Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 639 (ORI)

Subash Kumar Barman v. State of Orissa

2017-06-29

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. The appellant in Criminal Appeal No.584 of 2014 Subash Kumar Barman, the appellant in Criminal Appeal No.445 of 2015 Raj @ Rajendra Singh and the appellant in Criminal Appeal No.116 of 2016 Sujit Kumar Sao @ Gupta along with three co-accused persons namely, Munna @ Biswajit Singh, Tahir Anshari and Santosh Sharma faced trial in the Court of learned Assistant Sessions Judge, Sambalpur in S.T. Case No.109/85 of 2009 for offences punishable under section 395 of the Indian Penal Code and sections 25 and 27 of the Arms Act. The learned Trial Court vide impugned judgment and order dated 28.10.2014 acquitted the accused persons of the charges under sections 25 and 27 of the Arms Act but convicted them under section 395 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.20,000/- (rupees twenty thousand) each, in default, to undergo rigorous imprisonment for a period of six months. Since all the three appeals arise out of a common judgment, with the consent of the parties, those were heard analogously and disposed of by this common judgment. 2. The prosecution case, as per the first information report submitted by Ramesh Kumar Agrawalla (P.W.2) before the officer in charge of Dhanupali Police Station on 03.02.2008 is that he had a jewellery shop in the name and style of M/s. Jewellery World at V.S.S. Marg, Sambalpur which he was operating along with his brother Ashok (P.W.37), Naresh (P.W.1) and his nephew Binod (P.W.31). It is stated in the F.I.R. that on 03.02.2008 at about 3.00 p.m. two customers were selecting some gold ornaments for purchase in the first floor of the shop and at about 4.00 p.m. two other customers came and asked for silver coins. The informant who was present in the ground floor was showing silver coins to them. At that point of time, three more persons came and they showed revolvers to the staffs and security guards and took them to the first floor and locked them in the V.I.P. office room, took away mobile phones from all of them, assaulted them and threatened them with dire consequence by showing revolvers and asked them not to shout or come out of the room. Thereafter, the culprits demanded the keys of the strong room from the informant and when the informant told them that he was not possessing the keys, he was assaulted by the culprits and then they asked the elder brother of the informant namely, Ashok Kumar Agarwalla (P.W.37) about the keys of the strong room by showing revolver and assaulted him for which he handed over the keys of the strong room. The strong room was opened by the culprits and they took away all the gold, silver, diamond ornaments, cash and also the ornaments which were kept by different customers and while decamping from the spot, they took away the licensed revolver of the brother of the informant namely, Naresh Agrawalla (P.W.2) and fitted three bombs in front of the V.I.P. office room gate and threatened that whosoever would try to open the V.I.P. office gate, there would be blasting of bombs. After sometime, the brother of the informant namely Naresh Agrawalla (P.W.2) came to the up-stairs and rescued the informant and others. It is stated in the first information report that the cost of the Jewellery taken by the culprits would be around rupees 2 crores and 50 lakhs and the cash taken would be Rs.5,50,000/-. 3. Basing on such first information report presented by P.W.2 Ramesh Kumar Agrawalla, Dhanupali P.S. Case No.16 of 2008 was registered on 03.02.2008 under section 395 of the Indian Penal Code and sections 25 and 27 of the Arms Act and the officer in charge of the police station namely, Chandra Majhi (P.W.39) took up investigation of the case. During course of investigation, he examined the complainant, sent VHF message to the other police stations, visited the spot and prepared the spot map (Ext.22) and seized the gold and diamond ornaments from M/s. Jewellery World and prepared seizure list to that effect and left the same in zima of Binod Kumar Agrawalla (P.W.31) vide zimanama (Ext.23). As per the order of the Superintendent of Police, Sambalpur, he handed over the charge of investigation to Sri Niranjan Mishra (P.W.42), Circle Inspector of Police, Ainthapalli, Sambalpur on the very day i.e. 03.02.2008. After taking over charge of investigation, P.W.42 examined the witnesses, seized some articles from the V.I.P. office room of the M/s. Jewellery World in presence of the witnesses. After taking over charge of investigation, P.W.42 examined the witnesses, seized some articles from the V.I.P. office room of the M/s. Jewellery World in presence of the witnesses. He made seizure of three handmade bombs near the V.I.P. room of the first floor in presence of the witnesses vide Ext.8. The scientific officials visited the spot and prepared their report vide Ext.28. P.W.42 seized the gun licence which was standing in the name of Naresh Kumar Agrawalla (P.W.1) and left the same in the zima of P.W.1 