Jharkhand High Court
Anwar Ansari vs The State Of Jharkhand on 4 July, 2018
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 1552 of 2003
With
Cr. Appeal (S.J.) No. 1462 of 2003
With
Cr. Appeal (SJ) No. 1653 of 2003
With
Cr. Appeal (SJ) No. 1654 of 2003
With
Cr. Appeal (SJ) No. 1842 of 2003
With
Cr. Appeal (SJ) No. 185 of 2004
.....
(Against the judgment of conviction dated 22.09.2003 and order of sentence dated 23.09.2003, passed by learned Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 16 of 2002).
1. Anwar Ansari, son of Jasmuddin Mian, resident of village Tabar, police station Daltonganj, District- Palamau.
2. Lakhan Singh, son of Sohrai Singh, resident of village Kechaki, police station, Barwadih, District- Latehar.
.....Appellants [in Cr. Appeal (SJ) No. 1552 of 2003] Manoj Kumar Mehta, son of Shri Raj Kumar Mehta, resident of village Teliya Bandh, Chiyanki Rly. Station, P.S. Sadar, Daltonganj, District- Palamau.
..... Appellant [in Cr. Appeal (SJ) No. 1462 of 2003] Khurshid Ansari, son of Ulfat Ansari, resident of village Chianki, P.S. Daltonganj, District- Palamau.
..... Appellant [in Cr. Appeal (SJ) No. 1653 of 2003] Abdul Rashid @ Abdul Ansari, son of Shobrati Mian, resident of Chianki, P.S.- Daltonganj, District- Palamau.
..... Appellant [in Cr. Appeal (SJ) No. 1654 of 2003] Ushman Mian, s/o Late Md. Ali of village - Jhareva, P.S. Chainpur, District:
Palamau.
..... Appellant [in Cr. Appeal (SJ) No. 1842 of 2003] Ram Swaroop Singh, son of Hukum Singh, resident of village Gourmara, P.S. Manatu, District Palamau.
..... Appellant [in Cr. Appeal (SJ) No. 185 of 2004]
Versus
The State of Jharkhand .... Respondent (in all cases)
------
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
For the Appellant (s) : Mr. Anurag Kashyap, Advocate
(Cr. A. (SJ) No. 1552 of 2003)
Mr. Prem Chand Tripathi, Sr. Advocate
Ms. Nazia Rashid, Advocate
(Cr. A. (SJ) No. 1462 of 2003)
2
Mr. Santosh Kumar Tiwari, Advocate
(Cr. A. (SJ) No. 185 of 2004)
Mr. Md. Imtiyaz Khan, Advocate
(Cr. A. (SJ) No. 1653 of 2003/ Cr. A. (SJ) No. 1842 of 2003)
Km. Poonam Verma, Amicus Curiae
(Cr. A. (SJ) No. 1654 of 2003)
For the State : Mrs. Niki Sinha, APP
Cr. A. (SJ) No. 1552 of 2003, Cr. A. (SJ) No. 1462 of 2003,
Cr. A. (SJ) No. 1653 of 2003, Cr. A. (SJ) No. 1654 of 2003
Mrs. Vandana Bharti, APP
[Cr. A. (SJ) No. 1842 of 2003]
Mr. Rajneesh Vardhan, APP
(Cr. A. (SJ) No. 185 of 2004)
-----------
By Court:- The instant Criminal Appeals have been preferred against a common
judgment of conviction dated 22.09.2003 and order of sentence dated 23.09.2003, passed by learned Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 16 of 2002, whereby seven appellants have been convicted by the learned Trial Court for the offence punishable under Section 395 of the Indian Penal Code and appellant Ushman Mian (appellant in Cr. Appeal (SJ) No. 1842 of 2003) has further been convicted under Section 412 of the Indian Penal Code. The learned Trial Court has awarded rigorous imprisonment for seven years for offence committed under Section 395 of the Indian Penal Code and rigorous imprisonment for seven years to Ushman Mian for offence committed under Section 412 of the Indian Penal Code. Against the said impugned judgment of conviction and order of sentence, the present criminal appeals have been preferred before this Court, which are being disposed of by a common judgment.
