JUDGMENT : P. Ray, J. - The petitioner in the present revisional application along with others were charged for committing offence under Sections 457, 335 and 397 of the Indian Penal Code (hereinafter referred to as 'I.P.C.') and u/s 9(b) of the Indian Explosives Act. The trial Court found the petitioner and three others guilty under Sections 457/395, IPC and sentenced them to undergo R. I. for three years u/s 457 and for seven years u/s 395, IPC. The petitioner and three others preferred Criminal Appeal No. 40 of 1992 before the learned Sessions Judge, Balasore. The appeal Court upheld the convictions and dismissed the appeal. Being aggrieved by the said judgment of the appeal Court, the petitioner has moved this revisional application before this Court. 2. The prosecution case, as it appears from the materials on record, is : On November 19, 1990 at about 1.40 a. m. the accused person including the petitioner broke open the door of one Bapi Senapati, committed robbery, took away valuable gold and silver ornaments and exploded bombs to terrorise the local people at the time of escape. On receipt of information about the dacoity from one Himansu Sekhar Das (PW 4), the Officer-in-charge, Sadar P. S., Balasore arrived at the scene after recording a Station Diary. When the O. I. C. arrived at the place of incident, the dacoits had already left. The oral report obtained from Bapi Senapati (PW 1) was reduced to writing and was treated as FIR. A case was registered and the police took up investigation. On December, 2, 1990 at about 6.00 a. m. in the morning while the Investigating Officer (PW 17) along with his staff was returning from Haladipada he found four persons including the petitioner standing at Anand Bazar crossing of Balasore town in a suspicious manner. Seeing the police party, the said four persons including the petitioner started running away, but PW 17 with the help of his staff and other persons chased and caught them. In presence of witnesses, the Investigating Officer conducted personal search of the bodies of those four persons. From the possession of the petitioner he seized two nos. of gold coated bronze chudi and one gold ring fitted with white stone all of which were tied by a black cotton handkerchief and kept inside the pocket.
In presence of witnesses, the Investigating Officer conducted personal search of the bodies of those four persons. From the possession of the petitioner he seized two nos. of gold coated bronze chudi and one gold ring fitted with white stone all of which were tied by a black cotton handkerchief and kept inside the pocket. The said ornaments seized from the petitioner were subsequently identified as parts of ornaments stolen from the house of Bapi Senapati on November 19, 1990. 3. The accused persons including the petitioner pleaded not guilty and claimed that they have been falsely implicated in this case. 4. The petitioner along with other persons was identified by Sanghamitra Senapati (PW 11) at the Test Identification Parade held on December 28, 1990. The ornaments seized from the petitioner were also identified. The prosecution examined 17 witnesses to prove the charges. Upon consideration of the materials on record both the Courts below concurrently found the petitioner along with three other persons guilty of offence u/s 457 and 395 of the IPC. 5. Mr. S. S. Swain, learned Advocate, for the petitioner has assailed the identification of the petitioner by PW 11 in the Test Identification Parade on the ground that there was inordinate delay in holding the T. I. Parade and there was possibility of the accused persons being shown to the identifying witnesses before the T. I. Parade. He has further contended that in the T. I. Parade all the participants were not dressed in similar manner. He has argued that the identification of articles said to have been seized from the petitioner should not have been relied upon inasmuch as there was evidence that after seizure the articles were kept in a sealed cover. He has submitted that the conviction of the petitioner on the basis of identification by a single witness is unsustainable. He has also argued that the prosecution has failed to establish a case u/s 457, IPC against the accused persons including the petitioner. 6. The petitioner was arrested on December 2,1990. T. I. Parade was conducted on 13-12-1990. Eleven days' delay as such cannot be said to be such an inordinate delay as would vitiate the identification. PW 11 not only identified the accused persons including the petitioner in the T. I. Parade, but also identified them while deposing in Court.
6. The petitioner was arrested on December 2,1990. T. I. Parade was conducted on 13-12-1990. Eleven days' delay as such cannot be said to be such an inordinate delay as would vitiate the identification. PW 11 not only identified the accused persons including the petitioner in the T. I. Parade, but also identified them while deposing in Court. In her deposition PW 1 has also stated about the role played by the petitioner during dacoity. She has also explained the reasons why she could identify four accused persons including the petitioner. According to her, the said accused persons including the petitioner entered her room, stayed for quite some time for taking away the ornaments. She has also stated that she was all along in her bedroom till the dacoits left the room with the ornaments The allegation that the accused persons must have been shown to PW 1 before the T.I. parsons to facilitate identification not only PW 1, but all the witnesses brought to identify the accused persons would have identified them. PW 11 identified only those decoits who entered her roam and were inside for quits some time. It is also on record that at the time of dacoity the lights were on. There is nothing on record to discredit the identification by PW 11. 7. On the question of delay Mr. Swain has referred to several decisions. In the decisions reported in Wakil Singh and Others Vs. State of Bihar, and 1935 (I) OLR 232 (State v. Kalia alias Baghrai Bindhani and four others) the delay was for 2 months and mere than 1 year respectively. In the case reported in Sheikh Hasib alias Tabarak Vs. The State of Bihar, identification in the T. I. Parade held after about 16 days was discarded because the particular accused was not included in the first T. I. Parade held earlier and the explanation offered for such non-inclusion was found to be unacceptable. Of course, 1 days' has been held to be inordinate by the Rajasthan High Court in a case reported in Pritam Singh and Another Vs. The State of Rajasthan but I am unable to persuade myself to agree with, the view that mere 11 days delay without anything also would be sufficient to vitiate identification in T. I Parade. This High Court in State Vs.
