Sitaram Jena And Others vs State Of Orissa

Sibo Sankar Mishra, J

The present Criminal Appeal, filed by the appellants is directed against the judgment and order dated 30.05.1992 passed by the learned Additional Sessions Judge, Balasore in S.T. No.7/4 of 1989, whereby the appellants have been convicted for the offences under Sections 395/457 of I.P.C. read with Section 9(B)(b) of the Indian Explosives Act. On that count, they have been sentenced to undergo R.I. for seven years each for the offence under Section 395 of I.P.C., to undergo R.I. for two years each for the offence under Section 457 of I.P.C. and to undergo R.I. for one year for the offence under Section 9(B)(b) of the Indian Explosives Act.

Heard Mr. Manoj Kumar Mohanty, learned counsel for the appellants and Mr. Ashok Kumar Apat, learned Additional Government Advocate for the State.

The appeal has been pending since 1992. During pendency of the appeal, barring the appellant No.1-Sitaram Jena and the appellant No.4-Birendra Jena, all the appellants have died on different dates. Therefore, the appeal qua the appellant No.2 (Madhusudan Jena), appellant No.3 (Panchanan Jena), appellant No.5 (Bhima Jena), appellant No.6 (Bangiri Jena), appellant No.7 (Bansidhar Jena) and appellant No.8 (Pratap Chandra Jena @ Kati) have already stood abated by virtue of various orders of this Court, which precisely reflected in the proceedings dated 09.04.2025 and 14.08.2025. In the absence of any application by the legal representatives or next friends of the deceased-appellants under Section 394 of the Cr.P.C. seeking leave to continue the appeal, the appeal qua the appellant Nos.2, 3, 5, 6, 7, and 8 stood abated. Accordingly, the present appeal survives for consideration only in respect of appellant Nos.1 and 4.

The prosecution case, as revealed from the F.I.R. (Ext.1), is that on the night of 16.01.1988, between 9:30 p.m. and 10:00 p.m., P.W.2 was sleeping in one room of their house at Nafrai along with his grandparents and younger brother. At that time, his mother (P.W.7) was awake, awaiting the return of her husband (P.W.1), who had not yet come back from his shop. At about 10:30 p.m., P.W.1 returned home, and after taking their meal, both P.Ws.1 and 7 retired to bed. While they were about to sleep, they heard a noise at the back door of the house. From the heavy thud, they suspected that some miscreants were attempting to break into the house. Shortly thereafter, they heard the door being forced open. Apprehending danger, P.W.1 opened the window and, in a state of panic, raised an alarm along with his wife (P.W.7), but no one responded. Meanwhile, they heard commotion from the room where the parents of P.W.1 were sleeping along with P.W.2 and his brother. The door of that room was also broken open, and the accused persons, having entered therein, looted gold and silver ornaments and other valuables belonging to the family. They further assaulted the father of P.W.1 and took away cash amounting to Rs.1,800/- kept in that room. Thereafter, the accused persons proceeded to the room where P.Ws.1 and 7 were sleeping. They attempted to break open the door by inserting a crowbar through the gap and also threatened P.W.1 by inserting a knife through the door, warning that he would be shot if the door was not opened. Out of fear, P.W.1 opened the door, whereupon 6 to 7 accused persons entered the room. They had covered their faces with mufflers and were armed with deadly weapons such as lathis and knives. The accused persons then broke open boxes and suitcases in the room and looted gold and silver ornaments, cash of Rs.1,800/-, and other articles including an umbrella, a torch light, a Favre Leuba wristwatch belonging to P.W.1, a ladies’ wristwatch (Kamini) belonging to P.W.7, a chaddar, and other household items. They also assaulted P.W.1 and forcibly removed the earrings worn by

P.W.7. After committing the dacoity, the accused persons fled the scene by exploding bombs at the gate and escaping through the bari. In the meantime, the father of P.W.1, who had climbed onto the roof and raised alarm to alert the villagers, was brought down and found to have sustained injuries. Upon hearing the cries of P.W.1 and his father, some villagers arrived and made arrangements to send the injured to the hospital. Thereafter, P.W.1, accompanied by a villager, proceeded to the Police Station and lodged the FIR at about 1:00 a.m., upon which the G.R. case was registered.

