Suresh Chandra Panda and etc. vs State of Orissa

P.K. Tripathy, J.—Order of conviction of the petitioners u/s 395, I.P.C. by the Chief Judicial Magistrate-cum-Assistant Sessions Judge, Rayagada in the combined trial of Sessions Case No. 7 of 1993 and 11 of 1993, was upheld by learned Additional Sessions Judge, Koraput at Jeypore as per the common judgment delivered in Criminal Appeal , Nos. 26 to 30 of 1994 of the said Court. Being aggrieved by. such order of conviction and sentence the six convicted accused persons not only preferred Criminal Revisions in the following indicated manner but also three of them send applications from the Jail which were registered in this Court as Jail Criminal Revisions. To get a clear picture about their status, the total numbers of accused who faced the trial, the accused persons who were acquitted and convicted and the appeals and the revisions which were preferred are indicated below. (The names of the accused persons are described according to the serial numbers assigned to them in the impugned judgment of the trial Court.)

Dhanalu Raju Acquitted. 2. Polloka Narasinghulu Acquitted. 3. G. Buddha Criminal Appeal No. 27 of 1994 Petitioner No. 1 in Criminal Revision No. 377 of 1995. 4. Krushna alias Kusa Criminal Appeal Mohapatra No. 29 of 1994 Petitioner No. 2 in Criminal Revision No. 474 of 1995 and also sole applicant in Jail Criminal Revision No. 430 of 1995. 5. E. Jambu Appellant in Criminal Appeal No. 28 of 1994. Petitioner No, 2 in Criminal Revision No. 377 of 1995. 6. P. Sukru Appellant in Criminal Appeal No. 30 of 1994. Petitioner in Jail Crl. Appeal No. 428 of 1995. 7. Bididka Appadu Appellant in Criminal Appeal No. 31 of 1994 Petitioner No. 1 in Criminal Revision No. 474 of 1995 and also sole petitioner in Jail Crl. Revn. No. 429 of 1995. 8. Suresh Chanara Panda Appellant in Criminal alias Lalu Appeal No. 26 of 1994 and petitioner in Criminal Revision No: 3 7.3 of 1995.

Out of the above accused persons accused No. 1 was the accused in Sessions Case No. 11 of 1993 and the rest Were accused in Sessions Case No. 7 of 1993 of the Court of Asstt. Sessions Judge.

The aforesaid accused persons were committed to the Court of Sessions and ultimately tried by the Assistant Sessions Judge in the above noted Sessions cases, on the charge framed under Sections 395 and 171/34, I.P.C. read with Section 9(B) of the Explosives Act, 1884. As many as 16 witnesses were examined and series of documents were proved besides 16 articles were exhibited as Material Objects (in short M.Os.) on behalf of the prosecution. On assessment of evidence on record, trial Court acquitted all the accused persons from the charge under Ss. 171/34, I.P.C. and Section 9(B) of the Explosives Act, 1884. However on the basis of the evidence of P.W. No. 16, the Investigating Officer and some corroborative evidence relating to recovery made u/s 27 of the Evidence Act and identification of those articles being belonging to P.Ws. 11, 12 and 15, besides finding finger print of one of the accused on some of the stolen properties trial Court held that the case of dacoity is proved against the aforesaid six persons. Each of them was sentenced to undergo rigorous imprisonment for seven years. The seized articles (i.e., the Material Objects) were directed to be returned to the owners therof, i.e. P.Ws. 11, 12 and 15, but after disposal of the split up cases against two absconding accused persons. Learned Addl. Sessions Judge, Jeypore on appreciation of evidence on record, in the context of search, recovery and seizure u/s 27 of the Evidence Act, approved the finding recorded by the trial Court and affirmed the order of conviction.

Bone of contention of each of the petitioner is relating to non credibility of the evidence u/s 27 of the Evidence Act. The other grounds, which have been advanced, are relating to non-performance of T.I. parade of the accused persons and discrepancy in the evidence of the victims, witnesses to search, recovery and seizure, non-examination of such witnesses and non-credibility of the uncorroborated evidence of P.W. No. 16, Before dealing with the aforesaid crucial point, relating to search, recovery and seizure as deposed by P.W. No. 16, with some support at times from independent witnesses in different seizure lists, it may be noted that according to the case of prosecution, P.Ws. 11, 12 and 15, besides others, were serving as teaching staff in the Government Girls'' High School, Robadi under Chandili Police Station in the erstwhile undivided Koraput District. In the night between 15 and 16th September, 1992, at about 1 a.m. when P.W. No. 11, in the Headmistress of the School opened the door of her quarter to attend to call of nature she found 10 to 12 strangers who overpowered her and six of them entered into her premises robbed her of her ornaments, wrist watch and purse, so also some photographs in frames. They were dressed in ''Khaki'' dress but the face was substantially covered. They compelled P.W. No. 11 to go to the neighbouring quarter of her colleague and called her. Out of fear, she obliged and knocked at the door of P.W. No. 12. The latter responded and came out and was similarly robbed by the dacoits. Then, P.W. No. 11 was taken to the house of P.W. No. 15. She was also robbed in the similar mariner. Then, P.W. No. 11 was taken to quarter of the Lady P.E.T. but she did not open the door and as a retaliation, the culprits exploded a bomb (cracker). The matter was reported at the Chandili Police Station at 10 p.m. on 16-9-1992, the Police took prompt steps in investigation and also requisitioned service of Scientific Officer. On 26-9-1992, the accused persons/petitioners were apprehended, arrested, and on interogation they made recoveries of stolen articles, which were seized under different seizure lists. Even the finger print of accused E. Jambu was detected in one photo frame marked M.O. XIII.

