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2016 DIGILAW 1168 (ORI)

Niranjan Ghada v. State of Orissa

2016-11-29

SATRUGHANA PUJAHARI

body2016
JUDGMENT S. PUJAHARI, J. - This appeal is directed against the judgment of conviction and order of sentence dated 21.07.1992 passed by the learned Addl. Sessions Judge, Balasore in S.T. No.4/42 of 1992. The learned Addl. Sessions Judge, Balasore vide the impugned judgment and order, held the appellants (hereinafter referred to as “the accused persons”) guilty of the charge under Section 457/395 of IPC and sentenced each of them to undergo R.I. for seven years for the offence under Section 395 of IPC and R.I. for two years for the offence under Section 457 of IPC. 2. Prosecution placed a case before the trial Court that on 11/12.09.1991 at about 2 AM in village Delang under the Khaira P.S. in the district of Balasore, the accused persons made criminal trespass into the house of the informant, namely, Basanti Nayak (P.W.5) and committed dacoity and looted the articles which includes the house hold articles and valuables. As her husband then was absent in the house at the time of occurrence, she could not report the matter immediately. She went to the police station after arrival of her husband (P.W.4) on 16.09.1991 and lodged the FIR vide Ext.4. Pursuant to the same, the matter was investigated and during the course of investigation, police found substance in the information lodged and as such placed charge sheet against the accused persons. The learned Magistrate took cognizance of the offences and committed the case to the Court of Sessions as the learned Magistrate found the same to be a case triable by the Court of Sessions. Placing reliance on the case of the prosecution, as it appears, the charges as stated above have been framed against the accused persons. 3. The accused persons having pleaded not guilty to the charge and taken a plea of denial and false implication due to political rivalry inasmuch as they were the supporters of Congress Party and the witnesses were the supporters of Janata Party, the prosecution, as such, examined as many as eight witnesses and also exhibited documents as per list of exhibits in order to establish the charge. However, in their defence, the accused persons did not adduce any evidence. The trial Court on conclusion of the trial, taking into consideration the prosecution case repelling the defence version, returned the judgment of conviction and order of sentence assailed here in this appeal. However, in their defence, the accused persons did not adduce any evidence. The trial Court on conclusion of the trial, taking into consideration the prosecution case repelling the defence version, returned the judgment of conviction and order of sentence assailed here in this appeal. Accused-appellant no.5, namely, Parsuram Sahu having been died in the meantime, this appeal in respect of him has since been abated. 4. Mr. Dhal, the learned counsel appearing for the accused persons submits that in this case there is no credible evidence on record to implicate the accused persons with the crime alleged. He further submits that the trial Court though did not rely on the extra judicial confession said to have been made by the accused-Niranjan Ghada, so also the test identification parade, but solely relying on the disclosure statement which was not worthy of credit since there is no convincing material indicating the fact that the accused persons have given any information with regard to the recovery of alleged stolen articles in concealment and otherwise aforesaid articles proved to be the stolen article in the T.I. parade, the trial Court has held that they are guilty of the charge under Sections 457 and 395 of IPC. Such approach of the trial Court appears to be erroneous particularly when the alleged articles were not recently recovered, i.e., soon after the alleged dacoity. In such premises, Mr. Dhal, the learned counsel for the accused persons submits that the impugned judgment of conviction and order of sentence are liable to be set-aside. 5. Learned counsel for the State, however, drawing the attention of this Court to the evidence on record submits that here in this case there being extra-judicial confession, identification of the accused persons, coupled with the recovery of the stolen property, the trial Court judgment in convicting the accused persons cannot be found fault with. 6. Before addressing the contention of the accused persons, it would be apposite to record here that prosecution in this case brought three circumstances; first one is extrajudicial confession of accused-appellant no.1; second one is T.I. parade of the accused persons; and third one is recovery of stolen property on the basis of the alleged disclosure statement. 7. The record reveals that the extra-judicial confession said to have been made by accused-appellant no.1 has not been accepted. 