PURNA CHANDRA SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) TWO persons, namely, the petitioner and the co -accused Trilochan Chand, who is reported to be dead, were convicted by the trial court under S. 395 of the I. P. C. (for short, the 'Code') and sentenced thereunder to undergo rigorous imprisonment for a period of five years. The order of conviction passed against the petitioner has been maintained by the appellate court. Seven accused persons stood trial, five of them including the petitioner being charged under S. 395 of the Code, one under S. 212 and another under S. 201 of the Code. Five of the accused persons were acquitted of the charges. It was alleged that on the 23rd December, 1978 at about 1.00 A. M. the petitioner and the other co -accused persons who stood charged for commission of dacoity, being armed with deadly weapons, attacked P. W. 15 and others on their way from Bhubaneswar to Rayagada and after assaulting them, removed cash and other articles. At the trial, the prosecution examined twenty -one witnesses to bring home the charges. It is not necessary to catalogue the entire evidence as the order of conviction of the petitioner has been based solely on the basis of the evidence of identification of the petitioner by P. W. 15, the driver of one of the two trucks.

(2.) MR . S.K. Padhi, the learned counsel for the petitioner, has submitted that as three of the five named persons were acquitted of the charge of dacoity, no order of conviction could legally be passed under S. 395 of the Code against the petitioner and the prosecution evidence, if accepted, could establish a charge of robbery. He has contended that as the petitioner was not known to P. W. 15 from before and no test identification parade had been held, the evidence of identification of P. W. 15 sixteen months after the occurrence could not safely be accepted. In this connection, my attention has been invited to the view taken by this court in (1983) 56 Cut LT 60 : (1983 Cri LJ NOC 191) Ramesh Chandra Mohapatra v. State of Orissa.

(3.) IT is next to be seen as to whether on the basis of the sole evidence of P. W. 15, the petitioner could be convicted for commission of robber y. P. W. 15 had not claimed to have known the petitioner at any time prior to the occurrence.The occurrence had taken place during the night time, although it was said to be a moonlit night and the lights of the trucks were on. There was no material that at any stage prior to the identification of the petitioner in the court, P. W. 15 had given the identifying features of the petitioner. In the circumstances in which P. W. 15 had been placed, he must have been in a state of daze as he was himself one of the victims.The trial and appellate courts were of the view that the evidence of identification was not to be thrown out in every case merely because no test identification parade had been conducted. In the instant case, however, apart from the fact that the petitioner had not been known to P. W. 15 from before, P. W. 15 had not given the identifying features of the petitioner and none of the other occupants of the trucks had identified the petitioner to be one of the culprits. Identification in the court of the petitioner by P. W. 15 had been made in April, 1980, while the occurrence had taken place in December, 1978. In (1983) 1 SCC 143 : 1983 Cri App R (SC) 25 : 1983 SCC (Cri) 139 : (1983 Cri LJ 689) Mohd. Abdul Hafeez v. State of Andhra Pradesh, the evidence of identification was not accepted by the Supreme Court as the name and description of the appellant had not been given in the first information report, no test identification parade had been held and the appellant had been identified in the court more than four months after the occurrence. It has been held by the Supreme Court in AIR 1980 SC 1382 : (1980 Cri LJ 965) State (Delhi Admn.) v. V. C. Shukla that identification evidence without a test identification parade is valueless when the accused is not known to the identifying witness from before.