Lutru Lohara vs State of Jharkhand

Amareshwar Sahay, J.—The present appeal has been preferred by the sole appellant - Lutru Lohara against the Impugned Judgment dated 04.10.2002, passed by the Additional District and Sessions Judge, Lohardaga in S.T. No. 184 of 1997, whereby, the appellant has been held guilty for committing offence u/s 392 of the Indian Penal Code and has been sentenced to undergo R.I. for seven (7) years.

The Sole appellant was charged u/s 395 of the Indian Penal Code for committing dacoity in the house of the informant and two others in Village - Barhi Chowk, P.S. - Senha, District - Lohardaga along with seven other.

One Chamru oraon (P.W.-4) lodged a Fard Bayan on 12.02.1996 alleging therein that on the previous night, he was sleeping with Mahu Oraon, Balak Oraon, Huna Oraon and Rama Oraon in his Hotel situated at Barhi Chowk. In the mid night, at about 12:30 A.M., he woke up on hearing some sound. He saw that some persons were flashing torch and had entered in the Hotel. Those miscreants tied the informant: and others sleeping there and asked about owner of the Hotel. On receipt of reply that the owner was not there, they demanded money whatever was there in their possession.

One of the miscreants took out a sum of Rs. 850/ - from the pocket of the informant and Rs. 20/ - to 30/ - from others. They also looted sweets kept in the Hotel and a sword and a lathi from the said Hotel.

After completing loot in the Hotel, the miscreants went to a nearby grocery shop of one Parmeshwar Oraon and after 15 minutes, they again came back to the Hotel. The mother of Bajrang Mahto (P.W.-2) started raising alarm on which, the villagers assembled there and then the miscreants fled away.

The informant alleged that the miscreants were seven (7) in numbers and were all aged in between 20 - 25 years, dressed in Sweaters, Jackets, Pant etc.... The two of them were of short height and five were tall, lean and thin and were speaking Hindi. The wife of Parmeshwar disclosed that the miscreants looted Golden Nose Pin worth Rs. 1,000/ -, Silver Payal, Radio, H.M.T. Watch, 10 Pcs. Lux Soap, 10 - 12 Packet of Biscuits and Three Tray of Eggs from the house of Diwakar Mahto. They also looted One Tape Recorder and One Silver Ornament worth Rs. 1,000/ -.

In course of fleeing away, the miscreants left a pair of shoes which the informant kept in his possession. On such report made by the informant, the Police registered a case u/s 395 of the Indian Penal Code against seven unknown persons.

On completion of investigation, chargesheet was submitted u/s 395 of the Indian Penal Code against this appellant - Ludhu Oraon. The Charge was also framed against the appellant u/s 395 of the Indian Penal Code and he was put on trial. He pleaded not guilty.

In order to establish its case, altogether, eight witnesses were examined on behalf of the prosecution.

P.W.-1 is Rama Oraon and he, according to the prosecution, was sleeping in the Hotel on the date and time of occurrence and he saw the occurrence.

P.W.-2 is Bajrang Mahto. According to the prosecution, in his house also dacoity was committed by the miscreants in the same night.

P.W.-3 is Radha Debi. It is said that in her house also dacoity was committed by the miscreants in the same night.

P.W.-4 Chamru Oraon is the informant in this case.

P.W.-5 Balak Oraon. He was also present in the Hotel where the dacoity was committed on the alleged date and time.

P.W.-6 Enamul Haque is a formal witness who has proved the formal F.I.R.

P.W.-7 is Bhagu Oraon. According to the prosecution, he was also present in the Hotel where the dacoity took place in the alleged date and time.

P.W.-8 is Mahadeo Oraon, the Investigating Officer of the case.

The Trial Court, on the basis of the evidence adduced by the prosecution, convicted the appellant for the offence u/s 392 of the Indian Penal Code, holding that the provisions of Section 395 of the Indian Penal Code was not attracted in the present case.

Challenging the conviction and sentence passed by the Trial Court, the Learned Counsel appearing for the appellant submitted that though the prosecution miserably failed to prove its case beyond all reasonable doubt, but the Trial Court has wrongly and illegally convicted and sentenced the appellant for the offence u/s 392 of the Indian Penal Code.

it is submitted that on close scrutiny of the prosecution evidence, it would appear that the appellant, who is a co-villager of the prosecution witness, has; wrongly and illegally been implicated in this case by the Police and he has not been identified by any of the prosecution witnesses as a miscreant who took part in commission of dacoity.

On the other hand, learned APP submitted that from the evidence of the prosecution witnesses, it is established that the appellant was one of the miscreants who committed dacoity in the Hotel as well as in other house;; of the prosecution witnesses on the date and time of occurrence and, therefore, he has rightly been convicted and sentenced by the Trial Court.

In order to test the rival contention of the parties, I have careful gone through the evidence of the prosecution witnesses and on careful scrutiny, I find that the whole case is based on identification of the accused in the Test Identification Parade. It is significant to note that neither the Test Identification Chart has been proved in this case during the Trial nor the Magistrate, who conducted the Test Identification Parade has been produced as a witness by the prosecution in order to establish that the Test Identification Parade was conducted by him.

So far as the oral evidence is concerned, I find that P.W.-1 - Rama Oraon, in his examination in chief, has stated that in course of dacoity, the miscreants took away wrist watch and cash of 60 - 65 from his possession and they also looted sweets from the Hotel. He had gone to Jail to attend Test Identification Parade where he identified one accused who was present in the dock during trial i.e. the appellant.

In cross examination, he ha:; stated that this appellant was his co-villager and he is by profession Lohar.

Therefore, it appears that this; appellant was known to this witness from before being a co-villager and therefore, had the appellant present at the time of dacoity, he must have named him in the F.I.R.... But as it appears that the F.I.R. was registered against seven unknown persons.

The other witness - P.W.-2 Bajrung Mahto, in whose house dacoity was also committed, has stated in his examination-in-chief that he could not identify any of the dacoits. In cross examination, he has stated that he could not identify the dacoits since it was dark and the dacoits had covered their face.

P.W.-3 - Radha Debi is not on the point of identification.

P.W.-4 - Chamru Oraon being the informant, is the main witness in this case. He has supported the allegations made by him in his Fard Bayan but there are certain important infirmities in his evidence which makes his statement to be not reliable.

In para-6 of his Examination-in-Chief, he has stated that he went to Jail to attend T.I.P. for identification and he could identify one accused, who was having Bhujali in his hand at the time of occurrence and according to him, he identified the appellant in Test Identification Parade but the identification made by him in Test Identification Parade becomes wholly unreliable in view of the fact that he stated in his cross examination in para-10 that after arrest, the appellant was brought to him in his shop. He further stated that the Police told him that the appellant was the person who had committed dacoity.

In Para-11 of his evidence, he has more specifically stated that he identified this appellant on being asked by the Police [Police Ke Kahne Par Maine Lutru Ke Pahchan Ki. Main Nahin Kah Sakta Ki Lutru Ne Mere Dukan Main Dakaiti Ki Thi]

Therefore, in view of the above statements made by him, his identification of this appellant becomes of no value.

The evidence of the prosecution witnesses do not inspire confidence. On such weak evidence, the conviction and sentence of the appellant cannot be upheld. The Trial court has committed serious error in convicting the appellant for the offence u/s 392 of the Indian Penal Code.

Consequently, for the reasons stated hereinabove, this Criminal Appeal is allowed. The conviction and sentence passed by the Trial court against the appellant is hereby set aside. The appellant is in custody and as such, he is directed to be released forthwith if not wanted in any other case.