Dhira Alias Dhirendra Rout vs State Of Odisha on 26 September, 2017

IN THE HIGH COURT OF ORISSA, CUTTACK

BLAPL No. 3937 Of 2017

An application under section 439 of the Code of Criminal
Procedure, 1973 in connection with Special G.R. Case No. 36 of
2017 pending in the Court of 3rd Addl. Sessions Judge -cum-
Presiding Officer, Children’s Court, Cuttack.
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Dhira @ Dhirendra Rout ……… Petitioner

-Versus-

State of Odisha ……… Opposite Party

For petitioner: – Mr. Devashis Panda

For State of Orissa: – Mr. Arupananda Das
(Addl. Govt. Advocate)
—————————-

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of order: 26.09.2017

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S. K. SAHOO, J. Heard Mr. Devashis Panda, learned counsel appearing

for the petitioner and Mr. Arupananda Das, learned Addl.

Government Advocate appearing for the State.

This is an application under Section 439 of Cr.P.C. for

grant of bail to the petitioner Dhira @ Dhirendra Rout in

connection with Special G.R. Case No. 36 of 2017, arising out of
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Badambadi P.S. Case No.58 of 2017 pending in the Court of

learned 3rd Addl. Sessions Judge -cum- Presiding Officer,

Children’s Court, Cuttack for commission of offence punishable

under sections 366, 376-D of the Indian Penal Code, sections 4,

6 and 14 of the Protection of Children from Sexual Offences Act,

2012 (hereafter ‘POCSO Act’) and section 67-A of the

Information Technology Act, 2000.

The petitioner moved an application for bail before

the learned trial Judge which was rejected on 18.05.2017.

The prosecution case as per the first information

report submitted by Dibakar Jena before Inspector in charge of

Badambadi Police Station is that the accused Jaya Nayak of

Khutuni deceitfully induced his daughter (hereafter ‘the victim’)

who was aged about seventeen years by pretending love with

her and kept physical relationship with her. It is the further

prosecution case that the said accused and his friends committed

rape on the victim, recorded it on the video and accused Jaya

Nayak showed the video recording to the informant three days

prior to the lodging of the F.I.R. and threatened the son-in-law of

the informant namely Anu Samal to withdraw the previous case

from police station or else to viral the video and commit similar

offence with the elder daughter of the informant. It is the further
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prosecution case that since four months, the victim was

kidnapped by accused Jaya Naik and her whereabouts is not

known to the informant.

After registration of the case, the I.O. seized the age

proof certificate of the victim and one K series micro SD memory

containing obscene video and mobile phone on production by

Anu Samal. After search at different places, on 20.03.2017 the

I.O. apprehended the accused Jaya @ Jayanta Naik who

confessed that his brother Bapuni Naik had kept physical/sexual

relationship with the victim and later he also kept physical

relationship with the victim giving her false promise of marriage.

The said accused disclosed the involvement of accused persons

Kalia @ Ranjan Kumar Sahoo and Bidyadhar Naik. The accused

Bapuni Naik was arrested and at his instance video recording

memory card and his mobile phone were seized from his house.

The accused Kalia @ Ranjan Kumar Sahoo was arrested and at

his instance, obscene memory card and his mobile phone were

seized. The wearing apparels of the accused persons were also

seized and sent to F.M. T, S.C.B. Medical College and Hospital,

Cuttack. The victim girl was rescued on 27.03.2017 and on being

examined, the victim stated that the petitioner along with other

co-accused persons committed gang rape on her and the
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petitioner took away her mobile phone. Basing on the statement

of the victim, the petitioner was arrested on 28.03.2017, he was

medically examined and forwarded to the Court.

The investigating officer found it to be a true case

under section 376-D of the Indian Penal Code and sections 4 and

6 of the POCSO Act against the petitioner and accordingly,

submitted charge sheet.

Mr. Devashis Panda, learned counsel appearing for

the petitioner contended that the victim had affair with other co-

accused persons and she fled away from her house on her own

sweet will. It is further contended that the victim has named one

Dhira and others to have committed gang rape on her in her 164

Cr.P.C. statement and test identification parade in respect of the

petitioner has not been conducted to prima facie establish that it

is the petitioner who has been named by the victim. It is further

contended that the rest of the materials is based on confessional

statement of co-accused and even though one Samsung mobile

was seized from the petitioner which is stated to be of the victim

but in respect of such mobile phone, no T.I. parade has been

conducted and everything has been stage managed to falsely

implicate the petitioner.

