State of Orissa vs Jagannath ' Jagabandhu Behera

K.P. Mohapatra, J.—This appeal is directed against the judgment passed by the learned Assistant Sessions Judge, Jagatsinghpur, acquitting the Respondent of an offence punishable u/s 395, I.P.C.

The prosecution case in brief is that in the night of 9-10-1976 a dacoity took place in the house of P.W. I, in course of which cash and gold ornaments were stolen. F.I.R. (Ext. 1) was lodged at Jagatsinghlmr Police Station. After investigation of the case, charge-sheet was submitted against the Respondent and some others.

The Respondent could not be tried along with the other accused persons, because be was declared as an absconder. The case was split up against him, and after his arrest he was tried for having committed an offence punishable u/s 395, I.P.C. to which his plea was denial simpliciter.

Obviously, the Respondent was a stranger to the inmates of the house, namely. P.Ws.. 1 and IS, brother and sister respectively and two other independent witnesses P.Ws.. 6 and 7. A test identification parade was held on 22-12-1977, in which the aforesaid witnesses bad identified the Respondent as one of the culprits. The learned Assistant Sessions Judge elaborately discussed their evidence of identification and disbelieved their version. Accordingly, he acquitted the Respondent.

After hearing Mr. S.K. Das, learned Standing Counsel, and Mr. J.P. Ghose, learned Counsel appearing for the Respondent, I find that the case falls within a very narrow compass, i. e. delay in holding the test identification parade? As already stated above, the occurrence took place on 9-10-1976 and the test identification parade was held a little more than one year after, namely, on 22-12-1977. P.W. 18, the Investigating Officer in para 6 of his evidence has given explanation as now by there was delay in holding the test identification parade, the sum and substance of which is that most of the accused persons were released on bail and as they could not be arrested till 6-11-1977. the test identification parade could not be held earlier. What the witness stated might be true, but that should be a caution to be exercised at the time of consideration of bail applications of accused involved in dacoity cases. But, for the reason that the accused persons were released on bail and could not be arrested and made available for being put in the test identification parade, the principle of law cannot be ignored. It should be remembered that test identification parade is a very important piece of evidence in dacoity cases and in most of them that is the only piece of evidence for consideration by the court either for conviction or for acquittal of the accused. It is also true that when dacoity is committed, the inmates of the house remain in terror, often the rooms are dark and human memory is short. Therefore, unless the witnesses have a photographic memory, it is not possible for them in such circumstances to remember the physical features of the culprits so as to subsequently identify them in a test identification parade, if the same is not held as early as possible. That is why it bas been held by different High Courts of India, as well as by the Supreme Court, that test identification parades should be held as early as possible and delay in holding the same invariably frustrates the trial. In Wakil Singh and Others Vs. State of Bihar, , a case u/s 396, I.P.C., test identification parade took place about 3 1/2 months after the dacoity and in view at such a long lapse of time, it was held that it was not possible for any human being to remember the features of the accused and the witness was likely to commit mistakes. So, it was found unsafe to convict the accused on the evidence of the witness at identification. A similar view was expressed in Subash and Shiv Shankar Vs. State of U.P., . in which it was held that test identification parade held after a period of 4 months of the date of occurreuce had no evidentiary value, and as such the accused should be given benefit of doubt. In Rajkishore Sahu and etc. Vs. The State, it was held by a learned Judge of this Court that test identification parade held after 8 months of occurrence bad no evidentiary value.

For the aforesaid reasons it is not possible to convict the Respondent on the evidence of the identifying witnesses who bad identified him after long delay of more than one year. Such identification, in my opinion has little evidentiary value. Therefore, there being no other incriminating evidence the learned Assistant Sessions Judge was correct in giving benefit of doubt to the Respondent and recording the order or acquittal. Interference with the impugned judgment is unwarranted.

In the result, the appeal is dismissed.

Appeal dismissed.