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2017 DIGILAW 1055 (ORI)

Mitu @ Debaraj Jena v. State of Odisha

2017-09-14

D.DASH

body2017
JUDGMENT : 1. The appellant from inside the jail has preferred this appeal challenging the judgment of conviction and order of sentence dated 20.12.2014 passed by the learned 2nd Addl. Sessions Judge, Cuttack in S.T. Case No. 16 of 2013. By the said judgment, the appellant has been found guilty for commission of offence under Section 304-II of IPC which has been followed by the order directing the appellant to undergo rigorous imprisonment for 10 (ten) years and to pay fine of Rs. 5000/-(Rupees five thousand), in default to undergo further period of rigorous imprisonment for one year. 2. Prosecution case briefly stated is that on 22.05.2012 during noon hours, Debendra Behera (deceased) who was then serving as Driver in a truck had gone to the village Gopalpur carrying the truck loaded with stones as directed by Prasanta Kumar Prusty of village Tentulia, Banki (P.W. 2). When the truck reached the village, the deceased parked the truck at a place for unloading of the stones. It is stated that at that time, the appellant suddenly arrived there, abused the deceased and all of a sudden assaulted him by means of a wooden plank causing bleeding injuries on his right hand. The labourers of the truck though intervened in preventing the appellant from dealing further blows upon the deceased. The appellant ultimately succeeded in dealing another blow with force on the head of the deceased resulting his fall by sustaining injuries which made him unconscious. The further case of the prosecution is that after the incident, the appellant fled away from the sport and the deceased was shifted to Athagarh hospital where he was declared dead. Brother of the deceased (P.W.2) having lodged the F.I.R. at Banki P.S., necessary case was registered and on completion of investigation, charge-sheet having been submitted against the appellant, on commitment of the case finally he faced the trial being charged for commission of offence under section 302 of IPC. The appellant has taken the plea of complete denial. During trial, the prosecution when has examined in total eleven witnesses besides proving the F.I.R. Ext. 1, postmortem report Ext. 7, spot map, Ext. 10 and other documents such as the seizure list showing the seizure of incriminating materials, zimanama etc, the defence has examined none. 3. The appellant has taken the plea of complete denial. During trial, the prosecution when has examined in total eleven witnesses besides proving the F.I.R. Ext. 1, postmortem report Ext. 7, spot map, Ext. 10 and other documents such as the seizure list showing the seizure of incriminating materials, zimanama etc, the defence has examined none. 3. Learned trial court on appreciation of evidence first of all has rightly has held that the death of the deceased Debendra Behera was homicidal in nature resulting from out of injuries inflicted on him as deposed to by the doctor, P.W. 10 who had conducted post-mortem examination and noticed the lacerated injuries on the right side of the forehead, just above his right eyebrow, contusion on the right side cheek, just below the right eye; lacerated injury on the posterior aspect of the scalp and swelling on linear thenar eminence of right palm on the base on right thumb. Above conclusion is not challenged in the present appeal. 4. Miss Kananbala Roychoudhury, the learned counsel appearing on behalf of the appellant without going to question the happening of the incident as has been stated by the prosecution, attacks the finding of the trial court with regard to the authorship of the injuries sustained by the deceased. According to her, the appellant cannot be attributed as the author of those injures as to have dealt all those blows upon the deceased and thus, to have caused the death thereof. It is, further submitted that the learned trial court in this connection has not properly appreciated the evidence and has committed grave error by accepting evidence of all those witnesses who had no prior acquaintance with the deceased having no occasion to meet him somewhere at any earlier point of time. According to her, merely because they have identified the appellant in Court, the same ought not to have been believed. It is submitted by her with vehemence that in this case, there having been no test identification parade, the trial court ought not to have accepted the evidence of identification of the appellant by the witnesses in Court after a lapse of a more than a year in the absence of any corroboration. It is submitted by her with vehemence that in this case, there having been no test identification parade, the trial court ought not to have accepted the evidence of identification of the appellant by the witnesses in Court after a lapse of a more than a year in the absence of any corroboration. He also points out that the prosecution in this case having not examined any of the witness from the village where the incident took place nor having come forward with any explanation in that regard, the trial court ought to have drawn an adverse inference on the score of the evidence concerning identification and thus under no circumstance it ought to have been held that it is the appellant who is the author of the assailant. For all these above, she urges that the impugned judgment of conviction and order of sentence are thus, liable to be set aside. 