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Judgment
B.K. Misra, J.—This appeal is preferred by the Appellants challenging the order of conviction and sentences imposed on them by the
Learned Assistant Sessions Judge-cum-Chief Judicial Magistrate, Bargarh in S.T. Case No. 164-45 of 1996. The Learned Assistant Sessions
Judge, Bargarh while acquitting the Appellants of offence u/s 395 of the Indian Penal Code (for short ''I.PC'') convicted all of them u/s 460 of the
I.P.C. and directed each of the Appellant to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 100 in default of payment of fine to
further undergo rigorous imprisonment for one year. The Appellants were also convicted u/s 9-B(1)(b) of the Explosives Act, 1884 and each of
them were Sentenced to undergo rigorous imprisonment for two years and. to pay Fine of Rs. 3000 in default to each of them to undergo further
rigorous imprisonment for six months. The substantive sentences were directed to run concurrently. The case of the prosecution is that on the night
of 4.5.1994 the informant Purna Chandra Meher (Since dead) and his family members after dinner had slept on the inner verandah of their house
by bolting the doors of the house from inside. It is alleged that Prafulla Meher (P.W. 5), who is son of the informant Purna was watching T.V.
programme in his bed room that night. The F.I.R. further shows that around 12.30 in the night of 4.5.1994 there was a big bang on the front door
of the house of the informant Purna Chandra Meher and when the doors got opened five to six thieves entered inside his house. On hearing
knocking sound of the door the informant and is family members woke up and on seeing the thieves cried aloud. It is alleged that P.W. 5 on
hearing hue and cry rushed towards the thieves which resulted in a tussle between him and the thieves and on seeing that the informant Purna
Chandra Meher went up the Terrace of the upper floor of the house and called for the villagers at the top his voice. It is further seen from the
F.I.R. that the dacoit hurled bomb at P.W. 5. and escaped from the house of the informant. Because of the bomb blast, P.W. 5 and his daughter
P.W. 6 and son Manjit P.W. 7 sustained injuries on their person. The F.I.R. further depicts that at the time of the occurrence the thieves had
covered their faces with cloth and they had put on ''Lungi and ''Ganji'' (banyan) and they were 20 to 30 years of age. The thieves had left a three
celled torch light and a stick while escaping from the house of the informant. The informant Purna Chandra Meher telephoned to Bheden Police
Station that night. On receipt of the said information, Police arrived at village Bhoipalli i.e. village of informant. Information was lodged before
Police by the informant Purna Chandra Meher orally which was reduced into writing by the O.I.C., Bheden Police Station (Ext. 4). On receipt of
the F.I.R. (Ext. 4) investigation was taken up. T.I. Parade was conducted with regard to the identification of the dacoits and on completion of
investigation getting prima facie materials, charged sheet was placed against 13 accused persons including the present Appellants. Out of the said
13 accused persons so charge sheeted, Dilip Maiti, S.k. Hanif, Md. Kutubuddin and Gagan @ Kalia were shown as absconders and therefore the
case was splitted up against them as their attendance could not be procured despite coercive measures taken by the Court.
I may mention here for the sake of clarity that two accused persons, namely, Premananda Majhi @ Padhi, Dipak Tirki were separately tried
vide S.T. Case No. 81-9 of 1995 and they have been acquitted by the Learned Assistant Sessions Judge, Bargarh on 19.7.1995. The present
Appellants whose case also were splitted up were committed to the Court of session on 24.6.1996 and accordingly, they had to face trial in S.T.
Case No. 164-45 of 1996. The said trial was conducted before the Assistant Sessions Judge-cum-Chief Judicial Magistrate, Bargarh and it was
concluded on 26.8.1997 and the impugned order of conviction and sentences were passed on that date.
The plea of the Appellants during trial was that of complete denial of the occurrence and it is their further plea that they have been falsely
implicated in this case.
The prosecution in order to bring home the guilt of the accused persons examined 13 witnesses in all. During trial since the informant Purna
Chandra Meher died he could not be examined but his son, grand daughter and grandson who were injured in the alleged incident were examined
as P.Ws. 5, 6, & 7. P.W. 8 was the Judicial Magistrate First Class, who conducted the T.I. Parade in respect of the suspect in Bargarh Sub-Jail
on 9.6.1994. P.W. 3 is a doctor, who examined the Appellant Sankar Ghosh on police requisition. P.Ws. 4 and 9 are the two I.Os. P.W. 1 is the
finger print expert. P.W. 13 was the Scientific Officer of District Forensic Laboratory, Sambalpur P.W. 12 was the doctor, who had examined the
injured Prafulla Meher (P.W. 5). P.W. 11 was the medical Record Keeper of V.S.S. Medical College, Burla who produced the Bed Head Ticket
of P. W. 5 before Court. P.Ws. 1 and 2 were the two other independent witnesses for the prosecution on the point of occurrence. The Appellants
declined to examine any witness in their defence.
