Patna High Court
Safikul Islam @ Safibul Islam And Ors vs The State Of Bihar on 27 January, 2025
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.4 of 2019
Arising Out of PS. Case No.-56 Year-2011 Thana- BHAGALPUR GRP CASE District-
Bhagalpur
======================================================
Sushil Kumar Choudhary S/o Shri Suryadeo Choudhary R/vill-Jamshout,
Murarchak,P.S-Sahpur,Distt.-Patna.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 513 of 2019
Arising Out of PS. Case No.-56 Year-2011 Thana- BHAGALPUR GRP CASE District-
Bhagalpur
======================================================
1. Safikul Islam @ Safibul Islam Son of Sarful Sheikh Resident of Village -
Chhetiani Nutan Para, P.S.-Beldanga,
2. Mlikul Islam @ Mafikul Mallik @ MALIKUL ISLAM Son of Nooruddin
Resident of Village - Chhetiani Nutan Para, P.S.-Beldanga
3. Noor Islam @ Noor Islam Sheikh Son of Aalam Shekh Resident of Village -
Chhetiani Nutan Para, P.S.-Beldanga
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (SJ) No. 4 of 2019)
For the Appellant/s : Mr. Manish Kumar, Advocate
Mr. Santosh Bharti, Advocate
Mr. Apurva Kumar, Advocate
For the State : Mr.S.A.Ahmad, APP
(In CRIMINAL APPEAL (SJ) No. 513 of 2019)
For the Appellant/s : Mr. Ranjan Kumar Jha, Advocate
Mr. Vikash Kumar, Advocate
For the State : Mr. Mukeshwar Dayal, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL JUDGMENT
Date : 27-01-2025
Heard learned counsel for the appellants and learned
APP for the State.
Patna High Court CR. APP (SJ) No.4 of 2019 dt.27-01-2025
2. Since the appellant no. 3 namely Noor Islam @
Noor Islam Sheikh in Cr. Appeal (SJ) No. 513 of 2019 has died
during the pendency of the appeal, the present appeal stands
abated as against appellant no. 3 namely Noor Islam @ Noor
Islam Sheikh. Now Cr. Appeal (SJ) No. 513 of 2019 is restricted
only with respect to appellant nos. 1 and 2 only.
3. The appeal is being preferred against the judgment
of conviction dated 27.11.2018 and sentence dated 07.12.2018
passed by Shri Binay Kumar Mishra, learned VIIth Additional
District & Sessions Judge, Bhagalpur in connection with
Sessions Trial No. 357 of 2012 (Arising out of G.R.P. Police
Case No. 56 of 2011), by which the appellants have been
convicted R.I. of five years and further quantified fine a sum of
Rs. 1,000/- under Section 395 & 412 of I.P.C and in the event of
non-payment of the said quantified amount to further undergo
S.I. for 01 (one) month.
4. It is relevant to state here that the prosecution case
was based upon the fardbeyan of A.S.I Laldhari and recorded by
S.I. Bindeshwari Yadav on 10.09.2011 at 06.00 a.m. at Barahat
Railway Station Platform No. 1 and the same was forwarded to
Bhagalpur Railway Police Station to institute a case under
Section 395 of I.P.C, that subsequently took over the charge of
Patna High Court CR. APP (SJ) No.4 of 2019 dt.27-01-2025
investigation at the place of occurrence and the same was
registered vide Bhagalpur Railway P.S. Case No. 56 of 2011
under Section 395 of I.P.C and Bindeshwari Yadav, S.H.O,
Bhagalpur was authorized to conduct the investigation into the
matter.
