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2016 DIGILAW 1151 (ORI)

Pravasan Padhan v. State of Orissa

2016-11-24

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. The petitioners Pravasan Padhan and Biswambar Naik along with three other co-accused persons faced trial in the Court of learned Assistant Sessions Judge-cum-Chief Judicial Magistrate, Bhawanipatna in Sessions Case No.32/14 of 1997 for offence punishable under section 395 of the Indian Penal Code. The learned Trial Court vide impugned judgment and order dated 06.08.1997 found the petitioners and other co-accused persons guilty under section 395 of the Indian Penal Code and sentenced each of them to undergo R.I. for five years and to pay a fine of Rs.1,000/- (rupees one thousand), in default, to undergo R.I. for one month. The petitioners preferred an appeal in the Court of Session which was heard by learned Sessions Judge, Kalahandi, Nuapada at Bhawanipatna in Criminal Appeal No.42 of 1997 and vide impugned judgment and order dated 04.02.1998, the learned Appellate Court upheld the judgment and order of conviction and the sentence passed by the learned Trial Court and dismissed the appeal, hence the revision. 2. On 21.11.1996 on the basis of the First Information Report lodged by Gandadhar Naik (P.W.1) before the Officer in Charge, Narla Police Station, Narla P.S. Case No.70 of 1996 was registered under section 395 of the Indian Penal Code against unknown persons. It is the prosecution case as per the First Information Report that while the informant and his family members were sleeping in their house, during midnight on 20.11.1996, some unknown persons entered inside their house and committed dacoity and they took away gold ornaments and other articles. The informant mentioned that eight persons had entered inside his house on the occurrence night and their age was in between 40 to 45 years. The informant mentioned about the colour and complexion of the culprits and claimed that he can identify the dacoits. The Officer in Charge of Narla Police Station namely Syed Mujibur Rehaman (P.W.13) took up investigation of the case. He examined the informant and other inmates of the house and neighbours and sent the informant for medical examination. He also seized certain articles from the spot under seizure list Ext.6. He apprehended the petitioners on 30.11.1996 and recovered certain stolen articles and forwarded them to Court on 01.12.1996. He examined the informant and other inmates of the house and neighbours and sent the informant for medical examination. He also seized certain articles from the spot under seizure list Ext.6. He apprehended the petitioners on 30.11.1996 and recovered certain stolen articles and forwarded them to Court on 01.12.1996. On the prayer of the Investigating Officer, the test identification parade in respect of the properties was conducted by P.W.6 Rajendra Panigrahi, J.M.F.C., Madanpur, Rampur on 03.01.1997 in the Court premises and T.I. parade in respect of the suspects was conducted on 04.01.1997 in the District Jail, Kalahandi, Bhawanipatna. The identifying witnesses Jatindra Naik (P.W.2) and Jagajiban Naik (P.W.3) identified the properties and also both the petitioners. After completion of investigation, charge sheet was submitted against the petitioners and others under section 395 of the Indian Penal Code on 28.02.1997. 3. After submission of charge sheet, the case was committed to the Court of Session after complying due committal procedure where the case was transferred to the Court of learned Assistant Sessions Judge -cum-Chief Judicial Magistrate, Bhawanipatna for trial and the learned Trial Court framed charge under section 395 of the Indian Penal Code against the petitioners. Since the petitioners refuted the charge, pleaded not guilty and claimed to be tried, the Sessions Trial procedure was resorted to their establish their guilt. 4. In order to prove its case, the prosecution examined thirteen witnesses. P.W.1 Gandadhar Naik is the informant in the case. Though he has stated about the occurrence but he stated that he did not know the accused persons. P.W.2 Jatindra Naik and P.W.3 Jagjiban Naik are the two sons of the informant who not only stated about the commission of dacoity but also identified the petitioners in the test identification parade and in Court and they also identified the stolen articles in the test identification parade. P.W.4 Akhaya Kumar Naik though stated about the occurrence but he failed to identify any of the accused persons. P.W.5 Gangadhar Naik stated about the commission of dacoity but he has not implicated any of the petitioners. P.W.6 Rajendra Panigraphi was the J.M.F.C., Madanpur, Rampur who conducted test identification parade in respect of the properties on requisition of police in the Court premises of M. Rampur on 03.01.1997 wherein P.W.2 and P.W.3 participated and identified some of the stolen properties. P.W.6 Rajendra Panigraphi was the J.M.F.C., Madanpur, Rampur who conducted test identification parade in respect of the properties on requisition of police in the Court premises of M. Rampur on 03.01.1997 wherein P.W.2 and P.W.3 participated and identified some of the stolen properties. He further stated about the holding of T.I. Parade in respect of the suspects in the District Jail of Kalahandi, Bhawanipatna on 04.01.1997 wherein P.W.2 and P.W.3 participated and identified the petitioners. P.W.7 Dr. Ajay Kumar Bahinipati who was the Medical Officer, Narala P.H.C. examined P.W.1 on police requisition and noticed injury as per the injury report Ext.4. P.W.8 Maguni Charan Mohanty was the Officer in Charge of Tumudibandha Police Station and he stated to have arrested some of the co-accused persons. P.W.9 Prafulla Kumar Rout is a witness to the seizure. P.W.10 Purna Chandra Goud also stated about the seizure of some articles by police. P.W.11 Hemalata Naik is the wife of the informant and she also stated about the commission of dacoity in her house. P.W.12 Ajit Kumar Naik is a formal witness. P.W.13 Syed Mujibur Rehaman was the Officer in Charge of Narla Police station who was the Investigating Officer of the case. The prosecution exhibited seven documents. Ext. 1 is the report of the P.W.1, Exts.2 and 3 are the test identification parade reports, Ext.4 is the report prepared of P.W.7, Exts.5 and 6 are the seizure lists and Ext.7 is the Zimanama. The defence plea of the petitioners was one of denial. 