Satrughna Barad @ Nilu vs State Of Orissa

Dr. A.K.Mishra, J

The sole appellant has assailed his conviction under Section 302 of the Indian Penal Code (hereinafter referred to as „IPC‟ in brevity) and

sentence to undergo imprisonment for life and to pay fine of Rs.2000/-(Rupees two thousand) in default R.I. for six months by judgment dated

7.12.2010 in S.T. Case No. 161 of 2010 by learned Additional Sessions Judge, Kendrapara.

Accusation leading to this prosecution was that on 13.10.2009 at about 7.00 P.M. informant and her husband deceased-Mir Nabi Bux while coming

from the medical, in-front of the house of Dr.Acharya, accused Pinku and three others obstructed them and fired from a Mauzer. Informant sustained

bullet injury so also her husband deceased Mir Nabi Bux. On being asked Mir Nabi Bux disclosed that assailants were Pinku and his associates. He

was taken to hospital at Kendrapara, where he succumbed to his injuries.

The informant, the wife of the deceased, lodged an F.I.R. (Exibit-2) at 11.30P.M. at Kendrapara Police Station resulting registration of Kendrapara

Town P.S. Case No. 303 of 2009. In course of investigation the Investigating Officer (in short „I.O.‟) P.W.11 made inquest over the dead body.

P.W.7 and one Dr. Rajib Jena (not examined) conducted postmortem on 5.05.2010. The present appellant was arrested. Test Identification Parade

was conducted on 1.06.2010 by the learned Judicial Magistrate, First Class, Kendrapara, his report is Ext.-5/1. Used and unused catridges were seized

from the spot. After completion of investigation charge-sheet was submitted in respect of two accused persons, namely, Pinku @ Sk. Salim and

appellant Satrughna Barad@ Nilu. Learned S.D.J.M., Kendrapara took cognizance and committed the case to the Court of Session. Further

investigation under Section 173(8) Cr.P.C. was pending.

Both the accused persons pleaded not guilty to the charge under Sections 302/34 IPC and Sections 25 & 27 of the Arms Act.

In order to bring home charge, prosecution has examined 11 witnesses, twelve documents were exhibited including F.I.R., seizure list, zimanama

and P.M. report. No evidence either oral or documentary was led in by the defence.

P.W.1 is the informant-cum-injured. P.Ws. 2, 4, 6, 8 and 10 are relations of the deceased. P.Ws.3 and 5, two co-villagers, are witnesses to the

inquest. P.W.9 is a seizure witness. P.Ws. 1, 2, 9 and 10 are declared hostile. P.W.7 is the doctor who proved postmortem report (Ext.8). P.W.11 is

the I.O.

Learned Additional Sessions Judge, Kendrapara analyzing the evidence of medical officer P.W.7 and Postmortem report (Ext.8) held that death of

deceased was homicidal in nature. Basing upon the T.I. Parade report (Ext.5/1) and evidence of the I.O. P.W.11 held the present appellant guilty

under Section 302 I.P.C. while acquitting him of the offence under Sections 25 and 27 of the Arms Act. For want of evidence he acquitted accused

Pinku @ Sk. Salim of all the charges.

Mr. S.R.Mulia, learned counsel for the appellant submitted that, when the injured P.W.1 had not identified the appellant in the court, the learned trial

court has committed error in convicting the present appellant basing upon the T.I. Parade report Ext. 5/1. On his next plank he buttressed that

absolutely there is no evidence to connect the appellant with the act of firing to the deceased for which accused should be acquitted of all the charges.

He also argued that prosecution has not proved the motive and the weapon of offence is not seized.

Mr.K.K.Mishra, learned Addl. Government Advocate supports the judgment.

Informant is the injured and has stated that while she was coming with her husband, four persons obstructed them and started firing and her

husband was declared dead at Kendrapara hospital. Doctor P.W.7 proved the postmortem report Ext.8 stating that Dr. Rajib Kumar Jena conducted

postmortem over the dead body of Mir Nabi Bux in his presence. Postmortem report reveals that the cause of death was due to homicidal gunshot

injury from very close distance leading to damage to vital organs like heart and lungs. Ext.6/2 is the inquest report prepared on 14.10.2009 at 7.15

A.M. Ext. 9 is the dead body challan.

The above evidence unequivocally establishes that Mir Nabi Bux met homicidal death due to gunshot injures on 13.10.2009. The finding of learned

Addl. Sessions Judge, Kendrapara is affirmed to this extent.

As to the authorship of the gunshot act resulting homicidal death of Mir Nabi Bux, the prosecution has relied upon the evidence of P.W.1 and test

identification report Ext.5/1. All the witnesses except P.Ws1, 7 and 11 are post occurrence witnesses who had seen the dead body in the hospital.

With regard to actual occurrence their testimonies are no way helpful to the prosecution.

