Sarbeswar alias Sarba Khillar vs State of Orissa

S. K. SAHOO, J.

The appellant in Criminal Appeal No.188 of 2010 namely Sarbeswar @ Sarba Khillar, the appellant in Criminal Appeal No.267 of 2010 namely

Bishnu Behera, the appellant in Jail Criminal Appeal No.49 of 2010 namely Krushna Behera @ Dhadia and the appellant in Criminal Appeal No.241

of 2013 namely Gitu @ Jitu Majhi faced trial in the Court of learned Adhoc Addl. Sessions Judge, F.T.C. No.I, Puri in S.T. No.9/31 of 2008 for

offences punishable under sections 395, 397 and 458 of the Indian Penal Code and section 25 of the Arms Act. The learned Trial Court vide impugned

judgment and order dated 31.03.2010 though acquitted the appellants of the charge under section 25 of the Arms Act but found them guilty under

sections 395, 397 and 458 of the Indian Penal Code and accordingly convicted them of such offences and sentenced each of them to undergo R.I. for

seven years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default of payment of fine, to undergo R.I. for six months for the offence under

section 395 of the Indian Penal Code, R.I. for seven years for the offence under section 397 of the Indian Penal Code and R.I. for five years and to

pay a fine of Rs.2000/-, in default of payment of fine, to undergo R.I. for three months for the offence under section 458 of the Indian Penal Code and

all the sentences were directed to run concurrently. Since the criminal appeals and jail criminal appeal arise out of a common judgment, with the

consent of the parties, the appeals were heard analogously and disposed of by this common judgment.

The prosecution case, in short, is that in the intervening night of 11/12.05.2007 at about 12.30 a.m., there was a dacoity in Badalpur Math under the

jurisdiction of Kanas police station. P.W.2 Sarat Chandra Das was the Mahanta of the said Math. He along with the other inmates was sleeping in

different rooms and in the courtyard of the Math. Eight to ten culprits being armed with different weapons entered inside the Math by scaling over the

compound wall, assaulted the inmates of the Math and terrorized them and took away the valuable articles such as mobile phone, silver ornaments of

the deity and gold and silver rings of the Mahanta, four bicycles and cash of Rs.6500/-.

P.W.2 lodged the first information report before the officer in charge of Kanas police station on 12.05.2007, on the basis of which Kanas P.S. Case

No.25 of 2007 was registered under section 395 of the Indian Penal Code against eight to ten unknown persons. P.W.17 Mrutyunjay Swain, the

officer in charge of Kanas Police Station after registration of the case, took up investigation. During course of investigation, he examined the

informant, injured and other witnesses, issued injury requisitions in favour of the injured persons to Govt. Hospital, Kanas. He visited the spot and on

his requisition, scientific team also visited the spot. P.W.17 seized the cash memo of stolen mobile phone on production by the informant on

05.07.2007. P.W.17 seized the stolen mobile from one Bhagirathi Das and on the basis of his statement that he purchased the mobile from appellant

Sarbeswar @ Sarba Khillar, he arrested the said appellant from his village on 31.07.2007 and on the basis of the statement of the said appellant and at

his instance, a cycle was recovered from one Prafulla Naik to whom the appellant had sold the stolen cycle. The appellant was forwarded to Court

01.08.2007. On the basis of the confessional statement of the appellant Sarbeswar Khilar, the complicity of the other appellants was found. On

23.08.2007 the appellant Gitu @ Jitu Majhi was arrested in connection with another case and one cycle was recovered at the instance of the said

appellant. The other appellants namely, Bishnu Behera and Krushna Behera who were in jail custody in connection with other cases were taken on

remand in this case on 01.08.2007. The stolen mobile, cash and cycles were left in the zima of the informant after executing proper zimanama.

P.W.17 then handed over the charge of investigation to P.W.16 on 20.10.2007 who on completion of investigation, submitted charge sheet on

27.11.2007 for the offences under sections 458, 395 and 397 of the Indian Penal Code and section 25 of the Arms Act against the appellants.

