BHAGIRATH PASWAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE two appeals arise out of the judgment dated the 14th November, 2006 passed by the learned Additional Sessions judge-cum-Presiding Officer, Fast Track Court I, Sheohar at Sitamarhi in Sessions Trial No. 120 of 2003/ 201 of 2006 by which the two appellants, one in each of the two appeals, were convicted of committing offences under sections 395 and 397 IPC and were directed to suffer RI for seven years on each of the counts, which sentences were directed to run concurrently. THE appellants were acquitted by the same judgment of the charge under section 17 of the Criminal Law Amendment Act.

(2.) IT appears that a police picket had been stationed near a temple situated at Deokuli known as Deokuli Dham. IT further appears that the informant Kapildeo Yadav, Constable No. 117 of Sheohar Police Force, was standing on guard duty at Deokuli Dham temple on 24.6.2001. At about 4.15 P.M., while other constables were also around him, someone came running to the police picket raising a halla of Jaan Bachao-Jaan Bachao who was being followed by twenty twenty five criminals. The gang of criminals not only overpowered the person who was being chased by them but also overpowered the constables on duty at Deokuli Dham. The unknown criminals snatched rifles from the guard on duty and one of the miscreants took out a carbine from the bag and fired into air. The remaining miscreants entered the room, which was the armory of the picket, and took away six rifles and 180 rounds of cartridges. While retreating, they raised the slogans of MCC Jindabad. The police had retaliated and during that course, some police personnel like, the informant and others had been injured, who were hospitalized in Sub Divisional Hospital, Sheohar and on that basis the FIR of the case was drawn up. The case was investigated into, during that course the I.O. recorded the statements of witnesses, seized the incriminating articles by preparing the seizure memo (Ext. 4) and also obtained the injury reports of injured constables which have been marked Ext. 3 to .

(3.) IT may appear from a bare perusal of Rule 236(a)(1)(2) that the suspects, who have to be put on Test Identification parade for identification, have to be placed at such place so that no witness could have access to them. IT is further evident from the subsequent sub-rule that at the time of taking the suspects to court or jail, precaution has to be taken that none is able to see them and hence, the accused has to be taken in a closed vehicle. In case such a vehicle was not available, then the requirement of the rule was that their faces be covered in such a manner that they cannot be recognized. Rule 236(a) (8) requires the holding of Test Identification Parades without delay, which is always frowned at by Courts. I have already noted by referring to the orders passed by the magistrate at the stage of investigation that the appellants were not arrested in the present case, rather, were arrested in Sheohar P.S. Case No. 108 of 2001. They were remanded in the present case from the above mentioned Sheohar P.S. Case no. 108 of 2001 by an order dated 29.11.2001 and were produced on many dates for routine remand purpose before the magistrate. Before that they must have been brought to the court for similar purposes. No order passed in between 29.11.2001 and 22.12.2001 indicates that any direction was given by the magistrate so as to securing the identities of the appellants. IT also does not appear from the perusal of the record or any order passed in that regard that the police had reported taking any precaution as regards securing the identity by features of the appellants from being seen by any other witness. This is one aspect of the matter. The same rule may indicate that a particular form stands prescribed for recording the results and findings of the TIP and one of the columns requires that the identifying witness must state as to in what connection the suspect was identified; whether he was standing at the door or was flashing torch light or was assaulting the inmates of the house or was plundering properties?