The Learned Assistant Sessions Judge formulated two points for determination namely:-
(i) Whether on 4/5.5.94 at 12.30 A.M. at Bhoipalli, the accused persons committed dacoity in the house of P.W. 5 Prafulla Meher?
(ii) Whether on the same day time and place, the accused persons Illegally possessed explosive without license and blasted bombs in the house of
P.W. 5 while committing dacoity ?
Learned Assistant Sessions Judge, Bargarh on analyzing the evidence on record arrived at the conclusion that the prosecution failed to establish
its case against the Appellants u/s 395 of the I.P.C. but established its case against the Appellant u/s 460 of I.P.C. as well as u/s 9-B(1)(b) of the
Explosives Act and passed the impugned sentence which are under challenge in this appeal.
Learned Counsel for the Appellants in course of his argument contended that the impugned order of conviction and sentences cannot at ail be
sustained as the Learned Assistant Sessions Judge without any cogent and consistent evidence purely basing upon surmises and conjecture
convicted the Appellants and that too simply on the evidence of the finger print expert who found the finger prints on the Beer bottle Club-4000
tallied with the right thumb impression of suspect Hanu Sandha @ Gajendra Ghasi @ Lambu Ghasi and so also the chance finger print marked A/1
detected on the same Beer bottle tallied with the specimen print of the Appellant Rahas Kumbhar and the finger print found on the Gold Riband
bottle maked-B tallied with the specimen thumb impression of suspect Sankar Ghosh and also because of the fact that Sankar Ghosh had
sustained injuries on his person which the doctor opined to have been caused by bomb blast. According to Learned Counsel for the Appellant the
findings of the Learned Assistant Sessions Judge is so perverse that no Court of purdence can sustain them and accordingly it was urged that the
order of conviction and sentences imposed on the Appellants should be set aside.
Learned Additional Government Advocate appearing for the State supported the order of conviction and sentences.
The F.I.R. which was lodged immediately after the occurrence by the Purna Chandra Meher, the father of P.W. 5 shows that around 12.30 in
the night of 4.5.1994 five to six dacoits had entered inside his house after breaking open the front door of his house and on hearing that he
proceeded to the roof top of his house and called for the villagers and at that time his son Prafulla (P.W. 5) was engaged in a tussle for which the
dacoit hurled a bomb and escaped leaving a three celled torch light and a stick. The F.I.R. Ext. 4 shows that because of the bombing his grandson
P W. 5 and grand daughter sustained injuries on their person. It is also mentioned in the F.I.R. that the dacoit at the time of occurrence had
covered their faces with cloth and they were within the age group of 20 to 30 years and had put on ''Lungi'' and ''Ganji''. The F.I.R. further reveals
that the informant had stated that they can identify the dacoits. Thus, the F.I.R. Ext. 4 nowhere depicts the name of the Present Appellants and it
shows that five to six dacoits who had entered into the hose had covered their faces with cloth. The informant Purna Chandra Meher could not be
examined in Court as he died before that. His son the injured Prafulla Meher and his injured grand daughter Lilima Meher and Grandson Manjit
Kumar Meher have been examined as P.Ws. 5, 6 and 7. It is the consistent evidence of P.W.s. 5, 6 & 7 that on the night of 4th May, 1994 they
had slept in their house after taking food and they woke up on hearing explosion of bombs and found five to six persons to have entered inside
their inner verandah. P.W. 5 deposed that when he came out of the house on hearing explosion of bomb followed by his wife they found four to
five dacoits to have surrounded his father and when he raised ''lathi'' to assault them those dacoits started assaulting him and they were engaged in
a tussle and thereafter they ran towards the road and hurled two to three bombs to their house for which he sustained injuries on his right side
lower abdomen, left hand, right thigh and fracture of right hand. His father, wife; daughter and son had also sustained injuries because of the bomb
explosion. P.W. 5 further deposed that while he was going to lock the iron grill of his house a thief hurled a bomb for which he and Sankar Ghosh