The State of Rajasthan but I am unable to persuade myself to agree with, the view that mere 11 days delay without anything also would be sufficient to vitiate identification in T. I Parade. This High Court in State Vs. Pravakar Behera and Others, has laid down that in absence of any inference that the person had other means of knowing the suspect before such Parade a delay by itself should not be a ground to discard the identification. 8. Validity of the T. I. Parade has been assailed also on the ground that in this T. I. Parade the accused persons were not mixed up with persons having similar dress, complexion, appearance, height and gesture. Mr. Swain has drawn the attention of the Court to the deposition of the Magistrate conducting the T. I. Parade (PW 13) wherein he has stated that among the participants, persons already convicted were wearing separate dress provided by the jail authorities and all the participants were not uniformly dressed. It is not the law that all the participants in the T. I. Parade must be uniformly dressed. What is required is that the accused persons should not be so dressed or as will enable the identifying witnesses to segregate them from others. Materials on record show that the accused persons including the petitioner were mixed up with convicts as well as under-trial prisoners. There is nothing to indicate that the accused persons were separately dressed from others. The Magistrate (PW 13) has also clearly stated in his evidence that each suspect was mixed with 11 others persons having similar height, health and complexion. If the accused persons could be separated as alleged then all the witnesses would have identified them. 9. In support of his argument Mr. Swain has referred to several decisions, namely (1995) 8 OCR 503 (Fagu Das and Anr. v. State of Orissa) 50 (1980) CUT 2 (Kasinath alias Narayan Patra and Anr. v. State), Wakil Singh and Others Vs. State of Bihar, and State Vs. Pravakar Behera and Others. It appears that all the decisions are clearly distinguishable in view of the facts and circumstances of the present case. In none of the decisions it has been laid down that all the participants must be dressed in similar manner. 10. Relying upon the decision of the Supreme Court in Wakil Singh and Others Vs. State of Bihar, Mr.
It appears that all the decisions are clearly distinguishable in view of the facts and circumstances of the present case. In none of the decisions it has been laid down that all the participants must be dressed in similar manner. 10. Relying upon the decision of the Supreme Court in Wakil Singh and Others Vs. State of Bihar, Mr. Swain has contended that identification by a single witness cannot be held to be sufficient to convict an accused. In the afore-mentioned decision the Supreme Court has not laid down any law that conviction can never be based on identification by a single witness. In the facts and circumstances of the said case the Supreme Court found that it was unsafe to rely upon the identification be the single identifying witness in the said case. As already stated in the present case the identification by PW 11 is convincing and can be safely relied upon. 11. From the evidence on record it also appears that some ornaments were seized from the possession of the petitioner in presence of witnesses and the said ornaments were duly sealed and the seizure-list was prepared. The said ornaments were produced in sealed cover before the Magistrate conducting the identification of those seized ornaments. The ornaments were also duly identified. here is no merit in the submission on behalf of the petitioner that the identification of the ornaments seized from the petitioner was not properly done. 12. There is accordingly no reason to interfere with the conviction u/s 395 of the IPC. However, considering the facts and circumstances of the present case, the sentence is reduced from 7 years to 6 years' rigorous imprisonment. 13. Mr. Swain has relied upon an unreported judgment of this Hon'ble Court passed in Criminal Appeal Nos. 224 and 264 of 1992, of Orissa) heard analogously in support of his argument that the conviction u/s 457 of the IPC cannot be sustained as there is no material to show that the petitioner adopted any active means to conceal his presence. The materials on record are insufficient and do not establish any case of attempt to conceal himself. In view of the aforesaid unreported judgment, conviction u/s 457 of the IPC cannot be upheld. 14. For the foregoing reasons the revisional application is allowed in part. The conviction u/s 457, IPC is set aside.
The materials on record are insufficient and do not establish any case of attempt to conceal himself. In view of the aforesaid unreported judgment, conviction u/s 457 of the IPC cannot be upheld. 14. For the foregoing reasons the revisional application is allowed in part. The conviction u/s 457, IPC is set aside. The conviction for offence u/s 395, IPC, is upheld, but he sentence is reduced to 6 years' Rigorous Imprisonment.