Research › Search › Judgment

Orissa High Court · body

2021 DIGILAW 444 (ORI)

Pania Gada v. State Of Odisha

2021-10-28

S.K.SAHOO

body2021
JUDGMENT S.K. Sahoo, J. - The appellants Pania Gada in JCRLA No.49 of 2011, Bhutulu Gochhayat, Aswini Ghadei and Dhania Sahu in CRLA No.528 of 2012 and Kanhei Naik @ Chipa in CRLA No.392 of 2013 faced trial in the Court of learned Assistant Sessions Judge, Sambalpur in S.T. Case No.177/116 of 2005 for commission of offences punishable under sections 458 and 395 of the Indian Penal Code read with section 25 of the Arms Act. Learned trial Court passed the impugned judgment and order dated 20.07.2007 acquitting the appellants of the charge under section 25 of the Arms Act but convicted them under sections 458 and 395 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for a period of five years under section 458 of the Indian Penal Code and rigorous imprisonment for a period of ten years under section 395 of the Indian Penal Code and the sentences were directed to run concurrently. 2. The prosecution case, as per the first information report (Ext.1) lodged by the informant Krushna Chandra Seth (P.W.9) before the Inspector in-Charge of Dhama police station on 24.09.2004, is that during the intervening night of 23/24.09.2004 at about 2.45 a.m. some unknown persons entered inside his house and committed robbery. His mother, younger brother Radheshyam Seth (P.W.4) and others were present in the house at the time of commission of robbery. It is stated that the culprits used 'bhujali' and pistol while committing the crime and they took away gold and silver ornaments and cash. In the first information report, the informant specifically mentioned that four persons committed the crime and he has given their description in the first information report. On the basis of such first information report, Dhama P.S. Case No.88 dated 24.09.2004 was registered under sections 458 and 395 of the Indian Penal Code against the unknown persons. P.W.16 Monaranjan Pradhan, Officer in- Charge of Dhama Police Station after registration of the case, took up investigation. During course of investigation, he examined the informant and other witnesses, visited the spot, prepared spot map Ext.18 on 07.10.2004 and arrested three accused persons, namely, Subharanjan Das, Prabin Sen and Jayalal Behera and seized some cash and toy pistols, 'bhujali' from their possession and forwarded them to Court on 08.10.2004. During course of investigation, he examined the informant and other witnesses, visited the spot, prepared spot map Ext.18 on 07.10.2004 and arrested three accused persons, namely, Subharanjan Das, Prabin Sen and Jayalal Behera and seized some cash and toy pistols, 'bhujali' from their possession and forwarded them to Court on 08.10.2004. These five appellants were arrested in connection with Jujumura P.S. Case No.81 of 2004 and some articles were also seized from their possession. The appellants were taken on remand in this case on 10.10.2004. On the prayer of the Investigating Officer (P.W.16), P.W.17, J.M.F.C., Sambalpur conducted the test identification parade of the suspects inside the Circle Jail, Samblapur on 14.10.2004 in which the informant (P.W.9) participated as an identifying witness and he identified all the five appellants. The other accused persons, who were earlier arrested and forwarded to Court, were not placed in the test identification parade on that day and it appears that the case against them has been splitted up. P.W.16 handed over the charge of investigation to Circle Inspector of Police, Subash Chandra Sahu (P.W.15), who on completion of investigation submitted charge sheet against the appellants as well as other co-accused persons. 3. During course of trial, the prosecution examined as many as seventeen witnesses. P.W.1 Haripriya Seth is the daughter of the informant, who identified the appellant Babulu Gada @ Pania Gada in Court to have entered inside their house. She stated that two other accused persons to whom she could not identify demanded key of the almirah kept in the house at the point of knife and out of fear, her mother handed over the key of the almirah to them and they took away the gold ornaments from the almirah. P.W.2 Rudrani Seth is the wife of the younger brother of the informant and she stated that she identified the appellants Bhutulu Gochhayat, Dhania Sahu and Ashok Ghadei in Court to have entered into her house and demanded the key of the almirah from her at the point of guns and knife and out of fear, she handed over the keys of the almirah and they took away the gold ornaments and cash of Rs.2,000/- from the almirah. P.W.3 Kamala Seth, who is the wife of the informant stated that all the accused persons entered into their house and at the point of knives and guns demanded the keys of the almirah and she asked her husband to part with the keys to them and thereafter, the accused persons took gold and silver ornaments and cash of Rs.6,000/- from the almirah. P.W.4 Radheshyam Seth, who is younger brother of the informant reiterated the same version as that of his wife P.W.2. P.W.5 Anurudha Samantray was a tenant in the house of the informant and stated that some miscreants entered into the house of the informant and looted away household properties. P.W.6 Santanu Seth and P.W.7 Sanatan Seth, who are the sons of the informant stated about some unknown persons looting away the properties from their house. P.W.8 Chhabila Seth is a co-villager of the informant and he did not support the prosecution case. P.W.9 Krushna Chandra Seth is the informant in the case, who supported the prosecution case. He is an identifying witness who identified the appellants in the test identification parade. P.W.10 Giri Gobardhan Mangual, P.W.11 Bidyadhar Rana, P.W.12 Dutia Behera, P.W.13 Pramod Seth, P.W.14 Aswini Kumar Jhankar are the witnesses to the seizure but they did not support the prosecution case. P.W.15 Subash Chandra Sahu is the Circle Inspector of Police, Sambalpur Sadar, who took over the charge of investigation from P.W.16 and submitted charge sheet. P.W.16 Manoranjan Pradhan, the Officer in-charge of Dhama police station was the initial investigating officer