Cr. Appeal No.443 of 2001
With
Cr. Appeal No.463 of 2001
----------
Against the judgment of conviction dated 13.9.2001and order of sentence dated
18.9.2001
passed by Sri William Minj, 1st Additional District & Sessions Judge, Bokaro
at Chas in Sessions Trial No. 173 of 2000.
———
1. Bablu Dutta.
2. Kalim Ansari …………………Appellants ( In Cr. Appeal No. 443/2001)
Jamal @ Jamaluddin Ansari………………Appellant ( In Cr. Appeal No. 463/ 2001)
-Versus-
The State of Jharkhand …… Respondent ( In both the cases).
—
For the Appellants : Mr. S.P. Roy ( Cr.A.No.443/2001)
For the Appellant : Mr. Manoj Kumar Mishra ( Cr.A.No.463/2001)
For the State : Mr. D.K.Prasad,APP ( In both the cases)
PRESENT
HON’BLE MR. JUSTICE PRADEEP KUMAR
By Court,, Both the appeals arise out of the same judgment of conviction
dated 13.9.2001 and order of sentence dated 18.9.2001 passed by Sri
William Minj, 1st Additional District & Sessions Judge, Bokaro at Chas in
Sessions Trial No. 173 of 2000.
2. Both the appeals are directed against the judgment of conviction
dated 13.9.2001 and order of sentence dated 18.9.2001 passed by Sri
William Minj, 1st Additional District & Sessions Judge, Bokaro at Chas in
Sessions Trial No. 173 of 2000, by which judgment he found the
appellants, Bablu Dutta and Kalim Ansari (Cr.Appeal No. 443/2001)
guilty under Section 412 of the Indian Penal Code and sentenced them to
undergo R.I. for 10 years and also found the appellant, Jamal @
Jamaluddin Ansari (Cr.Appeal No. 463/2001) guilty under Section 395 of
the Indian Penal Code and sentenced him to undergo R.I. for 10 years.
3. It is submitted by the learned counsel for the appellants that
although the Investigating Officer has proved the seizure of ambassador
car, which is said to have been used during dacoity and has also proved
the seizure-list of the recovered notes and other documents from the
possession of accused-appellant, Bablu Dutta and Kalim Ansari, but the
said notes were not put on T. I. Parade. and T.I.Parade of the said accused
persons which was conducted by Judicial Magistrate, 1st Class, Bokaro,
was also not proved nor the T.I.Parade of the ambassador car which was
conducted by the Block Development Officer was proved in Court and as
such in absence of proof of T.I.P.Chart they cannot be relied by the Court
and hence the conviction of the appellant is bad and fit to be set aside.
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4. On the other hand, learned counsel for the State has supported the
prosecution case and stated that although T.I.P.Charts have not been
brought on record, but T.I.P. was done and as such they have rightly been
convicted.
5. After hearing both the parties and going through the record, I find
that the prosecution case was started on the basis of a Fardbeyan given by
P.W.1, Nayan Kumar Singh on 21.10.1999 to the Officer-in-Charge Chas
(M) Police Station at 14.15 Hrs. stating therein that he along with his co-
medical representative, Arjun Sao were working as salesmen of M/s.
Poddar Pharma, Joraphatak Road, Dhanbad had come to Chas-Bokaro in a
Maruti Van of Poddar Pharma to deliver medicines. While they were
returning from Chas-Bokaro after giving medicines to the various medical
shops in Chas-Bokaro and collecting money of the supply already made at
about 4.30 P.M. and further they proceeded to Dhanbad. Then, on the way
near Railway Gumti, Pupunki where the road was not good about 100-125
yard and their car became slow. In the meantime, a cream coloured
ambassador car came from behind and stopped the Maruti Van by force.
Four five persons a443rmed with pistol came down from the ambassador
car. One of the criminals had a pistol in his hand put the pistol on the head
of the driver. Thereafter, one of the accused assaulted him with fists and
took out Rs. 12,640/- , which he had taken from the medical shop. Another
accused at the point of pistol took out the collected amount of Rs. 13,297/-
from the pocket of his colleague Arjun Sao. He also took the cartoon of
medicines along with the collection order form of the Company and diary
etc. One of the criminals assaulted the driver Ram Singh Bahadur with
butt of the pistol, as a result of which he sustained injury. Thereafter they
fled away towards Chas-Bokaro boarding the ambassador car bearing No.
