesses, namely, P.W-1 Etwari Sao, P.W-2 Sita Devi, P.W- 3 Nandlal Sao, informant P.W-4 Sheo Dhyan Singh (Judicial Magistrate who held T.I Parade), P.W-5 Srikant Singh, Investigating Officer (I.O), P.W-6 Dr. B. P. Singh and P.W-7 Arvind Upadhaya. The defence has examined
-6- Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB one witness, i.e. Clerk of the Giridih Jail in support of his case.
23. P.W.-1, Etwari Sao, has stated in his examination-in-chief that at the time of occurrence, he was at Dabarsaini and on information came to Kalhajori and saw the dead body of Mitlal Sao and also saw the injury on the person of Nandlal Sao (Informant) and he was told about the occurrence. In his cross-examination he has stated that the night of occurrence was full of light.
24. P.W. 2 Sita Devi has stated in her evidence that she was sleeping along with her "Nati"(grandson) and Nandlal Sao (P.W.3) was sleeping with his wife Tipni Devi. In the meantime, she heard hullah of "Chor-Chor" and the miscreants entered into her room by breaking open the door and snatched away gold earring and nose pin and also taken away clothes and jewellery.
25. She had further testified that they have also assaulted his "Nati" (grand-son) by Chhura and the dacoits have also entered into other rooms and taken away jewellery and clothes and his son Nandlal Sao was also assaulted by dacoits and dacoits were 10-12 in numbers and on hulla the villagers came, on which dacoits exploded bomb which caused injuries to Mitlal Sao due to which he died at the spot.
26. This witness has identified the present appellant in court but could not tell his name. In her cross-examination she has stated that she has not gone in TIP. In para-8 she has stated that the night of occurrence was dark and accused persons have put off the lantern. In para-10 she has stated that at the time of occurrence she has Motiayabind (cataract) and she has not operated it upon.
27. P.W.-3, Nandlal Sao, is the informant of the case and he has
-7- Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB stated that in the night of occurrence two dacoits entered into his room and caught hold of him, in the meantime, 8-10 dacoits also entered and they have assaulted him by knife over his eyebrow due to with he became unconscious and thereafter, the accused persons have looted away articles from his room.
28. He has also stated in para-3 that the dacoits have also committed dacoity in the room of other family members and on hulla when the villagers came, the dacoits exploded bomb which caused injury to his cousin brother Mitlal Sao and he died at the spot. This witness has identified the accused in the dock and also stated in para- 6 that he has also identified this accused in the T.I. Parade. In para-9 of the testimony he has stated that he was assaulted for 5 minutes and thereafter he became unconscious.
29. P.W.-4, Sheo Dhyan Singh, is the Judicial Magistrate, who has conducted the T.I Parade and he has stated in his evidence that as per order of the learned Chief Judicial Magistrate, he has conducted the T.I. Parade and he has stated that the T.I.P was conducted at Giridih Jail. He further testified that present appellant and Khiro Rabidas and nine others persons having similar physique and complexion were also placed along with each of them.
30. He has proved the T.I. Parade chart as Ext.-2. In para-3 he has stated that the witness Nandlal Sao (P.W.3) has identified one of the miscreants and stated that he has caught his mouth. He has not identified Khiro Rabidas. He has further stated that in para-9 that nine accused persons were placed along with the suspect. In para-11 he has stated that accused person (appellant herein) has sign of pox and as
-8- Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB such he was mixed with other persons having pox sign.
31. P.W.-5, Srikant Singh, is the Investigating Officer (I.O) of the case and he has stated that he has recorded the fardbeyan of Nandlal Sao and prepared the Inquest report of Mitlal Sao and sent the injured to the hospital and tried to send the dead body for postmortem but the villagers put hurdles and as such he informed the superior officers and thereafter he has prepared seizure list.
32. In para-9 of his examination in-chief he has given detail about the place of occurrence and he has stated that broken lock was produced. He has also stated in para-9 that he has found much quantity of blood near the dead body and also found one live bomb near the house. In para-12 he has stated that he has sent the dead body for postmortem and on 14.5.1994 he was transferred. He has proved para 51 and 55 of the case diary in his cross-examination as Exts.-A and B.
