Jharkhand High Court

Amrik Singh @ Billu vs The State Of Jharkhand on 18 August, 2022

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  Cr. Revision No. 718 of 2006
Amrik Singh @ Billu                                ..... Petitioner
                             Versus
1. The State of Jharkhand
2. Annapurna Nag                              ..... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner     : Mr. Arun Kr. Pandey, Advocate
For the State          : Ms. Nehala Sharmin, APP
For the O.P. No.2      : Mr. Shravan Kumar, Advocate
                             --------
11/ 18.08.2022         Heard learned counsel for the parties.

2. The instant criminal revision application is directed

against the judgment dated 19.11.2005, passed by learned 2nd

Additional Sessions Judge, Jamshedpur, whereby the Cr. Appeal

No.120 of 2000, preferred by the petitioner has been dismissed and

the judgment of conviction and order of sentence both dated

31.07.2000, in G.R. No. 842 of 1999, corresponding to T.R. No. 190

of 2000, passed by the learned Judicial Magistrate 1st Class,

Jamshedpur, whereby the petitioner was convicted and sentenced to

undergo rigorous imprisonment for three years under Section 392 of

the Indian Penal Code, has been affirmed.

3. The prosecution case in brief is based upon the

fardbeyan of the informant alleging therein that on 12.05.1999 at

about 2.15 P.M., the informant, after withdrawing money from the

counter at National Savings Bureau situated in TISCO company

building, was standing near the scooter along with her husband

when two accused persons accosted them and on pistol point

looted away Rs.8,365/-. It is also alleged that two other accused

persons were also standing thereon another scooter. The

informant had claimed to identify the accused persons. After

investigation, police has submitted chargesheet against the

petitioner under Section 392/120-B IPC and cognizance has been

taken against the petitioner; for which the petitioner pleaded not

guilty and claimed to be tried. After trial, the petitioner was found

guilty for the offence and he was convicted and his appeal was

also rejected by the learned appellate court.

4. Mr. Arun Kumar Pandey, learned counsel appearing

for the petitioner assailed the impugned judgment of conviction

on two grounds.

i) There is a delay in TI parade and as per the settled law

there should not be any delay in TI parade as it doubt its

genuinety.

ii) No recovery has been made from the petitioner and the

law is well settled that merely conviction on the basis of TI parade

even assuming to be correct is not sustainable without any

corroborative evidence.

5. Mr. Pandey further submits that this is a peculiar case

wherein the petitioner has been taken into custody on 15.07.1999

and the TI parade was conducted on 21.08.1999 and thus the

prosecution took 37 Days for TI parade. He further submits that

the trial court has committed a gross error in convicting this

petitioner only on the basis of identification in TI parade and

failed to consider that the said TI parade was done after a delay of

37 days and there was no explanation given by the prosecution

witness in respect to his contention.

6. Learned counsel relied upon the judgment passed in

the case of Hari Nath and another v. State of U.P. reported in

(1988) 1 SCC 14 wherein at para 23 the Hon'ble Apex court has

held as under:

"23. We are afraid in the present case, there is a serious lapse on the part of the prosecution in putting up the suspected culprits for a test identification after a lapse of four months after their arrest. There is no explanation at all for the delay. There might conceivably be occasions when there could be justification, or acceptable explanation, for the delay. There are cases where the delay was at the instance of the accused persons themselves as they expressed a choice as to the venue for the test parade. There may be other causes, which in the very nature of things cannot be exhaustively enumerated. Cases can only be illustrative."

7. Learned counsel further submits that there is no

recovery in the instant case and the Hon'ble Apex Court in the

case of Iqbal and another v. State of Uttar Pradesh reported in

(2015) 6 SCC 623 at para 15 has laid down as under:

"15. The evidence of identification of the miscreants in the test identification parade is not a 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 are the subject-matter of dacoity and the alleged weapons used in the commission of the offence."

The law that conviction cannot be based solely on the

identity of the dacoits by the witnesses in the TI parade and the

prosecution has to adduce substantive evidence by establishing

incriminating evidence connecting the accused with the crime and

since in the instant case there is no recovery, conviction is bad in

law. As such, both the orders of trial court and appellate court

should be quashed and set aside.

8. Learned counsel for the State supported the judgment

and submits that there is no error in the findings given by the

Courts below. As such, the conviction cannot be set aside.

9. Mr. Shravan Kumar, learned counsel appearing for the

opposite party No.2-informant submits that the delay in TI parade

was due to the fact that on the date of TI parade there was a date

of production of the convict in another case and that is why TI

parade could not be taken up on that date; but when the next date

was fixed, the TI parade was conducted. However, he could not

dispute the fact that no recovery has been made from conscious

possession of the petitioner.

10. Having heard learned counsel for the parties and after

going through the document including the LCR it transpires that

the petitioner has been convicted under Section 392 IPC. It further

transpires that the TI parade was conducted after a delay of 37

days from the date of custody. The petitioner was taken into

custody on 15.07.1999, however, he was finally identified in TI

parade on 21.08.1999.

11. In the case of Soni versus State of Uttar Pradesh

reported in (1982) 3 SCC 368 (I) wherein at para 2 the Hon'ble

Apex Court has held as under:

"2. After hearing counsel on either side we are satisfied that the conviction of the appellant for the offence of dacoity is difficult to sustain. The conviction rests purely upon his identification by five witnesses, Smt Koori, Pritam Singh, Kewal, Chaitoo and Sinru, but it cannot be forgotten that the identification parade itself was held after a lapse of 42 days from the date of the arrest of the appellant. This delay in holding the identification parade throws a doubt on the genuineness thereof apart from the fact that it is difficult that after lapse of such a long time the witnesses would be remembering the facial expressions of the appellant. If this evidence cannot be relied upon there is no other evidence which can sustain the conviction of the appellant. We therefore allow the appeal and acquit the appellant."