B.N. Dash, J.
1. All the seven appellants were tried for the offences under Section 9-B of the Explosives Act, 1884 (for short 'the Act') and Under Section 395, IPC by the learned Additional Sessions Judge, Jajpur. While acquitting all the appellant of the charge Under Section 9-B of the Act, the learned Additional Sessions Judge convicted all the appellants Under Section 395, IPC and sentenced each of them to undergo rigorous imprisonment for eight years and to pay a fine of Rs. 5,000/-, in default, to undergo rigorous imprisonment for a further period of two years.
2. The prosecution case, shortly stated, is that on 1-9-1987 at about 11.30 p.m. the informant Shyam Sunder Pradhan (P.W. 1) and his family members consisting of his wife Soli Dei (not examined), his two sons Surendra Pradhan (P.W. 2) and Sridhar Pradhan (not examined), his daughter Laxmipriya (not examined) and his daughter-in-law Smt. Kataki Pradhan (P.W. 3) went to sleep after dinner. While P.Ws. 1 and 3 slept on the outer varandah of their house in village Markandapur, the other aforesaid inmates slept in the entrance room. At about 1 a.m. at night some unknown miscreants came and assaulted P.W. 2 with lathis and as a result of such assaults when P.W. 2 cried aloud. P.W. 1 woke up and when he was assaulted by one of the miscreants he fled away to a nearby open field and raised hullah. On hearing the cries of P.W. 2, when his mother Soli Dei opened the entrance door the miscreants entered inside the house being variously armed and forcibly removed away the valuables worn by the inmates. They terrorised the inmates by assaulting them and demanded them to disclose the places where valuables had been kept. When there was no disclosure by the inmates one of the culprits picked up the small baby of P.W. 3 aged about one year and threatened to kill the baby by throwing unless disclosure regarding the places where valuables had been kept was made. At such sight and threat, the inmates pointed out the places where valuables had been kept and thereafter the miscreants took away the valuables therefrom consisting of gold and silver ornaments, one HMT watch and a cash of Rs. 2,000/ -. In the meanwhile, many other villagers including Mahadev Kumar Jena (P.W. 4) and Baikuntha Pradhan (P.W. 6) having assembled near the house of P.W. 1, some of the miscreants assaulted P.Ws. 4 and 6, terrorised the villagers by exploding bombs and decamped with the stolen properties.
On the next day morning, the Officer-in-charge of Jajpur Police Station having come to know about the dacoity in the house of P.W. 1 in the previous night, rushed to the village and arrived there at about 9-30 a.m. when first information report (Ext. 1) was lodged by P.W. 1 describing the miscreants as unknown. In course of investigation, P.W. 11 sent the injured persons for medical examination and treatment, seized one small bottle emitting smell of kerosene, some torn papers emitting smell of gun powder, some roses etc. from a nearby open field under Ext. 2 and some receptacles from the house of P.W. 1 under Ext. 6 and made requisition to the Sub-Divisional Judicial Magistrate, Jajpur for holding test identification parade in respect of the appellants after their arrest. After completion of investigation, charge-sheet was submitted not only against the appellants but also against two others who being found to be absconders the case against them was split up.
3. The defence was one of denial of the complicity of the appellants in the commission of the crime. The specific defence of appellants Nabakishore Jena and Bhagirathi Jena, the co-villagers of P.W. 1, was that they were working as Halia and labourer under P.W. 1 and since there was dispute regarding payment of labour charges, they had been falsely roped in the case. According to the appellants Maheswar Samal and Prabir Das, the evidence relating to test identification parade was of no consequence because on the day preceding the test identification parade they along with other appellants had been shown by the police to the identifying witnesses. No witness was, however, examined in support of the defence plea.
