FAKIRA CHANDRA PANDA Vs. SATRUGHNA BEHERA

JUDGEMENT

(1.) THE revision is directed agains the judgment and order dated, 26 -7 -1986 of the learned Second Additional Sessions judge, Cuttack allowing the appeal and acquitting the opposite parties of the offences' Under Sections 436, 427, 447 and 379, I, P. C.

(2.) BRIEFLY stated, the prosecution case is that on 3. 5. 1983 at about 10'. Clock in the night the opposite parties went in a group to the house of the informant, P. W. 1, called him from out side to come out. As the informant, P. W. 1, did not come out they pelted brickbats and stones to the tiled and asbestos roof of his' house which were consequently damaged. The opposite parties are also alleged to have set fire to the thatched roof of his house and to have entered into the bari of the informant by breaking open the fence and removing the bullock cart therefrom. After the fire was extinguished, P. W. 1 lodged F. I. R. Ext 1 at Baramba police station at 10. 45 A. M. on 4 -5 -1933. A case was registered, investigation followed and eventually charge sheet Under Sections 447/436/427 and 379, I. P. C. read with Section 34 I. P. C was placed against the opposite parties.

(3.) IN suport of its case prosecution has examined as many as eight witnesses of whom P. W. 1 is the informant, P. W. 2 is his father, P. Ws. 3, 4 and 5 the eye witnesses, P. Ws. 6 and 7, witnesses to seizure, while P. W. 8 is the investigating Officer. The learned Court relied on the ocular testimory of the eye -witnesses. P. Ws. 1 to 5 accepted the prosecution case and found all the opposite parties guilty of the offences indicated earlier, and has convicted them and sentenced to rigorous imprisonment for one year Under Section 446 and rigorous imprisonment for two months Under Sections 427, 447 and 379, I. P. C. on each count. The learned appellate Court has disbelieved the prosecution case mainly on the ground that in the dark night the witnesses could not at ail have identified the opposite parties, and for this he has relied on the authority of a Bench decision of this Court reported in 1984(1)OLR (NOC) 53.53 (1984) C. L. T. 15.5 (Rama Chandra Jama and three others v. State of Orissa). He has also found that opposite party Nos. 5 and 6 Sukiri Naik and Maguni Naik were not named in the F. I. R. and that opposite party No. 3 Keshab Panda has been wrongly described and as - such his identity was in great doubt. On these grounds, he set aside the conviction and sentence of opposite party Nos. 3, 5 and 6.