Crl.A./12/2011
2022 Latest Caselaw 4705 Gua

                                                                           Page No.# 1/15

GAHC010003352011




                      THE GAUHATI HIGH COURT AT GUWAHATI
           (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                              PRINCIPAL SEAT AT GUWAHATI


                              Criminal Appeal No. 12 OF 2011


             1. ROMEN GOGOI, AGE 30 YEARS
             S/O SRI BANESWAR GOGOI R/O MAJ LONGPOTIA GAON P.S. SONARI, DIST.
             SIVASAGAR, ASSAM.


             2: SRI BIJOY TAMANG @ KAMAL TAMANG
             S/O SRI DALBAHADUR TAMANG
             R/O BANGALBARI GAON P.S. TINGKHONG DIST. DIBRUGARH
             ASSAM.

             3: SRI TUTU BORGOHAIN @ NAKUL
             S/O SRI LOKHESWAR BORGOHAIN R/O SIMALUGURI RAMU GAON P.S.
             SIMALUGURI DIST. SIVASAGAR
             ASSAM


                                       ..................Appellants.
             -VERSUS-


             THE STATE OF ASSAM
                        .............Opposite Party.




Advocate for the appellants      :    Mr S Dey,
Advocate for the respondent      :    Mr B Sarma, Addl. P.P..

Page No.# 2/15

BEFORE HON'BLE MRS. JUSTICE MALASRI NANDI

Date of Judgment : 30.11.2022.

JUDGEMENT AND ORDER (CAV)

Heard Mr S Dey, learned counsel for the appellants and Mr B Sarma, learned Additional

Public Prosecutor for the State of Assam.

2. This appeal is directed against the Judgment and Order dated 11.11.2010, passed by

the learned Additional Sessions Judge (FTC) Sivasagar, in Sessions Case No. 17 (S-C)/2008,

whereby the accused appellants were convicted under Section 395 IPC and sentenced them

to undergo Rigorous Imprisonment for 2 (two) years each and also to pay fine of Rs. 1,000/-

each, in default stipulation.

3. The brief facts of the case is that the informant Habibur Rahman lodged an FIR before

the OC, Sonari Police Station, stating, inter alia that on 26.05.1996, around 11:30 pm, about

10 to 12 miscreants armed with modern weapons entered into his residence and had taken

away golden and silver ornaments, clothes, torch, cash, and other articles from his house by

giving death threats to the members of his family.

4. On receipt of the complaint, a case was registered vide Sonari PS Case No. 93/96 under

Section 395 IPC and the investigation was started. During investigation, the Investigating

Officer visited the place of occurrence, examined the witnesses and recorded their

statements, seized some articles from the possession of the accused persons and after

completion of investigation, submitted charge sheet against the accused, Ramen Gogoi, Tutu

Borgohain @ Nokul, Dilip Baruah @ Jiten Baruah, Tulon Baruah and Kamal Tamang @ Vijay Page No.# 3/15

Tamang, out of which, Dilip Baruah and Tulon Baruah were shown as absconders in the

charge sheet before the Court of learned SDJM, Charaideo, Sonari. As the offence under

Section 395 IPC is exclusively triable by the Court of Sessions, the case was committed

accordingly.

5. During trial, three accused/appellants put their appearance before the Court of

Sessions. Charge was framed under Section 395 IPC, which was read over and explained to

them to which they pleaded not guilty.

6. To bring home the guilt of the accused/appellants, prosecution examined as many as 7

(seven) witnesses and exhibited some documents and material objects.

7. On appreciation of evidence, learned Additional Sessions Judge, Sivasagar held that the

prosecution proved the case beyond reasonable doubt and vide Judgment dated 11.11.2010,

convicted the accused appellants under Section 395 IPC and sentenced them as aforesaid.

8. After completion of trial, the statements of the accused persons were recorded under

Section 313 CrPC, wherein the incriminating materials brought in through the evidence of the

witnesses were put to the accused persons, to which, they denied the allegations. On the

other hand, it is also stated that they have been falsely implicated in this case. The defence

side did not adduce any evidence in support of their plea.

9. Aggrieved by the said verdict of the conviction, the accused appellants have preferred

this appeal.

