Orissa High Court
Amarnath Singh And Four Ors. vs State Of Orissa on 5 November, 2001
Equivalent citations: 2002(I)OLR276
Author: P.K. Tripathy
Bench: P.K. Tripathy
JUDGMENT P.K. Tripathy, J.
1. Having been convicted for the offence punishable under Section 395, I.P.C. and Section 25 of the Indian Arms Act and being sentenced undergo R.I. for ten years and two years respectively for the said offences with the directions to run the sentences concurrently by the Addl. Sessions'Judge, Jajpur in S.T. No. 237/29 of 1993, the appellants have preferred this appeal from the jail, pleading innocency. Initially, on their prayer, counsel from the legal aid panel was engaged, but subsequently the appellants engaged counsels at different times and their names are noted as above.
2. A dacoity was committed during working hours at 1.50 P.M. on 18.1.1993 in the Central Bank, Neulpur Branch. It is alleged by the prosecution that appellants were the said dacoits besides one Ram Kumar Singh (who did not face the trial). According to the prosecution, when the Bank transactions was going on, five persons being armed with revolvers and carrying bag entered into the Bank consisting of a handful staff of five persons and about 4 to 5 customers were then present inside the Bank. They threatened and terrorised the officer and the employees of the Bank and the customers and started picking the cash from the cash counter and the stitching place of the G. C. Notes. After filling one bag they found necessity of another bag and that is how one of the dacoits went outside to bring another bag from the Maruti Van bearing No. ORF 2111 in which they had come to that place. In the meantime one of the dacoits robbed a customer, namely, Sk. Latif (P.W. No. 3) by Rs. 7,500/- which he had received by encashing the cheque. The Cashier of the Bank (P.W.6) finding an opportunity, switched on the siren and because of that sound the dacoits decamped from the Bank in that Maruti Van, fortunately, by leaving the booty kept in the bag. Being informed, the S.D.P.O. and the police officers became alert and sent messages to all sides to stop the culprits with the vehicle. The Sub-Inspector of Police, Jajpur Road (P.W. 11) obstructed the road and when the said vehicle stopped he searched and found arms and ammunition besides Ather articles in possession of each of the six culprits and seized them (seizure lists marked Exts. 34 to 46). The culprits were forwarded to the Court on 20.1.1993 and thereafter put to T.I. parade on 29.1.1993. They were identified by the Manager of the Bank (P.W. 1) and the Cashier (P.W.6). Only accused/appellant Papu @ Lakhan was not identified by them. For detecting evidence the investigating agency also requisitioned the Scientific Officers and the Forensic Scientists. During that process of investigation finger-prints were taken from the Bank and the report thereof could prove existence of finger-prints of some of the accused persons who had entered into the Bank. On completion of investigation, charge sheet being filed, the trial Court framed charge for the offence punishable under Section 395, I.P.C., Section 25 of the Indian Arms Act and Section 9B of the Explosive Act and took up the trial.
3. To substantiate the charge, prosecution examined as many as 12 witnesses. Out of them P.W.I (Manager of the Bank), P.W.2 (Duftary) and P.W. 6 (Cashier) are the three employees/ eye-witnesses to the occurrence and out of them P.Ws.l and 6 also identified the accused persons in the T.I. Parade. P.W.3, the customer who was looted in the occurrence was also an eye- witness to the occurrence. The Magistrate who conducted the T.I. Parade was examined as P.W. No. 4 and he proved the T.i. Parade Report, Ext. 4. The" driver of the Marutl Van (taxi) examined as P.W. No. 7. P.W.No 5, the Finger Print Expert attached to C.S.I. Office, Jajpur, P.W. No. 8, the Scientific Officer of D.F.S.L., Guttack and P.W.No. 10, the Finger Print Expert in the State Finger Print Bureau are the three relevant witnesses regarding the scientific investigation. P. W. No. 9, the S.I. of Police of Dharmasala P.S., P. W. No. 11, the S.I. of Police of Jajpur Road P.S. and P.W. No.. 12, the I.I.C. of Dharmasala P. S, and the main investigating officer are the officers belonging to the investigating team. The F.I.R., Seizure List, Photographs, Finger Prints and the reports thereof etc., have been marked as Exts. 1 to 53. A detailed narration of the same is not necessary for the purpose of disposal of this appeal. The arms and ammunition seized in the case were marked as M. Os. I to VI, VIII to X, XII to XIV, XVI to XVIII and XX to XXIII.
4. Appellants advanced their defence plea of complete denial.
5. The trial Court, on a threadbare discussion of the evidence on record, found the prosecution evidence to be true, trustworthy and reliable in proof of the aforesaid charges under Section 395, I.P.C. and Section 25 of the Arms Act, and accordingly convicted the appellants and sentenced them in the manner already indicated above.