33. P.W.-6 Dr. B. P. Singh has conducted the post-mortem examination on the dead body of Mitlal Sao and he has clearly stated in his evidence that the deceased had one lacerated wound on skull 6"
x 3" bone deep associated with commuted fracture of frontal, parietal and temporal bone of skull left side and the skin surrounding wound was blacken signing of hair was present and multiple minute abrasion with blackening of surrounding skin of cheek left side was present. He has further stated that injuries were ante-mortem in nature caused by explosive substance like bomb blast and cause of death was head injury. He has proved carbon copy of postmortem report as Ext.-5.
34. P.W.-7, Arbind Upadhyaya, is also the Investigating Officer (I.O) of the case and he has stated that he has taken over charge of this
-9- Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB case on 18.5.1994. In para-3 he has stated that he has arrested suspect Karu Mian(present appellant) and Khiru Rabidas and on 21.06.1994 he sent information to the informant to participate in the T.I.P. and thereafter prayed for deputation of the Magistrate for the T.I.P before the Chief Judicial Magistrate and from the perusal of the T.I.P CHART it appears that the informant has identified Karu Mian and thereafter charge-sheet was submitted against Karu Mian(present appellant).
35. After the prosecution evidence was closed the accused was examined under Section 313 Cr.P.C and the accused Karu Mian (present appellant) has stated in his statement that he was kept at the police station and police got him identified by the witnesses at police station.
36. On behalf the defence one witness was examined, who is a Clerk of the Giridih Jail and he has stated that from register dated 7.6.1994 it appears that entry with respect to accused Karu Mian(present appellant) is there at serial no.1783 dated 7.6.1994 and in the register there are column of mark of identification and in that column it is written about accused Karu Mian that there is a pox mark over the face and till over left chest. As the jail register was public document the same was marked as Ext.-A.
37. It is evident from the record that the charge has been framed under Section 396 IPC. The learned trial court, on consideration of the testimony of the P.W.-2 and P.W.-3, who have said to be identified the appellant in TIP, marked as Ext.-2, as also the testimony of the doctor, who has been examined as P.W.-6, and the Investigating Officer, who has been examined as P.W.-7, has passed the impugned judgment of
- 10 - Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB conviction holding the appellant guilty of the offence committed under Section 396 of the Indian Penal Code and directed him to undergo rigorous imprisonment for life.
38. This Court, before proceeding further, needs to refer herein that the legal proposition in connection with the Test Identification Parade.
39. It needs to refer herein that the facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence.
40. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure.
41. The Hon'ble Apex Court in the case of Sampat Tatyada Shinde v. State of Maharashtra, (1974) 4 SCC 213 has observed that
- 11 - Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB the evidence of test identification is admissible under Section 9 of the Evidence Act; it is, at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in Court regarding identification of the accused as the doer of the criminal act. For ready reference the relevant paragraph of the aforesaid order is being quoted as under:
16. The evidence of test identification is admissible under Section 9 of the Evidence Act; it is, at best, supporting evidence. It can be used only to corroborate the substantive evidence given by the witnesses in Court regarding identification of the accused as the doer of the criminal act.
The earlier identification made by the witnesses at the test identification parade, by itself, has no independent value. Nor is test identification the only type of evidence that can be tendered to confirm the evidence of a witness regarding identification of the accused, in Court, as the perpetrator of the crime. The identity of the culprit can be fixed by circumstantial evidence also.
42. Further, it needs to refer herein that there cannot be any conviction on any conjuncture, surmises and presumption rather the accusation is said to be proved beyond all reasonable doubts.
43. The Hon'ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, as has been held in the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454, wherein, at paragraph-22, it has been held as under:-
"22. The amount of doubt which the Court would en- tertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all
- 12 - Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB concerned. At the same time we remind ourselves of the time-tested rule that acquittal of a guilty person should be preferred to conviction of an innocent person. Un- less the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really en- tertain doubt about the involvement of the appellants in the crime."
44. Likewise, the Hon'ble Apex Court in the case of Krishne- gowda & Ors. Vrs. State of Karnataka, reported in (2017) 13 SCC 98, has held at paragraph-26 as under:-
"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic princi- ple of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."
