The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI [Against the judgment of conviction and order of sentence dated 08.10.2012, passed by Sri Manoj Prasad, learned Judicial Commissioner- IV, Ranchi in S.T. No. 24/1999, arising out of Ratu (Nagari) P.S. Case No. 10 of 1998, Corresponding to G.R. Case No. 171 of 1998] Cr. Appeal (SJ) No. 1104 of 2012 Eltaf Ansari @ Iltab Ansari … Appellant -Versus- The State of Jharkhand … Respondent WITH Cr. Appeal (SJ) No. 1072 of 2012 Bablu Ansari @ Murshid Alam … Appellant -Versus- The State of Jharkhand … Respondent WITH Cr. Appeal (SJ) No. 1126 of 2012 Akhtar Ansari … Appellant -Versus- The State of Jharkhand … Respondent -----------
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE AMBUJ NATH ---------- For the Appellants : M/s. Juhi Kumari, Amicus Curiae : M/s. Rajesh Kumar, Advocate For the State : M/s. Someshwar Roy, A.P.P. --------- 08/Dated 24.04.2024 Heard the parties. These appeals are directed against the judgment of conviction and order of sentence dated 08.10.2012, passed by Sri Manoj Prasad, learned Judicial Commissioner-IV, Ranchi in S.T. No. 24/1999, arising out of Ratu (Nagari) P.S. Case No. 10 of 1998, Corresponding to 2 G.R. Case No. 171 of 1998, holding the appellant Bablu Ansari @ Murshid Alam guilty of offence under section 412 of the Indian Penal Code and sentencing him to undergo R.I. for five years alongwith a fine of Rs. 1000/- with default stipulation of further simple imprisonment for one month and the appellant Akhtar Ansari and Eltaf Ansari @ Iltab Ansari were sentenced to undergo R.I. for 7 years alongwith a fine of Rs.1000/- for the offence under section 395 of the Indian Penal Code and in default of payment of fine, they were further directed to undergo simple imprisonment for one month. The period of detention in custody during the course of trial in this case by the convicts were ordered to be set off from the period of sentence. The prosecution case was instituted on the basis of fardbeyan of the informant alleging therein that on 24.01.1998, he was present in his house along with his family members when six to seven unknown dacoits entered there, they looted his single barrel gun, air gun, jewelries and other household articles. The appellants were apprehended. During the course of investigation, the appellant Akhtar Ansari was put on test identification parade and he was identified by the informant in the test identification parade. In order to prove its case, the prosecution has adduced both oral and documentary evidence. It appears that during the course of investigation, a single barrel gun and air gun were also recovered from the house of appellant Eltaf Ansari. Seizure list relating to his recovery has been marked as Ext.- 3/3. From the perusal of the oral testimony of the prosecution witnesses. It appears that Nusrat Parveen P.W.1 daughter of the informant and Halima Khatoon P.W.2 is the wife of the informant, both these witnesses have supported the fact that on 24.01.1998, dacoity was committed in their house. The dacoits looted, jewelries and other valuables along with single barrel gun and air gun. Both these witnesses, have identified the appellants Akhtar Ansari and Eltaf Ansari in the dock. Both these witnesses have been cross-examined at length. From paragraph 13 of her cross-examination it appears that she could not identify the appellants at the time of occurrence as they 3 were asked to put their heads down. Halima Khatoon P.W.2 in her cross-examination at paragraph 11 has stated that she has not told the police that she could identify the dacoits. Gufran Ansari P.W.3, Imran Hasan P.W.4 are the family members of the informant, they have supported the prosecution case but have not identified the appellants in the dock. Islam Hassan P.W.5 is the informant of this case. He has stated that on 24.01.1998 dacoity was committed in his house the dacoits looted, jewelries and other valuables and one single barrel gun and air gun from his house. He has stated that during the course of investigation a wrist watch was recovered and he has identified the wrist watch. He has identified the appellant Akhtar Ansari in the dock. In his cross-examination, he has stated at paragraph 11, that he had seen the appellants in the police station when they were arrested. Awadhesh Kumar Singh P.W.13 is the Investigating Officer of this case. He has stated that a single barrel gun was recovered from the house of Eltaf Ansari @ Iltab Ansari. He has proved the seizure list relating to the recovery of the said gun which is Ext.