Orissa High Court
Tinkia @ Tankadhar Sahu vs State Of Orissa on 28 March, 2024
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRA No. 296 of 1993
(Arising out of the Judgment of Conviction dated 18.08.1993 passed by
Shri H. Mohapatra, learned Sessions Judge, Dhenkanal-Angul,
Dhenkanal in Sessions Trial No. 146D of 1989/Sessions Trial No. 32D of
1990 and Sessions Trial No. 78D of 1990, for the offences under Section
396 I.P.C. and under Section 9(B) of Indian Explosives Act)
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Tinkia @ Tankadhar Sahu .... Appellant
Mr. B. C. Parija, Advocate
-versus-
State of Orissa .... Respondent
Mr. S. Patra, ASC
P R E S E N T:
HONOURABLE SHRI JUSTICE CHITTARANJAN DASH
Date of Judgment : 28.03.2024
Chittaranjan Dash, J.
1. The Appellant, namely Tinkia @ Tankadhar Sahu of Village Kantio, P.S. Tumusingh, Dhenkanal faced the trial on the charges under section 396 of the Indian Penal Code, 1908 (in short, herein after referred to "IPC") and under section 9(B) of Indian Explosives Act before the learned Sessions Judge, Dhenkanal-Angul for having committed dacoity in the house of one Patayat Sahu - the Informant and CRA No. 296 of 1993 Page 1 of 12 murder of his father, namely Kapileswar Sahu, at village Nuasalapada under P.S. Kamakhyanagar in furtherance of common intention being assisted by others wherein, the learned trial court found the Appellant guilty in the offence under section 395 IPC, convicted and thereafter sentenced to undergo rigorous imprisonment for 5 years each and to pay a fine of ₹1000/- each, in default to undergo R.I. for another 6 months each. Further sentenced to undergo R.I. for 6 months each for the offence section 9(B) of Indian Explosives Act and directed both the sentences to run concurrently. In the while, Appellants 1 and 2, namely Dilip Dash and Sashibhusan respectively have expired during the pendency of this appeal and their appeal stands abated vide order dated 31.10.2022. The present appeal, therefore, is confined only to Appellant Tinkia @ Tankadhar Sahu.
2. The prosecution case in brief is that on the intervening night of 15/l6.6.1988, some persons including the present appellants being armed with sword, knife and lathis trespassed into the house of the complainant P.W.1 in village Nuasalapada, murdered his father and further assaulted the inmates of the house, and forcibly took away cash and ornaments valued at ₹20,000/-. It was alleged that in process of investigation, the accused persons escaped by exploding bombs thereby terrorizing the inmates of the house and the villagers. Soon after the occurrence police arrived at the spot on receiving a telephonic message and drew up the F.I.R. on the oral report of Pattayat Sahu - P.W.1 and took up investigation.
3. In course of the investigation, S.I. - A. K. Mahanty (P.W.9) was the O.I.C. of Kamakhyanagar P.S. Upon receiving a telephonic information on 16.6.1988 at 12:45 AM, about an occurrence of dacoity CRA No. 296 of 1993 Page 2 of 12 in Village Salapada, he moved to the spot with all the officers at about 1:00 AM. He received the oral report of the Informant P.W.1 and reduced it to writing. He examined the witnesses at the spot, held inquest over the dead body of the deceased as per Ext 11 and the dead body was sent for P.M. examination as per dead body challan Ext 12. The injured persons - P.W.1, Nirupama, Chhaya, Nadia, and Mandodari P.W.3 were also sent for examination. He seized blood-stained cement, sample dust, some paper pieces having the smell of crackers, pieces of jute, blood- stained Kantha and pillows, a tape recorder, some wooden boxes, a knife, one Sal stick, one small tin box, command certificate, a blood- stained white dhoti. Station Diary No. 291 was made and seizure list can be found in Ext. 13, 14 and 15. On 17.6.1988, C.I. - S. K. Panigrahi (P.W.10) took over the investigation. He again visited the spot and examined witnesses. On 26.1.1989 the accused Dilip, Sashi and Sarat were apprehended in Kamakshyanagar Police Station, P.S. Case No.6 U/s.395 I.P.C. and the investigation which had come to an end upon submission of a final form, was reopened. The weapon of offence stated to have been used by the accused persons in commission of the offence has duly been proved by the I.O. as per Ext 10/2 and M.O.I. is the evidence to the effect that the nose stud was received from the sister of deceased-appellant Dilip. Similarly, another gold nose ring was seized under Ext. 17 - M.O.II. Also, some sticks/lathis were recovered near a culvert and seized in presence of witnesses as per Ext. 9 - M.O.III. The sword was sent to S.F.S.L. Rasulgarh for Chemical Examination and Serological test. All the 3 accused-appellants were forwarded to the court on 27.01.1989 and a T. I. Parade of the suspects and the articles was conducted by the learned S.D.J.M. on 01.02.1989 and a report was made on 03.02.1989. On the basis of the statements of the accused persons, other accused persons were arrested and forwarded to court. He arranged CRA No. 296 of 1993 Page 3 of 12 despatch of seized articles to S.F.S.L. Rasulgarh through Court and accordingly on 25.04.1989, chargesheet was submitted.
