Criminal Appeal (SJ) No.248 of 1999 Against the judgment and order of conviction and sentence dated 14. 09. 1999, passed by Shri Daroga Prasad, Ist Additional Sessions Judge, Gaya, in Sessions Trial No. 12 of 1996/364 of 1995. Surendra Sharma, son of Jagdish Sharma, resident of Village- Pachrukhi, P.S. Khizir Sarai, District- Gaya. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant. : Mr. Ramakant, Sharma, Senior Advocate. Mr. Santosh Kumar Pandey, Advocate. For the Respondent : Mr. Rana Pratap Singh, Senior Advocate. For the State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 395 and 412 I.P.C. and has been sentenced to undergo rigorous imprisonment for ten years for offence under Section 395 I.P.C. and further sentenced to undergo rigorous imprisonment for ten years for offence under Section 412 I.P.C. However, both the sentences shall run concurrently. 3. The prosecution case that in the intervening night of 1st to 2nd March, 1995, at about 1 A.M. the informant woke up on hulla beside his house and went upstair then 2 saw 25-30 accused persons armed with rifle, gun, pistol standing at his door and asked to open the door and he identified one co-villager Surendra Sharma. It is further alleged that miscreants were saying that they do not take articles but cut the head then he came down and closed himself in a room along with female members of the house. Thereafter, miscreants scaled the house got over the roof and entered into the courtyard. Then open the main door from which all the miscreants entered into the house and started ransacking and looted 25 boxes, out of which 5 big boxes and 20 smalls boxes which contained 15 bhor of gold jewelleries, 400 silver coins, 4 gunny bags filled of utensils of brass and copper and 7-8 gunny bags of rice and Rs. 12,000/- in cash. It is further stated that thereafter miscreants making out search for him, they were calling his name abusing him and alleging that he votes for Congress and looted booths. The female members of house conceal him in a kothi. In the meantime the miscreants start breaking the door of the room then female inmates open the door from inside and miscreants entered into the room. Thereafter all the accused persons went out of his house then he came out 3 of kothi and came out of the outer dwaraja then saw miscreants are going making slogan of Bajarangbali with their torch light. He claimed that in their said torch light he and his female inmates have identified them. 4. The police on rumour of the dacoity reached the place of occurrence then found dacoits have flee away then search out the dacoits towards river, but the dacoits has gone away. The police again reached at the house of the informant in the village prepared seizure list which lungi (Ext. 6) given by Om Prakash. Thereafter, recorded Fardbeyan of the informant Om Prakash at 3 A.M. on 02. 03. 1995 which is marked as Ext. 2. On the basis of Fardbeyan, F.I.R. lodged which is Ext. 5. The police searched the house of the appellant Surendra Sharma. and seized attaché, utensils in gunny bag and jhola containing jewelleries from two rooms of the accused. Seizure list prepared which has been marked as Ext. 7 with signature of witness Manoj Kumar, Ext.1. T.I.P. of the seized articles was conducted by the B.D.O., P.W. 8. T.I. Chart of the articles proved marked as Ext. 3. The police after investigation submitted charge sheet on which cognizance was taken and case was committed 4 to the Court of Sessions. 5. During trial 11 witnesses were examined. P.W. 1 and 3 are the witnesses of search and seizure of the articles from the house of the appellant. P.W. 2, 4, 6 and 7 are witnesses of dacoity. P.W. 4, 6 and 7 claims to have identified the appellant. P.W. 9 is the I.O. P.W. 5 is tender and P.W. 8 is the B.D.O. who conducted the T.I.P. and defence also examined. 6. The case of the defence that no dacoity was committed at the house of Om Prakash, nor the appellant participated in the dacoity and nothing was recovered in his possession. He was called in the police station and was arrested and put under Hajat and after 5-6 days he learnt that police has searched his house and has taken some articles. The articles taken belongs to his house which are jewellery which content Kantha, ear ring etc. The defence has adduced as D.W. 1 and asserted that no search was made before him. 7. The trial court taking into consideration the evidence of P.W. 2, 4, 6, 7 and 9 held that they have supported the prosecution case about dacoity. P.W. 4, 6 and 7 have identified the appellant in torch light. P.W. 1, 5 2, 3 and 9 are the witnesses of search and seizure of the articles from the house of the appellant and P.W. 8 having conducted T.I. Parade of the articles which were identified by P.W. 6 and 7. Further taking into consideration the defence holds that defence set up is not probable and convicted the appellant for offence under Section 395 and 412 of Penal Code and sentenced accordingly as mentioned above. 8. Learned counsel for the appellant however, contends that appellant has falsely been implicated in this case. The appellant is a Pattidar and next door neighbour and the house of the appellant is in front of the house intervening by a road. It has further been contended that identification in the light of the torch of the dacoits is doubtful. Hence conviction on such identification is neither proper nor sustainable. It has further been contended that search and seizure suffers from various infirmities regarding non-compliance of statutory provision and contradiction in evidence of the witnesses as well as Office-in-Charge who conducted and prepared seizure list has not been examined and article seized were not shown to witnesses and were not kept in seal cover. 