D.B.I. 3353 and snatched away the key of the maruti van. All the accused
persons-appellants aged about 25 to 30 years.
6. On the basis of the said fardbeyan the police registered a case
under Sections 395/397 of the Indian Penal Code and subsequently after
recovery also under Section 412 of the Indian Penal Code and submitted
charge-sheet under all three sections.
7. Since, the case was exclusively triable by a court of sessions, the
same was committed to the court of sessions and the 1st Additional
Sessions Judge, Bokaro subsequently tried the case and found the
appellants guilty as aforesaid.
8. It appears that in course of trial the prosecution has examined 8
witnesses. P.W.1, Nayan Kumar Singh (informant). P.W.2,Arjun Sao.
P.W.3, Ram Singh Bahadur. P.W.4, Fakhruddin Ansari. P.W.5, Surajnath
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Yadav. P.W.6, Rashid Ansari. P.W.7, Prakash Rai and P.W.8, Anjani
Kumar Singh is the Investigating Officer of the case.
9. P.W.1 the informant and P.W.2 the colleague of the informant
have fully supported the prosecution case and have stated in Court that on
the date of occurrence i.e. 21.10.1999 while they were returning after
collecting money from the medical shops on the maruti van of their
Company M/s. Poddar Pharma then near Railway Gumti, Pupunki where
the road was not good about 100-125 yard and their car became slow. In
the meantime, a cream coloured ambassador car bearing No. D.B.I. 3353.
overtook the maruti van and stopped by force. Thereafter, four five
persons came down from the ambassador car with revolver in their hands
and thereafter they robbed them and took out a cash and other medicines
with form etc. Then, they went back to Chas-Bokaro by the same vehicle.
They also took Rs. 12,640/- from the person of the informant and also
took out Rs. 13,297/- from the person of his colleague along with his
calculator, pain and medicine cartoon. Thereafter they gave information to
the police and the police also attempted to chase the accused persons, but
could not get. He has proved his signature on the fardbeyan as Ext.1. He
also stated that he used to sign with the name of Firm on the currency
notes from where the money had collected. He also stated that he had
identified the one person in the T.I.Parade, but today in Court he cannot
identify any of the accused persons.
P.W.2, Arjun Sao has also supported the statement as given by
P.W.1, Nayan Kumar Singh. He also stated that he had identified the one
person in the T.I.Parade, but today in Court he cannot identify any of the
accused persons.
P.W.3, Ram Singh Bahadur also proved the factum of the dacoity
that while he was driving the maruti van and was going towards Chas-
Dhanbad. Then, near Pupunki Railway gate his maruti car became slow
due to road jam. In the mean time, a cream coloured ambassador car
bearing No. D.B.I. 3353. came behind and stopped by force. Thereafter,
four five persons came down from the ambassador car and assaulted him
with butt of the pistol and snatched away the key of the maruti van. They
also looted collected money and order form from the various medical
shops from two passengers i.e. the informant and his colleague, namely,
Nayan Kumar Singh and Arjun Sao. Thereafter they went back on the
same vehicle towards Chas-Bokaro.
P.W.4, Fakruddin has proved his signature on the seizure-list of the
car, which belonged to Jamalludin as Ext. 1/1.
P.W.5, Suryanath Yadav has proved his signature on the seizure-
list of the currency notes as Ext. 1/1 and stated that the seizure-list is in
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respect of Bablu Dutta and also proved the seizure-list of notes with regard
to accused, Kalim Ansari as Ext.-1/3, but denied that the seizure-list was
made in his presence from the person of the accused persons.
In his cross-examination, he denied that he stated before the police
that from the possession of 443Bablu Dutta ten currency note of 100
denomination was recovered with the signature of the informant and
another notes were recovered from the bag in his possession. He also
denied that ten currency note of 100 denomination and another currency
note of Rs. 50/- from the pocket of Kalim Ansari and other articles have
also been recovered as such bag containing order book, of M/s. Poddar
Pharma, and assessment form of Bhawani Medical, Chandan Medical and
Rex Medical shops.
P.W.6, Rashid Ansari also proved his signature on the seizure-list
of the ambassador car as Ext. ΒΌ.
