Krupasindhu Mallik vs State of Orissa

J.K. Mohanty, J.—Petitioner along with one Kanhu Charan Mallik was tried in the Court of the Judicial Magistrate, 1st Class, Balasore In C. R Case No. 1253 of 1974 for an offence u/s 380 Indian Penal Code and sentenced to regorous Imprisonment for a period of one year and to pay a fine of Rs. 500/- In default to undergo rigorous imprisonment for a further period at three months each. Against the aforesaid order of conviction and sentence, only Krupasindhu Mallik alias Fenta Mallik prefferred an appeal before the Sessions Judge, Balasore who, in Criminal Appeal No. 199 of 1976, while maintaining the conviction, reduced the sentence passed on the Petitioner to eight months R. I. and, a fine of Rs. 200/- in default to undergo further R. I. for one month. Against that, the Petitioner has come up to this Court with the present criminal- revision.

The prosecution case may be briefly stated as follows: On the night of 23-10-1974 the Petitioner along with Kanhu Charan Mallik committed theft of cash, gold and silver ornaments and utensils etc, from the dwelling house of Sanyasi Charan Mallik, the informant P.W. 1 in this case. The accused persons, while in police custody, led the investigating Officer to the place of concealment and gave recovery of the stolen properties which were seized in presence of the witnesses as per Exts. 2 and 4. Kanhu Charan Mallik, the co-accused, made an extra-judicial confession before P.Ws. 4 and 5 to the effect that he along with the present Petitioner had committed theft. The seized articles (ornaments and utensils) were put in the Test Identification Parade and were identified by P.Ws. 1 and 4.

The plea of the accused persons during trial was a complete denial of their complicity in the crime. The Petitioner, however, took the plea that he had enmity with P.W. 1, the informant; so this false case was started against him.

Mr. R.N. Sutar, learned Counsel appearing for the Petitioner, raised the following contentions:

(1) That the alleged extra-judicial confession made by the co-accused Kanhu Charan Mallik cannot be relied upon as the same was made in presence of the Gramarakhi who is a police officer.

(2) That the alleged seizure of the stolen articles said to have been made on the information of the accused persons cannot be believed in view of the conflicting statements made by the witnesses regarding time, manner place of seizure and the persons from whom those were seized; and

(3) The T. I. Parade had not been done according to law and in any event the identifying witnesses (P.Ws. 1 and 4) had several occasions to see the articles before the T. I. Parade and there was inordinate delay in conducting the T. I. Parade.

Both the Courts below, while convicting the accused persons, have relied upon the extra-judicial confession made by the co-accused Kanhu Charan Mallik and the seizure of the articles at the instance of the accused persons which were identified in the T. I. Parade.

It is alleged that the extra-judicial confession by Kanhu Charan Mallik, co-accused was made before P.Ws. 4 and 5. P.W. 4 in his evidence has stayed that on the day following the occurrence, he found accused Kanhu Charan Mallik loitering near their house in a suspicious manner and on being asked by him, the accused Kanhu Mallik admitted that he along with the Petitioner committed theft by making an opening in the wall of the house. In cross-examination P.W. 4 has admitted that the confession was made in the presence of the Gramarakhi Fakir Giri and other villagers. P.W. 5 states that on being called, he came to the house of P.W. 1 and found the accused Kanhu Mallik was detained by him and he (Kanhu Mallik) confessed before them that he along with the Petitioner had committed theft in the house of P.W. 1. The question now arises is whether the confession made by the co-accused Kanhu Mallik in the presence of Gramarakhi can be utilised against the accused persons. This question has already been decided by a Division Bench of this Court in the case of Madan '' Undu Barik v. The State 43 (1977) C.L.T. 512, where it has been held that the "Gramarakhi" being a police officer, the extrajudicial confession made in presence of the Gramarakhi is not admissible in evidences. In view of the aforesaid decision, the extra-judicial confession made by the co-accused Kanhu Mallik before P.Ws. 4 and 5 cannot be relied upon in support of the prosecution case.

It is further alleged by the prosecution that the stolen articles namely, some currency notes, some gold and silver ornaments and utensils were recovered in consequence of information received from the accused-Petitioner, who brought out these articles after digging earth inside the cowshed. These articles were seized by the 1. G. as per Ext. 2 in presence of P.Ws. 2 and 6. Similarly, according to the prosecution, some utensils were recovered from a pond at the instance of accused Kanhu Mallik while in custody which were seized by the I. O. in presence of P.Ws. 2 and 6. P.W. 2 in his evidence has stated that he was present at the time the I. O. searched the house of the Petitioner after the incident and the Petitioner while in police custody, gave recovery of cash and ornaments etc.. P.W. 6 has stated that the stolen articles were recovered on 24-10-1974 and the police officer reached the village on 25-10-1974. This shows that the articles were recovered on the day following the occurrence. But the actual seizure was made by the police on 26-10-1974. It has been observed by the learned appellate Judge that there might have been a mistake about the date of seizure by P.W. 6. But I cannot persuade myself to accept the aforesaid position due to certain inherent contradictions in the evidence of the prosecution witnesses. P.W. 5 before whom the extra-judicial confession was said to have been made by the co-accused Kanhu Mallik has categorically stated that on the day following the occurrence after accused Kanhu Mallik confessed before them to have committed theft along with the Petitioner he took them to the village tank where he had concealed the stolen utensils and gave recovery of those articles in their presence. But the recitals in the seizure list (Ext. 4). the evidence of P.Ws. 2 and 6 and the evidence of the I. O. (P.W. 8) tell a different story. They state that on 26th October 1974 at the instance of accused Kanhu Mallik the utensils were seized as per Ext. 4 from the pond. In Ext. 2 it has been categorically mentioned that the cash and the ornaments were dug out by the Petitioner from the cowshed and were seized as per Ext. 2. But this is believed by the evidence of P.W. 2 who states that the cash and the ornaments etc. were produced by the wife of the Petitioner. To add to this, there is an inherent defect in the prosecution evidence, i. e. none of the witnesses including the seizure witnesses (P.Ws. 2 & 6) and P.W. 8 (Investigating Officer) have identified the seized articles in Court. The seized articles have also not been marked as Material Objects.

