Ashraf Hasan vs State Of Madhya Pradesh

The appellant has been tried and convicted for an offence under Section 395 of I.P.C and has been sentenced to suffer rigorous imprisonment for

10 years and a fine of Rs.5,000/- and an additional incarceration of one-year on failing to pay the fine. The appellant was convicted by the judgement

and sentence dated 09/02/2007 passed by the learned Additional Sessions Judge, Bhopal, in Sessions Case No.280/2005. In all, five persons were

convicted by the learned Court below the appellant is one of them. The appellant was given the benefit of suspension of sentence and grant of bail by

this Court vide order dated 07/05/2007.

That, on 17/05/2005 and three days before the incident, one Bablu Hasan told the complainant Nasimuddin that a mini-bus, which is in a good

condition, was up for sale as its owner urgently required Rs.1,50,000/-. Thereafter, the complainant arranged the fund and Badruddin informed the

complainant that he should come with the money at Hindi Bhavan and take the possession of the mini-bus.

That on the date of the incident the complainant went to Hindi Bhavan along with his father Naimuddin, where the co-accused Badruddin and

others were already present. They are stated to have gone to T.T.I Road in an auto- rickshaw and there they stopped the auto near the bridge when a

white ambassador car also stopped near them. In the car there was another accused person, allegedly coaccused Ayub, who was wearing the uniform

of a police officer and who along with other co-accused Firoz, is stated to have forcibly pushed the complainant and his father into the car and left the

place.

The accused persons threatened the complainant and his father with dire consequences and looted the money being carried by the complainant. The

accused persons are stated to have run away from the place.

The complainant Nasimuddin lodged the F.I.R in which the names of the co-accused persons Badruddin, Rauf, Ayub and Firoz were mentioned and

the case was registered under Section 392 read with Section 120-B of the Indian Penal Code. It is undisputed that the name of the appellant was

neither in the F.I.R nor in the 161 statements of the complainant and his father. The police arrested all the four co-accused persons on the next date

itself i.e. on 08/05/2005 and seized the entire money from the co-accused persons and recorded their statements under Section 27 of the Evidence

Act. It is also undisputed that the co-accused persons in their memorandum under Section 27 of the Evidence Act have not taken the name of the

appellant herein. In the F.I.R., which is Exhibit P/3, it is apparent that the word Ambassador has been overwritten above another pre-existing word

and reflects that the same has been done subsequently. The appellant was arrested three months after the incident by the police on 04/08/2005.

Learned amicus curiae appearing on behalf of the appellant has submitted that this is a case of no evidence against the appellant herein. He has

drawn attention of the Court to paragraph 1 of the statement of the complainant Nasimuddin, who has been examined as P.W-3 before the learned

trial Court. In paragraph-1 he states that he only knew Badruddin Hasan from earlier and that the other accused persons he came know to only after

the date of the incident.

Under the circumstances, learned amicus curiae has submitted that there is an admission on the part of this witness that the appellant herein was

previously unknown to this witness and that the same warranted a Test Identification Parade after the arrest of the appellant.

In paragraph-8 of the examination-in-chief of this witness, he categorically states by taking the name of the appellant herein that the appellant was

driving a white colour ambassador car into which the complainant and his father forcibly thrust into. Learned amicus curiae has drawn the attention of

this Court to paragraph-44 of the statement of this witness in cross-examination in which he says that he did not know the co-accused Rauf and Ayub

from before and neither did his father know these two accused persons. Again to show the co-relation between the appellant and the other accused

not being known the complainant, the learned amicus curiae has drawn the attention of this Court to paragraph-68, in which this witness has admitted

to a suggestion as correct that he did not know Feroz and Rauf that he had seen co-accused Feroz and Rauf for the first time only on the date of the

incident.

With regard to the cross-examination specifically directed on behalf of the appellant herein, learned counsel for the appellant has drawn the

attention of this Court to paragraph-76 of this witness, who states that it is correct to suggest that the appellant never indulged in any kind of snatching

of the bag containing the money from the complainant and that he was only driving the car but in the end of the statement, this witness states that he

does not know if the appellant was ever involved in this incident or not. On the basis of the statement of the complainant learned amicus curiae

submits that there is a categorical assertion by the complainant that he is unsure that the appellant was ever involved in the said offence. Thereafter,

learned amicus curiae has drawn the attention of this Court to the statement of Naimuddin, who is the father of the complainant and who has been

examined as P.W-4. In paragraph-1 this witness states that he knows the accused present in Court and that he came to knows about the appellant

herein, who was not present before the learned trial court on that date, after the incident.