P.W.7., Prakash Roy also proved his signature on the seizure-list
of the currency notes as Ext. 1/5 & 1/6, but it is stated that no seizure-list
was prepared in his presence.
P.W.8, Anjani Kumar Singh, the Investigating Officer of the case.
He proved his signature on the fardbeyan as Ext. 2. He also proved the
formal F.I.R. as Ext. 3. He stated in para 7 that from the statement of
Jamaluddin he could know that the ambassador car was used in the
dacoity, which was number as D.B.T. 9353, but before dacoity the number
was changed to D.B.I. 335. He also stated that the car was lying in his
village from where it was recovered. He also recovered the papers of the
car which shows that the owner was Abdul Hassan and it was transferred
to him. He also stated in para 9 that during investigation on the
confessional statement of Jamalludin he arrested the accused, Bablu Dutta
and Kalim Ansari and recovered ten currency note of 100 denomination
from the possession of Bablu Dutta. In one of the notes “Chandan Medical
100×10” and small initial was found written and also a attachie was also
recovered from accused-appellant, Bablu Dutta and he recovered one
small adhesive black tape. He has proved the seizure-list concerning
accused Bablu Dutta, which is marked as Ext. 4/1. He also recovered order
form of Poddar Pharma and estimate form etc. from accused, Kalim
Ansari. He also stated that after completing the investigation he submitted
charge-sheet in the case. He had also got the T.I.Parade of the accused
persons as also T.I.Parade of the ambassador car.
10. It is important to note from the aforesaid evidence that although
the prosecution has proved the seizure of the ambassador car as also
seizure of the notes and other papers from the possession of the two
accused-appellants, Bablu Dutta and Kalim Ansari, but T.I.P was not
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proved. The learned Sessions Judge while convicting them as stated in para 19 of
the judgment that the T.I.P of the accused persons was conducted by Sri
A.B.Srivastava, Judicial Magistrate, 1st Class, Bokaro, but since the said
T.I.Parade was neither brought on record nor proved by the evidence of the
Judicial Magistrate. Obviously he was refering the same from the case diary,
which is not a legal evidence. It is important to note that T.I.P of the accused
persons were not brought on record and even the witnesses, namely, P.Ws. 1 , 2
& 3 failed to identify the accused persons in court. As far as identification is
concerned, there is no evidence that the appellants have been identified during
trial properly. As far as recovery is concerned no doubt that there is recovery of
currency notes as also the order form of Poddar Pharma from different medical
shop keepers from the possessions of two accused, Bablu Dutta and Kalim
Ansari, but they were not put on T.I.Parade nor they were identified by the
informant-P.W.1 and P.W.2 nor the said notes were produced in Court during
examination of P.Ws. 1 & 2 that these are the same notes on which their
signature are available. P.W.1 in his evidence stated that he used to put small
initial and name of the medical shop from where notes were given or received by
him, but the said notes were not produced in Court before witnesses 1 & 2.
11. In that view of the matter, in my opinion, on the basis of the aforesaid
recovery which has not been proved beyond reasonable doubt and conviction of
the the appellant nos. 1 and 2 under Section 412 of the Indian Penal Code cannot
be maintained. Although they might have taken part in the dacoity, but the
prosecution has failed to prove the charges beyond reasonable doubt. Even the
recovery of the ambassador car which was put on T.I.Parade and identified by the
accused persons has also not been brought on record nor proved by the
prosecution and as such I think it is a badly conducted case by the prosecution
and I.O, who had conducted the T.I. P. of the accused, car and notes and even the
name of the sessions Judge, who conducted the T.I.P were not named in the diary
even the charge-sheet nor they were called by the prosecution during trial due to
the laches on the part of the I.O. as also laches on the part of the prosecutor. The
conviction of the appellants cannot be upheld and hence they were given benefit
of doubt and acquitted from the charges.
12. In the result, these appeals are allowed.
13. The appellants, Bablu Dutta and Kalim Ansari (Cr.A.No. No. 443 of
2001) and the appellant, Jamal @ Jamaluddin Ansari (Cr.A.No. 463 of 2001) are
on bail, they are released from the bondage of their bail bond.
[ Pradeep Kumar, J]
Jharkhand High Court, Ranchi
The 21st January, 2010
Jk/NAFR