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2017 DIGILAW 1071 (ORI)

Guli Behera v. State of Orissa

2017-09-16

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The appellant in Jail Criminal Appeal No.13 of 2002 Guli Behera and the appellants in Criminal Appeal No.119 of 2002 Gariba @ Girisha Naik and Bana Palai @ Banabasi Polai faced trial in the Court of learned Asst. Sessions Judge, Bhanjanagar in S.C. No.4 of 1997 (S.C. 25/97 GDC) for offences punishable under sections 364/34, 307/34, 323/34, 506-II/34, 387/34 of the Indian Penal Code read with section 25(1-A) of the Arms Act. The learned Trial Court vide impugned judgment and order dated 05.03.2002 acquitted the appellants of the charges under sections 307/34 of the Indian Penal Code and section 25(1-A) of the Arms Act but found them guilty under sections 364/323/387/506-II/34 of the Indian Penal Code and sentenced each of them to undergo R.I. for seven years and to pay a fine of Rs.5000/-(rupees five thousand) each, in default of payment of fine, to undergo further R.I. for one year under sections 364/34 of the Indian Penal Code; sentenced to undergo S.I. for six months for the offence under sections 323/34 of the Indian Penal Code; sentenced to undergo R.I. for three years for the offence under sections 506-II/34 of the Indian Penal Code and sentenced to undergo R.I. for five years and to pay a fine of Rs.2000/-(rupees two thousands) each, in default of payment of fine, to undergo further R.I. for one year for the offence under sections 387/34 of the Indian Penal Code and the sentences were directed to run consecutively. Since the jail criminal appeal and criminal appeal arise out of a common judgment, with the consent of the parties, the appeals are heard analogously and disposed of by this common judgment. 2. The prosecution case, in short, is that on 21.01.1996 some school students along with their parents and school teachers of Arabinda Sikhyaniketen of Gobara had gone to Daha Irrigation Project for a picnic. During such picnic, the students and some parents and some teachers were staying in the irrigation I.B. and taking tiffin. Some other parents including the informant Dr. Panu Naik (P.W.14) had been to a nearby village to arrange chicken for the dinner. In their absence, while the children were loitering in front of the said I.B., some persons suddenly came there in motor cycles and forcibly took away Laxmikanta Naik (P.W.19), son of the informant after assaulting him. Some other parents including the informant Dr. Panu Naik (P.W.14) had been to a nearby village to arrange chicken for the dinner. In their absence, while the children were loitering in front of the said I.B., some persons suddenly came there in motor cycles and forcibly took away Laxmikanta Naik (P.W.19), son of the informant after assaulting him. While those persons were taking away P.W.19 in a motor cycle, the informant and other parents found them on the way while they were returning from a nearby village after purchase of chicken. When the informant protested the action of those culprits, they assaulted the informant by fist blows and pointed a revolver on his head and directed him to pay a sum of Rs.1,00,000/-(rupees one lakh only) by the next day at 10.30 a.m. in order to get back his son. Thereafter, finding no other way, the informant and other parents came back to the picnic site and P.W.19 was taken away by the culprits towards Indragada. Out of those culprits, the informant could able to identify one as Kadar Naik of village Basudevpur. When the picnic party returned back to Gobara, on the way the informant lodged a written report in writing at Bhanjanagar police station regarding the occurrence. 3. Basing upon such first informant report, Bhanjanagar P.S. Case No.17 of 1996 was registered on 21.01.1996 under sections 364/307/323/506/387/34 of the Indian Penal Code read with section 25(a) of the Arms Act. P.W.20 Sachidananda Mohapatra, Inspector in charge of Bhanjanagar police station took up investigation of the case. During course of investigation, the I.O. examined the informant, visited the spot, examined some witnesses and came to know that the informant had already paid Rs.65,000/-(rupees sixty five thousand only) to the culprits and accordingly, his son Laxmikanta (P.W.19) was released. During further investigation, the I.O. could able to seize some of the loot amount which the culprits had paid to different persons of village Baibeli in order to purchase rations. The I.O. recovered a motor cycle from Banabasi Polai which was subsequently detected to be a stolen motor cycle with reference to Baliguda P.S. Case No.3 of 1996 under section 379 of