In order to prove its case, the prosecution examined as many as seventeen witnesses. P.W. 1 Dillip Kumar Palei stated to have come to the Math

on hearing about the occurrence where the Mahanta told him about the commission of dacoity. P.W.2 Sarat Chandra Das is the informant in the case

and he stated about the commission of dacoity. He identified the appellants Bishnu Behera, Krushna Behera @ Dhadia and Sarbeswar @ Sarba

Khillar in Court as the persons who committed dacoity on the date of occurrence. P.W.3 Ratnakar Ranjit was one of the inmates of the Math and he

stated about the commission of dacoity. P.W.4 Chitaranjan Jaisingh, P.W.5 Mahendra Kumar Biswal, P.W.9 Prafulla Nayak, P.W.14 Prakash

Chandra Mohanty and P.W.15 Baban Mangaraj did not support the prosecution case for which they were declared hostile. P.W.6 Manas Kumar

Upadhay was one of the inmates of the Math who stated about the commission of dacoity. P.W.7 Krushna Chandra Naik was the Inspector in charge

of Jatni Police Station who stated about the recovery of one cycle at the instance of the appellant Jitu @ Gitu Majhi on the basis of his statement

recorded under section 27 of the Evidence Act. P.W.8 Pramod Kumar Parida was also one of the inmates of the Math and he stated about the

commission of dacoity. P.W.10 Kapal Dayanidhi was also one of the inmates of the Math and he stated about the appellants committing dacoity in the

Math. The evidence of P.Ws. 11, 12 and 13 are not relevant. P.W.16 and P.W.17 are the Investigating Officers. The prosecution exhibited seven

documents. Ext.1 is the first information report, Ext.2 is the zimanama, Ext.3/2, 5 and 6 are the seizure lists, Ext.4/1 is the confessional statement and

Ext.7 is the spot map.

The defence plea is one of the denial and false implication by the police.

Since nobody appeared on behalf of the appellants to argue the matter and it is a year old appeal, Mr. Arunendra Mohanty was appointed as amicus

curiae to assist the Court. He was supplied with the paper book and given time to prepare the case. After going through the case records, he placed

the evidence of the witnesses and also the impugned judgment. While assailing the impugned judgment and order of conviction, he contended that in

absence of test identification parade, identification of the appellants for the first time in Court is not acceptable. He further contented that no cogent

reason has been assigned as to why the test identification parade was not conducted and the photographs of the culprits were shown to the witnesses,

therefore, the identification of the appellants in Court looses all its sanctity. He further contended that the culprits had covered their faces and they

also damaged electric bulbs during commission of dacoity and therefore, it is very difficult to accept the first time identification of the appellants in

Court. He further contended that it is not established that the articles which were seized during investigation were the stolen articles and no seized

articles were produced in Court for identification and therefore, the impugned judgment and order of conviction cannot be sustained in the eye of law.

Mr. Prem Kumar Patnaik, learned Addl. Government Advocate on the other hand supported the impugned judgment and submitted that since the

appellants have been identified in Court as the culprits who committed dacoity, there is no perversity in the judgment.

There is no dispute that the first information report (Ext.1) was lodged by P.W.2 on 12.05.2007 against unknown persons and after arrest of some

of the appellants or after the others were taken on remand in the case, no test identification parade was conducted to establish their complicity in the

crime. P.W.17 is the Investigating Officer who stated that he did not take any step for conducting T.I. parade of the appellants as there was sufficient

evidence against them. P.W.2 identified the appellants Bishnu Behera, Krushna Behera and Sarbeswar @ Sarba Khillar in Court. In the cross

examination, he has stated that the occurrence took place during night time and the Math was lighted with ten to twelve electric bulbs but when they

