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2018 DIGILAW 584 (ORI)

Akhaya Das v. State of Orissa

2018-05-25

D.P.CHOUDHURY

body2018
JUDGMENT Dr.D.P.CHOUDHURY, J. - These appeals are directed against the common judgment and order of conviction and sentence dated 28.02.2011 passed by the 1st. Additional Sessions Judge, Cuttack in S.T. Case No.159 of 2009 convicting the appellants for commission of offence under Sections 458/395, IPC and sentencing each of them to undergo rigorous imprisonment for seven years and ten years and to pay fine of Rs.5,000/- and Rs.10,000/- and in default of payment of fine to suffer R.I. for one month and three months respectively , while directing for setting off of the period undergone as under trial prisoner under Section 428, Cr.P.C. and to run sentences concurrently. 2. The factual matrix leading to the case of the prosecution is that on 24/25.11.2008 at about 1.30 A.M. in the midnight, the appellants and other accused persons allegedly entered into the house of the informant-Hrusikesh Mohanty by breaking open the door and assaulted the inmates causing bleeding injury on their person. The accused persons also snatched away gold ornaments from the persons of the inmates, also broke open the almirah and took away gold, silver ornaments and cash of Rs.15,000/-. After committing the offences, they fled away from the spot and on the next day morning F.I.R. was lodged. The injured witnesses were examined. During investigation, there is recovery of stolen ornaments and other incriminating materials. The accused persons were apprehended and T.I. parade of the suspected persons was conducted inside jail in presence of the Magistrate. The seized ornaments were also put to T.I. parade and the seized ornaments were also identified by the inmates of the house in question. After completion of investigation, charge-sheet was submitted. 3. The plea of the defence as available from the statements recorded under Section 313, Cr.P.C. and cross-examination made by the prosecution witness is that they have been falsely implicated in the case. They plead innocence. 4. The prosecution in order to prove the charge has examined altogether eight witnesses and the defence examined none. Learned trial Court after evaluating the evidence on record led by the prosecution and other materials produced found the appellants and other accused persons guilty and thereby convicted them for the offence under Section 458/395, IPC and awarded the sentence as aforesaid. 5. Learned trial Court after evaluating the evidence on record led by the prosecution and other materials produced found the appellants and other accused persons guilty and thereby convicted them for the offence under Section 458/395, IPC and awarded the sentence as aforesaid. 5. Learned Counsel for the appellants submitted that the learned trial Court has committed error by relying on the T.I. parade of the suspects on the ground that the signatures of the witnesses do not find place in the T.I. parade sheet. Moreover, the T.I. parade sheets of the suspects do not mention that the suspect was mixed with similar persons having equal dress in conformity with the guidelines and observation of the Hon’ble Apex Court. 6. Learned Counsel for the appellants further submitted that during the T.I. parade the appellants were not identified legally as witnesses were shown the appellants before they were forwarded to the Court. Not only this, but also the witnesses could not identify the suspects properly. Since the T.I. parade has not been conducted properly and the police personnel being present during T.I. parade, such link of the circumstantial evidence is lacking with the prosecution. 7. Learned Counsel for the appellants further submitted that the T.I. parade of the seized articles conducted by the learned Magistrate is also under suspicion because the description of the seized article has not been given in the T.I. parade sheet and the learned Magistrate conducting the T.I. parade has categorically admitted that except P.W. 1 the other witnesses could not identify the seized articles although they were the inmates of the house in question. Neither the suspects nor the seized articles were properly identified for which the learned trial Court has erred in law by depending on such unreliable evidence of T.I. parade. 8. Learned Counsel for the appellants further submitted that except the seizure of four nos. of gold chain from the appellant Arjun @ Sankar, no recovery was made from any other present appellants. The seized gold chain has not been put to T.I. parade to find out the ownership of the seized properly. 9. Learned Counsel for the appellants further submitted that the F.I.R. only shows that the culprits were calling themselves in their nick name, but the same fact has not been adduced during evidence by P.W.3-Hrusikesh Mohanty. It is also settled in law that the F.I.R. is not substantive evidence. 9. Learned Counsel for the appellants further submitted that the F.I.R. only shows that the culprits were calling themselves in their nick name, but the same fact has not been adduced during evidence by P.W.3-Hrusikesh Mohanty. It is also settled in law that the F.I.R. is not substantive evidence. Hence, there is no clear, cogent and consistent chain of circumstantial evidence to find the appellants guilty and alternatively argued that the appellants have already suffered the sentence being in custody since 2008. 10. Per contra, learned Addl. Govt. Advocate submitted that there is clear evidence of P.W. 1 that she has identified all the accused persons during T.I. parade and also identified all the seized property during T.I. parade and as such, there is nothing to discredit her testimony. Not only this, but also she is also one of the injured inmates in the house in question and has been examined by the doctor, which sufficiently corroborated her evidence. 11. Learned Addl. Govt. Advocate further submitted that the formalities of T.I. parade although not observed by the learned Magistrate, but the fact remains that the suspects have been identified by the inmates during T.I. parade. Not only they were identified during the T.I. parade, but also they were identified in the Court for which the evidence of identification has got relevance in this case. He further submitted that the incriminating materials like stolen two gold chains and other equipments used to brake open the door have been seized from the appellant –Arjun @ Sankar Das. According to his statement, the other appellants were involved in the occurrence. So, he submitted that all the appellants have been rightly convicted and sentenced by the learned Trial Court. He supports the judgment of conviction and sentence. DISCUSSIONS. 