IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J) No. 914 of 2005
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Chaneshwar Paswan Appellant
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Versus
The State of Jharkhand Respondent
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CORAM: HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Ms. Alaka Kumari, Advocate
:Mrs. Ayush Kumar Verma, Advocate
For the State : Mrs. Nehala Sharmin, Spl.P.P.
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Oral Judgment in Court
th
13/Dated:28 June, 2024
This Criminal Appeal has been filed on behalf of the
appellant by challenging the judgment of conviction dated
31.05.2005 and sentence dated 31.05.2005 passed in S.T.
No.240 of 2002, corresponding to G.R. No.1271 of 2001 by
th
Sri Gautam Mahapatra, learned 7 Additional Sessions
Judge, Palamau at Daltonganj by which the appellant has
been convicted for the offence under Section 395 of the I.P.C
and sentenced him to undergo R.I for seven (07) years and
fine of Rs.5,000/- and in default of fine he is further
sentenced to undergo imprisonment for one year.
2. An F.I.R was instituted by Chando Devi that on
05.10.2001 at about 11.00 p.m. while all the family members
were sleeping in the house then she woke up hearing the
sound of dog barking and saw 7 to 8 persons were standing at
the Angan and all of them over powered her and her husband
at the point of Pistol and demanded cash and ornaments.
Thereafter the miscreants entered into the room and looted
away valuable articles including Wrist Watch, Ornaments
after breaking the lock of the boxes and also looted away
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cash of Rs.100/-. The Dacoits were in the age group of 20-30
years and some of them had covered their face and some of
them were armed with Pistol. The informant claimed to have
identified two persons from the miscreants and one of the
miscreants was Arbind Paswan, who was holding a Pistol and
the other person was dacoit Jagan Bishwakarma and she
claimed to have identified both the Dacoits in the Moonlight.
3. On the basis of fardbeyan of the informant-Chando
Devi, the police instituted Chhatarpur P.S. Case No.83 of
2001 for the offence under Section 395 of the IPC against
said Arbind Paswan, Jagan Bishwakarma and five unknown.
4. The police, after investigation, had submitted charge
sheet on 10.01.2002 only against Jagan Bishwakarma and
Chaneswar Paswan @ Yogendra Paswan (i.e. the appellant)
under Section 395/397 of the I.P.C.
5. Learned counsel for the appellant submitted that the
appellant is innocent and has committed no offence. It is
submitted that it was the first offence of the appellant and he
was in custody since 20.10.2001 till 27.06.2007 (i.e. around
five years and eight months) and as such lenient view may be
taken for the appellant.
6. On the other hand, learned APP for the State has
raised no objection.
7. It transpires that after lodging of the FIR by the
informant-Chando Devi on 06.10.2001 against the five
miscreants, the police submitted charge sheet on 10.01.2002
against Jagan Bishwakarma and Chaneshwar Paswan @
Yogendra Paswan (i.e. the appellant) for the offence under
Sections 395/397 of the I.P.C. Thereafter the learned C.J.M,
Daltonganj had taken cognizance under Section 395/397 of
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the I.P.C.
8. It transpires that after supplying of the police papers
to the accused persons including the appellant, the charges
were framed on 12.03.2003 under Section 395 and 397 of the
IPC against the appellant-Chaneshwar Paswan @ Jogender
Paswan and one Jagan Bishwakarma by Sri R.R. Tripathi,
learned Additional Sessions Judge, FTC-III, Palamau at
Daltonganj and to which they pleaded not guilty and claimed
to be tried.
9. During trial, the prosecution had got examined seven
(07) witnesses in support of its case, who are as follows:-
(i) P.W-1 is Chando Devi i.e. the Informant,
(ii) P.W-2 is Brahmdeo Yadav,
(iii) P.W-3 is Rookmani Devi,
(iv) P.W-4 is Pradeep Kumar Chourasia,
(v) P.W-5 is Keswar Bishwakarma,
(vi) P.W-6 is Lakhan Mistry and
(vii) P.W-7 is Sheela Devi.
10. The prosecution in support of its case had got marked
the following documents as Exhibits, which are as follows:-
(i) Exhibit-1 is the TIP Chart,
(ii) Exhibit-1/1 is the Signature of Chandrashekhar
Prasad Sharma
11. Thereafter the appellant-Chaneshwar Paswan and
Jagan Bishwakarma were examined under section 313 Cr.P.C
on 16.02.2005 and to which he denied the circumstances put
forth before him.