sustained injuries. P.W. 5 also deposed that he could identify some of the accused persons in the electric light of ''Dhenkisala'' as during tussle the
towels slipped from the faces of the thieves. P. W. 5 in Court deposed that he knew accused Uttam Ghadei, Ghosh and Hanu Sandha but he does
not know the other accused. I may mention here that P.W. 5 was not an identifying witness when T.I. Parade was held by the Learned Judicial
Magistrate First Class, Bargarh on 9.6.1994. P.W. 5 in his cross-examination also deposed the prior to the occurrence he did not know Uttam
Ghadei Sankar Ghosh and Hanu Sandha. It is also his further evidence that he did not State before police that he knew three accused persons
namely, Uttam Ghadei, Sankar Ghosh and Hanu Sandha and that the accused Sankar Ghosh sustained injuries on his person due to explosion of,
bomb. On a close and critical analysis of the evidence of P.W. 5 it is seen that P.W. 5 has never breathed a word as to who were those dacoits
whom he could identify in the electric light of the ''Dhenkisala'' as the towels slipped from their faces during tussle. If we believe the evidence of
PW. 5 in his cross-examination that he did not know accused Uttam Ghadei, Sankar Ghosh and Hanu Sandha Prior to the occurrence and he had
not seen them in between the date of occurrence till he deposed in the Court then his evidence in examination in chief that he knew accused Uttam
Ghadei, Sankar Ghosh and Hanu Sandha appears as a myth. P.Ws. 6 and 7 the daughter and son of P.W. 5 they have also deposed that they
know accused Uttam Ghadei, Sankar Ghosh and Hanu Sandha. They also consistently deposed that five to six persons entered inside houses who
had covered their faces with towels. They also further deposed that there was a tussle between the thieves and their father and the dacoits filed
away. P.W. 6 deposed that though the dacoits had covered their faces with towel but their eyes were visible.
This evidence of P.W. 6 cannot at all be believed for a moment as the F.I.R. is completely silent on that aspect and the father of P.W. 6, namely,
P.W. 5 has not breathed a word in his evidence that the eyes of the dacoits were visible though they had covered their faces with towel. P.W. 6 in
her cross-examination deposed that she did not know the names of the three accused persons whom she had seen during commission of crime nor
she had seen them prior to the occurrence. P.W. 6 also admitted in her cross-examination that she did not state before Police that she knew the
three accused persons whom she identified in Court and she also further deposed that she does not remember if she has stated before; Police that
she could see the face of the three accused persons whom she identified in Court as the towel with which they had covered their faces had slipped
during scuffle with his parent. This witness P.W. 6 who was an indentifying witness to the TI. Parade deposed on oath that she identified either four
or five suspects but she asserted to have identified in the T.I. Parade accused Uttam Ghadei, Sankar Ghosh and Hanu Sandha, She also further
deposed in her cross-examination that in an earlier case she had identified accused Dipak Tirky, who was also amongst those 35 or 36 persons in
the TI. Parade. P.W. 7 also deposed that during scuffle since the cloth slipped from the faces of the accused persons she could identify three
persons with the light from outside. This P.W. 7 also was an identifying witness in the T.I. Parade where he identified accused Uttam Ghadei,
Sankar Ghosh and Hanu Sandha. P.W. 7 also deposed that he did not state before the police the names of accused Uttam Ghadei, Sankar Ghosh
and Hanu Sandha to have participated in the alleged crime. It is the consistent evidence, of P.Ws. 6 and 7 that when the T.I. Parade was held
there were 35 to 36 U.T.Ps. whom they were called to identify, had put on different dresses. They were all of different height, colour and stature
also. P.W. 8 is the Magistrate, who deposed that on 9.6.1994 on the request of the S.D.J.M. Bargarh he conducted T.I. Parade in respect of the
suspects Sankar Ghosh, Uttam Ghadei and Hanu Sandha @ Gajendra Sandha and the indentifying witnesses Lilima Meher, Manjit Meher and
Purna Ch. Meher correctly identified the suspect Sankar Ghosh, Uttam Ghadei and Hanu Sandha and others whom they had seen at the time of
occurrence with electric light. P.W. 8 has proved the TI. Parade report prepared by him as Ext. 5.
