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1981 Supreme(Ori) 101
ORISSA HIGH COURT
B. K. BEHERA, J.
SIDHA DEHURY AND OTHERS
VERSUS
STATE
Criminal Appeal No. 57 of 1979 and Jail Criminal Appeal Nos. 177 to 180 of 1979,
Decided on : 19 -10 -1981.
The testimony of a single witness, if believed, is sufficient to establish any fact, but the evidence must be clear, cogent, and convincing and should be of an unimpeachable character.
Headnote:
CRIMINAL APPEAL - IDENTIFICATION EVIDENCE - TEST IDENTIFICATION PARADE - CORROBORATION - UNRELIABLE TESTIMONY - SINGLE WITNESS - CONVICTION - PRINCIPLES.
Fact of the Case:
Five appellants were convicted of dacoity and sentenced to ten years of rigorous imprisonment based on the testimony of a single witness, Shivlal Agrawala (PW 1). The appellants challenged the conviction, arguing that the identification evidence was unreliable and that the test identification parade was not properly conducted.
Finding of the Court:
The court found that the test identification parade was not properly conducted and that there were suspicious features in the evidence of the identifying witnesses. The court also found that the evidence of PW 1 was not reliable and was not of an unimpeachable character.
Issues: 1. Whether the identification evidence was reliable. 2. Whether the test identification parade was properly conducted. 3. Whether the evidence of PW 1 was sufficient to sustain a conviction.
Ratio Decidendi: 1. The court held that the identification evidence was not reliable because the test identification parade was not properly conducted and there were suspicious features in the evidence of the identifying witnesses. 2. The court held that the test identification parade was not properly conducted because it was not conducted promptly after the incident, there were not enough people of similar descriptions mixed with the appellants, and the investigating officer did not take adequate precautions to eliminate the possibility of testimonial error. 3. The court held that the evidence of PW 1 was not sufficient to sustain a conviction because it was not reliable and was not of an unimpeachable character. The court noted that PW 1 had made inconsistent statements, that he had not been able to identify the appellants at the test identification parade, and that he had not told anyone about the specific features of the culprits who had committed the offense.
Final Decision: The court allowed the appeals and set aside the convictions and sentences of the appellants.
JUDGEMENT
1. In these five criminal appeals, arising out of the same judgement and order, to be governed by this common judgement, the order convicting each of the appellants under S.395 read with S.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 Kamini 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 Marwari 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 (PW 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 S.27 of the Arms Act for unauthorisedly 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 S.395 read with Sec. 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 judgement, 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 into 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 judgement 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. N
