Orissa High Court
Satrughna Barad @ Nilu vs State Of Orissa on 18 December, 2019
Equivalent citations: AIRONLINE 2019 ORI 252
Author: A.K.Mishra
Bench: S.K.Mishra, A.K.Mishra
ORISSA HIGH COURT: CUTTACK
CRLA NO. 95 OF 2011
(From the judgment and order dated 7.12.2010 passed by
Sri P.R.Bohidar, Additional Sessions Judge, Kendrapara in S.T. Case
No. 161 of 2010)
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Satrughna Barad @ Nilu ......... Appellant
-Vs-
State of Orissa ......... Respondent
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For Appellant : M/s. S.R. Mulia, R.C.Moharana,
R.R.Nayak, H.K.Singh and
S.B.Mohanty
For Respondent : Mr. K.K.Mishra, Addl. Government
Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K.MISHRA
AND
THE HONOURABLE DR. JUSTICE A.K.MISHRA
Date of Hearing: 21.08.2019 : Date of Judgment: 18.12.2019
Dr. A.K.Mishra, J. The sole appellant has assailed his conviction under
Section 302 of the Indian Penal Code (hereinafter referred to as „IPC‟
in brevity) and sentence to undergo imprisonment for life and to pay
fine of Rs.2000/-(Rupees two thousand) in default R.I. for six months
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by judgment dated 7.12.2010 in S.T. Case No. 161 of 2010 by
learned Additional Sessions Judge, Kendrapara.
2. Accusation leading to this prosecution was that on
13.10.2009 at about 7.00 P.M. informant and her husband deceased-
Mir Nabi Bux while coming from the medical, in-front of the house of
Dr.Acharya, accused Pinku and three others obstructed them and
fired from a Mauzer. Informant sustained bullet injury so also her
husband deceased Mir Nabi Bux. On being asked Mir Nabi Bux
disclosed that assailants were Pinku and his associates. He was
taken to hospital at Kendrapara, where he succumbed to his injuries.
The informant, the wife of the deceased, lodged an
F.I.R. (Exibit-2) at 11.30P.M. at Kendrapara Police Station resulting
registration of Kendrapara Town P.S. Case No. 303 of 2009. In course
of investigation the Investigating Officer (in short „I.O.‟) P.W.11 made
inquest over the dead body. P.W.7 and one Dr. Rajib Jena (not
examined) conducted postmortem on 5.05.2010. The present
appellant was arrested. Test Identification Parade was conducted on
1.06.2010 by the learned Judicial Magistrate, First Class,
Kendrapara, his report is Ext.-5/1. Used and unused catridges were
seized from the spot. After completion of investigation charge-sheet
was submitted in respect of two accused persons, namely, Pinku @
Sk. Salim and appellant Satrughna Barad@ Nilu. Learned S.D.J.M.,
Kendrapara took cognizance and committed the case to the Court of
Session. Further investigation under Section 173(8) Cr.P.C. was
pending.
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3. Both the accused persons pleaded not guilty to the
charge under Sections 302/34 IPC and Sections 25 & 27 of the Arms
Act.
4. In order to bring home charge, prosecution has
examined 11 witnesses, twelve documents were exhibited including
F.I.R., seizure list, zimanama and P.M. report. No evidence either oral
or documentary was led in by the defence.
5. P.W.1 is the informant-cum-injured. P.Ws. 2, 4, 6, 8
and 10 are relations of the deceased. P.Ws.3 and 5, two co-villagers,
are witnesses to the inquest. P.W.9 is a seizure witness. P.Ws. 1, 2, 9
and 10 are declared hostile. P.W.7 is the doctor who proved
postmortem report (Ext.8). P.W.11 is the I.O.
6. Learned Additional Sessions Judge, Kendrapara
analyzing the evidence of medical officer P.W.7 and Postmortem
report (Ext.8) held that death of deceased was homicidal in nature.
Basing upon the T.I. Parade report (Ext.5/1) and evidence of the I.O.
