HARIHAR SAMAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) CRIMINAL Appeal No. 64 of 1978 has been filed by Harihar Samal who has been convicted under Section 395, I.P.C. by the learned Assistant Sessions Judge, Dhenkanal in Sessions Trial No. 37/40 -D of 1976. The appellant has been sentenced to rigorous imprisonment for eight years and to pay a fine of Rs. 500/ -, in default, to undergo further rigorous imprisonment for six months. The State Government have filed Government Appeal No. 77 of 1978 against the acquittal of respondents Dusassan Samal, Ekadasi Samal and Narahari Samal in the same case. Since these two appeals arise out of the same judgement, they were heard analogously and this judgement shall dispose of both the appeals.

(2.) THE prosecution case may be briefly stated P.W. 2 is the wife and P.W. 3 is the mother of P.W. 5. P.W. 1 is P.W. 2's brother. They belong to village Kolibania Kateni. On the night of 8.7.1974 P.W. 5 and the members of his family finished their meals at about 8. p.m. Thereafter they closed the doors of their house and went to sleep. P.Ws. 1 and 5 slept on the inside verandah of the house. P.W. 2 and her children also slept there. P.W. 3 slept on the verandah of the "Dhanaghar" along with field servants Achyutananda Behera and Maheswar Dehury. At about midnight P.W. 5 heard some noise and woke up. He found that about 8 to 10 persons were standing near him. They asked P.W. 5 not to raise his voice. Thereafter P.Ws. 1, 2 and 3 and the field servants woke up. Some of these intruders kept P.Ws. 1, 2 and 3 and the field servants under watch and threatened them not to shout. One of them also kept watch on P.W. 5. P.W. 5 requested the intruders not to assault them but to take their few belongings if they so desired. Some of the intruders entered inside the rooms and one of them took out a gun which was in one of the rooms. The intruders put P.W. 5 and his family members and the field servants inside one of the rooms and locked it from outside. After some time P.W. 5 saw that the intruders had left. He called his uncle who lived on the opposite side of the road and the latter came and opened the door in which P.W. 5 and the other members of the family had been locked. On coming out P.W. 5 checked and found that his gun, ornaments, cash, utensils etc. as described in the list appended to the F.I.R. (Ext. 2) had been carried away by the persons who had entered the house. Two of them were armed with knives and the others were armed with lathis. P.W. 5 had seen the faces of some of these persons when they had fleshed torch lights while they were inside his house. P.W. 5 further found that the intruders had snatched away the ear -rings from the ears of P.W. 3 as a result of which she had suffered injuries on her ears. P.W. 5 lodged F.I.R. (Ext. 2) on 9.7.1974 at 7 p.m. at Kamakshyanagar police Station. P.W. 10. the Officer -in -charge, registered the present case and took up investigation. In course of investigation of another case (Bhuban P. S. Case No. 33 of 1974) under Section 436, I.P.C., P.W. 7, the Officer -in -charge of Bhuban Police Station, seized one S. B. B. L. gun with a burnt butt from the front yard of appellant Harihar. On finding this clue and on receipt of other clues in course of investigation of this case, appellant Harihar and respondents Dusasan, Ekadasi and Narihari were arrested. On completion of investigation charge -sheet was submitted against the aforesaid persons and four others. In the charge -sheet P.W. 12 Bhaskar Kanar is described as prosecution witness No. 10. The charge -sheet is dated 2.9.1976. The case was committed to the Court of Session and the Sessions Judge, Cuttack received the commitment on 30.10.1976 - vide order No. 1 of that date. On the same day the Sessions Case was registered and it was transferred to the Court of the Additional Sessions Judge. Dhenkanal for disposal according to law. On 22.12.1976 the Public Prosecutor filed a Petition under Section 319, Cr. P.C. praying that Bhaskar Kanar shown as witness in the charge -sheet should be tried in the case as an accused as from the Case Diary it appeared that the said Bhaskar Kanar had admitted that along with other persons he had committed the dacoity in the house of P.W. 5 on the night of 8.7.1974. By order dated 23.12.1976 the learned Additional Sessions Judge directed that trial, would proceed with Bhaskar Kanar as an accused along with the other accused persons. On 4.1.1977 the learned Sessions Judge, Dhenkanal charged the appellant Harihar and respondents Dusasan, Ekadasi, Narahari Bhaskar and four others under Section 395, I.P.C. On 11.5.1977 under orders of the High Court this case was transferred to the Court of the Assistant Sessions Judge. Dhenkanal for disposal. After P.Ws. 1 to 11 had been examined in Court, by order dated 11.11.1977, the learned Assistant Sessions Judge tendered pardon to Bhaskar Kanar who thus became the approver to the case. He was examined, cross - examined and discharged as P.W. 12. In the trial Court apart from the twelve prosecution witnesses, four witnesses had been examined on behalf of the defence. The defence plea was one of denial. Appellant Harihar has stated that he had altercation with the police on 6.6.1974 near Kamakshyanagar Court premises and therefore on a false allegation the police got him arrested and submitted charge -sheet against him. He has also stated that he had a dispute with the villagers on account of which he had gone away to Calcutta for 7 to 8 months. At Calcutta he learnt that the villagers had set fire to his house and that his father Dusasan was arrested by the police. So he returned home and he was arrested when he went to the police station to report about removal of some ornaments from him by two persons. Respondent Dusasan has stated that he had objected to the vending of liquor by the approver P.W. 12 and as such the latter had falsely implicated him in this case at the connivance of one Sukadeb Rout with whom his family had disputes. Respondent Ekadasi has stated that at the time of occurrence he was working at Marthapur and that he was not present at Kolibania Katani on the night of occurrence. Respondent Narihari has stated that he had received some burnt injuries and on that account he had been hospitalised prior to the occurrence and in connection with another case he was arrested by the police. After being released on hail he was again arrested by the police and implicated in this case. The learned Assistant Sessions Judge who tried the case found the appellant Harihar guilty under Section 395, I.P.C., convicted and sentenced him as noted above. Respondents Dusasan, Ekadasi and Narahari were acquitted along with the other accused persons.

(3.) AN approver is certainly a competent witness. It is now well established that the evidence of an approver must satisfy a double test. First, the Court must hold that the approver is a reliable witness. Secondly, the evidence of the approver must be corroborated in material particulars by other independent evidence. In Dagdu v. State of Maharashtra (AIR 1977 SC 1579) : (1977 Cri LJ 1206) it was held (Para 21).