vide zimanama Ext.1. He made seizure of certain other incriminating articles from the spot and then on 07.06.2008 he handed over the charge of investigation to Gobardhan Sahoo (P.W.44), Circle Inspector, Sadar, Sambalpur. P.W.44 prayed for conducting test identification parade in respect of the seized property. A team of officers went to Jharkhand for detecting the culprits as well as for recovery of stolen articles. P.W.44 proceeded to Ranchi, engaged spies and arrested one accused and seized melted stolen ornaments from a jewellery shop. The appellants Sujit Kumar Sao @ Gupta, Rajendra Singh and Subash Kumar Barman were arrested on 11.06.2008 from Ranchi. On search of the rexin bag seized from the appellant Sujit Kumar Sao, jewellery of M/s. Jewellery World, Sambalpur were found which were seized under seizure list Ext.25. From the possession of appellant Rajendra Singh, a rexin bag containing stolen gold ornaments were seized under seizure list Ext.20. Similarly from the possession of appellant Subash Kumar Barman one rexin bag containing jewellery was seized under seizure list Ext.26. The three appellants were produced before the learned C.J.M., Ranchi and a prayer was made for transit remand for their production in the Court of learned S.D.J.M., Sambalpur and on 13.06.2008 all the three appellants were produced in the Court of learned S.D.J.M., Sambalpur. On the prayer of the P.W.44, test identification parade was conducted on 19.06.2008 in respect of appellants Raj @ Rajendra Singh, Sujit Kumar Sao @ Gupta and Subash Kumar Barman which was conducted by Raj Kumar Das (P.W.29), J.M.F.C., Sambalpur. In the Test Identification parade, P.W.2 Ramesh Kumar Agrawalla, P.W.3 Ajay Kumar Agrawalla and P.W.37 Ashok Agrawalla so also one Gitanjali Dani participated as identifying witnesses and the identifying witnesses identified all the three appellants correctly. Accordingly, P.W.29 prepared the test identification parade report vide Ext.5/2. In the Test Identification parade, P.W.2 Ramesh Kumar Agrawalla, P.W.3 Ajay Kumar Agrawalla and P.W.37 Ashok Agrawalla so also one Gitanjali Dani participated as identifying witnesses and the identifying witnesses identified all the three appellants correctly. Accordingly, P.W.29 prepared the test identification parade report vide Ext.5/2. Similarly test identification parade in respect of the seized properties were held in the chamber of P.W.29 and P.W.2 Ramesh Kumar Agrawalla correctly identified the ornaments and accordingly, test identification parade report vide Ext.6/1 was prepared. P.W.44 submitted first charge sheet and handed over the charge of investigation to Saroj Kumar Mohapatra (P.W.45), I.I.C. of Dhanupalli Police Station who on completion of investigation submitted final charge sheet on 10.07.2008 against six accused persons including the three appellants under section 395 of the Indian Penal Code and sections 25 and 27 of the Arms Act. 4. The defence plea of the appellants was one of denial and it is pleaded that a false case has been foisted. 5. In order to prove its case, the prosecution examined forty five witnesses and exhibited thirty one documents. The relevant witnesses so far as identification is concerned are P.W.2 Ramesh Kumar Agrawalla, P.W.3 Ajay Kumar Agarwalla, P.W.12 Gayatri Mishra and P.W.37 Ashok Kumar Agarwalla and the Magistrate who conducted the test identification parade is P.W.29 Raj Kumar Das, J.M.F.C., Sambalpur. 6. P.W.2 who is the informant in the case has stated about the commission of dacoity in the jewellery shop on 03.02.2008 and he also participated in the test identification parade in respect of the appellants and the seized stolen properties and he correctly identified all the appellants in the T.I. parade which was conducted by P.W.29. He also identified the ornaments in the test identification parade which was conducted by P.W.29 in his Court chamber. P.W.2 has been cross examined at length but nothing substantial has been elicited in the cross-examination so as to disbelieve his evidence relating to identification of the appellants as well as the stolen properties. Learned counsels for the appellants have not disputed about the occurrence but they only challenged the identity of the culprits. P.W.2 has been cross examined at length but nothing substantial has been elicited in the cross-examination so as to disbelieve his evidence relating to identification of the appellants as well as the stolen properties. Learned counsels for the appellants have not disputed about the occurrence but they only challenged the identity of the culprits. So far as P.W.3 Ajay Kumar Agarwalla is concerned, he has stated that he had got a hardware shop near the jewellery shop of the informant and he saw the accused persons who committed the crime and he stated that in the test identification parade, he identified the appellants Rajendra Singh and Subash Kumar Barman though the Magistrate (P.W.29) stated that P.W.3 identified all the appellants correctly. P.W.3 has also been cross examined at length but nothing has been elicited so as to disbelieve his