go to sleep, only the bulb fitted outside the Math used to burn. He stated that the culprits had damaged one electric bulb burning in the court yard. He

further stated that the appellant Bishnu Behera had tied the napkin around his face and his face was only visible to him. He further stated that the

appellant Bishnu Behera along with two others wrapped their faces with napkins but the front portions of the face were completely visible. PW.3 on

the other hand has stated that when the dacoits entered inside the Math, they broke all the electric bulbs burning in the Math and the Math became

completely dark. P.W.6 has stated that the dacoits broke four electric bulbs burning in the court yard as well as in the outside. P.W.8 identified the

appellants Krushna Behera and Bishnu Behera in Court. He even stated that he knew those two appellants but in the cross examination he has stated

that he did not know the accused persons prior to the occurrence. If appellants Krushna Behera and Bishnu Behera were known to P.W.8 who was

an inmate of the Math, in ordinary course of nature, he would have disclosed the names of those two appellants before P.W.2, the informant, in the

event of which the first information report would have reflected their names. In absence of the names of any of the accused persons in the F.I.R., the

evidence of P.W.8 that he knew the appellants Krushna Behera and Bishnu Behera beforehand cannot be accepted.P.W.10 identified the appellants

in dock to have committed the crime. Since no test identification parade has been conducted and he identified the appellants for the first time in Court,

the evidence of the identification cannot be accepted. P.W.2 stated that after the apprehension of the culprits, the police had brought to one dacoit to

Math. He further stated that during investigation, the police had shown him a number of photographs out of which he had identified the dacoits present

in Court. The cumulative effect of the evidence of witnesses who were the inmates of Math would make it clear that electric bulbs which were there

in the Math except one which was burning in the courtyard were switched off on the night of occurrence and the electric bulb which was burning in

the courtyard as well as other electric bulbs were damaged by the culprits who were unknown to the inmates of the Math. It further appears that the

Math was completely dark at the time of occurrence and the culprits had put napkins around their faces and only front portion of their faces was

visible. It further appears that photographs of the culprits were shown to P.W.2. No cogent has been assigned as to why the test identification parade

was not conducted. It appears that the inmates of Math were frightened during the occurrence and in absence of light, it cannot be said that the

inmates had got sufficient opportunity to see the culprits clearly at the time of occurrence. In view of the background, non-holding of the test

identification parade is fatal to the prosecution. The witnesses identified the culprits for the first time in Court about ten months after the incident.

Therefore, in the factual scenario of the case, the identification of the appellants for the first time in Court after a lapse of considerable time is very

difficult to be accepted particularly when it is not backed by any earlier test identification parade. Therefore, I am of the view that the learned Court

was not justified in accepting the evidence relating to the identification of the appellants in Court for the first time in Court by the witnesses.

It is the prosecution case that one mobile phone was seized from one Bhagirathi Das and he told to have purchased the mobile from the appellant

Sarbeswar Khillar. The said Bhagirathi Das has not been examined in the case. The stolen mobile has not been produced in Court for identification.

No test identification parade in respect of such mobile has also been conducted. No documents relating to the ownership of such mobile were also

proved during trial. Therefore, the seizure of a mobile from one Bhagirathi Das cannot be said to be an incriminating material against appellant

Sarbeswar Khillar. Similarly, the seizure of two bicycles from two of the appellants is no way relevant for the purpose of the case as those were not

been proved to be the stolen properties of the case. No articles seized during course of investigation were produced in Court.

In view of foregoing discussion, I am of the humble view that the prosecution has not established its case against the appellants beyond all

reasonable doubt. Accordingly, all the criminal appeals are allowed. The impugned judgment and order of conviction and the sentence passed

thereunder by the learned trial Court is hereby set aside. The appellants are acquitted of all the charges. The hearing fees for the criminal appeals is

assessed to Rs.5000/- (rupees five thousand) in toto which would be paid to Mr. Arunendra Mohanty, the learned amicus curiae immediately.