6. Mr. Brahmananda Panda, learned counsel, advanced argument on behalf of the appellants which was adopted by the other counsels appearing for some other appellants. He argued that the trial Court in the process of assessing the evidence on record overlooked the loop holes in the prosecution evidence which raises genuine doubt about the accusation against the appellants and therefore if not a clean-cut acquittal at least benefit of doubt should have been granted to the appellants. In that respect he argued that crux of the matter is the Test Identification Parade. If that is not a valid piece of evidence then participation of the appellants cannot be said to be proved and accordingly they shall be entitled to be acquitted. He argued that after being obstructed and detained by P.W. No. 11 at about 3.15 P.M. on 18.1.1993 the appellants were not forwarded to the Court till the morning of 20.1.1993. Ample opportunity was there for the prosecution to expose the appellants to the vision of the prosecution witnesses for identification before conducting of the T.I. Parade. Similarly, the evidence of P.W. No. 4, which is not disputed by the prosecution, goes to show that the Court Hazat, where the accused persons were kept on the dates of remand, is at a very close distance from the Court-room and persons standing outside can see the accused in the Hazat. Therefore, on 20.1.1993 when the accused persons were produced before the S.D.J.M., Jajpur, there was ample opportunity for the P. Ws. to see them before participating in the T.I. Parade on 29.1.1993. He further argued that evidence of P.Ws. 1, 4 and 6, if read together, goes to show that the T.I. Parade was not properly conducted in as much as the accused persons were not mixed with persons of similar descriptions and being similarly dressed and under such circumstance the appellants could have been easy victim in the T.I. Parade being with distinctive garments. Mr. Panda thus argued that identification of the appellants in the T.I. Parade has lost its value and sanctity. In support of that argument he relied on the ratio in the cases of Bijuli @ Bijaya Behera and Ors. v. State, (1993) 6 OCR 356; and Daun @ Biswajit Pattnaik and Ors. v. State, 1996 (I) OLR 324 Learned Standing Counsel while placing the relevant evidence, argued that the Test Identification in this case having been done promptly, properly and lawfully that is not liable to criticism. He further argued that in the absence of any positive evidence in support of the argument advanced by the appellants, the T.I. Parade report is not liable to be disbelieved or rejected in this case. He also argued that the above noted citations have no applicability to the present case.
7. In the case of Bijuli (supra) sanctity of the T.I. Parade report was doubted because the photographs of the accused persons had been taken and the reason not explained by the prosecution. That reasoning is not applicable in this case as because during the cross-examination of the two identifying witnesses, viz., P. Ws. 1 and 6, it was not brought out from their mouth or even suggested to them that before the date of T.I. Parade they had seen the photographs of the appellants. Such a defence plea was not advanced at all at that stage. On the other hand it was suggested to them to the effect that before the date of T.I. Parade they had seen the accused persons in the police custody. Mere suggestion to P.W. No. 12 that he had shown the photographs to the Bank employees will not create a doubt about genuineness of the identification made by P. Ws. 1 and 6.
8. In the case of Duan (supra) the facts before this Court was that after their arrest, the accused persons remained in police custody for 7 to 10 days notwithstanding their interrogations on respective dates of their arrest. On that background it was thus held that such unusual long detention in policy custody gives rise to an inference in support of the defence plea that the accused persons were so detained to show them to the identifying witnesses and because of that the T.I. Parade lost its sanctity and credibility. In this case there was no such unusual detention of the appellants. Detention of the appellants for two days in the police custody was more because transfer of the accused persons from the jurisdiction of one police station to the other and relevant verifications and interrogation of the accused persons having been involved in a case of dacoity. Therefore, the aforesaid detention of the appellants in this case factually does not appear to be unusual nor there is any acceptable evidence to record a finding that during that period of detention in police custody they were shown to the witnesses who participated in the Test Identification Parade. If they would have been shown to the witnesses, then there would not have been any difficulty for the P. Ws. l and 6 to identify accused Papu Singh.
9. It was also argued by the appellants that evidence of P.W. No. 4 read with evidence of the Superintendent of Sub- Jail, Jajpur, who was examined as D.W. 1, clearly goes to indicate that during that T.I. Parade the suspects and the other Under Trial Prisoners (lined up for T.I. Parade) were not similarly dressed and therefore the distinctive dress of the appellants would have been a factor to identify them by P.Ws. 1 to 6. Indeed it appears from the evidence of the above to witnesses that no uniform or wearing apparells of the same colour was. provided to all the 60 persons who were lined up for T.I. Parade. There is no evidence worth the name on record to show or suggest that the dress of suspects were distinctively distinct or conspicuously different from the dress of the other persons on the line in that T.I. Parade. In his evidence, P.W.4 has unchallengedly stated that at the time of T.I. Parade he took the precaution to see that the witnesses to the T.I. Parade appeared for identification one after the other and not to communicate with each other so also preventive measure was taken by him to prevent communication between the police officer and the said witnesses. As has been noted above, if any such trick would have been played by the investigating agency then there would not have been any reason for the P.Ws. 1 and 6 to not to identify accused Papu Singh. Thus, this Court does not doubt the credibility of Ext. 4 and the evidence of P.Ws. 1, 4 and 6 relating to conduct of the T.I. Parade in a fair and honest manner.