testimony. P.W.12 Gayatri Mishra was working as Sales man in the M/s. Jewellery World and she stated about the participation of the appellants in the crime. She stated in the chief examination that she knew the appellants and named them. This witness has not participated in the T.I. Parade. In the cross-examination, she stated that she had no prior acquaintance with the accused persons and she saw them for the first time after the occurrence. In view of the evidence elicited in the cross-examination, the evidence in the chief examination that she knew the appellants by name cannot be accepted. Since the names of the accused persons have not been mentioned in the first information report and P.W.12 has not participated in the test identification parade, therefore, her evidence relating to participation of the appellants in the crime for the first time in Court cannot be accepted. The evidence of identification parade is not substantive evidence but it is to test the statement of the witness made in the Court which constitutes substantive evidence and to strengthen the trustworthiness of the evidence of the witness. Identification of the accused at the trial for the first time is from its very nature inherently of a weak character. Hence, the evidence of P.W.12 is of no consequence. The evidence of P.W.37 Ashok Kumar Agarwalla who is the elder brother of P.W.2 is also very clear relating to the occurrence. Identification of the accused at the trial for the first time is from its very nature inherently of a weak character. Hence, the evidence of P.W.12 is of no consequence. The evidence of P.W.37 Ashok Kumar Agarwalla who is the elder brother of P.W.2 is also very clear relating to the occurrence. He participated in the test identification parade and identified all the three appellants but in Court he identified two appellants i.e., Rajendra Singh and Subash Kumar Barman. P.W.37 himself has not stated that he identified the appellant Sujit Kumar Sao @ Gupta in the test identification parade. He has been cross examined at length but nothing has been elicited so as to disbelieve his testimony. On meticulous analysis of evidence of P.Ws.2, 3 and 37, the three identifying witnesses, it is clear that P.W.2 identified all the three appellants in the test identification parade as well as in Court, whereas P.W.3 and P.W.37 though identified all the appellants in the test identification parade but they identified only two appellants in Court i.e., appellants Rajendra Singh and Subash Kumar Barman. The evidence of these three identifying witnesses coupled with the evidence of the learned Magistrate who conducted the test identification parade and the fact that no infirmity has been pointed out in holding the test identification parade; I am of the view that the complicity of the appellants has been fully established by the prosecution. Additionally, the evidence of P.W.44 indicates that stolen ornaments of M/s. Jewellery World were recovered from the possession of the three appellants which were seized under seizure lists Exts.20, 25 and 26 and the ornaments were placed in the test identification parade which was conducted by P.W.29 and the same were also correctly identified by P.W.2. No infirmity has been pointed out by the learned counsel for the appellants in relation to the identification of the properties. Therefore, not only the appellants have been identified in the test identification parade but also stolen ornaments which were seized from their possession were also identified in the test identification parade and therefore, I am of the humble view that the learned Trial Court is justified in convicting the appellants under section 395 of the Indian Penal Code. Therefore, not only the appellants have been identified in the test identification parade but also stolen ornaments which were seized from their possession were also identified in the test identification parade and therefore, I am of the humble view that the learned Trial Court is justified in convicting the appellants under section 395 of the Indian Penal Code. The learned Trial Court has imposed the sentence of rigorous imprisonment for ten years to each of the appellants and further directed each of them to pay a fine of Rs.20,000/-(rupees twenty thousand), in default to undergo R.I. for six months. The appellants are in custody as per the charge sheet since 12.06.2008 on which date they were produced in Court. Learned counsels for the appellants submit that the appellants have already undergone substantive sentence for more than nine years and therefore, the substantive sentence be reduced to the period already undergone. Considering the submissions made by the learned counsels for the appellants and taking into account their period of incarceration, the substantive sentence of R.I. for ten years is reduced to the period already undergone. So far as imposition of fine by the learned Trial Court and the defaulting sentence is concerned, the same shall remain intact. With the aforesaid modification in the sentence, all the criminal appeals stands dismissed.