2. The prosecution case as made out in the First Informant Report is based upon the fardbeyan of Abraham Tigga (P.W. 7), recorded by S.I. Ahmad Ali, officer-in-charge, Sadar P.S. on 19.09.2001 at 10.55 hrs., where the informant has alleged that in the night of 18.09.2001 at around 7.00 p.m. (19 hrs.), seven accused persons entered into his house from the western side and all the accused persons asked his son, whether guardian is available in the house or not? In the meantime, the informant returned from Daltonganj and since, the accused persons have seen the informant, they said 'lal salaam' and they have disclosed that "uncle we are partywala coming from Paanki and our commander has sent us before you for bringing Rs. 10,000/-", upon which the informant said that, from where he will get money, as the children are studying, upon which the accused person said that if you will not give us money, we will kidnap your son. When informant's son tried to go out of the house, the accused persons stopped him. One of the accused, short in height, took out the pistol, some of the accused persons have also went into the house of his neighbor, Vinay Toppo. All the accused persons, under the threat of pistol searched the entire house. The informant's sister-in-law, Irma 3 Tirkey was guest in the house of the informant. The accused persons have taken Rs. 3000/- from her box. Similarly they have taken Rs. 2500/- from the house of Vinay Toppo, one golden locket with pearl, along with one lady Titan golden watch, from the house of Vinay Toppo. All the accused persons were in the age group of 30-35 years, one of the accused was in the age group of 35-40 years. The accused persons were wearing pant-shirt and they have also turban and some accused were having shaved head. One of the accused was wearing jeans pant and banyan. One accused was healthy, dark in complexion having comparatively long moustache and hair, who seemed to be the leader of the group. All the accused persons have committed 'lootpat' in the house and subsequently fled away towards the West, to the Dam side. The accused persons have also taken their meal and while they were going, they have given threatening. The informant has identified the accused persons in the electrical bulb and claimed to identify them, after seeing them. Because of the late night, the informant did not informed the police. The accused persons conversed among themselves in hindi language.
3. On the basis of the fardbeyan, police instituted Sadar P.S. Case No. 303/2001 dated 19.09.2001 under Section 395 of the Indian Penal Code.
After investigation of the case, the police submitted final form, charge sheeting the accused vide charge sheet no. 171 of 2001 dated 24.12.2001 under Sections 395 of the Indian Penal Code and 412 of the Indian Penal Code against Ram Swaroop Singh @ Nagendra Singh @ Swaroop Singh, Lakhan Singh, Khurshid Ansari, Usman Mian, Manoj Mehta, Abdul Rashid @ Abul Ansari and Anwar Ansari.
The cognizance of the offence has been taken vide order dated 11.01.2002 and the case has been committed to the court of sessions vide order dated 16.01.2002.
4. The learned Trial Court framed the charge against all the seven accused persons under Section 395 of the Indian Penal Code on 26.04.2002 and further against Usman Mian under Section 412 of the Indian Penal Code on 26.04.2002.
5. The prosecution in order to prove its case has examined altogether 11 witnesses apart from the documentary evidences, which have been marked up to Exhibit- 1 to 7.
6. Tarcilla Tigga @ Tarcilla Minz, wife of the informant has been examined as P.W. 1, Indumati Toppo has been examined as P.W. 2, Irma Minz (sister-in-law of the informant) has been examined as P.W. 3, Bhatinda Toppo has been examined as P.W. 4, Samir Tigga has been examined as P.W. 5, Nirmal Bhengra has been examined as P.W. 6, Abrahim Tigga (informant of the case) has been 4 examined as P.W. 7, Siril Khusar has been examined as P.W. 8, Ahmad Ali (Officer-in-charge and investigating officer of the case) has been examined as P.W. 9, Prabhat Kumar Jha (Block Development Officer) in presence of whom the article were put up for test identification parade, has been examined as P.W. 10, Pradeep Kumar Chourasia (learned Judicial Magistrate in whose presence test identification parade of the accused has been conducted) has been examined as P.W. 11.
