ORISSA HIGH COURT,
CUTTACK
CRIMINAL APPEAL NO. 12 OF 2004
From the judgment dated 20.08.2003 passed by Sri Basudeb Tripathy,
Addl. Chief Judicial Magistrate-cum-Asst. Sessions Judge, Rourkela in S.T.
No.174/61 of 2002.
Pawan Kumar Singh .........
Appellant
Versus
State of Orissa ......... Respondent
For appellants : M/s D. Panda, D.P. Dhal,
G.R. Mohanty,
A.K. Parida
and R.K. Dash.
For respondent : Mr. P.K. Pattnaik,
Addl. Govt. Advocate.
PRESENT :
THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY
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Date of hearing and judgment : 30.07.2008
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PRADIP MOHANTY,J. This appeal is directed against the judgment and order
dated 20.08.2003 passed by the Addl. Chief Judicial Magistrate-cum-Asst.
Sessions Judge, Rourkela in S.T. No.174/61 of 2002 convicting the
appellant under Section 392 IPC and Sections 25 and 27 of the Arms Act.
The trial court sentenced the appellant to undergo rigorous imprisonment
for seven years and pay a fine of Rs.25,000/-, in default undergo rigorous
imprisonment for six months, for the offence under section 392 IPC, and
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undergo rigorous imprisonment for three years and pay a fine of
Rs.10,000/-, in default undergo rigorous imprisonment for three months
more, on each count for the offence under sections 25 and 27 of the Arms
Act; all the sentences to run consecutively.
2. The case of the prosecution is that on 17.08.2001 at 10.30 a.m.
the present appellant along with the other co-accused persons entered into
the U.Co. Bank, Bazar Branch, Rourkela when its business had just
started, confined the staff of the bank and customers present in the bank in
the Tiffin room at the point of pistols, forced two bank officers, who were in-
charge of the strong room, to open the same and took away Rs.9,26,700/-,
one DBLL gun belonging to the bank and three cheque books. Thereafter,
they also confined those two officers in the Tiffin room along with others and
fled away. On arrival of the Senior Manager of the Bank just after the
incident, the matter was reported to the Plant Site P.S. and investigation
was taken up on completion of which charge-sheet was submitted under
Section 395 IPC and Sections 25 and 27 of the Arms Act against the present
appellant and three other accused persons, who during trial escaped from
the court.
3. Plea of the accused-appellant is complete denial of the
allegation.
4. In order to prove its case, prosecution examined as many as 10
witnesses including the Magistrate, who conducted T.I. parade, and defence
examined none.
5. The learned Addl. C.J.M.-cum-Assistant Sessions Judge,
Rourkela, who tried the case, by judgment dated 20.08.2003 convicted and
sentenced the appellant, as stated hereinbefore.
6. Mr. Parida, learned counsel for the appellant, submits that there
is no material on record to establish a case under Section 392 IPC against
the appellant. There is no proof that the appellant attempted to cause the
death of any person or attempted to cause hurt to him while committing
theft. He further submits that the trial court is wrong in accepting the
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report of the T.I. parade, when P.W.3 specifically stated that he identified
the present appellant as per the direction of the Magistrate. He further
submits that TI parade was not conducted promptly inasmuch as it was
done only on the 11th day of arrest of the appellant. Such delay in
conducting the T.I. parade is fatal to the prosecution. He also submits that
the seized pistol, five bullets and one fifty rupee bundle from the possession
of the appellant cannot be treated as stolen articles and the pistol was not
used for commission of the offence. Mr. Parida places reliance on Ravi @
Ravichandran v. State, AIR 2007 SC 1729 and Bijuli @ Bijaya Behera,
etc. v. State, (1993) 6 OCR 356.
6. Mr. Pattnaik, learned Addl. Government, submits that the
present appellant was identified by P.W.3 and P.W.6, who is a bank officer,
in presence of P.W.5, the Judicial Magistrate. He further submits that there
was no delay in conducting the TI parade. The TI parade was conducted on
30.08.2001. The appellant was arrested on 18.08.2001 and forwarded on
19.08.2001. Investigating Officer immediately prayed for TI parade and the
TI parade was conducted. Therefore, there is no delay in holding TI parade.
He further submits that a bundle of fifty-rupee notes was recovered from the
present appellant in presence of an independent witness (P.W.9) and there
is no reason to disbelieve the evidence of P.W.9.