5. Mr. Sidharth Sankar Mohapatra, learned Addl. Government Advocate submits that the evidence of identification of the appellant as have been placed from the side of the prosecution have been rightly taken as the basis for the finding the appellant to be the assailant and that the author of the injuries found on the person of the deceased ultimately leading to his death is none other than the appellant. She also submits that the trial court has assigned very good reasons as to why such evidence from the side of the prosecution evidence on the score of identification of the appellant to be the author of the crime is acceptable. With the above, it is submitted that the judgment of conviction and order of sentence impugned in this appeal are unassailable. 6. Undoubtedly, the turn lies upon prosecution to establish the complicity of the appellant beyond reasonable doubt by leading acceptable evidence. In the present case, the question arises as to whether the trial court has rightly accepted the evidence of the prosecution witnesses by believing their version as regards the identification of the appellant by them during trial and thus in concluding that it is the appellant who had dealt those fatal blows upon the deceased. 7. In order to appreciate the rival submission, it is now necessary to make a survey over the prosecution evidence on the score of identification. 7. In order to appreciate the rival submission, it is now necessary to make a survey over the prosecution evidence on the score of identification. P.W. 1 is the person who is the owner of the truck and has the stone business. It is stated that when he had been to the house of one Dipak Jena of that village, he heard some hullah and when he rushed near the truck he saw the deceased to have already sustained bleeding injuries on his right hand. When he asked the labourers present, they disclosed that the appellant picked up quarrel and assaulted the deceased. The witness is not an eye witness to the occurrence and he has heard everything relating to the incident from the labourers present there. He does not also say to have known the appellant earlier. He is a man of village Tentulia under the jurisdiction of Banki P.S. whereas the appellant is a permanent resident of village Sahagaon-Gopalpur. Now this witness stating that the labourers told him that the appellant had assaulted the deceased is not acceptable as he had never seen the appellant earlier and as to how he identified the appellant in court is shrouded with mystery. Next coming to the evidence of P.W. 2, who is the brother of deceased, it is seen that he arrived directly at the hospital after being informed about the occurrence by the P.W. 1 who on his arrival narrated the evidence before him saying that it is the appellant who had assaulted the deceased to death by causing injuries on his head by means of a split wood. The witness identifying the appellant in court is again not acceptable. He is not saying to have earlier known the appellant and he is the resident of village Champia situated under the jurisdiction of Khuntuni P.S. which he has stated to be at a distance of 25 kms. apart from the village where the occurrence took place. He has clearly stated in cross-examination to have never visited the village Sahagaon-Gopalpur, where the incident is said to have taken place. Thus, evidence of P.W. 1 and 2 have nothing to do in the matter of the establishment of the case of the prosecution that it is the appellant who had assaulted the deceased to death, resulting from the injuries caused by the appellant by means of split would. Thus, evidence of P.W. 1 and 2 have nothing to do in the matter of the establishment of the case of the prosecution that it is the appellant who had assaulted the deceased to death, resulting from the injuries caused by the appellant by means of split would. P.W. 3 is a labourer; he claims to have gone to that village with the deceased in the truck. He has been examined on 29.11.2013 and the incident had taken place on 22.05.2012 i.e. one and half year before. Though he has identified the appellant in court and has attributed him in causing head injuries on the deceased, during cross-examination, he has clearly stated to have no prior acquaintance with the appellant. He is also a man of village Kulailo under Athagarh P.S. which is away from the village of the appellant. The evidence of P.W. 4 who is another labourer run in the same vain who has further added to have not known the name of the appellant till the date, he deposed in Court. The evidence of P.W. 6 also goes in the same direction and he is a co-villager of P.W. 4 and 5. P.W. 7, another co-villager has also stated in that direction. What it is found that the evidence of these above witnesses, with regard to identification of the appellant and the role as to have been played in causing the injuries upon the deceased have been accepted by the trial court. The evidence of P.W. 1 and 2 independently have no value in so far as identification is concerned and that those can only provide some corroboration to the evidence of above witnesses. P.W. 7 has not identified the appellant. It is the evidence of Investigating Officer, P.W. 11, that during investigation, he had ascertained that the appellant had neither the acquaintance with the deceased nor with the witnesses who have been examined as labourers to be present at the time of occurrence. He has stated to have taken no steps in course of investigation for holding of test of identification of parade for identification of the appellant. It is seen from the F.I.R., Ext. 1 that it is a named one which has been lodged by the P.W. 2 and admitted in evidence and marked as Ext. 9. He has stated to have taken no steps in course of investigation for holding of test of identification of parade for identification of the appellant. It is seen from the F.I.R., Ext. 1 that it is a named one which has been lodged by the P.W. 2 and admitted in evidence and marked as Ext. 9. In view of the evidence of P.W. 2 as has already been