5. The prosecution case as per the fardbeyan is that,
on 10.09.2011 the informant along with Dharmendra Taliyan
and Sanjay Kumar were on duty at 00:15 hours when 10-15
persons, aged between 25-30 years, came from the south
direction on Platform No. 1 near him. One person had plastic
bag and all the persons were wearing T-shirt, shirt, jeans pant
and full pant. The persons were all of dark complexion and they
were talking in the local languages and Hindi, upon seeing them
the informant asked them about the purpose of them being
present at the station since there was no train scheduled, to
which the persons responded that they were working for the
contractor and they stated the purpose of their arrival was to
drink water. The informant signaled them towards the north
where the tube-well was situated and they reached at tube-well,
but returned and stated that tube-well was not working after that
they were given water from his room. Suddenly the persons
surrounded him and Pradeep Kumar Bharti and tied their hands
Patna High Court CR. APP (SJ) No.4 of 2019 dt.27-01-2025
behind their back, during the course of this the Nokia Mobile
bearing number 7870633787 and a torch was taken from the
informant and the mobile of Pradeep Kumar Bharti having dual
SIM bearing numbers 9631611450 and 8409345695 was also
taken and after that they were carried to the booking room and
their legs were also tied. Thereafter Constable Dharmendra
Taliyan and Sanjay Kumar were also caught and brought into
the room. It was further alleged that the accused persons
snatched Motorola Mobile from Dharmednra Taliyan bearing
number 9576957512 and Spice Mobile bearing No. 8271239778
and 7808864345 were taken from Sanjay Kumar.
6. The Station Master Anil Yadav was caught and
after tying his hands the room was closed and the Nokia Mobile
of Paras Kumar Jha bearing 8051087773 and one radio was
taken and a red colour Micromax Mobile bearing No.
9801862702 from Anil Yadav was taken and the room was
closed from outside. It was further stated that at about 2.30 A.M.
the sound of a vehicle was heard and the same was started at
03.00 A.M and 03.15 A.M., all the accused persons closed in the
room came out after breaking the door of the room and saw the
Solar Plate fitted on the roof of the station were opened and
thereafter they climbed over the roof and found 50 Solar Plates
Patna High Court CR. APP (SJ) No.4 of 2019 dt.27-01-2025
were missing and accordingly the accused persons after putting
them in the room the Solar Plates were loosened and carried by
the vehicle and they were of general stature and one was
looking like a wrestler having good health in red and blue
colour vest (ganji) and jeans having white coloured shoe and
their faces were uncovered and were seen properly. On the basis
of the statement of the informant Laldhari, A.S.I, Bhagalpur
Railway P.S. Case No. 56 of 2011 under Section 395 of I.P.C
was registered.
7. It is submitted by the learned counsel for the
appellants that the Investigating Officer namely Bindeshwari
Yadav investigated the case and submitted charge sheet under
Section 395, 412 & 201 of I.P.C, against seven persons
including the appellants on 15.12.2011, bearing Charge Sheet
No. 95/2011 and continued investigation against other accused
persons.
8. It is submitted that on the basis of charge sheet
submitted by the Investigating Officer, the learned Judicial
Magistrate took cognizance under Sections 395, 412 & 201 of
I.P.C. Furthermore, the case was committed to the Court of
Session. It is submitted that the learned Judicial Magistrate,
Bhagalpur vide order dated 15.11.2014 committed the case
Patna High Court CR. APP (SJ) No.4 of 2019 dt.27-01-2025
against the appellants, Shafikul Islam, Malikul Islam & Noor
Islam for the offences of committing Dacoity by taking away 50
solar lights and mobile etc. Therefore it is submitted that the
case against the aforesaid accused persons was committed to the
Court of Session under Section 395 of I.P.C.
9. The learned counsel for the appellants has
submitted that during the course of trial, prosecution produced
the following documents :-
(I) Ext. -1- Signature of Laldhari, A.S.I. on fardbeyan.
(ii) Ext. 2- Seizure List.
(iii) Ext. 3- Seizure List.
(iv) Ext. 4 & 4/1- Confessional Statements.
10. Further it is submitted that the prosecution had
examined altogether 8 (eight) witnesses namely :-
(i) P.W-1- Laldhari (Informant).