It is noticed In the impugned judgment of the trial Court that the Investigating Agency though took steps for conducting the T.I. Parade of the ornaments, recovered and seized but no attempt was made by P.W. No. 16 to apply for T.I. parade of the accused persons. Learned Assistant Sessions Judge has noted in the impugned judgment that P.W. No. 16, explained that since the victims of the dacoity did not state in course of their examination u/s 161, Cr. P.C. that they could identify the dacoits, therefore, he did not apply for T.I. parade of the accused persons. It further appears from the impugned judgment that P.W. No. 11, one of the victims identified three of the accused persons, viz., Dhanalu Raju (accused No. 1), G. Buddha (accused No. 3) and Krushna alias Kuso (accused No. 4). Trial Court did not find her credible in that respect on the ground of existence of contradictions relating to non-existence of a kitchen. Learned Assistant Sessions Judge also discarded evidence of some witnesses on the ground that though such witnesses were confronted with their previous statement made before the I.O., but the prosecution did not confront such statements to P.W. No. 16.

In a case of dacoity where the culprits are unknown and they had the precaution to prevent their identity by putting veil or mask on the faces, then conviction can be made on the basis of unimpeachable but clinching circumstantial evidence though the accused persons were not put to T.I. Parade. The circumstantial evidence in such case should point out to the guilt of the accused. In that respect, it is the quality but not the quantity of evidence which is required. Once this case was to depend on circumstantial evidence, inasmuch as T.I. parade of the culprits were not made, the In vest gating Agency as well as the prosecution should have the able assistance of competent persons having knowledge in law and Court trial. The fact scenario emerging from the evidence on record and the comments made by the trial Court regarding deficientcies during investigation and trial (prosecution) indicate that no such assistance was available to the investigating and the prosecuting agency. Present case may not be the solitary case to suffer lapses. There is no improvement in the system because of lack of proper and penetrating supervision of the performances of the investigating/prosecuting agency. Unless the State Government takes serious note of such lacuna, diligent follow-up action against the erring persons by monitoring the matter in detail in each individual case, then the fear of no action which has resulted in complacence with the Investigating Officer, the supervising officer and the prosecutors ultimately results in causality of justice delivery system in criminal cases. State being the protector of each individual as well as the whole of the society, its inaction to combat the perpetrators of crime by providing window exits to culprits through such lapses amounts to "magna negligent a culpaest". Before criticism term it as "magna culpa dolus est". The State Government must exercise its authority to avoid ''much ado about nothing''. A copy of this observation be sent to the Chief Secretary of the State as well as a copy to the Director General-cum-Inspector General of Police of the State of Orissa to initiate proper action-plan by the State to gain the losing ground, if not in this case and several such cases where justice has suffered, at least in the cases where trial is yet to be undertaken.

While exercising the revisional jurisdiction, this Court is to look to the evidence on record, provisions of law relating to the offence and the method of proof and the findings recorded by the Courts below as to satisfy whether the findings so recorded is legally correct and sustainable. In other words, if such findings does not suffer from illegality or perversity, then the revisional Court should not interfere with such factual findings by imposing its view because trial Court had the advantage of experiencing the accused and the witnesses and observing their manner and demeanor. Therefore, applying the same principle and on perusing the evidence on record vis-a-vis the contention raised by the petitioners, it is seen that the trump card of the accused persons is the evidence of witnesses like P.Ws. 5, 6 and 7 etc. who witnessed the house searches and recovery of the stolen articles while the suspected culprits (accused persons) were in police custody but did not support the prosecution at the time of trial. That circumstance relied on and highlighted by the aforesaid accused persons does not hold the ground in their favour because the trial Court with reference to the evidence on record and circumstances emerging therefrom, held that the Investigating Officer (P.W. No. 16) on 26-9-1992 conducted random search and seizures in the house of the different accused persons and could recover almost all the stolen properties and that Officer has no enmity whatsoever with the accused persons to make false allegations against them. Evidence of the Investigating Officer (P.W. No. 16) relating to search and recovery of the articles having remained unshaken and also proved circumstantially from the corroborative evidence of some of the above noted witnesses and the seizure lists besides evidence of the three victims who identified those properties to be their own and in that respect their evidence was not successfully challenged by the accused persons. Therefore, quality of that evidence being sufficient in a case of this nature to prove the charge u/s 395, I.P.C., this Court finds no reason to discard the evidence of P.W. 16 on the basis of the evidence of the witnesses to search, recovery and seizure because of shaky evidence given by them. It must be borne in mind that independent witness to search, recovery and seizure were the local ''inhabitants and they had several factors to oblige the accused persons directly or indirectly. One of the factors may be fear factor. The other factor may be to pardon them on their approach or repentance and another factor may be to depose being gained over for consideration. Simply because the evidence of such witnesses falls from the standard of scrutiny in the context as corroborative evidence, that does not ipso facto eliminates the evidence of the Public Officer, i.e. P.W. No. 16 who in this case performed the duty honestly, sincerely and diligently and having no malice against the accused persons. In the present case this Court find such a situation so as to not to discard credibility of P.W. No. 16. Man may lie but circumstances never belie. Finger print of one of the culprits was detected on the glass portion of the photo-frame of Lord Krishna. Circumstantially it strengthens the prosecution evidence relating to participation of that accused in the crime inasmuch as there is no evidence on record to indicate as to how his fingerprint could be found on that photograph.