10. Learned counsel for the appellants contended that at the time of incident, it was dark

and it would have been highly improbable to identify the dacoits. It was further submitted

that though PW-1 stated that there was no current at the time of incident, but a lamp was Page No.# 4/15

burning, but PW-2 stated that light was on at the time of the incident. There are lots of

contradictions in the statements of witnesses, regarding identification of the dacoits. The

stolen articles were not recovered from the possession of the accused appellants. In the

absence of substantive evidence corroborating the identification of the accused appellants,

the trial Court ought not have convicted the accused appellants. It is further submitted that

the appellants have no criminal antecedents to commit such type of crime.

11. Learned counsel for the appellants also argued that though test identification parade

was conducted to identify the accused appellants, but it was held after a gap of 24 days, and

as such there was glaring defect in the test identification parade and no explanation was

given for the delay in conducting the test identification parade. The conviction is solely based

on the test identification parade. The accused Ramen Gogoi was not present during test

identification parade. Under such backdrop, the accused appellants were not identified

properly and they are entitled for benefit of doubt.

12. In support of his submission, learned counsel for the accused appellants has placed

reliance on the following caselaws:-

1) 2007 (3) GLT 218; (Pradip Chakma v. State of Tripura)

2) 2005 (4) GLT 170; (Rahimuddin Mazumdar & Ors. V. State of Assam)

13. Per contra, learned Additional Public Prosecutor contended that the testimonies of PW-1

and PW-3, who were the eye-witnesses, their presence on the spot was quite material; and

they being the eye witnesses to the incident had seen the dacoits for a considerable time,

and, therefore, identification of the appellant being the dacoits cannot be doubted. It is

further argued that based on the testimony of PW-1 and PW-3 and other materials on record, Page No.# 5/15

the learned trial Court had convicted the appellants under Section 395 IPC and such

concurrent findings cannot be interfered by this Court.

14. I have considered the rival submissions of both the parties. Perused the impugned

judgment and evidence on record.

15. PW-1 is Abidur Rahman, who is the son of the informant, deposed in his evidence that

at around 11:00 pm one night, about 10/12 years ago, some persons came to their house

and banged on the door by saying that they were Police personnel and asked them to open

the door. Then his father was alive. Hearing that the police personnel have come, his father

asked him to open the door. Accordingly, when he opened the door, about 8/9 persons

entered into their house, three among them were armed with guns. Entering their house,

they asked him where the Advocate's car was. Then they replied to them that the Advocate

was not staying in their house but at Sonari. Among them, the three persons armed with

guns asked him to keep sitting on the chair and told his father, not to resist them otherwise,

they would be killed.

16. PW-1 also stated that hearing the commotion in their house, his elder brother Mukibur

came out of his house, whereupon one of the dacoits brought him and made him sit on the

chair and tied his hands. Six members of the dacoits entered into their bedroom and asked

them to hand over the gold, money and ornaments. They took the keys of Godrej Almirah

from his sister-in-law and took four sets of gold ornaments which were put aside for the

purpose of his elder sister's marriage and torch. They also took gold earrings, which his

mother and elder sister were wearing, his newly purchased shirt and the pair of jeans and

then left their house. Colour of the jeans was red.

Page No.# 6/15

17. It is also stated by PW-1 that the gang of dacoits did not come by covering their faces

or eyes. All the three accused persons, who were present in the Court, had committed dacoity

in their house. His father lodged an ejahar in the Police Station vide Exhibit-1.

18. PW-1 also stated that after the dacoity, he was accompanied by his two friends, Shanku

Dasgupta and Suraj Pandey to Bhojo Railway Station for going to Dibrugarh. While they were

at the railway station, he had noticed a boy, wearing the pair of his clothes, which the dacoits

have taken away. Then he went towards him. Having seen him, he jumped into a railway

compartment, whom he found nearby, whereupon the GRP Personnel arrested him from

inside the compartment, where he was hiding, and he was identified as Ramen Gogoi.

Accordingly, Police seized the shirt and pair of trousers, the accused clad in and prepared

seizure list, vide Exhibit-2, wherein he put his signature.

19. PW-1 further stated that in the course of investigation, the Police brought him to Sonari

Court to identify the accused persons and he identified the four accused persons, before the

Magistrate. One of them was Ramen Gogoi and the other was Bijoy Tamang.

20. In his cross-examination, PW1 replied that there was no current at the time of incident

but a lamp was burning. The gang came on foot. They also went away on foot. They did not

get back the gold ornaments and cash.

21. PW-2 is Anju Rahman. From his deposition, it reveals that he had a pan shop at Bhojo

chariali. One day about 12 years ago, he heard from other people that a dacoity has been

committed in the house of Abidur at Hingrajan. One day, while he was in his shop, he heard

the people causing a commotion that dacoit(s) had been caught at Bhojo Railway Station,

whereupon he went there along with other people and saw that the Police personnel had kept Page No.# 7/15

a tall boy. The witness had indentified Romen Gogoi in the Court. He did not know what

happened later.

