D.N.UPADHYAY,J. - (1.) These criminal appeals have been directed against the judgment of conviction and sentence dated 14.02.2007 & 17.02.2007 respectively, passed by Sri Rai Satish Bahadur, Addl. Judl. Commissioner No. XVIth, Ranchi in connection with Sessions Trial No.442 of 2004, corresponding to G.R. No.546 of 2004 arising out of Bariyatu (Gonda) P.S. Case No.31 of 2004 dated 06.02.2004 whereby the appellants have been held guilty for the offence punishable under Section 394 and 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life under Section 394 of Indian Penal Code and further to pay a fine of L 10,000/each and in default of making payment of fine further R.I. for one year. The appellants have further been sentenced to undergo R.I. for life and to pay fine of L 20,000/each for the offence punishable under Section 302/34 of the Indian Penal Code and in default of payment of fine further R.I. for one year.
(2.) The case of prosecution, as it appears from the fardbeyan of Sitaram Sharma (PW5), recorded on 26.02.2004 at about 7.30 a.m. at Jhigri Tola, in brief, is that between intervening night of 25/26.02.2004 the informant with his family members was making plan to go to their native village on the eve of Holi festival. The informant noticed presence of certain persons near the gate of his house while he had come out from the room for urinating. The informant tried to know the identity of those persons but they threatened him to keep quite and go inside the house. The matter was brought to the notice of other family members where after they also came out from the room and tried to know identity of those persons assembled near the gate. The miscreants disclosed that they had come to search a criminal and they are staff of police station. On some pretext and also on the point of gun the miscreants got the gate opened, entered into the house and committed robbery. The miscreants were four in number and they were armed with pistol, gun etc. In course of commission of robbery Parshuram Sharma was shot dead. After the miscreants left the place of occurrence, alarm was raised which attracted neighbouring people to assemble there. The informant and other witnesses disclosed about the incident to neighbouring people. The matter was also informed to police, fardbeyan of Sitaram Sharma was recorded and Bariyatu (Gonda) P.S. Case No.31 of 2004 under Section 394 & 302/34 of the Indian Penal Code was registered against unknown miscreants. The investigation was carried out. In course of investigation one of the accused Dharmendra Singh @ Ali along with brother of appellant Mukesh Nayak was apprehended. They confessed their guilt and disclosed name of their associates indulged in the commission of robbery and murder. These two appellants surrendered before the Court. After concluding investigation, charge-sheet was filed against them. Accordingly, cognizance was taken and case was committed to the court of Sessions and registered as S.T. No.442 of 2004. Charges under Section 394 and 302/34 of the Indian Penal Code against co-accused Dharmendra Singh @ Ali and appellants were framed on 07.10.2004 and they were put on trial. The prosecution, in order to substantiate the charges, examined altogether nine witnesses whereas defence has examined only one witness. The learned Addl. Judicial Commissioner, at the conclusion of trial, placing reliance on the evidence and documents available on record, held the appellants guilty and sentenced them as indicated above. Accused Dharmendra Singh @ Ali was not found guilty and he has been acquitted from the charges levelled against him.
(3.) The appellants have assailed the impugned judgment of conviction and sentence on the ground that Investigating Officer has done perfunctory investigation under the influence of informant party. The physical description of dacoits, as given by the informant and other witnesses, do not tally with the appearance of the appellants. The Investigating Officer to prove his ability, had apprehended the appellants and other accused and to prove their involvement in the alleged robbery, made the witnesses convinced and got the appellants identified in T.I. Parade which was not done in accordance with law. The appellants were taken on police remand on 22.04.2004 and sent back to jail on 23.04.2004 i.e. on the very following day. The purpose of taking the appellants on police remand and bringing them to the police station was only with an intention to show them to the witnesses so that the witnesses could be able to identify the appellants in T.I. Parade and that is what has happened. PW2 and PW5 have admitted in their deposition that arrest of the appellants was brought to their notice and their names were also disclosed by the I.O. to PW2. The defence witness DW1 has corroborated this fact that the appellants were shown to the witnesses by the police when they were taken on police remand. In this context, learned counsel has also drawn my attention towards the statement of PW7 Santosh Kumar, the Judicial Magistrate who had conducted Test Identification Parade. The appellants were put together as suspect and both the witnesses were directed to identify the culprits. When PW2 Lavkush Sharma identified the appellants, it was being corroborated by PW5 Sitaram Sharma. It is submitted that both the suspects should have been directed to stand in two different queue with the persons of similar personality and the witnesses should have also been directed to appear to part in T.I. Parade one after another. The T.I. Parade should not have been held in presence of both the witnesses at once. The learned Magistrate has deposed that T.I. Parade of both the appellants was conducted one by one but T.I.Parade Chart is only one i.e. Exhibit 2. The manner in which T.I.Parade was conducted does not appear to be genuine and no reliance could be placed on it. Learned counsel appearing for the appellants has submitted that statement of accused recorded under Section 313 Cr.P.C. has caused prejudice to them because the learned Addl. Judicial Commissioner has failed to put all the circumstances and evidence to the appellants to enable them to answer and give evidence in their defence. The learned Addl. Judicial Commissioner has held the appellants guilty mainly on the ground that they were identified in T.I. Parade but no question on the point of T.I.Parade held has been put to any of the appellants though they have raised the point that they were shown to the witnesses at the police station when they were taken on police remand. Co-accused Dharmendra Singh @ Ali on whose confessional statement name of these appellants transpired, has been acquitted and therefore, findings of learned Addl. Judicial Commissioner appears erroneous and liable to be set aside. ;