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2005 DIGILAW 215 (ORI)

Deepak Rout v. State of Orissa

2005-03-29

A.K.PARICHHA

body2005
JUDGMENT A. K. PARICHHA, J. : This is an application under Section 482 of the Code of Criminal Procedure for quashing the order of cognizance passed by the learned J.M.F.C., Baramba in G.R.Case No. 107 of 2003. 2. Basing on an FIR lodged by one Raj Kishore Mishra, Baramba P.S.case No. 105 (17) of 2003 corresponding to G.R.Case No. 107 of 2003 of the Court of learned J.M.F.C., Baramba was registered, investigation was conducted and charge-sheet was submitted arraying five persons including the present petitioner as accused. After perusing the final form, case diary etc., the learned J.M.F.C., Baramba took cognizance of the offences under Sections 458, 395, 511, 307, IPC and Sections 25/27 of the Arms Act and directed issue of N.B.W. against the petitioner. Ag¬grieved by the said order, the petitioner has filed the present application under Section 482, Cr.P.C. for quashing the said order of cognizance. 3. Mr. D.R.Mohapatra, learned counsel for the petitioner submits that the petitioner has not been named in the FIR no T.I.Parade was conducted for his identification and there is not an iota of evidence against him in the case diary. So, the order of taking cognizance of the offence and the issue of N.B.W. against the petitioner was illegal and uncalled for. 4. Mr. M. Dhal, learned Addl. Standing Counsel, on the other hand, submits that although the informant could not name the culprits in the FIR, yet circumstantial evidence were collected during investigation, which establish involvement of the present petitioner in commission of the alleged offences. He submits that the driver of the maruti van, in which the culprits went to the spot and committed the alleged dacoity, has given statement that the petitioner was one of the dacoits. Learned Addl. Standing Counsel further submits that when the petitioner has remained absconder and has not yet been arrested, there was no scope of holding any T.I.Parade for his identification. 5. The prosecution allegation is that five persons forcibly entered into the residential house of the informant armed with pistol, knife, bhujali etc. in order to commit dacoity and in the process caused gun-shot injury to the son of the informant. It is alleged that hearing the gun-shot and hulla, the villagers chased the culprits, who fled away in the maruti van. Subsequently, the maruti van was traced and some of the culprits were also apprehended. in order to commit dacoity and in the process caused gun-shot injury to the son of the informant. It is alleged that hearing the gun-shot and hulla, the villagers chased the culprits, who fled away in the maruti van. Subsequently, the maruti van was traced and some of the culprits were also apprehended. The driver of the maruti van has given statement that the present petitioner was one of those culprits. 6. According to the learned counsel for the petitioner, the statement of the co-accused has no evidentiary value and therefore, the statement of the driver Akhaya cannot constitute any case against the petitioner. Normally statement of the co-accused is not binding on the other accused, but Section 30 of the Evidence Act clearly contemplates that when more persons than one accused are conjointly tried for the same offence and confes¬sion is made by one of such persons affecting himself and some other of such persons, then the Court may make into consideration such confession as against such other person as well as against the person, who makes such confession. The driver Akhaya in his statement has implicated himself and other including the peti¬tioner. So, the statement cannot be discarded out-right. In a case of dacoity by strangers, the victims cannot possibly name the culprits in the FIR. Similarly when one of those culprits is absconding and has not been apprehended, there is no scope for conducting any T.I.Parade for identification of such absconding culprit. So, simply because the petitioner has not been named in the FIR and has not been put in T.I.Parade, other evidence cannot be discarded. In any case, at the stage of cognizance, evidences are not to be weighed to find out as to whether convic¬tion can be based on such evidence. If some amount of evidence is there to show prima facie link of the accused with the alleged incident, then cognizance can be taken for the offences alleged and process can be issued against such accused. In the instant case, there are materials to indicate prima facie link of the petitioner with the alleged incident. So, the learned JMFC, Baramba did not commit any legal error by taking cognizance of the offence under Sections 458, 395, 511, 307, IPC and Sections 25 and 27 of the Arms Act and directing issue of N.B.W. against the absconding petitioner. 7. So, the learned JMFC, Baramba did not commit any legal error by taking cognizance of the offence under Sections 458, 395, 511, 307, IPC and Sections 25 and 27 of the Arms Act and directing issue of N.B.W. against the absconding petitioner. 7. In the above noted circumstances, there is hardly any scope for quashing the impugned order of cognizance. 8. In the result, therefore, the CRLMC fails and the same is dismissed. CRLMC dismissed.