Full Judgment
J.M. Mahapatra, J.
1. The revision is directed against the judgment and order dated 31-3-1982 of the learned Sessions Judge, Ganjam- Boudh, Berhampur, maintaining the conviction and sentence passed by the learned Asst. Sessions Judge, Berhampur, convicting the petitioner Under Section 395, I. P. C. and sentencing him to undergo rigorous imprisonment for five years.
2. Briefly stated the facts of the case are these. There was a dacoity in the house of the informant, P. W. 1, in the night of 15-2-1978 in course of which the petitioner and six others were alleged to have forcibly entered into the house of P. W. 1 and removed jewellery and cash. On an information being lodged by P. W. 1, the S. I. of Jarada police statbn, P. W. 17, took up investigation of the case and eventually submitted charge sheet against seven accused persons including the petitioner. In course of investigation several seizures have been made. Some recoveries are also said to have been made from some of the accused persons in this case.
3. The defence plea was one of denial.
4. Prosecution has examined as many as twenty witnesses and defence has examined none. The prosecution evidence is in abundance to prove that dacoity took place in the house of the informant, P. W. 1, and the learned counsel appearing for the petitioner is unable to challenge this conclusion of the Courts below.
5. Before dealing with the case of the present petitioner, it would be pertinent to mention that six other accused who had also been convicted along with the present petitioner had preferred Criminal Revision Nos. 178, 245, 251 and 331 of 1982, which were heard and disposed of by a common judgment dated 12-12-1986, in which four of the accused persons were acquitted of the charge of dacoity while two others, namely, Binod and Pratap were convicted of the offence Under Section 392, I. P. C. and sentenced to undergo rigorous imprisonment for five years. Coming to the case of the present petitioner, it would be noticed that his conviction is based on the identification evidence of the inmates of the house, P. Ws. 1 and 11. It transpires from the evidence of P. Ws. 1 and 11 that the present petitioner was identified only in the Court at the time of trial. It is stated by both P. Ws. 1 and 11 that the petitioner was holding one hammer at the material time. According to P. W. 1 the present petitioner and accused Binod opened the boxes, Sindhukas and Pedis and removed jewellery and cash, whereas according to P. W. 11 the present petitioner was guarding them with weapon. Apart from the aforesaid discrepancy in the evidence of P. Ws. 1 and 11 inter se the shocking and most dbquisting feature in the evidence led against the petitioner is that although the T. I. Parade was held on 1-5-1978 the present . petitioner was not called to be identified in the T. I. Parade by the identifying witnesses, P. Ws. 1 and 11, The evidence of P W 12, the Magistrate conducting the T. I. Parade and Ext. 14 the T. I Parade report would disclose that in the T-. I. Parade only four accused persons were included namely, Binod, Bhubananda, Radhakrishna and Pratap. The occurrence having taken place in the year 1978 and the witnesses having been examined at the trial in April, 1980, a little more than two years after the incident and the witnesses having not had the opportunity of identifying the petitioner in the T. I. Parade, their ocular testimony with regard to identification in Court is extremely difficult to accept, the law on the point is fairly well-settled, and as has been held by the Supreme Court in A. I. R. 1979 S. C. 1127 Kanan and Ors. v. State of Kerala, the object of holding T. I. Parade is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness may have seen only once, and if no T. I. Parade is held then it will be wholly unsafe to rely on the bare testimony of the witness regarding the identification of an accused for the first time in Court during the trial. Similar view is taken by this Court in several cases which need not be catalogued. The net position therefore, is that apart from the discrepancy in the testimony of P. Ws. 1 and inter se as to the specific overt-act attributed to the petitioner at the time of comission of dacoity, which throws serious doubt about his participation in the crime, the witnesses not having had an earlier opportunity to identify the petitioner in the T. I. Parade has rendered their ocular testimony quite unsafe to base the conviction of the petitioner In other words, it is not possible to come to a conclusive finding that the petitioner was one of the participants in the crime. No other evidence is relied upon by the learned Courts below, namely, the seizure of stolen articles and the like to connect the petitioner with the alleged crime.
6. In conclusion, therefore, I would, while disagreeing with the findings of the learned Courts below, hold that the prosecution has failed to establish the guilt of the petitioner Under Section 395, I. P. C. beyond all reasonable doubt. The only item of evidence as to the identification of the petitioner, as -discussed earlier, is wholly unsafe to be relied upon. There is no other item of . evidence to connect him with the alleged crime. The . petitioner, therefore, cannot be fastened with any criminal liability, and he must be held to have not participated in the offence of dacoity. The prosecution. having thus failed to establish the guilt of the petitioner beyond all reasonable doubt, he is entitled to acquittal.
7. In the result, the revision is allowed. The order of conviction and sentence of the petitioner is set aside. The petitioner be released forth- with from the jail custody, if he is not required to be detained in connection with any other matter.