4. At the trial, the prosecution examined as many as eleven witnesses out of whom P.Ws. 1 to 4, 6 and 11 have already been introduced. P.Ws. 5 and 8 are the witnesses to the seizures P.W. 7 is Dr. Kanhu Charan Sahoo who, on examination, found injuries on the persons of P.Ws. 2, 4 and 6 on the next day, but found no injuries on the persons of P.W. 3 and her mother-in-law Soli Dei and brother-in-law Sridhar Pradhan; P.W. 9 is the Sub-Assistant Jailor of Jajpur Sub-Jail who arranged the test identification parade and P.W. 10 is the Sub-Divisional Judicial Magistrate who conducted the test identification parade as per his report Ext. 8. On a consideration of the evidence of P.Ws. 1 to 4, 6 and 11, the learned Additional Sessions Judge believed the prosecution case that there was a dacoity in the house of P.W. 1 in the night in question. On the basis of the sole testimony of P.W. 3, he further came to record a finding about involvement of the appellants in the commission of the said dacoity and accordingly convicted and sentenced them, as stated above. All the appeals having been filed by different appellants against the common judgment and order, they have been heard analogously and are being disposed of by this judgment.
5. The correctness of the finding of the trial court regarding commission of dacoity in the house of P.W. 1 in the night in question is not at all disputed by the learned counsels appearing on behalf of the appellants. It is, however, contended by Mr. P. K. Dhal and other learned counsels appearing for the appellants that the trial court went absolutely wrong in relying on the sole testimony of P.W. 3 to convict the appellants inasmuch as her evidence of identification in the test identification parade could not be relied upon as furnishing a piece of corroborative evidence, because of certain infirmities in holding the said parade. It is also contended by them that her identification in court was also undependable in view of her own evidence that she could not recognise the miscreants on account of their articifial concealments. The learned Additional Standing Counsel, on the other hand, supports the impugned judgment and order.
6. There is no controversy at the bar that no stolen article has been recovered from any of the appellants and that the conviction of the appellants by the trial court has been founded solely on the testimony of P.W. 3 which, according to the trial court, has been duly corroborated by her evidence of identification in the test identification parade. So, it is to be found out how far the evidence of identification in court of P.W. 3 is dependable to maintain the conviction.
7. According to P.W. 3, a lamp was burning in the entrance room when the miscreants entered inside the house and some of the miscreants were holding torch-lights which hey were focussing hither and thither. Such evidence was obviously led to show that the inmates of the house including P.W. 3 had chance to see and observe the miscreants during the commission of the dacoity, but as already stated above, excepting P.W. 3 no other inmates of the house who had slept in the entrance room has been examined although two of them namely, Sridhar Pradhan and Smt. Sali Dei had allegedly identified all the appellants in the test identification parade for no rhyme or reason. For their non-examination, an adverse inference is liable to be drawn that if they had been examined, they could not have identified the appellants as the culprits. Even in spite of the non-examination of those two persons, the identification evidence of P.W. 3 in Court cannot be altogether thrown out of consideration, if there was special occasion for her to closely see and observe the miscreants at the time of commission of the crime, but there is no such evidence on record. On the other hand, P.W. 3 has clearly deposed that she became terror-stricken at the sight of the miscreants inside the house and that because one of the culprits had covered his face with a piece of cloth and another was wearing an artificial beard, she could not recognise them for such artificial concealments. Further, according to her, she had identified eight culprits in the test identification parade of whom only six were present in court and not the other two culprits. On a reference to the order-sheet of the trial court, it is seen that on the date of her examination all the seven appellants were present in court. Thus, according to her own showing, one of the appellants does not included within those miscreants who took part in the commission of the crime and it is not known who that appellant is. When other inmates of the house named above have not been examined in court, it is not absolutely safe the rely on the evidence of P.W. 3 in court to connect all the appellants in the commission of the crime particularly when who was terror-stricken at the eight of the miscreants and her evidence in chief-examination implicating all the seven appellants in the commission of the six crime is held to be incorrect. Again, when according to the evidence of P.W. 3, as stated above, one of the appellants atleast was not amongst the gang of dacoity and it is not ascertainable as to who that appellant was, all the appellants are entitled to benefit of doubt.