10. Another contention was advanced by the appellants that after being arrested, the accused persons were produced before the S.D.J.M., Jajpur, on 20.1.1993. Since the Court- Hazat is very close to the Court-room, therefore, the witnesses had sample opportunity to See the appellants and therefore the Test Identification Parade has lost its sanctity. On a reference to the order sheet dated 20.1.1993 in G.R. Case No. 78 of 1993 of the Court of S.D.J.M., Jajpur, it appears that the accused persons were produced before the S.D.J.M. at 10.30 P.M. on 20.1.1993 and they were remanded to jail custody at that time. Learned S.D.J.M. at that time passed order directing the P.W.4 to conduct the T.I. Parade. The said case record does not indicate that the appellants were produced before the S.D.J.M., Jajpur on any date till 4.2.1993. Ext. 4 indicates that T.I. Parade was conducted on 29.1.1993 at 4 P.M. The aforesaid factual position on public record nullifies the aforesaid argument advanced by the appellants.
11. Neither individually nor conjointly the aforesaid circumstances cast doubt on the credibility of the T.I. Parade or to distrust the evidence of P.Ws. 1 and 6 in that respect. On the other hand, on perusal of the evidence on record this Court agrees with the findings recorded by the trial Court about acceptability of the evidence on T.I. Parade. The aforesaid evidence read with the other evidence on record which is based on the scientific mode of investigation, such as, finger prints, foot marks, etc., are corroborative to the evidence of P.Ws. 1 and 6. Thus, complicity of the appellants in the dacoity is found to have been proved beyond all reasonable doubt and, therefore, conviction for that offence is not interfered with by this Court.
12. The appellants as well challenge the order of conviction for the offence punishable under Section 25 of the Arms Act, 1959 (in short, 'Arms Act'). It was argued that conviction of the appellants under Section 25 of the Arms Act in the absence of valid sanction and proof thereof is bad in law. Learned counsel ofor the State, referring to Ext. 18, argued that sanction was accorded by the District Magistrate for prosecution of the appellants under Section 25 of the Arms Act. It appears from paragraph- 1G of the impugned judgment that the trial Court accepted Ext. 18 as the order of sanction to record the conviction against the appellants for the offence under Section 25 of the Arms Act. On reappraisal of the evidence on record, this Court finds that Ext. 18 is a letter issued by the Officer-in-charge, Judicial Section, Collectorate, Jajpur, intimating to the I.I.C., Dharmasala P.S. that the District Magistrate had been pleased to sanction for prosecution of the accused persons under Arms Act. By any stretch of imagination that cannot be regarded as the order of sanction. The practice adopted by the District Magistrate, Jajpur is contrary to the provision of law in as much as he is required under law to apply his mind to the facts of the case and to pass appropriate orders either sanctioning or not sanctioning the prosecution. If a prosecution is sanctioned, his order must indicate that he has applied his mind to the facts of the case and was satisfied about commission of an offence under the Arms Act which requires a sanction. Such sanction orders cannot be and should not be a cryptic order in the office file with a direction to the subordinate to communicate the same in the manner of Ext. 18. Such a practice by the District Magistrate, being the custodian of law, is against the law. It is appropriate at this stage to direct the Secretary to the State Government in Home Department to obtain the order of the Government and in consultation with Law Department issue appropriate Circular instructing the District Magistrates and other authorities attending to the job of grant of sanction order to pass appropriate order on due verification of facts and law and communicate the same in proper manner.
13. Be that as it may, in this case sanction as required under Section 39 of the Act has not been made by the District Magistrate. Ext. 18 even if admitted as evidence without objection, does not substitute to the order of sanction of the District Magistrate when admittedly the offence alleged under Section 25 Of the Arms Act is for contravention of the provision in Section 3 of the said Act. The trial Court, therefore, did not examine the legal issue properly and wrongly recorded an order of conviction for the offence under Section 25 of the Arms Act. Since the prosecution has not proved a valid order of sanction, therefore, the appellants could not have been prosecuted and convicted for the offence under Section 25 of the Arms Act. Accordingly, the appellant's conviction under Section 25 of the Arms Act and the sentence imposed in that respect is set aside. However, this order of acquittal shall have no effect relating to the manner of disposal of the seized properties as per the order of the trial Court.
14. For the reasons indicated above, while maintaining the order of conviction and sentence under Section 395, I.P.C. this Court sets aside the order of conviction and sentence under Section 25 of the Arms Act. This Court is not inclined to consider for a lesser sentence because of the nature of the crime and the manner in which it was committed. Accordingly, the Jail Criminal Appeal is allowed in Part.