7. The record reveals that the extra-judicial confession said to have been made by accused-appellant no.1 has not been accepted. According to the trial Court, since there is discrepancy in the accused statement given and also though accused-appellant no.1 is a villager, but indentified while committing dacoity, such extra-judicial confession is not acceptable and, as such, rejected. But, in this appeal the State has placed the same into service to be incriminating to the accused persons. Needless to say that confession means voluntary disclosure of guilt without any threat, coercion. It appears from the evidence of PW.1 that while he was coming to his village by his motorcycle he saw the accused-appellant no.1 and by giving a lift, brought him to the Kothaghar of their village, where being asked, accused-appellant no.1 voluntarily disclosed that he along with other accused persons committed the dacoity. The evidence of P.W. 1 though supports the case, but his statement recorded under Section 164 Cr.P.C. is contrary to his evidence given before the Court inasmuch as in his statement he submitted that while both of them were proceeding in the motorcycle, accused-appellant no.1 confessed before him that he committed the offence. A scrutiny of the findings recorded by the learned trial Court in paragraph-6 of the impugned judgment unequivocally establishes that the learned trial Court did not accept the theory of extrajudicial confession for the reasons recorded by him. For ready reference, it is quoted hereunder:- “Coming to the first, i.e., the extrajudicial confession, it is said by P.W.1 that while he was coming to his village by his motorcycle, he saw accused Niranjan on the way and gave him a lift as the latter was staying in the house of Laxman Jena, a co-villager, as an illatum son-in-law. It is further said by him that on the way near Kothaghara the villagers detained them and asked Niranjan about the occurrence whereupon the latter confessed thereto have committed the crime along with other four accused persons. It is further admitted by him that to this effect he has also deposed before the Magistrte in his statement under Section 164 Cr.P.C. It is interesting to note that his statement before the Magistrate (Ext.1) is completely different. In Ext.1 he has clearly said that while coming on his motorcycle he asked accused Niranjan about the occurrence and the latter confessed his guilt before him.” 8. In Ext.1 he has clearly said that while coming on his motorcycle he asked accused Niranjan about the occurrence and the latter confessed his guilt before him.” 8. Since in this case there are discrepancies and contradictions writ large in the version of the witnesses with regard to confession said to have been made and no other evidence to support the theory of extrajudicial confession and when nothing being there indicating the fact that as to why accused-appellant no.1 made confession reposing confidence on them, this Court is of the view that the trial Court rightly rejected the aforesaid confession. 9. Now coming to the fate of the evidentiary value of the Test Identification Parade (for short “T.I. parade”), in the case in hand, I would like to say that report of T.I. parade does not constitute substantive evidence. Such identification can only be used as corroboration to the statement in Court. The main object of holding T.I. parade during investigation stage is to test memory of witnesses based upon first impression and also to enable to the prosecution to decide whether all or any of them could be cited as eyewitnesses to the crime. It is accordingly considered as a safe rule of prudence to generally look for corroboration of sworn testimony of witnesses in Court. In fact, the purpose of T.I. parade is to test the statement of the witnesses made in Court which constitutes substantive evidence, it being the safe rule that sworn testimony of the witnesses in Court as to identity of the accused requires corroboration in the form of an earlier T.I. parade. But somehow or other though identified in the T.I. parade and if the T.I. parade is vitiated, the substantive evidence in the Court with regard to the identification loses its significance. Keeping the same in mind when the T.I. parade report is addressed, it appears to this Court the accused persons when brought into the Court for T.I. parade, the identifying witnesses were also present there. Such T.I. parade, therefore, looses its significance. Since the identification has been made vulnerable, their subsequent identification in the Court, therefore, loses its significance and cannot be said to be incriminating to the accused persons. The trial Court as such rightly rejected the same. 10. Such T.I. parade, therefore, looses its significance. Since the identification has been made vulnerable, their subsequent identification in the Court, therefore, loses its significance and cannot be said to be incriminating to the accused persons. The trial Court as such rightly rejected the same. 10. Now coming to the next question, as it appears that the trial Court in this case placing reliance on the recovery of the materials made held the accused persons guilty of the charge. But, it would apposite to have a look at the Section 27 of the Evidence Act. In the case of Pulukuri Kottaya and others –vrs.