Orissa High Court
Prafulla Jena And Five Ors. vs State Of Orissa on 4 May, 2000
Equivalent citations: 2000CRILJ2684, 2000(I)OLR680
Author: P.K. Patra
Bench: P.K. Patra
JUDGMENT P.K. Patra, J.
1. The appellants have challenged the judgment dated 5.9.1996 passed by Shri L. K. Mishra, Additional Sessions Judge, Bhadrak in Sessions Trial No. 27/171 of 1996 convicting them under Sections 395/457, IPC and sentencing each of them to undergo rigorous imprisonment for seven years on each count and directing the sentences to run concurrently. The appellants have been acquitted of the charge under Section 9B of the Indian Explosives Act.
2. Prosecution case runs as follows :
The informant (P.W.1) and his family members had slept in their house in village Bishnupur Bindha under Bhadrak Rural Police Station in the district of Bhadrak in the night of 7.12.1994 in different rooms. Though the entrance doors of the house were closed from inside, the, door of the bedroom of the informant had been kept open. At about 1.30 a.m. to 2 a.m. in the said night (8.12.1994) the informant and his family members woke up hearing some hulla and violent knocking at the doors. Apprehending that some miscreants were knocking at the doors, they tried in vain to prevent the entry of the miscreants into the house, who forced open the doors and entered inside the house. It is alleged that the miscreants pointed a Bhujali at the eldest son (P.W. 13) of the informant, pointed a knife at the informant and threatened them not to raise hulla. The informant dealt blows by means of a 'Pitha Khadika' on two of the miscreants, as a result of which they fell down. It is alleged that the miscreants injured the informant and other family members of the house and snatched away gold and silver ornaments from the female inmates of the house as also cash of Rs. l ,000.00. It is also alleged that when the informant fled away from the house out of fear for his life, the miscreants chased him and exploded a bomb and one of them dealt a blow by means of a Bhujali on the right side of the forehead of the informant resulting in bleeding injury. The miscreants had put on black half-pants and black banions and had covered their heads with monkey caps and towels, but since they were focussing torchlights at the time of commission of the crime, the inmates of the house could see their faces. The miscreants also assaulted three of the neighbours of the informant who had rushed to the house of the informant for help. After commission of the crime, the miscreants decamped with the booty. The informant and the other injured persons then went to Bhadrak Sub-divisional Hospital on the same night for their treatment. The medical officer (P.W.6) who treated the injured persons sent a Memo, to the Officer-in-charge, Bhadrak (R) P.S. (P.W. 16) intimating him about the dacoity and P.W. 16 reached the hospital in the morning of 8.12.1994. The informant orally reported the occurrence which was reduced to writing as per Ext. 1 and treated as FIR by P.W. 16 who took up investigation. He sent the FIR to the police station for registration of the case and during investigation examined witnesses. P.W. 15, the S.I. of the said police station registered the case and being directed by P.W. 16, issued requisitions for medical examination of the injured persons, conducted search of the houses of some of the accused persons, arrested some of them and recovered some of the stolen ornaments from them. P.W. 1 6 visited the spot, examined some other witnesses, seized some articles, from the house of the informant and some articles from outside the house of the informant including two empty liquor bottles, two pairs of shoes left by the culprits, one yellow colour half burnt plastic bag, one red colour half burnt monkey cap. some half-burnt jute threads with smell of gun powder and a portion of broken tin Diba. He arrested appellant No. 5 Tikili alias Goutam Jena receiving information that he had been injured and sent him for medical examination. P.W. 1 5 produced six of the accused persons with stolen property recovered from them. These six accused persons were forwarded to Court with appellant No. 5 in custody. The houses of two accused persons were raided and they were arrested. Some stolen ornaments were recovered from two of. the accused persons and the house of another accused was also raided and some stolen ornaments were recovered. On 12.12.1994 P.W. 16 prayed before the S. D. J. M., Bhadrak to hold test identification parade with regard to five accused persons and the seized properties and being directed by the S. D. J. M., the J. M. F. C. of Bhadrak (P.W. 17) conducted the T.I. parade on 19.12.1994 at the Bhadrak Special Jail with respect to the suspects and in his Court with respect to the seized ornaments. In the T.I. parade, the witnesses identified seven suspects and could also indentify the seized ornaments. On 25.2.1 995 P.W. 16 sent the remnant of the exploded bomb to the S.F.S.L.. Rasulgarh through the S.D.J.M., Bhadrak for chemical examination. After completion of investigation he submitted charge sheet against thirteen accused persons showing seven of them as absconders. Out of them, the six appellants along with two others were committed to the Court of Session in S.T.No. 27/171 of 1995. Two of the remaining accused persons were committed to the Court of Session in S.T.No. 5/5 of 1996 and all the ten accused persons stood their trial jointly. The learned Addl. Sessions Judge found the six appellants guilty of the charge under Sections 457/395, IPC and convicted them and passed the sentence as stated earlier. He found two co-accused persons of the appellants committed along with them and the other two accused persons separately committed in S.T.No. 5/5 of 1996 not guilty and acquitted them of the charge. The six appellants were also acquitted of the charge under Section 9B of the Indian Explosives Act.