P.W.11 held the present appellant guilty under Section 302 I.P.C.
while acquitting him of the offence under Sections 25 and 27 of the
Arms Act. For want of evidence he acquitted accused Pinku @ Sk.
Salim of all the charges.
7. Mr. S.R.Mulia, learned counsel for the appellant
submitted that, when the injured P.W.1 had not identified the
appellant in the court, the learned trial court has committed error in
convicting the present appellant basing upon the T.I. Parade report
Ext. 5/1. On his next plank he buttressed that absolutely there is no
evidence to connect the appellant with the act of firing to the
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deceased for which accused should be acquitted of all the charges.
He also argued that prosecution has not proved the motive and the
weapon of offence is not seized.
8. Mr.K.K.Mishra, learned Addl. Government Advocate
supports the judgment.
9. Informant is the injured and has stated that while she
was coming with her husband, four persons obstructed them and
started firing and her husband was declared dead at Kendrapara
hospital. Doctor P.W.7 proved the postmortem report Ext.8 stating
that Dr. Rajib Kumar Jena conducted postmortem over the dead
body of Mir Nabi Bux in his presence. Postmortem report reveals that
the cause of death was due to homicidal gunshot injury from very
close distance leading to damage to vital organs like heart and lungs.
Ext.6/2 is the inquest report prepared on 14.10.2009 at 7.15 A.M.
Ext. 9 is the dead body challan.
The above evidence unequivocally establishes that Mir
Nabi Bux met homicidal death due to gunshot injures on 13.10.2009.
The finding of learned Addl. Sessions Judge, Kendrapara is affirmed
to this extent.
As to the authorship of the gunshot act resulting
homicidal death of Mir Nabi Bux, the prosecution has relied upon the
evidence of P.W.1 and test identification report Ext.5/1. All the
witnesses except P.Ws1, 7 and 11 are post occurrence witnesses who
had seen the dead body in the hospital. With regard to actual
occurrence their testimonies are no way helpful to the prosecution.
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10. P.W.1 while admitting her injury due to gun
firing in Ext.2 has stated that four persons obstructed them and
started firing as a result she and her husband sustained injuries.
She has categorically stated that she did not know accused Nilu @
Satrughna Barad (appellant). With regard to identification, she has
stated that accused Satrughna Barad was not amongst the persons
who fled away after firing in the darkness. She was declared hostile
and has stated that after six to seven months of the occurrence she
had been to the jail premises for test identification of the culprits and
she could not identify any of the culprits. She admits her signature
on T.I. parade report Ext.5/1. Even she has gone to state that police
man scribed the F.I.R. and obtained her signature and saw accused
Satrughna Barad at the police station for the first time she denied
that he (the appellant) was one of the culprits. Reading testimony of
P.W.1 it reveals that she has not only given goodbye to the
accusation incriminating the appellant, but also the lodging of the
F.I.R. Ext.2 and identification of the appellant in the T.I. Parade vide
Ext.5/1. She is a wholly unreliable witness.
11. The I.O. P.W.11 has stated that after getting
information that accused Nilu @ Satrughna Barad was in jail custody
in another case, he submitted remand report to learned S.D.J.M.,
Nayagarh and got him to this case on 5.05.2010. He made a prayer
for T.I. Parade on 25.05.2010 and learned Judicial Magistrate, First
Class, Kendrapara conducted the T.I. Parade on 1.06.2010 and
witness P.W.1 identified the accused-appellant. The T.I. Parade
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report is Ext.5/1. The Judicial Magistrate, First Class conducting T.I.
Parade is not examined.
12. We carefully perused the report. It is found that
witness P.W.1 had identified the accused-appellant correctly. Vide
Col.10 it is mentioned that the suspect appellant raised objection
that the identifying witness had seen him while he was in the police
custody. There being no other evidence, this test identification parade
report Ext.5/1 is to be put on test as to whether the same can be the
basis for conviction of the appellant.
13. The identifying witness P.W.1 denied to have identified
the suspect in the T.I. Parade. She has not identified the appellant in
the court. The test identification report is not a substantive piece of
evidence.