12. After going through the argument from both the sides, it is necessary to pay attention to the T.I. parade and its implication. The evidence of identification has to be judged on various facts and circumstances of the case, which has been observed in the decisions reported in George v. State of Kerala, AIR 1998 SC 1376 , Ronny v. State of Maharashtra, AIR 1998 SC 1251 and Pammi v. Govt. of M.P., AIR 1998 SC 1185 . 13. The evidence of identification has to be judged on various facts and circumstances of the case, which has been observed in the decisions reported in George v. State of Kerala, AIR 1998 SC 1376 , Ronny v. State of Maharashtra, AIR 1998 SC 1251 and Pammi v. Govt. of M.P., AIR 1998 SC 1185 . 13. In the decision reported in Budhsen v. State of U.P., AIR 1970 SC 1321 , the Hon’ble Apex Court has observed that if the witness in court has identified an accused, who was not previously known to him, the evidence regarding identification can be acted upon only when the prosecution is able to clarify as to how the witnesses came to pick out that particular accused person. The Hon’ble Apex Court in the decision reported in State of M.P. v. Dr. M.V.Ramana Reddy, AIR 1991 SC 1938 observed that prudence requires corroboration of identification by means of prior T.I. parade. 14. The aforesaid decisions of the Hon’ble Apex Court make it clear that the identification of the suspect or the article assumes importance, if it has been done at the earliest and it has been conducted properly so that no suspicion can be pointed out to the manner of identification of T.I. parade. Now adverting to the present case, it is to be judged whether T.I. parade has been conducted well in accordance with the principles so as to make it sufficient to lead corroboration to the case of prosecution. P.W. 1, who is one of the inmates categorically, stated that she has identified the present accused persons in T.I. parade and the present accused persons were calling each other by their nick names, but she has not stated by what names they were calling to each other. During cross-examination, she admitted that she told about the occurrence at the time of T.I. parade, but she has not told the Magistrate the role played by each of the accused persons at the time of occurrence. When she has not stated the role played by each of the accused persons although she stated to have identified the accused who were put to T.I. parade one after another, her evidence requires close scrutiny. Moreover, she has not proved the T.I. parade sheet and she has also not put her signature therein. When she has not stated the role played by each of the accused persons although she stated to have identified the accused who were put to T.I. parade one after another, her evidence requires close scrutiny. Moreover, she has not proved the T.I. parade sheet and she has also not put her signature therein. Of course, she has denied the suggestion of the defence that prior to T.I. parade, the police had shown the accused persons to her. It is also available from her evidence that although one of the accused persons had got headgear and one of them had got vermilion on its head, but during T.I. parade, there is no such headgear of any of the suspects who were mixed with other persons nor any person on T.I. parade had vermillion on their head. On the other hand, the circumstance of identification of each suspect has not been explained by her before the learned Magistrate and during trial also. So, her evidence does not prove the role of the appellants to show their complicity by cogent and clear evidence during T.I. parade. 15. The statement of P.W. 3 shows that during the time of occurrence, the accused persons were calling themselves as Babula, Kabula, Kalia, Akhi and Sura and he had identified all the accused persons in the Circle Jail, Choudwar in T.I. parade. The T.I. parade does not disclose that he had identified all the suspects. If he has identified all the suspects, then his evidence should show what every suspect was doing during the occurrence, but that is lacking in his evidence. Moreover, he has not admitted to have stated before the police about the description of the dress, colour etc. of the accused persons. If there is no description of the appellants given by him, it is not known as to how he could identify the accused persons. At the same time the evidence of P.W. 6, the learned Magistrate shows that P.W. 3 has only identified Mangu Das and Sura Das correctly but could not identify all and rather wrongly identified the suspect Subas Das. Hence, the evidence of P.W. 3 is equally not above suspicion to prove identification of all the appellants during T.I. parade to prove the exact role of each of the appellants. 16. Hence, the evidence of P.W. 3 is equally not above suspicion to prove identification of all the appellants during T.I. parade to prove the exact role of each of the appellants. 16. Although one Mataji Mohanty being the inmates of the house has also participated in the T.I. parade, but she has not been examined to lend corroboration to the evidence of the learned Magistrate. 