P.W. 1 who is an independent witness for the prosecution was the Ward Member of Bhoipalli when the occurrence took place, deposed that
there was a dacoity In his village Bhoipalli and on the next day morning Police came with some persons along with accused Sankar Ghosh to the
house of the informant. On the next day being called by a Constable he had been to the Police Station to identify the culprits. This P.W. 1 was
declared hostile by the prosecution but nothing could be elicited from his mouth by the prosecution. In this case, I may mention here that the
occurrence took place on the night of 4.5.1994. The evidence of one of the I.O. P.W. 9 shows that he arrested accused Bhanu on 12.5.1994 and
arrested Uttam Ghadei and Sankar Ghosh so also accused Rahas Kumbhar on 13.5.1994. It is also seen form the evidence of P.W. 9 that the
recorded the disclosure statement of accused Uttam Ghadei and the said accused Uttam Ghadei led him and the witnesses to the southern side of
cow dung pit of Bhaskar Meher of villager Bhoipalli and gave recovery of the plastic bag M.O. VI emitting smell of explosive materials. P.W. 9
further deposed that he seized the white plastic bag (M.O. VI) under seizure list Ext. 10. The seizure list shows that the hose and cow dung pit of
Bhaskar situate in Mouza Bhoipalli i.e. where the alleged dacoity took place. Thus on record it is established that the Appellant Uttam Ghadei had
been taken to the village Bhoipalli on 13.5.194 i.e. after a days of the alleged occurrence and before the T.I. Parade was held. The record also
shows that the present Appellants were produced before the S.D.J.M. Bargarh on 13.5.1994 as well as on 27.5.1994. The unchallenged
testimony of P.W. 1 shows that accused Sankar Ghosh was taken to village Bhoipalli by the I.O. on the next day morning of the occurrence to the
house of the informant and he was called to identify the culprits the next day. There is no material on record to show that when the Appellants were
produced before the Learned S.D.J.M., Bargarh on 13.5.1.994 and 27.5.1994 precautions had been taken to conceal their face so that they
cannot be seen by the witnesses including P.Ws. 6 & 7.
There has also been delay in holding T.I. Parade in this case This delay also has not been explained by the prosecution while leading evidence.
(1987 Criminal Law Journal S.C. 991 and 1993 OCR (S.C.) 115). The Learned Trial Court had rightly dis-believed the identification of the
Appellants Uttam Ghadei, Sankar Ghosh and Hanu Sandha. It is seen that when the T.I. Parade report Ext. 5 shows that the identifying witness
Lilima Meher (P.W. 6) correctly identified accused Sankar Ghosh, Hanu Sandha and Dipak Tirky but P.W. 8, the Learned Magistrate deposed
that P.W. 6 correctly identified Hanu Sandha, Sankar Ghosh and others in the T.I. Parade. Ext. 5 the T.I. Parade report do not show P.W. 6 to
have identified the Appellant Uttam Ghadei in the said T.I. Parade. Thus, the evidence of P.Ws. 5 to a and the T.I. Parade report Ext. 5 cannot be
of any assistance to the prosecution and the Learned Trial Court had correctly observed in the body of the Judgment that the contradiction that
appear in the evidence of P.Ws. 5, 6 and 7 diminishes the value of the T.I. Parade report considerably and no importance can be attached or given
to it.
There is no other evidence on record to show the involvement of the Appellants in the commission of dacoity in the house of P.W. 5 on the
night of 4.5.1994. P.W. 2 who is another witness for the prosecution the deposed that he does not know the accused persons not does he know
anything about the occurrence. P.Ws. 3 and 12 are the two doctors. P.W. 4 is one of the I.O., who received the oral report of the informant which
has been marked as Ext. 4 speaks of seizure of the torch light, stones, some portions of burnt jute and papers of the exploded Bomb, one wooden
baton, three pieces of broken bamboo, iron hook and one blood stained cloth, namely, M.O. I., M.O. III, M.O. IV, M.O. V. and M.O. VI
respectively vide seizure list Ext. 1 P.W. 9 is the other 1.0. Admittedly the I.Os. are post occurrence witnesses. P.W. 9 deposed that he arrested
Uttam Ghadei on 12.5.1994 and recorded his statement u/s 27 of the Evidence Act and accused Uttam while in police custody led him and the
witnesses to the southern side cow dung pit of Bhaskar Meher and gave recovery of a plastic bag i.e. M.O. VI which is seized under Seizure list
Ext. 10 P.W. 13 is the Scientific Officer attached to the District Forensic Laboratory, Sambalpur who visited the spot that is the place where
allegedly bombs were being prepared which situate half a kilometer away from the house of the Purna Chandra Meher and he found remnants of
powdered residue of chemical and paper slip. He also collected chance prints from Club 4000 empty Beer bottle and from one Gold Riband
empty liquor bottle M.Os. II and XII. Such chance prints were marked A and A/1 and similarly the chance print found on Gold Riband bottle from
