The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK C.R.A. No.125 of 1996 (In the matter of an application under Section 374 of the Criminal Procedure Code.) Bishnu Biswal State of Odisha Appeared in this case:- For Appellant For Respondent -versus- …. …. Appellant Respondent : : Mr. Gokulananda Sahoo, Amicus Curiae Mr. Suvasish Pattnaik, Learned Addl. Government Advocate Appeared in this case:- CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 11.09.2023 / date of judgment :29.09.2023 A.C. Behera, J. This is an appeal under Section 374(2) of the Criminal Procedure Code (hereinafter referred to ‘Cr.P.C.’), which has been preferred by the appellant-Bishnu Biswal against the judgment of conviction and sentence passed on 30.03.1996 in S.T. No.270 of 1995 arising out of G.R. Case No.270 of 1994 in connection with Baramba P.S. Case No.112 of 1994 by the learned Assistant Sessions Judge, Athagarh, wherein the appellant was convicted for the offences under // 2 // Section 395 of the I.P.C., 1860 and Section 9-B of the Explosives Act, 1884 and was sentenced to undergo R.I. for seven years and to pay a fine of Rs.1,000/- in default to undergo R.I. for six months for the offence under Section 395, I.P.C., 1860 and to undergo R.I. for one year for the offence under Section 9-B of the Explosives Act, 1884 with a direction for running of the sentences of both the above offences concurrently subject to set off of the period already undergone by the convict/appellant as an U.T.P. 2. The appellant was one of the accused before the learned court below, i.e., before the court of learned Assistant Sessions Judge, Athagarh in S.T. No.270 of 1995.
Legal Reasoning
The projected case of the prosecution before the learned trial court below during trial against the accused/appellant was that on dated 01/02.08.1994 night, when the informant Madhusudan Debata along with his family members were sleeping in their house at village Abhimanpur under the jurisdiction of Baramba Police Station in the district of Cuttack after closing their doors of their house from inside, at about 1.30 A.M., they heard a sound of entry of some persons into their courtyard by breaking open the main door of their house. For which, the informant along with his family members woke up and found that, more than five unknown culprits have already entered into their house. The said culprits first assaulted to the brother of the informant, i.e., Damodar Debata and asked him to provide the valuables and cash. Thereafter, the culprits entered into the bedroom of the informant in order to collect valuables, cash and other articles. They also broke open their wooden almirah, attachi and took away one golden Trisula along with other articles and cash of Rs.5,000/-. By the assault of the culprits, the informant along with his brother Damodar Debata sustained injuries on their respective // 3 // persons. Some of the culprits had covered their faces by tying handkerchiefs. When the victim Damodar Debata raised hulla in order to save their lives from the clutches of the culprits, then their neighbours heard the same and tried to come to their house. After knowing about the same, all the culprits fled away from the spot taking away gold ornaments from the wife of the informant and his brother’s wife forcibly after bursting a bomb in order to terrorize the public. Thereafter in that night at about 3.30 A.M., the informant Madhusudan Debata lodged a written F.I.R. vide Ext.1 narrating about the incident before the S.I. of Maniabandha Out-post alleging the aforesaid allegations. 3. As the F.I.R. vide Ext.1 lodged by the informant revealed cognizable offences, for which, the S.I., Maniabandha Out-post took up the investigation of the case sending that F.I.R. vide Ext.1 to the Baramba Police Station for registration and so also for further actions on the same as per law. 4. After receiving that F.I.R. vide Ext.1, the O.I.C. of Baramba Police Station registered Baramba P.S. Case No.112 dated 02.08.1994 under Sections 457 and 395 of the I.P.C., 1860 read with Section 9-B of the Explosives Act, 1884 against unknown culprits and directed S.I. K.C. Dalai of that Police Station to take up the investigation of the case. Accordingly, on being directed by the O.I.C., S.I. K.C. Dalai of Baramba P.S. proceeded with the investigation of that case. During investigation, he (I.O.) visited the spot, examined the informant Madhusudan Debata and his brother Damodar Debata and sent them both for their medical examination through separate requisitions and accordingly, they were medically examined. He(I.O.) also examined // 4 // other witnesses, seized the articles, those were led at the spot. He(I.O.) first arrested the accused/appellant along with his co-accused Patia