7. The written report bearing signature of the informant, Abrahim Tigga has been proved and marked as Exhibit- 1, fardbeyan of Abrahim Tigga has been proved and marked as Exhibit- 2, the confessional statement of accused, Ram Swaroop Singh has been proved and marked as Exhibit- 3, seizure list of all the article i.e. K.C. Pal & Sons lady folding umbrella, one handy jeevan sathi torch of two cells, Rs. 730/-, six piece of Rs. 50/-, three piece of Rs. 20/- and 37 piece of Rs. 10/- notes, out of which three 10 rupees notes were new, one titan lady watch, one Philips pocket radio (small) has been proved and marked as Exhibit- 4, test identification parade of the materials seized in the case has been marked as Exhibit- 5, test identification parade dated 23.11.2001 of the accused persons namely Ram Swaroop Singh, Abdul Rashid, Usman Mian, Manoj Mehta and Khursid Ansari conducted at Central jail, Daltonganj by the witnesses Abrahim Tigga and Sameer Tigga has been proved and marked as Exhibit- 6, test identification parade of Anwar Ansari and Lakhan Singh by the informant Abrahim Tigga at Central Jail, Daltonganj dated 24.12.2001 has been proved and marked as Exhibit- 6/1, formal F.I.R. has been proved and marked as Exhibit- 7.
After closure of the prosecution evidence, the statement of the accused-appellants have been recorded under Section 313 Cr.P.C. on 25.06.2003. Defence has not adduced any oral or documentary evidence. After hearing the parties, the learned Trial Court has passed the impugned judgment of conviction and order of sentence, which has been assailed in this court.
8. Heard learned counsel for the appellant, Mr. Prem Chand Tripathi, Senior Advocate, assisted by Ms. Nazia Rashid appearing for appellant in Cr. Appeal (SJ) No. 1462 of 2003, Mr. Anurag Kashyap, appearing for the appellants in Cr. Appeal (SJ) No. 1552 of 2003, Md. Imtiyaz Khan appearing for the appellant in Cr. Appeal (SJ) No. 1653 of 2003 and in Cr. Appeal (SJ) No. 1842 of 2003, Km. Poonam Verma, Amicus Curiae appearing for the appellant in Cr. Appeal (SJ) No. 1654 of 2003 and Mr. Santosh Kr. Tiwari appearing for the appellant in Cr. Appeal (SJ) No. 185 of 2004. The learned counsels have raised common points apart from their specific submissions. Learned counsels have 5 submitted that conviction under Section 395 of the Indian Penal Code cannot sustain in the eyes of law as Abrahim Tigga (P.W. 7) has stated in paragraph 10 of his cross-examination that police has arrested four accused persons, has called the witness to the police station, where the accused persons were produced before the witness, 8-10 days prior to the test identification parade. Learned counsel for the appellants have further submitted that there is an abnormal delay in holding the test identification parade. In the meantime, appellants have been produced before the learned Trial Court for a number of times, as they were under the remand under Section 167 of the Cr. P.C. The learned counsel for the appellants have submitted that as such there is a violation of Rule 46 of the Police Manual in conducting the test identification parade and the test identification parade has lost its sanctity. Learned counsels for the appellants have further submitted that Test identification parade must be conducted as per the police manual and the judgment as reported in 2007 (2) SCC 310 in case of Amitsingh Bhikam Singh Thakur vs. State of Maharashtra, 1994 (2) Eastern India Criminal Cases 372 and 2005 (9) SCC 200 in the case of Umesh Kamat Versus the State of Bihar. The ratio laid down in all these cases suggests that once the test identification parade lost its sanctity, the conviction of the accused cannot sustain under Section 395 of the Indian Penal Code. Thus, the counsels for the appellants have submitted that Exhibit 6 and 6/1 have no legal sanctity and the conviction of the appellants under Section 395 of the Indian Penal Code is only on the basis of their test identification parade, which has lost its sanctity as marked Exhibit- 6 and 6/1 and as such the conviction of the appellants under Section 395 of the Indian Penal Code cannot sustain in the eyes of law.
