Allowed

Arun Hazara v. State of Jharkhand

Jharkhand HC18 Sept 2018Cr.A(SJ)/1189/2003

Case brief

AI extract

What is this about?

The High Court allowed an appeal against conviction for dacoity. The court held that relying on a single witness identified the accused in court after 14 years was unsafe, especially without examining the magistrate who conducted the test identification parade or the investigating officer. The conviction was set aside.

What did the court decide?

Impugned judgment and order of sentence set aside; appellant acquitted of charge under Section 395 I.P.C.; bail bonds discharged.

Arun Hazara Vs State of Jharkhand — Criminal Trial and Appeal | Jharkhand HC (2018)

¶1

¶2

Cr. Appl. (SJ) No. 1189 of 2003

¶3

[Against the judgment of conviction and order of sentence dated 29.07.2003 and 31.07.2003 respectively, passed by the learned Additional District and Sessions Judge, Fast Track Court No. IVth, Deoghar in Sessions Case No. 18A/90 of Trial No. 167/ 2003]

¶4

Arjun Hazara son of late Sahdeo Hazara resident of village-Teliadih,PSSarawan, Distt.- Deoghar. … Appellant

¶5

--Versus-The State of Jharkhand …. Respondent

¶6

¶7

PRESENT : THE HON'BLE MR JUSTICE RATNAKER BHENGRA

¶8

For the Appellant : Mr. Sanjeev Thakur, Advocate. For the State : Mr. Gouri S. Prasad, A.P.P.

¶9

By Court:

¶10

Heard learned counsel for the appellant as well as learned counsel for the State.

¶11

2. This criminal appeal is directed against the judgment of conviction and order of sentence dated 29.07.2003 and 31.07.2003 respectively, passed by the learned Additional District and Sessions Judge, Fast Track Court No. IVth, Deoghar in Sessions Case No. 18A/90 of trial no. 167/ 2003 whereby appellant was convicted under Section 395 of the Indian Penal Code and sentenced to undergo RI for four years.

¶12

3. Prosecution case, in brief, as per the fardbayan dated 10-03-1989 of the informant Naresh Chandra Pandey P.W.-8 is that informant along with his family members was sleeping at night of 09.03.1989. It is alleged that at about 1:00 a.m. he heard sound of knocking of the door as a result he awoke. 4-5 miscreants, entered into his house after breaking open the door. Informant further stated that his wife Yogmaya Devi was in the house and lamp was burning. One dacoit put knife on his neck and one other dacoit assaulted him with hand. Dacoits took out iron box and looted cash Rs. 2,300/-, four pieces of gold fokia , silver bangle, two pair of gold ear rings, one kanosi , saree, blouse from the iron box. Dacoits also looted two brass lota and one bronze lota , on which name was inscribed, from the house of the informant. Then dacoits took him inside the room and locked

¶13

¶14

the room from outside. He saw from the window that dacoits committed dacoity in the room of his brother Manoranjan Pandey and his nephew Purushottam Pandey and looted away cash, ornaments and utensils.

¶15

4. On the basis of the fardbayan of the informant Palajori P.S. Case No. 16 dated 10-03-1989 under Sections 395/ 412 of the Indian Penal Code was registered against one named person and 12-16 other unknown persons. After investigation, charge sheet was submitted and cognizance of the offence was taken and the case was committed to the Court of Sessions. Charges were framed under Sections 395/ 412 of the Indian Penal Code against the appellant and trial was held. After conclusion of trial, appellant was convicted and sentenced as aforesaid. Hence, this appeal.

¶16

5. Prosecution has examined altogether eight witnesses in support of its case out of whom P.W.- 8 Naresh Chandra Pandey is the informant of the case. PW-1 is Parmeshwar Pandey; PW-2 is Purushottam Pandey; PW-3 is Ashutosh Pandey; PW-4 is Yogmaya Devi; PW-5 is Arta Devi; PW-6 is Hemawati Devi and PW-7 is Indra Devi.

