CRIMINAL AFPEAL NO 35/2005 ”aim My““ w. APPELLANT Azad Mahshur'i, S/o Nijamuddin Manshur'i, (In Jail) aged aboH .24 years, R/o Village Kuswar, P.5. Ranka, DisT’r. Garhwa, Jharkhan. "\ v Vs ‘ RESPONDENT S‘ra‘re o1' Chha’rfisgarh, Through P.5- a t Balr-ampur, Disi’r. Surguja (6.6.) Presen’r: MnsAr'un K Shukla, AdvovcaTe fo " The appeHan‘r. Mr. S. Yddav, 6y. Govt. Advoca’re for The responden’r-S’rafe. ORAL JUDGMENT (28*h sep-rember, 2007) Per Dhir-endr'a Mishra J: This criminal appeal is direcTed againsf fhe judgmen‘r of convicfion and order of sen’rence da‘red 315* Ocfober, 2003 passed by ‘rhe learned Additional Sessions Judge, (FTC), Ramanujganj in S.T, No.239/99 whereby learned Adcli’rional Sessions Judge has convic’red fhe appellanf herein under Secfian 395 of fhe IPC and sem‘enced him and o’rher co—accused Hilaroos Tc undergo RI. for 10 years and To pay a fine of Rs.3,000/-,.in defaulT 0" paymenT of fine addiTional RI. for 3 monThs. Case of The prosecuTion, in brief, is ThaT on 26.2.1999 aT abouT 11.30 in The midnighT The appellanT herein in associaTioiniwiThJ‘Three vmu Hmwmnwwwmmw mméi é TN“ ‘ XI—HC-22 other accused persons sfopped ’rhe fruck driven by ’rhe complainanf Ramroop Sahu (PW-10) and loofad Rs.2,400/- & a wr'isf waTch on The gun poin‘r and sword. Reporf of S’ra’rion Balrampur on 27.2199 $nknoWn persons on fhe basis of fhe IPC was registered. Appe arresfed on 9.4.1999 vide Ex.P- £ appellanf herein was recorded v disclosure sfafemenf an amount memo of Ex.P-4. TesT iden’ri‘ 10.4.1999 by The AddiTionai complainanf Ramroop correcfly accused Hilaroos. From The me persons i’r was discovered That a other ‘I‘hree persons namely F Bigawan MisTry were also involved in The crime. Affer comple‘ring invesfiga Secfion 395 of The IPC again: Hilaroos and showing o’rher 'rhree frial, fhe prosecufion examined sfa‘remem‘ of accused persons i The incidenT was lodged in The Police ‘9 aT abouT 4.00 a.m. againsT The which offence under SecTion 394 of lanT and co—accused Hilaroos were 11. Memorandum sTaTemenT ofiThe ide Ex.P-3A and on The basis of his 3f Rs.1,000/— was seized vide seizure =icaTion parade was conducTed on Tehsildar Shri 6.5. Uikey where idenTified The appellanT and co— morandum of arresT of The accused parT from Hilaroos and The appellanT, :oshan Ansari, Praksash Gujar and ring The charge sheeT was filed under ;T The appellanT herein, co-accused accused persons absconding. During 15 wiTnesses and ThereafTer, The Mas recorded under SecTion 313 of againsf him and sfm‘ed Tha'r he as arres’red from Saiegaon, affer 12 hrs of The arres’r he was Taken ear' The r'iver', There he was sho’r by fhe gun on his leg and because o fhe injury susfained by him he could go; walk for a period of one y ar. However, the Iearned Additional Sessions Judge after hearing T e learned counsel for The respecTive purgies, corivicTed and senTen ed The appellanT and co-accUsed Hilaroos, as menTioned herein ab ve. Learned counsel for The a pellanT argued ThaT convicTion of The appellanT herein is based on he recovery of looTed am‘ounT of Rs.1,000/— on his memorandum. The Trial courT has disbelieved The idenTificaTion of The accused i The TesT idenTificaTion parade and even The doc idenTificaTion has lso noT been Taken inTo consideraTion for convicTing The appellanT. Referring To The wiTnesses of memorandum and seizure iT has een conTended ThaT Jumman (PW-2) & Dwarika (PW—3), who have bee examined To prove The memorandum & seizure, have noT sTaTed a word againsT The appellanT herein, whereas, SiddhnaTh Choubey (P -4) has admiTTed in Para 3 of his deposiTion ThaT he was making s aTemenT on The basis of informaTion given by The police in The police s aTion. ll i i “Tim llWHMRM‘wWWWlWFHW" " ’ imy 3&4J m Ka- mikua