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2018 Supreme(Jhk) 1858
IN THE HIGH COURT OF JHARKHAND AT RANCHI
KAILASH PRASAD DEO, J.
Bishwanath Ram, S/o Jageshwar Ram & Anr. – Appellants
Versus
The State of Jharkhand – Respondent
Cr. Appeal (SJ) No.1061 of 2003
Decided On : 29-06-2018
For the Appellant : Devesh Krishna
For the Respondent: Mrs. Niki Sinha, Addl. Public prosecutor.
Headnote:
Indian Penal Code1860 - Section 395 - Investigation – Punishment - Case is based upon written report of informant alleging therein that a was committed in night by breaking open door and at that time informants wife and her daughter were present in house dacoits have assaulted them and demanded golden ornaments dacoits have also taken away golden ornaments utensils clothes etc- from house After investigation Police submitted charge-sheet vide charge-sheet Section Indian Penal Code against altogether accused persons- One accused persons has died during trial- Five accused persons have been declared absconder for which a report was called for by this Court and as per report they have also died during pendency of appeal offence has been taken against three accused persons vide order and rest five accused persons have been declared absconder case has been committed to Court of Sessions vide order and thus trial court has framed charge against both accused/appellants Sections Indian Penal Code to which appellants have pleaded their innocence and claimed - –Held, Information Report was lodged after two days name of accused persons must have been figured in First Information Report- First Information Report is a written report of two pages which is lengthy but even then name of accused persons are not mentioned in First Information Report- Secondly Ram is known to villagers as his house is situated at a distance of one Kilometer and taking name Ram alias wife informant and daughter of informant is nothing but an exaggeration and development in prosecution case- There is no evidence that these persons were involved in commission of offence supported Court perused entire evidence- From perusal of entire evidence entire procedures adopted by prosecution in identifying looted property or seized property from house of appellant Ram is in violation of statutory principles as laid down in Criminal Procedure Code- If an article was recovered that must have been placed before informant in Test Identification Parade in presence of learned Magistrate- Here it is a case where witnesses have said that those articles have been placed by police officer they identified articles of their own- Learned counsel for appellants has rightly submitted that those articles having no special mark nor any paper has been produced to show that these articles belonged to prosecution party rather a golden ear ring or silver are such common articles which can be found in any house as they are commonly available in market Court is constrained to give benefit of doubt Ram and thus this Court acquits appellant Ram from conviction Indian Penal Code as legal material to prove prosecution case is completely lacking in this case - Appeal allowed
JUDGMENT :
Heard, Mr. Devesh Krishna, learned counsel for the appellants and Mrs. Niki Sinha, learned Addl. Public Prosecutor appearing for the State.
2. The instant Criminal appeal has been preferred against the Judgment of conviction dated 17.07.2003 and order of sentence dated 21.07.2003, passed by the learned 1st Addl. Sessions Judge, Fast Track Court, Garhwa in Sessions Trial No.22 of 1999 (T.R. No.207 of 2002), whereby both the appellants have been convicted for the offence punishable under Section 395 of the Indian Penal Code and appellant No.1, Bishwanath Ram has further been convicted for the offence punishable under Section 412 of the Indian Penal Code. The learned trial court has awarded rigorous imprisonment for seven years for the offence committed Section 395 of the Indian Penal Code to both the appellants. So far appellant No.1, Bishwanath Ram is concerned, he has further been awarded rigorous imprisonment for three years for the offence committed under Section 412 I.P.C.. Both the sentences are directed to run concurrently.
3. The prosecution case is based upon the written report of the informant, Keshawar Sao (P.W.6), alleging therein, that a dacoity was committed in the night of 27.01.1981 by breaking open the door and at that time, the informant's wife and her daughter, Bimla Devi (P.W.5) were present in the house, the dacoits have assaulted them and demanded the golden ornaments. The dacoits have also taken away golden ornaments, utensils, clothes, etc., from the house.
On the basis of the aforesaid 'fardbeyan' of the informant, the Police instituted First Information Report being Ranka P.S. Case No. 07 of 1981 dated 30.01.1981 corresponding to G.R. No.44 of 1981 under Section 382 of the Indian Penal Code.
4. After investigation, the Police submitted, charge-sheet vide charge-sheet No.15 dated 26.03.1983 under Section 395/412 of the Indian Penal Code against altogether 8 accused persons. One of the accused persons has died during the trial. Five accused persons have been declared absconder, for which a report was called for, by this Court and as per the report, they have also died during pendency of the appeal.
5. The cognizance of the offence has been taken against the three accused persons vide order dated 24.09.1991 and rest of the five accused persons have been declared absconder. The case has been committed to the Court of Sessions vide order dated 24.09.1991 and thus, the learned trial court on 25.09.2002, has framed the charge against both the accused/appellants, Bishwanath Ram and Sukh Bilas Ram alias Sukh Bilas Dusad @ Tuntunwa under Sections 395 and 412 of the Indian Penal Code, to which the appellants have pleaded their innocence and claimed to be tried.
6. Mr. Devesh Krishna, learned counsel appearing for the appellants has submitted that altogether seven prosecution witnesses have been examined in this case, but the investigating officer has not been examined. Learned counsel has further submitted, that as per the information, the occurrence took place in the night of 27.01.1981, but without any explanation regarding delay, the First Information Report has been lodged on 30.01.1981. He has further submitted, that the First Information Report has been lodged against unknown, but subsequently, during deposition of the witnesses, P.W.3 (Kalavati Devi) and P.W.5 (Bimla Devi), both have developed the case and have stated in the Court, that they could identify the accused, Bishwanath Ram, who was involved in commission of dacoity. Learned counsel has further submitted, that as per the evidence of P.W.4 (Ayodhya Tiwari), the Police came to the village, on the very next day of the occurrence and thereafter, they went into the house of accused, Bishwanath Ram, from where golden ear ring and silver 'pahuncha' have been recovered from the house and the materials were identified by the informant and his wife.
Learned counsel for the appellants has submitted, that those recovered articles were never put in Test Ide
