Allowed

Apurba Sahu v. the State of Jharkhand

Jharkhand HC26 Feb 2020Cr.A(DB)/374/2014

Case brief

AI extract

What is this about?

The High Court of Jharkhand, in an oral order, allowed criminal appeals by three appellants. The court acquitted them of dacoity and robbery charges due to the prosecution's failure to prove recovery of looted money and established identity, relying on Supreme Court precedents regarding identification evidence.

What did the court decide?

The appellants are acquitted of the charges and discharged from liability of the bail bonds.

Apurba Sahu Vs the State of Jharkhand — Cheque Dishonour | Jharkhand HC (2020)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Criminal Appellate Jurisdiction)

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[Against the judgment of conviction dated 30.04.2014 and the order of sentence dated 05.05.2014 passed by the learned 1^st Additional Sessions Judge, Seraikella- Kharswan, Seraikella in Sessions Trial No. 35 of 2011]

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Cr. Appeal (D.B.) No. 350 of 2014

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Jitendar Prasad @ Bablu, S/o Kanhaiya Lal, resident of Satbahani, Jamalpur, PO & PS- Adityapur, District- Seraikella Kharswan, Jharkhand.

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… Appellant

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Versus

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The State of Jharkhand …Respondent

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With

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Cr. Appeal (D.B.) No. 374 of 2014

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Apurba Sahu, S/o Sri Ranjit Sahu, resident of Birsanagar, Zone No. 1-B, Holding No. 86, PO & PS- Birsanagar, District- East Singhbhum.

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… Appellant

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Versus

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The State of Jharkhand …Respondent

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With

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Cr. Appeal (D.B.) No. 833 of 2014

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Sukhdev Singh @ Sukhe, son of Manjeet Singh, resident of Burmamines Carriage Colony, Baba Kuti, PO & PS- Burmamines, District- East Singhbhum. … Appellant

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Versus

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The State of Jharkhand …Respondent

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For the Appellant(s) : Mr. Kaustav Panda, Advocate; Mr. Govind Ray Karan, Advocate. (in Cr. Appeal (D.B.) No. 350 of 2014 & Cr. Appeal (D.B.) No. 374 of 2014) Mr. Abhilash Kumar, Advocate; Mr. Anurag Kashyap, Advocate. (in Cr. Appeal (D.B.) No. 833 of 2014) For the State : Mr. Shekhar Sinha, PP. (in all cases)

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CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR : HON’BLE MR. JUSTICE RATNAKER BHENGRA

J U D G M E N T

Per, Shree Chandrashekhar, J.

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Dated:26^th February, 2020

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Oral Order

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The appellants, namely, Amar Singh @ Amarjeet Singh @ Sethi, Sonu Bose @ Babu Telengi, Sukhdev Singh @ Sukhe, Apurba Sahu and Jitendar Prasad @ Bablu have faced the trial on the charge under section 395 of the Indian Penal Code and section 26/ 35 of the Arms Act. Against Amarjeet Singh a charge under section 25(1-b)a of the Arms Act and against Sonu Bose, Apurba Sahu and Sukhdev Singh a charge under section 412 of the Indian Penal Code were also framed.

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In Sessions Trial No. 35 of 2011, the appellants have been convicted and sentenced to RI for ten years and fine of Rs.4000/- under section 395 of the Indian Penal Code and RI for one year and fine of Rs.500/- under section 26/ 35 of the Arms Act. Amarjeet Singh has been convicted also under section 25(1-b)a of the Arms Act and sentenced to RI for two years and fine of Rs.1000/- for the said offence.

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The charge under section 412 of the Indian Penal Code against Sonu Bose, Apurba Sahu and Sukhdev Singh has been found proved, however, no separate order of sentence under section 412 of the Indian Penal Code has been passed.

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Amar Singh @ Amarjeet Singh @ Sethi has been released after serving the sentence and Cr. Appeal (DB) No. 417 of 2014 filed by him has not been pressed on merits and, accordingly, the appeal has rendered infructuous.

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Sonu Bose @ Babu Telengi who has preferred Cr. Appeal (DB) No. 429 of 2014 has died in course of his treatment.

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The case set up by the prosecution against the appellants is disclosed by the informant in his fardbeyan which was recorded at Teachers’ Training More, Gamharia. He has stated that at about 9:15 a.m. in the morning of 27. 04.2010 he started on his Endeavour vehicle bearing No. JH 05 AB 1018 for depositing Rs.4,70,000/- in Jamshedpur mandi (market) . At that time Lambu Mahto was with him in the vehicle. At about 9:30 a.m. when they reached near Anandpur Road Crossing on Gamharia Main Road suddenly the accused persons, six in number, on two motorcycles appeared and blocked the vehicle. Four persons carrying

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pistol in their hands came there and on gunpoint demanded him to hand over money. They took away the black bag containing Rs.4,70,000/- and a diary. They also took out LG mobile set with SIM No.9334216147 and fled away. According to the informant, he chased them and when they moved towards Adityapur his vehicle hit one of the motorcycles and on raising hulla several persons came there and apprehended one of the accused persons with a loaded country-made pistol. The other accused persons taking benefit of the terrain (forest) have managed to escape. They, however, left the motorcycle bearing No. JH 05 Z 9589. On inquiry, the apprehended accused disclosed his name as Amar Singh @ Amarjeet Singh and disclosed name of the other accused persons.

