1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (S.B.) No. 653 of 2003 (Against the judgment of conviction and order of sentence dated 30 th April,2003 and 1st May, 2003 passed by the Additional Sessions JudgeXIII,Dhanbad in connection with S.T. No. 355 of 1991 arising out of Govindpur P.S. Case no. 71 of 1988 , G.R. no. 1032 of 1988) Krishna Gupta, son of Ganowri Sao R/o Village Fufuwadih, P.S. Gobindpur (Barbada), District Dhanbad …… Appellant -Versus- The State of Jharkhand ...... Respondent ------ CORAM : HON’BLE MR. JUSTICE RATNAKER BHENGRA ------ For the Appellant : Mr. Anurag Kashyap, Advocate For the Respondent : Mr. Gauri Shankar Prasad,A.P.P. C.A.V. On:
17. 05.2015 Delivered on:19.11.2016 RATNAKER BHENGRA,J This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 30.04.2003 and 01.05.2003 respectively passed by Shri Binay Kumar Sahay, Additional Sessions Judge XIII, Dhanbad in S.T. No. 355 of 1991 whereby and whereunder appellant had been sentenced to undergo R.I. for seven years under Section 395 of the Indian Penal Code. 2. The prosecution case, in brief, is that on 22.4.1988 at about 8 p.m. the informant Govardhan Mahato was talking to his brother, son and nephew at the back side of his house which was situated in village Baglatand, Udaypur within P.S. Gobindpur, Dist. Dhanbad. In the meantime, the informant heard alarm, he entered into the courtyard of his house and saw that one miscreant was snatching ornaments from the person of his sisterinlaw. The informant protested upon which the miscreants assaulted the informant with the butt of the gun on his head and back. Thereafter, the nephew of the informant and others started shouting. There after the miscreants also assaulted his nephew. The miscreants also hurled bomb outside the house. The miscreants looted away ornaments worth Rupees Twenty to Twenty Five thousand. It is also alleged in the FIR that the informant and other inmates of the house claimed to identify the miscreants if shown to them later on. 3. The informant reported the matter to the police who after recording the fardbeyan registered a case u/s 395 IPC against unknown 2 and after investigation submitted charge sheet against the present appellant only u/s 395 & 397 IPC. The learned C.J.M. Dhanbad took cognizance of the offence accordingly and transferred the case to the learned Magistrate for commitment. The learned Magistrate after complying with the provisions u/s 207 Cr.P.C. committed the case to the court of Sessions.The charge was framed against the accused to which he pleaded not guilty and claimed to be tried.
4. The prosecution has examined altogether nine witnesses. Ghanshyam Mahato, P.W. 1 claimed to be an eye witness to the alleged occurrence. In his evidence he stated that on 22.4.1988 at about 8 p.m. he was at the back side of his house along with his brother, son and nephew. He heard alarm then his brother Goberdhan went inside the house. The dacoits hurled bomb and looted away ornaments utensils and clothes and also assaulted his daughters in law Pushpa and Vidya. He also stated that Ramchandar and Govardhan had also sustained injuries. He identified the accused in court. However, in his crossexamination he has stated that he had not identified any miscreants.