22. In his cross-examination, PW-2 replied that he could not remember the date of the

occurrence. He went to the house of Abidur to make enquiry a couple of days after the

dacoity was committed. When the dacoit was apprehended, a lot of people gathered there.

He heard people saying that the name of the dacoit was Romen.

23. PW-3 is Md. Mukibur Rahman. He deposed that one day, about 10 years ago, while they

were sleeping at night, several persons banged on their door, saying that they were police

personnel and asked them to open the door. Then, his father (at that time his father was

alive) opened the door and his younger brother Abidur, his younger sisters and he got up and

and saw that about ten people entered into their house, who were armed with guns, daggers,

daos, etc.. However, they came without covering their faces. They kept his hands and that of

Abidur tied behind their backs with ropes so that they could not move, and upon entering the

house, they took the keys of the Godrej almirah from his mother and took the gold

ornaments weighing about 5 tolas, cash amount of Rs. 70,000/- and his younger brother's

shirt and a pair of trousers from almirah. They ate the rice, which they had left in the kitchen

and went away. They did not raise any hue and cry since they threatened them by showing

their weapons that if they did so, they would kill them and so they raised hue and cry after

the dacoits had gone away, whereafter the neighbouring people came there.

24. In his cross-examination, PW-3 replied that he had forgotten the year and date of

incident but the time was around 10:30 pm. Light was on at the time of incident. He did not

know the names of the accused persons. Those people came to their house on foot and they Page No.# 8/15

also went away on foot.

25. PW-4 is Monoharlal Modi. From his deposition, it reveals that on hearing about dacoity

committed in the house of the informant, he went there on the following day to see what had

happened and on enquiry he came to know that the dacoits had taken away some cash and

gold ornaments. Police had arrived at Habibur's house and started investigation before he

reached. Saying that the dacoit had left the torch, Habibur's family members handed it over

to the police, whereupon the Police seized the same by preparing a seizure list vide Exhibit -3

and obtained his signature therein.

Cross of the witness was declined.

26. PW-5 is another seizure witness, who deposed in his evidence that he had a tailoring

shop at Sonari Gaon. Police called him to the Police Station and showed him a shirt. Police

asked him whether it had been sewed in his tailoring shop or not. Examining the shirt he

replied that it had been sewed in his shop. The name of his shop is "Puja Tailors", but the tag

which he had attached to shirt was removed, but as the design and stitching was his own he

could recognize it and Dalilur Rahman's younger brother got it sewed in his shop.

Cross of witness was declined.

27. PW-6 is Ram Chandra Gogoi. From his deposition, it discloses that he was the fellow

villager of accused Ramen Gogoi. One day about 15 years back, Police accompanied by

Ramen went to their house. At that time, he was sitting there. Police seized a torch, a battery

and a tape recorder from the house of Ramen, vide seizure list (Exhibit-4) wherein, he put his

signature.

28. In his cross-examination, PW-6 replied that he did not see the seized articles in the Page No.# 9/15

Court. He told the Police that those articles belonged to the accused Ramen.

29. PW-7 is the Investigating Officer, who deposed before the Court that on 27.09.96, he

was the Officer-in-charge of Sonari Police Station. On that day, on receipt of an ejahar from

Habibur Rahman, he registered a case vide Sonari PS Case No. 96/1996 and himself took the

charge of investigation. Thereafter, he immediately visited the place of occurrence and drew

its sketch map,vide Exhibit- 5. After questioning the informant and the witnesses at the place

of occurrence, recorded their statements and in presence of the witnesses, he seized one

torch left by the miscreants in the place of occurrence, vide Exhibit-3. On 08.06.1996, the

Railway Police apprehended a person, Ramen Gogoi by name, who was a resident of Maz

Barpetia Gaon, at Bhajo Railway Station and informed him about it, whereupon, he

immediately went to the station and brought Ramen to the Police Station and interrogated

him in connection with the case. The son of the informant, Abidur Rahman, identified the full-

sleeved shirt and pair of jeans, which the accused was wearing to be his own and accordingly

he seized the said shirt and the pair of jeans, vide Exhibit-2. He interrogated the shop owner

from whom the said clothes had been purchased and recorded his statement. He seized Rs.

800/- from Ramen, vide Exhibit- 6, seizure list.