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During the trial, the prosecution has examined eleven witnesses. PW-1, PW-2, PW-3, PW-7 and PW-8 have claimed themselves as eye-witnesses, however, during the trial PW-3 has turned hostile. PW-2 has claimed that he has identified Sonu Bose, Amarjeet Singh and Sukhdev Singh in the Test Identification Parade conducted on 22.07.2010 and the informant has claimed that he has identified all of them during the Test Identification Parade. However, in the court PW-2 has stated that he has identified four persons in the Test Identification Parade. At this stage it is necessary to indicate that in the dock he has failed to identify Apurba Sahu and Jitendar Prasad @ Bablu and the testimony of PW-1 and PW-7, who according to the prosecution are eye-witnesses, does not reflect that they have identified the appellants in the dock. The Magistrate who has conducted the Test Identification Parade on 22.07.2010 has been examined as PW-9. He has proved the Test Identification Parade chart which has been marked as Ext.6. He has deposed in the court that the Test Identification Parade was conducted in respect of Sukhdev Singh @ Sukhe, Sonu Bose @ Babu Telengi and Apurba Sahu. He has further deposed that the informant has identified the above three accused persons, PW-1 has identified Sukhdev Singh only and PW-2 has identified all the three, whereas PW-3 has failed to identify any one of them.

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The evidence of identification of an accused in the Test Identification Parade is a primary evidence but not substantive evidence. It can be used to corroborate the evidence on identification of the accused in the court.

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In “Dana Yadav alias Dahu and Others V. State of Bihar” reported in “(2002) 7 SCC 295” , the Supreme has observed thus:

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“38. In view of the law analysed above, we conclude thus:

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(a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same.

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(c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of the accused by a witness in court.

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(f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.

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(g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above.”

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The confessional statement of Amarjeet Singh was recorded on 27.04.2010 and other accused persons were arrested soon thereafter. They were in custody and it has come on record that the prosecution witnesses were called in the police station. Therefore, it cannot be ruled out that there are chances that the appellants were shown to the witnesses before they were put on the Test Identification Parade which was conducted about three months of the occurrence. In “Lal Singh v. State of U.P” reported in (2003)12 SCC 554 , the Supreme Court has observed thus:

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“43. It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest-possible opportunity, no hard-and-fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety.”

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On such facts, identification of Sukhdev Singh, Apurba Sahu and Jitendar Prasad by the prosecution witnesses in the Test Identification Parade cannot be used by the prosecution to corroborate the evidence on identification of these appellants in the court.

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The informant has been examined as PW-8. In the court, he has described the incident as stated by him in the fardbeyan. In his cross-examination, he has stated that he has identified his articles in the police station. He has also stated that face of the accused persons was covered and, therefore, he cannot say who has threatened him on the gunpoint and who has taken away money. PW-1 has stated that he has not seen the accused persons snatching anything and from cross-examination it is apparent that he has not read the seizure memo. PW-2 has stated that Amarjeet Singh did not reveal the name of any other accused person and nothing was recovered in his presence. In his cross-examination, he has also stated that Janak Mandal who is his father-in-law was knowing that he was coming behind him. It is also relevant to record here that PW-1 and PW-2 both have claimed that they were coming behind Janak Mandal together, but the informant has not stated so in his fardbeyan or in the court. The defence has suggested that PW-1 and PW-2 are the chance witnesses whose evidence is not reliable. In the cross-examination, PW-2 has stated that he has identified three persons in the Test Identification Parade but he remembers name of Amarjeet Singh only. PW-4 and PW-5 have deposed in the court that they do not know who were involved in the robbery. PW-6 is a seizure witness and in his cross-examination he has stated that he has not seen any mark on currency notes in respect of which seizure memo was prepared in the police station. However, the informant has stated that as a mark of identification he puts mark on the currency notes and that is how he has identified Rs.18,000/- which were recovered from the house of Sukhdev Singh.

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On such evidence, we find that the prosecution has failed to establish recovery of currency notes which were the looted article.

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Section 391 of the Indian Penal Code defines dacoity. In every case of dacoity the offence of robbery is involved and in all robbery there shall be either theft or extortion. Though PW-7 and PW-8 who are

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eye-witnesses to the actual occurrence have stated about snatching of money under fear of injury but recovery of looted article has not been proved by the prosecution.

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In every criminal trial, identity of an accused must be established clearly and with certainty. In absence of cogent and consistent evidence on identification of the surviving appellants their complicity in the occurrence cannot be proved. From cross-examination of the informant, it is apparent that he cannot identify the accused who has threatened him and who has taken away money from the bag in the vehicle. The identification of the accused persons in Test Identification Parade is not reliable and as held in Dana Yadav, supra, identification of the appellants by the informant in the court cannot be the sole basis for their conviction under section 395 of the Indian Penal Code. Therefore, it must be concluded that the prosecution has failed to establish that during the occurrence the appellants have committed the offence under section 395 of the Indian Penal Code.

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In view of the aforesaid discussions, we find that the prosecution has failed to prove the charge under section 395 and section 412 of the Indian Penal Code and the charge under section 26/ 35 of the Arms Act against the appellants.

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Accordingly, the appellants, namely, Jitendar Prasad @ Bablu in Cr. Appeal (D.B.) No. 350 of 2014, Apurba Sahu in Cr. Appeal (D.B.) No. 374 of 2014 and Sukhdev Singh @ Sukhe in Cr. Appeal (D.B.) No. 833 of 2014 are acquitted of the criminal charges framed against them.

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The appellants, above-named, are on bail and, therefore, they shall be discharged from liability of the bail-bonds furnished by them.

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In the result, Cr. Appeal (D.B.) No. 350 of 2014, Cr. Appeal (D.B.) No. 374 of 2014 and Cr. Appeal (D.B.) No. 833 of 2014 are allowed.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated-26^th February, 2020 Sharda/S.B. AFR

Apurba Sahu v. the State of Jharkhand

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Apurba Sahu v. the State of Jharkhand

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