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2017 DIGILAW 112 (ORI)

Alu Bhima Raju v. State of Orissa

2017-01-25

SATRUGHANA PUJAHARI

body2017
JUDGMENT S.PUJAHARI, J. - Both these appeals have been filed by the appellants against the judgment of conviction and order of sentence dated 28th May, 1992 passed by the learned Addl. Sessions Judge, Jeypore in S.C. No. 75 of 1991 convicting the appellants under Section 395 of the Indian Penal Code (for short “I.P.C.”) and sentencing each of them to undergo R.I. for five years and to pay a fine of Rs. 1000/-, in default to undergo R.I. for three months with direction to set off the period of detention. 2. Both the aforesaid criminal appeals having arisen out of the common judgment and order were heard together and are disposed of by this common judgment. 3. The prosecution case, in brief, is that in the night of 22/23.03.1991 at about 1 a.m. the complainant with his family members were sleeping in their house after locking the door from inside. At about 1 a.m., hearing some blasting sound of cracker, they woke up and found some unknown culprits were standing in front their house. The culprits called the father of the complainant uttering his name and five to six persons forcibly opened the ‘Jafri’ door and by then, the family members went inside and adjacent room and closed the door. The culprits broke open the door and entered inside the house, opened one tin box, brought out some papers and key therefrom and by focusing the torchlight, they were looking through the rooms. By that time, the complainant gave one Tangi blow to one of the culprits who shouted and went out. While the other culprits were going out, the complainant caught hold one of them and there was tussle among them and by that time, the other culprits assaulted the complainant on his head and chest with stone, but the complainant bitted one of them. The culprits left the house leaving one torch light and one unused bomb. Basing on the report of the complainant, a case was registered and after completion of investigation, charge-sheet was submitted and the case was committed to the Court of Sessions and eight accused persons stood charged for commission of offences under Sections 395/398 of I.P.C. read with Section 9(b) of the Indian Explosives Act. During trial, eleven witnesses were examined on behalf of the prosecution and exhibited certain documents, whereas no witness was examined on behalf of the defence. The learned Addl. During trial, eleven witnesses were examined on behalf of the prosecution and exhibited certain documents, whereas no witness was examined on behalf of the defence. The learned Addl. Sessions Judge after trial, acquitted four co-accused persons from all the offences, but while acquitting these appellants from the offences under Section 398 of I.P.C. and Section 9(b) of the Indian Explosives Act, found them guilty of the offence under Section 395 of I.P.C. only and sentenced them as stated earlier. 4. During course of hearing of these appeals, the appellant- Dasu Paramesu in CRA No. 235 of 1992 was reported to be dead and vide order dated 16.11.2016, CRA No. 235 of 1992 in respect of the appellant – Dasu Paramesu stands abetted. 5. During course of hearing of these appeals, the learned counsel for the appellants contended that the impugned judgment of conviction and order of sentence is illegal and against the weight of evidence on record. The T.I. parade has lost its sanctity and legal force and for that, no reliance should have been placed on the T.I. parade report. Moreover, materials on record indicate that the identifying witnesses had opportunity to see the culprits before the T.I. parade. There was no recovery of any stolen article and the identification of the culprits by the witnesses is quite impossible since it was a dark night. For these reasons, the judgment of conviction and order of sentence are not sustainable in law. 6. On the other hand, the learned Addl. Government Advocate supported the impugned judgment of conviction and order of sentence. 7. Perused the materials on record. The factum of commission of dacoity has not been disputed by the appellants during their examination under Section 313 of Cr.P.C. though they pleaded false implication. P.W.3 has stated that on the date of occurrence, 7 to 8 persons came to their house, called his father naming him and 4 to 5 culprits entered inside the house. P.W. 6 has also stated that on the night of occurrence, hearing the sounds of cracker, he woke up, went to the spot and found 6 to 8 persons near the house of the complainant and one of the culprits pelted a stone to him, as a result, he was injured. P.W. 6 has also stated that on the night of occurrence, hearing the sounds of cracker, he woke up, went to the spot and found 6 to 8 persons near the house of the complainant and one of the culprits pelted a stone to him, as a result, he was injured. P.W. 8, a front door neighbour of the complainant identically stated that hearing sound of bursting of cracker, he woke up and found that 4 to 5 culprits gave strokes to the ‘Zafri’ of the complainant, entered inside the house and one of the culprits, who was outside, assaulted on his cheek by means of lathi. P.W. 9, the Investigating Officer has stated about the seizure of broken door leaf, stones, one torch light, bloodstained Tangia and Tin box which fully corroborates the evidence of the witnesses, as regards the fact of dacoity. Analyzing the evidence on record, the learned Addl. Sessions Judge, Jeypore has rightly reached at a conclusion that a dacoity was committed in the house of the complainant on the fateful night of occurrence. 