Subsequently, on 18.01.1988, P.W.1 submitted a further report (Ext.2) at the Police Station disclosing theft of additional articles in the same occurrence. During the course of investigation, the Investigating Officer (P.W.14) apprehended the accused persons, conducted a Test Identification Parade (T.I. Parade) in which they were identified by the witnesses, and recovered stolen articles at the instance of the accused persons, who led the police and witnesses to their respective houses. The seized properties were also subjected to T.I. Parade and were correctly identified. On completion of investigation, charge-sheet was submitted against the accused persons, including one Jadu Kuara, who was shown as an absconder.

The case against the absconding accused, Jadu Kuara, was split up, and the remaining accused persons, including Balaram Dalei, were committed to the Court of Session for trial. However, at the stage of trial, the accused Balaram Dalei absconded, and his case was also separated from that of the present accused persons.

In their statements recorded under Section 313 of the Cr.P.C., the accused persons denied the allegations and claimed to be innocent, asserting that they had been falsely implicated. According to them, they were taken from their respective houses by the police while they were asleep, brought to the Police Station, and thereafter produced before the Court in custody. They further alleged that their photographs were taken by the Investigating Officer and shown to the witnesses prior to the holding of the Test Identification Parade (T.I. parade).

The prosecution, in order to prove its case, examined fourteen witnesses. Among them, P.Ws. 1, 2, and 7 were the witnesses, who identified the accused persons in the Test Identification (T.I.) Parade.

P.W.10 was the Magistrate, who conducted the T.I. Parade of the accused persons on two occasions, i.e., on 30.01.1988 and 17.03.1988, and P.W.14 was the Investigating Officer (I.O.) of the case, who carried out the investigation.

The written report, seizure lists, T.I. Parade report, and other relevant documents were exhibited as Exts. 1 to 31. The articles seized during the course of investigation were also produced and marked as Material Objects (M.Os.) I to XXVIII. However, the defence has not adduced any evidence in support of its plea.

The learned trial Court after analysing the entire evidence brought on record found the accused persons guilty of offences under Sections 457/395 of I.P.C. read with Section 9(B)(b) of the Indian Explosive Act. Being aggrieved by the judgment of conviction and order of sentence passed by the learned trial Court, the present appeal has been preferred by the appellants.

Mr. Mohanty, learned counsel for the appellants, at the outset, contended that the case of the surviving appellants is outstanding in comparison to the deceased-appellants because the prosecution case is only hinges upon the identification of the accused persons through T.I. parade and the recovery of the stolen articles. The articles were also not appropriately identified through the T.I. parade. Hence, the present appellant Nos.1 and 4 are entitled to the benefit of doubt.

Mr. Mohanty, learned counsel has drawn the attention of this Court to the evidence of P.W.10 to create a doubt regarding the nature and reliability of the identification process adopted by the prosecution to implicate the present appellants. By emphasizing the testimony of P.W.9, Mr. Mohanty submitted that his presence at the time of recovery of articles from appellant No.4 is highly doubtful. According to him, the recovery took place during daytime in the village; however, the Investigating Officer (P.W.14), instead of associating local villagers as witnesses to the seizure, prefer to bring P.W.9 from Jaleswar, which is situated more than fifteen miles away from the place of occurrence. Therefore, he submitted that the entire recovery and the recovery alleged to have been made from the appellant No.4 is hit by Section 100 of Cr.P.C. In support of his contention, he has relied upon the judgment of the Hon’ble Supreme Court in the case of Sahib Singh vrs. State of Punjab[(1996) 11 SCC 685]. It is submitted by Mr. Mohanty, that before conducting a search, the police officer concerned is required to call upon some independent and respective people of the locality to witness the search. In a given case, if it is not possible to call upon any such witness available, or any local witnesses are not willing to be a party to such search, appropriate explanation for not involving the local witnesses ought to have been reflected in the evidence of P.W.14, the I.O. However, in the present case, no such explanation has been offered as to why P.W.9 allegedly a stranger standing at the Jaleswar bus stand was brought from a distance of fifteen miles to witness the search and seizure. It is further submitted that, in any event, as mandated under Sections 100(4) and 100(5) of the Cr.P.C., at least two independent witnesses ought to have been associated with the search. He has specifically relied upon paragraph-6 of Sahib Singh (supra), which reads as follows:-