7. Perused the LCR and the decisions cited. In the instant case,
P.W.1, the Senior Manager of the bank, is the informant. He is a post
occurrence witness. He arrived at the spot after the incident and released
the employees and customers of the bank from the Tiffin room. On being
briefed about the incident by the witnesses, he reported the matter to the
police.
P.W.2 was the Manager of the bank at the relevant time. He is
a witness to the incident. He identified accused Sujit Kumar Yadav and the
bag in which the accused persons had taken away the cash from the bank
in the TI parades held for identification of the accused persons and the
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stolen properties. But he could not identify other accused persons, since he
was terrified by them.
P.W.3 is a customer of the bank and an independent witness.
He was present at the time of occurrence. He stated that co-accused Sujit
Kumar Yadav threatened him at the point of a pistol and also told him to sit
down. Another co-accused Ajaya Kumar Upadhaya, who was holding a
pistol and a knife, took this witness and others to a room and kept them
there. He further stated that he recognized the accused persons named by
him in the jail before a Magistrate as the culprits.
P.W.5 is the Magistrate who conducted T.I. parades both in
respect of accused and property. He specifically stated that the present
appellant was correctly identified by P.Ws.3 and 6. During T.I. parade, no
objection was raised by the accused persons. No scope had also been given
to the identifying witnesses to see the suspects beforehand. He has proved
the T.I. Parade report.
P.W.6 was in charge of the cash on the relevant date. He was
present at the time of occurrence. He identified the present appellant with
another.
P.W.7 is a witness to seizure. He stated that one Bages Kumar
Akala and Ajit Kumar were staying in his house at Madhusudan Pali on
rent. The police had come to that room along with co-accused Sujit Kumar
and in his presence said co-accused Sujit Kumar gave recovery of a bag
containing cash and three cheque books.
P.W.8 is another seizure witness in whose presence police
seized M.O.III, the Nylon bag, and M.Os. IV and V, the Jute bags.
P.W.9 is yet another independent seizure witness in whose
presence police seized one pistol, five bullets and one fifty-rupee note
bundle.
8. P.W.3 in his cross-examination stated that he had identified the
present appellant as per the direction of the Magistrate to identify the
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culprits. This cannot be interpreted, as is said by the learned counsel for
the appellant, that on the direction of the Magistrate, P.W.3 identified the
present appellant. In his cross-examination P.W.3 has specifically stated
that he had identified the accused persons as the members of the dacoit
gang and he had stated the same to the Magistrate. P.W.5, the Magistrate in
whose present the T.I. parade was conducted has categorically stated that
the present appellant was correctly identified by P.Ws.3 and 6. He has
proved the T.I. Parade report wherein it is clearly mentioned that the
appellant was identified by P.W.3 and P.W.6. In view of such clinching
evidence, no doubt can be entertained in regard to identification of the
appellant. So, there is no force in the argument advanced by the learned
counsel for the appellant in this respect.
9. Coming to the next contention, admittedly the T.I. parade was
held on the 11th day of arrest of the present appellant. But P.W.5, learned
Magistrate has clearly stated in his evidence that during T.I. parade no
objection was raised by the accused persons and no scope had been given to
the identifying witnesses to see the suspects. In the T.I. parade report such
fact has been clearly mentioned. So appellant cannot get any benefit for
delay in holding the T.I. parade. The decision in Ravi @ Ravichandran’s
case (supra) relied on by the counsel for the appellant is not applicable to
the present case for the simple reason that in the said case photographs of
the accused persons were not only published, they were also shown to the
identifying witnesses before identification, whereas in the present case no
such allegation is there. Similarly, the case of Bijuli @ Bijaya Behera
(supra) is also not applicable as the facts of that case are totally different
from those of the present case.
10. So far as recovery is concerned, evidence of P.W.9, an
independent witness, and P.W.10, the Investigating Officer, is very clear.
There is no reason to disbelieve their evidence. Nothing has also been
elicited from them in course of cross-examination to discredit their version.
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11. In view of the above, this Court is not inclined to interfere with
the impugned judgment of conviction of the appellant under Section 392
IPC and Sections 25/27 of Arms Act.
At this stage, learned counsel for the appellant submits that the
sentences imposed are very high and excessive. He prays that keeping the
young age of the appellant in mind, a lenient view may be taken.
Regard being had to the gravity of the offence, this Court is not
inclined to reduce the sentences. However, this Court directs that the
substantive sentences imposed by the trial court shall run concurrently
instead of consecutively.
12. The appeal is disposed of accordingly.
………………………………
PRADIP MOHANTY, J.
Orissa High Court, Cuttack
July 30, 2008/ G.D.Samal
