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Sidha Dehury and ors. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1982CriLJ500
AppellantSidha Dehury and ors.
RespondentState
Cases Referred(Sampat Tatyada Sindo v. State of Maharashtra).
Excerpt:
.....the court as regards the identity of an accused who is a stranger to him in the form of a earlier test identification proceeding. they must take intelligent interest in the proceedings bearing in mind that the life and liberty of an accused person may depend on their vigilance and caution and that justice should be done in the identification. it would not be out of place to mention here that in his report to the investigating officer which was treated as a statement under section 161 of the code of criminal procedure, pw l had distinctly and definitely stated that his wife had told him that megha sahu and padma sahu of boudh were among the culprits and she could identify these two persons, but while under cross-examination, he wanted to avoid his previous statement and blurted out that..........of the crime. in the course of investigation, the appellants had been put to identification in a test identification parade conducted by the special judicial magistrate (pw 7) on 12-7-1977. there had been seizures of gold ornaments (m. os. i and ii) and melted gold pieces to connect the appellants sidha dehury, suramani behera and panu alias pranabandhu panigrahi with the looting of properties. steps had been taken for examination and treatment of the injured persons. the gun (m. o. vii) belonging to the co-accused goura chandra baghar who stood charged under section 27 of the arms act for unautborisedly making over the gun to the appellant pranabandhu for using it in the commission of the offence of dacoity and was acquitted of that charge, had been examined by the ballistic expert.....
Judgment:

B.K. Behera, J.

1. In these five criminal appeals, arising out of the same judgment and order, to be governed by this common judgment, the order convicting each of the appellants Under Section 395 read with Section 397 of Penal Code and sentencing each of them to undergo rigorous imprisonment for a period of ten years is based on the solitary testimony of Shivlal Agrawala (PW 1), a resident of village Karadi in the district of Phulbani, in whose house the five appellants along with others, being armed with deadly weapons, such as, iron rods, lathis and gun, had, it was alleged committed dacoity at about midnight on the 13th day of June, 1977, in the course of which they removed ornaments, cash and other valuable properties causing injuries to Shivlal Agrawala (PW 1), his wife Karaini Agrawala (PW 2) and two neighbours, namely, Nilamani Behera (PW 3) and Parakhit Sahu (PW 4) besides others.

2. On the basis of a telephonic message from Mr. Natabar Pradhan (PW 23), then a Minister of Cabinet rank of Orissa who had been informed about the commission of dacoity by a Mar-wari young gentleman, the Assistant Sub-Inspector of Police (PW 21), attached to Boudh Police Station, made a station diary entry (Ext. 14) and investigation was taken up first by the officer-in-charge (PV 16) and later by the Circle Inspector of Police (PW 22), who, on the completion of investigation, placed a charge-sheet against the appellants and Goura Chandra Baghar whose gun had allegedly been used during the commission of the crime. In the course of investigation, the appellants had been put to identification in a test identification parade conducted by the Special Judicial Magistrate (PW 7) on 12-7-1977. There had been seizures of gold ornaments (M. Os. I and II) and melted gold pieces to connect the appellants Sidha Dehury, Suramani Behera and Panu alias Pranabandhu Panigrahi with the looting of properties. Steps had been taken for examination and treatment of the injured persons. The gun (M. O. VII) belonging to the co-accused Goura Chandra Baghar who stood charged Under Section 27 of the Arms Act for unautborisedly making over the gun to the appellant Pranabandhu for using it in the commission of the offence of dacoity and was acquitted of that charge, had been examined by the Ballistic Expert (PW 19). After the charge-sheet was placed and appellants were committed, they stood charged Under Section 395 read with Section 397 of the penal Code.

