Narayan Pal and Another vs The State of Orissa

K.B. Panda, J.—Fourteen Appellants facing trial u/s 396. Indian Penal Code in Sessions Trial No. 17/24 of 11)74/73 have been convicted thereunder and sentenced to undergo R.I. for seven years by the Additional Sessions Judge, Balasore on 15-2-1975. Three appeals have been preferred by them. In Criminal Appeal No. 33 of 1975 accused No. 1. Narayan and accused No. 14. Manibhadra are the Appellants; in Criminal Appeal No. 84 of 1975 accused No. 8, Rahaman Ali is the Appellant; and in Criminal Appeal No. 76 of 1975 the rest eleven are the Appellants. The last one is Jail Appeal. All the three appeals were heard analogously and this judgment will bind all the appeals.

The prosecution case in short is thus: On 16-4-1972 at about 9 p. m. some of the villagers of Tholsada had congregated in the house of Bhagaban Baisakh (p.w.1) to discuss regarding payment of rent. That meeting was over by 10 p. m. Thereafter p.w. 5 requested accused Narayan Pal to stay back for a discussion over the local school. They discussed the matter in the courtyard of. p.w. 3 near Tulasi Chaura. At that time p.w. 1, the son of p.w. 3, was preparing a net sitting in the verandah. P. "11. 10. Krushna Chandra Baisakh, son of p.w. 3, was in the house and his wife was in the kitchen. The prosecution story is that suddenly about 13 to 15 dacoits ran into the house, assaulted p.w. 3 bound down accused Narayan, raided the house and removed various articles, such as Sarees, gun, cartridges and ornaments etc. In course of the dacoity the inmates of the house were assaulted and when the villagers tried to intervene brick bats were thrown at them. Also arrows were shot in consequence of which one Pranabandhu Behera, deceased, received wound.

The I.O. (p.w.26) received a phone message about the occurrence from one Kanheilal Joshi. He made a station diary entry (Ext. 38) and proceeded to the spot. On the way the I.O. found injured Pranabandhu Behera who died subsequently. At the spot on information furnished by p.w. 1,. the informant, a plain paper F.I.R. was recorded (Ext. 1/l) in course of the night and a formal F.I.R. (Ext.1/2) was drawn up the next day at 8 a. m..

Pranabandhu in consequence of the injury with an arrow died the next day. The A.S.I. (p.w.21) held inquest over his body. Investigation was conducted by p.w. 26 who finally submitted charge-sheet against the 14 accused persons u/s 396, Indian Penal Code resulting in the conviction of all, aforesaid.

The defence is a denial of their complicity in the crime with a suggestion from most of the Appellants that they were detained and opportunities were given to the witnesses to see them and thereafter the false case was started.

The prosecution examined 27 witnesses and the defence none. Out of the p. ws.. the witnesses to the occurrence are p. ws. 1, 2, 3, 4, 6, 8, 9,10, 13, 14. 16 and 23; the three doctors who examined the injured persons are p. ws. 5, 24 and 25 out of whom p.w. 5 held the post mortem; p. ws. 7 and 20 are witnesses to some of the recoveries; p.w. 27 is the Magistrate who conducted the T.I. parade over the suspects; and the rest are link witnesses. The learned lower Court relying on the evidence of identification of the accused persons in Court which was supported by the evidence of their identification before the Magistrate in the T.I. Parade, circumstantial evidence, evidence regarding the injuries on some of the witnesses and evidence leading to the recovery of some cartridges convicted the Appellants.

In view of the contentions raised on behalf of the Appellants and on behalf of the State, the case of the Appellants can be put in three groups. In the first group the case of Appellant Narayan Pal will come, and in the third group the case of Appellant Manibhadra Baisakh and others will come in the second group.

Before dealing with the case of the individual Appellants the relationship of some of the witnesses with some of the accused need be mentioned. As already indicated, p.w. 3 is the father of p.w. 1 and p.w. 10 and p w. 6 is the son of p.w. 10. The Appellant Manibhadra is the son of one Hadibandhu who is a full brother of Nidhi (p.w.3). Appellant Narayan Pal is a co-villager and admittedly connected with the affairs of the local school along with p.w. 3. That there was a meeting in the house of p.w. 1 on the alleged night before the occurrence regarding payment of rent is not disputed nor the subsequent meeting between p.w. 3 and Narayan Pal in the courtyard of p.w.3. The dacoity is also not in dispute nor the injuries on some of the inmates of the house and some of the villagers. The sale point for consideration is if the evidence on the side of the prosecution justifies conviction of the Appellants.

