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2008 DIGILAW 614 (ORI)

PAWAN KUMAR SINGH v. STATE OF ORISSA

2008-07-30

PRADIP MOHANTY

body2008
JUDGMENT : Pradip Mohanty, J. - This appeal is directed against the Judgment and order dated 20.8.2003 passed by the Addl. Chief Judicial Magistrate-cum-Asst. Sessions Judge, Rourkela in S.T. No. 174/61 of 2002 convicting the Appellant u/s 392 IPC and Sections 25 and 27 of the Arms Act. The Trial Court sentenced the Appellant to undergo rigorous imprisonment for seven years and pay a fine of Rs. 25,000/- in default undergo rigorous imprisonment for six months, for the offence u/s 392 IPC, and undergo rigorous imprisonment for three years and pay a fine of Rs. 10,000/- in default undergo rigorous imprisonment for three months more, on each count for the offence under Sections 25 and 27 of the Arms Act; all the sentences to run consecutively. 2. The case of the prosecution is that on 17.8.2001 at 10.30 a.m. the presnt Appellant along with the other co-accused persons entered into the U.Co. Bank, Bazar Branch, Rourkela when its business had just started, confined the staff of the bank and customers present in the bank in the Tiffin room at the point of pistols, forced two bank officers, who were in-charge of the strong room, to open the same and took away Rs. 9,26,700/-, one DBLL gun belonging to the bank and three cheque books. Thereafter, they also confined those two officers in the Tiffin room along with others and fled away. On arrival of the Senior Manager of the Bank just after the incident, the matter was reported to the Plant Site P.S. and investigation was taken up on completion of which charge-sheet was submitted u/s 395 IPC and Sections 25 and 27 of the Arms Act against the present Appellant and three other accused persons, who during trial escaped from the Court. 3. Plea of the accused-Appellant is complete denial of the allegation. 4. In order to prove its case, prosecution examined as many as 10 witneses including the Magistrate, who conducted T.I. Parade, and defence examined none. 5. The learned Addl. C.J.M.-cum-Assistant Sessions Judge, Rourkela, who tried the case, by Judgment dated 20.8.2003 convicted and sentenced the Appellant, as stated hereinbefore, 6. Mr. Parida, learned Counsel for the Appellant, submits that there is no material on record to establish a case u/s 392 IPC against the Appellant. 5. The learned Addl. C.J.M.-cum-Assistant Sessions Judge, Rourkela, who tried the case, by Judgment dated 20.8.2003 convicted and sentenced the Appellant, as stated hereinbefore, 6. Mr. Parida, learned Counsel for the Appellant, submits that there is no material on record to establish a case u/s 392 IPC against the Appellant. There is no proof that the Appellant attempted to cause the death of any person or attempted to cause hurt to him while committing theft. He further submits that the trial Court is wrong in accepting the report of the T.I. Parade, when P.W.3 specifically stated that he identified the present Appellant as per the direction of the Magistrate. He further submits that T.I. Parade was not conducted promptly inasmuch as it was done only on the 11th day of arrest of the Appellant. Such delay in conducting the T.I. Parade is fatal to the prosecution. He also submits that the seized pistol, five bullets and one fifty rupee bundle from the possession of the Appellant cannot be treated as stolen articles and the pistol was not used for commission of the offence. Mr. Parida places reliance on Ravi @ Ravichandran Vs. State rep. by Inspector of Police, and Bijuli ' Bijaya Behera etc. v. State (1993) 6 OCR 356. 6. Mr. Pattnaik, learned Addl. Government, submits that the present Appellant was identified by P.W.3 and P.W.6, who is a bank officer, in presence of P.W.5, the Judicial Magistrate. He further submits that there was no delay in conducting the T.I. Parade. The T.I. Parade was conducted on 30.8.2001. The Appellant was arrested on 18.8.2001 and forwarded on 19.8.2001. Investigating Officer immediately prayed for T.I. Parade and the T.I. Parade was conducted. Therefore, there is no delay in holding T.I. Parade. He further submits that a bundle of fifty-rupee notes was recovered from the present Appellant in presence of an independent witness (P.W.9) and there is no reson to disbelieve the evidence of P.W.9. 7. Perused the LCR and the decisions cited. In the instant case, P.W.1, the Senior Manager of the bank, is the informant. He is a post occurrence witness. He arrived at the spot after the incident and released the employees and customers of the bank from the Tiffin room. On being briefed about the incident by the witnesses, he reported the matter to the police. P.W.2 was the Manager of the bank at the relevant time. He is a post occurrence witness. He arrived at the spot after the incident and released the employees and customers of the bank from the Tiffin room. On being briefed about the incident by the witnesses, he reported the matter to the police. P.W.2 was the Manager of the bank at the relevant time. He is a witness to the incident. He identified accused Sujit Kumar Yadav and the bag in which the accused persons had taken away the cash from the bank in