14. In the decision reported in AIR 1960 SC 1340:
Vaikuntam Chandrappa And Ors. Vs. State of Andhra Pradesh, it
is held that:-
"It is also true that the substantive evidence is
the statement in court; but the purpose of test identification is
to test that evidence and the safe rule is that the sworn
testimony of witnesses in court as to the identity of the
accused who are strangers to the witnesses, generally
speaking, requires corroboration which should be in the form
of an earlier identification proceeding. There may be exception
to this rule where the court is satisfied that the evidence of a
particular witness is such that it can safely rely on it without
the precaution of an earlier identification proceeding."
In the decision reported in AIR 2018 SC 3592: Raju
Manjhi Vs. The State of Bihar, their Lordships have
observed in para-15 of the said judgment, as quoted below:-
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"15. The identification parade belongs to the
stage of investigation, and there is no provision in the Code
which obliges the investigating agency to hold or confers a
right upon the accused to claim, a test identification parade.
They do not constitute substantive evidence and these
parades are essentially governed by Section 162 of the Code.
Failure to hold a test identification parade would not make
inadmissible the evidence of identification in Court. The
weight to be attached to such identification should be a
matter for the Courts of fact. In appropriate cases it may
accept the evidence of identification even without insisting on
corroboration (See: Kanta Prashad v. Delhi Administration,
1958 Cri.LJ 698 and Vaikuntam Chandrappa and Ors. V.
State of Andhra Pradesh, AIR 1960 SC 1340)."
With regard to objection raised by suspect at the time
of T.I. Parade and its relevancy, the Hon‟ble Apex Court in the
decision reported in AIR 1970 SC 1321: Budhsen Vs. State of U.P.
has held that:-
"Facts which establish the identity of an accused
person are relevant under Sec. 9 of the Evidence Act. The
substantive evidence of identification is the statement of the
witness in court. But the evidence of identification at the trial
for the first time is from its very nature weak. A prior test
identification, therefore serves to corroborate the evidence in
court. The purpose of identification parades which belong to
the investigation stage is to enable the witnesses to identify
persons concerned in the offence, who are not previously
known to them, and thereby to testify the investigating officers
of their bona fides by pointing out the persons they recognize
as having taken part in the crime. These parades, thus
furnish evidence which corroborates the testimony of the
identifying witnesses in court. These parades do not constitute
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substantive evidence. Keeping in view the purpose of
identification parades, the precautions to eliminate suspicion
of unfairness and to reduce chances of testimonial error. They
must take intelligent interest in the proceedings bearing in
mind two considerations: (i) that the life and liberty of an
accused may depend on their vigilance and caution, and (ii)
that justice should be done in the identification. Generally,
the Magistrates must make a note of every objection raised by
an accused at the time of identification and the steps taken by
them to ensure fairness to the accused, so that the court
which is to judge the value of the identification evidence may
take them into consideration in the appreciation of that
evidence. The persons required to identify an accused should
have had no opportunity of seeing him after the commission of
crime and before identification and secondly that they should
make no mistakes or the mistakes made are negligible. The
identification to be of value should also be held without much
delay."
15. The law confirms that test identification report is not
substantive evidence. In absence of any other evidence, the same
cannot be the basis of conviction. Learned Addl. Sessions Judge has
committed error in appreciating the T.I. Parade report Ext.5/1 to
base conviction against the appellant. We are not persuaded in any
manner to support such mis-appreciation of evidence. The conviction
of the appellant is not sustainable in eye of law and is to be set aside.
16. In the result, the appeal is allowed. The conviction and
sentence of the appellant vide judgment dated 7.12.2010 in S.T. Case
No. 161 of 2010 passed by the learned Addl. Sessions Judge,
Kendrapara is hereby set aside. The appellant is acquitted and be set
at liberty forthwith, if not required in any other case.
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17. Return the L.C.R. immediately to the lower court.
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Dr. A.K.Mishra, J.
S.K.Mishra, J. I agree.
................................ S.K.Mishra, J.
Orissa High Court, Cuttack Dated 18th December,2019/Dhal.