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2011 DIGILAW 206 (ORI)

Bijaya Pan v. State of Orissa

2011-03-31

SANJU PANDA

body2011
JUDGMENT S. PANDA, J. — The appellant has filed this appeal impugning the judgment dated 10th August, 2010 passed by the learned Ad hoc Addl. Sessions Judge, FTC, Champua in S.T. Case No.16/14 of 2010 convicting him under Section 394 IPC and sentencing to undergo RI for five years and also to pay fine of Rs.50,000/- in default to undergo SI for one year and acquitting him from the offence under Sections 25 and 27 of the Arms Act. 2.The occurrence took place on 7.9.2006 at about 10.35 PM. The appellant was arrested on 4.10.2006. From the date of the arrest, he is inside the custody nearly four years and five months. The prosecution, in support of its case, examined eight witnesses and exhibited eleven documents. The plea of the appellant was one of complete denial. The trial Court, relying on the evidence of P.W.5-the informant and P.W.6 who had identified the accused in the T.I. Parade and also on the basis of the fact that the accused gave a leading to discovery, convicted the appellant along with one Raja @ Rajendra Karua. The case was split up so far as other co-accused persons are concerned as they are absconding till today. 3.Learned counsel appearing for the appellant submitted that the witnesses, who identified the appellant in the T.I. Parade, admitted in their cross-examination that after the arrest of the appellant, the witnesses saw him in the police lock-up. Since both the witnesses admitted that prior to the T.I. Parade, they saw the accused persons in the custody, the T.I. parade report should not be relied on. He further submitted that none of the seizure witnesses was examined by the prosecution even though some money was recovered from the accused persons by the Investigating Officer. Therefore, in the absence of independent seizure witness named in the seizure list, no reliance can be placed on the recovery made from the present appellant. As such, the conviction and sentence imposed by the trial Court is liable to be set aside. In support of his contention, he cited a decision of this Court in the case of Rupa Kumar Sahu and two others v. State of Orissa, (2006) 33 OCR 489. 4.Learned Addl. As such, the conviction and sentence imposed by the trial Court is liable to be set aside. In support of his contention, he cited a decision of this Court in the case of Rupa Kumar Sahu and two others v. State of Orissa, (2006) 33 OCR 489. 4.Learned Addl. Government Advocate supporting the impugned judgment and sentence imposed by the trial Court submitted that the appellant belongs to the State of Jharakhand and since the injured informant identified the appellant in the Court and in the seizure list the appellant had put his signature regarding recovery of money from the appellant, the impugned judgment should not be interfered with and the sentence imposed by the trial Court is to be confirmed. 5.This Court heard the rival submissions of the parties. In the case of Rupa Kumar Sahu’s case (supra), the accused persons were shown by the I.O. to the witnesses before the T.I. Parade. Therefore, this Court held that the evidence furnished by such T.I. Parade is of no consequence. 6.In the present case, as narrated above, P.Ws. 5 and 6 had stated in their cross-examination that they saw the appellant after their arrest at the Police Station and before the T.I. Parade. Therefore, the T.I. Parade report is not considered to be a corroborative piece of evidence to implicate the accused with the crime so also the seizure witnesses examined in this case so far as the amount recovered from the present appellant. From the said reasons, the evidence as to T.I. Parade and recovery made from the appellant does not inspire confidence and the same cannot be acted upon for the purpose of corroboration to the identification of the appellant by P.Ws. 5 and 6. 7.In view of the aforesaid reasons, this Court holds that the charge under Section 394 IPC against the appellant is not established beyond all reasonable doubt and for the reasons conviction and sentence imposed against the appellant cannot be sustained. 8.Hence, this Court sets aside the impugned judgment of conviction and sentence dated 10th August, 2010 passed by the learned Ad hoc Addl. Sessions Judge, FTC, Champua in S.T. Case No.16/14 of 2010. The appellant be set at liberty forthwith, if his detention is not required in any other case. Accordingly, the appeal is allowed. Appeal allowed.