(ii) P.W-2- Dharmendra Taliyan (Constable).
(iii) P.W-3- Parak Kumar Jha (Porter).
(iv) P.W-4- Sanjay Kumar (Constable).
(v) P.W-5- Jai Prakash Mishra (Station Master).
(vi) P.W-6- Pradeep Kumar Bharti (Labour).
(vii) P.W-7-Anil Yadav (Farmer-Independent
Witness).
Patna High Court CR. APP (SJ) No.4 of 2019 dt.27-01-2025
(viii) P.W-8- Bindeshwari Yadav (I.0).
10. It is submitted that the prosecution witnesses were
examined on various dates and have supported the occurrence
but none of these witnesses have disclosed the identity or even
whispered regarding the identification of the appellants in
connection with the occurrence.
11. It is submitted that admittedly, the appellants was
the owner of SUMO VICTA and the same was hired by the
accused persons, so the appellants sent his SUMO VICTA
through his driver. Therefore, it is argued that complicity of the
appellants could not be established. It is also submitted that the
Solar Plates were recovered from the house of Hardeo Paswan,
therefore he was proceeded against and convicted under Section
412 of I.P.C.
12. It is vehemently argued that there is no
corroborative material brought on record to substantiate this fact
that the appellants comes within the ambit of Section 395 of
I.P.C. It is also submitted that though several relevant materials
were available in the case diary, however it is argued that there
was no tangible material before the prosecution, because none
of the witnesses corroborated this fact that the appellants were
available or present at the place of occurrence.
Patna High Court CR. APP (SJ) No.4 of 2019 dt.27-01-2025
13. The learned counsel for the appellants has
adverted to several paragraphs of the examination-in-chief of
Shri Bindeshwari Yadav (PW-08 Investigating Officer) who was
examined on 02.04.2016.
14. I have heard the parties and perused the materials
available on record.
15. The main thrust of argument of Mr. Manish
Kumar, learned counsel appearing for the appellants is that the
appellants have been identified by a single witness in Court i.e.,
P.W.-2. Neither the appellants nor the other co-convicts were put
on T.I. parade and therefore, the identification of the appellants
in Court for the first time during the trial would create doubt
regarding the participation of the appellants and could not result
in the conviction of the appellants.
16. For this, learned counsel for the appellants has
relied upon a judgment of the Hon'ble Supreme Court in the
case of Kanan and Others. vs. State of Kerala reported in
(1979) 3 SCC 319, which reads as under:
"1......It is well settled that where a witness
identifies an accused who is not known to him in the
Court for the first time, his evidence is absolutely
valueless unless there has been a previous TI Parade to
test his powers of observation. The idea of holding TI
Parade under Section 9 of the Evidence Act is to test
the veracity of the witness on the question of his
capability to identify an unknown person whom the
Patna High Court CR. APP (SJ) No.4 of 2019 dt.27-01-2025
witness may have seen only once. If no TI Parade is
held then it will be wholly unsafe to rely on his bare
testimony regarding the identification of an accused for
the first time in Court.
17. Similarly, in the case of Hari Nath vs. State of
Uttar Pradesh 1988 (1) SCC 14, the Hon'ble supreme Court has
held that:-
"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."
18. Apart from this, it has been submitted by Mr.
Manish Kumar, learned counsel for the appellants, that the
questions put to the appellants for the purposes of enabling them
to explain any of the circumstances appearing in the evidence
against them should have been put to them specifically,
distinctly and separately. The prosecution has failed to do so and
therefore the same amounts to serious irregularity and would
vitiate the trial. It has further been submitted that the appellants
has been prejudiced because no specific questions were put to
him with regard to the circumstances which have appeared in
Patna High Court CR. APP (SJ) No.4 of 2019 dt.27-01-2025
the evidence against the appellants.
