Mokhtar Ansari vs State Of Jharkhand

The instant Criminal Appeals have been preferred against a common judgment of conviction dated 11.05.2004 and order of sentence dated

17.05.2004, passed by learned 1st Additional Sessions Judge, Garhwa, in Sessions Trial No. 241/1995, whereby out of eight accused persons, these

two appellants namely Mokhtar Ansari and Kyamuddin Ansari have been convicted for the offence committed and punishable under Section 395 of

the Indian Penal Code and awarded rigorous imprisonment for seven years and a fine of Rs. 500/- each and in default of payment of fine, simple

imprisonment for six months. The period already under gone by both the convicts during the trial will be set off under Section 428 Cr.P.C.

The prosecution case is based upon the written report submitted by the informant Jwala Tiwari before the Officer-in-Charge, Ranka Police Station

in the district of Gumla, alleging therein that on 19.06.1993 at around 7.30 p.m., when the informant along with other family members were sitting in

front of the door, nine cused persons lashed with pistols came to the door of the informant and seven persons entered into the house having gun, pistol

and other weapons and rest two persons having gun and pistol stood at his door. Thereafter, the accused persons looted the utensils and cash of Rs.

1650/- and golden articles, briefcase and other household articles. The informant has further alleged that while the accused persons were looting the

articles, they have threatened the family members not to raise hulla, otherwise they will be killed.

On the basis of the fardbeyan, police instituted Ranka P.S. Case No. 52 of 1993 dated 20.06.1993, under Section 395 of the Indian Penal Code

against nine unknown accused persons.Â

After investigation, the police has submitted three charge sheet. First charge sheet was vide no. 61 of 1993 dated 26.10.1993 which was submitted

against Riyaaz Ansari and Nareshuddin Ansari under Section 395 of the Indian Penal Code. Second charge sheet was submitted vide no. 4 of 1994

dated 24.01.1994 against present appellants Mokhtar Ansari and Kyamuddin Ansari under Sections 395 and 412 of the Indian Penal Code. The third

charge sheet was submitted vide no. 36 of 1995 dated 01.07.1995 under Section 395 of the Indian Penal Code against Kalamuddin Ansari.

  The cognizance of the offence has been taken vide order dated 01.02.1994 and the case has been committed to the court of Sessions vide order

dated 30.05.1995.Â

The charge has been framed against eight accused persons namely Mokhtar Ansari, Reyaz Ansari, Seraj Ansari, Hamid Ansari, Noorsuddin

Ansari, Kyamuddin Ansari, Nazim Ansari and Kalamuddin Ansari under Section 395 of the Indian Penal Code vide order dated 28.04.1998, to which

the appellants have pleaded their innocence and thus, they were put under trial.Â

The prosecution has examined altogether four witnesses and also exhibited a number of documents to prove their case. Â Juman Ansari has been

examined as P.W.1, Jwala Tiwari has been examined as P.W. 2, Md. Garibullah Ansari has been examined as P.W. 3 and Dukhi Singh has been

examined as P.W. 4. One Ram Dhyan Pal, an Advocate Clerk has been examined as court witness No.1 to prove the seizure of the articles and

the charts of test identification parade have been marked as Exhibit- 3 and 4 series. The formal F.I.R. with signature of the Officer-in-Charge has

been proved and marked as Exhibit- 1, fardbeyan has been proved and marked as Exhibit- 2, seizure list has been proved and marked as Exhibit- 3

and 3/1 and the charts of the test identification parade have been proved and marked as Exhibit- 4, 4/1 and 4/2.

After closure of the prosecution evidence, the appellants were examined under Section 313 Cr.P.C. on 28.04.2004, to which they have submitted

that there is no evidence against them and they have also submitted that they have been falsely implicated in this case.

After hearing the parties and on perusal of the record, the learned Trial Court has passed the impugned judgment of conviction and order of

sentence, which has been assailed before this Hon’ble Court.

Heard, learned counsels for the appellants, Mr. Amritanshu Singh assisted by Mr. A.K.Das in Cr. Appeal (SJ) No. 921 of 2004 and Mr. Arvind

Kumar Singh in Cr. Appeal (SJ) No. 1492 of 2007. Learned counsels for the appellants have submitted that the impugned judgment of conviction and

order of sentence is bad in law and cannot sustain in the eyes of law as non-examination of the investigating Officer and the Judicial Magistrate, who

has conducted the test identification parade has caused serious prejudice to the appellants. Learned counsels for the appellants have further submitted

that P.W. 1 is a formal witness, while P.W. 3 and P.W. 4 have been declared hostile by the prosecution. Learned counsels for the appellants have

further submitted that except the informant Jwala Tiwari, none of the inmates of the house have been examined. Learned counsels for the appellants

have further submitted that the informant has stated in paragraph- 9 of his deposition, that he has lodged F.I.R. against unknown persons and has

further stated in paragraph- 10 of his cross-examination, that in the written report, he has never claimed to identify any accused persons.