3. The defence plea is one of denial and some of the accused persons pleaded to have been falsely implicated in the case by the informant due to previous enmity.
4. In order to bring home the charge, prosecution examined seventeen witnesses in the case. P.W. 1 is the informant. P.W. 13 if the eldest son. P.W. 12 is the daughter-in-law, P.W.8 is another son and P.W. 11 is a daughter of the informant. P.Ws 2 and 3 are the neighbours of the informant who rushed to the house of the informant hearing hulla and were also injured by the miscreants. P.W.6 is the medical officer of Bhadrak Sub-divisional Hospital who intimated the investigating officer regarding the dacoity. P.W.5 is another medical officer of the said hospital who medically examined accused Goutam Jena. P.Ws. 4 and 7 are two witnesses to the seizure. P.Ws. 15 and 16 are the investigating officers, P.W. 17 is the J.M.F.C, Bhadrak who conducted T.I. parades in respect of the suspects and the seized articles. The defence has examined none.
5. The learned Addl. Sessions Judge relying on the statements of P.Ws.l, 8, 11, 12 and 13 as well as of P.Ws 2 and 3 and on the T.I. parade reports found the six appellants guilty of the charge and convicted them and passed the sentence as stated earlier. He acquitted the other four accused persons due to lack of sufficient evidence against them.
6. Mr. A.K. Ray, learned counsel appearing for the appellants, contended that the learned Addl. Sessions Judge failed to appreciate the evidence on record properly and has erroneously placed reliance on the statements of the prosecution witnesses and on the T.I. parade reports and urged for setting aside the impugned judgment. The learned Addl. Standing Counsel appearing for the State supported the impugned judgment contending that the findings of the learned Addl. Sessions Judge are unassailable. The rival contentions require careful consideration.
7. The learned Addl. Sessions Judge has placed reliance on the statements of the informant (P-W. 1) and his family members (P.Ws 8, 11,12 and 1 3) as well as on the statements of the two neighbours (P.Ws 2 and 3) and came to the conclusion that there was dacoity in the house of the informant at 1.30 a.m. to 2. a. m. on 8.12.1994. The medical officer (P.W.6) examined the informant (P.W. 1), P.W. 2 and P.W. 3. He also examined Nilamani Patra, as son of the informant and one Khageswar Pakala who have not been examined in this case. The medical officer P.W. 5 medically examined appellant No. 5 Goutam Jena who had been injured due to explosion of crackers and found on his person an injury inflicted by hard and blunt object. The medical officer (P.W. 6) sent the Memo. (Ext. 5) to the investigating officer (P.W. 16) after examining five injured persons. Two empty whisky bottles were seized from near the house of the informant under the seizure-list Ext. 12. One gold plated bronze bangle and one gold ring were seized from the shirt pocket of appellant No. 6 Mangu alias Jalal Khan on 12.12.1994 at 1 a.m. under the seizure- list Ext. 13, One gold plated bronze bangle and one silver Paunji were seized from the pant pocket of accused Litu alias Prasanta Jena (since acquitted) under the seizure-list Ext. 14. One silver necklace and one gold ring have been seized from appellant No. 4-Sk. Gaffar on 12.12.1 994 at 2.45 a.m. under the seizure-list Ext. 15 on the information given by him leading to discovery of the same. One gold plated bronze bangle, one gold necklace, one gold earring, one silver Paunji and one Bhujali were seized from appellant No. 1-Prafulla Jena on 12.12.1994 at 5.30 a.m. under the seizure-list Ext. 16 on his information leading to discovery. One pair of black plastic shoes had been seized under the seizure-list Ext. 1 8 from near the house of the informant alleged to have been left by one of the culprits. One pair of plastic shoes and one iron Pitha Khadika have been seized from the nearby land under the seizure-list Ext. 2 1. Some incense sticks, one plastic Jari and some broken coconut shells have been seized under the seizure-list Ext. 22 from under a banyan free-on the information of a suspect Musa Sahu. The above materials coupled with the statements of P. Ws. 1,2,3,8, 11, 12 and 13 would establish- the prosecution case that there was dacoity in the house of the informant. Hence it is to be considered whether the appellants were amongst the culprits who committed the offence.