4. To bring home the charge, the Prosecution examined 13 witnesses in all. P.W.1 is the Informant and P.Ws. 2, 3 and 4 are the inmates of the house as well as the victim of the occurrence. P.W.5 is the Sub-Assistant Jailor who was witness to the Test Identification Parade inside the jail. P.W.6, 7 and 8 are seizure witnesses to the lathi and sword. P.W.9 and 10 are the police officers who investigated in different stages culminating in the submission of charge sheet. P.W.13 is the S.D.J.M. Kamakhyanagar who conducted the T. I. Parade of the suspects and the seized ornaments.
5. The learned trial court, in the facts and circumstances held the offence under section 396 IPC as unsustainable against the accused persons as the guilt of murder could not be proved, but the Court in the self-same evidence from the charges under section 395 IPC and under section 9(B) of Indian Explosives Act, as consistent, natural and cogent and held the Appellant and other accused persons guilty.
6. It is submitted by the learned counsel for the Appellant that the prosecution could not prove its case beyond all reasonable doubt and the evidence led by the prosecution is not cogent. He submits that the most important ingredient to bring home the charge under section 395 IPC is the identity which could not be established by the prosecution to its hilt. The T.I. Parade has lost its sanctity because it was not held in time i.e. after 7 months and the seizure witnesses have not fully supported the prosecution case. The learned Trial Court should have extended the benefit of doubt in favour of the Appellant No.3. Non-examination of a CRA No. 296 of 1993 Page 4 of 12 vital witness namely Chhaya, the sister-in-law of P.W.1, whose role at the time of occurrence was of much more importance, but she was not chosen to be examined as witness by the prosecution, is nothing but a material irregularity to which the learned court below has not taken into consideration. As per the evidence of the P.W.1 there were 10 to 12 accused persons in commission of the alleged crime but learned Trial court acquitted three accused persons in absence of direct and circumstantial evidence while convicted the present Appellant No. 3 and two others even if the prosecution has failed to prove the necessary ingredients of the offence in order to implicate the present Appellant in committing the alleged offence. While basing those witness, the learned trial court passed an order of conviction against the Appellant No.3, has lost sight that they all are interested witnesses and also lacks corroboration in their evidences. The Appellant No.3 has already been suffered a lot in languishing in jail custody for more than three years, hence he has already undergone substantive part of punishment, so a sympathetic view may kindly be taken while adjudicating the case of the Appellant.
7. The learned counsel for the State on the other hand supported the impugned judgment and contended that the evidence brought by the prosecution is sufficient to indict the conduct of the Appellant. The evidence is tell-tale clear that the Appellant and his associates being armed with sword, knives, lathis etc. trespassed into the house of the Informant (P.W.1) in village Nuasalapada and murdered Kapileswar Sahu, the headman of the house and assaulted other inmates and forcibly took away cash and ornaments of the valued of Rs. 20,000/-. From the prosecution side 13 witnesses were examined and in view of the CRA No. 296 of 1993 Page 5 of 12 aforesaid facts and submissions, the aforesaid appeal is devoid of any merit and is liable to be dismissed.
8. To appreciate the aforesaid submissions, the relevant provisions with respect to the charges are required to be referred to.
Indian Penal Code, 1860
391. Dacoity--When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present 1.Subs. by Act 26 of 1955, s. 117 and the Sch., for "transportation for life" (w.e.f. 1-1-1956). 99 and aiding such commission or attempt, amount to five or more, every person so committing, attempting, or aiding, is said to commit "dacoity".