of the case. P.W.17 Sitikantha Samal was the J.M.F.C., Sambalpur, who conducted the test identification parade in respect of the appellants. No witness was examined on behalf of the defence. The prosecution exhibited eighteen numbers of documents. P.W.16 Manoranjan Pradhan, the Officer in-charge of Dhama police station was the initial investigating officer of the case. P.W.17 Sitikantha Samal was the J.M.F.C., Sambalpur, who conducted the test identification parade in respect of the appellants. No witness was examined on behalf of the defence. The prosecution exhibited eighteen numbers of documents. Ext.1 is the F.I.R., Ext.2 is the test identification parade report, Ext.3 is the Zimanama, Exts.4, 5, 6, 7, 8, 9, 10 and 12 are the seizure lists, Ext.11 is the confessional statement of the appellant Pania Gada, Ext.13 is the seizure list basing on which the articles were seized at the instance of the appellant Kanehi Naik @ Chipa, Ext.14 is the seizure list basing on which the articles were seized at the instance of the appellant Pania Gada, Ext.15 is the seizure list basing on which the articles were seized at the instance of the appellant Bhutulu Gochhayat, Exts.16 and 17 are the seizure memos and Ext.18 is the spot map. 4. The learned trial Court on analyzing the oral as well as documentary evidence on record, came to hold that the appellants committed dacoity in the relevant night by entering into the house of the informant (P.W.9), however, it was held that there is no cogent and credible evidence with regard to any unlawful possession of fire arms, such as, pistol by the accused persons contravening the provision under section 7 of the Arms Act and accordingly, it was held that the charge under section 25 of the Arms Act has not been established against the appellants. Learned trial Court, however, found that prosecution has successfully proved its case under sections 458 and 395 of the Indian Penal Code against all the appellants beyond all reasonable doubt. 5. When the matter was called, since the learned counsel for appellants, who filed power, were not present, Mr. Jagannath Gochhayat, learned counsel was engaged as Amicus Curiae and he was handed over the paper book and given time to prepare the case. After going through the same, he placed the impugned judgment and the evidence of the witnesses. 5. When the matter was called, since the learned counsel for appellants, who filed power, were not present, Mr. Jagannath Gochhayat, learned counsel was engaged as Amicus Curiae and he was handed over the paper book and given time to prepare the case. After going through the same, he placed the impugned judgment and the evidence of the witnesses. Learned Amicus Curiae submitted that in the first information report, it is specifically mentioned that four persons participated in the crime and therefore, the case was registered under section 392 of the Indian Penal Code and thus, the case of the prosecution that it is a case of dacoity, should not be accepted. It is his further contention that even though some articles were seized from the possession of the appellants but admittedly neither any test identification parade in respect of such articles were conducted nor those articles were produced in Court for the purpose of identification and for marking those as material objects, in absence of which no importance can be attached to the seizure of the articles from the possession of the appellants and it cannot be said that whatever were seized from the possession of the appellant were the stolen articles. It is further contented that it is a case of identification by a single witness i.e. the informant (P.W.9) and there is absolutely no material on record as to how the appellants were kept after their arrest and produced before the Court and therefore, the possibility of the informant (P.W.9) noticing them prior to the test identification parade after arrest at the time of production in Court cannot be ruled out. It is further submitted that during the test identification parade, the U.T.Ps. who were mixed up with the suspects were wearing different colour dresses and P.W.9 did not disclose before the Magistrate conducting test identification parade regarding details of specific part played by each of the suspects during the commission of the crime. It is submitted that though some other inmates of the house being examined in the Court identified some of the appellants in Court, but in absence of their participation in the test identification parade, no sanctity can be attached to their identification particularly when they were examined more than two years after the alleged occurrence. It is submitted that though some other inmates of the house being examined in the Court identified some of the appellants in Court, but in absence of their participation in the test identification parade, no sanctity can be attached to their identification particularly when they were examined more than two years after the alleged occurrence. It is further contended that it is a case of single identification and in absence of any corroborative evidence or any other attending circumstances, it is a fit case where the benefit of doubt should be extended in favour of the appellants. 6. Mr. A.K. Beura, learned Addl. Standing Counsel, on the other hand, supported the impugned judgment and submitted that nothing has been brought out by way of cross examination of P.W.9 to doubt his veracity and therefore, in view of the evidence of P.W.9 coupled with the test identification parade conducted by the Magistrate (P.W.17), it cannot be said that the learned trial Court has committed any illegality in convicting the appellants and therefore, the appeals should be dismissed. 