So far as Appellant Narayan Pal is concerned, the evidence against him is confined to a confession leading to the recovery of four cartridges from a tank in the village situated near the house of p.w. 3. The witnesses to the recovery are p. ws. 7 and 20. Admittedly this Appellant was in the earlier meeting and also in the meeting regarding affairs of the local school on the request of p.w. 3. It is also in evidence of the inmates of the house of p.w. 3 that along with them this Appellant was bound down, he was blind-folded and tied to the Chaura. There is no mention of the fact in the F.I.R. that this Appellant was in any way connected with the gang of dacoits. The evidence regarding the confession as to where it was made and how it was made and the subsequent recovery of four cartridges, has however, become not convincing. There is no motive attributed to this Appellant as to why he would take part in a dacoity in the house of p. w 3, his co-villager. It is in evidence that p.w. 1 had thrown nine cartridges through the window at the time of dacoity and about 27 other cartridges had been taken away by the dacoits. There is no evidence that the four cartridges recovered from the tank were stolen cartridges. Thus even if the recovery of the cartridges at the instance of the Appellant is accepted, it cannot justify a conviction. The learned additional Government Advocate fairly conceded that the case as against this Appellant is week indeed. Accordingly the appeal of Narayan Pal is allowed.

The case of twelve other Appellants baring Manibhadra is next to be considered. The case as against them is solely confined to their identification in the T.I. parade before p.w. 27 and subsequent identification in Court. Some of the admitted features are that all these Appellants were arrested by 24-4-1972. A requisition for holding the T.I. parade was made by the J.O. on 20-5-1972. The charge-sheet was filed u/s 39. Indian Penal Code on 27-10-1972. In between the arrest of these Appellants and submission of the charge-sheet, there were several remands, such as on 9-6-1972, 24-6-1972, 30-7-1972, 24-7-1972, 7-8-1972 and 21-8-1972 till the T.I. parade was held on 23-8-1972. Some of the Appellants, such as, Laxman Nayak (A. 12), Rohia Singh (A. 18), Magu Singh (A. 13) and Nizamuddin Sahu (A 3) have stated how they were detained in the thana by the Police giving opportunity to the witnesses identify them.

It was strongly urged on behalf of the Appellants that the T.I. Parade in this case is an eye-wash and no importance should be attached to the same. In that context it was urged that the Appellants having been arrested by 24-4-1972, there was no justification for withholding the T.I. Parade till 23-8-1972. On behalf of the State it was urged that the requisition having been made on 20-5-1972, there was no laches on the side of the I.O. for making a requisition for holding the T.I. Parade. The law is well settled that the substantive evidence is what the witnesses depose in Court and not what transpired in the T.I. Parade. As has been laid down by their Lordships of the Supreme Court, the effect of the T.I. parade is to lend support to the evidence tendered in Court. Ordinarily the trial takes place much after and T.I. Parade is held in course of the investigation, i.e., soon after the occurrence. Importance is attached to the T.I. Parade because it is done soon after the occurrence when the memory of the witnesses would have been fresh. Unless there are other infirmities in holding the T.I. Parade, if it is done as early as possible, certainly it is entitled to great weight. All the same the burden lies on the prosecution to explain if there has been any delay in holding the same. In the instant case, admittedly there has been a delay of four months less by one day in holding the T.I. Parade after the arrest of all the Appellants. There is no reason assigned by the prosecution as to why this delay occurred. Even from the time of giving the requisition on 20-5-1972, three months lapsed in holding the T.I. Parade. In the case of Pritam Singh and Another Vs. The State of Rajasthan, . it has been held thus:

When the accused were not in the identification parade 11 days after their arrest and no convincing explanation came forth as to why so much time was allowed to pass between the arrest of the accused and the identification proceedings, identification cannot be said to be proper.

Again in the case of Girjanandan Singh Vs. Emperor, , it has been held that the identification by the three police constables after more than three months was not acceptable. That was a case of dacoity and so it was held that there was room for the possibility of mistake since it was difficult after such a long period to remember with certainty the face of a stranger only seen for a brief interval under such conditions.

Further in the case of Modan Singh v. State AIR 1953 Pepsu 7, it has been laid down thus:.

In a case which depends entirely upon identification of an accused persons in a parade held for the purpose, the prosecution must prove by evidence that the parade was held without any unnecessary delay and that the witnesses who picked him out in the parade as a culprit had no opportunity of seeing him at any time after the incident and before the parade. Evidence of this kind is not a mere formality but is indispensable to establish the identity of the accused and when such evidence is not forthcoming, the benefit of the omission must be given to the accused.

Relying on Muthuswami Vs. State of Madras, . the Madhya Pradesh High Court in the case of Krishna Kumar v. State of Madhya Pradesh 1963 (I) Cri. L.J. 686.

observed thus:

The whole purpose of holding an identification parade is defeated and its value almost completely lost if there is a long lapse of time between the date of arrest of the accused and the date of identification parade. What delay is inordinate is a question which must be answered by reference to all the circumstances of the case. The nature of the offence, the state of mind of the witness at the particular time when the offence was committed (terror, excitement, etc.) and the duration in which the witness had the opportunity to see the accused are facts to be particularly taken into account. The reason for rejecting the evidence of identification on the ground of inordinate delay is that ordinarily the human mind does not register an impression of a face seen only once for a brief moment, for a long time thereafter, unless that face has some special features or pecularities which help to fix its memory on the mind of the witness.

