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IN THE HIGH COURT OF ORISSA AT CUTTACK
S. Muralidhar, CJ.
Babuli Das – Appellant
Versus
State of Odisha – Respondent
CRLREV No. 907 of 2006
Decided On : 14-10-2022
TI Parade - Criminal Law - India Explosive Act - Section 395 IPC - 9-B of the India Explosive Act - Rajesh Govind Jagesha v. State of Maharashtra 1999 SCC (Cri) 1452, State v. Pravakar Behera (1991) 4 OCR 269; Puttan alias Kamal Prasad v. State of U.P. 1992 Supp (2) SCC 749, Govind Pradhan v. State (1990) 3 OCR 350, Anil Kumar v. State of U.P. (2003) 25 OCR (SC) 106; Brij Mohan v. State of Rajasthan J.T. 1993 Supp (SC) 2003, Daya Singh v. State of Haryana AIR 2001 SC 1188
Fact of the Case:
The Petitioner was convicted for the offence under Section 395 IPC but acquitted of the offence under Section 9-B of the India Explosive Act. The case involved a dacoity in a house where the Petitioner was identified as one of the miscreants by the witnesses.
Finding of the Court:
The Court found that the delay in holding the TI Parade without any satisfactory explanation would enure to the benefit of the accused, as established in various judgments. The Court also noted that the manner of holding the TI Parade was not satisfactory and the identification evidence was not found to be satisfactory, leading to the acquittal of the Petitioner.
Issues: The key issue was the reliability of the identification evidence through the TI Parade and the delay in conducting the parade, which influenced the conviction of the Petitioner.
Ratio Decidendi: The delay in holding the TI Parade without satisfactory explanation benefited the accused, and the identification evidence was not found to be satisfactory, leading to the acquittal of the Petitioner.
Final Decision: The Court set aside the judgment of the CJM-cum-Asst. Sessions Judge, Dhenkanal and the judgment of Sessions Judge, Dhenkanal and acquitted the present Petitioner for the offence under Section 395 IPC, ordering his release unless his detention is required in some other case.
JUDGMENT
Dr. S. Muralidhar, CJ. - The Petitioner was convicted by the C.J.M.-cum-Asst. Sessions Judge, Dhenkanal by the judgment dated 24thAugust, 2005 in C.T. Sessions No.168 of 2004 for the offence under Section 395 IPC and sentenced to seven years rigorous imprisonment (RI) and pay a fine of Rs.2,000/- and in default to undergo RI for a period of one year. The said judgment was confirmed by the Sessions Judge, Dhenkanal in dismissing the Petitioner's Criminal Appeal No.67 of 2005 by the judgment dated 17th July, 2006. Both decisions have been questioned in the present revision petition.
2. On 10th July, 2007 this Court enlarged the present Petitioner on bail during pendency of the present petition.
3. This Court has heard the submissions of Mr. Debasnan Das, learned counsel appearing for the Petitioner and Mr. J. Katikia, learned Additional Government Advocate for the State-Opposite Party.
4. It must be noted at the outset that the Petitioner was charged both under Section 395 IPC for which he was convicted as well as Section 9-B of the India Explosive Act (IE Act) of which offence he was acquitted.
5. The case of the prosecution is that on the intervening night of 20th and 21st December, 2001 one Jitu Das along with others committed dacoity in the house of Choudhury Dilip Dash (PW 4). According to PW 4, about five of the miscreants entered into the house by breaking upon the front door and they were armed with knives. By exploding bombs they terrorized the inmates of the house. And at the point of knife Rashmita Dash (PW 5), the wife of PW 4 was compelled to handover all that gold jewellery that she was wearing to the miscreants. PW 4 is stated to have telephoned his brother Debasis Pattanaik (PW 7) who managed to chase and nab one of the culprits Jitu Das. The said Jitu Das is further stated to have disclosed the names of four of the accused which included the present Petitioner.
6. In the course of investigation on 26th December, 2001 it came to be ascertained that one of the absconding accused viz., the present Petitioner, had been detained in the Athagarh Sub-Jail in connection with Athagarh P.S. Case No.135/2001 and 136/2001. Since the S.D.J.M, Athagarh did not permit the present Petitioner to be spared for investigation, the test identification (TI) parade was conducted in the Athagarh Sub-Jail premises on 9th April, 2002. The inmates of the house where the dacoity took place, were supposed to have identified the present Petitioner as one of the miscreants. The remaining three miscreants could not be traced out although the charge sheet was laid against all five accused persons.
7. The trial against the present Petitioner was split up. In the proceedings before the CJM-cum-ASJ, Dhenkanal, the Petitioner was convicted for the offence under Section 395 IPC and he was acquitted of the offence under Section 9-B of the IE Act. The trial Court then proceeded to sentence the Petitioner in the manner indicated above.
8. As far as the evidence against the present Petitioner is concerned, one of the crucial circumstances was the identification of the present Petitioner by PWs 4, 5 and 7. The TI parade in which the Petitioner was identified took place on 9th April, 2002 whereas the occurrence happened in the intervening night of 20th/21st December, 2001. The consequence of the delay in holding the TI parade has been discussed in the decision of the Supreme Court in Rajesh Govind Jagesha v. State of Maharashtra 1999 SCC (Cri) 1452, where it was held that the delay in holding the TI Parade without any satisfactory explanation would enure to the benefit of the accused. This was reiterated in State v. Pravakar Behera (1991) 4 OCR 269; Puttan alias Kamal Prasad v. State of U.P. 1992 Supp (2) SCC 749 and Govind Pradhan v. State (1990) 3 OCR 350.
9. On the other hand, both the Courts below relied on another set of judgments in Anil Kumar v. State of U.P. (2003) 25 OCR (SC) 106; Brij Mohan v. State of Rajasthan J.T. 1993 Supp (SC) 2003 and Daya
The delay in holding the TI Parade without satisfactory explanation can benefit the accused, and the reliability of identification evidence through the TI Parade is crucial in determining the convict....
Delay in TI parade and lack of recovery can undermine the prosecution's case and lead to the quashing of a conviction.
The conviction under IPC Sections 391 and 395 was undermined by unreliable identification evidence and procedural delays, warranting the benefit of the doubt for the appellants.
Identification parade compromised by prior exposure to witnesses renders conviction invalid.
The judgment establishes the importance of eyewitness testimonies, recovery of weapons, and the conduct of the accused in determining guilt in a dacoity case.
The absence of a Test Identification Parade (TIP) undermines the reliability of dock identification, making it insufficient for conviction in acquittal appeals.
Identification proceedings are not conducted for pleasure of prosecution – It has got a valuable purpose even though identification test does not constitute substantive evidence.
The identification of suspects during T.I. Parade, despite a notable delay, is valid when corroborated by reliable evidence and witness recollections in cases of dacoity involving armed assault.
For a conviction under IPC Section 395, participation of five or more persons is essential, and identification procedures must meet legal standards; failure leads to acquittal.
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