STATE OF ORISSA Vs. SADANA GOUDA

JUDGEMENT

(1.) THIS is an appeal under section 378 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) preferred by the State challenging the judgment dated 5 7 1993 passed by Shri N. Nayak, Chief Judicial Magistrate Cum Assistant Sessions Judge, Jeypore in Sessions Case No. 2/359 of 1993/92 acquitting the respondents (hereinafter referred to as 'the accused persons') of the charge under section 395 of the Indian Penal Code (for short 'I.P.C.').

(2.) THE informant (p. w. 1) is a resident of Pandukumalliguda under Koraput Town Police Station in the district of Koraput and the accused persons are the residents of nearby villages under the said police station. It is alleged that in the night of 11 8 1992 when the informant and his family members had slept inside their house, ten persons knocked at the door of the informant calling his father by name and when the informant opened the door, they entered inside their house and took away clothes, gold ornaments, cash, etc. at the point of knives and daggers. The identity of the dacoits was not known, but the informant suspected that some persons who had committed dacoity in the house of his father some years ago might have formed the said gang to commit dacoity in the house of the informant. It is further alleged that the said gang committed dacoity in the same night in the houses of Balabhadra Naik (p.w. 2), Tunu Naik (p. w. 4), Mukunda Naik (p. w. 5), Bhima Pujari (p. w. 6) and Taila Mali of the same village after causing injuries to the inmates of the houses. On the next morning, P. w. 1 lodged F.I.R before the O.I.C. of Koraput Town P. S. (p.w. 18) who registered the case and took up investigation. During investigation p. w. 18 examined witnesses, sent the injured persons for medical examination, visited the spot, seized one Saree and other articles from the house of the informant. He also seized one tin box and eight other articles from the house of Mukunda Naik (p.w. 5); one trunk and three other articles from the house of Balabhadra Naik (p.w. 2); one saree and four otherarticles from the village road and arrested the accused persons. It is also alleged that accused Kamulu Suna while in police custody gave recovery of one old Dhoti and one umbrella from his house on which the name of Mukunda bad been written; accused Hari Khilla while in police custody gave recovery of one blue colour saree, one tin box containing some books from his house; accused Jhitru Paraja while in police custody gave recovery of one small Tangi and an old Chadar from his house; and accused Sadana Gouda while in police custody gave recovery of one old terricotton saree and one old Dhoti from his house. The articles seized by the investigating officer from the houses of the accused persons were put to T. I. parade and were identified by the witnesses. After completion of investigation p. w. 18 submitted chargesheet under section 395, I.P.C against the five accused persons showing another, namely, Maghanad Bag as an absconder. The five accused persons stood their trial and were acquitted of the charge on benefit of doubt. The defence plea is one of complete denial and false implication.

(3.) IN order to bring home the charge against the accused persons, prosecution has examined eighteen witnesses, of whom p. w. 1 is the informant, p. ws. 2 to 13 are the other victims of the occurrence, p. ws. 14 and 15 are witnesses to seizure, p. w. 16 is the doctor who examined the injured persons (p. ws. 3, 12 and 13), p. w. 17 is the Judicial Magistrate who conducted the T. I. parade and p. w. 18 is the investigating officer. The defence has examined no witness.