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Abhimanyu Alias Abina Das and anr. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 8 of 1982.
Judge
Reported in57(1984)CLT27; 1984(I)OLR51
ActsEvidence Act - Sections 11; Indian Penal Code (IPC) - Sections 394
AppellantAbhimanyu Alias Abina Das and anr.
RespondentState of Orissa
Appellant AdvocateG. Bohidar, S.K. Mund and U.C. Mohanty
Respondent AdvocateS.K. Das, Addl. Standing Counsel
DispositionPetition allowed
Cases ReferredState (Delhi Admn.) v. V. C. Shukla and Anr. In
Excerpt:
.....scene of occurrence. the learned counsel for both the sides have submitted before me that as the evidence would clearly show, the petitioners had been known to p. in view of these highly suspicious features in the evidence, the learned additional standing counsel has fairly and candidly submitted that the order of conviction is not well-founded......i find that the trial and appellate courts took no due notice of the fact that the first information report had been lodged in this case as late as on the 26th may, 1978. no reasonable explanation had been offered by p. w. 1 in this regard. the importance of the first information report has been emphasised in air 1973 supreme court 501 thulia kali v. the state of tamil nadu as has been observed therein, the first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. the importance of the report can hardly be over-estimated from the standpoint of the accused. the object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is.....
Judgment:

B.K. Behera, J.

1. Upon hearing Mr. Mund, the learned counsel for the petitioners and Mr. Das, the learned Additional Standing Counsel, I find that the order of conviction recorded by the trial court and maintained by the learned Second Additional Sessions Judge cannot be sustained. The two petitioners stood charged under section 394 of the Indian Penal Code for having committed robbery in a Math house of which P. W. 4, the sister of the first-informant (P. W. 1), was the occupant, during the night of the 23rd/24th May, 1978, in the course of which, they had assaulted P. W. 3, the son of P. W. 1, who was then staying in that house and P. W. 4 and removed valuable articles. Of the nine witnesses examined for the prosecution P. Ws. 2 to 5 had figured as witnesses to the occurrence. P. Ws. 2 and 5 was the field servants of P. W. 4. After receiving information about the occurrence, P. W. 1 visited the Village of P. W. 4 on the day following, took steps for the madical treatment of his sister (P. W. 4) and his son (P. W. 3) and then lodged the first informantion report on the basis of which investigation was taken up and ultimately the petitioners were prosecuted.

2. Apart from the interestedness of the witnesses and the contradictions in their evidence in the court and in their statements in the course of investigation in material particulars which need not be catalogued, I find that the trial and appellate courts took no due notice of the fact that the first information report had been lodged in this case as late as on the 26th May, 1978. No reasonable explanation had been offered by P. W. 1 in this regard. The importance of the first information report has been emphasised in AIR 1973 Supreme Court 501 Thulia Kali v. The State of Tamil Nadu As has been observed therein, the first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be over-estimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation.

3. Apart from this highly suspicious feature in the case, it is pertinent to note that the names of the culprits had not been given in the first information report (Ext. 1). On the other hand, under the heading 'Name and residence of accused', it had been stated : 'unknown'. P. Ws. 3 and 4 were no other persons than the son and sister respectively of the first-informant (P. W. 1). It has been observed by the appellate court that the two petitioners had been known to the eye-witnesses from before. The learned counsel for both the sides have submitted before me that as the evidence would clearly show, the petitioners had been known to P. Ws. 2, 4 and 5 from before. If these witnesses had been able to identify the petitioners as the culprits, they must have named them as the author of the crime before P. W. I who had lodged the first information report. The first information report, strictly speaking, can be used only for the purpose of corroborating or contradicting the maker thereof. But as has been laid down by the Supreme Court in AIR 1975 Supreme Court 1026 Ram Kumar Pande v. The State of Madhya Pradesh, omissions of important facts in the first information report affecting the probabilities of the case are relevant under section 11 of the Evidence Act in judging the veracity of the prosecution case. Non-mention of the names of the petitioners in the first information report by the father of P. W. 3 and brother of P. W. 4 would tell its own tale and would certainly affect the bonafides of the case of the prosecution. P. W. 3 had identified the petitioners in the court and it would appear from his evidence that he had not known them from before. If it were so, the evidence of such a witness should have been tested by an earlier test identification parade, which had not been done the evidence of identification of a witness in respect of a person whom he had not known from before, in the circumstances of the case, may be valueless. In this connection, reference may be made to the principles laid down in A.I.R. 1980 Supreme Court 1382 State (Delhi Admn.) v. V. C. Shukla and Anr. In view of these highly suspicious features in the evidence, the learned Additional Standing Counsel has fairly and candidly submitted that the order of conviction is not well-founded. As the findings recorded by the trial and appellate courts are unreasonable, the findings do call for interference by this Court in its revisional jurisdiction.

4. In the result, I would allow the revision and set aside the order of conviction and sentences passed against the petitioners.


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