SK.KHUSDIL Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS Revision has been directed by the petitioners named above against the judgment dated 19th March, 1990 passed by Shri Jiwan Tigga, 2nd Additional Sessions Judge, Singhbhum at Chaibasa in Criminal Appeal No. 275 of 1980 whereby and whereunder conviction and sentence passed against them in Sessions Trial No. 83 of 1977 by Shri Aditya Sharan, 1st Assistant Sessions Judge, Chaibasa under Section 395 of the Indian Penal Code to undergo R.I. for four years was confirmed.

(2.) THE facts giving rise to this Criminal Revision are as follows: A dacoity was committed in the night between 9th and 10th December, 1974 in the house of P.W. 1, Subodh Chandra Pati, the informant, situate in village Chherkhani, P.S. Rajnagar, District Singhbhum in which his household effects were taken away by the dacoits and a case against unknown dacoits was registered. It is alleged that six dacoits out of 10 or 12 unknown dacoits had entered into the house of the informant and caught hold of him and also tied him with rope and on his alarms, the villagers assembled there and the dacoits fled away and they were chased by the informant and others. It is also alleged that dacoits were armed with lethal weapons and in course of commission of the dacoity one of the dacoits attempted to inflict injury on the informant by the sword which he had warded off. It is also alleged that in spite of chase none of the dacoits could be apprehended. There is specific averment in the F.I.R. that the informant and others had seen the dacoits in the flash of the torch light and the gait and facial features of the dacoits have been stated in the fardbeyan and the informant claims to identify them by their gait and physical features.

(3.) ASSAILING the impugned judgment of the learned courts below it has been submitted by the learned counsel for the petitioners that the impugned judgment of both the courts below is perverse and suffers with manifest error which has caused miscarriage of justice and the same is in violation of established norms and principleof law. Elucidating further it has been submitted that in this case Test Identification Chart regarding their identification in the Test Identification Parade has not been brought on the record and admitted into evidence in this case and furthermore Shri S.Upadhyay, Judicial Magistrate, Saraikella who has conducted the Test Identification Parade in which the petitioners are allegedly to have been identified by the witnesses of the prosecution has not taken oath in this case to corroborate the fact regarding the identification of the petitioners by the prosecution witnesses and, therefore, there is no legal evidence at all on the record for the learned courts below to come to the finding of the guilt of the petitioners for the offence under Section 395 of the Indian Penal Code. It has also been submitted that the identification of the petitioners in the dock in course of evidence by the prosecution witnesses after six years of the alleged commission of the dacoity pales into insignificance and has no relevancy. It has also been submitted that the Investigating Officer of this case has also not taken oath in this case for the prosecution which has caused serious prejudice to the petitioners in the facts and circumstances of this case. Lastly it has been submitted that the finding of the learned court below regarding the guilt of the petitioners relying upon the testimony of the prosecution witnesses regarding their identification in course of the evidence after six years of the occurrence has no bearing in the absence of any corroborative evidence regarding their identification prior to that in the Test Identification Parade and in this view of the matter the impugned judgment of both the learned courts below is unsustainable. In support of his contention reliance has been placed upon the case of Ramadhar Chamar and others vs. State of Bihar (1985 BBCJ 749: 1986 PLJR 327) and the case of Budh Sen and + another vs. State of U.P. (A.I.R. 1970 SC 1321).