The single-judge bench of the Jharkhand High Court held that evidence is to be appreciated by considering the totality of circumstances and evidence brought on record. It is not that merely if the seizure list witness turns hostile the entire prosecution case can be cast away. If the other cogent and reliable evidence conviction can be sustained, even if the seizure list witnesses have turned hostile.
Brief facts
The factual matrix of the case is that the dacoity was committed in the house of the informant by 7 to 8 unknown persons who were armed with deadly weapons. Furthermore, two of the miscreants also committed burglary in the adjacent jewelry shop and decamped with the looted articles. The case was registered and the charge sheet was filed in Sections 395 and 412 of the Indian Penal Code. The learned trial court acquitted the appellant for the offence under Section 395 of the Indian Penal Code and convicted him for the offense under Section 412 of the Indian Penal Code. Aggrieved by this, the present appeal is filed.
Contentions of the Appellant
The Appellant contended that the accused was not put on TIP and was neither identified during the investigation nor trial. It was furthermore contended that the seizure list of witnesses turned hostile and didn’t support the case of the prosecution. Also, once the witness turns hostile in the Court, mere proof of the Test Identification Parade by other witnesses will not salvage the prosecution case. The Appellant relied upon the judgment titled Kailash Sahni Vs. State of Bihar.
Contentions of the State
The State contended that on the basis of the disclosure statement, the articles were recovered and put on TIP which has been proved by the independent witnesses. It was furthermore contended that the signatures on the seizure list were also identified by the witnesses.
Observations of the Court
The Hon’ble Court observed that although the TIP Chart is proven, the informant who first identified the stolen item has retracted and claimed not to have done so. seizure list witnesses have also turned hostile. They have acknowledged having signed the document, but they have stated in their deposition that it was taken on a blank piece of paper.
It was furthermore observed that when evaluating evidence, it is important to take into account all relevant circumstances and evidence on record. The entire prosecution case cannot be dismissed simply because a seizure list witness becomes hostile. Even in cases where the seizure list witnesses have become hostile, convictions can still be upheld if there is compelling and credible evidence.
The court noted that Apart from the fact that the informant and seizure list witnesses have turned hostile on the point of identification of the looted article, the very recovery has been made after an inordinate delay which casts doubt on the identification of the stolen article.
Based on these considerations, the court was of the view that judgment of conviction cannot be sustained in view of several infirmities in the prosecution evidence.
The decision of the court
With the above direction, the court allowed the appeal.
Case Title: Ehtar Seikh V. The State of Jharkhand
Coram: Hon’ble Mr. Justice Gautam Kumar Choudhary,
Case No.: Cr. Appeal (S.J.) No. 959 of 2012
Advocate for the Appellant: Mrs. J.K. Mazumdar, Advocate
Advocate for the State: Mr. Anup Kr. Topno, APP
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