Orissa High Court
Govinda Pradhan And Anr. vs The State on 2 May, 1990
Equivalent citations: 1991CRILJ269
Author: R.C. Patnaik
Bench: R.C. Patnaik
JUDGMENT R.C. Patnaik, J.
1. Having been convicted under Section 396 of the IPC. and sentenced to undergo rigorous imprisonment for life in Sessions Trial No. 7/59-A of 1978, the two appellants have preferred this appeal.
2. There was a dacoity in the night of 13-2-1978 in the house of Lingaraj Panda of village Ramachandrapur in the district of Puri. The culprits forced themselves in, assaulted some of the inmates, used fire arms and decamped with the booty. Sudhibaman Ferida, the servant, succumbed to the injuries sustained by him and some persons were injured. In course of investigation, several persons were apprehended and ultimately placed on trial. Before commencement of the trial, some of the accused managed to excape from jail custody. A few were apprehended and trial of the accused except those who had been apprehended, proceeded in Sessions Trial Nos. 7/59 of 1978 and 4/49 of 1979 wherein some were convicted and some acquitted. Some of the convicted persons filed Criminal Appeal No. 202 of 1980 and Jail Criminal Appeal No. 26 of 1981. The State filed appeal against acquittal of 5 accused persons who had been acquitted. The same was registered as Government Appeal No. 94 of 1984. The two appellant herein were later on apprehened. But as their case had been split up, they faced separate trial.
3. In order to bring home the charges, the prosecution examined 26 witnesses, relied upon confessions made by the appellants before the Magistrate (P.W. 15) and the evidence of indentification of the appellants in Court and recovery of stolen properties.
4. The appellant entered a place of denial. They retracted from their confessional statement and alleged that they had been tortured and coerced and some blank papers signed by them had been taken from them. In short, the confessional statements, alleged to have been made by them, were neither voluntary nor true. No witness was examined on their behalf.
5. The learned Additional Sessions Judge convicted the appellant under Section 396, I.P.C. while acquitting them of the charge under Section 302/34, I.P.C. on the basis of the confessional statements, the evidence of identification in Court and the oral evidence of P.W. 16, whose assistance was taken, as alleged by the prosecution, by the culprits in locating the house of Lingaraj Panda.
6. Mr. A. Mohanty, the learned counsel for the appellants, has assailed the conviction of the appellants contending that the confessional statements were contrary to the mandatory requirement of law; there were serious lapses in the recording of the confessional statement. No step was taken for removing the police influence and practically no time was allowed for cool reflection. Identification after gross delay had no corroborative value. When witnesses had opportunity of seeing the accused prior to the date of identification prade, their identification was meaningless. Hence, the subsequent identification in Court was valueless, and reliance upon P.W. 16, an opium addict and a chance witness, was improper. Besides his evidence was in the nature of an accomplice.
7. On 16-5-78 appellant Bikal alias Bairagi was produced before the S.D. J.M. When the appellant expressed his desire to confess his guilt, the Magistrate followed the prescribed procedure and remanded him to judicial custody till next day. He was produced in Court on 17-5-78 around 12.10 p.m. He was kept in charge of a peon for 5 to 10 minutes, for cool reflection whereafter warnings were administered to him and his confessional statement was recorded. The appellant has alleged that he was arrested on 12-5-78 and was in police custody till be was produced before the Magistrate on 16-5-78. Appellant Gobinda was produced before the Magistrate on 22-5-78 and on his expressing a desire to confess, the Magistrate followed the prescribed procedure and remanded him to jail custody till next day. Around 11.40 a.m. of 23-5-78, he was produced before him. After he was kept in-charge of a peon for 5 to 10 minutes for cool reflection, his confessional statement was recorded. This appellant has alleged that he was taken to custody on 12-5-78. Both the appellants have alleged that they were tortured and the confessional statements, if any, were not voluntary. It is the evidence that the L.O. had occasion to question accused Bikal on 15-5-78. He was at the police station (see evidence of P.W. 19 of page 152). His version is that this appellant was renonstrating that he had committed any crime. He was arrested on 16-5-78 as deposed to by the Investigating Officer and immediately upon production before the Magistrate he expressed the desire to confess. The other appellant also immediately on his production before the Magistrate expressed desire to confess.
8. The conduct leaves a lurking doubt in our mind as to the voluntary character of the desire to confess. But more importantly the question for consideration is if steps were taken for removal of police influence the appellant on and if they were afforded time for cool reflection to decide for themselves if they would confess their guilt, think over the consequence of making the statement. It has, therefore, been laid down judicially that the accused should be separated from the police and should be kept in the magisterial custody and not in police custody and the police shall have no opportunity during the period of magisterial custody of influencing the accused. It is the duty of the Magistrate to satisfy himself that the accused was completely freed from any possible police influence. We get it from the evidence of the Investigating Officer that accused Bikal and Gobinda were lodged in Despalla sub-jail in segregation. As regards Gobinda, the deposition is as under:
"..... On that day I obtained orders from the S.D.J.M. Nayagarh for the confinement of the accused in Daspalla sub-jail in segregation. I took him to the Daspalla jail and produced in the jail. It is true that on the next day, i.e. 17-5-78 I brought him from Daspalla sub-jail to the Court of the S.D.J.M. Nayagarh and prayed, to the S.D.J.M. for recording his statement under Section 164, Cr.P.C. His confessional statement was recorded on 17-5-1978."