“6. Having gone through the record we find much substance in each of the above contentions. Before conducting a search the police officer concerned is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found as in the present case that no attempt was made even by the police officer concerned to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the police officer, though not its admissibility. We next find from the record that the arms and ammunition allegedly recovered from the appellant and seized were not packeted and sealed. In Amarjit Singh v. State of Punjab¹ this Court has observed that non-sealing of the revolver at the spot is a serious infirmity because the possibility of tampering with the weapon cannot be ruled out. From the record we further find that there is no evidence to indicate with whom the revolver was after its seizure by PW 3 till it was sent to the Arms Expert for testing through Head Constable Baita Singh. This missing link also weakens the prosecution case. For all these infirmities we are of the view, that the appellant is entitled to the benefit of reasonable doubt.”

To buttress his argument, Mr. Mohanty, learned counsel for the appellants has also relied upon another judgment of the Hon’ble Supreme Court in the case of State of U.P. vrs. Arun Kumar Gupta[(2003) 2 SCC 202]. In the said judgment as well, similar view has been expressed by the Hon’ble Supreme Court regarding the seizure witness as per Section 100 Cr.P.C.

Per contra, Mr. Apat, learned Additional Government Advocate for the State has justified the reasoning recorded by the learned trial Court to arrive at the conclusion that the convicts are guilty of the offence under Sections 395/457 of I.P.C. and other allied offences.

I have carefully considered the submission made by both the parties at the Bar and also perused the materials available on record in detail. P.W.1 is the informant in the present case. He deposed that on 16.01.1988 about 11.30 P.M., after he had retired to the bed, the occurrence took place. At that time, his wife (P.W.7), parents, and his two sons were present in the house. Before falling asleep, he heard a sound near the bedroom. Soon after, both he and his wife woke up, suspecting the entry of dacoits into the house. They opened the window and shouted for help. Soon thereafter, he heard noises from the room where his father was sleeping. Both his father and mother raised cries for help. His mother called him stating that his father was being assaulted. Within three to four minutes, they also heard the sound at the back door of their room, where the intruders were attempting to break it open by using a crowbar and knife. Subsequently, six to seven intruders entered inside the room armed with lathi, knife, torchlight etc. The said witness has narrated the attires of all the culprits and stated that the culprits threatened to fire in case the door is not opened. Out of fear of their lives, he opened the door. All the culprits looted various articles, the details of which were also mentioned by the witness. Before leaving, the culprits exploded a bomb near the gate. The evidence of the informant (P.W.1) bears minute detail account of the incident. He was also subjected to extensive cross-examination. He in his cross-examination stated that he identified the accused persons during the T.I. parade and also identified the seized articles.

P.W.2 is the son of the informant and PW.7 is the wife of the informant. Both the witnesses were also present when the dacoity had taken place. They have narrated in minute detail regarding the manner in which the accused persons committed the offence. Upon a comparative reading of the testimonies of these three witnesses, no material or prominent inconsistencies are found. The efforts made by the defence to discredit their evidence through extensive cross-examination have also yielded no result.

P.Ws.3, 4 and 5 were the witnesses those who deposed that on the following day, they found various stolen articles lying near the river. They brought those articles and handed over to the police. The said articles were seized by the police and were subsequently given in zima to

P.W.3. P.Ws.8 and 9 are the witnesses to the seizure of articles.