Learned counsel for the State while opposing the appeal has stated that even though a T.I.P was not conducted in this case, the same would not

weaken the case of the prosecution as the appellant herein was arrested by the police after being informed by the complainant that he had seen the

appellant along with the car which was used in the incident, on the basis of which, P.W-2 Manpal Singh arrested the appellant herein. Manpal Singh

has stated in his deposition that the appellant was arrested on the basis of the information given by the complainant himself. It is relevant to mention

here that the number of the car is not given in the F.I.R or in the 161 statement of the complainant and his father.

Learned counsel for the State however states that two witnesses Mohd. Rafiq Siddique and Jamil have given in their 161 statements the number

of the white colour ambassador car which was the one that was seized from the appellant herein. Learned counsel for the State has also drawn the

attention to paragraph-8 of the deposition of P.W-3 wherein the witness/complainant has stated clearly that the appellant herein was driving the white

ambassador car. The identification of the appellant in this case has been in the dock. On the date on which the statement of the complainant P.W-3

was recorded before the trial Court, the learned trial Court has criticized the police for the investigation which was done especially the nonconduct of

the T.I.P.

Heard, learned counsel for the parties. Perused the record of the case. The two main witnesses in this case are P.W-3 and P.W-4.

They are the son and the father respectively. Though P.W-3 states in paragraph-8 that the appellant was driving the car, the appellant has not been

named in the F.I.R. It is also apparent from paragraph-1 of the witnesses statements that they only knew co-accused Badru Hasan from before and

they categorically state that they came to know about the other accused persons had only after the incident. As stated hereinabove, paragraphs 44 and

68 of the crossexamination of P.W-3 clearly reveal that even the other four accused persons in this case were not known to the witness P.W-3 or his

father before the date of the incident and lastly in paragraph76, P.W-3 states that he does not know whether the appellant herein was ever involved in

the incident or not. P.W-4 also states in paragraph-1 of his deposition before the learned trial Court that he came to know of the appellant only after

the incident.

The undisputed facts in this case are (a) that the appellant was never named in the F.I.R, (b) the white colour ambassador in which is alleged to

have been driven by him, no number has been mentioned in the F.I.R, (c) the appellant was arrested three months after the incident, (d) there was no

money that was recovered from the appellant and only the car was recovered, and (e) no T.I.P was ever done of the appellant and, therefore, the

appellant was not identified before his dock identification by either P.W-3 or P.W-4.

The police has given no reasoning for the non-conduct of the T.I.P in this case. The contention of the learned counsel for the State that the T.I.P.

of the appellant herein was not required as P.W-2 clearly states in his courts statement that the appellant was arrested and the car was seized only on

account of the information given by P.W-3 and, therefore, there was no need to conduct the T.I.P. The said contention must fail in the light of the fact

that the P.W-3 himself never states that he had informed P.W-2 with regard to the appellant or the car. Even otherwise the fact that P.W-3 and P.W-

4 did not know the appellant from before the incident, it was incumbent upon the police to conduct a T.I.P to dispel any doubt with regard to the

involvement of the appellant in the said offence. This opinion is further reinforced by the fact that information between the incident and the dock

identification of the appellant there was a passage of almost eight months. During this time, the probability of P.W-3 and P.W-4 having seen hundreds

of different faces in their daily routine life would bring into doubt their ability to remember the face and identity of the appellant whom they had seen

only once on the date of the incident and never thereafter.

Under the circumstances, it cannot be said that the dock identification of the appellant by P.W-3 and P.W-4 was reliable to hold that it was the

appellant himself who had participated in the offence above mentioned. As regards the witnesses Mohd. Rafiq Siddiqui and Jamir, who are stated to

have disclosed the number of the white ambassador car which was ultimately seized from the appellant herein, those persons were never examined as

prosecution witnesses before the learned trial Court therefore, their statements under Section 161 are of no consequence. On the basis of what has

been argued and discussed hereinabove, it cannot be said that the prosecution has been able to prove the case about the appellant's involvement

beyond reasonable doubt.

Under the circumstances, the appeal is allowed and the judgment of conviction and sentence dated 09/02/2007 passed by the learned Additional

Sessions Judge, Bhopal in Sessions Case No.280/2005 is set aside and the appellant is acquitted of the charges. His bail bonds shall be discharged.

Before parting with the case, this Court would like to record its appreciation for the efforts and assistance given by the learned amicus curiae.

 The legal aid committee is requested to make payment as per approved rates, for the services of Mr. R. S Shukla, Advocate, who has been

appointed as amicus curiae for the appellant.