6 Further, the B.D.O. who conducted T.I. Parade has not mentioned in the T.I. chart the specification of the articles which were kept in T.I. Parade of the articles and hence conviction for offence under Section 395 and 412 I.P.C. is not sustainable. 9. Learned counsel for the informant and State however contended that prosecution has been able to prove the charges by cogent, reliable and unimpeachable evidence as the witnesses have supported the prosecution regarding dacoity. The looted articles have been recovered from the possession of the house of the appellant and witnesses have identified the looted articles in T.I. Parade as well as in court. 10. Now taking into consideration the respective submissions of the parties, the question for consideration whether the prosecution has been able to prove the factum of dacoity and have identified the appellant in course of dacoity and articles recovered from the possession of the appellant in his house were proved to be looted articles to record conviction under Section 395 and 412 of Penal Code. 11. However the witnesses have been examined 7 to support the prosecution case about dacoity. P.W. 4 claims to identify the appellant from ventilator, P.W. 6 claims that P.W.7 disclosed her about identification of appellant and P.W.7 claims to identify the appellant from roof that appellant was standing with dacoits at the outset in the light of the torch of dacoits and while they were receding from the place of occurrence after committing dacoity. 12. However, P.W. 9, I.O. though, stated in his evidence in his examination-in-chief that he had found a ventilator in south eastern room and found wooden box open. However, in his cross examination in para 13 and para 16 has stated that he has not mentioned about wooden box in osera. He has further stated that informant did not show the sign of taking out the boxes. He has not mentioned about Kothi nor has mentioned about ventilator in case diary. Hence the evidence of Investigating Officer about objective find regarding dacoity is fluctuating. However, contradiction has been recorded regarding evidence of P.W.6. and her evidence regarding identification of appellant, she learnt from her husband suffer from contradiction. The witnesses have 8 not stated that when they identified the appellant what act of commission of omission was done by them even the presence of appellant outside the house of the informant is also not a circumstance adverse to the appellant as the house of the appellant was by the side of the house of the informant. It is highly improbable that appellant being next door neighbour indulge in dacoity without concealing his face. 13. Hence it is apparent that evidence regarding identification of the appellant by P.W. 4, 6 and 7 in committing dacoity is suffer from various defect to be accepted P.W. 7 claims to have identified the appellant twice. First from his roof when the dacoits were standing on road outside his house. Secondly when the accused were receding and had gone out of the house of the informant. Hence on both count he claimed to have identified the appellant outside his house. First before the occurrence and secondly after the occurrence. The means of identification in the light of the torch of torch of dacoits. However the identification of the appellant in the light of torch lit by dacoits does not inspire confidence. It is difficult to identify in such light. The evidence of P.W. 9 6 is suffer from contradiction. The P.W. 4 ,though, claims to have identified the appellant through the ventilator, though, claims that P.W. 6 and 7 have also seen through the ventilator, but P.W.6 and 7 does not support the evidence of P.W.4 that they seen through the ventilator and Investigating Officer in his evidence has stated that the ventilator has not been mentioned in case diary doubts the presence of ventilator and identification through the ventilator. The witnesses have not mentioned that when they identified. Hence under the facts and circumstance the appellant is entitled to benefit of doubt and hence I find and hold that prosecution has not been able to prove to participation of the appellant in committing dacoity beyond all reasonable doubt. 14. However, next part of the prosecution story that after the occurrence the police reached and on getting information went to see the dacoits on the bank of the river, but return back as could not trace the dacoits. However the police did not take the trouble to make out a search of the house of the appellant at 3 A.M. when he return from river bank and recorded the Fardbeyan and prepared the seizure list of Lungi at 2. 50 AM on 2. 3. 95. 