5. The learned Trial Court in the impugned judgment has been pleased to hold that nothing has been brought out in the evidence of P.W.1 and P.W.4 to discard their testimony. It was further held that the statements of P.Ws. 1, 2, 3, 4 and 11 disclose that in the night on 20.11.1996 while they were sleeping in the house, about seven to eight persons entered into the house of P.W.1 and went away with gold ornaments and cash from the house of P.W.1. It was further held that while P.Ws.1, 2 and 3 were sleeping in the house, the dacoity took place in the house of P.W.1. It was further held that while P.Ws.1, 2 and 3 were sleeping in the house, the dacoity took place in the house of P.W.1. Learned Trial Court further held that in view of the statements of P.W.2 and P.W.3, it was found that there was a T.I. parade conducted inside the District Jail, Kalahandi at Bhawantipatna and both the petitioners were identified by P.W.2 and P.W.3 in the T.I. parade which was held on 04.01.1997 by P.W.6. Learned Trial Court did not find any infirmity in the conducting of T.I. parade and accordingly convicted the petitioners under section 395 of the Indian Penal Code. Learned Appellate Court also discussed the evidence on record and confirmed the impugned judgment and order of conviction passed by the learned Trial Court. 6. Mr. Sarada Prasad Dash, learned counsel for the petitioners contended that the evidence of identification is not acceptable and test identification parade was conducted a month after the arrest of the petitioners and in the meantime, the accused persons were produced on three occasions before the Magistrate and there is no material that all possible steps were taken to cover their faces at the time of production in Court and therefore, there was every possibility for the identifying witnesses seeing the suspects-petitioners prior to the conducting of the T.I. parade and therefore, no sanctity can be attached to the T.I. parade. Learned counsel for the petitioners further submitted that the courts below have not considered these vital aspects in proper perspective which has resulted in miscarriage of justice and therefore, it is a fit a case where benefit of doubt should be extended in favour of the petitioners. Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel on the other hand supported the impugned judgments and orders of conviction and submitted that not only the petitioners were identified in the test identification parade by the two inmates of the house of the informant i.e., P.W. 2 and P.W.3 but some property were also seized from the possession of the petitioners which were also identified in the T.I. parade and therefore, there is no infirmity or illegality in the impugned judgments and accordingly, the revision petition should be dismissed. 7. Considering the submissions made by the respective parties, it appears that the First Information Report was lodged by P.W.1 on 21.11.1996 against unknown persons. 7. Considering the submissions made by the respective parties, it appears that the First Information Report was lodged by P.W.1 on 21.11.1996 against unknown persons. The petitioners were arrested on 30.11.1996 and they have produced before the Magistrate on 01.12.1996 in his residence at 6.30 p.m. It was very much necessary on the part of the Investigating Officer to take all possible steps to cover the faces of the suspects-petitioners at the time of production in Court as they were required to be placed in the test identification parade. There is nothing in the order sheet of the learned Magistrate that the petitioners were produced with covered face. It further appears that the two petitioners were further produced before the Magistrate on 13.12.1996 as well as on 23.12.1996 but there is nothing on record that on those two dates, precautions were taken to keep the petitioners under covers. The Test Identification parade was conducted on 04.01.1997. From the order sheet, it appears that a prayer was made by the investigating officer on 06.12.1996 to conduct the T.I. parade but no cogent reason is available from the order sheet as to why steps were not taken at the earliest in conducting T.I. parade. The learned Magistrate directed the I.O. to submit the list of witnesses proposed to participate in the T.I. parade by 07.12.2016 but the I.O. did not comply the same. The T.I. parade was conducted more than a month after the arrest of the accused persons and in the meantime on three occasions, the suspects-petitioners were produced in Court. It is desirable that where the accused persons are unknown and there is necessity of conducting the test identification parade to prima facie establish the identity of the culprits in connection with the crime, the test identification parade should be conducted as soon as possible after the arrest of the accused persons. Human memory starts fading with the passage of time and therefore, both in the interest of the prosecution as well as the suspects, the