9. Learned Counsel, Md. Imtiyaz Khan, counsel appearing for the appellant Usman Mian in Cr. Appeal (SJ) No. 1842 of 2003 has further submitted that Usman Mian has been convicted under Section 412 of the Indian Penal Code also, but his conviction is also not sustainable in the eyes of law as the prosecution witness namely Irma Minz (P.W. 3) has categorically stated that after dacoity was committed, the family members had a discussion with the informant before lodging the First Information Report regarding looted articles and everything was said to the Abrahim Tigga (P.W. 7- informant of the case) with respect to taking of umbrella and torch but Abrahim Tigga has not mentioned those in the First Information Report. Learned counsel for the appellant has further submitted that there is a contradictory statement in the prosecution case, which will be apparent from perusal of the First Information Report, whether in the looted article umbrella or torch are mentioned or not, if those, two articles are not mentioned, 6 then the subsequent development by Irma Minz (P.W. 3), is an exaggeration in the prosecution case. Learned counsel has further submitted that the witnesses, who have identified the looted article including Irma Minz (P.W. 3) and Indumati Toppo (P.W. 2) have categorically stated that seized article has no specific mark. Irma Minz (P.W. 3) has given the umbrella to Indumati Toppo (P.W. 2) for using it and as such, Indumati has said that the looted umbrella and torch belongs to the neighbor but as a matter of fact, the umbrella belongs to the guest of the informant i.e. Irma Minz (P.W. 3). P.W. 2 (Indumati Toppo) has said that as she has used the articles, she identifies them.
Learned Counsel for the appellant has further submitted, that on the basis of confessional statement of Ram Swaroop Singh, the articles have been seized from the house of Usman Mian, in his absence, the articles were seized in presence of Mukhtar Hassan and Nasiruddin Ansari. Learned counsel for the appellant, Md. Imtiyaz Khan, Advocate has further submitted, that Mukhtar Hassan and Nasiruddin Ansari have not been examined in this case. Learned counsels for the appellants have further submitted, that Vinay Tigga, in whose house dacoity has also been committed, has not been examined in this case. Learned counsels for the appellants have further submitted, that the appellants in their confessional statement under Section 313 Cr.P.C., have categorically stated that after their arrest by the police, the witnesses were called in the police station, where they have been shown to the witnesses.
Learned counsel for the appellant has further submitted, that how can the article of a guest of the informant (P.W. 7) be used by the neighbor of the informant. Learned counsel for the appellant has further submitted, that these articles have no specific mark, as the prosecution witnesses have admitted themselves and, they are easily available in the market. Neither the informant in the First Information Report nor Irma Minz (P.W. 3) in her deposition have said that her umbrella was of K.C. Paul and Sons, rather they have said that it was a folding lady umbrella and on such basis, conviction of the appellant Usman Mian cannot sustain under Section 412 of the Indian Penal Code.
10. Heard, Mrs. Niki Sinha, Additional Public Prosecutor in Cr. Appeal (SJ) No. 1552 of 2003, Cr. Appeal (SJ) No. 1462 of 2003, Cr. Appeal (SJ) No. 1653 of 2003 and in Cr. Appeal (SJ) No. 1654 of 2003, appearing on behalf of the State and Mrs. Vandana Bharti, Additional Public Prosecutor in Cr. Appeal (SJ) No. 1842 of 2003 & Rajneesh Vardhan, Additional Public Prosecutor in Cr. Appeal (SJ) No. 185 of 2004, on behalf of the State. The Additional Public Prosecutors have submitted that the impugned judgment of conviction and order of sentence 7 are based on the material available on record and the learned Trial Court has convicted the appellants on well founded facts available on record.
11. Learned counsels for the State, Additional Public Prosecutors appearing on behalf of the State have supported the impugned judgment as Test Identification Parade was conducted properly on the basis of the same as conducted by the learned Judicial Magistrate, the same cannot be doubted.