30. This witness also stated that after making a search in the house of Ramen Gogoi, he

seized a torch, a tape recorder and a battery of a bullet bike, vide Exhibit -4. He interrogated

Dilip Baruah @ Jiten Baruah, Tolan Baruah, Putu Borgohain @ Nakul and Kamal Tamang @

Bijoy, who were detained at kakatibari Police Station, in connection with other dacoity case.

As he made a prayer to the Court to conduct TIP, the same was conducted on 20.07.1996

and witness Abidur Rahman identified all the persons. The articles which were taken away by

the dacaoits, could not be recovered. After completion of the investigation, he submitted Page No.# 10/15

chargesheet against the aforesaid accused persons, vide Exhibit -7.

31. In his cross-examination, PW-7 replied that he received the ejahar on the next day of

the incident at about 08:10 am. He took the statements of 14 witnesses at the Police Station

at the place of occurrence. He did not note down the numbers of the seized banknotes. He

seized the torch light, battery etc. which were found in the house of Ramen Gogoi. After

identification of the same by the informant party, he did not collect the finger prints.

32. In cases of dacoity, usually the offence is committed by unknown persons with a

criminal background. It is only in very few cases that the accused dacoits are known to the

victim. In the instant case, it appears that PW-1 and PW-3, who were the sons of the

informant were present when the incident occurred. According to PW-1, on the date of

incident, at around 11:00 pm, some persons came to their house and banged on the door by

saying that they were Police personnel. At that time, his father was alive. On the direction of

his father, when he opened the door, about 8/9 persons entered into their house, armed with

guns and enquired about the car of one Advocate and subsequently, it is also alleged that the

dacoits took away four sets of jewelleries, one torch and cash. The dacoits did not cover their

face and he recognized them before the trial Court. After three days of the occurrence, he

accompanied by some of his friends, when went to Bhajo Railway Station for going to

Dibrugarh, he saw a boy who was wearing his shirt and trousers, which the dacoits had

taken away on the date of incident. PW-1 also stated that the colour of the pair of jeans was

red. But from seizure list, it reveals that the jeans seized by the Police was brown in colour.

Though PW-5 stated that the shirt had been sewed in his shop and he attached the tag of the

name of his shop as "Puja Tailors", but, it was removed. He could recognize the said shirt as

the design and stitching of the said shirt was his own, but none of the witnesses including the Page No.# 11/15

informant, had nowhere stated that the seized shirt was sewed in the shop of PW-5, "Puja

Tailors".

33. It also appears from the evidence of PW-6 that Police also seized a torch, and a battery

and a tape recorder, but according to the informant, the torch was handed over to the Police,

in connection with the dacoity in this case. None of the witnesses had stated anything

regarding stealing of battery or tape recorder from the house of the informant.

34 Admittedly, the incident occurred at about 11:00 pm at night. PW-1 stated that there

was no current at the time of incident, but a lamp was burning, but PW-3 who was also

present at the relevant time of incident, had stated that light was on at the time of incident.

On the basis of contradictory statement between PW-1 and PW-3, regarding presence of light

on the spot, it is doubtful in respect of the identification of the accused persons on the date

of incident, by PW-1 and PW-3.

35. Regarding test identification parade, according to PW-1, in the course of investigation,

the Police brought him to Sonari Court to identify the accused persons and he identified four

accused persons before the Magistrate. One of them was Ramen Gogoi and Bijoy Tamang,

but it is interesting to note that Ramen Gogoi was not present when the TIP was conducted

before the Magistrate as per the TIP sheet. As per TIP sheet, four persons were identified by

PW-1, Abidur Rahman, who were Tulon Baruah, Bijoy Tamang, Tutu Borgohain and Jiten

Baruah, by touching their bodies.

36. It is alleged that the dacoits had taken away cash of Rs. 70,000/- and golden

ornaments, but nothing was recovered from the possession of the accused appellants, except

one pair of shirt and one trousers from the accused Ramen Gogoi. The incident occurred on Page No.# 12/15

26.05.1996, but the TIP was done on 24.06.1997, i.e., after 28 days of the incident. There is

no explanation from the side of prosecution regarding delay of conducting TIP. In the

commission of offence of dacoity, identification becomes susceptible to errors and miscarriage

of justice.