10 P.W. 9, I.O. on the same day at 7.30 he again came to village followed with Officer-in-Charge and in presence of two witnesses searched a room on north east side of the house of the appellant, Surendra Sharma in which there was straw and from the said room on search seized attaché and a plastic gunny bag containing utensil concealed in straw and after opening attaché he found cloths in it and opening gunny bag he found brass, utensils and from south eastern room found a green bag containing jewellery from earthen kothi the seizure list was prepared by Officer-in-Charge, Shri Bijay Singh marked as Ext. 1. After seizure of the article Surendra Sharma was arrested and on the order of the C.J.M. the seized articles were was put on T.I. Parade conducted by the B.D.O. 15. However, seizure list marked as Ext. 1 mentioned the place of seizure is eastern room facing west from the house of the Surendra Sharma in Village- Pachrukhi, P.S. Khizir Sarai, which mentioned description of the articles like cloths, utensils and jewelleries and bears signature of Manoj Kumar and thump impression of Kuldip Paswan. However, the 11 seizure list (Ext.1) does not bear the signature of the appellant or his family member, though, as per evidence of I.O. the appellant was present at the time of seizure and was arrested there. P.W. 1, Manoj Kumar one of the witness of the seizure in his evidence has also stated that articles seized from the two rooms to the west to the house of the informant and at the time of search in the house of the appellant, the appellant was present and his wife, daughter and son were also present there. P.W. 1 has further stated that after the seizure, the seizure list of the articles seized was prepared in the ‘Dalan’ of Om Prakash the informant and several people of the village were present there. However the preparation of seizure list with regard to articles seized are amounts to exposure of seized articles. 16. P.W. 9 the Investigating Officer in his evidence has stated that after the seizure, seized articles remained in the hand of the Officer-in-Charge and Havaldar. The Havaldar took the seized articles along with Officer-in-Charge. He has further stated that after the seizure, he did not saw the seized articles. He has further stated that after seizure, seized articles were not 12 sealed and after T.I. Parade whether articles were put in sealed cover or not or whether the same brought to the police station that he cannot say. It has further stated that and there is nothing mentioned in the diary about sealing of seized articles. 17. Hence from the evidence of P.W.9, the investigating Officer, it is apparent that Officer-in-Charge who was present at the time of search and seizure and the Officer-in-Charge prepared search and seizure list the article seized was not sealed and taken by the Havaldar and there is no answer where the articles were kept and the Officer-in-Charge who prepared seizure list and kept the articles has not been examined in this case. With regard to the evidence of search and seizure, only evidence is the evidence of P.W. 9, Investigating Officer and two independent witnesses P.W. 1 and 3. However, P.W. 1 in his evidence has stated that the appellant and his family members were present at the time of search and seizure. But the seizure list does not bear the signature of appellant nor copy of the seizure list was made available to them and P.W. 1 has stated that the seizure list of seized articles prepared at the Dalan of the informant Om 13 Prakash is serious lacuna in prosecution case. 18. However, there is nothing in evidence of the police officer and two witnesses that before proceeding for search and seizure of the house of Surendra Sharma, they gave their search first before proceeded for conducting search and seizure in the house. However, it has come in evidence that articles found from two rooms, one from the eastern side and the other from the south. However, seizure list mentioned all the recovery from the room of eastern side which contained pieces of straw meant for cattle feed (Kutti). The seizure list does not contain the signature of the appellant and there is no evidence that the copy of seizure list duly signed by the witnesses was delivered to the appellant or his family member. However, there is no evidence that copy of said seizure list was ever served to the appellant and further there is no evidence that said seized articles was sealed or there is no evidence that said seized articles was sealed or there is no evidence where those articles were kept in seal cover till T.I. Parade was conducted. 19. However, the fact and evidence that search was made and articles were seized from two rooms, but 14 the seizure list mentioned all the articles recovered from only one room. However, witness, P.W. 1 in his evidence, though, supported the seizure, but has stated that list of articles seized were prepared at the ‘Dalan’ of the informant Om Prakash and this followed with the evidence of the I.O. that the seized articles were not sealed and there is nothing in the evidence to suggest that articles were sealed and it has been stated that articles were taken by Havaldar along with Officer-in-Charge and I.O. never came to know where the articles were kept. The officer-in-Charge who prepared the seizure list and kept the articles was not examined as witness nor any register of Malkhana was produced or proved to show where the articles were kept after seizure till conduct of T.I. Parade of the articles. 20. Though a police officer is not required by any of the provision of Cr.P.C. to offer himself to search before searching another person or entry in premises for search but it has been observed by Apex Court in several cases that such a course is desirable and the failure to follow it together with other evidence may lead to the search being discredited. 