¶17

6. Prosecution has examined altogeather 8 witnesses out of whom P.W.1 Parmeshwar Pandey, P.W.3 Ashutosh Pandey and P.W.5 Arta Devi have supported the factum of dacoity and they have said nothing important about the offence of dacoity. P.W.2 Purshottam Pandey is the nephew of the informant. In his examination-in-chief he has deposed that he recognized the accused persons in the torch light and he recognized the appellant in the court. In his cross-examination he stated that accused persons broke the door of his room and only one accused person had covered his face and no other accused persons had covered their faces with gamcha . Dacoits had looted his wrist watch, radio and bronze lota . P.W.4 Yogmaya Devi is the wife of the informant. She has deposed that dacoits broke open her door and had entered the house and looted ornaments of value Rs. 5000/-, utensils and clothes. P.W.6 Hemawat Devi has stated in her evidence that on the day of occurrence at about 12 a.m. at night the accused persons broke open her door and looted articles from her house. She has also stated that she had recognized three accused persons in test identification parade. P.W.-7 Indra Devi has stated in her examination-in-chief that she had identified three accused persons in the

¶18

¶19

test identification parade. P.W.-8, the informant of the case has deposed that on the day of occurrence accused persons broke open the door of his room and entered into the room. Informant further deposed that from iron box the accused persons looted two pair of ear rings, silver coin, Rs.4000/cash, 4 bhar gold and utensils. He further stated that in the test identification parade he had identified some of the accused persons but he cannot recognize them.

¶20

Arguments of the learned counsel for the appellant:

¶21

7. Learned counsel for the appellant has submitted that the alleged occurrence is of the night of 9^th and 10^th March, 1989 at around 1:00 a.m. In the fardbeyan or FIR only one Nago Pandey was named and the current appellant Arjun Hazara has not been named. He submits that the addition of his name is only a later development. In the entire FIR only one person has been named and the rest are unknown persons.

¶22

8. Learned counsel for the appellant has taken this Court to the evidence of the prosecution witnesses and began with PW-1, who is one Parmeshwar Pandey and pointed out that he has supported the factum of dacoity but he has said nothing against the appellant. Counsel for the appellant has then pointed out from the evidence of PW-3, who is one Ashutosh Pandey and said that he has also deposed in the same manner as PW-1 and said nothing important. Counsel for the appellant has then referred to the evidence of PW-4 Yogmaya Devi who is the wife of the informant and submitted that PW-4 has not said anything about the identification of the appellant in her evidence. Counsel for the appellant has then referred to the evidence of PW-5, who is one Arta Devi and submitted that this witness has also supported the factum of dacoity but has not said anything against the appellant.

¶23

9. Referring to PW-6, Hemawati Devi, counsel has pointed out that she in her deposition has also supported the factum of occurrence of dacoity. However, she has only identified Nago Pandey in Court who was anyway known to her or the informant’s side from before or even prior to the incident of dacoity. It is noted that appellant Arjun Hazara was not identified by this witness. The same is so with many of the prosecution witnesses. This witness has further deposed that during the commission of dacoity, dacoits had broken the lantern. Counsel for the appellant has then said that

¶24

¶25

if that is so then there is no question of identification through the light from the lantern. Moreover, he has again referred to the FIR and said that PW-2 and PW-7 had identified in the light of the torch, so there is variation or inconsistency regarding the source of light and therefore, there is doubt about the identification of this appellant.

¶26

10. Learned counsel for the appellant has then referred to the evidence of PW-7, who is one Indra Devi and pointed out that she has deposed that the occurrence is of 16-17 years. She has also proved the factum of occurrence and she admits going to the TIP but she does not or is unable to identify the appellant in the dock. Learned counsel for the appellant then submitted that she has failed to do so because appellant was not a party to the committing of the dacoity anyway. Moreover, it has come that the appellant was from a neighbouring village, and therefore, P.W.7 would have easily recognized him during the commission of the dacoity itself. Therefore, in a way there is no question of TIP but even then she has failed to identify him in the dock. Therefore, once again on failure to identify the appellant in a consistent manner the allegation against him seems very, very doubtful.

¶27

11. Learned counsel for the appellant has then taken this Court to the evidence of PW-8, Naresh Chandra Pandey, who is the informant. He has deposed that the occurrence is of 14 years ago. He has deposed that the accused were identified by PW-2, Purushottam Pandey and his bhabhi i.e. Indra Devi PW-7. Moreover, even this witness has deposed that he had also identified the accused persons in the TIP; however, in the Court he has not been able to identify or recognize him. Counsel again reiterates that the informant should have known this appellant because appellants comes from the neighbouring village so at least he should have been able to have recognized the appellant by face.

