Madhu @ Allauddin Mian vs State of Orissa

B.K. Behera, J.—The Petitioner assails the judgment and order passed by the learned Additional Sessions Judge, Rourkela, upholding the order of conviction passed against him by the learned Assistant Sessions Judge, Rourkela, u/s 394 of the Indian Penal Code and sentencing him thereunder to undergo rigorous imprisonment for a period of five years. The Petitioner is alleged to have committed robbery in the house of Paulus Barjo (P.W. 1) during the night of November 7, 1977. No doubt, concurrently both the courts have held the Petitioner to be guilty, but it would be noticed on a perusal of the materials placed against the Petitioner that the order of conviction has been illegal and unfounded calling for interference by this Court in its revisional jurisdiction.

Of the evidence of three inmates of the house, namely, Paulus, Barjo (P.W. 1), Rahila Barjo (P.W. 2) and Naimi Barjo (P.W. 3), the learned appellate Judge has discarded the evidence of identification of the Petitioner by P.W. 2 The sole evidence on which the order of conviction has been rested is that of P.W. 1 who had Identified the Petitioner in the court and at the test identification parade. The occurrence is alleged to have taken place on November, 7, 1977, but the test identification parade, had been held on December 23, 1977. There was no substantive evidence before the court that at any time after the occurrence, P.W. 1 had disclosed the features of the Petitioner to anyone. P.W. 3, the wife of P.W. 1, had not been able to identify the Petitioner as according to her the culprits had wrapped their faces with clothes and only their eyes and noses were visible. If so, P.W. 1 would not be in a position to identify the Petitioner. There is no other incriminating material to connect the Petitioner with the occurrence. It would not be safe, reasonable and proper to accept the evidence of P.W. 1 and record a conviction thereon.

In the result, I would allow the revision, set aside the order of conviction and sentence passed against the Petitioner and direct that he be set at liberty unless otherwise required to be detained.