3. At the trial, the prosecution,examined twenty-three witnesses and had placed reliance on various documents and material objects. One witness, namely, Bipin Bihari Sethy (DW 1), whose name ought to have but had not found a place at the foot of the judgment, had been examined on behalf of co-accused Goura Chandra Baghar. The learned Sessions Judge rightly held that an offence of dacoity had been committed. This admits of no doubt. The learned Sessions Judge, after scrutinising the evidence of Kamini Agrawala (PW 2). Parskhit Sahu (PW 4) and Jadava Naik (PW 5) and taking info consideration the suspicious features relating to the test identification parade, did not place reliance on their evidence of identification of the appellants. The learned Judge made a scathing criticism of the test identification proceedings in which the appellants had been mixed up with some other persons for identification of the culprits by Shivlal Agrawala (PW 1), Kamini Agrawala (PW 2), Radha Agrawala (not examined), Murati Sethy (not examined), Kanaka Jena (not examined), Jadava Naik (PW 5) and Panu Behury (PW 6). It was observed in the judgment that the test identification parade, apart from the delay, was not at all properly conducted and had been stage-managed by the Investigating Officer who might have brought the witnesses, the suspects and other persons together when he came to the court and at any rate, the circumstances did not rule out the possibility of the witnesses having seen the suspects before they were called to identify in the test identification parade. No reliance could be placed on the test identification parade to corroborate the testimony of any of the witnesses, as observed by the learned Judge, Other improbabilities and infirmities in the evidence of the identifying witnesses other than PW 1 had been noticed in the body of the judgment. Ultimately the learned Judge did not rely on the evidence of PWs 2, 4 and 5. The evidence of Panu Dehury (PW 6) regarding the association of the appellants and other culprits by the side of river Mahandi on the Fahali Raja day one-and-half years prior to his deposition (recorded on 23rd Jan. 1979), while they were preparing food and while the appellant Pranabandhu fitted the three parts of a gun together in the presence of this witness who had also identified the appellant Goura Behera, was referred to, but not relied on by the learned Sessions Judge. The evidence of this witness did not appear to be reliable and it was highly unlikely that one of the culprits would, in the presence of an outsider, expose himself and fit in the three parts of a gun before proceeding to commit dacoity. While this witness had identified the appellants Pranabandhu and Goura Behera in the court, it would be noticed that at the test identification parade, he had identified the appellant Pranabandhu and the appellant Suramani. For the reasons recorded In the body of the judgment, the learned Sessions Judge found that there was no proof that M. Os. I and II, two gold ornaments and the other melted gold pieces belonged to PW l and had been removed during the commission of the offence of dacoity and others were passed for the return of the articles to the persons from whom those had been seized. The findings recorded by the learned Sessions Judge while rejecting the evidence of identification of PWs 2, 4 and 5 and the recoveries of gold ornaments and other gold pieces are well-founded. As regards the charge Under Section 27 of the Arms Act against the co-accused Goura Chandra Baghar, the learned Sessions Judge observed that even though there was great suspicion against him, he could not be convicted in respect of the offence. The learned Sessions Judge based the order of conviction of the appellants on the sole testimony of Shivlal Agrawala (PW 1).

4. The learned Advocate appearing as the amicus curiae for the other appellants have urged that in view of the improbabilities and infirmities in the evidence of PW 1 with regard to the identification of the appellants and the criticism of the learned Sessions Judge regarding the bona fides of the investigating agency with regard to the test identification proceedings, it was not a fit case to record a convication on the sole testimony of PW 1. The learned Additional Government Advocate has, however, submitted that the evidence of PW 1 was hot open to any doubt and could be the sole basis for the conviction of the appellants.

5. As provided in Section 134 of the Evidence Act, no particular number of witnesses shall, in any case, be required for the proof of any fact. The testimony of a single witness, if believed, is sufficient to establish any fact. Evidence is to be weighed and not counted. There is no rule of law that uncorroborated testimony of a witness cannot be accepted. The rule, if any, is a rule of prudence and its adoption or not depends on the circumstances of each case, (See : 1957CriLJ1000 Vadivelu Thevar v. State of Madras, and : [1962]3SCR590 Ramratan v. State of Raja-sthan). As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness may outweigh the testimony of a number of other witnesses of indifferent character. In order, however, to sustain an order of conviction on the basis of the testimony of a solitary witness, as in the instant case, such evidence must be clear, cogent and convincing and should be of an unimpeachable character.

6. Keeping the aforesaid principles in mind with regard to the appreciation of evidence of a solitary witness to form the basis of a conviction, the evidence of PW 1 is to be carefully examined.