the spot was marked as B and those were developed and he advised the I.O. to send the specimen finger prints of the suspects as well as chance
prints collected from the Beer bottle as well as Gold Riband bottle to the Director R.F.S.L. Bhubaneswar. It is the evidence of P.W. 13 that he
found the Beer bottle and whisky bottle lying in an open place. P.W. 9 one of the I.O. deposed that he collected the finger print of the accused
Uttam Ghadei, Rahas Kumbhar and Sankar Ghosh marked Ext. 9, 14 & 15 respectively and sent them to the Director State Finger Print Bureau
for comparison and report. The report of the Director, State Finger Print Bureau has been proved as Ext. 19. The evidence of P.W. 10 is that the
Gold Riband as well as Club 4000 Beer bottles were not sent to the Finger Print Bureau for examination, It is also the evidence of P.W. 10 in his
cross-examination that the finger print of a person if taken and developed from an ordinary glass bottle and a Club 4000 Beer bottle then the finger
prints would be identical. The evidence of P.W. 10 shows that the chance print marked A, A/1 and B were taken at Sambalpur and therefore he
cannot say the name of the photographer who had taken the chance print phots. The further evidence of P.W. 10 shows that the chance print
marked A detected on a Beer bottle Club 4000 tallied with specimen right thumb impression of suspect Hanu Sandha @ Gajendra Ghasi @
Lambu Ghasi and the chance Printmarked A/1 detected on the same Beer bottle tallied with the specimen right little finger of suspect Rahas
Kumbhar. It is also his evidence that the chance print marked B detected on the gold Riband bottle tallied with the specimen right thumb
impression of suspect Sankar Ghosh.
The Learned Assistant Sessions Judge placed much reliance on the evidence of P.W. 10 as well as the evidence of P.W. 3, the doctor who
had examined the accused Sankar Ghosh on police requisition on 13.05.1994 and found three lacerated injuries of different size and shape i.e. one
lacerated injury on the deltoid region of right arm, lacerated injury one and half inch below the lateral end of right clavicle, multiple irregular
lacerated wounds partially healed on the right shoulder, right side neck and one abrasion on the chest and in his opinion those were possibly
caused by bomb and the Court also heavily relied upon the seizure of M.O. VI as per the disclosure statement of the Appellant Uttam Ghadel and
thus the Court arrived at a conclusion that the Appellants had assembled at village Bhoipalli and after taking liquor manufactured bombs and
thereafter on the mid night of 4.5.1994 they broke open the door of the house of P.W. 5 to commit dacoity.
Thus, in absence of any direct evidence showing complicity of the present Appellant in commission of dacoity in the house of P.W. 5 on the
night of 4.5.1994 the Court relied upon the circumstantial evidence as has been stated above. In the instant case, two circumstances on which the
prosecution staked their case appears to be shaky, suspicious and fragile to furnish a sound foundation for conviction. It is seen in the instant case
that specimen finger print of the Appellants were never taken before or under the order of the S.D.J.M., Bargarh in accordance with Section 5 of
the Identification of Prisoners Act. Further, the evidence of the I.O. do not at all show if any precaution was taken to eliminate possibility of the
fabrication of finger print so collected from the Club 4000 empty Beer bottle as well as Gold Riband bottle. The signature of the witnesses had not
been taken on the finger print slips marked Ext. 9, 14, 15 &16 Mahmood Vs. State of U.P., . Even if it is assumed that the finger prints were
found on the Club 4000 Beer bottle and Gold Riband Bottle, the evidence of P.W. 10 and the finger print report which was marked Ext. 19
cannot form the basis for implicating the present Appellants, as PW. 10 did not furnish any reasons in support of his opinion that the chance finger
prints which he found on the Beer bottle as well as Gold Riband bottle were that of the Appellants Hanu Sandha @ Gajendra Ghasi @ Lambu
Ghasi, Rahas Kumbhar and Sankar Ghosh respectively. Thus, it would be highly unsafe to convict the Appellants without any independent
corroboration solely on the bald and dogmatic opinion of PW. 10. It is the well established cannons of law that the Court cannot act purely on
surmises, conjectures and suspicion, as suspicion however strong cannot take place of actual proof. The reasons assigned by the Learned
Assistant Sessions Judge shows that he had placed undue importance on the evidence of P.W. 10, the finger print expert, the medical evidence of
P.W. 3 about the injuries on the person of the Appellant Sankar Ghosh and recorded the order of conviction which cannot be sustained in the eye
of law.
In the result, from the aforesaid analysis of evidence and. materials on record while allowing this appeal I set aside the order of conviction and
sentences imposed on the Appellants and they are acquitted of the offences u/s 460 of the I.P.C. and also from the charge u/s 9-B(1)(b) of the
Explosives Act.