Identification parade compromised by prior exposure to witnesses renders conviction invalid.

JUDGMENT :

SANJAY PRASAD, J.

1. This Criminal Appeal has been filed on behalf of the appellant challenging the judgment of conviction dated 17.4.2004 and sentence dated 22.04.2004, passed by Sri Rai Satish Bahadur, learned Addl. Sessions Judge, Fast Track Court No. II, Dhanbad in Sessions Trial No. 376 of 1996, by which the appellant has been convicted for the offence under Section 395 I.P.C. and sentenced to undergo R.I. for five (05) years and seven (07) months and to pay a fine of Rs.2,000/-, although the Court below has acquitted other persons namely, Lalan Rai, Rajesh Rajak, Naresh Kumar Gupta for committing offence under Section 395 and 412 of the I.P.C.

2. The prosecution case, as alleged in the fardbayan of the informant Sri Om Prakash Kesari, recorded by the Inspector Das, the Officer-in-Charge of Jharia P.S. on 10.1.1996 at 23 hours, in brief, is that on 10.01.1996 at 20.45 hours while the informant was doing his work as an advocate at his office in his residence then in the meantime the informant opened the door on the sound of call that they have to get the bail of his brother and then three other persons also entered one by one. On asking they said that the case is under Section 307 I.P.C., they suddenly shut the door from inside and one of them took out revolver from his pocket. The accused person took out dagger, one took out bomb and another took out a revolver and surrounded the informant. They brought the informant at the door of the drawing room. A wheatish complexioned accused with revolver demanded Rs.2,00,000/- (two lac) and put revolver on his neck. Hearing hullah, the wife of the informant namely Gayatri Devi began to look inside the room, then one miscreant put dagger on her neck and threatened her to remain silent. Thereafter, miscreants brought them inside a room, and they confined the informant and his son Kunal and daughter Sweta and Anshu in the room and one of the miscreants began to watch them. Rest four miscreants asked the wife of the informant to move with them and the miscreants began to search the rooms of upper floor and ground floor. The miscreants got opened Godrej Almirah in the upper floor and took out a brass jewellery box containing jewellery and also looted a Funai V.C.P, the Philips two in one, two shawls, Sari, salwar suits etc. from the Almirah on the ground floor. A red colour V.I.P. suitcase, a Khakhi colour big aristocrat brief-case, a leather suit-case and a steel box were also taken away in which the miscreants kept the other looted articles.

3. Heard Mr. Rajesh Kumar, learned counsel for the appellant and Santosh Kumar Shukla, learned A.P.P. for the State.

4. It is submitted by learned counsel for the appellant that the impugned judgment of conviction and sentence are illegal, arbitrary and not sustainable. It is submitted that the learned Court below has committed an illegality by convicting the appellant for the offence under Section 395 of the I.P.C. It is submitted that the appellant is not named in the F.I.R. and he himself surrendered on 06.4.1996 when he learnt about his implication in this case on his own. It is further submitted that the co-accused persons, from whose house recovery of several articles were made, were acquitted by the learned Court below, whereas the appellant has been convicted merely on the identification of P.W. 4 Kunal Prakash Keshri, i.e. the son of the informant. It is further submitted that the even P.W. 2, namely Om Prakash Keshri, i.e. father of the P.W.4 Kunal Prakash Keshri and P.W.3, namely Gayatri Devi, i.e. mother of the said P.W.4 had not identified the appellant and had identified only co-accused, Kasim and Shahid, whereas this appellant has not been named by both of them. It is submitted that the evidence of P.W.4 is not reliable in view of the fact that he was 14 years of age and he can be tutored a witness also. It is submitted that the appellant was exposed to P.W.4, when he was produced before the Court of learned C.J.M., Dhanbad on