For the purpose of the present appellants, the evidence of P.W.9 assumes significance. P.W.9 deposed that on 27.01.1988, he had been to Jaleswar and at about 3.00 P.M., while he was standing at the Badabazar of Jaleswar, the O.I.C. of Bhogarai P.S. came and called him. At that time, the O.I.C. had already arrested the accused Banshi Jena (appellant No.7) and Bangara Jena (appellant No.6). In his presence, both the arrested accused persons admitted their guilt and disclosed that they had concealed the stolen articles in their respective houses. Thereafter, along with the O.I.C., the arrested accused persons and he proceeded to the village. First, they went to the house of accused, Bansi Jena, from where, a torch, a wrist watch and some gold and silver ornaments were recovered. The seizure list was prepared marked as Ext.6 and he affixed his signature thereon Ext.6/1. Subsequently, they proceeded to the house of accused Bangara Jena, from where a radio and certain gold and silver ornaments were recovered. Then, they went to the house of the accused Bhima Jena (appellant No.5), who, in his presence, produced some gold and silver ornaments and a chaddar. The same were seized and recorded in the seizure list marked as Ext.8 and his signature is Ext.8/1. Thereafter, they proceeded to the house of the accused Barendra Jena (appellant No.4), who was also arrested in that village. In his presence, some gold and silver ornaments and a wrist watch were recovered and seized. A seizure list was prepared in that regard marked as Ext.9 and after knowing the contents thereof, he signed the same (Ext.9/1). The said witness was subjected to extensive cross-examination. He stated that the village Kasida, where the seizures were effected, is about 16 miles from his village, although he could not specify the distance between Jaleswar and Kasida. However, nothing material could be elucidated in his cross-examination so as to favour the defence.

Reading of the evidence (P.W.9) appears to be that he was a natural witness available to the I.O. and was called upon to witness the seizure.

P.W.10 was the J.M.F.C., Jaleswar, who conducted the T.I. parade and deposed that the same was carried out in due compliance with the prescribed procedure.

The learned trial Court convicted the accused persons primarily on the basis of the recovery of stolen articles and their identification in the T.I. parade. Reading of the evidence makes it very clear that in so far as the appellant No.1- Sitaram Jena is concerned, nothing was recovered from him and in the T.I. parade also he was not identified. In the absence of recovery of any stolen articles from his possession and he being not identified by the informant (P.W.1) or for that matter (P.Ws.2 and 7) exonerates him from the crime. However, in so far as the appellant no.4-Birendra Jena is concerned, as per the evidence of P.W.9, various articles have been recovered at his instance from his house, which is reflecting in Ext.9. However, when those articles were put to T.I. parade in presence of P.W.10, only one brass panabata could be identified by the witnesses out of all the seized articles reflecting in Ext.9. That’s how the complicity of appellant No.4 in the crime is being established. The learned trial Court has completely disbelieved the T.I. parade conducted by the Investigating Officer twice on the ground that the accused persons were already exposed before the T.I. parade was conducted. The learned trial Court found that P.W.10 conducted T.I. parade of seven accused persons on 30.01.1988 whereas on 17.03.1988, two accused persons were put to T.I. parade was conducted in the court room. The accused persons were brought from Balasore jail to the Jaleswar Court and from the court gate, they were brought to the court room on foot. Therefore, their exposer to the witness is obvious. P.W.10 has also deposed that the witness had already arrived before the accused persons were brought from Balasore jail. The timing and the procedure adopted by the prosecution to conduct the T.I. parade particularly after exposing the accused persons to the witnesses have been doubted. The learned trial Court in paragraph-8 of the judgment has recorded the reasoning for not believing the T.I. parade. For convenience of ready reference, paragraph-8 is reproduced hereunder:-

