B.K. Behera, J.
1. These appeals arising out of the same judgment and order of conviction recorded by Mr. A. C. Das, Assistant Sessions Judge, Cuttack, holding each of the appellants to be guilty of the charge of dacoity punishable under Section 395 of the Indian Penal Code and sentencing each of them thereunder to undergo rigorous imprisonment for a period of eight years have been heard together and will be governed by this common judgment.
2. The appellants, it was alleged, had committed dacoity in the house of P. W. 1 during the night of May 17/18, 1980 and had removed cash and other articles by keeping the inmates of the house including P W. 1 under awe and after tying P. W. 1. On the basis of the first information report (Ext. 6) lodged by P. W. 1, investigation had been taken up, but no clue could be obtained until the last part of July, 1980. Thereafter on receiving some clues, the investigating agency arrested the appellants and on the completion of investigation, a charge-sheet was placed against them. The prosecution had examined thirteen witnesses to bring home the charge. The plea of the appellants was that they had falsely been involved in the crime.
3. The learned counsel for the appellants in Criminal Appeal No. 199 of 1981 and Jail Criminal Appeal No. 235 of 1981 and Mr. Das, appearing for the appellants in the other Jail Criminal Appeals having been appointed by this Court, who has argued with considerable earnestness and zeal, have challenged the order of conviction as unfounded on the basis of the highly unreliable evidence of P. W. 1 and the evidence with regard to the recovery of M. O. I from the house of appellant, Adikanda Sahu, which was highly unsatisfactory. Mr. A. Rath, the learned Additional Standing Counsel, has not seriously pressed into service, the evidence with regard to the recovery of M. O. I and rightly so, in view of the fact that the only witness to the recovery, namely, P. W. 11, had not been able to say as to whether it was recovered from the house of the appellants Adikanda, and in the absence of the evidence of the other persons who had witnessed the seizure, as deposed to by the police officer (P. W. 12), the evidence of the latter (P. W. 12) could not safely be accepted. Mr. Rath has placed reliance on the evidence of P. W. I and has submitted that his evidence, if accepted, could be the foundation of an order of conviction.
4. It is not disputed at the Bar that a dacoity had been committed in the house of P. W. 1 as alleged by him and as would be clear from the evidence adduced by the prosecution. The question for consideration would be as to whether the appellants were the authors of the crime.
5. Of the identifying witnesses, the evidence of P. W. 7, a co-villager of P. W.1, who had identified the appellants in the Court and at the test identification parade, could not be of any avail as his evidence would not show that any of the culprits named by him had any hand in the commission of dacoity in the house of P. W. 1. He bad identified the appellants as the persons who had committed dacoity in his house during the same night and it has been brought to ray notice that the order at conviction recorded against the appellants under Section 395 of the Indian Penal Code by the same learned Assistant Sessions Judge in that case has been set aside by this Court. [See 1984 Cr. L. 588- Ghanashyam Das and Ors. v. The State.] P. W. 10, the nephew of P. W. 1, had identified the appellants Bidyadhar, Banamali and Ghanashyam as three of the culprits and he had claimed to have seen a hand bomb with the appellant Bidyadhar, It was not in his evidence that these three persons had been known to him from before. The occurrence had taken place in May, 1980. P. W, 10 had identified the three appellants for the first time in the Court while giving evidence in July, 1981, more than a year after the occurrence. There was nothing to show that he had closed the identifying features of these three appellants to any one immediately after the occurrence. He had admitted that ha had not given the descriptions of the culprits to the Investigating Officer in the course of investigation. In such circumstances, the identification of a. person for the first time by the witness in the Court after such a length of time would be valueless. Although he had claimed to have identified the three appellants because they were farmimg torch lights, such a statement had not been made by him at the stage of investigation He had stated in the course 'of investigation that he had not seen the culprits and that he could not identify them. The evidence of P. W. 10 could not be accepted. As a matter of fact, a perusal of the limpugned judgment would give an indication that the trial Court has not placed implicit reliance on the evidence of these two witnesses and has mainly based the order of conviction on the evidence of P. W. 1.
6. There thus remains for consideration only the evidence of P. W. 1. Of the appellants, he had not identified the appellant Adikanda in the Court. The other appellants had been identified by him both in the Court and at the test identification parade conducted long after the occurrence in August, 1980 and that, too, not satisfactorily. The evidence of the Judicial Magistrate (P. W. 9) would give an indication that it had been conducted in an open space and had been arranged by the Investigating Police Officer (P.W. 13). There was thus an opportunity for P. W. 1 to see the appellants when they were mixed up with the other persons whereafter he was called upon to identify.
7. P. W. 1 had claimed to have identified the culprits because they were focusing torch lights. If the culprits had been focusing torch light at P. W. 1, his eyes would have been dazzled. There was no clear evidence to indicate that the culprits had been focusing torch lights at themselves in which case there would be some possibility of P. W. 1 identifying some of them. On his own showing, it was a dark and cloudy night. If his assertion that he had identified the culprits by the focusing of their torch lights is not accepted, his evidence of identification must have to be discarded. In the first information report, P. W. 1 had not, in terms, stated that he had been able to identify the culprits by the focusing of their torch lights. He had given vague descriptions of the culprits in the first information report by stating that the culprits were short in height, stout and were of dark complexion aged between thirty and thirty-five years. He had not even stated therein that he would be able to identify the culprits, if shown to him. As his evidence would show, the appellant Ghanashyam Das was of his age and he (P. W. 1) was aged about 46 years when he deposed in the Court. Thus this appellant was not a person aged between thirty and thirty-five years. This appellant was not a man of dark complexion as admitted by P. W. 1 in the Court and he was neither too tall nor too short. He had admitted that among the accused persons, only Bidyadhar was of dark complexion and he was a tall man. He had disowned his own statement made in the first information report that all the culprits were of dark complexion and of short height. As the evidence of the Judicial Magistrate who had conducted the test identification parade would show, P. W. 1 had not stated before him the specific parts played by the suspects at the time of commission of the offence. In view of all these suspicious features in the evidence of P. W. 1, the trial Court went wrong in accepting his evidence and even basing a conviction thereon. While it is true that the evidence of a solitary witness, if found to be true and trustworthy and free from suspicious features, can be the basis for a convic tion, the evidence of P. W. 1 was not of that character.
8. Dealing with a case of dacoity with murder, the Supreme Court has observed in AIR 1981 S. C. 1392-Wakil Singh and Ors. v. State of Bihar, that unless the evidence is absolutely clear, it would be unsafe to convict an accused for such a heinous offence on the testimony of a single witness.
9. For the foregoing reasons, I find that the order of conviction recorded by the trial Court cannot be sustained.
10. In the result, I would allow the appeals and set aside the order of conviction and sentences passed against the appellants and direct that they be set at liberty forthwith.