8. The six appellants and accused Prasanta Jena (since acquitted) were put to test identification parade which was conducted by the Magistrate (P.W. 17) on 19.12.1994 in the Bhadrak Special Jail and they were identified by P. Ws 1,8, 11, 12 and 13. The statement of the J.M.F.C. (P.W. 17) has been discussed by the learned Additional Sessions Judge and he did not find any infirmity or irregularity in his conducting the test identification parades and accepted his statement to be reliable. Ext. 26 is the T.I. parade report in respect of suspects prepared by P.W. 17. The learned Addl. Sessions Judge also did not find any infirmity or irregularity in the T.I. parade in respect of the seized ornaments and articles conducted by P.W. 17 and accepted the same as reliable. Ext. 27 is the T.I. parade report in respect of the seized ornaments. While discussing the evidence on record, the learned Addl. Sessions Judge was of the view that accused Prasanta Jena (since acquitted) who is a co-villager of the informant had been falsely implicated in the case by the informant due to previous enmity and did not believe recovery of the gold plated bronze bangle and silver Paunji from his possession under the seizure-list Ext. 14. Therefore, he did not find him guilty and acquitted him of the charge. Besides, he did not find sufficient incriminating materials against three other accused persons and acquitted them of the charge. He based the conviction of these six appellants relying on the statements of P.Ws. 1,2,3,8,11,12 and 1 3 as also the T.I. parade reports.
9. Mr. Ray, learned counsel for the appellants; contended that there was delay of six days in conducting the T.I. parades and the chance of the prosecution witnesses seeing the appellants at the time of their production in Court on 13 12.1994 cannot be overruled and hence; reliance should not have been placed on the T.I. parade reports as well as the statements of the above mentioned prosecution witnesses and appellants should not have been held guilty and convicted of the charge.
Mr. Patnaik, learned Addl. Standing Counsel refuted the contentions of the learned counsel for the appellants contending that there is no evidence on record to show that the witnesses had opportunity to see the appellants on the date of their production in Court and that the delay of six days in conducting the T.I. parades is not fatal to the prosecution case.