“8. Apart from this, my attention was invited to the evidence of P.W.14, the I.O. wherein it is admitted by him that the photographs of the accused persons were taken soon after their arrest. Though the I. O. has not agreed to the suggestion that those photographs were shown to the witnesses before the T.I. parade was held, the reason of taking their photographs is not explained by the I.O. P.W.10 is the Magistrate who conducted T.I. parade of the accused persons on two occasions, one on 30.1.88 and the other on 17.3.88. While on the first occasion seven of the accused persons were identified, on the second occasion two, namely Madhusudan and Balaram were identified by these witnesses. His reports (Exts. 12 and 13) also reveal that these witnesses could identify the accused persons correctly in the T.I. parade. It is, however, admitted by him that the T. I. parades were held in Court room. It is further admitted by him that the accused persons were brought from Balasore jail to Court at Jaleswar and from the gate of the Court they were brought to Court room on foot. It is further admitted by him that on both the occasions the witnesses had already arrived in the Court before the accused were bought from Balasore jail. Though P.W.10 has said that he had taken all the precautions to keep the witnesses away from the accused persons, there is every possibility that they might have had a glimpse over them before the T.I. parade was held. Added to that, when most of the accused persons were arrested on 27.1.88, the first T.I. parade was held on 30.1.88 and the second on a much later date, i.e. on 19.3.88. Although the delay for the second T.I. parade was explained by saying that accused Madhusudan subsequently surrendered in the Court, the evidence of the I.O. shows that he surrendered in Court on 11.2.88 and he made prayer for T.I. parade on 15. 2.88. Still then there should not have been made so much of delay in holding the T.I. parade. Added to this, it is also apparent from the evidence of P.W.14, the I.O., as well as the evidence of P.Ws.8, 9 and 13 that soon after their arrest the accused persons were also taken to their respective houses from where the stolen articles were recovered. In the case of accused Katia @ Pratap, recovery of stolen articles was made on 26.1.88 while in the case of accused Madhusudan it was made on 5.4.88. So far as the other accused persons are concerned, excepting accused Balaram, recovery of articles was made on 27.1.88. This shows that these accused persons were also exposed to the villagers while they led the I.O. and witnesses to their respective villages to give recovery of the stolen articles. Added to all these, in a case of dacoity in the case of “State of Orissa-Vrs-Ekan alias Ekarali Khan and others” reported in (1990) 3 OCR 398 a note of causion is sounded by His Lordship by saying that T.I. parade held inside court room is improper as it is a public place. Apart from this, it is also admitted by P.W.10 that the time of T.I. parade the accused persons, one and all, complained that they were shown to the witnesses before the T.I. parade was held. To this effect the learned Magistrate also has made mention in his reports (Exts.12 and 13) in column 10. In the circumstances, therefore, it is difficult to rely on the identity made by P.Ws.1, 2 and 7 in the T.I. parade as there was every possibility of their having seen the accused persons before the T.I. parade. Had it not been so, each of them would not have identified all the accused persons without hesitation and mistake.”

However, in so far as the T.I. parade of articles are concerned, the learned trial Court inter alia recorded the reasoning in paragraph-15 of the judgment believing the same, which reads as under:-

“15. The learned counsel for the defence, however vehemently contended that Ext. 2, the list submitted subsequently is not admissible in the evidence as by then investigation had already started. Ext.2 is a further report submitted by P.W.1 containing therein a list of articles which also were taken by the dacoits in the night of occurrence. It is said by P.W.1 that as he did not remember all the articles stolen on the date of occurrence, he submitted the other report on the next day (i.e. on 18. 1.88) of lodging the F.I.R. mentioning therein some other articles which were stolen from his house. According to the learned counsel for the defence, the said document is not admissible. In support of it he has placed reliance in the case of "Kalia and others-vrs-Emperor" reported in AIR 1925 Calcutta 959. In the aforesaid case though Their Lordships have held that any subsequent report after the starting of investigation was not admissible, in that case the list, however, was taken into account as it did not directly prejudice the accused persons. In this case, however, the sole grievance of the learned counsel for the defence is that even though the document is shown to have been filed in the P.S. on 18.1.88, it was sent to Court on 27.1.88. P.W.10, the Magistrate also has admitted that the record report was received by him on 27.1.88. Basing on it, it is contended that these articles were subsequently substituted after the recovery was made to implicate the accused persons with the crime. Such a plea, however, is not only impossible but also is not acceptable if one glances through Exts.6, and 11. Ext. 2 mostly contains few important articles, such as umbrella (M.O.II), 2 pieces of brass daba (M.Os. XIX and XX), one VIP bag (M.O. XVII) and one chaddar (M.O.VII). Out of these articles, the chaddar was seized from the house of accused Bhima under Ext. 8, one brass Panabata from the house of Barendra Jena under Ext.9 and the V. I. P. bag and the umbrella from the house of Banshidhar under Ext.6. All these exhibits along with Exts.7, 10 and 11 clearly reveal that seizure of these articles was made on 27.1.88 from 4 p.m. to 6-30 pm. These exhibits further clearly show that the same were sent to Court on 28.1.88 and each of these exhibits bears dated initial of the Magistrate (P.W.10). This being so, though Ext.2 was sent to Court on 27.1.88, no mischief as alleged by the defence could have been played by the

