Orissa High Court
Banifas Samad vs State on 8 November, 1991
Equivalent citations: 1992CRILJ2271
JUDGMENT L. Rath, J.
1. All these appeals arise out of the same judgment in Sessions Trial No. 163/4 of 1986/87 and hence are disposed of by this common judgment. All the appellants and two others namely Himanshu Patra and Janmejaya Rajhans were prosecuted Under Section 395, IPC read with Section 25-A of the Arms Act and Section 9-B of the Indian Explosive Act and another Siba Sahu was prosecuted Under Sections 412 and 414, IPC. All the appellants except Suren Kumra (Appellant No. 2 in J. Cr. A.7/89) were convicted under Section 395, IPC, Section 25-A of the Arms Act and Section 9-B of the Indian Explosive Act and sentenced to undergo R.I. for eight years Under Section 395, IPC and one year each under the other heads of charges with direction for the sentences to run concurrently. Suren Kumra was convicted Under Section 412, IPC and sentenced to undergo R.I. for eight years. While Criminal Appeal No. 298/88 has been preferred by Munna Naik and Barun Tandia, Jail Criminal Appeal No. 328/88 has been preferred by Banifas Samad and Jail Criminal Appeal No. 7/89 has been preferred by Sanatan Besan arid Suren Kumra. No appeal has been preferred by Himanshu Patra and Janmejaya Rajhans.
2. The prosecution case as per the FIR lodged by P.W. 3 is that on 8/9-11-85 at around 1-30 a.m. she was sleeping in her bedroom along with her husband, her married daughter P.W. 11 was sleeping in another room and her parents-in-law and niece were sleeping on the inside verandah. Her two sons P.Ws. 6 and 8 had been sleeping in the front room of the house after returning from a cinema show. At that time she heard some people talking on the verandah in Hindi and thinking that her sister-in-law might have sent some person from her village she came out to the verandah and in the electric light saw four unknown youngmen to have tied up the hands of her two sons and had made them sit on the ground. Having learnt that they were thieves she went near her sons to protect them but as soon as she reached them, three of the persons caught hold of her and tied her hands threatening her with knife, Bhujali and pistol, made her naked and demanded her to disclose them the place where valuables were kept saying that the villagers had informed them that she had a lot of wealth. Out of fear she gave away her gold necklace to them weighing about 4 Tolas with 14 pendants and one locket and two gold earrings weighing about half Tola fitted with rose colour stones and informed them that there was nothing else in her house. At this time since her husband came near her, those persons also tied up his hands and then three to four other persons armed with Bhujali and torch came from the staircase side. They dragged her mother-in-law and father-in-law and made them sit on the verandah. At this time P.W. 8 made himself free and suddenly ran away through the front door. She also made herself free and went away outside. Both of them raised hulla for the villagers but though some villagers came yet since the dacoits threatened them to shoot, they went away out of fear. The dacoits went away towards village Bandabahal. After they left, she discovered her father-in-law lying unconscious with bleeding injury on his head. Her husband P.W. 1 had been injured on the right leg due to assault with Bhujali and had bleeding injury. Her mother-in-law and son P.W. 6 had also suffered injuries. She came to understand from them that after she and P.W. 8 had run away the dacoits had assaulted her husband, father-in-law, mother-in-law and son with Bhujali and knife demanding them to disclose where the gold, silver and money had been kept. They had entered the room where the father-in-law was staying and had ransacked the room. Her daughter was sleeping in a room closing the door from inside and hence nothing was removed from that room. Apart from the gold necklace and earrings which she had given to the dacoits, she stated in the FIR that other things which were taken away by the dacoits were not known to her and after she discovered other articles missing, she would supply a further list of those. The FIR was lodged in her own house as the police reached there getting information about the dacoity. During investigation the appellants were arrested and on submission of chargesheet they were made to stand the trial.
3. To bring home the charges against the appellants, the prosecution examined nineteen witnesses. As is submitted by the learned Additional Standing Counsel, the case against the appellants is to be taken as established from the evidence of identification of the appellants in T.I. parade and in court for which the relevant witnesses are P.Ws. 1, 3 and 8, the evidence Under Section 27 of the Evidence Act regarding information given by the appellants leading to discovery of articles for which the relevant witnesses are P.Ws. 17 and 14, and the evidence as to conduct of the appellants in giving discovery of the articles for which the witnesses are P.Ws. 13, 14 and 17. Besides, the identifying witnesses so far as ornaments are concerned are P.Ws. 3 and 11 and so far as recovery of wristwatches, the witness is P.W. 8. It is hence necessary to be seen as to how far the prosecution has been able to establish the charges against the appellants through such evidence.