Learned counsels for the appellants have submitted that the test identification parade, in presence of the Judicial Magistrate, is not doubted but the sanctity of the Test identification parade is under cloud, as Abraham Tigga (P.W. 7) in paragraph 10 has categorically stated, that all the arrested persons have been shown to the witnesses at the police station after arrest, 8-10 days prior to test identification parade and as such, the sanctity of the test identification parade is under challenge. The counsels for the appellants have never submitted, that the credential of the learned Judicial Magistrate is under cloud.
12. Heard, learned counsels for the parties, perused the record including the First Information Report, framing of the charge, evidence of all the eleven witnesses, documentary evidence up to Exhibit- 7 and the statement of the appellants under Section 313 Cr.P.C.
13. This court has scrutinized the evidence of Tarcilla Tigga @ Tarcilla Minz (P.W. 1), who has not attended the test identification parade. She has stated that Rs. 3400/- has been taken and the same fact has not been disclosed by her to the police during her statement under Section 161 Cr.P.C. This witness has admitted in paragraph 10 of his cross-examination that the accused persons were shown by the police in the police station after their arrest i.e. 8-10 days prior to the test identification parade.
14. Indumati Toppo has been examined as P.W. 2. She has stated that food was prepared for the accused persons and a chain and a lady watch were taken by the accused. She has claimed that Rs. 2000/- have also been taken from her mother. She has further stated that she has identified the umbrella and the torch of the neighbor, as she has used it for some time. She has further stated, that no test identification parade was held. She has further stated, that before lodging the First Information Report, the inmates of the house and neighbors have discussed about the articles looted from the house, although from perusal of the First Information Report, these articles have not been mentioned in the First Information Report.
Furthermore, the evidence of this witness in test identification parade with respect to article looted is not convincing to this court, as Irma Minz (P.W.
3) has categorically stated that article belongs to her who is guest in the house of P.W. 7 (Abrahim Tigga) i.e. brother-in-law and the article has no special 8 mark and does not belongs to neighbor rather the same belongs to guest of the neighbour.
15. Abrahim Tigga (P.W. 7) has stated, that these persons have entered into his house and umbrella, torch and Rs. 7000/- were taken from them. This court has further examined the record and found that these things are not mentioned in the First Information Report rather the informant has said that seven persons have entered into his house.
16. Bhatinda Toppo has been examined as P.W. 4. This witness has said that they have prepared food for the accused persons, as demanded upon which food was cooked and prepared. Four accused has taken their meal in the house of neighbor and two accused had taken their meal in the house of informant. This witness has said that the dacoits have committed dacoity in three houses. This court has scrutinized the evidence of Tarcilla Toppo (P.W. 1), Indumati Toppo (P.W. 2), Irma Minz (P.W. 3), Bhatinda Toppo (P.W. 4) and Abrahim Tigga (P.W.
7) and has found vital contradictions in the evidence of the witnesses. It is stated that all the accused persons have taken meal in the house of the informant and also in the house of neighbours but those neighbours in whose house the meal was cooked and accused persons have taken their meals have not been examined in this case and as such, there is a vital contradictions in the evidence of Abrahim Tigga (P.W. 7).
17. Samir Tigga, (P.W. 5), son of the informant has stated, that accused persons have asked for food. This witness has further stated, that in the test identification parade, he went along with his father but could not talk to him, from there he was taken for test identification parade and he has identified Ram Swaroop Singh, Khursid Ansari, Usman Mian and Manoj Mehta, whom he has given food but the evidence of P.W. 7- Abraham Tigga, particularly, in paragraph 10 has contradicted the evidence of this witness Samir Tigga, where the informant has said that the accused persons were shown to the witnesses 8-10 days prior to the test identification parade after their arrest at Police Station. The informant has never said that Samir Tigga (P.W. 5) was not the person, in presence of whom, the accused were shown to the witnesses at Police Station 8-10 days prior to Test Identification Parade and as such, the benefit of doubt will go in favour of the accused persons not in favour of the prosecution. The test identification parade has lost its sanctity as the accused persons were already shown to the witnesses at Police Station after arrest, 8-10 days prior to Test identification parade.
