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IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAJESH SHANKAR, J.
Sachin Prakash @ Raja and Ors. - Appellant
Versus
The State of Jharkhand - Respondent
Cr. Appeal (S.J) No. 210 & 1854 of 2004
Decided On : 31-01-2019
Indian Penal Code - Section 395 - undergo rigorous imprisonment – Condo nation of delay - Public service commission - not be substantive evidence – Appeal against conviction - When they reached near Bridge Bullet motorcycle and one black Suzuki motorcycle came. Three persons were sitting on each motor cycle - When informant and his brother were at a distance of ½ KM from Bridge riders of one motorcycle asked the informant to stop his motorcycle and thereafter they abused and pushed them down with the help of their motorcycle - Informant and his brother fell down and thereafter the accused persons started assaulting them - Accused told accused and then accused Sao took out revolver from his waist and started assaulting on the chest of the informant by the barrel of revolver - Other accused persons also assaulted the informant and his brother and looted their motorcycle, helmet, money and watches – Held, This Court in State held that where there is unexplained delay in holding the identification parade evidence of prosecution regarding identity of an accused cannot be held absolutely reliable and in such a case the accused is entitled to benefit of doubt - Explanation for delay in holding identification parade offered by the prosecution in the instant case is not trustworthy - Non-availability of a Magistrate in a city like Bombay for over a period of five weeks from the date of the arrest of Accused and three weeks from the arrest of Accused 3 and 4 cannot be accepted - It is not denied that scores of Magistrates are available in city of Bombay and that the investigating agency was not obliged to get the parade conducted from a specified Magistrate. The High Court was not justified in holding that the parade could not be held early on account of alleged difficulties of the Special Executive Magistrate. It was not for to prove that the parade held was suffering from legal infirmities because, admittedly, the onus of proof in criminal case never shifts as the accused is presumed to be innocent till proved otherwise, beyond all reasonable doubts, by the prosecution. In cases where a person is alleged to have committed the offence and is not previously known to witnesses it is obligatory on the part of the investigating agency to hold identification parade for the purposes of enabling the witnesses to identify person alleged to have committed the offence. The absence of test identification may not be fatal if the accused is known or sufficiently described in complaint leaving no doubt in the mind of the court regarding his involvement. Such a parade may not be necessary in a case where the accused person is arrested on the spot immediately after the occurrence. The evidence of identifying the accused person at trial for first time, is from its very nature inherently of a weak character. This Court in held that the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances the complainant or the witnesses came to pick out the accused person and the details of the part which such persons played in the crime in question with reasonable particularity - Test identification is considered as a safe rule of prudence for corroboration. Though the holding of the identification proceedings may not be substantive evidence, yet such proceedings are used for corroboration purposes in order to believe or not the involvement of the person brought before the court for the commission of the crime – Appeal allowed
Both the criminal appeals have been preferred against the judgment of conviction and the order of sentence dated 22.12.2003 & 24.12.2003 respectively passed by the learned Additional Sessions Judge, F.T.C-VI, Hazaribagh in S.T. No. 171/98 whereby the appellants have been convicted under Section 395 of the IPC and sentenced to undergo rigorous imprisonment for a period of nine years with a fine of Rs.1,000/- each and in default of payment of fine, to undergo further R.I for a period of three months.
2. The prosecution story in brief, as stated in the fardbeyan of the informant (Surendra Prasad Chaudhary) recorded on 19.11.1996 at about 10.00 AM, is that on 19.11.1996, the informant and his brother were going to the Village-Peto on a motorcycle. When they reached near Patra Bridge at 9.15 AM, one black colour Bullet motorcycle and one black colour Suzuki motorcycle came. Three persons were sitting on each motor cycle. When the informant and his brother were at a distance of ½ KM from Patra Bridge, the riders of one motorcycle asked the informant to stop his motorcycle and thereafter they abused and pushed them down with the help of their motorcycle. The informant and his brother fell down and thereafter the accused persons started assaulting them. Accused Umesh Ojha told accused Lakhan Sao ‘Kya Dekhte Ho Maro Sale Ko’ and then accused Lakhan Sao took out revolver from his waist and started assaulting on the chest of the informant by the barrel of revolver. The other accused persons also assaulted the informant and his brother and looted their motorcycle, helmet, money and watches.
3. On the basis of the fardbeyan of the informant, Keradari P.S. Case No. 79/96 was lodged under Section 395 of the IPC against accused Umesh Ojha, Lakhan Sao and other four accused persons. Thereafter, the police reached Manatu forest and arrested seven persons including the appellants and also recovered the looted motorcycle as well as the other motorcycles used for committing the said offence.
4. After investigation, the police submitted charge sheet against all the seven accused persons under Sections 395/412 of the IPC on 11.02.1997. The cognizance was taken vide order dated 13.02.1997 for the offences under Sections 395/412 of the IPC. The charges were framed against all seven accused persons vide order dated 12.08.1998 under Section 395 of the IPC and the charge under Section 412 of the IPC was also framed against accused Mariyanus Ekka. Out of seven accused persons, four subsequently absconded after framing of charge and as such their cases were split up and the cases of the rest three accused persons (the appellants herein), namely, Sachin Prakash, Nasim Ansari and Samim Ansari were tried.
5. In order to substantiate the charges framed against the appellants, the prosecution has examined altogether seven witnesses. P.W.1- Narayan Choudhary is the brother of the informant. P.W.2-Surender Prasad Choudhary is the informant. P.W.3-Raju Mahto and P.W.4-Kundan Mahto are the eye-witnesses, who have been declared hostile. P.W.5-Nand Kishore Ojha and P.W. 6-Murlidhar Tiwari are the seizure-list witnesses, who have also been declared hostile. P.W.7-Mathura Rai is a formal witness, who has proved the FIR.
One Court Witness C.W.1-Mr. Praveen Kumar Sinha, Judicial Magistrate has also been examined to prove the TIP conducted for identification of the accused persons.
The statements of the appellants were recorded under Section 313 of the Cr.P.C in which they denied the allegations levelled against them.
Defence has also examined two witnesses. D.W.1-Milman Paul Sanga has deposed that the police had come to the village in search of accused Umesh Ojha and had taken appellant Sachin Prakash with them. D.W.2-Devid Tirkey has deposed that the police team had come to the house of appellant Sachin Prakash and had taken him with them.
6. Learned Trial Court, relying on the documents and evidences available on record, held the appellants guilty of the alleged offe
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