7. Before analysing and scanning the evidence of PW 1 with regard to the identification of the appellants, certain broad principles with regard to the appreciation of identification evidence may be borne in mind. When a dacoity is committed, the victims and the inmates of the house are normally and naturally in a state of extreme excitement with a heavy sense of fear. The evidence of identification of such persons requires close scrutiny before the same is accepted. The substantive evidence of a witness as regards identification is a statement made in the court. The evidence of mere identification of an accused person at the trial for the first time, is, from its very nature, inherently of a weak character. In order to carry conviction, the evidence should ordinarily show as to how and under what circumstances, the witness came to pick out the particular accused person and the details of the part which the accused had played in the crime in question with reasonable particularity. The purpose of a test identification parade seems to be to test and strengthen the trustworthiness of the evidence given in the court. As a safe rule of prudence, it is considered necessary to generally look for corroboration of the sworn testimony of a witness in the court as regards the identity of an accused who is a stranger to him in the form of a earlier test identification proceeding. There may, however, be exceptions to this general rule, when the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. Keeping in view the purpose of identification parades, the Magistrates holding them are expected to take all possible precautions to eliminate suspicion of unfairness and to reduce the chances of testimonial error. They must take intelligent interest in the proceedings bearing in mind that the life and liberty of an accused person may depend on their vigilance and caution and that justice should be done in the identification. The power to identify varies according to the power of observation and memory of the person identifying and each case depends on its own facts, but there are two factors which seem to be of basic importance in the evaluation of identification evidence. The persons required to identify an accused should have had no opportunity of seeing him after the commission of the crime and before the identification and no mistakes are made by them or the mistakes made are negligible. The identification to be of value should be held without much delay. In this connection, reference may be made to the cases reported in : 1970CriLJ1149 (Budhsen v. State of U. P.) : 1972CriLJ233 : (Hasib v. State of Bihar) : 1973CriLJ926 (Chander Singh v. State of U. P.) and : 1974CriLJ674 (Sampat Tatyada Sindo v. State of Maharashtra).

8. It is now to be seen as to whether the order of conviction could- be based on the sole testimony of PW 1. It may be stated at the cost of repetition that the test identification parade, which had been conducted after some delay and without any adequate number of other persons of similar descriptions being mixed up. with the appellants and without taking due precautions, had not been relied on by the learned Sessions Judge whose observations, referred to earlier in this judgment, would indicate the mala fides of the investigating agency. For the reasons recorded by the learned Judge, no reliance could be placed on the test identification proceedings and thus, any identification by PW 1 made therein could not corroborate his evidence given in the court.

9. Although PW 1 had stated in his evidence that of the appellants, he knew the appellant Pranabandhu earlier as he had come to his village about a month prior to dacoity in his house for begging, this assertion of his did not find support from any other evidence and, he had not stated about it in his fairly long report to the Investigating Officer in the morning of the day following the day of occurrence which, however, was not admitted in evidence as the first information report, as according to the learned judge, the investigation had already commenced and, therefore, this could be taken only as a statement made by PW 1 to the Investigating Officer. In the circumstances of the case and in the context, this could not be characterised as an inconsequential omission in his statement to the Investigating Officer when the question of identification of the culprits was involved. On his own showing, he did not know the other appellants from before. They were, therefore, strangers to him. This witness had described the specific parts played by the appellants in his evidence. According to him, the appellant Pranabandhu was holding a gun. The appellant Kalakanhu gave him a push as a result of which he fell down and when he tried to escape, the culprits captured and assaulted him and then tied him to a pillar. According to him, the appellant Goura Behera was standing near him and the appellant Gidha was standing near his wife and the other two appellants had gone inside the house. Before leaving the place, as stated by PW 1 the appellant Kalak Sahu demanded to disclose where he had kept other wealth and when he said that he had not kept any wealth -anywhere else, they started beating him. His further evidence was that when he pleaded to spare his life, the appellant Sidha expressed to spare him and then the culprits left the place. While in the trial court, PW 1 had stated that one of the culprits had a gun, he had stated to the Investigating Officer that he had seen two persons holding guns and PW 1 chose to disown this earlier statement. His assertion in the evidence that he had identified the appellants at the test identification parade by giving their descriptions and the weapons which they were having is belied by the report (Ext. 1) of the test identification parade. There was no evidence to show that after the commission of the offence of dacoity, PW 1 had told any one about the particular features of the culprits who had committed the offence by which he had been able to identify them. It would not be out of place to mention here that in his report to the Investigating Officer which was treated as a statement Under Section 161 of the Code of Criminal Procedure, PW l had distinctly and definitely stated that his wife had told him that Megha Sahu and Padma Sahu of Boudh were among the culprits and she could identify these two persons, but while under cross-examination, he wanted to avoid his previous statement and blurted out that he had stated to the Investigating Officer that his wife had told him that she had seen persons like Megha Sahu and Padma Sahu and she had not stated that she had identified these two persons. It would appear that PW 1 designedly disowned this previous statement of his as he was not quite sure as to whether six or seven persons were the culprits and in case Megha Sahu and Padma Sahu were to be taken as two of the culprits, the number of the other culprits would come to four and not five and five accused persons had stood trial for committing dacoity. The naming of two persons as being among the culprits against whom no accusation had been made by the investigating agency after investigation would also show that PW 1 and his wife had not been able to properly identify the culprits.