18. Nirmal Bhengra has been examined as P.W. 6. He is a hearsay witness.
19. Ibrahim Tigga (P.W. 7), informant of the case has given contradictory 9 versions of statement from the First Information Report. This witness has also stated that accused persons were in his house and they were asking about the guardian, when he returned from Daltonganj. The accused persons said "lal salaam" but in the evidence in the court, this witness has said that while he was sitting in his house, the accused persons came. He has given new facts during examination in the court that accused persons have also broken the box. This has not been stated either by Irma Minz (P.W. 3) or Samir Tigga (P.W. 5), who are the inmates of the house.
20. From perusal of the record, it appears that the test identification parade has not been conducted soon after the accused persons were arrested, rather there is a delay of one month or two month. When the informant has submitted that the witnesses have been shown by the police, at police station prior to test identification parade, then the sanctity of the test identification parade is lost. It appears to the court, that informant has exaggerated the case of the prosecution, from the First Information Report, or which is not in his deposition nor which has been stated in his fardbeyan, but which is apparent from perusal of paragraph- 6 of his cross-examination. Furthermore, the test identification parade of the articles is also contradicted by other prosecution witnesses. This witness has said that 2-3 umbrellas, 2-3 torches were kept on the test identification parade, whereas the other witnesses have said that 10-12 umbrellas and 3-4 torches were kept on test identification parade. This court has also found that there is contradiction in the evidence of the prosecution witnesses. Furthermore, the test identification parade lost its sanctity, as because none of the witnesses have said that, which of the accused has played what role and as such the evidence of P.W. 7, in paragraph 10 of his cross-examination where the informant has said that the accused persons were shown to them, prior to the test identification parade in the police station after their arrest, 8-10 days prior to test identification parade completely demolishes the sanctity of the test identification parade. Only on basis of test identification parade, the conviction of the appellants, under such flimsy evidence cannot sustain under Section 395 of the Indian Penal Code and as such this court is of the opinion that the appellants cannot be convicted under such sketchy evidence, under Section 395 of the Indian Penal code. Thus, the impugned judgment of conviction under Section 395 of the Indian Penal Code is set aside. The appellants are acquitted under Section 395 of the Indian Penal Code.
So far appellant, Ushman Mian, is concerned who has been convicted also under Section 412 of the Indian Penal Code, since the witnesses P.W. 3 (Irma Tigga), whose articles, the lady folding umbrella and torch, she has 10 categorically stated that there is no specific mark on the articles and such articles are available in the common market and the prosecution has not been able to prove its case beyond all reasonable doubts, that these articles, which have been seized from the house of Usman Mian (appellant) are the article of the prosecution side. Furthermore, Usman Mian was not present in the house and the seizure witnesses namely Mukhtar Hassan and Nasiruddin Ansari have not been examined in this case and as such, this court extends the benefit of doubt to Usman Mian under Section 412 of the Indian Penal Code. In the result, this court is of the opinion that conviction of the appellant Usman Mian under Section 395 and 412 of the Indian Penal Code by the learned Trial Court is also set aside.
21. In the result, the impugned judgment of conviction dated 22.09.2003 and order of sentence dated 23.09.2003, passed by learned Sessions Judge, Palamau at Daltonganj, in Sessions Trial No. 16 of 2002 in connection with Sadar P.S. Case No. 303/2001, consequent to G. R. Case No. 1178/2001, is hereby dismissed and set aside in both the criminal appeals and the appellants are acquitted by giving benefit of doubt.
22. The appellants, who are on bail, are discharged from liability of their bail bonds.
23. Accordingly, the present criminal appeals are allowed.
24. Let the lower court record be sent along with a copy of this judgment to the court concerned and JHALSA, at once for necessary action.
25. Before parting with the judgment, this court must appreciate the assistance given by Km. Poonam Verma, Amicus Curiae, who has assisted the court properly. The Secretary, Legal Services Authority is directed to pay the remuneration to Km. Poonam Verma within four weeks from the date of receipt of this order.
(Kailash Prasad Deo, J.) Jharkhand High Court, Ranchi Dated the 04.07.2018 Pallavi/