This was a case of rape during day time. The identification parade was held one and half months after. Yet the evidence of identification observation parade was brushed aside on the following

But the inordinate delay of one and a half months from the date offence together with the facts that the first identification parade proved abortive and on the second occasion the girl was seated in the courtyard while accused persons were seated in the verandah in front of her would take away all the evidentiary value of the identification parade. Also see- Rameshwar Singh Vs. State of Jammu and Kashmir, .

This is also the consistent view taken by this Court See 1973 C.L.R. 4136.

On behalf of the State, the learned Additional Govt. Advocate drew my attention to Budhsen and Another Vs. State of U.P., . That is an authority for the proposition that what is stated in Court is substantive evidence and not what is held in the T.I. parade. Hence their Lordships say as under:

The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding.

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Identification proceedings in their legal effect amount simply to this: that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognise as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162, Criminal Procedure Code.

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The identification to be of value should also be held without much delay.

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The evidence as to identification deserve, therefore, to be subjected to a dose and careful squinty by the Court.

Applying the above principle to the instant case there is no escape from the conclusion that there has been an inordinate delay of four months in holding the T.I. parade after the arrest of all the Appellants and in the absence of any explanation therefor, little importance is to be attached to the same. If that evidence is jettisoned, nothing remains on record to support the substantive evidence led in Court. As such the appeals of these Appellants have to be accepted.

The evidence against Appellant Manibhadra is confined to a motive, as ascribed by the prosecution for the crime to him, and certain incriminating circumstances as would be discussed hereafter. So far as the motive is concerned, it is alleged that one Anadi who is son of Pranabandhu, a full brother of Nidhi (p w. 3) is alleged to have committed theft of Rs. 500/ - from the father of Manibhadra and paid the same to Nidhi (p.w.3). Thus it is suggested that Appellant Manibhadra had a grudge against Nidhi (p.w.3). However, the learned lower Court has not accepted this aspect of the prosecution case and so it need not be discussed at length. The other incriminating circumstances, therefore, have to be judged in the background of absence of motive as well as the relationship of Appellant Manibhadra with Nidhi (p. w 3) as a nephew. Admittedly in the F.I.R. there is no indication that this Appellant was in any way connected with the dacoity. However, during trial p. ws. 3 and 6 involved him in the crime during the occurrence while p. ws. 12, 14, 15 and 17 said that he was associated with some of the dacoits prior to the occurrence. I would first deal with the witnesses to the occurrence of whom admittedly p.w. 3 is most important. There can be no gain-saying the fact that p.w. 3 knew this Appellant well. It is in his evidence that while he (p.w.3) was lying injured, this Appellant came with a stick and asked some of the culprits if their work was over. One of the dacoits answered saying that all the rooms were raided except one that was locked. No doubt if this statement of p.w. 3 is believed, much turns out on that. But in the circumstances of this case much credence cannot be given to this evidence of p.w. 3. P.w. 3. though injured, had not lost his consciousness. Therefore, the intervention of this Appellant at that juncture and making a quarry about the progress of the dacoity would, in all fitness of things, stick to the memory of p.w. 3 which he could ill-afford to forget. He would very likely challenge the action of the Appellant on the spot or even make mention of it in the F.I.R. But unfortunately nothing of the sort is there which would lead to the conclusion that it is an after-thought. P.w. 2 has stated that during the occurrence he had seen this Appellant with a torch and Siddique. Appellant No. 4 with a gun. There is no corroboration to this evidence. Besides, this p.w.2 was, according to him, a Halia of Manibhadra and thereafter of Nidhi and was not in service of the Appellant at the time he was deposing. P. w.. 6 is none but the son of p.w. 10 and the grandson of p.w. 3 who stated that he had seen this Appellant coming out of and getting into his house at the time of occurrence. No importance can be attached to this statement even if it be true. Therefore, taking the evidence of p. ws. 2. 3 and 6 into consideration cumulatively, that does not establish the case of dacoity as against this Appellant.

P.w. 12 has stated that he has seen, this Appellant with some of the dacoits in a tea stall. The evidence of p. ws. 14, 15 and 17 is that this Appellant was moving in a suspicious manner along with some of the accused persons prior to the occurrence. Suffice it to say that this evidence is not conclusive and all that it does is only throwing a suspicion against this Appellant which can hardly take the place of proof. In fine, therefore, in the absence of any motive of Manibhadra to participate in a dacoity against his uncle and the shaky nature of evidence as against him, his conviction cannot stand.

In the result, therefore, all the three appeals of the Appellants are allowed and they are acquitted of the charge. The conviction of all the Appellants is set aside and those who are yet in jail, be released forthwith and others who are on bail, they be discharged from their bail bonds.