¶28

12. Referring to the evidence of PW-2, Purushottam Pandey, counsel for the appellant has submitted that in some way he is the star witness because it is essentially based on his evidence that much of his conviction is also relied upon. He has pointed out that as per his deposition he had recognized the accused in the Court and in the light of the lamp and that he had recognized 3-4 persons and that TIP was also done. He has during the deposition recognized the appellant in the dock. Counsel for the appellant

¶29

¶30

at this stage submits that such recognition was done almost after fourteen years after a long lapse of time and therefore, such recognition is doubtful; moreover, when appellant was not named initially in the fardbeyan or FIR and he could have been referred to by identification also as hailing from the neighbouring village. He has also deposed about the items looted from his house and also that TIP was made of the looted items and that he had recognized some of the items. Counsel for the appellant says that neither of these items which were owned by this witness were recovered from the house of the appellant and neither any other items pertaining to the other victims also recovered from the house of the appellant or from his possession. From the evidence of this witness it has also been revealed that none of the accused had covered their faces with gumcha . Only one accused had his head covered. Even counsel has thus said that it is very strange that no one had concealed the face which is normally done in the case of dacoity. Arjun Hazara, appellant, is from the neighbouring village and it is unbelievable that he would go to another neighbouring village and commit dacoity without covering his face where the residents of that village would immediately recognize him. In paragraph-6 of his evidence, this witness has deposed that apart from other items his wrist watch, radio and certain utensils were looted. Counsel has again pointed out that none of these items even the watch and radio were recovered from the appellant and therefore, since Section 412 I.P.C has not been sustained, similarly also offence under Section 395 I.P.C. should also not have been sustained. This witness has further deposed that lantern was burning in his room. In the light of lantern he saw looting however, he had not given that lantern to the police; but, he had told the police that he had recognized the accused by lantern light. Counsel for the appellant here pointed out that this witness is important in the sense that he is the only single witness, who has identified the appellant in the dock and that too by a doubtful source of light and that too which is in variance with what has been said in the examination-in-chief and subsequently, in his cross-examination and also what has been said in the light of the FIR. 13. Learned counsel for the appellant has pointed out that the Investigating Officer of the case has not been examined in this case and his non-examination has greatly prejudices the case of the appellant

¶31

¶32

because he has not been available to examine any inconsistencies or contradictions that have come during the course of deposition or evidence; neither has he been able to throw light on the TIP or TIP Chart itself; neither has he been able to throw any light on the looted items or whether any items were recovered at all or even looted at all.

¶33

14. Learned counsel has pointed out that an important defect in the case is that the Magistrate who had said to have conducted the TIP has also not been examined and his evidence was crucial because it is only through his evidence that the judgment has essentially relied to a great extent on convicting the appellant and due to his non-examination the impugned judgment of conviction and order of sentence cannot be sustained against the appellant. Counsel, says T.I.P Chart has not been exhibited and it has not been marked with the number and therefore, when it has not been exhibited, whether it is proper to convict on the basis of un-exhibited chart is an important question of law. However, since the Magistrate himself has not been examined one cannot rely on such a TIP or its Chart.

¶34

15. Learned counsel for the appellant has also relied upon the judgment in the case of Wakil Singh and others versus State of Bihar , reported in AIR 1981 Supreme Court 1392 . He has pointed out with reference to paragraph-2 of this judgment and submitted that the identification in the case on hand rests on the identification by the sole witness PW-2 in Court. As per the ruling in this judgment and as has been observed in paragraph2, that to rely on a single witness may not be proper.

¶35

16. Learned counsel has then referred to the judgment passed in the case of Sajit Barla and others versus State of Jharkhand , reported in 2001(3) East Cr C 162 (Jhr) and submitted that in this case Magistrate, who had conducted the TIP, was not examined and investigating officer of the case was also not examined and this court had allowed the appeal of the appellants and hence on the basis of this ratio, impugned judgment of conviction and the corresponding sentence of the appellant shall also be set aside.

¶36

17. Learned counsel has also relied upon the case of Rajmohan Bhagat and another versus State of Jharkhand , reported in 2006(3) East Cr C 474 (Jhr) and pointed out that due to the non-examination of the Investigating Officer the case of this appellant on the current case is also

¶37

¶38

highly prejudiced and as has been argued by him that he was not able to examine the consistent or contradictory statements made by the witnesses and neither put questions to the prosecution regarding the T.I.P or the T.I.P Chart and therefore, the appellant is grossly prejudiced.

¶39

18. In conclusion, apart from the aforesaid arguments as submitted by the counsel for the appellant he has also point wise mentioned that the seizure list was not proved, the TIP of articles was also not proved and that appellant is not named in the initial fardbeyan or FIR. Moreover, nothing incriminating has been recovered from him. Moreover, all the witnesses are essentially related witnesses. Therefore, to convict only on the basis of the sole identification in the dock by PW-2 and that too after almost a lapse of fourteen years is highly doubtful. Moreover, appellant has also said that the reliance of the trial court on the TIP Chart and the Magistrate himself has not been examined is also bad in law. Accordingly, the appellant deserves to be acquitted.