Legal Reasoning
Gochhayat and Srinath Tripathy. He(I.O.) seized Rs.237.95P from the accused/appellant through seizure list vide Ext.4/1. He (I.O.) seized Rs.200/-, a citizen wrist watch and one driving license from his co- accused Srinath Tripathy through seizure list vide Ext.5/1 and also seized a cash of Rs.240/- along with one H.M.T. Kohinoor wrist watch from another co-accused, i.e., Patia Gochhayat through seizure list vide Ext.6/1 and forwarded them to the court. Thereafter, he (I.O.) arrested other accused, namely, Paramananda Guru and forwarded him to the court. Then, T.I. Parade of the above arrested accused persons including the accused/appellant was conducted at the Sub-jail, Baramba by the learned J.M.F.C., Baramba. He (I.O.) seized one live bomb and sent the same to S.F.S.L., Rasulgarh, Bhubaneswar for chemical examination and report and released the seized crowbar in the zima of the informant. Then, he(I.O.) received the injury reports of the informant and his brother. But, when, he(I.O.) could not able to apprehend the other accused persons due to their absconding, for which, after completing investigation, he (I.O.) submitted charge-sheet against eleven numbers of accused persons including the accused/appellant under Sections 457 and 395 of the I.P.C., 1860 read with Section 9-B of the Explosives Act, 1884 showing some of the co-accused persons of the appellant, i.e., Nanda Parida, Jugal Pradhan @ Bimba Behera and Bibhuti Behera as absconders. Subsequent thereto, due to the absconding of some of the arrested accused persons, the case against them was split up for separate trial. Therefore, the case against the accused/appellant along with his two co- accused persons, namely, Paramananda Guru and Patia Gochhayat was // 5 // committed to the court of Sessions from the court of learned J.M.F.C., Baramba for trial. 5. Accordingly, after commitment, the case was transferred from the court of learned Sessions Judge, Cuttack to the court of learned Assistant Sessions Judge, Athagarh for trial. So, the accused/appellant Bishnu Biswal along with to his two co- accused persons, i.e., Paramananda Guru and Patia Gochhayat were facing trial before the court of learned Assistant Sessions Judge, Athagarh in S.T. No.270 of 1995 having been charged under Sections 457/395 of the I.P.C., 1860 read with Section 9-B of the Explosives Act, 1884. The plea of the defence was one of complete denial and false implication of the accused persons before the learned trial court below. 6. In order to substantiate the aforesaid charges against the accused persons including the accused/appellant, prosecution had examined altogether 12 numbers of witnesses as P.Ws.1 to 12 but, the defence had examined none on its behalf. 7. Out of 12 witnesses of the prosecution, P.W.1 was the informant- Madhusudan Debata. P.W.2 was the brother of the P.W.1, P.W.3 was the wife of P.W.2 and P.W.4 was the wife of P.W.1. Accordingly the P.Ws.1 to 4 are the members of one family and they were the victims of the alleged incident. P.W.5 was the scribe of the F.I.R. vide Ext.1. P.Ws.6 to 9 were the witnesses to the seizure lists. P.W.10 was the Investigating Officer. P.W.11 was the doctor, who had medically examined P.Ws.1 and 2. P.W.12 was the leaned J.M.F.C., Baramba, who had conducted the T.I. Parade and had prepared the T.I. Parade reports vide Ext.11 and 12 respectively. // 6 // 8. After conclusion of the trial and on perusal of the materials and evidence available in the record, the learned trial court below found the accused/appellant along with his one co-accused, i.e., Patia Gochhayat guilty under Section 395 of the I.P.C., 1860 and Section 9-B of the Explosives Act, 1884 accepting the part of the case of the prosecution by disbelieving the plea of the defence and acquitted the accused/appellant from the charge under Section 457 of the I.P.C. and sentenced him (accused/appellant) to undergo R.I. for 7 years and to pay a fine of Rs.1,000/- in default to undergo R.I. for six months for the offence under Section 395 of the I.P.C., 1860 and also sentenced him to undergo R.I. for one year for the offence under Section 9-B of the Explosives Act, 1884 with a direction for running of both the sentences concurrently subject to set-off of the period already undergone by him as an U.T.P. as per the judgment dated 30.03.1996 passed/pronounced in S.T. No.270 of 1995 by placing reliance on the reports of the T.I. Parade vide Exts.11 and 12 respectively. 