19. For this, learned counsel for the appellants has
relied upon a judgment of Hon'ble Supreme Court in the case of
Raj Kumar alias Suman vs. State (NCT of Delhi) reported in
AIR 2023 SC 3113, which reads as under:
"21. Before we part with this judgment, we
must take a note of sub-section (5) added to Section
313 of CrPC w.e.f. 31st December 2009. Subsection (5)
reads thus :
"313. Power to examine the accused.
-
(1) ...
(5) The Court may take help of
Prosecutor and Defence Counsel in preparing
relevant questions which are to be put to the
accused and the Court may permit filing of
written statement by the accused as sufficient
compliance of this section.
In many criminal trials, a large number of
witnesses are examined, and evidence is voluminous. It
is true that the Judicial Officers have to understand the
importance of Section 313. But now the Court is
empowered to take the help of the prosecutor and the
defence counsel in preparing relevant questions.
Therefore, when the Trial Judge prepares questions to
be put to the accused under Section 313, before putting
the questions to the accused, the Judge can always
provide copies of the said questions to the learned
Public Prosecutor as well as the learned defence
Counsel and seek their assistance for ensuring that
every relevant material circumstance appearing
against the accused is put to him. When the Judge
seeks the assistance of the prosecutor and the defence
lawyer, the lawyers must act as the officers of the Court
Patna High Court CR. APP (SJ) No.4 of 2019 dt.27-01-2025
and not as mouthpieces of their respective clients.
While recording the statement under Section 313 of
CrPC in cases involving a large number of prosecution
witnesses, the Judicial Officers will be well advised to
take benefit of sub-section (5) of Section 313 of CrPC,
which will ensure that the chances of committing errors
and omissions are minimized"
20. So far as the appellants namely, Safikul Islam @
Safibul Islam and Mlikul Islam @ Mafikul Mallik @ Malikal
Islam are concerned, the learned Counsel, has argued that the
aforesaid two appellants were not identified in the trial by any
witness and has also adopted the argument of Mr. Manish
Kumar with regard to Section 313 Cr.P.C. i.e., specific questions
were not put to him with regard to the circumstances which
have appeared in the evidence against the appellants.
21. The Learned APP has supported the impugned
judgment of conviction under section 395 and 412 I.P.C. and the
order of sentence passed by the Learned Court below.
22. The short questions raised by the learned counsel
for the appellants who have been convicted is as to whether the
appellants can be convicted on the basis of the materials
available on record. It is an admitted position that the two
appellants namely, Safikul Islam @ Safibul Islam and Mlikul
Islam @ Mafikul Mallik @ Malikal Islam have not been
identified in the trial by any of the witnesses and they were not
Patna High Court CR. APP (SJ) No.4 of 2019 dt.27-01-2025
put on T.I. parade and the questions were not put to them in
accordance with law under Section 313 Cr. P.C.
23. Considering the aforesaid judgments and the
materials available on record, I am of the view that the appellant
of Cr. Appeal (SJ) No. 4 of 2019 namely, Sushil Kumar
Choudhary cannot be convicted on the basis of single
identification when he was not put on T.I. parade and the
relevant questions were not put to him under Section 313 of the
Cr.P.C.
24. Similarly, the appellants namely, Safikul Islam @
Safibul Islam and Mlikul Islam @ Mafikul Mallik @ Malikal
Islam, who were not being identified in the trial and relevant
questions were not put to them under Section 313 of the Cr.P.C.
cannot be convicted for the offences alleged to have been
committed by them.
25. In view of the above, the judgment and order of
punishment in under appeals are set aside.
26. Both these appeals are allowed.
27. Since the appellants are on bail, they are
discharges from the liabilities of their respective bail bonds.
28. Let the L.C.R. be sent back to the concerned
Court below forthwith.
Patna High Court CR. APP (SJ) No.4 of 2019 dt.27-01-2025
29. Interlocutory application(s) if any, shall also
stands disposed of.
(Sandeep Kumar, J)
P. Kumar
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 18.02.2025
Transmission Date 18.02.2025