7. It appears from the evidence of P.W.1 Haripriya Seth, who is the daughter of the informant that she identified the appellant Babulu Gada @ Pania Gada in Court during trial. She however stated that no test identification parade has been conducted in respect of the accused persons, which is factually incorrect. Similarly, P.W.2 Rudrani Seth has stated that the informant is the elder brother of her husband and she identified the appellants Bhutulu Gochhayat, Dhania Sahu and Ashwini Ghadei in Court during her evidence. Since P.W.1 and P.W.2 are the inmates of the house, no explanation has been offered by the prosecution as to why steps were not been taken by the prosecuting agency to make them as identifying witnesses in the test identification parade and therefore, it is very difficult to accept their evidence of identification in Court for the first time without being previously tested in the test identification parade, particularly when they were examined more than two years after the occurrence. 8. Coming to the evidence of the informant (PW.9), who is the star witness on behalf of the prosecution, he stated that five accused persons being armed with pistol and bhujali committed the crime. 8. Coming to the evidence of the informant (PW.9), who is the star witness on behalf of the prosecution, he stated that five accused persons being armed with pistol and bhujali committed the crime. Though he has stated that three accused persons entered inside his house and other two persons were standing outside the door of his house, but he admitted that he did not mention in the F.I.R. in that respect rather in the F.I.R., he has stated that four persons committed the crime. In the test identification parade, no doubt he identified all the appellants, which was held in the Circle Jail, Sambalpur on 14.10.2004, but the Magistrate (P.W.17), who conducted the test identification parade has stated that the U.T.Ps. were wearing different colour dresses and P.W.9 did not state before him the details of the parts played by the suspects during the commission of the crime. Though in this case, the appellants were taken on remand after being arrested in Jujumura P.S.Case No.81 of 2004, but there is nothing on record as to whether they were kept under face covered so as not to expose their identity to others either during transit to the Court or at the time of production before the Magistrate. It was the duty of the prosecution to bring on record that the appellants were kept under covers at the time of production in Court after their arrest to rule out the possibility of being noticed by others particularly, the identifying witness (P.W.9). In the case of Wakil Singh and others -Vrs.- State of Bihar reported in A.I.R. 1981 S.C. 1392, it has been held as follows : '2. In the instant case, we may mention that none of the witnesses in their earlier statements or in oral evidence gave any description of the dacoits whom they have alleged to have identified in the dacoity, nor did the witnesses give any identification marks viz., stature of the accused or whether they were fat or thin or of a fair colour or of black colour. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded. In absence of any such description, it will be impossible for us to convict any accused on the basis of a single identification, in which case the reasonable possibility of mistake in identification cannot be excluded. For these reasons, therefore, the trial court was right in not relying on the evidence of witnesses and not convicting the accused who are identified by only one witness, apart from the reasons that were given by the trial court. The High Court, however has chosen to rely on the evidence of a single witness, completely overlooking the facts and circumstances mentioned above. The High Court also ignored the fact that the identification was made at the T.I. parade about three months after the dacoity and in view of such a long lapse of time, it is not possible for any human being to remember the features of the accused and he is, therefore, very likely to commit mistakes. In these circumstances, unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a serious offence on the testimony of a single witness. In case of Dana Yadav @ Dahu and others -Vrs.- State of Bihar reported in A.I.R. 2002 Supreme Court 3325, it is held as follows:- '6..Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, 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 purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence'. 9. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence'. 9. In my humble view, the learned trial Court should not have placed any reliance on the evidence relating to the identification of some of the appellants by P.W.1 and P.W.2 as the same was not tested earlier by conducting T.I. parade by making them identifying witnesses. When the informant (P.W.9) has failed to state about the specific role played by the appellants at the time of commission of the crime before the Magistrate at the time of holding the test identification parade, when the U.T.Ps. who were mixed up with the suspects were wearing different colour dresses and there is absence of any evidence to rule out the possibility of P.W.9 noticing the appellants after their arrest prior to the holding of test identification parade and when the prosecution has not offered any explanation as to why the other inmates of the house did not take part in the test identification parade and when the articles seized from the possession of the appellants were not put to test identification parade nor produced in Court, it is very difficult to accept that the prosecution has successfully established the charges under sections 458 and 395 of the Indian Penal Code against the appellants basing on the single identification of P.W.9 both in T.I. Parade as well as in Court. Accordingly, the appeal is allowed. The impugned judgment and order of conviction of the appellants under sections 458 and 395 of the Indian Penal Code is hereby set aside and they are acquitted of all the charges. Since all the appellants are on bail, the bail bonds furnished by them before the learned trial Court stand cancelled. Lower Court records with a copy of this judgment be sent down to the learned trial Court forthwith for information. Before parting with the case, I would like to put on record my appreciation to the learned Amicus Curiae for rendering his valuable help and assistance in deciding these oldest pending appeals. The hearing fees is assessed to Rs.7,500/- (rupees seven thousand five hundred) in toto which would be paid to the learned Amicus Curiae immediately.