P.W.1 while admitting her injury due to gun firing in Ext.2 has stated that four persons obstructed them and started firing as a result she and her

husband sustained injuries. She has categorically stated that she did not know accused Nilu @ Satrughna Barad (appellant). With regard to

identification, she has stated that accused Satrughna Barad was not amongst the persons who fled away after firing in the darkness. She was declared

hostile and has stated that after six to seven months of the occurrence she had been to the jail premises for test identification of the culprits and she

could not identify any of the culprits. She admits her signature on T.I. parade report Ext.5/1. Even she has gone to state that police man scribed the

F.I.R. and obtained her signature and saw accused Satrughna Barad at the police station for the first time she denied that he (the appellant) was one

of the culprits. Reading testimony of P.W.1 it reveals that she has not only given goodbye to the accusation incriminating the appellant, but also the

lodging of the F.I.R. Ext.2 and identification of the appellant in the T.I. Parade vide Ext.5/1. She is a wholly unreliable witness.

The I.O. P.W.11 has stated that after getting information that accused Nilu @ Satrughna Barad was in jail custody in another case, he submitted

remand report to learned S.D.J.M., Nayagarh and got him to this case on 5.05.2010. He made a prayer for T.I. Parade on 25.05.2010 and learned

Judicial Magistrate, First Class, Kendrapara conducted the T.I. Parade on 1.06.2010 and witness P.W.1 identified the accused-appellant. The T.I.

Parade report is Ext.5/1. The Judicial Magistrate, First Class conducting T.I. Parade is not examined.

We carefully perused the report. It is found that witness P.W.1 had identified the accused-appellant correctly. Vide Col.10 it is mentioned that the

suspect appellant raised objection that the identifying witness had seen him while he was in the police custody. There being no other evidence, this test

identification parade report Ext.5/1 is to be put on test as to whether the same can be the basis for conviction of the appellant.

The identifying witness P.W.1 denied to have identified the suspect in the T.I. Parade. She has not identified the appellant in the court. The test

identification report is not a substantive piece of evidence.

In the decision reported in AIR 1960 SC 1340: Vaikuntam Chandrappa And Ors. Vs. State of Andhra Pradesh it is held that:-

“It is also true that the substantive evidence is the statement in court; but the purpose of test identification is to test that evidence and the safe rule

is that the sworn testimony of witnesses in court as to the identity of the accused who are strangers to the witnesses, generally speaking, requires

corroboration which should be in the form of an earlier identification proceeding. There may be exception to this rule where the court is satisfied that

the evidence of a particular witness is such that it can safely rely on it without the precaution of an earlier identification proceeding.â€​

In the decision reported in AIR 2018 SC 3592: Raju Manjhi Vs. The State of Biha rt,heir Lordships have observed in para-15 of the said judgment, as

quoted below:-

 “15. The identification parade belongs to the stage of investigation, and there is no provision in the Code which obliges the investigating agency

to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are

essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification

in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of

identification even without insisting on corroboration (See: Kanta Prashad v. Delhi Administration, 1958 Cri.LJ 698 and Vaikuntam Chandrappa and

Ors. V. State of Andhra Pradesh, AIR 1960 SC 1340).â€​

With regard to objection raised by suspect at the time of T.I. Parade and its relevancy, the Hon‟ble Apex Court in the decision reported in AIR 1970

SC 1321: Budhsen Vs. State of U.P. has held that:-

“Facts which establish the identity of an accused person are relevant under Sec. 9 of the Evidence Act. The substantive evidence of identification

is the statement of the witness in court. But the evidence of identification at the trial for the first time is from its very nature weak. A prior test

identification, therefore serves to corroborate the evidence in court. The purpose of identification parades which belong to the investigation stage is to

enable the witnesses to identify persons concerned in the offence, who are not previously known to them, and thereby to testify the investigating

officers of their bona fides by pointing out the persons they recognize as having taken part in the crime. These parades, thus furnish evidence which

corroborates the testimony of the identifying witnesses in court. These parades do not constitute substantive evidence. Keeping in view the purpose of

identification parades, the precautions to eliminate suspicion of unfairness and to reduce chances of testimonial error. They must take intelligent

interest in the proceedings bearing in mind two considerations: (i) that the life and liberty of an accused may depend on their vigilance and caution, and

(ii) that justice should be done in the identification. Generally, the Magistrates must make a note of every objection raised by an accused at the time of

identification and the steps taken by them to ensure fairness to the accused, so that the court which is to judge the value of the identification evidence

may take them into consideration in the appreciation of that evidence. The persons required to identify an accused should have had no opportunity of

seeing him after the commission of crime and before identification and secondly that they should make no mistakes or the mistakes made are

negligible. The identification to be of value should also be held without much delay.â€​

The law confirms that test identification report is not substantive evidence. In absence of any other evidence, the same cannot be the basis of

conviction. Learned Addl. Sessions Judge has committed error in appreciating the T.I. Parade report Ext.5/1 to base conviction against the appellant.

We are not persuaded in any manner to support such mis-appreciation of evidence. The conviction of the appellant is not sustainable in eye of law and

is to be set aside.

In the result, the appeal is allowed. The conviction and sentence of the appellant vide judgment dated 7.12.2010 in S.T. Case No. 161 of 2010

passed by the learned Addl. Sessions Judge, Kendrapara is hereby set aside. The appellant is acquitted and be set at liberty forthwith, if not required in

any other case.

Return the L.C.R. immediately to the lower court.