10. The appellants were arrested on 12.12.1994 and were produced in Court on 13.12.1994. P.W. 17 has stated that he received the order of the S.D.J.M., Bhadrak to conduct the T.I. parade on 13.12.1994, but since there was no time that day, he fixed the date to 19.12.1 994 giving direction to the Superintendent of Jail to make necessary arrangements for the T.I. parade in the Jail and that the suspects were mixed, with seventy U.T.Ps. and their order was changed after each witness identified the suspects. Learned Addl. Sessions Judge has held that the defence has not been able to elicit anything from the mouths of P.W. 17 and other identifying witnesses so as to discredit them and disbelieve their statements. But it is found that on 12.12.1 994 P.W. 16 prayed for conducting T.I. parade as per Ext. 23 in respect of five accused persons, namely, Jalal Khan alias Mangu alias Tera, Sk. Gaffar, Tikili alias Goutam Jena, Amar Jena and Bula Jena. P.W. 1 6 has stated that he directed P.W. 15 to produce the identifying witnesses in the T.I. parade which was to be held on 19.12.1994 inside the Jail since he was availing leave and, accordingly, P.W. 15 produced the identifying witnesses and the T.I. parade was conducted on 19.12.1994. P.W. 15 has stated that the produced the identifying witnesses in the Jail as directed by P.W. 16 and the T.I. parade was conducted. He has not stated to have made further prayer for conducting T.I. parade with respect to the other two accused persons, namely, Prafulla Jena and Prasanta Jena. The Magistrate (P.W. 17) has also not stated that the investigating officer made further prayer to conduct T.I. parade in respect of the above-named two persons, but strangely" enough the T.I parade report. Ext. 26 reveals that T.I. parade was conducted with respect to seven suspects and P.W. I 7 has also stated he conducted T.I parade with respect to seven persons named in col. 3 of the aforesaid report and that those seven suspects were correctly identified by the witnesses. There is nothing on record to show as to how the T.I. parade was conducted with respect to seven suspects, though the investigating officer had prayed to conduct T.I. parade with respect to five persons. The learned Addl. Sessions Judge failed to notice this infirmity in conducting the T.I. parade. He rightly observed that accused Lilu alias Prasanta Jena, a co-villager of the informant had been falsely implicated in this case due to rivalry, inasmuch as though he is a co-villager of the witnesses, he was not named as one of the culprits in the FIR, nor his physical features were described in the FIR. It is alleged in the FIR and also stated by the identifying witnesses that the culprits had put on black half-pants and black banions and had covered their laces by monkey caps and towels, but they could see their faces due to focussing of torchlights by the culprits themselves and due to light of the lantern burning in the room of P.W. 13. In his statement in cross- examination P.W. 1 7 has stated that he asked the identifying witnesses as to how and for which reason they were able to identify the suspects. but they did not give any reason out of fear as per their own statements and that suspect Prasanta Jena raised objection alter the T.I. parade was over that the identifying witnesses were his relatives. The suspects and the seventy U.T. Ps. mixed with them had not been asked to cover then faces with monkey caps or towels.
11. Mr. Ray placed reliance on the decision in State v. Pravakar, reported in 1991 Cri. L.J. 745. in support of his contention that the T.I. parade report should not have been relied upon to base the conviction of the appellants. In the said decision it has been held that delay in holding T.I. parade cannot be a ground to reject the evidence of witnesses if it is acceptable. It has been further held that when it is alleged that the culprits had covered their faces with cloths and napkins during the commission of dacoity, the T.I. parade should be conducted by covering the faces of the culprits. The same view has also been taken in the case of Sheonath Bhat v. State, reported in 1990 Cri. L.J. 2423.
12. As stated earlier, the identifying witnesses could not state the reason for identifying the suspects and the faces of the suspects and other U.T. Ps. mixed with them had not been covered when the T.I. parade was held. Above all, T.I. parade was conducted with respect to seven suspects, although the investigating officer had prayed for conducting T.I. parade with respect to five suspects. That apart, these six appellants are residents of nearby villages and as it appears from the petition of the investigating officer dated I 2.1 2.1 994 (Ext. 23), five witnesses were present in Court on that day and hence the chances of their seeing the five accused persons, produced in Court on the date of production cannot be overruled.
13. Keeping in view the decisions referred to above and for the reasons discussed above, the conviction of the appellants basing on the statements of the identifying witnesses and the T.I. parade reports is found to be erroneous and unsustainable being contrary to the law as laid down. The learned Addl. Sessions Judge has failed to notice the above infirmities and illegality in holding the T.I. parade and has failed to properly appreciate the evidence on record. As such, his finding that the appellants were members of the group of dacoits who committed dacoity in the house of the informant is erroneous and unsustainable. As in the case of other four accused persons acquitted in this case, these six appellants are also entitled to acquittal for want of cogent and convincing evidence against them. Hence, the impugned judgment cannot be sustained and is liable to be set aside and the appellants will be entitled to acquittal.
14. In the result, the Criminal Appeal is allowed. The impugned judgment dated 5.9.1996 in Sessions Trial No. 27/171 of 1995 convicting the appellants under Sections 457/395, IPC and sentencing them to undergo rigorous imprisonment for seven years each on each count is set aside. The appellants are found not guilty of the charge and are acquitted. They be set at liberty forthwith if their detention is not required in connection with any other case.