8. As regards the involvement of the present appellants, the prosecution has mainly relied upon the evidence of P.W.1, the Magistrate who had conducted the T.I. parades as well as P.Ws. 3 to 8. T.I. parade in respect of the culprits was conducted by the Magistrate on two dates, i.e. 08.04.1991 and 21.06.1991. The learned Addl. Session Judge, Jeypore has discarded the evidence of P.W. 6 who had identified these appellants during the T.I. parade dated 21.06.1991. But, so far identification of the present appellants, they were identified by P.Ws. 3, 5, 7 and 8 during T.I. parade dated 08.04.1991, which is within fifteen days from the date of occurrence and within five days after their arrest. There is nothing on record to show that these appellants were shown to them either at the Police Station or in the Court before their identification during T.I. parade. The testimony of P.W.1 (the Magistrate) who conducted T.I. parade, also lends corroboration to the version of these witnesses regarding identification of the appellants. 9. It was contended by the learned counsel for the appellants that there was no scope to the witnesses to correctly memorize the figure of the culprits. The testimony of P.W.1 (the Magistrate) who conducted T.I. parade, also lends corroboration to the version of these witnesses regarding identification of the appellants. 9. It was contended by the learned counsel for the appellants that there was no scope to the witnesses to correctly memorize the figure of the culprits. It is significant to note that P.W. 3 in clear terms identified the culprits during T.I. parade stating that there were breaking open the door of their house entering therein. He has also stated that he gave a Tangi blow on the back of appellant- Alu Bhima Raju while he was inside his house. P.W. 9, the Investigating Officer stated that he traced out appellant –Alu Bhima Raju in his house and took him to Aska hospital on 30.03.1991. P.W., 11 the Medical Officer had examined the appellant-Alu Bhima Raju and found one incised injury just above waist to infra scapular region. The Medical Officer also opined that the injury on appellant- Alu Bhima Raju can be caused by the Tangia examined by him in response to the query made by the Investivating Officer. Though appellant- Alu Bhima Raju had taken a plea that he received that injury by fall from a tree, but the Medical Officer had ruled out such possibility. That apart, no evidence was laid by appellant –Alu Bhima Raju to substantiate his plea. As such, the learned trial Court has correctly opined that the evidence of P.W. 3 that he dealt a Tangi blow on the back of the appellant-Alu Bhima Raju and his evidence that he identified the culprit in the Court and in the T.I. parade stating the said fact can be safely relied upon. P.W. 8 has stated that the appellants, namely, Dasu Paramesu and Nageswar Pradhan, to whom he identified in the T.I. parade, had taken part in the occurrence and he further stated that appellant-Dasu Paramesu assaulted on his left cheek by means of lathi and the evidence of P.W. 2, the doctor who found such injury on his (P.W.8) left side face lends enough corroboration to the evidence of P.W. 8 that appellant – Dasu Paramesu had assaulted on his left cheek by lathi. 10. As regards the scope of memorizing the figures of the culprits, both P.Ws. 3 and 6 have stated that the electric light was burning on the verandah of P.W. 3. 10. As regards the scope of memorizing the figures of the culprits, both P.Ws. 3 and 6 have stated that the electric light was burning on the verandah of P.W. 3. Moreover, the P.W. 3 has stated that the appellant-Alu Bhima Raju was focusing torchlight inside the room to see the household articles. P.W. 3 has also stated that he had caught hold the appellant –Dasu Baskar @ Basa during the occurrence. On a conjoint reading of such evidence, it was quite normal on the part of the witnesses to remember the appearance of the culprits. Above all, the learned Magistrate who had conducted the T.I. parade, has vividly stated about the procedure of mixing of the suspect culprits with others, changing their position after identification by each witnesses, keeping the witnesses outside to avoid the possibility of the witnesses seeing the culprits and calling one other another. Nothing substantial has been elicited from their cross-examination ot discard the version of P.Ws. 1, 3, 6 and 8. The learned trial Court after analyzing the evidence has rightly held the present appellants guilty of the offences under Section 395 of I.P.C. 11. There is no manner of doubt that the appellants had entered into the house of the complainant and also made an attempt to commit dacoity. But, nothing is there indicating the fact that they stated to have committed dacoity of any household articles. Fact remains that the appellants had fled away from the spot. The only evidence that is available against them is that they broken the door and entered into the house in order to commit dacoity. But, there is nothing on record to establish that they fled away with any stolen property by using force. The occurrence took place about twenty-five years back. In such premises, the quantum of sentence should be reduced to R.I. for three years which shall meet the ends of justice. Accordingly, while maintaining the conviction of substantive sentence is reduced from five years to three years subject to set off under Section 428 of Cr.P.C. The amount of fine and default sentence as ordered by the lower Court shall remain unaltered. 12. With the aforesaid modification of sentence, both the criminal appeals are allowed in part. L.C.R. received be returned back forthwith along with a copy of this judgment. Appeals allowed in part.