Ehtar Seikh Vs State of Jharkhand

Cr. Appeal (S.J.) No. 959 of 2012

(Against the judgment of conviction and order of sentence dated 14.09.2012 passed by learned Addl. Sessions Judge-IV, Dhanbad in S.T. No. 460 of 2011)

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Ehtar Seikh … …. Appellant Versus The State of Jharkhand … …. Respondent

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P R E S E N T

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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----For the Appellant : Mrs. J.K. Mazumdar, Advocate For the State : Mr. Anup Kr. Topno, APP -----

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By Court :

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Heard the parties

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The judgment of conviction and order of sentence under Section 412 of Indian Penal Code is under challenge in the instant appeal.

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On 11.11.2010 in the night at 1 O’clock, dacoity was committed in the house of the informant Karu Bishwakarma by 7 to 8 unknown persons who were armed with deadly weapons. In the said dacoity, cash of Rs.30,000/- ear tops , payal and other jewelries were looted away. Thereafter two of the miscreants kept the informant and his family members and also committed burglary in the adjacent jewelry shop of Arjun Prasad Verma at about 3 O’clock in the morning and they decamped with the looted articles.

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On the basis of fardbeyan, Dhanbad (Seraidhela) PS Case No. 1041 of 2010 was registered under Sections 395 of the Indian Penal Code and later on Section 411 of Indian Penal Code was added against 7 to 8 unknown persons. During course of investigation, on the disclosure statement of appellant- Ehtar Seikh, some of the jewellaries were recovered and seized.

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Police on investigation found the case true and submitted charge sheet under Sections 395 and 412 of the Indian Penal Code. After cognizance, charge was framed and the appellant was put on trial.

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Altogether eleven witnesses were examined on behalf of the prosecution and the relevant documents including the disclosure statement, TIP Chart and seizure list, were adduced into evidence, marked as Ext. 1 to 5. After prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C. The defence is of complete innocence but no specific defence has been pleaded.

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The trial court acquitted the appellant for the offence under Section 395 of Indian Penal Code and convicted him for the offence under Section 412 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years with a fine of Rs.10,000/-.

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Judgment of conviction and order of sentence has been assailed on the ground that the accused was not put on TIP and he was neither identified during investigation nor during trial. Payal and Bichhiya were seized on the basis of disclosure statement. The seizure list witnesses (PWs 1 & 2) has turned hostile and not supported the prosecution case. The informant, who claimed to have identified the looted articles, was examined as PW4 and deposed that he had not identified the looted articles and was declared hostile. He has deposed that he had put his LTI on a blank sheet of paper. Reliance is placed in the case of Kailash Sahni Vs. State of Bihar in Cr. Appeal (SJ) No. 249 of 1999 wherein the accused was acquitted of the charge under Section 412 of Indian Penal Code as the witnesses had turned hostile and not supported the identification of the articles in the TIP. It is argued that once the witness turns hostile in the Court, mere proof of Test Identification Parade by other witnesses will not salvage the prosecution case.

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On the point of sentence, it is argued that there is no past conviction against the appellant and he has already undergone almost two years of sentence during and after trial.

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Learned counsel for the State has defended the impugned judgment of conviction and order of sentence and submitted that indisputably, dacoity had taken place in the house of the informant and it has been stated in the FIR as well as the witnesses have deposed that the jewelries and Payal were looted away from the house. On the disclosure statement, the said jewelries were recovered and put on Test Identification Parade which has been proved by the independent witnesses, Circle Officer (PW11) as well as PW9 Investigating Officer. The witnesses have identified their signatures on the seizure list and the prosecution has successfully proved their case.

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Commission of dacoity is not in a shade of doubt. FIR was lodged on the very next morning after the commission of offence. Informant (PW-4) has deposed that it was committed in his house in which 30,000/- in cash, Bali and ring were looted. His wife (PW-8) has also stated that dacoity was committed. His

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son PW-5 and daughter-in-law PW-6 have also deposed that dacoity was committed in which cash jewelries including ring and Payal were looted. All these three witnesses have refused to identify the accused persons in dock. On the same night as per the FIR, burglary was committed in the jewelry shop of Arjun Prasad Verma (PW-7).

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The point for determination in the instant appeal is whether looted article was recovered on the disclosure statement made by the appellant.

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The incidence takes place on 11.11.2010, whereas the seizure is made after a lapse of more than six months on 23.5.2011 in which jewelries including a Payal and Bichiya were seized from the house of Md. Siraj. The Silver Payal that was seized was put on TIP and identified by the informant in the presence of the circle officer (PW-9). The TIP Chart has been proved, but the informant who had identified the stolen article resiled from the identification and has stated that he had not identified the stolen article. Seizure list witnesses have also turned hostile. They have identified the signature but have deposed that their signature was obtained on a blank sheet of paper.

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Evidence is to be appreciated by considering the totality of circumstance and evidence brought on record. It is not that merely if seizure list witness turns hostile the entire prosecution case can be cast away. If the other cogent and reliable evidence conviction can be sustained, even if the seizure list witnesses have turned hostile.

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In the present case however, this court is of the view that judgment of conviction cannot be sustained in view of several infirmities in the prosecution evidence. Apart from the fact that the informant and seizure list witnesses have turned hostile on the point of identification of the looted article, the very recovery has been made after an inordinate delay which casts doubt on the identification of the stolen article. As discussed above the stolen articles were seized after six months on disclosure statement from the house of third party. In this view of matter the appellant is entitled to benefit of doubt. Judgment of conviction and sentence is set aside.

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Appeal is allowed. Sureties are discharged from the liability of their bail bonds.

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(Gautam Kumar Choudhary, J . )

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Jharkhand High Court, Ranchi Dated, the 04^th April, 2024 NAFR/ AKT/Satayendra

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Ehtar Seikh v. State of Jharkhand

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Ehtar Seikh v. State of Jharkhand

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