395. Punishment for dacoity--Whoever commits dacoity shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Indian Explosives Act, 1884 9B. Punishment for certain offences--(1) Whoever, in contravention of rules made under section 5 or of the conditions of a licence granted under the said rules--
(a) manufactures, imports or exports any explosive shall he punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both;
(b) possesses, uses, sells or transports any explosive shall be punishable with imprisonment for a term which may extend to two years or with fine which may extend to three thousand rupees or with both; and
(c) in any other case, with fine which may extend to one thousand rupees.
(2) *** (3) ***
9. There are three ingredients in Dacoity:CRA No. 296 of 1993 Page 6 of 12
i) The accused commits or attempts to commit robbery;
ii) Persons committing or attempting to commit robbery and persons present and aiding must not be less than five;
iii) All such persons should act conjointly.
10. In his sworn testimony, the P.W.1 - the Informant while supporting the case of the prosecution stated that on the relevant night of occurrence while he was sleeping, a group of 10 to 12 persons trespassed into his house and started assaulting him by means of a lathi. He got up raised scream attracting the inmates of the house and neighbours for help. On his alarm, his elder brother i.e. P.W.4 and his wife came to his rescue but it was of no avail. As the miscreants assaulted him by means of a sword, he hit his head and right hand. He further stated to have identified the deceased-appellant Dilip Das during the course of Test Identification Parade as also during the trial, who had hit him with a sword and 2 others including the Appellant who were present in the room. According to P.W.1, P.W.4 too was assaulted on his chest, knees, and wrist despite the requests being made by his wife Chhaya.
11. P.W.4 in his deposition corroborating substantially the testimony of P.W.1., P.W.4 stated that upon hearing the hullah of his brother (P.W.1), he went to the spot and found 10 to 12 persons engaged in commission of dacoity. Amongst them, 3 to 4 persons assaulted him by lathi on his chest, knees, and wrist. He was also forced to sit near the cot where his father was lying injured. They threatened to kill him and his brother if they moved and forcibly took away the gold ornaments from the women of the house. He also identified 3 of the accused persons including the Appellant during the Test Identification Parade.
CRA No. 296 of 1993 Page 7 of 1212. P.W.2 & P.W.3, who are daughters of P.W.4 as well as injured witnesses, have stated that they woke up hearing P.W.1's hullah and saw that around 10 to 12 persons had come into the house and some of them were assaulting their father with bottles. They locked themselves in a room where the accused persons came, and amongst them deceased- appellant Sashibhushan slapped P.W.2, demanded to bring out all the ornaments and cash on the point of knife, and cut away the gold nose studs that she was wearing during that point. Out of fear of being assaulted as well, P.W.3 unscrewed the nose stud herself and gave it to deceased-appellant Dilip. Thereafter, the accused persons also removed the gold ornaments put on by the grandmother on her ears and nose.
13. From the evidence as discussed above, it is well established that there were more than five persons involved in the commission of dacoity on the alleged night bringing the act well within the ambit of offence under Section 395 which too has not been challenged by the defence. The argument advanced by the learned counsel for the Appellant in this regard is that the contradictions in the prosecution witnesses cannot be held to be relevant as the fact that there were almost 10 miscreants engaged in the commission of dacoity in the house is corroborated by P.Ws.1, 2, 3 and 4 in their evidence who are none other than the inmates of the house and the injured witnesses who had the occasion to see the miscreants from a very close quarter are found to have deposed truthfully.
14. From the evidence of P.W.1 and P.W.4 have given vivid description in which the miscreants have threatened during the commission of dacoity and stated that, they were forced to sit near the cot where their father was lying dead with cut injuries on throat and CRA No. 296 of 1993 Page 8 of 12 mouth. The miscreants threatened to kill them if they moved and demanded gold ornaments in their possession. As the dacoits procured P.W.1's son in their grip and threatened to murder him on the point of knife, he asked his wife to open the tin box and give away whatever there is. According to him, the accused took away a gold necklace weighing 2 tolas. Then they entered into the room of his other brother Basanta and took away gold ornaments of about 2 tolas and cash of ₹2,500/- from his wife. They also removed her nose stud and earring. The ornaments of the mother of P.W.1 including a nose ring, 4 pieces of fasias and 2 gold nose studs were forcibly taken away. It is further revealed from the evidence of P.W.2 and 3 that deceased-appellant Sashibhusan from among the culprits slapped P.W.2 forcing her to bring out ornaments and cash on the point of a knife. He thereafter cut away the gold nose stud that she had put on her nose. P.W.3 identified accused Sashi, Tankadhar and Dilip who took away the gold ornaments after assaulting her.