the Indian Penal Code. The appellant Gariba Naik and co-accused Kalu Naik were arrested on 31.01.1996 and the I.O. also arrested appellant Banabasi Palei and from appellant Gariba Naik, he recovered one gun and some cash. The appellant Gariba Naik and co-accused Kalu Naik were arrested on 31.01.1996 and the I.O. also arrested appellant Banabasi Palei and from appellant Gariba Naik, he recovered one gun and some cash. The gun was sent for ballistic expert examination and after obtaining the report and sanction order of the District Magistrate, Ganjam, charge sheet was submitted against the appellants and co-accused Kalu Naik, Rabindra Naik, Md. Sarif, Raju Sahu, Dillip Naik, Kedar Naik and Tuku Polai. Out of the aforesaid accused persons, the learned S.D.J.M., Bhanjanagar committed the appellants and co-accused Md. Sahib to the Court of Session to face trial. The co-accused Md. Sahib escaped from the local Spl. Sub-Jail, Bhanjanagar for which the sessions case was split up against him. 4. In order to prove its case, the prosecution has examined as many as twenty witnesses and has proved eleven documents. P.Ws. 1, 2, 3, 4, 6, 12 and 15 are the eye witnesses to the occurrence. P.W.14 is the informant, P.W.19 is the victim boy, P.W.18 is a police officer who stated to have taken zima of the motor cycle seized in connection with another case and P.W.20 is the Investigating Officer of this case. The remaining witnesses are all seizure witnesses. Exts.1, 2/1, 3/1, 5/1 and Ext.8 are the seizure lists, Ext.6 is the zimanama, Ext.7 is the F.I.R., Ext.9 is the forwarding letter of the S.D.J.M., Bhanjanagar for sending of seized revolver to the S.F.S.L., Bhubaneswar, Ext.10 is the report of the S.F.S.L., Bhubaneswar and Ext.11 of the office coy of the sanction order of the District Magistrate, Ganjam. 5. During trial, P.Ws.1, 2, 4, 5, 8, 9, 10, 13, 16 and 17 did not support the prosecution case for which they were declared hostile. The conviction of the appellants is based on the evidence of six witnesses i.e. P.W.3 Bhikari Charan Gouda, P.W.6 Kishore Chandra Panda, P.W.11 Smt. Damayanti Nayak, P.W.12 Rajendra Rout, P.W.14 Dr. Panu Nayak and P.W.19 Laxmikanta Nayak. 6. P.W.3 Bhikari Charan Gouda has stated that the accused persons who were standing in the dock were among the six persons, who kidnapped Laxmidhara Nayak (P.W.19). Panu Nayak and P.W.19 Laxmikanta Nayak. 6. P.W.3 Bhikari Charan Gouda has stated that the accused persons who were standing in the dock were among the six persons, who kidnapped Laxmidhara Nayak (P.W.19). In the cross-examination however he has stated that first he saw the goondas at a distance of 200 cubits away from him and the motor cycle of the goondas were moving in a high speed and for the first time he was seeing the accused persons in the dock on the date of his deposition and prior to his identification in the dock, he had also seen them on the verandah of the Court. He further stated that P.W.14 Dr. Panu Nayak who had come to the Court on that day, identified the accused persons standing in the Court on the verandah of the Court to be the culprits just prior to his examination. P.W.6 Kishore Chandra Panda has stated that the four accused persons standing in the dock were among the six persons who were taking the boy in two motor cycles and in the cross-examination, he has stated that for the first time, he saw the accused persons standing in the dock on the date of occurrence and for the second time, he was seeing them on the date of his deposition. P.W.11 Smt. Damayanti Nayak who is the mother of the victim has stated that the four accused persons standing in the dock were among the culprits along with Kedar Naik and in the cross-examination she has stated that she saw the four co-accused persons standing in the dock for the first time at Daha on the date of occurrence and for the second time in the Court on the date of her deposition. P.W.14 Dr. Panu Nayak who is the father of the victim has stated that the four accused persons standing the dock were among the culprits who had kidnapped his son and in the cross-examination, he has stated that two days after the occurrence, the culprits were apprehended by police and they were taken to village Gobara which is his village. P.W.19 Laxmikanta Nayak, the victim has stated that he could not remember if the accused persons in the dock were there at the spot or not. P.W.19 Laxmikanta Nayak, the victim has stated that he could not remember if the accused persons in the dock were there at the spot or not. P.W.20 Sachidananda Mohapatra is the investigating officer who has stated that during course of investigation, after arrest of appellant Garib and Kalu, he had not requested the Court for T.I. parade by the informant and by his son or by other witnesses who had occasioned to see the occurrence of kidnapping of the son of the informant. P.W.20 tried to explain that the informant, his son and other witnesses did not agree to co-operate the police for any T.I. parade of the suspects but he admitted that in the case diary, he has not mentioned about such aspects. 