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Mr. Arupananda Das, learned Additional Government

Advocate on the other hand contended that during course of

investigation, the Investigating Officer made a prayer to the

DCP, Cuttack to move the concerned service provider for the

supply of the call detail reports of the mobile number used by the

victim girl. When the victim was examined, she stated that the

petitioner also kept physical relationship with her and snatched

away samsung mobile previously used by her. When the

petitioner was arrested, the samsung mobile phone of the victim

was seized from his possession. He further submitted that the

statement of the victim recorded under section 164 Cr.P.C.

clearly indicate the name of the petitioner to have committed

gang rape on her. He placed the seizure list of the samsung

mobile phone seized from the petitioner. It is contended that

since punishment prescribed for the alleged offences extend to

life imprisonment and there is chance of tampering with the

evidence in case of release of the petitioner on bail, the

petitioner should not be released on bail.

There is no dispute that in the statement before

police, the victim has named the petitioner Dhirendra Rout to

have committed gang rape on her along with others. In the 164

Cr.P.C. statement also, the victim has named one Dhira along
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with others to have committed gang rape on her. After the

apprehension of the petitioner, even though no prayer was made

for conducting the test identification parade as to whether the

person named as Dhirendra Rout in the 161 Cr.P.C. statement of

the victim and Dhira in the 164 Cr.P.C. statement of the victim is

the petitioner or not but at this juncture it would not be proper to

hold that the victim has not named the petitioner as an accused

in the case. Whether the test identification parade is necessary

or not would depend on the facts and circumstances of each

case. If the prosecutrix had sufficient opportunity to observe the

features of the accused who raped her and on account of her

traumatic and tragic experience, the face of the accused is likely

to be imprinted in her memory and as such, there is no chance

of making a mistake about the identity of the accused.

Therefore, when the Court is of the opinion that even in absence

of any prior test identification parade, the evidence of

identification in Court by the victim is reliable and trustworthy

and the victim had sufficient opportunity to see the accused

during commission of rape and there was no reason to falsely

implicate the accused, the Court can act upon the identification

of the accused for the first time in Court.

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In case of Malkhan Singh -Vrs.- State of Madhya

Pradesh reported in (2003) 5 Supreme Court Cases 746, it

is held as follows:-

“7. It is trite to say that the substantive
evidence is the evidence of identification in
Court. Apart from the clear provisions of
Section
9 of the Evidence Act, the position in law is well
settled by a catena of decisions of this Court.
The facts, which establish the identity of the
accused persons, are relevant under
Section 9 of
the Evidence Act. As a general rule, the
substantive evidence of a witness is the
statement made in Court. The evidence of mere
identification of the accused person at the trial
for the first time is from its very nature
inherently of a weak character. The purpose of a
prior test identification, therefore, is to test and
strengthen the trustworthiness of that evidence.

It is accordingly considered a safe rule of
prudence to generally look for corroboration of
the sworn testimony of witnesses in Court as to
the identity of the accused who are strangers to
them, in the form of earlier identification
proceedings. This rule of prudence, however, is
subject to exceptions, when, for example, the
Court is impressed by a particular witness on
whose testimony it can safely rely, without such
or other corroboration. The identification
parades belong to the stage of investigation, and
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there is no provision in the Code of Criminal
Procedure, 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 of Criminal Procedure.
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.

* * * * * * * * * *

17. It is well settled that the substantive
evidence is the evidence of identification in
Court and the test identification parade provides
corroboration to the identification of the witness
in court, if required. However, what weight must
be attached to the evidence of identification in
Court, which is not preceded by a test
identification parade, is a matter for the Courts
of fact to examine. In the instant case, the
Courts below have concurrently found the
evidence of the prosecutrix to be reliable and,
therefore, there was no need for the
corroboration of her evidence in Court as she
was found to be implicitly reliable.

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Therefore, even though no test identification parade

has been conducted in the case in hand, the chance of

identification of the petitioner by the victim in Court during trial

cannot be ruled out. It is not a case where the victim has not

named the accused-petitioner at all. In both her statements, the

name of the petitioner finds place. Whether the victim would

identify the petitioner during trial as the culprit or not and

whether such identification would be acceptable or not, the same

has to be decided by the learned Trial Court. Similarly, even

though the mobile phone used by the victim and seized from the

possession of the petitioner was not put in the test identification

parade but the company of the mobile phone and its model

number and IMEI number coupled with the call detail reports

furnished by the service provider are very clinching and at this

stage, such material prima facie raises accusing finger at the

petitioner.

Considering the submissions made by the learned

counsels for the respective parties, prima facie material available

on record, the nature and gravity of the accusation against the

petitioner and taking into account the punishment prescribed for

such offence, I am not inclined to release the petitioner on bail.
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The observation made while disposing of this bail

application relates to the materials collected during course of

investigation and the findings recorded herein are for the

purposes of adjudication of this bail application only. This may

not be taken as an expression of opinion on the merits of the

case. The learned Trial Court would be at liberty to decide the

matter in the light of evidence which shall come on record after it

is led de hors any finding recorded in this order.

Accordingly, the BLAPL application stands rejected.

Urgent certified copy of this order be granted on

proper application.

……………………………

S. K. Sahoo, J.

Orissa High Court, Cuttack
The 26th September, 2017/Sisir

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