-3/3. He has also stated that some articles including the wrist watch was recovered from the possession of Bablu Ansari @ Murshid Alam. He has prepared the seizure list, but the seizure list has not been adduced in evidence. It further appears from the perusal of the record that the test identification chart has not been adduced in evidence and the magistrate who had conducted the test identification parade has not been examined. From the perusal of the seizure list Ext.-.3/3, it appears that single barrel gun was recovered from the house of the appellant Eltaf Ansari. From the aforesaid facts, it is apparent that a looted wrist watch was recovered from the house of appellant Bablu Ansari @ Murshid Alam and the loaded single barrel gun was recovered from the house of the appellant Eltaf Ansari. Nothing was recovered from the possession of appellant Akhtar Ansari. It further appears that the appellants Akhtar Ansari and Eltaf Ansari were identified by the informant, his daughter Nusrat Parveen and his wife Halima Khatoon in the dock. The appellant Altaf Ansari was identified by the daughter of the 4 informant Nusrat Parveen P.W.1 and Halima Khatoon P.W.2 in the dock. The informant has categorically stated in his cross-examination that he had seen the appellants in the police station after they were arrested. So the identification of the appellants in the dock by the informant becomes meaningless. As far as the Nusrat Parveen P.W.1 and Halima Khatoon P.W.2 are concerned, they have stated that at the time of occurrence, they had not seen the face of the dacoits, as they had kept their heads down. It further appears that identification in the dock by these appellants Akhtar and Eltaf Ansari was after four years from the date of occurrence and as such the reliability of such identification further becomes doubtful. As far as the recovery of wrist watch from the possession of the petitioner Bablu @ Murshid Alam is concerned, the test identification chart appertaining to recovery of these wrist watch has not been brought on the record. Seizure list leading to recovery of the wrist watch has not been brought on the record. The informant has stated that he has identified the wrist watch in the test identification parade, but the test identification parade chart has also not been brought on the record. Wrist watch is a common article which is available in the market and as such in the absence of the seizure list and test identification chart relating to the identification and seizure of the wrist watch, this fact remains unproved that the watch so recovered from the house of Bablu @ Murshid Alam was the same wrist watch, which is the subject matter of this case. However, the prosecution has been able to prove that a loaded single barrel gun was recovered from the house of appellant Eltaf Ansari. This fact has been proved by the investigating officer and also by the Seizure list. In view of the aforesaid facts; I am of the opinion that the prosecution has not been able to prove its case against the appellant Akhtar Ansari for committing offence under sections 412 of the Indian Penal Code beyond all reasonable doubt. The prosecution has not been able to prove its case against the appellant Eltaf Ansari @ Iltab Ansari for committing offence under Section 395 of the Indian Penal Code beyond all reasonable doubt. Accordingly, these appellants are acquitted of the charge. 5 However, the prosecution has been able to prove that a loaded single barrel gun was recovered from the house of appellant Eltaf Ansari @ Iltab Ansari. As such, I am of the opinion that the prosecution has been able to prove its case under section 412 of the Indian Penal Code against the appellant Eltaf Ansari and he has been convicted for the offence under section 412 of the Indian Penal Code, but no separate sentence has been passed under this section. Accordingly, the appellant Eltaf Ansari is directed to undergo R.I. for five years for the offence under section 412 of the Indian Penal Code along with a fine of Rs.5,000/- in default of payment of fine he is further directed to undergo S.I. for one month. The period already undergone by the appellant Eltaf Ansari during the trial and pendency of appeal if any shall be set off. These appeals are partly allowed. It was submitted that the appellants Akhtar Ansari and Bablu Ansari @ Murshid Alam are in custody, they are directed to be released forthwith, if not wanted in any other case. Before parting, I would like to record my deep sense of appreciation for M/s. Juhi Kumari who has very ably assisted this court during the hearing of this appeal. Member Secretary, JHALSA is directed to pay Rs.7,000/- to her as remuneration for her services rendered as Amicus Curiae.
Decision
Pending I.A. if any also stands disposed of. (Ambuj Nath, J.) Saurabh uploaded