15. Furthermore, the weapon of offence stated to have been used by the accused persons in commission of the offence has duly been proved by the I.O. as per Ext 10/2 and M.O.I. is the evidence to the effect that the nose stud was received from the sister of deceased-appellant Dilip. Similarly, another gold nose ring was seized under Ext. 17 - M.O.II. Also, some sticks/lathis were recovered near a culvert and seized in presence of witnesses as per Ext. 9 - M.O.III.
16. As discussed above, during the T. I. Parade, with respect to the articles seized having been identified by the witnesses, as procured from the possession of the accused-appellant persons and the sister of Dilip Dash, further substantiates the case of the prosecution to the effect that CRA No. 296 of 1993 Page 9 of 12 the Appellant was one among the miscreants who committed the alleged offence of dacoity. From the evidence of the then S.D.J.M. (P.W.13) who conducted the T. I. Parade, reveals that he has categorically stated to have maintained the formality which has not been challenged. of which the victims of the occurrence identified the accused persons correctly including the present Appellant, namely, Patayat Sahu, Bidyadhar Sahu, Ujala Sahu, Lili Sahu, Chhaya Sahu, Hirabati, Mandodari, Nirupama and Kusuni; amongst whom 3 of them are prosecution witness. The suspects were mixed with 18 others of the same age group and built and the witnesses were called one after the other and the position of suspects were changed after each round. The very same day, T. I. Parade of suspected stolen articles was held too. The articles included gold nose studs - one big, one small. There were altogether 7 identifying witnesses, out of which Ujala, Mandodari, Lili, Harabati, and Kesini Sahu identified both the ornaments.
17. In the matter of Lal Singh and Ors. Vs. State of U.P. 2003 (12) SCC 554, it was held that -
43. It will thus be seen that the evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest-possible opportunity, no hard-and-fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety.
18. In the instant case, it is true that the T. I. Parade was held 7 months later than the occurrence but it does not appear fatal to the CRA No. 296 of 1993 Page 10 of 12 prosecution case since the investigating agency had no scope to apprehend as they were absconding and could only be surfaced after 7 months and no sooner they were apprehended and were subjected to the T. I. Parade. The very statement of the witnesses that they identified the culprits is based on the vivid description of the perpetrators as observed by him and other inmates during the occurrence given in the F.I.R. The report explains that all the perpetrators had a torch light or lanterns with them and had wielded swords, lathi and bujhali in their hands. The informant also stated in the complaint that the perpetrators can be recognised if they're shown to them. The fact remains that the appellants were identified by the witnesses in Court which is substantive evidence and the proceedings of T. I. Parade to corroborate evidence. During the occurrence, the witnesses had more than enough opportunity to see the face and physique of the perpetrators. Words were exchanged, inmates of the house were threatened, assaulted and robbed. Such kind of events would definitely leave a deeper impression in the minds of the victim to such event. So, the evidence of identification of the Appellant renders the prosecution to be reliable and the Appellant is rightly been convicted under section 395 IPC
19. In the discussion made in the preceding paragraph, as regards to the offence under section 9(B) of the Indian Explosives Act, the observation by the learned trial court is found to be cogent, natural and reliable to the effect that the Appellants used explosive bombs to make good their escape by scaring away the inmates of the house and the co- villagers. To substantiate the offence, the remnants of the bombs, such as scraps of papers, jute, and cloth having smell of gun powder seized under Ext.5. gives sufficient ground to bring Appellant within its mischief and hence rightly been convicted.
CRA No. 296 of 1993 Page 11 of 1220. As regards to the sentence of imprisonment imposed upon the Appellant, the facts necessary to consider that the incident is of more than thirty years old and the appellant has undergone custody for more than 7 years. Further, during the last thirty years, when the appeal was pending, the appellant was all throughout on bail.
21. Keeping in view the above circumstances, it would be proper and reasonable if the Appellant is sentenced to the period already undergone. Hence, while confirming the order of conviction, the period of sentence is modified as awarded to Appellant by the trial court and reduced to the period of imprisonment already undergone.
22. The appeal is accordingly dismissed.
(Chittaranjan Dash) Judge AKPradhan Signature Not Verified Digitally Signed Signed by: ANANTA KUMAR PRADHAN Reason: Authentication Location: HIGH COURT OF ORISSA Date: 30-Mar-2024 12:26:10 CRA No. 296 of 1993 Page 12 of 12