37. In the case of Harinath & Anr. Vs State of UP, (1988) 1 SCC 14, the Hon'ble Supreme

Court held as follows:-

"The conduct of an identification parade belongs to the realm, and is part of the

investigation. The evidence of test identification is admissible under Section 9 of

the Evidence Act. But the value of the test identification, apart altogether from

the other safeguards appropriate to a fair test of identification, depends on the

promptitude in point of time with which the suspected persons are put up for test

identification. If there is unexplained and unreasonable delay in putting up the

accused persons for a test identification, the delay by itself, detracts from the

credibility of the test."

38. The one area of criminal evidence susceptible of miscarriage of criminal justice is the

error in the identification of the criminal. Indeed Prof. Borchard's "Convicting the Innocent"

records several criminal convictions in which the accused was subsequently proved innocent.

The major source of the error is to be found in the identification of the accused by the victim

of the crime. Indeed the learned author refers to the source of mistaken identification thus:

"The emotional balance of the victim or eye-witness is so disturbed by his extra-

ordinary experience that his powers of perception become distorted and his

identification is frequently most untrustworthy. Into the identification enter other Page No.# 13/15

motives not necessarily stimulated originally by the accused personally the desire

to require a crime, to exact vengeance upon the person believed guilty, to find a

scapegoat, to support, consciously or unconsciously, an identification already

made by another. Thus, doubts are resolved against the accused."

39. On perusal of the evidence on record as noticed earlier, test identification parade was

conducted in jail on 24.06.1997, by PW-1 only. Though PW-3 was present at the relevant time

of incident, but he was not brought to the jail to identify at the time of conducting TIP. As far

as test identification parade is concerned, it is relevant to note that accused Ramen Gogoi

was not present at the time of TIP and he was also not identified by PW-1, though PW-1,

while deposing before the Court had stated that he identified PW-1, during TIP. Even though

the PW-1 and PW-3 disclosed that as the accused persons were not covering their faces and

eyes, had entered into their house, but it appears that the incident occurred at about 11:00

pm. If we believe the evidence of PW-1 that one lamp was burning, but it is not believable

that in a feeble light, PW-1 and PW-3 were in a position to identify the dacoits.

40. The evidence of identification of the miscreants in the test identification parade was not

substantive evidence. Conviction cannot be based solely on the identity of the dacoits by the

witnesses in the test identification parade. The prosecution has to adduce substantive

evidence by establishing incriminating evidence connecting the accused with the crime, like

recovery of articles, which has the subject matter of dacoity and the alleged weapons, used in

the commission of the offence.

41. It is pertinent to note that in the present case, no recovery of articles, which is the

subject of dacoity, was made from the appellants. The informant did not furnish any list of Page No.# 14/15

articles, which were taken away by the dacoits from his house. PW-1 stated that the dacoits

took away four sets of gold ornaments, one torch and cash and his newly purchased shirt and

one pair of jeans, but PW-3 was specific that the dacoits had taken away 5 tolas of golden

ornaments, cash amount of Rs. 70,000/- and his younger brother's shirt and pair of trousers.

During investigation, the IO only recovered one shirt and pair of trousers from the possession

of the accused Ramen Gogoi. PW-1 stated that he purchased the said shirt, but according to

PW-5, the said seized shirt was sewed in his shop, but it was sewed by Dalilur Rahman's

younger brother. It has not come from the evidence of the witnesses that the informant had

another brother, Dalilur Rahman.

42. In order to bring home the guilt of the accused persons, it is the duty of the

prosecution to prove that stolen property was in the possession of accused persons or that

the accused had knowledge that the property was stolen property and/or the accused

persons had converted the stolen property, but no such recovery was made to connect the

appellants with the crime.

43. The trial Court has based the Judgment of conviction solely on the oral testimony of

PW-1 and PW-3 and the identification of the appellants in the test identification parade. As

discussed earlier, in the absence of any other evidence, like recovery of stolen jewellery or

cash or other articles, strengthening the prosecution, conviction cannot be based solely on

the identification of the accused in the test identification parade. Serious doubts arise as

regards identification of the accused. Regarding complicity of the appellants in the

commission of the dacoity and their identification by PW-1 in the test identification parade,

the prosecution has failed to prove the guilt of the accused appellants beyond reasonable

doubt and accordingly, the conviction of the appellants under Section 395 IPC cannot be Page No.# 15/15

sustained and is liable to be set aside.

44. In the result, appeal is allowed. The Judgment and Order dated 11.11.2010, passed by

the learned Additional Sessions Judge (FTC) Sivasagar, in Sessions Case No. 17 (S-C)/2008,

is hereby set aside.

45. Send down the LCR.

JUDGE

Comparing Assistant