Hence, the fact that the Investigating Officer accompanied the accused to jail and again accompanied him and produced him before the Magistrate on 17th destroyed the purpose for which, under the law, an accused is remanded to judicial custody. The same procedure was followed as regards appellant Gobinda (vide paragraph 3 of his deposition). Hence, influence of police persisted till both of them were produced before the Magistrate for recording of their confessional statements. Each of the appellants, as deposed by the Magistrate (P.W. 15), was kept in-charge of the peon for 5 to 10 minutes whereafter the confessional statement was recorded. On the evidence stated above, it cannot be said that sufficient time was allowed to the accused to free them from possible police influence and having regard to the circumstances, the time of 5 to 10 minutes for reflection is not adequate and sufficient. It has been held by courts that time of few hours is not sufficient for a cool reflection. In Babu Singh v. State of Punjab, 1964 (1) Cri LJ 566 the time of one hour was held to be wholly insufficient. In Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217 : (1956 Cri LJ 421) though the accused had been remanded to judicial lockup, the Investigating Police had access thereto. It was held that the confession was not voluntary and having regard to the gap of 5 to 10 minutes from the time the police influence ceased and the recording of the confession, it can safely be said that there was trevesty of the various guidelines and warining administered from time to time. We, have therefore no hestitation to reject the confessional statements.
9. The next piece of evidence is the evidence of identification of the appellants in Court. Though P.Ws. 1, 2, 6 and 8 indentified the appellants in Court, P.W. 1 did not participate in the T.I. Parade held on 18-6-78. Hence, his identification evidence in Court not having been earlier tested in the test identification parade has no probative value. Though P.W. 2 could identify both the appellants the T.I. Parade, P.Ws. 6 and 8 could only identify appellant Bikal alias Bairagi.
10. It is in evidence that the accused were being produced in Court from time to time from Khandpara sub-jail. When the jail van was not available, they were made to walk to the Court on foot. Bikal was arrested on 16-5-78 and Gobinda on 22-5-78. The T.I. Parade was held on 12-6-78 after about a month. In the absence of any satisfactory explanation for the delay in holding the T.I. Parade, it has become suspicious. Explanation of the I.O. that as all the accused had not been apprehanded and he was hoping to apprehend them within a short while, and therefore he had not moved the Court earlier for holding the T.I. Parade for the two appellants does not satisfy us. The reason being the T.I. Parade should be held as soon as possible so that the witnesses do not get opportunity to see the accused prior to the test identification parade. The Magistrate, P.W. 18, has stated :
"..... Before the T.I. Parades were held, the suspects were being produced in my Court from time to time from Khadapara sub-jail. In the absence of jail van, they were being brought on foot, from the sub-jail to Court and were being taken up in the similar fashion after they had been kept in the Court hajat for some time. A person going close to the hajat will be in a position to see the person kept there....."
The aforesaid evidence of the Magistrate is sufficient to discard the identification of the appellants in the T.I. Parade. In Hasib v. The state of Bihar, AIR 1972 SC 283 : (1972 Cri LJ 233) it has been observed with regard to test identification parade in the following words:
"..... It is accordingly desirable that such test parades are held at the earliest possible opportunity. Early opportunity to identify also tends to minimise the chances of the memory of the identifying witnesses fading away by reason of long lapses of time. But such more vital factor in determining the value of such parades is the effectiveness of the precautions taken by those responsible for holding them against the identifying witnesses having an opportunity of seeing the persons to be identified by them before they are paraded with other persons and also against the identifying witnesses being provided by the investigating authority with other unfair aid and assistance so as to facilitate the identification of the accused concerned...."
What is, therefore, important is the precautions taken. If there is opportunity for the witnesses seeing the accused to be identified, that is enough to vitiate the identification parade. Having regard to the fact that the accused were made to walk from the sub-jail at Khandpara to the Court at Nayagarh and back on different dates and were kept in the Court hajat on those dates where there was opportunity for the witnesses to see them, the identification proceedings do not inspire confidence. Hence, it is difficult to rely on the evidence of the witnesses identifying the appellants in Court. The residue evidence is that of P.W. 16, an opium addict. He has deposed that he came to know accused Amin Mohanty inside the jungle near village Angisingi. He asked him to give him company for purchase of 2 Kgs. of Brinjal. This is highly improbable. His reply thereto was that it was not necessary to give him company as Brijal was available everywhere. Then he implored him to give company for wages and on such assurance, he gave him company. He was asked to give company to furnish the location of the house of Lingaraj Panda. It has not been explained in the evidence how any of the accused had the knowledge that P.W. 16 who was wandering in the jungle knew about the village of Lingaraj Panda and the location of his house therein. In the night he gave company and was given opium and food. The other accused persons were there with guns and he enquired as to why they were with guns. They told him that they would set out for hunting in the jungle after the evening. He gave them company. The story appears to be a cock and bull story and should be rejected outright. His evidence is in the nature of an accomplice also. His evidence being unreliable, we reject the same. There is no other evidence on which conviction of the appellants can be based.
11. In the result, the conviction of the appellants and the sentences awarded against them cannot be sustained. We, therefore, set aside the judgment of the Additional Sessions Judge, Puri and allow the appeal and acquit the appellants. They be set at liberty forthwith.
L. Rath, J.
12. I agree.