BIJAYA PAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant has filed this appeal impugning the judgment dated 10th August, 2010 passed by the learned Ad hoc Addl. Sessions Judge, FTC, Champua in S.T. Case No. 16/14 of 2010 convicting him under Section 394 IPC and sentencing to undergo R1 for five years and also to pay fine of Rs. 50,000/- in default to undergo SI for one year and acquitting him from the offence under Sections 25 and 27 of the Arms Act.

(2.) The occurrence took place on 7.9.2006 at about 10.35 PM. The appellant was arrested on 4.10.2006. From the date of the arrest, he is inside the custody nearly four years and five months. The prosecution, in support of its case, examined eight witnesses and exhibited eleven documents. The plea of the appellant was one of complete denial. The trial Court, relying on the evidence of P.W. 5-the informant and P.W. 6 who had identified the accused in the T.I. Parade and also on the basis of the fact that the accused gave a leading to discovery, convicted the appellant along with one Raja @ Rajendra Karua. The case was split up so far as other co-accused persons are concerned as they are absconding till today.

(3.) Learned counsel appearing for the appellant submitted that the witnesses, who identified the appellant in the T.I. Parade, admitted in their cross-examination that after the arrest of the appellant, the witnesses saw him in the police lock-up. Since both the witnesses admitted that prior to the T.I. Parade, they saw the accused persons in the custody, the T.I. parade report should not be relied on. He further submitted that none of the seizure witnesses was examined by the prosecution even though some money was recovered from the accused persons by the Investigating Officer. Therefore, in the absence of independent seizure witness named in the seizure list, no reliance can be placed on the recovery made from the present appellant. As such, the conviction and sentence imposed by the trial Court is liable to be set aside. In support of his contention, he cited a decision of this Court in the case of Rupa Kumar Sahu and two others v. State of Orissa, 2006 33 OCR 489.