i l _4a— XI-Hc—zz mm W mam maiw mmmmH WWW§F§Q°Im A $aqf—vcmm Cr.P.C. wherein The appellant denied The circumsfances appearing XI—HGZZ On 1he ofher‘ hand, learned counsel for ’rhe Sfa’re has supporfed fhe impugned judgmen‘r and cor‘u’rended fha‘r the appellam was duly idenfified by complainant Ramrobp (PW-10) during frial. Apart from doe idemifica’rion, the conviction is aiSO based on The recovery of loofed amoun‘r of Rs.1,000/— from The appeiiam‘, which has been duly proved by Siddhnafh Choubey (PW-4), who has sfafed fhaf The appellan’r made diseiosure sfafenHeni before him and on ihe basis‘ of above memorandum Rs.1,000/— was seized in fhe presence of Dwarika (PW—3), who has proved The rec ery‘ The invesfigafing Officer Shri .T.P. Gupfa (PW—9) has also prov d ’rhe memorandum of The appellant and recovery of Rs.1,000/— on th basis of above memorandum. I have heard learned cou sel for the parties. I have perused the impugned judgment as also the oral and documentary evidence available on record. The trial court .has' convic ed the appellant with an observation that the memorandum, test id ntification and seizure have been established. However, in Para 11 of the impugned it'has been concluded that since the test id ntification parade was conducted in the presence of police, the docu ent of test identification parade was not acceptable in the eviden‘ Similarly, while dealing with the identification of the accused pe sons in the court during trial it has L ;w ae“cecd ww;»,.., -ucmi aw:m«d:sswisy-w,wi z Lamaamlummaww W. Maw”,WMWWW mawaowamxtwwww....e c. XI—HC—22 ‘ F been held fha‘r from The eviience available on recor'd only fhe identification of accused Hilaroos has been es’rablished from ’rhe sfafemem‘ of Ramroop (PW—10). Inciden‘r is of midnight of 26.2.1999 and The FIR was lodged by Ramrlogp (PW-10), who has des r-ibed in fhe FIR ’rhaf fhe accused persons were beTween 25-30 ars of age. The descripfion of The cloThesgwhich They were puTTin on aT The Time of incidenT, has‘also l been given, however, fher‘e is no ofher parficular‘ descripfion of any of The accused persons. The compl inanT has fur'Ther' sTaTed ThaT he shall be able To idenTify The looTed r'Ticles as also The accused persons. STaTemenT of This’wiTness was r corded on 14.10.2003 i.e. afTer' more Than 4 years & 8 monThs of The i cidenT and Therefore, in The absence of any parTicular idenTificaTion ark observed by The complainanT aT The Time of incidenT, The idenTi icaTion conducTed for The firsT Time during Trial afTer abouT five yea s is a very weak Type of evidence and The same cannoT be made basis f r convicTing The accused persons. looTed amounT of Rs.1,000/- on The basis of memorandum of The ap ellanT herein almosT afTer one monTh 6i 15 days is concerned, recover, of cash amounT of Rs.1,000/- in The denominaTion of 100 & 50, which as noT been deTaiIed in The FIR, also So far as The recovery o XI—HC-22 § a.a3 aa k 1 ?W$'E§m m EW$FEW?HFR 1i §éT %R§R &:& aw€m%w nference ThaT The same were looTed m cunnof be a basis for drawing I from fhe complainant Excepf The above evidenc‘ 6n the record ’ro connecf The Therefore, in *he considered op nof jusfified in _convicfing and s« , 395 of me IPc. . Ish The resuh‘, The appeal ‘ of The. appellanf under Secfion 3 under Thof sec’rion is hereby se1 The above charge and .he be seT c any oTher case. I Roshan/— a 1‘ a, There is no oTher evidence avaiiable 1ppellanT wiTh The crime in quesTion. nion of This CourT The Trial courT was :nTencing The appellanT under SecTion if The appellanT succeeds. ConvicTion 395 of The IPC and senTence imposed ' aside. The appellanT is acquiTTed of IT liberTy forThwiTh, if noT required in Sd/- i DHmENDRA MISHRA k Judge _T.u.g ¥M i i A. ummml Mmkrmmwmmmww