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2006 DIGILAW 32 (ORI)

Rupa Kumar Sahu v. State of Orissa

2006-01-20

body2006
JUDGMENT SUJIT BARMAN ROY, CJ. — Both the appeals at the instance of three appellants, namely, Rupa Kumar Sahu, Abdul Hanan Khan and Abdul Wahab Khan arising out of the same judgment dated 18.9.1987 passed by the learned Sessions Judge, Balasore in S.T.No. 51 of 1987 were heard together and are being disposed of by this common judgment. All the three appellants were convicted under Sec. 395, IPC and each of them was sentenced to R.I. for eight years and to pay a fine of Rs. 2,000/- in default to undergo R.I. for six months more. 2. The appellants were prosecuted on the aforesaid charge under Sec. 395, IPC for committing dacoity of 35 quintals of aluminium wire from the godown of Basta Section Office of Orissa State Electricity Board. In this case in course of trial, in all twelve witnesses were examined on behalf of the prosecution. P.Ws. 2, 3 and 4, namely, Bidyut Kumar Das, Piru Besra and Subash Chandra Barik respectively were the eye witnesses. The booty of the dacoity i.e. 35 quintals of aluminium wire were not recovered from the custody/possession of any of the appellants. These aluminium wire were found lying on the bank of a river and from there the police recovered the same. It is also the admitted case that none of the alleged eye witnesses knew the appellants by name. 3. P.W.3 alone identified all the appellants in a T.I. parade conducted by the Magistrate inside the Jail. However, the two eye witnesses, namely, P.Ws. 2 and 4 did not participate in the T.I. parade. P.Ws. 2 and 4 identified the appellants for the first time in the trial Court. This is the evidence relied upon by the prosecution. Another circumstance relied upon by the prosecution is that, in course of the dacoity a green coloured truck was used. One truck while passed through a Toll Gate, its number was noted by the person at the toll gate. It is also the prosecution case that the toll gate is situated at a distance of 3 kms. from the place of occurrence. Further circumstance relied upon by the prosecution in this regard is that one green coloured truck was found parked in front of the shop of appellant No. 1, Rupa Kumar Sahu. The said truck was seized by the police and appellant Rupa Kumar Sahu was tried in the case. 4. from the place of occurrence. Further circumstance relied upon by the prosecution in this regard is that one green coloured truck was found parked in front of the shop of appellant No. 1, Rupa Kumar Sahu. The said truck was seized by the police and appellant Rupa Kumar Sahu was tried in the case. 4. Learned counsel for the appellants rightly contended that there may be many green coloured trucks. The very fact that a green coloured truck was parked in front of the shop of the appellant, Rupa Kumar Sahu does not lead to an automatic conclu¬sion that the said truck which was found parked in front of the shop of appellant No. 1, Rupa Kumar Sahu was utilised while committing the offence of dacoity. When the number of the green coloured truck was noted in the toll gate while it passed through the same, it does not also lead to an automatic conclusion that the said truck was utilised during commission of crime in as much as none of the alleged eye witnesses could supply any materials regarding the number of the truck involved in the commission of crime. I am therefore unable to accept that such evidence could form basis for conviction of the appellants. 5. However, it is true that P.W.3 Piru Besra took part in the T.I.parade and identified all the three appellants. But before the T.I. parade could be conducted, all the three appel¬lants pointed out to the Magistrate, who conducted the T.I.parade that they were shown by the I.O. to P.W.3 and therefore, the evidence furnished by such T.I. parade is of no consequence in this case. Learned counsel for the appellants further referred to the order dated 16.1.1987 that all these three appellants after their arrest by police were brought before the Magistrate for the first time. The Magistrate did not record in his order dated 16.1.1987 that the appellants were produced with their faces covered, though by the same order the learned Magistrate fixed the date for holding the T.I.parade. The forwarding report under which the I.O. produced all these three appellants before the concerned Judicial Magistrate on 16.1.1987 also does not disclose that the appellants were produced with their faces covered with cloth. The forwarding report under which the I.O. produced all these three appellants before the concerned Judicial Magistrate on 16.1.1987 also does not disclose that the appellants were produced with their faces covered with cloth. The plea of the appellants taken before the Judicial Magistrate before T.I.parade was conducted and further fact that there is nothing on record to show that when the accused-appellants were produced before the Magistrate before the T.I. parade was conducted they were produced with their faces covered raise a serious doubt as to the acceptability of the evidence furnished by such T.I.parade. After going through the entire evidence on record, it appears to me that the testimony of P.W.3 as regards identification of the appellants is the sole basis to connect the appellants with the alleged dacoity. such identification before the Court is sought to be corroborated by the memo of T.I.parade. But for the reasons already stated above, the evidence as to T.I.parade does not inspire my confidence and the same cannot be acted upon for the purpose of corroboration to the identification of the appellants by P.W.3 in the trial Court. 6. Learned Government Advocate also referred to the evidence of P.Ws. 2 and 4. It appears that their evidence does not implicate any of the appellants with the crime though it is stated that the son of appellant No. 3 and some other persons were seen unloading the aluminium wire from a truck. It might be that the son of appellant No. 3 and some other persons were involved in the commission of dacoity. For the fault of the son the father cannot be punished. 7. In view of the aforesaid reasons, I am constrained to hold that the charge against the appellants has not been established beyond all reasonable doubt and for that reason the conviction and sentence passed against the appellants cannot be sustained. I, therefore, allow both the appeals and set aside the impugned judgment of conviction and sentence. The bail bonds furnished in respect of the appellants stand discharged. Appeals allowed.