12. The defence in support of its case had got examined
three witnesses, who are as follows:
(i) D.W.-1 is Udeswar Bishwakarma,
(ii) D.W-2 is Bansi Bishwakarma and
(iii) D.W-3 is Brij Nath Paswan
13. Thereafter the learned court below, after hearing both
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the sides had acquitted the co-accused Jagan Bishwakarma
for the offence under Sections 395/397 of the I.P.C by giving
benefit of doubt whereas the Court below has convicted the
appellant for the offence under Section 395 of the IPC and
sentenced him to undergo RI for seven (07) years and pay
fine of Rs.5,000/-, hence this appeal has been filed.
14. It appears from the FIR that the dacoits had
committed dacoity not only in the house of Chando Devi but
also in the house of one Brahmdeo Yadav and it is alleged
that the miscreants had committed loot of around Rs.10,000/-
and clothes from the house of Brahmdeo Yadav.
15. Before scrutinizing the evidence of P.W-1, it would
be relevant to refer the evidence of other witnesses.
16. P.W.-2 is Brahmdeo Yadav, who has stated during his
evidence that he is acquainted with the informant-Chando
Devi and stated that the dacoity was committed in the house
of Chando Devi and the family member of the informant was
assaulted by Lathi. However, he had not identified any
Dacoit and not taken the name of this appellant before the
learned Court below. He further stated that he was also
assaulted by the Dacoits but he did not recognize any
Dacoits. He also stated that the accused persons present
before the Court below had not committed any dacoity.
Thus, P.W-2 has not supported the prosecution case
and has supported the prosecution case merely on the point
of committed dacoity but he completely denied for
identifying any accused persons including the appellant for
committing dacoity in his house.Thus, the evidence of P.W-2
is not reliable.
17. P.W-3 is Rookmani Devi, who had supported the
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prosecution case that Dacoits had committed dacoity in her
house and they were assaulted by Dacoits and they had
looted clothes, jewellery. However, on being shown the
accused persons, she clearly stated that she did not identify
any accused persons including the appellant for committing
dacoity in her house.
Thus, P.W-3 has also not supported the prosecution
case and her evidence is not reliable.
18. P.W-4 is Pradeep Kumar Chourasia, who is Judicial
Magistrate and had conducted T.I. Parade on 14.12.2001 and
stated that the witness Chando Devi (i.e. the Informant) had
identified the appellant-Chaneshwar Paswan for pointing
Pistol towards her. He has proved the T.I.P Chart marked as
Exhibit-1/1. Thus, P.W-4 is a formal witness.
19. P.W-5 is Keswar Bishwakarma who is the neighbour
of Brahmdeo Yadav and stated during evidence that on
hearing alarm he arrived at the house of Brahmdeo Yadav
and heard that dacoity was committed in his house.
However, during cross-examination, he stated that his
vision is not clear and he cannot identify any person even in
the day and the police have not recorded his statement.
Thus, P.W-5 has also not identified the appellant.
Thus, the evidence of P.W-5 is not reliable.
20. P.W-6 is Lakhan Mistry who is the husband of the
Informant and he stated that while he along with his wife
Chando Devi and daughter in-law-Phula Devi and Sheela
Devi were in the house then Dacoits, who were 8-10 persons
entered into his house and shown their Pistol and Bandook
etc. They had assaulted him and his family members.
However, he had not identified any Dacoits. This P.W-6 has
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been declared hostile by the prosecution and even on being
shown the appellant-Chaneswar Paswan, he had not
identified him.
Thus, P.W-6 has not identified the Dacoits during his
evidence and hence P.W-6 is not reliable.
21. P.W-7 is Sheela Devi, the daughter in-law of the
Informant and has stated that 08-10 person had committed
dacoity in her house and had threatened them. However, she
claimed to have identified Dacoit Jagan Bishwakarma. She
also stated that dacoity was also committed in the house of
Brahmdeo Yadav. However, she did not identify the
appellant-Chaneswar Paswan for committing dacoity in her
house.
During cross-examination, she further stated that she
identified co-accused-Jagan on the same day and prior to this
she did not identify.
