Orissa High Court
Shyamlal Pradhan vs State Of Orissa on 21 April, 1995
Equivalent citations: 1996CRILJ1019
ORDER R.K. Dash, J.
1. This revision is directed against common judgment of the learned Additional Sessions Judge, Sambalpur, passed in Criminal Appeals Nos. 24/15 and 30/16 of 1992. Including the present petitioner there were four accused persons who faced trial in the Court of the S. D. J. M., Rairakhol, under Sections 458 and 392, I.P.C. and Sections 25A and 27 of the Arms Act. Upon trial, each of them was found guilty and convicted and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 1,000/- each in default to suffer rigorous imprisonment for six months on each count under Sections 458 and 392, I. P. C. and rigorous imprisonment for one year and to pay fine of Rs. 500/-, in default to suffer rigorous imprisonment for three months on each count under Sections 25-A and 27 of the Arms Act. All the sentences were ordered to run concurrently. Aggrieved by this judgment, accused persons preferred two appeals separately and the learned Additional Sessions Judge upon hearing while acquitting accused Artatrana from all the charges confined the order of conviction and sentence passed against all the accused including the present petitioner under Section 392, I. P. C. So far their conviction under Section 458, I. P. C. is concerned, the learned Additional Sessions Judge altered the same to one under Section 451, Part II read with Section 34, I. P. C. and sentenced each of them to undergo rigorous imprisonment for one year. He, however, set aside the conviction and sentence of all the accused persons recorded under Sections 25-A and 27 of the Arms Act. It is against the order of the learned Additional Sessions Judge, the present petitioner alone has filed this revision.
2. Briefly stated the prosecution case is that on 17-11-89 when the informant's husband Sawaria Agrawala P. W. 4 was absent from home, three culprits having pistol and bombs came in a jeep and knocked at his door by uttering his name. His field servant Dhaneswar Mahiari, P. W. 2 and son Deepak Agarwala, P. W. 3 replied that he was not available in the house. They told that they being congress men had come to discuss with P. W. 4 and if he was absent, they should tell something to his wife. P. Ws. 2 and 3 then opened the door, whereupon three culprits entered inside, ransaekcil the house and made good their escape with the booties, viz., gold ornaments, silver coins and cups and cash. On return, P. W. 4 came to know the incident from the family members and lodged report, Ext. 2 to the Police on receipt of which a case was registered, investigation was taken up, in course of which the present petitioner and others wever apprehended, some alleged stolen articles were recovered, test identification parades of persons and properties were conducted and on completion of in vestigation charge-sheet was placed against four accused to stand their trial.
3. The plea of the petitioner was one of denial and false implication.
4. Prosecution in order to substantiate the charges examined seventeen witnesses and proved certain alleged stolen articles. Learned Magistrate on a security of evidence of the prosecution accepted and relied upon the evidence of identification so far the petitioner is concerned and consequently convicted and sentenced him as stated earlier.
5. Mr. H. M. Dhal, learned counsel for the petitioner, contended with vehemence that both the Courts below committed gross illegality in convicting the petitioner without there having any acceptable evidence showing the petitioner's complicity in the crime. As to the question of identification, he submitted that identification of the petitioner by P. Ws. 1 and 2 for the first time in Court should not have been relied upon, there having no prior lest identification parade. On the other hand, learned Additional Standing Counsel for the State supporting the findings and conclusions arrived at by both the Courts below urged that there having no infirmities in both the judgments this Court in exercise of revisional jurisdiction should be slow to interfere with the same.
6. The factual aspect of the prosecution case that in the night of incident some unknown culprits committed robbery in the house of P. W. 4 has not been challenged by the defence. !t has, however, disputed about the petitioner's involvement in the crime. The only evidence that has been sought to be proved against the petitioner is the identification made by P. Ws. I and 2 in the Court. In course of investigation, T. I. Parade of the petitioner and two other accused was conducted and admittedly P. Ws.-1 and 2 did not attend the parade as witnesses. They for the first time while being examined in Court identified the petitioner as one of the culprits. Admittedly P. Ws. 1, 2 and 3 were the inmates of the house who just a Hitting glimpse on the movement of the culprits when robbery was being committed in the night. So they being the material witnesses should have been called to identify the culprits in the T. I. Parade. No explanation has been offered as to why they were withheld from being called to attend the parade as witnesses. T. I. Parade is a part of investigation and the purpose of holding such parade is to collect material so as to enable the Investigating Officer to direct his investigation in right direction. The substantive evidence, however, is the identification made by a witness in the Court. It has been authoritatively held that this evidence of identification requires corroboration which should be made in the form of an earlier identification proceeding. Therefore, in a case where no such earlier test identification parade was held, but for the first time a witness identified the culprit in Court it would be unsafe to rely upon such evidence to hold the accused guilty. In this context I would profitably refer to a decision of the apex Court in the case of Budhsen v. State of U.P., , where it was observed :
"Now, facts which establish the identity of an accused person are relevant under Section 9 of the Indian Evidence Act. is a general rule, the substantive evidence of a witness is a statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the part which the accused played in the crime in question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding.
In another decision . (Kanan v. State of Kerala) it was held :
"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 T. I. parade to test his power of observations. The idea of holding T.I. Parade under Section 9 of the Evidence Act is to test the voracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T. I. parade is held then it will be .wholly unsafe to rely on his bare testimony regarding the identification of accused for the first time in Court."
7. In view of the aforesaid authoritative pronouncements of the Apex Court, it would be unsafe to rely upon the evidence of P. Ws. 1 and 2 so far identification of the petitioner is concerned and to act upon it. As would be seen from T. I. parade report Satyanarayan Saraf P.W. 8, Bholanath Biswal P. W. 10, Banguru Mahakud P. W. 11 and Bikramditya Palei P. W. 12 were the witnesses to the identification parade. Witness, Bikramaditya Palei identified all the three accused including the present petitioner. Bholanath Biswal identified accused Surendra and the petitioner, Banguru Mahakud identified accused Surendra and Satyanaryan Saraf identified accused Surendra and the petitioner. Of these four witnesses Satyanarayan Saraf is a gold-smith according to whom the petitioner had been to his shop with his father to sell one gold necklace and two silver Bales. So his evidence of identification is of no help to the prosecution. Witnesses Bikramaditya Palei and Bholanath Biswal, though had identified the petitioner in the T. I. parade but they did not identify him in Court. In chief-examination witness Bikramaditya Palei, driver of the jeep that was used in committing robbery, stated that he identified accused Surendra, Ramesh and petitioner Shyamlal in the T. I. parade, and he can identify them in the Court. But since the petitioner had not attended the Court and was allowed to be represented by his counsel, he could not get opportunity to identify him. In such a situation prosecution ought to have insisted for personal appearance of the petitioner and deferred further examination of the witness. As it appears, the case was conducted in a half hearted manner. Surprisingly accused Surendra and Kamesh although were present in Court on the date the said witness was examined the prosecuting lawyer did not ask the witness to identify them. The above three witnesses having not identified the petitioner in the Court, their statement regarding identification in the T. I. parade cannot be used as legal evidence to rope the petitioner in the crime. As already stated earlier, the only evidence that was sought to be proved against the petitioner is the evidence of identification by P. Ws. I and 2 for the-first time in Court which in view of the dictum of the Apex Court referred to above, cannot be accepted to base conviction. In view of discussions made above, there having no clinching evidence to put seal of approval to the findings recorded by the learned Additional Sessions Judge, I am inclined to allow the revision.
8. In the result, the revision is allowed and the order of conviction and sentence recorded against the petitioner is set aside. Fine, if paid, be refunded to him.