15 21. The police proceeded to search the house of the appellant and it has come in evidence of witnesses discussed above that the appellant and his family were present but the seizure list neither bear the signature of the appellant or any of his family member nor the copy of the same served to the appellant and hence there is violation of Section 100 Cr.P.C. there is no explanation why the prosecution violated Section 100 Cr.P.C. However the law is well settle that the violation of this provision does not vitiate the search nor vitiate the trial, though, it may affect the probative value which is attached to the recovery of the article, though, it neither vitiate the seizure of the article nor vitiate the trial nor affect the conviction of accuses unless it is show that accused has been prejudiced by said defect. 22. The fact that the article seized from the house of the victim was taken at Dalan of the informant and as per evidence of P.W.1 the one of the independent seizure list witness has stated in his evidence. Hence the possibility that article seized was shown to informant and his family member can not be ruled out. This has got prejudicial effect on the evidence of the identification of 16 the articles by informant and his family members regarding the article seized. The Investigation Officer in his evidence has also stated that article seized was not sealed at the place of occurrence and was taken by the Officer-in-Charge and the Officer-in-Charge has not been examined as a witness and hence the exposure of the seized article and preparing the list of seized article at the Dalan of the informant all articles indicates that seized articles were shown to the witness so the sanctity of T.I.P. lost its significance and this has certainly caused prejudiced to the appellant as the possibility of the articles having been seen by the witness under the fact and circumstance cannot be ruled out. The prejudiced is to the effect whether the article seized hence some articles and the articles kept in for T.I. Parade were same article recovered from the house and were shown to the informant prior to T.I. Parade. 23. P.W. 8 is the B.D.O. who conducted the T.I. Parade and has stated that he conducted the T.I.Parade in accordance with law and Om Prakash and Rita Devi identified the articles and have proved in T.I. chart which has been marked as Ext. 3. However, in his cross- 17 examination he has stated that in T.I. chart there is no description of the articles like utensils or the clothes which were kept in T.I. Parade. He has stated that after opening of the seal the articles were put on table and witnesses were called within ten minutes and he has further stated in evidence in para 4 that he has not mentioned in T.I. chart he broke open the seal. He has further stated that he cannot say that whose sealed it was. Hence T.I. chart marked as Ext. 3 does not show the description of all the articles except the jewellery which were put on T.I. Parade. 24. Hence having regard to the fact that irregularities found in search and seizure as well as articles seized having not sealed and evidence of B.D.O., P.W. 8 that he has not mentioned the description of cloths and utensils, giving description of the weight of the jewellery. The further fact that the seizure list prepared at Dalan of the informant and article not sealed. Hence in view of the fact that articles seized were taken at Dalan of informant Om Prakash where seizure list prepared and seized articles were not kept in sealed covery and gave opportunity to witness to see the seized article has cause 18 prejudice to the appellant that the articles seized was shown to the witness and further the possibility that whether the same articles which is seized were put on T.I. Parade. 25. Hence having regard to the fact that before proceeding to search the house of appellant, police had not offer themselves before searching the house of the appellant. After the search a copy of the seizure list prepared were not given to the appellant and there is no explanation for non-compliance of the making the copy of seizure list made available to the appellant and this followed with the evidence of P.W.1 that seizure list of the seized articles prepared at the Dalan of the informant and the articles seized was not sealed and there is no evidence where the sealed articles were kept. However it is well settled that irregularities in search does not vitiate the seizure of articles not affect the trial unless it is shown that prejudiced has been caused to the appellant. However, it is well settled that the Officer conducting the search should exercise the greatest caution in fulfilling the formalities of law for making a search and providing for every possible safe guard so as to leave no scope for any 19 adverse criticism. However, having regard to the fact the police proceed to the house of the appellant , but had not offered themselves to be search. Further copy of the seizure list has not been provided to the appellant and his family member. So the seizure list does not acquire status of dependable evidence and this followed with evidence that after seizure the seizure list was prepared at Dalan of the informant and the seized articles were not kept in seal cover and no evidence that where the articles were kept, certainly prejudiced the appellant as the possibility and the witnesses to have seen the seized articles cannot be ruled out and the identification of the article in T.I. Parade as well as in court lost its significance to record conviction. 26. Hence I find and hold that prosecution has not been able to prove the charges and trial court misdirected himself not considering this aspect and hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court. The. 21st…December, 2011. NAFR/m,p. ( Gopal Prasad, J.)