Thus, P.W-7 has not supported the prosecution case
against the appellant and her evidence is contradictory to the
evidence of P.W-1-Informant and evidence of P.W-2 to
P.W-6.
22. So far as the evident of P.W-1-Informant is
concerned, she has named two persons in the F.I.R i.e.
Arbind Paswan and Jagan Bishwakarma, who committed
dacoity in her house. However, during her evidence she
stated before the Court below that Dacoits have committed
dacoity in her house and she had identified Jagan
Bishwakarma and Chaneswar Paswan @ Yogendra Paswan.
She tried to emphasise that her husband was assaulted by
Jagan Bishwakarma brutally. She claimed that she had
identified Jagan Bishwakarma and Chaneswar Paswan before
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the learned Judicial Magistrate.
However, during her cross-examination, she admitted
that her son-in-law is Udeswar Bishwakarma and Banshi
Bishwakarma is the brother of Udeswar Bishwakarma but
she is not known to him and she could not say the name of
even her Samdhi. She admitted that she had not identified
Jagan Bishwakarma before the learned Judicial Magistrate.
She further admitted that Dacoits had not assaulted her by the
Butt of the Rifle rather assaulted by hands and her husband
was treated in the Hospital at Chatarpur. She denied that
sister of accused Jagan is her Gotni and she denied that they
had any dispute with said Jagan Bishwakarma and for falsely
implicating Jagan Bishwakarma
During her further cross-examination on behalf of the
appellant-Chaneswar Paswan, she denied to have seen any
occurrence but admitted that her house is situated at a
distance of five mile from her house. She denied for
identifying the appellant-Chaneswar Paswan at the instance
of Ram Pravesh Singh. She denied that he was identified
before the Magistrate at the instance of said Ram Pravesh
Singh.
Thus, it is evident that the informant has supported
certain facts regarding identification of one co-accused-Jagan
Biswakarma and also for implicating the appellant-
Chaneswar Paswan. However, she had named one Jagan
Bishwakarma in the F.I.R, who is the own brother of her own
sister in-law-Udeswar Bishwakarma-D.W-1.
23. So far as defence witness, D.W-1-Udeswar
Bishwakarma is concerned, who stated during his evidence
that he, Banshi Bishwakarma and Harihar Bishwakarma are
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three brothers and the informant Chando Devi is his mother
in-law and her husband is father in-law. He also stated that
Jagan Bishwakarma is his own Bahnoi of his brother Banshi
Bishwakarma and there is dispute among his brother and the
accused-Jagan has taken the side of his brother Banshi
Bishwakarma. However, the name of Jagan was given at the
instance of his mother in-law. Now the matter is settled
between both the sides.
Thus, the evidence of D.W-1-Udeswar Bishwakarma
shows that the informant has falsely implicated the co-
accused-Jagan Bishwakarma.
24. D.W-2 is Banshi Bishwakarma, who has also stated
that Jagan Bishwakarma is his Bahnoi and the Informant
Chando Devi is mother in-law of his own brother Udeswar
Bishwakarma. There was dispute among the brother with
regard to the landed property and now the case has been
settled. However, Chando Devi-Informant has falsely
implicated Jagan Bishwakarma in the dacoity case.
25. D.W-3 is Brij Nath Bishwakarma, who is a formal
witness and has stated that the appellant-Chaneswar Paswan
is a social person and he has no dispute with Chando Devi.
Thus, D.W-3 is a formal witness.
26. It is evident that the I.O. of this case has not been
examined by the prosecution. It is evident that there is no
recovery from the appellant. It is further evident that P.W-2,
P.W-3, P.W-4, P.W-5, P.W-6 and P.W-7 namely Brahmdeo
Yadav, Rookmani Devi, Pradeep Kumar Chaurasia, Keswar
Bishwakarma, Lakhan Mistry and Sheela Devi have not
identified the appellant-Chaneswar Paswan. Even P.W-5 and
P.W-7 namely Keswar Bishwakarma and Sheela Devi, i.e. the
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husband and daughter in-law of the Informant had not
identified the appellant for committing dacoity in his house.
27. Thus, the sole testimony i.e. the Informant-Chando
Devi not identifying the appellant-Chaneswar Paswan. It is
evident that the appellant is not named in the FIR, but he had
been identified in the T.I.P at the instance of one Ram
Pravesh Singh.