9. On being aggrieved with the aforesaid judgment of conviction and sentence passed on 30.03.1996 in S.T. No.270 of 1995 under Section 395 of the I.P.C., 1860 and Section 9-B of the Explosives Act, 1884 against the accused/appellant by the learned Assistant Sessions Judge, Athagarh, he (accused/appellant) had challenged the same by preferring this appeal being the appellant against the State taking several grounds in his appeal memo. I have already heard from the learned Amicus Curiae for the appellant and the learned Additional Standing Counsel for the State and so also have perused the materials, documents and evidence available in the record. // 7 // Basing upon the aforesaid case of the prosecution, plea of the defence, findings and observations made by the learned trial court below in the impugned judgment, grounds taken by the appellant in his appeal memo and the submissions of the learned counsels of both the sides, the crux of this appeal is Whether the impugned judgment of conviction and sentence passed on dated 30.03.1996 in S.T. No.270 of 1995 under Section 395 of the I.P.C., 1860 and Section 9-B of the Explosives Act, 1884 against the accused/appellant by the learned Assistant Sessions Judge, Athagarh is sustainable under law? It appears from the impugned judgment of the leaned trial court below that, the F.I.R. was registered against the unknown culprits. For which, after arresting of the appellant along with his co-accused persons, T.I. Parade was conducted in respect of the suspected culprits and seized articles by the leaned J.M.F.C., Baramba as per the prayer of the Investigating Officer. 10. As, the learned trial court below has convicted and sentenced the accused/appellant for the offences under Section 395 of the I.P.C., 1860 and Section 9-B of the Explosives Act, 1884 holding him as a participant in the alleged incident on the basis of the reports of the T.I. Parade, for which, in order to ascertain the sustainability of the impugned judgment of conviction and sentence passed against the appellant/accused, it is pertinent to scrutinize the evidentiary value of the reports of T.I. Parade vide Exts.11 and 12 respectively along with evidentiary value of the witnesses, those had participated in the said T.I. Parade. 11. It is the settled propositions of law that, the report of T.I. Parade itself is not a substantive evidence. In absence of any other evidence, the // 8 // same cannot be the basis of conviction. Because, the evidence relating to the T.I. Parade can only be used for corroboration of the statements of the witnesses in the court. The necessity for holding T.I. Parade arises, only when, the accused persons are not primarily known to the witnesses. If the witness does not know the accused persons by name, but, they could able to identify them from their appearance during their participation in the alleged incident, then T.I. Parade becomes necessary, that too, when F.I.R. is lodged against the unknown person. Therefore, when the suspects are complete strangers to the witnesses or victims, in that case, identification parade becomes desirable. 12. The purpose of pre-trial identification is to assure the investigating agency that, the investigation is going on in the right direction and to provide corroboration deposed by the witnesses or victim later-on in the court at the trial; The learned J.M.F.C., Baramba (P.W.12), who had conducted the T.I. Parade of the suspects has deposed in his Examination-in-Chief by stating that “on 10.08.1994, he had conducted T.I. Parade in respect of the suspects, i.e., Patia Gochhayat, Bishnu Biswal (appellant) and Srinath Tripathy. The identifying witnesses Damodar Debata, Pratima Debata and Malati Debata had participated in the T.I. Parade. The T.I. Parade was conducted inside the Sub-jail, Baramba in presence of Superintendent, Sub-jail and Jail Warder. Each of the suspects were mixed with 10 other prisoners of similar height, complexion and dresses. Witness Damodar Debata identified suspect Patia Gochhayat only. Witness Pratima identified Patia Gochhayat and the appellant Bishnu Biswal. Witness Malati Gochhayat identified Patia Gochhayat and Bishnu Biswal(appellant). Ext.