17. Now the evidence of the learned Magistrate (P.W.6) assumes importance in this regard. She has categorically stated that on 3.12.2008 she has explained all the witnesses about the conduct and manner of T.I. parade. It is not necessary for the Magistrate to explain about the process of T.I. parade as the witnesses have to identify only the suspects whenever asked during T.I. parade. However, as an abundant caution perhaps, she has made so. She has categorically stated that after entering into the Circle Jail, Choudwar, each of the suspects were called for and they were directed to mix up with the UTPs with similar descriptions in the ratio 9:1. It is not forthcoming from her evidence as to the manner of holding such T.I. parade because the evidence must be there to show whether she has mixed the suspect with similarly dressed, age ground and other identification and descriptions so that the witnesses can identify the real culprit involved in the occurrence. However, she admitted that P.W. 1 correctly identified all the suspects. But it appears from her evidence that P.W. 3 had not identified all the suspects. In cross-examination, she admitted that she has not obtained the signature of the witnesses in her report vide Ext. 9 and has not also mentioned the colour, height, structure of similar persons mixed or of suspects in her report and also not mentioned the colour of the dress of the suspect and similar persons mixed with the UTPs during the time of T.I. parade. Of course, the Magistrate is not required to write the exact height, colour or colour of dress of similar persons mixed with suspects. But the learned Magistrate must record that the suspect was mixed with approximate age group, height, appearance and type of dress of the persons mixed with suspect. But in the instant case, the learned Magistrate has not recorded so. But the learned Magistrate must record that the suspect was mixed with approximate age group, height, appearance and type of dress of the persons mixed with suspect. But in the instant case, the learned Magistrate has not recorded so. It is therefore, observed that the learned Magistrate has not performed the T.I. parade in accordance with the guidelines or norms to rule out any suspicion about the identification of the suspects. 18. On perusal of the T.I. parade sheet, it also does not appear that she has taken the signature of the witnesses, who have come to identify the suspects and have not recorded the circumstances of the identification by each of the witnesses. The question may arise that whether a Magistrate is bound to record the circumstances on identification. The answer is affirmative because the statement made by the witness at the time of identification can be utilized for the purpose of corroboration or contradiction. Moreover, the certificate given in the T.I. parade sheet only shows that the she mentioned that she has followed the procedure, but exactly while leading evidence, it is lacking. The T.I. parade being held during investigation and the Magistrate being a witness to the same, his/her role should be sacrosanct so as to rely on his or her evidence. Since the learned Magistrate is a newly recruited, no comment is passed in this case, but it must at least be observed that holding of T.I. parade assumes importance for each of the learned Magistrate, who is actually entrusted with such very onerous task. It is also clear from the evidence of P.W. 1 that police was present during T.I. parade at the jail. It is another departure in holding T.I. parade because presence of police during T.I. parade is creating suspicion in the fairness of holding T.I. parade. It must be remembered that fair trial includes fair investigation. 19. In terms of the above discussion, this Court is of the view that holding of T.I. parade of the appellants being not above suspicion, the identification of the suspect by P.W. 1 or P.W. 3 cannot be said to have been proved beyond all shadow of doubts so as to prove the circumstantial evidence against the appellants. 20. So far as identification of ornaments is concerned, learned Magistrate P.W. 6 has observed in paragraph 3 that the I.O. produced four nos. 20. So far as identification of ornaments is concerned, learned Magistrate P.W. 6 has observed in paragraph 3 that the I.O. produced four nos. of gold chains with four similar other items for identification and P.W. 1 has identified all the seized articles correctly although P.W. 3 and Mataji Mohanty could not identify the seized articles and there also, she has also not taken the signature of the witnesses in the T.I. parade, the reason of which is best known to her. P.W. 1 stated that she has correctly identified the seized articles. Now it appears that this gold chain, which has been identified by P.W. 1 and being corroborated by P.W. 6, has not been seized from any of the present appellants, rather they have been seized from the co-accused Paresh Sahoo, who is not the appellant in this case. It is only available from the evidence of I.O. that he has seized two imitation chudi, mobile charger and other articles vide Ext.8, which were not put to T.I. parade. So, the T.I. parade of articles does not prove any circumstance against the present appellants. 21. There is no evidence for recovery of any other stolen articles from the possession of the present appellants. It is a fact that P.Ws. 1 and 3 have sustained injuries and they have also been examined by the Doctor, P.W.4, but the circumstance as stated above about the T.I. parade and the recovery of stolen articles being not proved with cogent, consistent and above suspicion against the appellant, mere injury sustained by the injured P.Ws.1 and 3 during the occurrence is not enough to prove the overt-act of the appellants. It is also settled in law that the in the case of circumstantial evidence, certain facts are proved, from which the existence of given fact is inferred and each circumstance has to be proved by cogent, clear and consistent evidence. It is also well settled in law that the chain of evidence must be so far complete (a) as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and (b) as to show that within all human probability the act must have been done by the accused. If any link of the circumstance is lacking and chain of circumstance is not complete, the benefit would be accrued to the accused. 22. If any link of the circumstance is lacking and chain of circumstance is not complete, the benefit would be accrued to the accused. 22. Now adverting to the present case, it appears that the prosecution has failed to prove all links in the chain of circumstantial evidence beyond all shadow of doubts and the benefit of doubt goes the appellants. 23. In terms of the above discussion, this Court is of the view that the prosecution has failed miserably to prove the offence under Section 458/395, IPC against the present appellants beyond all shadow of doubts and benefit of doubt accrued to the accused persons. Accordingly they are acquitted of the said offences. The impugned order of conviction and sentence passed against these appellants are hereby set aside. 24. Thus, all the criminal appeals are allowed. Appeals allowed.