4. So far as identification of the appellants is concerned, the T.I. parade was held on 25-2-86, i.e. admittedly 3 1/2 months after the occurrence. The effect of such delay in identification was considered by me in 1990 (2) OLR 324 (Satrughana v. State) wherein it was held (at page 331) :
Delay as a factor fatal to the T.I. parade has two aspects, one remediable and the other beyond remedy. So far as the remediable aspect is concerned, it is the delay in holding the parade after having already apprehended the suspect legitimately casting doubt on the bona fides of the parade. Since unless there is reasonable explanation for the delay, the chances of there being manipulation and sustained attempt for organising a sure identification cannot be ruled out. If however the prosecution comes up with some acceptable explanation for the delay, the disadvantage of there being defect in the investigation on this count would stand cured. So far as the irremediable aspect is concerned, it is the time lapse between the date of the occurrence and that of the identification parade. If the gap is too large, it may not be possible for human memory to recall the identification of a suspect. The test is not of a person endowed with extraordinary memory, but the probability of an ordinary person's capacity to remember the features of a person under circumstances in which the identifying witnesses saw the accused. Where the delay is such as would convince the court that the impressions of the witnesses of the accused might have been blurred or obliterated his identification of a suspect would intrinsically be not acceptable even though the T.I. parade has been held within a short time after apprehension of the suspect. Where such is the case, no amount of explanation can improve the inherent weakness of the identification.
xx xx xx xx xx xx xx Relying upon such authorities, it may be held, though not as a mathematical rule, that ordinarily an identification parade held beyond two months from the occurrence would not inspire confidence though however there may be exceptions, like when there are peculiar circumstances or reasons for the witness to remember the impressions, expressions or features of the accused with greater intensity and vividness, or that there are peculiar identifying features which were disclosed by the witness at the earliest opportunity and the identification parade is held taking all precautions so as not to enable the witness to single out the suspect in the parade because of such exclusive features alone. It has to be remembered that though a general rule may hold good in most of the cases, it cannot be full proof in all cases since incidents/interactions between the witness and the suspect at the time of the occurrence may vary from case to case,...."
Since admittedly the T.I. parade was held more than 3 1/2 months after, the defect of such parade is of irremediable consequence unless there are peculiar circumstances or reasons for the witnesses to remember the impressions, expressions or features of the accused. So far as P.W. 1 is concerned, it is his statement that he identified three of the appellants, Banifas, Sanatan Besan and Munna Naik. In the cross-examination he stated that he did not remember whether he had stated before the police the descriptions of the culprits or their features. He also admitted of having not marked any distinguishing feature of any of the culprits but to have remembered their faces generally. He also admitted of having not told before the Magistrate what part the identified appellants played in the dacoity. All the culprits were wearing monkey-caps and that hence he could not see whether they had any moustache or beard. From such evidence it appears that he did not mark any peculiar features and there was no special circumstances for him to be able to recall the suspects' identification after 3 1/2 months. The dacoits had their faces fully covered with monkey-caps and as such it was difficult to know their identity at the time of the occurrence. P.W. 3 also stated in her evidence to have identified Sanatan, Banifas, Munna Naik and Barun Tandia besides two others namely Siba Sahu and Janmejaya Rajhans. In the cross-examination she stated that while giving statement before the police she did not give the description of the culprits regarding their special features like curling hair, moustache, etc. She did not mark any distinguishing identifying features of the culprits. At the time of the T.I. parade she did not tell the Magistrate as to what part each individual suspect had played. She simply stated that all the suspects had committed dacoity in her house. The Magistrate did not ask her to identify each of the suspects and as to what part each of them had played. Even though she later on tried to say that out of the four persons who came from the staircase side and caught hold of her, she could remember the features of three of them and the features of the two persons who had undressed her, yet she admitted that she had not stated the features of the culprits who undressed her and the features of the three culprits out of four who had come from the staircase and had caught hold of her earlier. She also made statement that in the T.I. parade she first recognised Banifas though in fact she had identified Munna first. She had not marked the complexion of the dacoits and if they had any curling hair, or long hair and could not say how many of the persons who had committed dacoity had black complexion and could not say anything about their complexion at all. P.W. 8, the other identifying witness, was hesitant in court as regards his identification of Munna Naik in the T.I. parade saying that he could not say positively if he had not identified him in the T.I. parade. Though he tried to develop his statement that during the T.I. parade he had told before the Magistrate as to what specific part was played by each of the appellants for which he could remember their faces, yet the statement of the Magistrate or the T.I. parade report does not bear out such statements. He also stated that he had stated before the police about the height, dress, shape of nose of the culprits, but such fact was belied by the evidence of P.W. 17 who stated that P.W. 8 had not stated before him about the description and features of the dacoits. P.W. 16 is the Magistrate who conducted the T.I. parade. The report of T.I. parade relating to the appellants is Ext. 23. His statement shows that P.W. 3 had identified the appellants saying that they had assaulted them, robbed them and had threatened to kill them. P.W. 3 had also identified appellants Sanatan, Banifas and Barun Tandi saying that the suspects threatened to kill them and snatched away the gold ornaments. Nothing is stated about any specific statement regarding the special identifying features of the appellants or of any role played by them. Though the learned Magistrate says that it is not a fact that he has not mentioned in his report the version of the identifying witnesses about the part played by each of the suspects, yet the report does not show any such fact to have been mentioned. It is also admitted by him that P.W. 8 had not stated specifically before him as to which suspect held which weapon.