-12 is the said T.I. Parade report.” // 9 // The said learned Magistrate, i.e., P.W.12(who had conducted T.I. Parade) has deposed in paragraph-4 of his deposition by answering to the questions of the learned defence counsel that, “due to non-availability of any uniform supplied by the jail, the U.T.Ps were mixed with the suspects and the suspects were wearing Lungi of blue colour having slight different in colour from the other U.T.Ps.” 13. The above three witnesses, i.e., Damodar Debata, Malati Debata and Pratima Debata, those had participated in the T.I. Parade, they were examined as P.Ws.2, 3 and 4 respectively. P.W.3 Pratima Debata (wife of P.W.2) has deposed in paragraph-3 of her deposition by answering to the questions of the learned defence counsel that, “prior to 4 to 5 days of the T.I. Parade, the police had taken accused persons to their village and on that day P.W.1 and 2 and her other family members were present in their house at their village.” 14. P.Ws.1 to 4 including P.W.3 are the members of one family and they are the victims of the alleged incident. 15. It is the settled propositions of law that, in order to establish about the proper and lawful conduct of the T.I. Parade, it is duty of the prosecution to bring it into the record through the evidence of the learned Magistrate, (who had conducted the T.I. Parade) that, the suspects were mixed with the persons having approximate similar age group, height, appearance and dresses. 16. Here in this case at hand, it has come out from the above evidence of the learned Magistrate (who had conducted T.I. Parade), i.e., P.W.12 that, the suspects had worn blue colour Lungis having different in colour from the other U.T.Ps. with, whom they were mixed at the time of conducting T.I. Parade inside Sub-jail, Baramba. // 10 // 17. As, the suspects including the appellant had worn different colour Lungis then the other U.T.Ps. of the jail, those had mixed with them at the time of conducting T.I. Parade, then at this juncture, it cannot at all be held that, the learned Magistrate (P.W.12) had conducted the T.I. Parade in accordance with the law. 18. On that aspect, the propositions of law has already been clarified in the ratio of the following decisions; (i) (2018) 71 OCR-900 Akhaya Das vrs. State of Orissa ; (para-17 & 18) Evidence Act, 1872— Section-9— T.I. Parade of suspects – “Evidence of the learned of Magistrate conducting T.I. Parade, does not reveal that, the suspect was mixed with the persons having approximate similar age group, height, appearance and type of dresses, it will be held that, the learned Magistrate has not conducted the T.I. Parade in accordance with the law.” (ii) CLT (2018) Supp. Crl. Vol-1 Page-174: Md. Babu Khan vrs. State of Orissa Indian Evidence Act, 1872—Section-9— Duty of the courts for appreciation of the evidence of T.I. Parade— “Before accepting the evidence of T.I. Parade, the court is to assess, if procedures holding T.I. Parade by the learned Magistrate has been followed properly or not, so as to ensure fair trial.” (iii) (2023) 89 OCR (S.C.) 479 ; Gireesan Nair and others Etc. vrs. State of Kerala Evidence Act, 1872— Section—9— “Legality or integrity of T.I. Parade— if the witnesses had the opportunity to see the accused before the T.I. Parade, be it in any form, i.e., physically, through photographs or through any via // 11 // media (newspapers, television etc.), the evidence of T.I. Parade is not admissible as a valid piece of evidence.” (iv) (1998) 5 SCC 103 : Shaikh Umar Ahmad Shaikh and another vrs. State of Maharashtra : Evidence Act, 1872— Section—9— Use of the T.I. Parade Evidence— “Evidence of T.I. Parade has only corroborative value— substantive piece of evidence is cannot identification. However, where suspects already shown to the witnesses before the T.I. Parade, their identification in court becomes valueless. No conviction can beyond on such evidence.” (v) 1984 C.L.R. Page-8(Para-11) : Md. Rosen and others vrs. The State — Evidence Act, 1872— Section—9—T.I. Parade— Evidentiary value— “In a case, where the culprits were shown to the identifying witnesses prior to the identification in a Test Identification, such identification has no value.” 