  Learned counsels for the appellants have further submitted that in paragraph- 27 of the cross-examination, the informant has stated that he has

never claimed to identify the accused persons and the test identification parade has been conducted on 24.01.1994, whereas the date of occurrence is

19.06.1993. From perusal of the charts of the test identification parade, which has been marked as Exhibit- 4/2, it appears that the accused persons

have been identified by the informant in the light of lantern when they were putting the lantern off. Learned counsels for the appellants have further

submitted that the prosecution has not stated in the fardbeyan or in the deposition of P.W. 2, that any of the accused persons was putting off the

lantern, as such, non-examination of the Judicial Magistrate, who conducted the test identification parade has caused serious prejudice to the

appellants. The test identification parade has been conducted after lapse of more than six months. In the meantime, the accused was produced

before the court several times, as such the sanctity of test identification parade is under cloud. The informant has claimed in the First Information

Report as well as in deposition as stated above in paragraph- 10 and 27, that he has never claimed in the written report that he can recognize the

accused persons and as such the test identification parade is not sustainable in the eyes of law and cannot be relied upon for convicting the appellants.

Learned counsels for the appellants have further submitted that Mukhtar Ansari has been put on test identification parade on 13.01.1994, which has

been proved and marked as Exhibit- 4/1. This accused was identified by Jwala Tiwari but could not be identified by his father Noren Tiwari, who has

identified the accused Riyaaz Ansari without assigning any role against him. Learned counsels for the appellants have further submitted that since out

of nine persons, it is alleged that Mukhtar Ansari was one of the accused but in the First Information Report or in the deposition as stated in

paragraph-10 and 27 of his cross-examination, the informant has categorically stated that he has not claimed to identify any of the accused persons.

Learned counsels for the appellants have further submitted that non-examination of the investigating officer, has certainly caused serious prejudice to

the appellants, who could not get an opportunity to draw the attention of this Court with respect to their false implication in the case and with respect

to their test identification parade. Learned counsels for the appellants have further submitted that non-examination of the Judicial Magistrate, who has

conducted the test identification parade has also caused serious prejudice to the appellants, as the appellants were not provided an opportunity to

cross-examine the Judicial Magistrate who conducted the test identification parade after more than six months from the date of occurrence. When

once, the informant has claimed that he cannot recognize the persons who have committed the dacoity, then later on recognition of the accused

persons in the test identification parade after more than six months is doubtful and cannot be accepted. Learned counsels for the appellants have

further stated that the learned Trial Court has disbelieved half of the prosecution case by acquitting six of the accused persons who have been jointly

tried and only convicted these two appellants on the basis of test identification parade which is itself under cloud and as such, the benefit of doubt may

be granted in favour of the appellants and they may be acquitted of the charges and conviction.

Learned counsel for the State, Mr. Satish Kr. Keshri, Additional Public Prosecutor has submitted that the impugned judgment of conviction and

order of sentence is based on the material available on record and the learned Trial Court has rightly convicted the appellants Mukhtar Ansari and

Kyamuddin Ansari under Section 395 of the Indian Penal Code, as they have been identified by informant during test identification parade as the

culprit, who have committed dacoity. 11. Heard, learned counsel for the appellants, Mr. Amritanshu Singh assisted by Mr. A.K. Das in Cr. Appeal

(SJ) No. 921 of 2004 and Mr. Arvind Kumar Sinha in Cr. Appeal (SJ) No. 1492 of 2007 and learned counsel for the State, Mr. Satish Kr. Keshri,

Additional Public Prosecutor and from perusal of the record, i.e. F.I.R., charge, evidence of four witnesses, Exhibit- up to 4 series, one court witness,

this Court is of the opinion that informant has never claimed in the First Information Report or in his deposition as stated in paragraph- 10 and 27 of his

crossexamination, to identify the accused persons, the test identification parade is not an evidence but it is only a guideline with respect to the

investigation conducted by the investigating officer during investigation and has corroborative value. The conviction of the appellants on the basis of

test identification parade which has been held after six months, in absence of examination of the learned Judicial Magistrate who conducted the test

identification parade and the investigating officer has certainly caused prejudice to the appellants. Considering the lacunae present in the prosecution

case in conducting the test identification parade, this Court cannot accept the test identification parade as corroborative evidence for convicting the

appellants and as such, this Court is of the opinion that benefit of doubt must go in favour of the appellants.Â

In the above facts and circumstances of the case, the impugned judgment of conviction dated 11.05.2004 and order of sentence dated 17.05.2004,

passed by learned 1st Additional Sessions Judge, Garhwa, in Sessions Trial No. 241/1995 in connection with Ranka P.S. Case No. 52/1993 arising out

of G.R. No. 444/1993 in both the cases are hereby set-aside and the appellants Mokhtar Ansari [in Cr. Appeal (SJ) No. 921 of 2004] and Kyamuddin

Ansari [in Cr. Appeal (SJ) No. 1492 of 2007] are acquitted of the charge and conviction under Section 395 of the Indian Penal Code by giving benefit

of doubt.

The appellants, who are on bail are discharged from liability of their bail bonds.   Â

In the result, both the criminal appeals are allowed.

Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.Â