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1981 Supreme(Ori) 100
ORISSA HIGH COURT
Dr. B. N. MISRA, J.
HARIHAR SAMAL
VERSUS
THE STATE OF ORISSA
Criminal Appeal No. 64 and Govt. Appeal No. 77 of 1978,
Decided on : 1 -10 -1981.
The evidence of an approver must be corroborated in material particulars by other independent evidence.
Headnote:
CRIMINAL APPEAL - DAOCITY - SECTION 395, I.P.C. - EVIDENCE OF APPROVER - CORROBORATION - RELIABILITY OF APPROVER - SEIZURE OF GUN - IDENTIFICATION OF ACCUSED - TEST IDENTIFICATION PARADE.
Fact of the Case:
A dacoity was committed in the house of P.W. 5 on the night of 8-7-1974. Appellant Harihar and respondents Dusasan, Ekadasi, and Narahari were charged under Sec. 395, I.P.C. The approver P.W. 12 implicated the accused persons. The trial court convicted Harihar and acquitted the respondents.
Finding of the Court:
The court found that the approver P.W. 12 was not a reliable witness. His evidence was full of discrepancies and infirmities. He was an ex-convict and his previous conviction was for dacoity. His evidence was not corroborated by any independent evidence. The seizure of the gun M.O. I did not implicate Harihar with the offence of dacoity. The identification of the accused persons was not done through a test identification parade.
Issues: 1. Whether the approver P.W. 12 was a reliable witness? 2. Whether the evidence of the approver was corroborated by any independent evidence? 3. Whether the seizure of the gun M.O. I implicated Harihar with the offence of dacoity? 4. Whether the identification of the accused persons was done through a test identification parade?
Ratio Decidendi: 1. An approver is a competent witness, but his evidence must satisfy a double test: (a) the court must hold that the approver is a reliable witness, and (b) the evidence of the approver must be corroborated in material particulars by other independent evidence. 2. The evidence of an approver must be corroborated in material particulars by other independent evidence. This is a rule of prudence and not a rule of law. However, the court may dispense with corroboration if the peculiar circumstances of a case make it safe to do so. 3. The seizure of the gun M.O. I did not implicate Harihar with the offence of dacoity because the place from where the gun was seized was accessible to outsiders. Further, the seizure witness P.W. 9, who was declared hostile by the prosecution, stated that the gun was seized while it was in possession of the villagers who had taken it out from the house of the appellant. 4. The identification of the accused persons was not done through a test identification parade. This is a serious lacuna in the prosecution case.
Final Decision: The court allowed Criminal Appeal No. 64 of 1978, set aside the conviction and sentence of the appellant, and acquitted him of the charge under Sec. 395, I.P.C. The court dismissed Government Appeal No. 77 of 1978 and confirmed the acquittal of the respondents.
JUDGEMENT
1. Criminal Appeal No. 64 of 1978 has been filed by Harihar Samal who has been convicted under Sec. 395, I.P.C. by the learned Assistant Sessions Judge, Dhenkanal in Sessions Trial No. 37/40-D of 1976. The appellant has been sentenced to rigorous imprisonment for eight years and to pay a fine of Rs. 500/-, in default, to undergo further rigorous imprisonment for six months. The State Government have filed Government Appeal No. 77 of 1978 against the acquittal of respondents Dusassan Samal, Ekadasi Samal and Narahari Samal in the same case. Since these two appeals arise out of the same judgement, they were heard analogously and this judgement shall dispose of both the appeals.
2. The prosecution case may be briefly stated P.W. 2 is the wife and P.W. 3 is the mother of P.W. 5. P.W. 1 is P.W. 2's brother. They belong to village Kolibania Kateni. On the night of 8-7-1974 P.W. 5 and the members of his family finished their meals at about 8. p.m. Thereafter they closed the doors of their house and went to sleep. P.Ws. 1 and 5 slept on the inside verandah of the house. P.W. 2 and her children also slept there. P.W. 3 slept on the verandah of the "Dhanaghar" along with field servants Achyutananda Behera and Maheswar Dehury. At about midnight P.W. 5 heard some noise and woke up. He found that about 8 to 10 persons were standing near him. They asked P.W. 5 not to raise his voice. Thereafter P.Ws. 1, 2 and 3 and the field servants woke up. Some of these intruders kept P.Ws. 1, 2 and 3 and the field servants under watch and threatened them not to shout. One of them also kept watch on P.W. 5. P.W. 5 requested the intruders not to assault them but to take their few belongings if they so desired. Some of the intruders entered inside the rooms and one of them took out a gun which was in one of the rooms. The intruders put P.W. 5 and his family members and the field servants inside one of the rooms and locked it from outside. After some time P.W. 5 saw that the intruders had left. He called his uncle who lived on the opposite side of the road and the latter came and opened the door in which P.W. 5 and the other members of the family had been locked. On coming out P.W. 5 checked and found that his gun, ornaments, cash, utensils etc. as described in the list appended to the F.I.R. (Ext. 2) had been carried away by the persons who had entered the house. Two of them were armed with knives and the others were armed with lathis. P.W. 5 had seen the faces of some of these persons when they had fleshed torch lights while they were inside his house. P.W. 5 further found that the intruders had snatched away the ear-rings from the ears of P.W. 3 as a result of which she had suffered injuries on her ears. P.W. 5 lodged F.I.R. (Ext. 2) on 9-7-1974 at 7 p.m. at Kamakshyanagar police Station. P.W. 10. the Officer-in-charge, registered the present case and took up investigation. In course of investigation of another case (Bhuban P. S. Case No. 33 of 1974) under Sec. 436, I.P.C., P.W. 7, the Officer-in-charge of Bhuban Police Station, seized one S. B. B. L. gun with a burnt butt from the front yard of appellant Harihar. On finding this clue and on receipt of other clues in course of investigation of this case, appellant Harihar and respondents Dusasan, Ekadasi and Narihari were arrested. On completion of investigation charge-sheet was submitted against the aforesaid persons and four others. In the charge-sheet P.W. 12 Bhaskar Kanar is described as prosecution witness No. 10. The charge-sheet is dated 2-9-1976. The case was committed to the Court of Session and the Sessions Judge, Cuttack received the commitment on 30-10-1976 - vide order No. 1 of that date. On the same day the Sessions Case was registered and it was transferred to the Court of the Additional Sessions Judge. Dhenkanal for disposal according to law. On 22-12-1976 the Public Prosecutor filed a Petition under Sec. 319, Cr. P.C. praying that Bhaskar Kanar shown as witness in the charge-shee