19. It is the clarified position of law that, if the identification in the T.I. Parade has taken place after the accused being shown to the witnesses, then not only the evidence of the T.I. Parade becomes inadmissible, but also, an identification in court during trial also becomes meaningless. In case, the witnesses had ample opportunity to see the accused before the identification parade is held, the same adversely affects the trial. So, it is the duty of the prosecution to establish before court the trial that, right from the day of arrest, the accused persons were put “BAPARDA” to rule out the possibility of their face being seen by the identifying witnesses, while in police custody. If the witnesses had the opportunity to see the accused before the T.I. Parade, be it in any form, i.e., either physically or through photograph or through any via media such as newspapers, // 12 // television etc., in that case, the evidence of T.I. Parade shall be inadmissible under law. Here in this case at hand, P.W.3, (who had identified the appellant in the T.I. Parade), has specifically deposed above in paragraph-3 of her deposition that, 4 to 5 days prior to the T.I. Parade, police had taken accused persons including the accused/appellant to their village and on that day, she (P.W.3) along with her other family members including the P.Ws.2 and 4 were present in their house. When, the aforesaid evidence of P.W.3 is clearly and unambiguously going to show that, the T.I. Parade was conducted after showing the accused persons including the accused/appellant to the witnesses, those had participated in the T.I. Parade by taking the accused persons including the accused/appellant to their village by the police, then at this juncture, by applying the principles of law enunciated in the ratio of the decisions referred to supra, it is held that, the evidence adduced on behalf of the prosecution through the witnesses during trial regarding the identification of the accused/appellant in the T.I. Parade as well as the report of the T.I. Parade prepared by the leaned Magistrate vide Ext.12 are valueless being inadmissible under law. For which, the evidence of prosecution regarding the identification of the accused/appellant, as a participant of the incident has become meaningless. Therefore, the evidence adduced on behalf of the prosecution regarding the identity of the accused as a participant of the incident cannot be taken into the zone of consideration on behalf of the prosecution for using the same as an incriminating material against the accused/appellant. // 13 // 20. So far as the evidence used against the accused/appellant regarding the identification of the seized properties as per the report of T.I. Parade vide Ext.11 is concerned, Here in this case at hand, no article seized from the possession of the accused/appellant was put to T.I. Parade. The law on that aspect has already been settled that, when the articles put in the T.I. Parade were not seized from the accused/appellant, but from his co-accused (who is not the appellant in the appeal) then, T.I. parade of articles cannot prove any incriminating circumstance against the accused/appellant. On that aspect, the propositions of law has already been highlighted in the ratio of the following decision:- (2018) 71 OCR-900 : Akhaya Das vrs. State of Orissa ; (para-20) Evidence Act, 1872— Section-9— T.I. Parade of ornaments – “Articles put to T.I. Parade were not seized from appellants, but from their one co-accused, who is not the appellant. The articles sized from the present appellants were never put to T.I. Parade – Held, T.I. Parade of articles does not prove any incriminating circumstance against the present appellants.” So, by applying the principles of law enunciated in the ratio of the aforesaid decision, the evidence regarding the identification of the properties in the T.I. Parade does not prove any incriminating circumstance against the accused/appellant, regarding his participation and involvement in the alleged incident. 