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2014 DIGILAW 123 (ORI)

State of Orissa v. Hazari Pradhan

2014-02-14

D.DASH

body2014
JUDGMENT Being aggrieved by the order of acquittal passed by the learned Assistant Sessions Judge, Nayagarh in S.T. Case No.26/427 of 1993 acquitting the respondents from the charge U/s. 457/395/IPC read with Section 9(B) of Indian Explosive Substances Act this appeal has been filed by the State. 2.Short case of the prosecution is that on the intervening night of 18/19.3.93 the respondents receiving information that informant (P.W.1) had come to his house at Akhuapadar from his place of service Kanpur where he was serving as a instrument fitter in the Indian Air Force and also that he had brought huge amount of cash with him, forced their entry to the house after breaking open the door made up off bamboo. At that relevant night P.Ws.1’s father and elder brother were absent and his sister in law was sleeping with her children in a room, when he, his mother, sister and nephew were sleeping on the verenda. It is said that the culprits after entering into the house tied the hands of P.W.1, his mother and nephew by means of napkin and then by giving threat at the point of knife, put them inside the room where informant’s sister in law was sleeping. There they demanded that the informant should pay them cash of Rs.1,00,000/-. In spite of the threat the informant denied to have brought any cash with him and asked them to take away whatever cash he had. The respondents then broke open the trunk and removed cash of Rs.25,000/-, gold ornaments weighing about two bharies and silver ornaments weighing abut 12 bharies. It is also stated that the culprits had attempted to snatch away nose ring from the mother of the informant which was protested by the informant and then the mother of the informant was given a blow by means of torch light causing simple injury. Lastly the Culprits keeping the family members of the informant in one room, bolted it from out side and left the spot. F.I.R. Ext.1 was lodged at P.S. about the commission of alleged dacoity and other offences by giving the identifications of two of the culprits to have been wearing lungi and rest wearing half pant indicating age of one to be 50, of dark in complexion and other to be within the age group of 25. F.I.R. Ext.1 was lodged at P.S. about the commission of alleged dacoity and other offences by giving the identifications of two of the culprits to have been wearing lungi and rest wearing half pant indicating age of one to be 50, of dark in complexion and other to be within the age group of 25. The I.O. on registration of the case visited the spot, prepared the spot map and also requisitioned the service of sniffer dog. During dog tracking the house of the respondents were pointed out tracing from the house of the informant where things were lying scattered and were seized. Mother of the informant and the nephew were also medically examined. The respondents being arrested on 28.3.93 were put to T.I. parade on 06.04.1993 and there informant’s mother P.W.7 identified the respondents to be among the culprits. Ultimately, charge sheet having been submitted, the respondents faced trial for the above offences. During trial the respondents banked upon the plea of denial and false implication in further stating that they were known to the informant and his family members. 3.Prosecution in this case examined 9 witnesses and among them the most important are P.W.1 the informant, P.W.2 the nephew and P.W.7 mother of informant. P.W.5 is the Magistrate, who held the T.I. parade and the doctor who had examined P.W.2 and 7 has also been examined as P.W.6. Other witnesses are the I.Os. The respondents have also examined one witness in their defence as D.W.1. 4.Learned Addl. Government Advocate submits that despite of overwhelming evidence on record with regard to the identification of the respondents, the trial Court on some flimsy ground has discarded said evidence and held the evidence to be highly doubtful and not acceptable. According to him the evidence of P.W.7 with regard to the identification of the respondents in the T.I. parade providing corroboration to the evidence of identification in Court ought not to have been rejected from consideration. It is also submitted that her evidence is not having any basic infirmities. It is further submitted that the trial Court has not been justified in saying that the T.I. parade has lost it’s significance and said evidence as valueless. All the reasons as regard the non-acceptability of theory of light, the possibility of respondents being viewed at public, there being no necessity for holding the T.I. parade when the respondents are known are unsustainable. All the reasons as regard the non-acceptability of theory of light, the possibility of respondents being viewed at public, there being no necessity for holding the T.I. parade when the respondents are known are unsustainable. Therefore, it is his submission that the prosecution in the present case has proved the commission of offence U/s.457/395, IPC by the respondents beyond reasonable doubt. So the order of acquittal is attacked as unsustainable in the eye of law being based on perverse appreciation of evidence leading to miscarriage of justice. 5.Learned counsel appearing for the respondent refuting the above submission contends that the trial Court in the present case having made a thorough scanning of the evidence let in by the prosecution has rightly arrived at a conclusion that the T.I. parade has lost it’s value and has rightly doubted and discarded the evidence of the prosecution witnesses so as to fashion the guilt upon the respondents. It is also his submission that the view which has been taken by the lower Court can not be said to have been the out come of perverse appreciation of the evidence leading to miscarriage of justice stairing for interference in this appeal. 6.Keeping in view the rival submission, in mind it is felt proper to first of all to take note of the scope of this appeal in exercising the power for interference with an order of acquittal. It has been held in case of “State of Punjab v. Madan Mohan Lal Verma”, (2013) 56 OCR (SC)-425 that :- “It is a settled legal proposition that in exceptional circumstances, the appellate Court for compelling reasons should not hesitate to reverse a judgment of acquittal passed by the Court below, if the findings so recorded by the Court below are found to be perverse, i.e. if the conclusion arrived at by the Court below are contrary to the evidence on record; or if the Court’s entire approach with respect to dealing with the evidence is found to be patently illegal, leading to the miscarriage of justice; or if its judgment is unreasonable and is based on an erroneous understanding of the law and of the facts of the case. While doing so, the appellate Court must bear in mind the presumption of innocence in favour of the accused, and also that an acquittal by the Court below bolsters such presumption of innocence.” So now let me proceed to examine the evidence on record so as to find out as to if the order of acquittal needs interference within the above parameters. 