test identification parade should be conducted at the earliest possible opportunity after the occurrence and all necessary precautions and safeguards are to be effectively taken by the investigating agency so also by the Court so that the identifying witnesses do not get any chance to see the suspects prior to the T.I. parade. The prosecution has to be cautious to ensure that there is no scope for making such allegation. There should be specific mention in the case diary and also in the forwarding reports of the accused persons that after arrest, at the time of detention in police custody as well as at the time of production in Court, the accused persons were kept under covers. The Magistrates before whom the accused persons are produced either at the first instance or afterwards prior to the T.I. parade are required to mention specifically in the order sheet whether the accused persons were under covers or not. If the accused persons complain before the Magistrates that they were shown to the witnesses or their photographs were taken by the police, the same should also be taken note of. The effects of such complain are to be taken care of by the learned Trial Court at the appropriate stage. In the First Information Report, no specific features of any of the accused persons have been mentioned except indicating that they were aged about 40 to 45 years and they were of dark complexion having strong body and were of good height. In view of such materials available on record, when no special identification features of the accused persons have been mentioned in the F.I.R. and when the prosecution has not offered any satisfactory explanation regarding delay in conducting the test identification parade and in absence of any steps being taken by the prosecution to keep the petitioners under covers at the time of their production in Court on three occasions prior to the holding of T.I. parade, I am of the view that the possibility of the identifying witnesses seeing the petitioners beforehand prior to the conducting of the T.I. parade cannot be ruled out and therefore, it is very difficult to place any reliance on the identification evidence led by the prosecution. So far as recoveries of stolen articles are concerned, the Investigation Officer has not stated specifically as to which articles were recovered from which of the petitioners. He simply stated that on 30.11.1996, he apprehended the petitioners as well as two other co-accused persons and recovered stolen articles. The identification report of P.W.6 indicates that P.W.2 identified one iron bhujali and one torch light and P.W.3 identified a pair of shoes and torch light. He simply stated that on 30.11.1996, he apprehended the petitioners as well as two other co-accused persons and recovered stolen articles. The identification report of P.W.6 indicates that P.W.2 identified one iron bhujali and one torch light and P.W.3 identified a pair of shoes and torch light. The I.O. who had retained the seized articles with him produced those articles on the date of conducting of T.I. parade in Court. The articles were not produced in sealed conditions at the time of T.I. parade. Even the articles were not produced for identification in Court during trial. It is the duty of the investigating officer to keep the stolen articles after seizure under sealed covers which are required to be placed in the test identification parade. It should be immediately forwarded to Court. At the time of its retention in the police station, there should be specific mention in the Malkhana register. It is the duty of the Court at the stage of trial to see that the seized stolen articles are placed before the identifying witnesses for identification. Coming to the case in hand, in absence of any specific materials available on record that the iron bhujali, torch light or shoes were recovered from the possession of any of the petitioners and when there is absolutely no material on record as to where those properties were kept after its seizure till those were placed in the test identification parade, no importance can be attached to such identification. Identification in Court is substantive evidence. The purpose of holding T.I. parade is to test and strengthen the trustworthiness of the evidence. When there is no substantive evidence at all as to identification of the properties, the earlier identification parade cannot be of any assistance to the prosecution. 8. In view of the above discussion, it cannot be said that the prosecution has successfully proved its case beyond all reasonable doubt against the petitioners and accordingly, the revision petition is allowed and the impugned judgments and orders of conviction of the petitioners under section 395 of the Indian Penal Code and the sentence passed there under is hereby set aside. It appears that the petitioners were directed to be released on bail on 09.05.2000. Their bail bonds and surety bonds stand cancelled. Accordingly, the criminal revision is allowed. It appears that the petitioners were directed to be released on bail on 09.05.2000. Their bail bonds and surety bonds stand cancelled. Accordingly, the criminal revision is allowed. Let a copy of the judgment be sent to the learned Registrar General of this Court for onward communication to all the learned District and Sessions Judges for their information and necessary action at their end with reference to the observations made who in turn are expected to communicate the same to all the Magistrates/Trial Courts under their respective jurisdiction. A copy of the judgment shall also be sent to the Home Secretary of State of Odisha for communicating the relevant observations to all the police stations.