28. It further transpires that although the appellant was
arrested on 20.10.2001 but T.I.P was conducted on
14.12.2001 i.e. after delay of around two months and in the
meantime, he was also produced before the Trial Court.
Therefore, the prior identification of the accused is also not
ruled out.
29. It has been held by Ho
n’ble Supreme Court in the case
of Iqbal and Another versus. State of Uttar Pradesh
reported in (2015) 6 SCC 623 at paragraph nos.15 and19 are as
follows:-
-15:- The evidence of identification of the
“Para
miscreants in the test identification parade is not a
substantive evidence. Conviction cannot be based
solely on the identity of the dacoits by the witnesses in
the test identification parade. The prosecution has to
adduce substantive evidence by establishing
incriminating evidence connecting the accused with
the crime, like recovery of articles which are the
subject-matter of dacoity and the alleged weapons
used in the commission of the offence.
Para-19:- The courts below based the verdict of
conviction solely on the oral testimony of PW 1 to PW
3 and the identification of the appellants and other
non-appealing accused in the test identification
parade. As discussed earlier, in the absence of any
other evidence like recovery of stolen jewellery or
other articles strengthening the prosecution case,
conviction cannot be based solely on the identification
of the accused in the test identification parade. Serious
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doubts arise as regards identification of the accused
regarding complicity of the appellants in the
commission of dacoity and their identification by the
witnesses and the prosecution has failed to prove the
guilt of the accused beyond reasonable doubt and in
our view, the conviction of the appellants under
Section 396 IPC cannot be sustained and is liable to
be set aside.
30. It has been held b
y Hon’ble Supreme Court in the case
of Md. Sajjad Alias Raju Alias Salim vs. State of West Bengal
reported in AIR 2017 SC 642 at paragraph nos.15, 17 and 18
are as follows:-
Para-15:-In the case in hand, apart from the fact
“
that there was delay in holding the Test Identification
Parade, one striking feature is that none of the
concerned prosecution witnesses had given any
identification marks or disclosed special features or
attributes of any of those four persons in general and
the accused in particular. Further, no incident or
crime had actually taken place in the presence of
those prosecution witnesses nor any special
circumstances had occurred which would invite their
attention so as to register the features or special
attributes of the concerned accused. Their chance
meeting, as alleged, was in the night and was only for
some fleeting moments.
Para-17:-Similarly the issue of delay weighed with
this court in Musheer Khan v. State of M.P. 5in
discarding the evidence regarding test identification
as under:"8. Insofar as the identification of A-5 is
concerned that has taken place at a very delayed
stage, namely, his identification took place on 24-1-
2001 and the incident is of 29-11-2000, even though
A-5 was arrested on 22-12- 2000. There is no
explanation why his identification parade was held
on 24- 1-2001 which is after a gap of over a month
from the date of arrest and after about 3 months from
the date of the incident. No reliance ought to have
been placed by the courts below or the High Court on
such delayed TI parade for which there is no
explanation by the prosecution."
Para-18:-In the instant case none of the witnesses
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had disclosed any features for identification which
would lend some corroboration. The identification
parade itself was held 25 days after the arrest. Their
chance meeting was also in the night without there
being any special occasion for them to notice the
features of any of the accused which would then
register in their minds so as to enable them to identify
them on a future date. The chance meeting was also
for few minutes. In the circumstances, in our
considered view such identification simplicitor
cannot form the basis or be taken as the fulcrum for
the entire case of prosecution. The suspicion
expressed by PW 8 Saraswati Singh was also not
enough to record the finding of guilt against the
appellant. We therefore grant benefit of doubt to the
appellant and hold that the prosecution has failed to
establish its case against the appellant.”
31. Thus, in view of the above, the judgment of
conviction dated 31.05.2005 and sentence dated 31.05.2005
passed in S.T. No.240 of 2002, corresponding to G.R.
th
No.1271 of 2001 by Sri Gautam Mahapatra, learned 7
Additional Sessions Judge, Palamau at Daltonganj are set
aside and the appellant-Chaneswar Paswan is acquitted for
the offences under Sections 395 of the I.P.C and the
appellant-Chaneswar Paswan is discharged from the liability
of bail bonds.
32. Thus, the Criminal Appeal (SJ) No.914 of 2005 is
allowed and stand disposed of.
(Sanjay Prasad, J.)
Saket/
AFR
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