7. Mr. Manoranjan Padhi who was appointed as the counsel for all the three appellants in the two criminal appeals was supplied with the paper book. He placed the impugned judgment, evidence of the witnesses and contended that the identification of the appellants by the witnesses for the first time in Court without being tested by prior T.I. parade should not be accepted and all the appellants should be given benefit of doubt. Mr. Prem Kumar Patnaik, learned Addl. Government Advocate on the other hand supported the impugned judgment and submitted that since number of witnesses have identified the appellants in Court to have participated in the occurrence, therefore, the identity cannot be doubted and thus the learned trial Court has not committed any illegality in accepting their evidence. 8. Admittedly in this case, the test identification parade has not been conducted. The reason which has been offered by the investigating officer regarding non-corporation of the informant, his son and other witnesses to participate in the T.I. parade has not been mentioned in the case diary. No such suggestion has been given by the prosecution to any of the witnesses who identified the appellants in Court for the first time that in spite of request of the investigating officer, they did not co-operate for holding T.I. parade in respect of the suspects. Nothing in writing has been obtained from the witnesses regarding their non-inclination to participate in the T.I. Parade. There is no evidence that the accused persons refused to take part in the test identification parade. It appears that the occurrence in question took place on 21.01.1996. Nothing in writing has been obtained from the witnesses regarding their non-inclination to participate in the T.I. Parade. There is no evidence that the accused persons refused to take part in the test identification parade. It appears that the occurrence in question took place on 21.01.1996. The first information report (Ext.7) was lodged by P.W.14 on the very day. The appellants Guli Behera and Bana Palei @ Banabasi Palei were arrested on 24.01.1996 and they were forwarded to Court on 25.01.1996. Similarly the appellant Gariba @ Girisha Naik was arrested on 31.01.1996 and he was forwarded to Court on 01.02.1996. The charge sheet was submitted on 23.04.1996. Therefore, there is absolutely no satisfactory explanation offered by the prosecution for non-holding of the T.I. parade and I am not inclined to accept the explanation offered by the investigating officer that prayer for T.I. parade was not made after the arrest of the appellants as the informant, his son and other witnesses did not agree to co-operate the police for any T.I. parade of the suspects. On perusal of the evidence of the witnesses who identified the appellants in Court, it appears from the evidence of Dr. Panu Naik (P.W.14) who is the informant in the case that two days after the occurrence, the culprits were apprehended by the police and the culprits were taken to village Gobara which is his own village. There is no material on record that after the arrest of the accused persons, they were kept under covers so that nobody can see their faces and in that manner they were taken to village Gobara. Therefore, the possibility of the accused persons being shown to the witnesses cannot be ruled out. P.W.3 though identified the appellants in Court but he has stated that it is informant who identified them in the verandah of the Court to be the culprits just prior to his examination. He further stated that he was seeing the accused persons for the first time in the dock on the date of his examination. When P.W.3 has stated that the accused persons were at a distance of 200 cubits from him while moving in the motor cycle in a high speed, it would be too difficult on the part of P.W.3 to remember their faces and stature about one year after the occurrence when he deposed in Court. When P.W.3 has stated that the accused persons were at a distance of 200 cubits from him while moving in the motor cycle in a high speed, it would be too difficult on the part of P.W.3 to remember their faces and stature about one year after the occurrence when he deposed in Court. Therefore, the identification of the appellants by P.W.3 in Court for the first time without being tested by any prior T.I. parade cannot be accepted. So far as P.W.6 is concerned, he has also stated that after the date of occurrence, he is seeing them for the second time in Court on the date of his evidence. Similar is the evidence of P.W.11 and P.W.12. In the case of Dana Yadav @ Dahu -Vs.