7.Admittedly, the incriminating evidence against the respondents is that they were identified in the T.I. parade and then in the Court to have been present among others in committing the crime. So for the purpose, let us straight way go to evidence of P.W.7 who is the lone witness who had identified the respondents in the T.I. parade and also in the Court. The prosecution therefore projects that the identification in the Court receiving corroboration from the T.I. parade is acceptable and complicity of the respondents has to be found from this evidence alone which the trial Court on a perverse appreciation has discarded. The incident is said to have taken place during night. Now as per the evidence of P.W.7 she identified the respondents with the help of a lantern burning in the room where her daughter-in-law was sleeping and also with the help of street light which was there outside being put on. The street light theory gets belied by the evidence of I.O. and that also finds support from the evidence of D.W.1 that the entire village of Akhuapadar was not electrified. This fact has also not been stated either in the F.I.R. or in the statement of the witnesses recorded U/s. 161, Cr. P.C. when no doubt it is an important aspect touching the identification that as to how the identification could be made and this material omission amounts to contradiction which can not be lightly brushed aside. In such state of affairs in evidence, the question identification of respondents by means of street light in front of the informant’s house is not believable. Next as regards identification with the help of lantern, P.W.7 has not stated the same before the Magistrate holding the T.I. parade and rather her statement before the Magistrate is that she had identified the accused persons because of flash of the torch light and as electric light was very much there. The presence of electric light is not believable as stated above. The presence of electric light is not believable as stated above. During trial it is stated that it was because of light coming from the lantern burning in the room she had the occasion to identify. In view of above infirmities, the identification being the most important and only issue here such evidence creates grave doubt in the mind as to how there remained the possibility of identification. Therefore, the trial Court is found to have rightly discarded the same by appreciating the said evidence properly and no fault is found with the same much less to say that there surfaces any compelling reason to differ with the same. Moreover, herein the informant (P.W.1) has not participated in the T.I. parade and no reason has been assigned for the same. The evidence also remains that the respondents are residents of village Balabhadrapur at a distance of one kilometer from village Akhuapadar where the informant and his family members were residing in the house and that one brother of one of the respondent married in the village Balikuda which is the native village of the informant where-from they have migrated to village Akhuapadar about 10 years prior to his deposing in Court. Further it is there in the evidence of P.W.1 that it is his father who had acted as mediator in the said marriage. From this it is clear that the family of the informant knew respondents earlier and that has also been admitted in clear terms by P.W.1 that they had known the names prior to the incident. P.W.7 the mother of the informant has also so stated. Thus, in that situation the holding of the T.I. parade at the instance of the I.O. itself raises grave suspicion in the veracity of the prosecution case which goes to shake its substratum. More-so when this is the state of affair P.W.1 having lodged the F.I.R. without giving the name of anybody that too on the next morning further fortifies the doubt. More-so when this is the state of affair P.W.1 having lodged the F.I.R. without giving the name of anybody that too on the next morning further fortifies the doubt. Certainly this stands as a suspicious feature which cannot at all be brushed aside when in that connection the explanation during trial to the effect that the names were not given in the F.I.R. because of the threat given by the culprits is not acceptable when he himself again says that although he had presented the F.I.R. mentioning the names of the respondents to the police, the police officer asked him to give a summary report so there remained the omission. Such explanation is found to be wholly unworthy of acceptance more particularly in the absence of any other corroborative evidence tending to show that the investigating officers have conducted the investigation with dishonest intention or for any other reason to save the respondents and protect them. That is not seen from any such evidence or conduct of the Investigating Officers. So, the evidence of the informant (P.W.1) remains highly doubtful with regard to the complicity of the respondents and that the Court below has rightly so held. Non-mentioning of the names of the culprits in the FIR ordinarily is not taken to be fatal to the prosecution case in case of dacoity and other such cases where culprits are not known or there was no such occasion by then for the victims of the crime to know but in the present state of affair in the evidence such non mentioning pushes grave doubt on the complicity of the respondents as projected by the prosecution into cloud. The other aspect that has also been considered by the trial Court rendering the identification as useless as in the facts and circumstances of the case the possibility of the respondents being viewed by the public is not ruled out. The respondent being arrested on 28.03.1993, T.I. parade has been held after two dates of remand. The jail facility being not there, the respondents were being taken to Nayagarh jail at a distance of 50 k.m. and were brought in buses. Coupled with same there remains the evidence of I.O. that he had not taken any such step to keep the respondents out of view of others at the time of their forwarding to the Court. The jail facility being not there, the respondents were being taken to Nayagarh jail at a distance of 50 k.m. and were brought in buses. Coupled with same there remains the evidence of I.O. that he had not taken any such step to keep the respondents out of view of others at the time of their forwarding to the Court. So the Court below cannot be said to have committed any grave error in giving the said aspect its due weightage by considering with other features as those emanate from evidence for holding the failure on the part of the prosecution to prove its case beyond reasonable doubt. In view of all these above, the evidence let in by prosecution on being independently analyzed and assessed do not persuade this Court to a conclusion other than that what the trial Court has concluded. The appreciation of evidence as well as the finding arrived at on the basis of the same by the trial Court cannot thus be said to be perverse ignoring the evidence on record on flimsy grounds resulting miscarriage of justice. 8.In the result the appeal merits no acceptance and is accordingly dismissed. Appeal dismissed.