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2019 DIGILAW 499 (ORI)

Shyam Mallik v. State of Orissa

2019-08-01

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 27.07.1993 passed by the learned Additional Sessions Judge, Bhadrak in S.T. Case No. 122/52 of 1992. By the impugned judgment, the appellant (accused) had been convicted for offence under section 395 of the IPC and he has been sentenced to undergo rigorous imprisonment for a period of seven years. 2. Prosecution case in short is that on 01.10.1991, when the informant (P.W. 1) with her younger daughter-Jyotirekha were sleeping one room on the northern side of in their house, her elder daughter, Truptirekha (P.W. 2) with Suryakanti and Sandharani were also sleeping in another room on the southern side. Around 12.30 am, P.W. 1 got up hearing some sound near the main door of the house. She was threatened by the miscreants who asked her to open the door. The informant and her daughter tried to push the door to keep it closed. But ultimately they failed. It is stated that three to four miscreants thereafter entered into the room and took away the household articles. At that time, the informant heard the voice of her other daughter (P.W. 2). So informant requested the miscreants to take her to her elder daughter (P.W. 2) and accordingly, she was led to the southern room. The miscreants then took away gold ornaments from the underground room. They also pulled P.W. 2 to the verandah and asked her about gold ornaments. They took away the gold chain, ear ring from the informant, P.W. 1 and so also other ornaments from her elder daughter-P.W. 2. Suryakanti also gave away her gold ring to those miscreants who were then armed with weapons. After taking all these valuables, the miscreants keeping the in mates of the house confined in a room, decamped. After some time, the nephew of the informant (P.W. 1) came and opened the door. The informant (P.W. 1) as well as the witnesses claimed to have identified the miscreants. The matter was reported to the police on 02.10.1991 around 5.00 a.m. and the investigation commenced. After registration of the case, this accused having been arrested in the case were put to T.I. parade on 04.11.1991 and he has been identified by P.Ws. 1, 2 and 3. The defence case is one of complete denial. 3. The matter was reported to the police on 02.10.1991 around 5.00 a.m. and the investigation commenced. After registration of the case, this accused having been arrested in the case were put to T.I. parade on 04.11.1991 and he has been identified by P.Ws. 1, 2 and 3. The defence case is one of complete denial. 3. The trial court on evaluation of evidence of six prosecution witnesses as also the documents more particularly, the F.I.R., Ext. 1, T.I. parade report, Ext. 5 and other documents such as seizure lists etc., found the appellant guilty for commission of offence under section 395 of the IPC and accordingly he has been sentenced. 4. Learned counsel for the appellant (accused) submits that on the face of evidence of P.W. 1 that she knew this accused prior to the occurrence; her not naming this accused in the F.I.R. nor giving any hint in particularly about the accused render the evidence of P.Ws. 1, 2 and 3 unbelievable, as regards the participation of this accused in the said act of in commission of dacoity in the house of P.W. 1. He submits that the trial court having lost sight of such an important feature surfacing in evidence casting serious doubt on the veracity of the prosecution case so far as this accused is concerned, when has rendered the finding of guilt against this accused, the same is liable to be set aside. Learned counsel for the State refuting the above submission contends that when prosecution witnesses have deposed on oath as to the presence of this accused in the house at the relevant time, and he having been identified by them in the T.I. parade, the conviction of the appellant for offence under section 395 of I.C. is not liable to be set aside particularly, when no such feature appears in the evidence of P. W. 1, 2 and 3 to impeach their credibility rendering their testimony unworthy of evidence. On the rival submissions as above, this Court now called upon to examine the evidence of prosecution witnesses so far as the participation of this accused in the said commission of dacoity is concerned and thus judge the sustainability of finding given by the trial court. 5. On the rival submissions as above, this Court now called upon to examine the evidence of prosecution witnesses so far as the participation of this accused in the said commission of dacoity is concerned and thus judge the sustainability of finding given by the trial court. 5. P. W. 1 (informant) in her evidence has stated that she had identified one dacoit conducted T.I. parade conducted inside the jail and then she has identified this accused to be the said person in pointing finger at him who was in the dock. During cross-examination, she has stated that uncle's house of this accused is in one sahi (hamlet) of the village and she used to frequently visit that area. It is her specific evidence that she knew this accused prior to the occurrence. If this is so, then accused being put to T.I. parade is of no signification and it is not known as to why this accused was put to T.I. parade to face P.W. 1. Moreover, if she knew this accused prior to the incident, there was absolutely no reason for her not to mention her name in the F.I.R. (Ext. 1) which runs throughout against as the unidentified persons. In such state of affair in evidence, grave doubt arises in the mind that at a later stage for some reason or other, this accused has been brought within the arena of the case. P.W. 2 has not identified this accused. P.W. 3 has also stated to have identified this accused in the T.I. parade. But when a genuine doubt arises in the" mind which shakes the veracity of the prosecution case for the reason that P.W. 1 having known the accused earlier had not disclosed his name in the F.I.R., the evidence of P.Ws. 2 and 3 under the circumstance are not enough to hold that prosecution has to establish its case against this accused beyond reasonable doubt. 6. For the foregoing discussion and reasons, the impugned judgment of conviction and the order of sentence are found to be vulnerable and as such liable to be set aside. 7. Accordingly, the appeal stands allowed. The judgment of conviction and order of sentence dated 27.07.1993 passed by the learned Addl. Sessions Judge, Bhadrak in S.T. Case No. 122/52 of 1992 are set aside. The bail bonds executed by the accused shall stands discharged.