45. Further, it is the settled proposition of law that if the result of cross-examination of prosecution witnesses, accused could establish the probability of his defence and if probability was established by accused, it would really entitle him to the benefit of doubt, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Bhikam Saran Vrs. State of U.P., reported in (1953) 2 SCC 560, wherein, at paragraph-16, it has been held as under:
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"16. It is significant to observe that the appellant led no evi- dence in defence but merely relied upon the evidence of the prosecution witnesses in order to establish his defence. He had not to affirmatively establish his defence in the manner in which the prosecution had to establish its case. If as the result of his cross- examination of the prosecution witnesses he could establish the probability of his defence it was enough for his purposes, because if such a probability was established by him it would really entitle him to the benefit of the doubt insofar as such probability would prevent the prosecution case being established beyond reasonable doubt."
46. Further, the principle of 'benefit of doubt' belongs exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana Vrs. Bhagirath & Ors., reported in (1999) 5 SCC 96, wherein, it has been held at paragraph-7 as under: -
"7. The High Court had failed to consider the implica- tion of the evidence of the two eyewitnesses on the com- plicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution".
Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is al- ways desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal
- 14 - Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB trial. Benefit of doubt is not a legal dosage to be ad- ministered at every segment of the evidence, but an ad- vantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt re- garding the guilt of the accused."
47. Likewise, the Hon'ble Apex Court in the case of Krishne- gowda v. State of Karnataka (Supra) at paragraph- 32 and 33 has held as under:-
"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.
33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.---"
48. It is also settled that there cannot be conviction on the basis of conjecture and surmises and if the two views are possible, then the benefit of doubt is to be given to the accused person. The reference in this regard is made to the judgment.
49. It needs to refer herein that the Hon'ble Apex Court, in the case of Allarakha K. Mansuri v. State of Gujarat reported in (2002) 3 SCC 57 has laid down the principle that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, for reference, paragraph 6 thereof requires to be referred herein which reads hereunder as :-
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"6. ------The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. --"
50. It needs to refer herein before laying down the aforesaid view, the Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has already laid down the same view at paragraph 163 which is required to be referred which read hereunder as "163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.---"
51. In the backdrop of the aforesaid settled position of law, this Court is now proceeding to examine the legality and propriety of the impugned judgment in order to consider as to whether the learned trial court has found any material evidence to come to the conclusion of proving the charge said to be proved beyond all reasonable doubt.
52. It is evident from the findings recorded by the learned trial court that the testimony of the P.W.-2 and P.W.-3, particularly, P.W.-3, who has identified the appellant in TIP, has been taken in to consideration and based upon that order of conviction against the present appellant has been passed, therefore, once again the testimony of P.W.-2 and P.W.-3 are being reiterated herein-below.
53. P.W. 2 Sita Devi has stated in her evidence that she was
- 16 - Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB sleeping alongwith her "Nati" and Nandlal Sao was sleeping with his wife Tipni Devi. In the mean time she heard hullah of "Chor-Chor"
and the miscreants entered into her room by breaking open the door and snatched away gold earring and nose pin and also taken away clothes and jewelry. They have also assaulted his "Nati" (grand-son) by Chhura and the dacoits have also entered into other rooms and taken away jewellery and clothes and his son Nandlal Sao was also assaulted by dacoits and dacoits were 10-12 in numbers and on hulla the villagers came, on which dacoits exploded bomb which caused injuries to Mitlal Sao due to which he died at the spot.
54. This witness has identified the appellant/ accused Karu Mian in court but could not tell his name. In her cross-examination she has stated that she has not gone in TIP. In para-8 she has stated that the night of occurrence was dark and accused persons have put off the lantern. In para-10 she has stated that at the time of occurrence she has Motiayabind (cataract) and she has not operated it upon.
55. It is evident from the testimony of P.W.-2 that she has deposed that she has witnessed the commission of crime. She has further deposed that all persons have entered into the house by breaking the door and assaulted her son, namely, Nandlal Sao, P.W.-3. She has also disclosed that altogether 10-12 persons were present at the time and also hurled bomb to which her brother-in-law sustained injury and subsequently he succumbed to injury. She has deposed in her cross- examination that she had not gone for identification of the accused persons in TIP.
56. She had also disclosed that the night of the occurrence was a
- 17 - Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB dark night. She has further stated that the accused persons have have put off the lantern. She has also stated that she was suffering from cataract. She has further stated that she had seen all the accused persons and all were black.
