RAMJAN Vs. STATE OF HARYANA

JUDGEMENT

(1.) FOUR accused named Lakhmi, Harji, Ramjan and Karam Chand were tried by the learned Additional Sessions Judge (II), Faridabad, for the commission of offences under Sections 395 -397 of the Indian Penal Code for having committed dacoity with attempt to cause death or grievous hurt about 11.00 p.m. on the night intervening 7th/8th December, 1983, in the house of Nand Kishore of village Malerna in Police Station, Ballabgarh, District Faridabad of Haryana State. Vide the assailed judgment dated 20.9.1985, learned Additional Sessions Judge acquitted Karam Chand and Harji, accused. Accused Lakhmi was ordered to be tried separately as and when available because in case FIR No. 211 of 1984 he had been awarded death sentence by learned Additional Sessions Judge, Sonepat, and could not, therefore, be produced by the Faridabad police before the learned trial Court. Accused appellant Ramjan was alone convicted for the commission of offences under Sections 395/397 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of seven years and to pay Rs. 200/ - as fine. In default of payment of fine, the accused was ordered to undergo rigorous imprisonment for a further period of three months. Feeling aggrieved from the decision of the learned trial Court, accused Ramjan has filed Criminal Appeal No. 459 -SB of 1985 in this Court. Hence the appeal.

(2.) AS would appear from a reading of paragraphs 3, 6, 7 and 14 of the impugned judgment, prosecution case against accused -appellant Ramjan is based on his identification, in the identification parade held by Naib Tehsildar Mahabir Parshad in Sub Jail, Bhallabgarh, on 10.9.1984 vide report Exhibit P -10 and disclosure statement Exhibit PL leading to discovery of gold ring Exhibit P -3, kundals Exhibit P -4/1 and P -4/2 and the transistor Exhibit P -5, vide recovery memo Exhibit PM, from inside the chhappar forming part of the residential house of the accused, on his pointing out the place of their concealment.

(3.) IN FIR Exhibit PQ, embodying first version of the occurrence, four persons are mentioned as accused; two out of them allegedly entered the bed -room of Nand Kishore and another two were allegedly standing at the door. Out of the two persons, who entered the bed room, one is stated to be black complexioned, middle structure, strong body built, wearing blue and red lining jersey and pajama and carrying a gun. The other one is stated to be smart, tall, thin and wearing a kurta and underwear and having a dhoti on his beard. Out of the two person standing at the entrance door of the bed -room of Nand Kishore, one is stated to be middle structure, tall, wearing a blue jersey and armed with a gun and the other one is stated to be middle structure, active and young. None from amongst these four persons fits in with the description of Ramjan accused given out by Savitri PW 17, who states that Ramjan was tall structure, strong built, wheat complexioned, armed with a pistol and was wearing a red colour sweater. In cross -examination, the witness stated that she could not say whether the identification of only two person was told by her to the police or of some more persons. No person from amongst the accused is given out in the FIR Exhibit PQ to be carrying a pistol/revolver nor is it stated therein that any from amongst them was wearing a red colour sweater. Identification of Ramjan could not therefore be made from the descriptions set out in the FIR. His identification was set out in the statement of Savitri, Exhibit D -2, recorded by the police on 8.12.1983. It is, however, an irony of fate that, while holding the identification parade on 10.9.1984, Savitri was not called to identify Ramjan. identification of accused Ramjan by Nand Kishore, Javitri, Sukhbiro and Lal Singh is simply meaningless nor does his identification by witnesses in Court is of any help to the prosecution because he had admittedly appeared in Court earlier without muffled face before the date on which he was identified by the witness. The edifice built by the prosecution against accused Ramjan on the basis of identification in identification parade held in Sub Jail, Ballabgarh, vide memo Exhibit PL on 10.9.1984, thus stumbles down.