Judicial Analysis Court Copy Headnote Facts Arguments Court observation

ORISSA HIGH COURT
S.K. Sahoo, J.
Baikuntha Bhoi and Ors. – Appellants
versus
State of Odisha – Respondent
CRLA No. 21 of 2012, CRLA No. 504 of 2012 and CRLA No. 719 of 2012
Decided on 4.4.2024

Advocates:
Counsel for the Parties:
For the Appellant: Mr. Rashmi Ranjan Nayak, Amicus Curiae
For the Respondent: Mr. Priyabrata Tripathy, Addl. Standing Counsel

IMPORTANT POINT
Identification proceedings are not conducted for pleasure of prosecution – It has got a valuable purpose even though identification test does not constitute substantive evidence.

Headnote:
Indian Penal Code, 1860 – Section 395 – Dacoity – Conviction and sentence – F.I.R. was lodged against four unknown persons – Prosecution has not offered any explanation as to why Magistrate who conducted T.I. parade was not examined to prove report – Non-examination of Magistrate strikes a severe blow not only to prosecution case but also to cause of justice as irregularities committed in such T.I. Parade cannot be canvassed and discussed by trial Court in his absence from witness box – Identification proceemdings are not conducted for pleasure of prosecution – It has got a valuable purpose even though identification test does not constitute substantive evidence – Impugned judgment and order of conviction is not sustainable in eye of law – Accordingly, same is hereby set aside and appellants acquitted of charge under Section 395 of I.P.C. (Paras 7, 8 and 9)
Result: Criminal Appeals allowed.

JUDGMENT

S.K. Sahoo, J.—The appellants Baikuntha Bhoi and Prasanta Nayak in CRLA No. 21 of 2012, the appellant Bishnu Nayak in CRLA No.504 of 2012 and the appellant Raju @ Rajesh Behera in CRLA No. 719 of 2012 faced trial in the Court of learned Adhoc Addl. Sessions Judge (FTC), Bhubaneswar in Crl. Tr. Case No.47/205/2010 for commission of offence under section 395 of the Indian Penal Code (in short, ‘I.P.C.’) on the accusation that on 13th June, 2010 at about 10.30 p.m. at Palasuni under Mancheswar police station, Bhubaneswar, they committed dacoity in respect of cash amounting to Rs.8,000/-, two numbers of mobiles, one suitcase, etc. of the informant, Bhabani Shankar Nayak (P.W.4).

The learned trial Court vide impugned judgment and order dated 30.11.2011 convicted all the appellants under section 395 of the Indian Penal Code and sentenced each of them to undergo R.I. for five years each and to pay a fine of Rs.3,000/- (rupees three thousand) each, in default, to undergo further R.I. for three months each.

Prosecution Case:

2. The prosecution case, in short, is that on 13.06.2010 at about 10.30 p.m., Bhabani Shankar Nayak (P.W.4), the informant in the case, returned from Bangalore to Bhubaneswar by Prasanti Express and near Master Canteen Chhak, he was waiting for an auto rickshaw to proceed to Palasuni to his house. In the meantime, one Omni Maruti car came near him and the driver called him and agreed to leave him at Palasuni. He boarded the Omni car and three other persons were also present in that car. One passerby, who boarded in the said vehicle, got down at Vani Vihar. When P.W.4 asked him to stop the vehicle, he did not listen to him and drove the car speedily. It is the further prosecution case that all the appellants assaulted P.W.4 inside the car causing bleeding injuries on his person. They also forcibly took away his cash of Rs.8,000/-, two valuable mobiles, a trolley suit case and other valuable articles and threw him out by the side of the road at Trinath Bazar. Thereafter, a young man came and rescued him and then the police officers with P.C.R. van came and also rescued him.

On the basis of the written report presented by P.W.4, the Inspector in-charge of Mancheswar police station registered Mancheswar P.S. Case No. 142 dated 14.06.2010 against four unknown persons and directed Abhinaba Dalua, S.I. of Police (P.W.8) to take up investigation of the case.

During the course of investigation, P.W.8 examined the informant (P.W.4), visited the spot, sent the injured informant to Capital Hospital, Bhubaneswar for medical examination and examined other witnesses. Subsequently, on 22.06.2010 on getting information from S.I. Sitakanta Das of Sahid Nagar police station, he proceeded to Sahid Nagar police station and examined the appellant Raju @ Rajesh Behera, who confessed his guilt and disclosed the names of other appellants before him and P.W.9. He recorded the confessional statement of the appellant Raju @ Rajesh Behera and being led by the said appellant on 22.06.2010 at 11.00 a.m., some articles were recovered and accordingly, P.W.8 seized the same as per seizure list Ext.5. The appellant Bishnu Nayak was taken on remand along with appellant Raju @ Rajesh Behera and P.W.8 made a prayer before the Court for conducting T.I. parade of the appellants Raju @ Rajesh Behera and Bishnu Nayak and accordingly, T.I. parade was conducted at Bhubaneswar Special Jail, Jharpada on 26.06.2010 in which P.W.4, the informant participated as identifying witness and he correctly identified both the appellants. P.W.8 also seized the Maruti van as per seizure list Ext.6 on 01.07.2010 from the owner of Maruti van, namely, Sushanta Kumar Samal (P.W.1) and on 08.08.2010 he left the car in the zima of P.W.1 after verifying its documents as per zimanama Ext.7. On 24.10.2010, P.W.8 also submitted remand report against the other appellants since they were forwarded to Court in Sahid Nagar P.S. Case No. 176 of 2010. On completion of investigati