I.O. as by then seizure was not made and the lists were not sent to Court. Taking, therefore, these facts into account, I am of the view that as the accused persons were in possession of the articles soon after the occurrence, they cannot escape the charge of dacoity.”

From the reading of the findings recorded by the learned trial Court as reproduced in the preceding paragraphs, it is clear that in so far as the appellant No.1 is concerned, he was neither identified by the witnesses in T.I. parade, which otherwise, the trial Court concluded that the same is doubtful nor any recovery was effected from him. However, even though the T.I. parade qua the appellant No.4 is not believed but one of the stolen articles reflecting in seizure list (Ext.9) has been identified by the witnesses in presence of P.W.10 which was recovered from the appellant No.4. That part of the evidence cannot be doubted.

In view of the aforementioned analysis of the evidence, this Court comes to the conclusion that in absence of any overt act attributed to the appellant Nos.1 and 4 in so far as the offence under Section 9(B)(b) of Explosive Act is concerned, both of them stands acquitted for the said charge. In addition, the appellant No.1 is also entitled to acquittal as nothing is recovered from him and the T.I. parade conducted by P.W.10 has been doubted. Therefore, the appellant No.1 cannot be connected with the crime even on stretching the evidence of the witnesses to any extent. Accordingly, the appellant No.1-Sitaram Jena is acquitted of all the charges. The bail bond furnished by him stands discharged.

However, the appellant No.4-Birendra Jena is liable for the offence punishable under Sections 457/395 of I.P.C. on the basis of the nature of evidence brought on record by the prosecution against him as discussed above.

At this stage, Mr. Mohanty, learned counsel for the appellants submitted that the appellant No.4 was about 30 years of age at the time of incident in 1988 and is presently around 69 years old. During the trial and after the conviction, the said appellant has undergone custody for about five months. Therefore, he submitted that keeping in view the age of the appellant No.4 and the fact that the incident had taken place more than three decades back, a lenient view should be taken on sentencing. It is also noted that the learned trial Court had imposed a substantive sentence of seven years R.I. for the offence under Section 395 of I.P.C. and two years for the offence under Section 457 of I.P.C., which became very much disproportionate at this point of time.

It is true that the appellant No.4 has no criminal antecedents and he is in the late evening of his life. The incident in question pertains to the year 1988. At this stage, sending him for serving out the remaining sentence would be unduly harsh and would not sub-serve any reformative purpose. Execution of the sentence, as awarded by the learned trial Court, is likely to have a cascading adverse effect on his entire family. Over the years, he has led a dignified life, integrated well into society, and is presently leading a settled family life. Incarcerating him after such a long delay, it is argued, would serve little penological purpose and may in fact be counter-productive, casting a needless stigma not only upon him but also upon their family members, especially when there is no suggestion of any repeat violation or ongoing non-compliance with regulatory norms. In view of the above, the submission advanced by Mr. Mohanty, learned counsel for the appellants seeking modification of the sentence, merits favourable consideration.

Taking into consideration the overall facts and circumstances of the case, including the mitigating factors and the age of appellant No.4, the sentence awarded by the learned trial Court is modified to the period already undergone by him. However, to balance the scale of justice, the appellant No.4 is directed to pay a fine of Rs.15,000/- (Rupees Fifteen Thousand). In default of payment of the said fine within a period of two months, he shall be taken into custody to serve out the default sentence of R.I. for a period of two months. The fine amount to be deposited by the appellant No.4 within a period of two months shall be disbursed to the family of the informant (P.W.1) in accordance with the provision of Section 357 Cr.P.C. as compensation.

Accordingly, the appeal qua the appellant No.1 allowed. However, the same stands partly allowed qua appellant No.4.