It must be remembered that what a person saves by putting his blood and sweat together is removed by a greedy person by committing theft or extortion. Therefore, such crimes have been termed as heinous. The irony of the situation is that in many such type of cases strangers commit offence against the other stranger, i.e., the victims. Therefore, in a case when the culprits are not known earlier to the victims a demand of prove of their identity should not be demanded as the sine qua non to hold the culprits guilty of the offence. On the other hand when circumstantial evidence, as already stated, proves link between the crime which was committed and the person facing the trial providing the degree of confidence that the accused is the author of that crime, then it should be regarded as proved. For that reason perhaps the makers of law, i.e., Indian Evidence Act, 1872 have defined the term ''Fact'' means and includes any thing, state a thing or relation of things, capable of being perceived by the senses and any mental condition of which any person is conscious and ''Proved'' means ''when after considering the matters before it, the Court, either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists''. In that respect Section 114 of the Evidence Act provides the authority that ''Court may presume existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case''. The aforesaid principle, on due application to this case, gives rise to rebut table presumption that accused are the culprits. There is no evidence on record to rebut that evidence. By merely gaining over the support of a witness to the search ,and seizure, it cannot be said that the presumption is rebutted.

In the above context, this Court take note of fact that there is no dispute by the accused persons to the contention of the prosecution that dacoity was committed in the premises where the teachers stay and that such dacoity was committed in the night between 15/16-9-1992. Evidence of the three victims ladies (P.Ws. 11, 12 and 15) that they were rubbed of their ornaments and articles, such as necklace and: ''mangalsutra'' etc. is also not in dispute. What the accused persons disputed is the method of T.I. parade and identification of the material objects (ornaments). In that context, it may be noted that accused persons did not claim in the Courts below that those properties belong to respective accused persons. Nonetheless they can take a plea on identity of the property but that it besides the point under discussion. Articles like the material objects were extorted from P.Ws. 11, 12 and 15 was not disputed. What the accused persons disputed is about their complicity in that crime and recovery of the articles from their possession. As per the discussion already made, the trial Court found the evidence of P.W. No. 16 with supporting evidence of some of the independent witnesses are sufficient to prove the search, recovery and seizure of those articles from the accused persons. Therefore, in such a'' case the presumption in accordance with Section 114 is available to the prosecution and applying the same and adopting that method when the Courts below have recorded the finding against the accused persons, this Court finds no illegality in such findings.

The other contention is relating to the lapses on the part of the Investigating Agency for not conducting T.I. Parade of the accused persons soon after their arrest. Indeed, investigation suffers from that lacuna, but that / circumstance is of no great advantage to the accused persons when their complicity in the crime is proved through search, recovery and seizure of the stolen articles.

For the reasons indicated above, this Court does not interfere with the order of conviction and all the Criminal Revisions and the Jail Criminal Revisions are dismissed accordingly.

Before parting with the case, this Court feels it proper to give its opinion, which may be considered in accordance with provision u/s 432, Cr. P.C. Each of the accused persons was sentenced to undergo rigorous imprisonment for seven years. Prosecution did not adduce any evidence that petitioners are habitual dacoits. Description of age in the accused statements indicates that by the date of occurrence all the accused persons were within the age group of 20 to 23 years. Neither the Investigating Officer has mentioned in the case diary nor stated anything in the Court to state that petitioners are habitual criminals. Petitioners belong to the then undeveloped area of Rayagada in the erstwhile district of Koraput. They were in jail custody all throughout till grant of bail by this Court to some of them in the year 1995. This Court could have reduced the sentence provided adequate informations would have been available about their antecedents, if any. After being released on bail accused persons might have lead decent life during last 8 to 9 years. Therefore, this Court recommends to the Government to suspend or remit the sentence of the petitioners in the event, the State finds that they have no further complicity in any crime like dacoity or any other heinous crime or offences involving moral turpitude. Since such a case can be considered only on surrendering of the accused persons to the Jail, it is further recommended that their case be considered most expeditiously and, as far as practicable, within a period of one month, if they or any of them surrenders to the judicial custody. Any of the accused who defaults in surrendering, shall not be granted remittance of the sentence.