RADHA BHAKTA Vs. STATE OF ORISSA

JUDGEMENT

(1.) These appeals arise out of the same judgment and order of conviction recorded by the learned Assistant Sessions Judge, Baripada, against the appellants under section 395 of the Indian Penal Code sentencing each of them to undergo rigorous imprisonments for a period of nine years by accepting the case of the prosecution that during the night of March 9/10, 1982, the appellants, besides many others, being armed, entered the house of Sanatan Tudu (PW 1) at Tangasole in the district of Mayurbhanj and committed dacoity by causing hurt to the inmates and others and removing cash and other valuables. On the basis of the first information report (Ext. 1) lodged by PW 1, investigation followed and on its completion, the appellants, were prosecuted. To bring borne the charge to the appellants, the prosecution had examined eight witnesses of them, PW5. 1. 3 and 5 were the identifying witnesses. PW 8 had conducted the test identification parade. P W 1 had identified all the appellants in the court and at the test identification parade. P W 3 had identified the appellants Kunu Bhakta and Radha Bhakta in the court and at the test identification parade. P W 5, a farm servant of P W 1, had identified the appellant Kunu Bhakta both in the court and at the test identification parade. No incriminating articles or stolen articles had been recovered from the person or possession of any of the appellants. The case of the prosecution rested mainly on the evidence of P Ws. 1, 3 and 5 coupled with the fact that some of the appellants had superficial injuries on their persons as noticed by the doctor (PW 2). The learned Assistant Sessions Judge has accepted the case of the prosecution and recorded an order of conviction which has been assailed by the learned counsel for the appellants as unfounded on the evidence on record and my attention has been invited to the suspicious features in the evidence of these witnesses with regard to the identification of the culprits. Mr. A. Rath, the learned Additional Standing Counsel, has submitted that there and some unsatisfactory features in the evidence of PW 1 and 5 which have been pointed out by the learned counsel for the appellants which are not very material and there is the clear and cogent evidence of PW 3 with regard to the identification of two of the appellants, namely, Kunu and Radha.

(2.) It is not disputed at the Bar that a dacoity had been committed in the house of PW 1 in which a number of persons received injuries It is, therefore, unnecessary to catalogue the evidence with regard to the commission of the offence placed before the trial court. As indicated earlier, the order of conviction bas been based on the evidence of PW5 1, 3 and 5. As regards PW 1. he had, no doubt, identified all the four appellants in the court and at the test identification parade, but no due notice had been taken by the trial court of the statement made by PW 1 himself that after the commission of the offence and their arrest, the appellants had been seen by him at the police station. On his own showing, the appellants had not been known to him from before. It has been a settled principle of law that in such a case, the identification of the culprits in the court should be tested by an earlier test identification proceeding and it had been so done in the instant case. But such identification would lose its value when the unknown persons said to be the culprits had been seen by the identifying witness prior to the identification proceedings. In this connect to reference may be made to a recent decision of the Supreme Court in Criminal Appeal No. 494 of 1976, Rab Das v. State of Orissa. arising out of the judgment and order passed by this Court in Criminal Appeal Nos. 16 and 37 of 1974, decided on January 21, 1976 in a case under section 396 of the Indian Penal Code. Their Lordships have observed: TI The only evidence recorded by the courts below against (he appellant is the evidence of the approver (PW 23) Sandara Saura and PW 10 and PW 12. So far as PW 10 is concerned he did not identify the appellant at all ill the court and therefore his evidence is wholly irrelevant. So far as PW. 12 is concerned it is also admitted that he was shown the photograph of the appellant which ought not to have been done. This Court has pointed out so many times that when accused are unknown to the witnesses proper care should be taken to conceal their identity before the identification parade is held so much so that even if they are to be produced before the Court they had to be kept in parda. This rule applies in full force to the investigation held by the Investigating Officers. Thus, the identification of the appellant by PW 12 in the committing court as also in the trial court is of no legal value and there is absolutely no evidence against the appellant Their Lordships of the Supreme Court accordingly allowed the appeal. My attention has been invited to the statement made by the Investigating Officer that he had not taken steps to conceal the identity of the appellants prior to the test identification parade and when they were produced before the court for remand after they were arrested. Thus as contended on behalf of the appellants, PW 1, 3 and 5 could have the opportunity of being the appellants prior to the test identification parade.

(3.) The evidence of identification of the appellant Kunu by PW 5 cannot be accepted. This witness had claimed to have known this appellant from the fore and had even known his name. He had testified that after the occurrence, he had informed PW 1 naming this appellant as one of the culprits. This was also the evidence of PW 1. If this was so, PW 1 must have named this appellant as one of the culprits in the first information report lodged by him, but it was conspicuous by its absence. The evidence of PW 5 that he had been able to identify the appellant Kunu would appear to be an embellishment and improvement to bolster up the case of the prosecution.