57. From the testimony of the P.W.-2 that it is not evident therefrom that she will be said to have seen the accused persons in committing crime. She had categorically stated that the night of occurrence was dark night and the miscreants had not allowed lantern at the place of occurrence, therefore it was not possible to see the face of miscreants clearly. Further, she has also not gone for TIP.
58. P.W.-3, namely, Nandlal Sao, son of P.W.-2, who has said to have sustained injury, as per the version of P.W.-2, namely, Sita Devi, but there is no such injury report available on record. The said P.W.-3, who has said to have identified the appellant in TIP, has deposed at the time of TIP that altogether 16-17 persons were there and he immediately, i.e. in one chance, had identified the appellant. He has further deposed that the appellant was having small pox marks on the face.
59. The P.W.-4, namely, Sheo Dhyan Singh, learned Judicial Magistrate, before whom the TIP was conducted, has deposed that altogether 9 suspected persons had been presented at the time of conducting TIP. He has deposed in para - 11 on the question that as to whether marks of the small pox on the face of the accused persons were there or not? Then, he, in response, has deposed that in the TIP if the accused was having the marks of small pox then, certainly the other persons must be having with the marks of small pox over the
- 18 - Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB face.
60. The P.W.-5, the Investigating Officer, has deposed while reiterating the statement which was recorded in course of investigation under Section 161 of the Cr.P.C of the informant, and Sita Devi, P.W.- 2 and they have disclosed that all the accused persons were having covered their face with the cloth.
61. Thus, on the basis of that it is apparent that identification of the present appellant is full of doubt, hence cannot be relied upon.
62. But the learned trial court based upon the identification of the appellant in TIP by the P.W.-3, has convicted the appellant by coming to the conclusion that testimony of P.W.3 is being corroborated from the testimony of P.W.-2, P.W.-4, the I.O P.W.-5 and the doctor, P.W.-6, who has examined the victim.
63. Thus, it is evident that the sole basis of conviction has been taken into consideration by the learned trial court is the identification of the appellant in TIP and the P.W.-3 has identified the appellant on the basis of the small pox marks over the face, i.e the sole evidence said to be attributed against the appellant made the basis of conviction.
64. The law as has been referred herein-above that in order to convict a person on the basis of TIP then utmost care is to be taken by the learned trial court and the same can only be taken on the basis of other corroborative piece of evidence to connect the culpability said to be committed by the concerned persons against whom the accusation has been made for commission of the crime.
65. As per the admitted case of the prosecution that on the basis of small pox marks over the face of the appellant, the P.W.-3 has
- 19 - Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB identified him. The said identification, which has been accepted by the learned trial court, according to our considered view, is contrary to the testimony of P.W.-5, who in specific word in para-33 has stated that the informant, and Sita Devi, P.W.-2 have disclosed that all the accused persons were having covered their face with the cloth, then the question arises herein that in the dark night having no light or lantern in the house, as has been stated by P.W.-2, who has deposed that she has also not identified miscreants rather she had only said that all the persons were black then how it was possible to identify the appellant/accused.
66. Even accepting the identification of the appellant in the TIP, but the procedure which has been referred in the deposition that altogether 16-17 persons have been brought for identification and among them the appellant has been identified by P.W.-3. But, the procedure for identification in the TIP to have circumspection and consideration of the accusation of a particular person against whom accusation has been made is to be considered by keeping the same in higher pedestal in the case of snatching the personal liberty as guaranteed under Article 21 of the Constitution of India.
67. Herein although, it has been deposed by P.W.-3 in cross- examination that altogether 16-17 persons have been produced for identification as per Ext.-2 all have been of the same height and same health, but, we, after going through Ext.-2, TIP Chart, have not found that there is any reference of the producing persons having with the marks of small pox in the face, therefore, the procedure which ought to have been followed by the prosecution for proving the charge, has
- 20 - Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB not been followed in strict sense.
68. Further, the P.W.-5 has disclosed that the informant, and Sita Devi, P.W.-2 have disclosed that all the accused persons were having covered their face with the cloth and even accepting that the accused persons, the appellant herein, was having with the marks of small pox even then, also there cannot be proper identification said to be there by P.W.-3.
69. We have considered the judgment of Wakil Singh (Supra) which has been relied on behalf of the appellant wherein, particularly, para - 5, the issue of conviction on the basis of TIP in a case of identification based upon the pox marks has been dealt with.