- Emperor, reported in AIR (34) 1947 Privy Council 67, in the context of Section 27 of the Evidence Act have held as follows:- “It is fallacious to treat the “fact discovered” within the Section as equivalent to the object produced. The fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given, must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added “with which I stabbed A” these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.” (emphasis supplied) The aforesaid law has been relied upon in a catena line of decisions by the Apex Court as well as different High Courts of India till date. To our knowledge, the Apex Court has not laid down any law contrary to the aforesaid law laid down by the Privy Council in the case of Pulukuri Kottaya (supra). To our knowledge, the Apex Court has not laid down any law contrary to the aforesaid law laid down by the Privy Council in the case of Pulukuri Kottaya (supra). The above proposition of law in this regard which has been described as a “locus classicus”, set at rest much of the controversy that centered round the interpretation of Section 27 of the Act. The Apex Court in the case of MOHMED INAYATULLAH –VRS.- THE STATE OF MAHARASHTRA, reported in (1976) 1 SCC 828 , interpreting Section 27 of the Act have held as follows: “12. The expression “provided that” together with the phrase “whether it amounts to a confession or not” show that the Section is in the nature of an exception to the preceding provisions particularly Sections 25 and 26. It is not necessary in this case to consider if this Section qualifies, to any extent, Section24, also. It will be seen that the first condition necessary for bringing this Section into operation is the discovery of a fact, albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only “so much of the information” as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded. The word “distinctly” means “directly”, “indubitably”, “strictly”, “unmistakably”. The word has been advisedly used to limit and define the scope of the provable information. The phrase “distinctly relates to the fact thereby discovered” is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. The reason behind this partial lifting of the ban against confessions and statements made to the police, is that if a fact is actually discovered in consequence of information given by the accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirectly or remotely related to the fact discovered.” So also in the case of STATE OF MAHARASHTRA –VRS.- DAMU S/O GOPINATH SHINDE AND OTHERS, reported in (2000) 6 SCC 269 , placing reliance in the case of Pulukuri Kottaya (supra) at paragraphs 35 and 36, the Apex Court have held as follows: “35 The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the Section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor is the most quoted authority for supporting the interpretation that the “fact discovered” envisaged in the Section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect. 36. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which “distinctly relates to the fact thereby discovered”. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Xx xx xx xx xx” Here in this case the properties said to have been stolen were allegedly recovered pursuant to the impugned disclosure statement. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. Xx xx xx xx xx” Here in this case the properties said to have been stolen were allegedly recovered pursuant to the impugned disclosure statement. The learned counsel for the accused persons submits that since no statement in this regard was reduced into writing, the version of the I.O. is not inconformity with the requirements of law. I am unable to accept such contention of the learned counsel for the accused persons. The requirement of law is that an information must be given by the accused and information must be deposed by the police officer before whom such information was given whether it is reduced into writing or not. If it is reduced to writing then such writing being a contemporaneous document shall lend corroboration to the evidence under Section 27 of the Evidence Act deposed to by the Investigating Officer before whom such information was given pursuant to which the fact discovered in this case. So, even if the statement under Section 27 of the Indian Evidence Act is not reduced into writing, the same does not ipsofacto affects the fact discovered. Keeping in mind the aforesaid position of law, when the case in hand is addressed, no doubt, in this case the I.O. deposed that the material objects were discovered on the basis of disclosure statement of accused – Gora Jena and those material objects having nexus with the crime, the trial Court has convicted the accused persons. But, on perusal of evidence, it would go to show that no information said to have been received from accused – Gora Jena was narrated by the Investigating Officer while deposing as P.W.7. Such bald statement does not fit with the requirements of Section 27 of the Indian Evidence Act. There being no other incriminating material to inculpate the accused persons with the offence charged, this Court is of the considered opinion that the impugned judgment of conviction and order of sentence imposed by the trial Court are unsustainable. 11. Therefore, I would allow this criminal appeal and setaside the impugned judgment of conviction and order of sentence passed against the accused persons. Consequently, the accused persons are acquitted of the charge. 11. Therefore, I would allow this criminal appeal and setaside the impugned judgment of conviction and order of sentence passed against the accused persons. Consequently, the accused persons are acquitted of the charge. The accused persons being on bail, their bail bonds stand cancelled and surety discharged. LCR received along with the copy of this judgment be returned forthwith. Appeal allowed.