-State of Bihar reported in A.I.R. 2002 Supreme Court 3325, it is held as follows:- “38. (e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in Court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in Court of an accused by a witness and the same is a rule of prudence and not law. In exceptional circumstances only, evidence of identification for the first time in Court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.” In the case of Ramanath Naik Vs. State reported in 1995 Criminal Law Journal 2255, a Division Bench of this Court has held that identification for the first time during trial is inherently of a very weak character which looses much of its value without prior test identification parade. It is well settled that the substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the accused by the witness in Court. The purpose of prior test identification is to test and strengthen the trustworthiness of the version of the identifying witness regarding identification of the culprits. It is well settled that the substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the accused by the witness in Court. The purpose of prior test identification is to test and strengthen the trustworthiness of the version of the identifying witness regarding identification of the culprits. It is always considered a safe rule of prudence to seek for corroboration to the sworn testimony of witness in Court as to the identity of the accused who are strangers to the witness, in the form of earlier identification. If T.I. Parade is not conducted when the accused is stranger to the witness, while giving evidence in Court, the witness may very well think to himself that the police must have caught hold of the right person and therefore, he would be tempted to identify the accused in the dock as culprit. This is human psychology and therefore, the Court has to take a very cautious, judicious and pragmatic approach to accept the evidence of identification of the accused for the first time in Court without being tested by prior test identification parade. In the case in hand, there is no evidence that the witnesses who identified the appellants in Court had sufficient and fair opportunity to observe the features of the appellants at the time of commission of the crime and there were some special features in the appellants to recognize them in Court for the first time after a year of the occurrence. Except giving the approximate age and height of the culprits and their dresses, no special features of any of the culprits have been indicated by the informant in the F.I.R. Therefore, when no test identification parade has been conducted and no satisfactory explanation has been offered by the prosecution for non-holding of the test identification parade and when there are evidence on record that after the arrest of the accused persons, they were taken to the village of the informant and absence of any material to show that they were kept under covers after their arrest, I am unable to place any reliance on the evidence of identification adduced by P.W.3, P.W.6, P.W.11, P.W.12 and P.W.14 for the first time in Court. 9. 9. In view of the aforesaid discussions, the impugned judgment and order of conviction against the appellants and the sentence passed there under is not sustainable in the eye of law and accordingly, the same is hereby set aside. The appellants are acquitted of the charges under sections 364/323/387/506-II/34 of the Indian Penal Code. It appears that the appellant Guli Behera was not granted bail during pendency of the appeal. He shall be released forthwith from custody, if his detention is not otherwise required in any other case. The appellants Gariba @ Girisha Naik and Bana Palei @ Banabasi Polai have been granted bail by this Court on 24.07.2003. They are discharged from the liability of their bail bonds. Their personal bonds as well as surety bonds stand cancelled. If the appellants are in custody in connection with this case without filing bail bonds, they should to set at liberty forthwith, if their detention is not required in any other case. Accordingly, the jail criminal appeal and the criminal appeal are allowed. The hearing fee for both the criminal cases is assessed to be Rs.5000/-which would be paid to the learned counsel for the appellants immediately.