¶40

Arguments of the learned A.P.P., appearing on behalf of the State:

¶41

19. Learned A.P.P. has argued that the factum of dacoity is totally admitted and it was not denied in the trial. He has pointed out also that the Section 395 of the Indian Penal Code is aggravated theft wherein violence is a feature of it and committed by five or more persons. Learned Counsel has pointed out to the fardbeyan and submitted that there was about 12-16 accused persons including this appellant and violence was used for the looting of large number of items, which have been listed and indicated in the fardbeyan and they had broken the door and entered into the house and thereafter looted many items and so the offence of dacoity is fully indicated in the fardbeyan itself and has subsequently been proved by the witnesses. Learned A.P.P. has further argued that a number of witnesses have supported the occurrence and the occurrence is any way not denied and he rests the prosecution case is also on the basis of the evidence of PW-2 and PW-7. Learned A.P.P. has argued and submitted that PW-1, PW3, PW-5, PW-7 and PW-8 have fully supported the occurrence or the factum of dacoity. Counsel for the appellant has then referred to the evidence of PW-2, Purushottam Pandey and argued that evidence of PW2, Purushottam Pandey was taken fourteen years after the incident and so

¶42

¶43

were the evidences of many other witnesses and he submits that fourteen years was due to procedural delays and also due to the delays of the accused or the witnesses in not coming to the Court in time and therefore, the conviction of the appellant should not be set aside due to such contrived arguments of delays. Learned A.P.P. has also argued that recognition is said to have been done by both torch light and also by lantern light.

¶44

20. Learned A.P.P. has then pointed out that P.W.2 has recognized 4-5 persons in TIP and the appellant Arjun Hazara was identified in the dock in Court. Learned A.P.P. therefore says that with such clear cut identification and that too a person who had formally been recognized in T.I.P nothing else remains in establishing his identity and therefore, conviction and sentence imposed is fully sustainable. Learned A.P.P. has then lastly submitted the impugned judgment of conviction and order of sentence passed by the Learned Court below is based on proper evidence and hence be sustained and upheld by this court.

¶45

FINDINGS

¶46

21. Having heard learned counsel for both the side, gone through the records, evidences and facts and circumstances of the case, I find that - (i) In the evidence it has come that appellant Arjun Hazra was identified by P.W.-2 in the dock. But in the cross-examination P.W.-2 has deposed that dacoits had not covered their faces. So, when dacoits did not hide their faces and in the evidence it has come that appellant belonged to neighbouring village then P.W.-2 would have recognised the appellant during the commission of dacoity itself and hence the informant should have at least given the description of the appellant in the fardbayan. But, on-going through the fardbayan I, find that in the fardbeyan there is description of only one dacoit namely Nago Pandey and this raises doubt in the prosecution case as to proper identification of the appellant. In Wakil Singh case (supra), Apex court has held that it would be unsafe to convict an accused for such a serious offence on the testimony of the single witness and in the case in hand also identification of the appellant was done by P.W.-2 after 14 years of occurrence in the dock in court. (ii) Appellant has been convicted under section 395 of I.P.C. but neither the magistrate who conducted test identification parade of the accused

¶47

¶48

persons was examined nor the magistrate who conducted T.I.P of the article was examined. Even the investigating officer of the case was also not examined. In Sajit Barla case (supra) also magistrate who conducted the test identification parade and the investigating officer of the case was not examined and the conviction of the accused persons under section 395/412 of I.P.C was set aside.

¶49

22. So, based on aforesaid reasonings and relying on the judgments of Wakil Singh case (supra) and Sajit Barla case (supra) , appellant Arjun Hazra is acquitted of charge under section 395 of I.P.C. by giving him benefit of doubt.

¶50

23. Accordingly the impugned judgment of conviction dated 29-07-2003 and order of sentence dated 31-07-2003 passed in Session Case No. 18A/90 of Trial No. 167/ 2003 by the Additional District and Session Judge Fast Track Court IV, Deoghar is set aside. Appellant is discharged from the liability of his bail bonds.

¶51

24. Accordingly, appeal is allowed.

¶52

(Ratnaker Bhengra, J.)

¶53

Jharkhand High Court, Ranchi, Dated 18^th September, 2018, SB/ NAFR

Arun Hazara v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

Arun Hazara v. State of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mahru Mahto And Ors. Vs State of Jharkhand

Prem Mahara And Ors. Vs State of Jharkhand

Abdul Majid And Anr. Vs State of Jharkhand

Keshwar Ahir And Ors. Vs State of Jharkhand

Lakhsmi Kant Mahto Vs State of Jharkhand

Chiku Kalindi And Ors. Vs State of Jharkhand