8. It is the settled proposition of law that identification of a person not known to the identifying witnesses from before, for the first time in court without being tested in a prior test identification proceeding is valueless (see AIR 1979 SC 1127 : (1979 Cri LJ 919) Kanan v. State of Kerala and AIR 1980 SC 1382 : (1980 Cri LJ 965) State (Delhi Admn.) v. V. C. Shukla which have been referred to by this Court in 1984 Cri LJ 507 : (1984 Cri LJ (NOC) 85), Mr. Rosen v. The State. Having already discussed the evidentiary value of the direct testimony of P.W. 3, let as now proceed to examine how for the learned Additional Sessions Judge was correct in finding that the identification evidence of P.W. 3 in the test identification parade furnished a good piece of corroborative evidence to her direct testimony in court. The Magistrate conducting the test identification parade is P.W. 10. According to his evidence, on 17-12-1987 the test identification parade was held inside Jajpur Sub-Jail. Each of the suspects was mixed up with eight other innocent persons of similar age, height and complexion and when the identifying witnesses including P.W. 3 were called one after another they could identify each of the suspects. It is not clear from his evidence whether all the seven suspects were separately put in the test identification parade in the ratio of 1 : 8 or they were put up together along with other innocent persons in the said ratio. However, the evidence of the Sub-Assistant Jailor (P.W. 9) who arranged the test identification parade and that of P.W. 3 (the identifying witness) clearly go to show that all the suspects had been mixed up with other innocent persons and while they were all standing in a row the identifying witnesses were asked to identify the suspects. Although, P.W. 10 has clearly deposed that all the identifying witnesses including P.W. 3 did correctly identify all the seven appellants, the evidence of P.W. 3 is to the effect that she had identified eight suspects in that test identification parade. Further, it is pertinent to note that although according to P.W. 3 one of the miscreants had covered his face with a piece of cloth and another was wearing an artificial beard at the time of commission of the dacoity besides using of turbans by all the miscreants, there is nothing to show that at the time of the test identification parade turbens and artificial beards had been used by the suspects and the innocent persons and precaution had been taken to conceal their faces by cloths. It is nonetheless significant to note that in between their date of arrest and the date of the test identification parade, the appellants had been produced in the court of the Sub-Judge on 19-9-1987 and then in the court of the Sub-Divisional Judicial Magistrate, Jajpur on 26-9-1987 and then on 16-10-1987 and although the court of the Sub-Judge, Jajpur is at a distance of 1/4th k.m. from the court-hazat and there was possibility of outsiders seeing the appellants at the time of their production in both the courts from the court-hazat, there is no material on record to show that precaution had been taken to conceal their identity while lodging the appellants in the court-hazat or at the time of their production in the two courts from the court-hazat. This by itself would not have prompted me to hold that the identifying witnesses had been the' appellants before holding of test identification parade particularly when their village is at a distance of about 18 k.ms. from Jajpur town, but considering the evidence of the i.e. (P.W. 11) and that of the Magistrate holding the test identification parade (P.W: 10) together, I am inclined to take a different view. While P.W. 18 has clearly deposed that no notice was served on the identifying witnesses from the Court was that the I.O. produced the identifying witnesses on the date of the test identification parade, the evidence of PW 11 is on the effect that excepting submission of a requisition for holding the test identification parade, he had not taken any other part to arrange that parade. He has further expressed his ignorance as to how the identifying witnesses come to the test identifying parade. This clearly goes to indicate that the Investigating Officer is not disclosing the truth and from such of his evidence a conclusion may be drawn that on the day preceding the test identification parade he had shown the appellants to the identifying witnesses including PW 3, as claimed by some of the appellants. Under these circumstances, I hold, in disagreement with the learned Additional Sessions Judge, that the test identification parade is completely vitiated and, therefore, the same does not furnish a piece of corroborative evidence. That being so, the direct evidence of PW3 connecting some of the appellants in the commission of the crime is valueless. It follows, therefore, that the ultimate conclusion of the learned Additional Sessions Judge convicting the appellants can never be sustained.
9. In the result, therefore, all the appeals are allowed and the order of conviction and sentence is hereby set aside. The appellants who are in custody be set as liberty forthwith and the bail bonds in respect of the other appellants are cancelled.