5. Prem Prakash, P.W. 2 claimed to be an eye witness to the alleged occurrence. He has stated in his evidence that he identified the present appellant at the time of occurrence and he has also identified the accused in court. Moreover, he has stated that he had identified the accused in T.I.Parade also. In his crossexamination he has stated that he had not seen the accused Krishna Gupta at the police station and he had identified him among 30/40 persons in T.I.Parade. He has also stated that he did not know the accused from before. 6. Pushpa Devi, P.W. 3 has also claimed to an eye witness to the alleged occurrence. She has stated that 7/8 unknown miscreants entered the house having pistol, dagger and rod in their hands and looted ornaments, utensils and clothes belonging to herself and the family. The accused persons also assaulted her, her brotherinlaw and fatherinlaw. She identified the accused in court and stated that she had also identified him in T.I.Parade. In her corssexamination she has stated that she had identified accused in T.I.Parade among 30/40 persons. 7. Ram Chandra Sah, P.W. 4 has supported the prosecution case as an eye witness. However, he has not identified the accused. 8. Shambhu Nath Mahato, P.W. 5 is not an eyewitness to the 3 occurrence but has stated that on alarm he reached the informant's house then the miscreants hurled bomb. As a result he sustained injury in his leg. However, he has stated that he had not seen any accused. 9. P.W. 6, Gobardhan Mahato, the informant has deposed that the incident is of eight years ago. He has supported that the incident had taken place and certain items were looted. However, he has not identified any of the appellant. 10. Prabhat Kumar Upadhaya, P.W.9 is the Judicial Magistrate who has conducted the T.I.Parade inside the jail. He has stated in his evidence that on 28.4.1988 he had conducted T.I.P. in which Pushpa Devi and Prem Prakash Sao had identified the accused Krishna Gupta. He has proved the T.I.P. Chart Ext.1. He has also stated that while holding T.I.Parade he had observed all the legal formalities of T.I.Parade. In crossexamination he has stated that Prem Prakash and Pushpa Devi had stated before him that the accused Krishna Gupta had assaulted them at the time of occurrence. 11. The defence has examined only one witenss in support of its case. He is Tepa Das D.W.1. He has stated in his evidence that he has not heard about complicity in crime by this accused in any case except this case. 12. Learned counsel for the appellant has initially gone through the depositions of the witness and tried to find weakness in their evidence. He has submitted that P.W.1, P.W.4. P.W.5 and even P.W.6, who is the informant has not identified the accused. Regarding P.W.2 he has stated, why he only recognized the appellant in T.I parade and not before, hence recognition in T.I.P. may be questionable. About P.W3, appellants counsel has stated that, she has not said any thing about P.W.2 or Prem Prakash's illness and also said that she did not see the assault on Prem Prakash because she was in another room. That even P.W. 4 did not claim to be beaten up by any particular dacoit, but only generally. Since P.W.6, the informant has admitted that he was not inside, he must not have seen anything or what was happening inside the house. Counsel also said that P.W. 6 recognized the wrong person, one Gautam Sarkar in the T.I parade and even the magistrate conducting the T.I parade, P.W. 9 has said so. 13. Learned counsel for the appellant further submitted that there is one defence witness, D.W. No. 1, Tepa Das and he has deposed that he had gone to the police station and seen P.W.2 and P.W.3 also present there. 4 After picking holes or what he considered deficiencies in the witness evidence, counsel for the appellant also submitted that, it is not clear on what basis the recognition by P.W. 3 of this appellant rests on. Counsel said that P.W.3 had during T.I.P. stated that she saw P.W. 5 (Ramchander) being assaulted. But P.W.5 himself did not recognize any of the dacoits. That the prosecution story is weak further because, P.W.2 claims assault but he has no injury to show. 14. Counsel has also asserted that there was no recovery of the alleged looted articles, hence dacoity did not take place. He has further submitted that since I.O was not examined, the place of occurrence cannot be said to have been established and if that is so, the alleged crime is also not established. He has also cast some aspersions about presence of certain witnesses in police station, supportedly prior to T.I.P. and read out the Rule 236 of Bihar Police Manual, which reads as under:
“1. These suspects shall be kept at a place where identifying witness can not have access to him. 2. At the time of taking the suspects to Court or Jail, precaution shall be taken that none is able to see them and hence, they shall be taken in closed vehicles or if such vehicles are not available, their faces shall be covered in such a manner that they can not be recognized. 3. As far as possible, the photographs of suspected persons shall not be published before identification. 4. The investigator shall not keep suspected persons in police custody before holding Test identification. 5. The prosecutor shall request the Magistrate that these persons should not be released on bail before identification.
6. If the physical characteristics of any suspected person are such that on account of these, he can be searched in a group, then as far as possible such persons shall be assembled for mixing up who have similar characteristics or the characteristics shall be covered. The investigator shall see before identification parade begins that the suspected person is available in it. 7. For identification, one suspected person is to be mixed with 810 persons and not that ten suspected persons shall be mixed in a small group. 8. Identification should be done without delay because identification done with delay is not fully acceptable to Courts. 9. Where the description of suspected persons in the first information report or in the statements of 5 witnesses are so explicit that there is no suspicion left of any kind, it is not essential to hold identification parade. 10. The investigating officer though his presence may be essential outside shall not be present while the identification is in progress. 11. If a witness is unable to attend an identification parade and identification is considered necessary, this may be arranged with reference to photograph, details of which are incorporated in Appendix 22.
12. When suspected persons are brought for identification its chart shall be prepared in P.M. Form no. 42. An indication of the above facts should be given in case diary and identification chart.” He has also cited Bhagirath Paswan Vs. State of Bihar, Cr. A(S.J.) 964 of 2006 order dated 22.7.2011 with reference to Rule 236.