the T.I. Parades held for identification of the accused persons and the stolen properties. But he could not identify other accused persons, since he was terrified by them. P.W.3 is a customer of the bank and an independent witness. He was present at the time of occurrence. He stated that co-accused Sujit Kumar Yadav threatened him at the point of a pistol and also told him to sit down. Another co-accused Ajaya Kumar Upadhaya, who was holding a pistol and a knife, took this witness and others to a room and kept them there. He further stated that he recognized the accused persons named by him in the jail before a Magistrate as the culprits. P.W.5 is the Magistrate who conducted T.I. Parades both in respect of accused and property. He specifically stated that the present Appellant was correctly identified by P.Ws. 3 and 6. During T.I. Parade, no objection was raised by the accused persons. No scope had also been given to the identifying witnesses to see the suspects beforehand. He has proved the T.I. Parade report. P.W.6 was in charge of the cash on the relevant date. He was present at the time of occurrence. He identified the present Appellant with another. P.W.7 is a witness to seizure. He stated that one Bages Kumar Akala and Ajit Kumar were staying in his house at Madhusudan Pali on rent. The police had come to that room alongwith co-accused Sujit Kumar and in his presence said co-accused Sujit Kumar gave recovery of a bag containing cash and three cheque books. P.W.8 is another seizure witness in whose presence police seized M.O. III, the Nylon bag, and M.Os. IV and V, the Jute bags. P.W.9 is yet another independent seizure witness in whose presence police seized one pistol, five bullets and one fifty-rupee note bundle. 8. P.W.8 is another seizure witness in whose presence police seized M.O. III, the Nylon bag, and M.Os. IV and V, the Jute bags. P.W.9 is yet another independent seizure witness in whose presence police seized one pistol, five bullets and one fifty-rupee note bundle. 8. P.W.3 in his cross-examination stated that he had identified the present Appellant as per the direction of the Magistrate to identify the culprits. This cannot be interpreted, as is said by the learned Counsel for the Appellant, that on the direction of the Magistrate, P.W.3 identified the present Appellant. In his cross-examination P.W.3 has specifically stated that he had identified the accused persons as the members of the dacoit gang and he had stated the same to the Magistrate. P.W.5, the Magistrate in whose present the T.I. Parade was conducted has categorically stated that the present Appellant was correctly identified by P.Ws. 3 and 6. He has proved the T.I. Parade report wherein it is clearly mentioned that the Appellant was identified by P.W.3 and P.W.6. In view of such clinching evidence, no doubt can be entertained in regard to identification of the Appellant. So, there is no force in the argument advanced by the learned Counsel for the Appellant in this respect. 9. Coming to the next contention, admittedly the T.I. Parade was held on the 11th day of arrest of the present Appellant. But P.W.5, learned Magistrate has clerly stated in his evidence that during T.I. Parade no objection was raised by the accused persons and no scope had been given to the identifying witnesses to see the suspects. In the T.I. Parade report such fact has been clearly mentioned. So Appellant cannot get any benefit for delay in holding the T.I. Parade. The decision in Ravi ' Ravichandran's case (supra) relied on by the counsel for the Appellant is not applicable to the present case for the simple reason that in the' said case photographs of the accused persons were not only published, they were also shown to the identifying witnesses before identification, whereas in the present case no such allegation is there. Similarly the case of Bijuli ' Bijaya Behera (supra) is also not applicable as the facts of that case are totally different from those of the present case. 10. So far as recovery is concerned, evidence of P.W.9, an independent witness, and P.W.10, the Investigating Officer, is very clear. Similarly the case of Bijuli ' Bijaya Behera (supra) is also not applicable as the facts of that case are totally different from those of the present case. 10. So far as recovery is concerned, evidence of P.W.9, an independent witness, and P.W.10, the Investigating Officer, is very clear. There is no reason to disbelieve their, evidence. Nothing has also been elicited from them in course of cross-examination to discredit their version. 11. In view of the above, This Court is not inclined to interfere with the impugned Judgment of conviction of the Appellant u/s 392 IPC and Sections 25/27 of Arms Act. At this stage, learned Counsel for the Appellant submits that the sentences imposed are very high and excessive. He prays that keeping the young age of the Appellant in mind, a lenient view may be taken. Regard being had to the gravity of the offence, This Court is not inclined to reduce the sentences. However, This Court directs that the substantive sentences imposed by the trial Court shall run concurrently instead of consecutively. 12. The appeal is disposed of accordingly.