21. In the impugned judgment, the learned trial court below has used the seizure list vide Ext.4/1, i.e., the seizure of Rs.237.95 Paise against the accused as an incriminating circumstance, but, it is very curious enough that, during the course of recording of his statements under // 14 // Section 313 of the Cr.P.C., the learned trial court below has not put any question to the accused/appellant on the evidence emerging from the contents of Ext.4/1 to explain. On that aspect, it is profitable to refer the ratio of the following decisions 2009(1) OLR-467 : State of Orissa vrs. Anit Singh @ Rabi and another ; —in Cr.P.C., 1973— Section 313— “A relevant evidence either direct or circumstantial cannot be used against the accused, unless it has been confronted to him in course of examination under Section 313 of the Cr.P.C. In the present case, trial court did not put any question to either of the accused persons on the evidence emerging from Exts.33 & 34 – Held, evidence in Exts.33 & 34 cannot be used against the appellants (accused persons).” Here, in this case at hand, without putting any question to the accused/appellant to explain about the evidence emerging from the contents of the seizure list vide Ext.4/1 at the time of recording his statements under Section 313 of the Cr.P.C., the learned court below has used the contents of such seizure list vide Ext.4/1 against him as an incriminating circumstance in the judgment, which should not have been used against him as per law in the judgment. So, the use of the contents of Ext-4/1 by the learned trial court below against the accused/appellant
Decision
in the impugned judgment is not lawful. When, the learned trial court below has convicted and sentenced the accused/appellant holding him as a participant in the alleged incident on the basis of his identification in the T.I. Parade and when as per the discussions and observations made above, it has been held that, the conduct of T.I. Parade and preparation of the reports of T.I. Parade vide // 15 // Exts.11 and 12 respectively by the learned J.M.F.C., Baramba (P.W.12) are not in accordance with law and when the identification of the accused/appellant during investigation as well as during the trial by the witnesses has become meaningless and when the learned trial court below has used the contents of the seizure list vide Ext.4/1 as an incriminating circumstance against the accused/appellant illegally, then, at this juncture, there is no other alternative for the appellate court, but, to hold that, the participation of the accused/appellant in the incident has not been lawfully established by the prosecution. It is very fundamental in law that, there can be no conviction without conclusive identification of the accused as a participant in the alleged incident. 22. When it is held above that, prosecution has become failure to establish the identification of the accused as one of the participants of the alleged incident and when no conviction in any criminal case can be made against any accused on the basis of surmises or conjectures without proving the case against the accused before the learned trial court beyond reasonable doubt, then at this juncture, it is my considered view that, the impugned judgment of conviction and sentence passed against the accused/appellant Bishnu Biswal on dated 30.03.1996 by the learned trial court below in S.T. No.270 of 1995 under Section 395 of the I.P.C. and Section 9-B of the Explosives Act, 1884 cannot be sustainable under the law. For which, there is merit in the appeal of the appellant, the same is to be allowed. 23. The appeal be and the same filed by the appellant is allowed on contest. The impugned judgment of conviction and sentence passed against the accused/appellant under Section 395 of the I.P.C., 1860 and // 16 // Section 9-B of the Explosives Act, 1884 on dated 30.03.1996 in S.T No. 270 of 1995 by the learned Assistant Sessions Judge, Athagarh is set aside. Accordingly, the accused/appellant-Bishnu Biswal is acquitted from the charges/offences under Section 395 of the I.P.C., 1860 and Section 9-B of the Explosives Act, 1884 on the ground of benefit of doubt. Therefore, the accused/appellant is directed to be set at liberty forthwith after being discharged from his bail bonds. The appeal is disposed of finally. Judge Orissa High Court, Cuttack The 29th of September, 2023/ Jagabandhu, P.A. ( A.C. Behera ) Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: Secretary-in-Charge Reason: Authentication Location: OHC, CUTTACK Date: 29-Sep-2023 17:03:40