Jamiruddin Ansari vs State Of Jharkhand

Shree Chandrashekhar, J

On the basis of the fardbeyan of Pankaj Kumar Bhattacharjee recorded on 19.09.1998 at about 9:30 a.m., Chandankyari (Barmasia) P.S. Case No. 98 of 1998 was registered under section 395 IPC against six unknown dacoits.

The appellant, namely, Jamiruddin Ansari has been granted bail by this Court vide order dated 13.03.2002.

After the investigation, a charge-sheet was submitted against the accused persons, namely, Jamiruddin Ansari and Bhola Bouri @ Kajal Bouri. They have faced the trial on the charge under section 395 IPC. The other accused persons were not apprehended.

In his fardbeyan, the informant has stated that on 18.09.1998 he was going to village Kanakchas on his scooter bearing No. BR-20D 4819 with Sanjeet Kumar Khawas to inform about death of his aunt and when he reached about 1 km south of the village-Kanakchas saw that 4-5 bicycles had blocked the road. When they reached there, suddenly six persons came there and surrounded them. He saw a black- complexioned person about five and half feet tall and with curly hairs. In the torch light which they were flashing he had seen them. He says that black complexioned person assaulted him with butt of the pistol and asked him to hand-over everything he was carrying. The informant has alleged that other five accused persons were armed with Bhujali and Lathi. He has alleged that the accused persons have snatched silver-chain, wrist-watch and Rs. 1500/- from him, but Sanjeet Kumar Khawas was not carrying any valuables. The accused persons assaulted Sanjeet by pulling his hair. According to the informant, two persons from village Kanakchas, namely, Krishnapad Banerjee and Jagdish Banerjee who were apprehended by the criminals were also there and they have seen the occurrence. Finally, the accused persons took them inside the forest, tied them and fled away with his scooter and other belongings.

During the trial, the prosecution has examined altogether eight witnesses; the informant is P.W.-5 and the villagers, namely, Krishnapad Banerjee and Jagdish Banerjee who, according to the informant are eye-witnesses, were also examined by the prosecution.

During the trial, the informant has narrated a similar story of the incident. Presumably, to a suggestion by the defence that previously he had tried to strike a deal for purchase of the scooter which however failed and, therefore, he has lodged a false case, the informant in his cross-examination admits that in the house of Lukman Ansari he was offered the scooter for Rs. 10,000/-, however, the deal was not completed. He claims that he had seen the appellants there and informed the police.

The prosecution witnesses, namely, Krishnapad Banerjee and Jagdish Banerjee have failed to identify the appellant when he was put to Test Identification Parade. In fact, none of the witnesses except the informant has identified the appellant in the Test Identification Parade. At his stage, it needs to be recorded that the Test Identification Parade was conducted on 18.01.1999, about 4 months after the occurrence; recovery of looted articles including the scooter was not made and on the injury caused to the informant, no evidence has been laid by the prosecution. Apparently, identification of the appellant by the informant in Test Identification Parade is not corroborated by any other substantive evidence which would establish commission of the crime by the appellant. Therefore, only on the basis of the evidence of Test Identification Parade, which was conducted four months after the occurrence, the appellant cannot be convicted for the offence like dacoity.

In "Dana Yadav alias Dahu and Others V. State of Bihar" reported in "(2002) 7 SCC 295", the Supreme Court has held that ordinarily identification of an accused for the first time in Court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by any other evidence.

In "Lal Singh v. State of U.P". reported in "(2003)12SCC 554", the Supreme Court has observed thus:

"...........

It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest-possible opportunity, no hard-and-fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety."

In the above discussions, we hold that the prosecution has failed to establish the charge under section 395 IPC against the appellant, namely, Jamiruddin Ansari, and accordingly his conviction under section 395 IPC is set aside.

The appellant, namely, Jamiruddin Ansari is on bail and he is discharged of the liability of bail-bonds furnished by him.

Accordingly, Cr. Appeal (DB) No. 508 of 2001 is allowed.

Let lower court record be transmitted to the Court concerned, forthwith.