Nisar Ahmad vs State Of Jharkhand

Heard learned counsel for the appellant and learned counsel for the State.

This appeal is directed against the judgment of conviction and order of sentence dated 27.05.2006 passed by Sri Rajesh Kumar Pandey, Addl.

Sessions Judge, Fast Track Court-VI, Hazaribag in Sessions Trial No. 53/05 whereby and whereunder the appellant has been convicted for the

offence under Sections 395 and 412 of the Indian Penal Code and has been sentenced to undergo R.I. for five years for the offence under Section

395 of the Indian Penal Code and further has been sentenced to undergo R.I. for five years for the offence under Section 412 of the Indian Penal

Code. Fine of Rs. 1000/- has been imposed for both the Sections separately with stipulation that in default thereof further punishment of R.I. for six

month. Both the sentences were directed to be run concurrently.

Giddi P. S. Case No. 48 of 2004 has been registered on 31.08.2004 on the fardbeyan of Braj Kishore Mahto under Section 395 of the Indian Penal

Code. As per the FIR, on the night of 30.08.2004 while the informant namely Braj Kishore Mahto was sleeping with his family members, two

unknown persons claiming to be the members of MCC have entered into the house and looted Rs. 16,000/- cash, some organaments and documents

relating to land. Three unknown persons have also assisted them in the crime. It is claimed by the informant that if he and his family member see the

accused persons, they will identified them. Accordingly, FIR has been registered against five unknown persons.

On completion of investigation, charge sheet was submitted against the five accused persons including the present appellant and after that

cognizance was taken on 29.11.2004, the case was committed for Trial. On conclusion of trial, two persons namely Nisar Ahmad (this appellant) and

Radhe Mahto have been convicted under Section 395 and 412 of the Indian Penal Code and other three persons have been acquitted as there was no

evidence against them. Charge was framed under Sections 395 and 412 of the Indian Penal Code against the appellant, to which he pleaded not guilty

and claimed to be tried.

On conclusion of the prosecution case, statement of the accused person under Section 313 of the Cr. P. C. was recorded, in which his defense was

denial.

Being aggrieved, the present appeal has been filed.

To substantiate the charges, altogether eight witnesses have been examined by the prosecution. P.W. -1, Jhalo Devi; P.W. -2, Sarita Devi; P. W. -

3, Braj Kishor Mahto (inormant) and P. W. 6, Alkhu Mahto are the family members and they have supported the incident and have identified Radhe

Mahto one of the convicted accused, but the present appellant has not been identified by the above witnesses. P.W.-4, Bharat Bhushan Mahto is the

witness of the test identification parade of the articles, which have been identified by the P. W. -3, Braj Kishor Mahto (informant). P. W.- 5, Indrajit

Singh has produced seized articles specially documents relating to land. P. W.- 7, Narayan Prasad, who is the Investigating Officer of the case, has

supported the FIR and has testified that on 31.08.2004 after taking over the investigation, he received information that two persons have been arrested

with certain looted articles at Naya More. Thereafter he went there and seized the articles from possession of this appellant and Radhe Mahto and

arrested them also. The looted articles including the document of land has been identified by the other witnesses. P. W. -8, is the formal witness, who

has proved the seizure list.

Heard learned counsel for the parties and perused the record. From perusal of record, it appears that after conclusion of the trial, three persons

have been acquitted and two persons i.e. the present appellant and Radhe Mahto have been convicted. The material available against them, which has

been considered for conviction, as confessional statement of the appellant and Radhe Mahto and seizure of the looted articles from their possession.

It is trite that confession before the police is not an admissible piece of evidence, but family members of the informant and the informant have

claimed that they can identify the dacoits when they will see them, but they have not identified the present appellant, who was present in dock. So far

as seizure of looted articles from the present appellant is concerned, as per the testimony of the Investigating Officer, the appellant has been

apprehended on 31.08.2008, but he has been remanded to the judicial custody on 02.09.2004. P. W.- 8, who is seizure list witness, has identified the

seizure list. However, he has testified that he has not been shown the seized articles. Thus, the seizure itself is doubtful specially seizure from the

appellant. Thus only incriminating evidence available on record is the confessional statement, which is not an admissible evidence and seizure from the

appellant is doubtful as they have been apprehended on 31.08.2008 while remanded on 02.09.2004.

Thus from the discussion made above, it is evident that there is no sufficient material on record sustaining the conviction of the appellant under

Sections 395 and 412 of the Indian Penal Code. Accordingly, the appellant namely Nisar Ahmad is discharged from the charges of Sections 395 and

412 of the Indian Penal Code and the judgment of conviction and order of sentence dated 27.05.2006 passed by Sri Rajesh Kumar Pandey, Addl.

Sessions Judge, Fast Track Court-VI, Hazaribag in Sessions Trial No. 53/05 is, hereby, set aside and the appeal stands allowed.

Since the appellant is already on bail, he is discharged from the liability of his bail bond.