Orissa High Court: In set of three criminal appeals against the Trial Court’s decision convicting the appellants for offence under Section 395 of the Penal Code, 1860 (‘IPC’), SK Sahoo, J. allowed the appeals and set aside the impugned decision and order of conviction. The Court reflected on the importance of the Test Identification Parade and laid that it is the duty of the Public Prosecutor to examine the Magistrate who conducts the TI parade so that the legal sanctity of its report can be ascertained during the trial.
Factual Matrix
On 13-06-2010, the informant’s case was that all the convicts assaulted him inside the car causing bleeding injuries on his person and took away Rs.8,000/-, two valuable mobiles, a trolley suitcase and other valuable articles.
During the investigation, the sub-inspector (‘SI’) examined the informant, visited the spot, sent the injured informant to Hospital, Bhubaneswar for medical examination and examined other witnesses. Two of the convicts were taken on remand. Upon SI’s prayer for conducting the test identification parade (‘TI parade’), the same was conducted in the Bhubaneswar Special Jail and the informant identified the convicts.
Subsequently, the Trial Court found the convicts guilty and sentenced them to undergo rigorous imprisonment for five years each and to pay a fine of Rs.3,000/- each, in default, to undergo further R.I. for three months each.
Analysis
Whether the convicts were guilty of committing dacoity?
The Court noted that the first information report was registered against four persons and the informant had also stated that four persons had participated in the crime. The Court said that robbery is an aggravated form of theft or extortion and similarly, dacoity is an aggravated form of robbery when persons taking part therein are five or more. Hence, the Court said that in absence of any material on record that five or more persons participated in the crime, the ingredients of the offence of dacoity as enumerated under Section 391 of the IPC were not satisfied.
Therefore, the Court held that framing of the charge under Section 395 of the IPC by the Trial Court against the convicts and also the conviction under Section 395 of the IPC was not sustainable in the eyes of law, particularly when there was no evidence on record adduced during trial that five or more persons conjointly committed or attempted to commit robbery.
Test Identification Parade and examination of Magistrate
The Court noted that the informant did not name any of the convicts in the FIR and it was lodged against unknown persons. However, the Court noted that in the examination-in-chief, the informant stated that he knew two of the convicts. The Court referred to Tukuna Rauta v. State of Odisha1, wherein it was held that despite knowing the name of the accused, omission on the part of the informant to mention the same in the FIR affects the probabilities of the case and such omission is relevant under Section 11 of the Evidence Act, 1872 in judging veracity of the prosecution case. The Court said that it was expected of the informant to mention the names of the convicts, he knew in the FIR, but since the names of the two convicts did not find place in the FIR their involvement in the crime was doubtful.
Regarding the TI parade, the Court noted that the police conducted the TI parade and the informant identified one of the convicts there and that in the cross-examination it was stated by the informant that he did now knew him prior to the TI parade. The Court also noted that the prosecution had submitted that only one TI parade was conducted in the matter at hand. The Court said that if the informant identified one of the convicts in the TI parade conducted by the police, then the sanctity of TI parade which was conducted at a later point of time by the Magistrate was lost.
Further, the Court noted that the Magistrate, who conducted TI parade was not examined to prove the report, inasmuch as many things the defence could have brought out by way of cross-examination of the Magistrate regarding the irregularities or procedural infirmities, if any, made during conduct of the TI parade. In the said regard, the Court referred to Umesh Chandra v. State of Uttarakhand, (2021) 17 SCC 616, wherein, the Supreme Court had expressed concern about non-examination of Magistrates to prove the sanctity of the TI parade.
Hence, the Court reiterated that it is the duty of the Public Prosecutor to examine the Magistrate who conducts the TI parade so that the legal sanctity of its report can be ascertained during the trial. The Court reflected that non-examination of the Magistrate strikes a severe blow not on the prosecution’s case but also on justice as irregularities, if any, committed in such TI parade cannot be canvassed and discussed by the Trial Court in his absence from the witness box.
In the matter at hand, the Court said that the prosecution had proved the TI parade report through the informant and that the Magistrate was not examined in the Court to prove the report, and no plausible explanation was given by the Prosecution for the same. The Court explained that mere marking of the TI parade report is not enough inasmuch as the person who conducted the TI parade could only highlight what precautions he took, what procedure he followed during such TI parade and the lapses, if any, on the Magistrate’s part during the proceedings of the TI parade which strikes at the root of the identification evidence, can be brought out by the defence counsel in the cross-examination. Further, the Court discussed that in case of absence of Magistrate or death, the Trial Court has to specifically mention the same in the order-sheet and thereafter the prosecution can adduce cogent evidence to prove such TI parade report. The Identification proceedings are not conducted for the pleasure of the prosecution but serve a valuable purpose even though the identification test does not constitute substantive evidence.
Decision
The Court held that the impugned judgment and order of conviction was not sustainable in the eye of law and hence, the same was set aside. Accordingly, all the three criminal appeals were allowed and the Court acquitted all the convicts.
[Baikuntha Bhoi v. State of Odisha, 2024 SCC OnLine Ori 1264, Decided on: 04-04-2024]
*Judgment Authored by: Justice SK Sahoo
Advocates who appeared in this case :
For the appellants: Amicus Curiae Rashmi Ranjan Nayak
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For the respondent: Additional Standing Counsel Priyabrata Tripathy
Buy Penal Code, 1860 HERE
1. (2021) 84 Orissa Criminal Reports 55.