Merely making a general statement that the articles were seized will not help the prosecution unless it is further stated in Court as to which of the articles were seized where and from whose possession with reference to particular articles. This important aspect of the case has been lost sight of by the Courts below. So mere seizure of some articles (which allegedly included stolen articles) recovered at the instance of the accused persons will not help the prosecution unless it is further established that the articles seized were the stolen articles and were recovered from the houses of the accused persons by pointing out each of the articles in Court and giving evidence to that effect.

The only point now remains for consideration is the evidentiary value of the T. I. Parade. In the T. I. Parade P.Ws. 1 and 4 have identified the stolen articles as per T. I. Parade report. Ext. 5. P.W. 1 has stated that he had seen the seized articles at the time of recovery as it was shown to him by the police for identification and that he had also the occasion to see those articles in the police station where he went to identify. So he had seen the stolen articles before the T. I. Parade. Similarly, P.W. 4 has admitted to have seen the articles that were seized from the house of the Petitioner at the time of seizure by the police. Those two witnesses (P.Ws. 1 and 4). while deposing in Court, have not painted out as to which articles were stolen from their houses and which articles they identified in the T. 1. Parade. On the other, P.W. 1 has stated that he did not find the articles in Court which he had identified. As already observed, these articles have not been marked as Material Objects. The established position of law is that the evidence of Test Identification Parade cannot form the basis of conviction. The evidence of Test Identification is not a substantive piece of evidence. The purpose of T. I. Parade is to test the statement of the witness made in Court which constitutes substantive evidence. Where there is no such substantive evidence at all as to the identity of the properties, the earlier identification parade cannot be of any assistance to the prosecution. Hasib v. State of Bihar A.I.R 1972 S.C. 283. The same view has also been expressed by their Lordships of the Supreme Court in the case of Vaikuntam Chandrappa and Others Vs. State of Andhra Pradesh, . Apart from these, there has been inordinate delay 10 conducting the T. I. Parade, the occurrence was on 23-10-1971 and the T I. Parade was held on 4-1-1975. Moreover, in between these dates, the witnesses (P.Ws. 1 and 4) who identified the articles in the T. I. Parade has several occasions to see those articles as stated earlier.

To add to this, the trying Magistrate has committed a grave error in conducting the accused''s examination by putting to both the accused persons question No. 1 in their examination u/s 313, Code of Criminal Procedure which is quoted below:

(Qsn. 1)

It is transpired from the evidence of P.Ws. that on 30-11-1974 at night you committed theft of ornaments and utensils etc, in the house of P.W. 1 Sanvasi Ch Mallik. what have you got to say?

Ans.:Michha Katha (in oriya).

The occurrence was on 23-10-1974. I do not understand how the learned Magistrate has put the date as 30-11-1974 as the date of occurrence while putting the question to the accused persons in their examination u/s 313, Code of Criminal Procedure. Further, in Question No. 3 the learned Magistrate has asked the following question to both the accused persons.

"It is also transpired from the evidence of P.W. 6 and P.W. 8 that the stolen properties were recovered by your instance in presence of witnesses as per Ext. 2. what have you got to say?

The seized articles mentioned in Ext. 2 were recovered at the instance of the Petitioner Krupasindhu Mallik, but not at the instance of accused Kanhu Charan Mallik. But the learned Magistrate has put identical question to both the accused persons by making carbon copies of the questions without applying his mind. Moreover, the accused persons have not been asked to explain about the extra- judicial confession in the accused statement, even though the same has been utilised as an important piece of evidence against them.

In view of the above facts and circumstances of the case, I am of opinion that the prosecution has not been able to prove the case against the accused persons.

In the result, therefore, I allow the revision, set aside the conviction and sentence passed on the Petitioner and acquit him of the charge against him. He is discharged from the bad bond.

I may mention that in this case the co-accused Kanhu Charan Mallik has not filed any revision against the order of conviction and sentence. As the prosecution has failed to prove the case, I am of the view that he should be acquitted of the charge u/s 380, Indian Penal Code. Therefore, in exercise of powers u/s 401, Code of Criminal Procedure, hereby set aside the order of conviction and sentence passed on Kanhu Charan Mallik by the Judicial Magistrate, 1st Class, Balasore in C. R. Case No. 1283 of 1974 and acquit him of the charge u/s 380, Indian Penal Code. He be set at liberty forthwith if still in custody.

Revision allowed.