discussed, this very appearance of the name of the appellant in the F.I.R. really creates a doubt in the mind as to wherefrom the name could be collected for being mentioned therein and that is not properly explained. The trial court in this connection stating the settled position of law holding the field with reference to the decision as noted at page-8 and 9 of the judgment has ultimately held as under:- “In the instant case, admittedly, the occurrence took place on the broad day light on the village road and the accused belonged to that particular village and the people of that village know him very well. It is brought out in the cross-examination that the informant and the deceased were not strangers to the villagers of the spot village. It is not brought out in the cross-examination by the State Defence Counsel as to how the witnesses gathered information about the identity of the accused before implicating him in this case. It is also not suggested to any of the witnesses that they have wrongly identified the accused and the present accused was not the same person who had committed the crime. So, in view of the aforesaid materials on record coupled with the aforesaid dictum of the Hon’ble Apex Court, this court finds no reason to disbelieve the testimonies of eye witnesses in the court can be relied upon as substantive evidence and I do not feel hesitant to rely such identification of the accused by the eye witnesses in the court as substantive evidence. Accordingly, the submission raised by the learned State Defence Counsel is not accepted.” 9. It is the settled position of law that the evidence of identification in the court is substantive evidence and it is not that in all case such identification of an accused at the time of trial for the first time is not acceptable. Accordingly, the submission raised by the learned State Defence Counsel is not accepted.” 9. It is the settled position of law that the evidence of identification in the court is substantive evidence and it is not that in all case such identification of an accused at the time of trial for the first time is not acceptable. However, when the accused and the witnesses are not known to each other having no prior acquaintance and the witnesses had seen the accused once at the time of the incident as per their own admission, the evidence of said witnesses with regard to the identification of the accused is from its very nature inherently of a weak character. The purpose of prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions; while, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such for other corroboration. The identification parade belongs to the stage of investigation and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The position remains that the weight to be attached to that identification evidence is a matter rests with the court, in the facts and circumstances of the case. In appropriate cases, it may be accept even without insisting the corroboration from the prior identification through the parade. 10. The position remains that the weight to be attached to that identification evidence is a matter rests with the court, in the facts and circumstances of the case. In appropriate cases, it may be accept even without insisting the corroboration from the prior identification through the parade. 10. Averting to the evidence available in the present case with regard to identification of the appellant as already dissected above, I am unable to concur with the reasons given by the trial court for accepting the evidence of identification of the appellant for the first time in court after lapse of about one and half year in the absence of any such acceptable reason by them for having so memorised or in view of any such special feature had been so marked by them which they find at the time of tendering evidence. The incident having taken place in the village of the appellant and the people of that village having known him very well as stated by trial court is of no significance and in this case, the prosecution during trial has not examined any of the co-villagers of the appellant. When it is bounden duty of the prosecution to prove the authorship of the crime, here in this case, the trial court is not right in placing the blame upon the learned State Defence Counsel for not bringing out in the cross-examination as to how those witnesses gathered information about the identity of the appellant for implicating him therein, that was not at all necessary. The trial court is not found to be right in again putting the blame for the absence of any suggestion to those witnesses that they have wrongly identified the appellant. Having carefully gone through evidence of the prosecution witnesses who had no prior acquaintance with the appellant and are also native of different villages in the absence of any evidence to the effect that they had even met the appellant once prior to the incident during the time of their prior visit to the village in that truck, I feel it wholly unsafe to rely upon their testimony with regard to the identification of the appellant as the author of the crime. In that view of the matter, I hold that the prosecution has not established its case beyond reasonable doubt in proving the complicity of the appellant in causing head and other injuries upon the deceased resulting his death. For the aforesaid, the impugned judgment of conviction and order of sentence are liable to be set aside. 11. In the result, the appeal stands allowed. The impugned judgment of conviction and order of sentence are hereby set aside. The appellant be set at liberty forthwith in case his detention is not so warranted in connection with any other case. L.C.R. be sent back forthwith along with a copy of the judgment.