5. In this state of evidence it can hardly be said that the appellants were properly identified in the T.I. parade, There are absolutely no justifying circumstances from which it can be reasonably inferred of the witnesses being able to recall the identifying features of the appellants in the T.I. parade held 3 1/2 months after. This aspect of the evidence led by the prosecution must hence be rejected.
6. The next piece of important evidence is the one led Under Section 27 of the Evidence Act. The witnesses relating to such effect are P.Ws. 13; 14 and 17. P.W. 13 was permitted to be cross-examined by the prosecution and P.W. 14 is a witness who had not been relied upon by the learned Sessions Judge. According to P.W. 13, though he stated the appellants Munna Naik and Sanatan Besan to have given information of having kept some articles in their houses, yet he stated that he had not accompanied the police for the purpose of recovery of the articles. He stated as having not been examined by the police though P.W. 17 stated to have examined him. He also stated of having stated before the police of appellant Banifas to have given information leading to discovery of articles. So far as P.W. 14 is concerned, he is a person who said that he had been to the Bhasma P.S. on 13-1-86 just on a casual visit. This witness has rightly not been relied upon by the learned Sessions Judge. He is admittedly a stock witness of the police and stated to have been going to the police station several times though he denied the suggestion that he was going to receive award as an informer. He admitted that several times he had been required by the police department to give assistance to the police in criminal cases. His statement was that the appellants were being interrogated by the police while they were inside the lock-up and the investigating officer Ramakanta Mohanty, P.W. 17, was standing outside and that at the time of interrogation this witness was in the officer room adjoining the lock-up. By the time he arrived at the police station the interrogation was already over of all the appellants and that it was P.W. 17 who told him that during interrogation four of them had stated to have kept the articles in their houses. He had not heard them telling this fact. Giving recovery of the articles by them was also not made in his presence. It is his statement that Banifas entered inside the room accompanied by the I.O. and that the witness and others remained outside. In all the six houses where recovery was given it was only the O.I.C. and the concerned dacoit who had entered inside and the witness and all others remained outside the houses. He thus can hardly be said to be a witness to the information given by the appellants Under Section 27 or to their giving recovery. The only other witness to the fact of the appellants giving information leading to discovery and the fact of their giving discovery is the I.O., P.W. 17. The learned Sessions Judge has relied upon AIR 1978 SC 1511 : 1978 Cri LJ 1531 (Modan Singh v. State of Rajasthan) to accept such evidence of the I.O. taking the view that even if the seizure witnesses fail, yet the evidence of the I.O. is available to be relied upon as regards the fact of seizure. While as regards the proposition of law there is no dispute, yet in the circumstances of the case, the evidence of P.W. 17 becomes hardly reliable. The fact of seizure of the articles from the houses of the appellants is preceded by the fact of their giving information to P.W. 17 regarding the location of the articles. Admittedly the statements of the witnesses Under Section 27 of the Evidence Act were not recorded. As such the exact information given by them is not available for scrutiny. In the absence of recording of the exact words and any corroboration available from the independent sources as regards the information given, the solitary statement of P.W. 17 Under Section 27 of the Evidence Act would be risky to be relied upon to exclusively form the basis of conviction. Dealing with a similar question it was held by a Division Bench of this Court in (1988) 1 OCR 400 (Bhaga Gouda alias Vainra v. State) that the exact information given by the accused while in custody or in other words the statement made by him must be recorded by the investigating officer and if in pursuance of such information or statement recovery was made, that information becomes admissible Under Section 27 of the Evidence Act. So also the fact of the appellants giving recovery of articles though admissible Under Section 8 of the Evidence Act, it is not conclusive as was decided in the same decision.
7. If the evidence Under Sections 8 and 27 of the Evidence Act is not admissible, the identification of the ornaments, wrist watches and other articles seized would have no relevance for the purpose of securing conviction of the appellants. Hence the identity of the appellants having not been established nor there being any other incriminating evidence against them, their convictions are not sustainable.
8. So far as appellant Suren Kumra is concerned, his conviction is exclusively based upon the evidence Under Section 27 of the Evidence Act supposed to have been given by him in custody leading to discovery of articles. The evidence regarding the same has been led by P.W. 18, the O.I.C. of Govindapur P.S. who arrested this appellant on 17-2-86 and stated that this appellant while in custody stated before him and P.W. 5 of having kept his share of the stolen articles concealed in his house and led discovery of the same. Such statement has not been recorded by P.W. 18. P.W. 5 did not support the prosecution and was permitted to be cross-examined. In his evidence he stated this appellant having not made any statement before the police and also not to have accompanied either the witness or the police to his house. His statement is that at the house of this appellant, the police asked his father as to where his son had kept the articles and the father pointed out a hole in the wall from where the police brought out a tin box containing the articles. Such fact of seizure of articles was also not put to the appellant during his statement Under Section 313, Cr. P.C. nor the tin box which allegedly contained the articles was produced in court nor marked as M.O. In this view of the evidence, the charge against appellant Suren Kumra cannot also be said to have been established.
9. In the result, the appeals are allowed. The convictions and sentences passed against the appellants are set aside.