10. Parakhit Sahu (PW 4) had claimed to have identified some of the appellants as they were flashing torchlights and as the place was lighted by electnic light. He had, however, stated to the Investigating Officer that the night of occurrence was dark and cloudy. According to PW 1 the electric light on the verandah was on and although he had not specifically stated about it, his case was that he had been able to identify the culprits by that light. His wife Kamini (PW 2), it is important to note, had not whispered a word about electric light. As a matter of fact, she had not stated as to how during the night time, she was in a position to identify any of the culprits. Neither PW 1 nor PW 2 had testified that any light was burning inside the rooms of their house. If, as deposed to by PW 1, the electric light was burning on the verandah of their house, culprits coming for committing the heinous offence of dacoity would normally put out the light in order to avoid detection. The evidence of PW 3 Nilamani Meher was that the culprits had been focusing torchlights all along. Neither PW 1 nor PW 2 had stated a word about focusing of torchlights by the culprits for which they could be identified. The occurrence had taken place at midnight and a number of persons had been attacked simultaneously and assaulted. In the absence of clear materials showing as to how the culprits could be identified at that part of the night, PW 1 could not have been in a position to identify them, while he was in a state of utter mental excitement and grave fear.

11. As had been deposed to by PW 3, the culprits had tied clothes over their heads covering their cheeks and chins and. therefore, he could not identify any of them. Even as deposed by PW 1, one of them was wearing a mask and one or two of them had painted the limbs with black colour and two of them had put on napkins on their heads like turbans. It would thus appear from their evidence that whoever be the culprits, they had taken precautions to conceal, their identity by painting themselves, wearing masks and using turbans to cover their faces. If for these reasons, PW 3 could not identify any of the culprits, it was also highly unlikely that PW 1 could identify the culprits who were complete strangers to him.

12. The value of the evidence of PW 1 with regard to identification in the court would lose its importance owing to a salient feature in the evidence of PW 4 of which the learned Sessions Judge did not take due notice. PW 4 Parakhit had clearly stated in his cross-examination thus:-

I could see the accused persons whom I identified when they were brought to the police station as at that time I was being treated at the hospital. PW 1 who was in the hospital, also saw them on the said occasion.

If PW 1 had seen the appellants or the appellants had been shown to him earlier by the Police Officers, his evidence of identification of the appellants in the court could certainly lose its value.

13. Regard being had to these highly suspicious features, it would not be safe and proper to unreservedly accept the identification evidence of PW 1 without corroboration by any other evidence, direct or circumstantial, and hold that the appellants were the authors of the crime. I have already referred to the principles relating to the appreciation of identification evidence and judged in that light, the evidence of identification of PW 1 was far short of the mark to carry conviction and would appear to me to be highly untrustworthy. It would, in my view, be hazardous to accept the evidence of identification of this solitary witness and base a conviction thereon as the evidence of PW 1 was not reliable and was not of tin unimpeachable character.

14. For the reasons aforesaid, the order of conviction based on the solitary testimony of PW 1 cannot be allowed to stand.

15. In the result, the appeals are allowed and the order of conviction and sentence passed against each of the appellants is set aside. The appellants be set at liberty forthwith.


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