70. It is evident from the aforesaid judgment wherein the Hon'ble Apex Court has disbelieved the prosecution version of identification on the basis of pox marks over the face of the accused for the purpose of identification in TIP. For this purpose, para - 5 of the judgment Wakil Singh (Supra) is being referred here-in-below :-
"5.As regards the other two appellants viz., Sheobalak Singh and Kuppi Singh, the High Court seems to have committed a serious error of law in convicting these appellants. It has been established that so far as Kuppi Singh is concerned he undoubtedly had smallpox marks and was identified by as many as 6 witnesses-PWs. 2, 3, 5, 12, 13 and
15. The T.I. parade chart does not show that any person having small pox marks was mixed up with this accused at the time of the parade, nor does the T.I. chart show that any precaution for concealing the pox marks was taken. The trial Court rightly pointed out that in view of the pox marks, the mistake in identification could not have been excluded. The High Court did not agree with the reasoning of the trial Court because it construed the T.I. parade in a most technical fashion.
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It is well known that all T.I. parades contain a cyclostyled or printed certificate that necessary precautions have been taken, and the magistrate merely signs on the dotted lines. But that by itself, would not show for the purpose of proving a criminal charge that this precaution was actually taken, unless the Magistrate himself appeares as a witness and says what precautions were taken. Apart from endorsing the certificates, the magistrate who held the T.I. parade in this case does not state that he had taken any precaution to conceal the small pox marks appearing on the face of Kuppi Singh by mixing other persons who had some small pox marks. Furthermore, the very fact that even under the stress and strain of such a serious incident as the present one, as many as 6 witnesses identified Kuppi Singh without at all giving any kind of description of this accused, clearly shows that the witnesses identified him merely because of the pox marks. At any rate, here also the possibility of mistake in identification because of the pox marks cannot be reasonably excluded. For these reasons, therefore, we are unable to support the reasons given by the High Court for reversing the acquittal of Kuppi Singh also."
71. This Court after having discussed the aforesaid factual and legal issues and adverting to the impugned judgment has found that the learned trial court has relied fully upon the testimony of P.W.-2, P.W.-3, as also the testimony of the Investigating Officer and Doctor, who have been examined as P.W.-5 & P.W.-6, having treated to be the corroborative piece of evidence.
72. The acceptance of the evidence of P.W.-3 making the same basis of conviction solely on the ground of identification in TIP, but, while doing so the learned trial court has not taken into consideration the procedure which ought to have been followed by the prosecution
- 22 - Cr. Appeal (DB) No.6 of 1999 (R) 2025:JHHC:13389-DB for the purpose of conducting TIP.
73. So far as the finding recorded by the learned trial court that considering the testimony of I.O and Doctor to be corroborative piece of evidence, but, even the same cannot be said to be proper, since, the I.O. himself has stated in para - 33 that the informant (P.W.3), and Sita Devi, P.W.-2 have disclosed that all the accused persons were having covered their face with the cloth.
74. This Court considering the aforesaid infirmity in the impugned judgment, are of the view that the impugned judgment cannot be upheld.
75. Accordingly, the judgment of conviction dated 16.12.1998 and order of sentence dated 18.12.1998, passed by learned 5 th Additional Sessions Judge, Giridih, in Sessions Trial No.263 of 1995, arising out of Birni P.S. Case No.38 of 1994 (G.R. Case No.728 of 1994) registered under Sections 396 of the Indian Penal Code by which the appellant has been convicted under section 396 of the Indian Penal Code (IPC), are hereby, quashed and set aside.
76. Since the appellant is on bail, he is discharged from all the criminal liability, henceforth.
77. In the result, the instant appeal stands allowed.
78. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.
79. Mr. Akhouri Avinash Kumar, learned counsel, since has appeared as Amicus Curiae, let this order be communicated to the learned Member Secretary, JHALSA, Ranchi, for the purpose of remuneration to be paid to the learned Amicus Curiae as permissible.
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80. Pending interlocutory application, if any, stands disposed of.
(Sujit Narayan Prasad, J.) (Rajesh Kumar, J.) Jharkhand High Court, Ranchi Dated, the 2nd May, 2025 NAFR Ravi-Chandan/-/
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