15. Learned APP, Mr. Gauri Shankar Prasad, however asserted that, it does not seem that the occurrence has been denied by the appellant herein, and neither in the impugned judgment. He has further submitted that there are several witnesses and two witnesses are star witnesses, P.W.2 and P.W.3 and their evidence has not been broken or discredited. Moreover, out of 30 to 40 persons they identified the appellants so the identification is credit worthy. Regarding P.W.2 counsel submitted that he has clearly deposed what happened and also stated that he recognized this appellant also in court. He has been very clear in his crossexamination that when he went to T.I.P he did not identify the appellant from before but recognized him in the T.I.P. 16. Regarding P.W.3, Pushpa Devi, counsel has stated that she deposed that 78 persons had entered with knives, pistols and rods. They snatched jewelry from body as well as clothes and utensils. That Gobardhan and others were assaulted. She has deposed that she recognized this appellant in jail in front of magistrate during T.I.P. and that she has also recognized him in court. P.W.3 has also said, this appellant was also assaulting the inmates of the house. In her cross examination she has said that there were about 40 persons in the T.I.P. and from amongst them she identified this appellant from the front and by touching his finger. That she identified the appellant separately from P.W. 2, and that only after he had left she identified this appellant. She has categorically stated that this appellant was not shown or pointed out to her before identification. Based on the identification of two star witnesses 6 and their evidence. The appellants conviction deserved to be upheld. Findings: 17. The findings are dependent on at least five eye witnesses, two of whom also identify and recognize this appellant Krishna Gupta. P.W.1, P.W.2, P.W.3, P.W.4 and P.W.6 are witnesses who are eye witnesses to the occurrence. In the fardbeyan P.W.6 has mentioned that his brother, son and nephew were there at that time, as well as P.W. 3, who was also present and witnessed the dacoity, and also the assaults. P.W.6 Gobardhan Mahato, the informant himself, Ghanshyam Mahato or P.W.1 is his brother mentioned in fardbeyan, Pushpa Devi, P.W.3, Ramchandra Sao, P.W.4 all those who have been mentioned in the fardbeyan. According to the fardbeyan, other persons also seem to be present during the incident.
18. In fact, even the defence witness, D.W.1 in para 5 of his deposition stated that at Gobardhan Mahato's place, 1012 years ago a dacoity took place, though he does not claim knowledge of the assaults on the inmates. If the defence witness himself affirms the occurrence, then the next step is whom was the crime committed by. For answering the question, the evidence of P.W.2 and P.W.3 seem reliable. There is no reference that there is any prior enmity or dispute subsisting with this appellant. In that case, there will not be the need for a T.I.P. The point is that there is no reason to unnecessarily implicate an innocent man for the crime. Both P.W.2 and P.W.3, have separately recognized the appellant from amongst 30 to 40 persons. Two persons doing so, leads to the inference that the appellant was involved in the crime and hence recognized. It is clear from the fardbeyan and the evidence of the witnesses that the dacoits had not used any mask or cloth to cover their faces. Regarding the point of the appellant that no place of occurrence is established since no I.O. has been examined, is not sustainable in face of the D.W.1 and all the prosecution witnesses who do say that the incident did take place and all the prosecution witnesses who describe or affirm the incident to have taken place where and when it did take place. 19. Regarding identification, one more point in favour of the prosecution is that the informant and other inmates had claimed that they would be able to identify the miscreants if shown to them. One aspect that may go in favour of the accused persons including this appellant is that 7 inspite of being 8 to 10 in number and being armed with various weapons including pistols they seem to have inflicted minimum injuries on the persons or bodies of the inmates. The informant himself was assaulted by the butt of the pistol and the bomb was exploded outside, may be just to scare persons. 20. Thus having gone through the arguments, records of the case and evidence and based on the aforesaid reasonings I uphold the judgment of conviction and order of sentence passed by the learned Trial Court in S.T. No. 355 of 1991 dated 30.4.2003 and 1.5.2003 respectively, however, bearing in mind that the occurrence is of 1988 and we are in 2016, almost 28 years have passed and the appellant must have faced the hardships of Trial and Appeal. Moreover, I have also noted that though armed, they do not seem to have had any intention to kill or murder, so for these aforesaid reasons the sentence is modified to the period already undergone. Appellants already on bail, he is discharged from the liability of bail bond. 21. Accordingly, appeal is dismissed with aforesaid modification in sentence. (RATNAKER BHENGRA,J) Jharkhand High Court,Ranchi dated:19.11.2016(Nibha)/NAFR