KARMU BHAKTA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The prosecution case, shortly stated, is that on 9/10.2.1984 at about mid-night time while the informant Susil Kumar Dandpat was sleeping in the outer verandah of their house in village Machilapada under Badasahi Police Station, District-Mayurbhanj and the other inmates of the house including Sirish Chandra Dandpat (P.W. 1) and Sunil Kumar Dandpat (P.W. 14) were sleeping inside the house bolting the entrance door from inside, there was barking of dogs for which P.W. 5 woke up and found that there was flashing of torch lights at some distance. After proceeding for some times when P.W. 5 asked in a raised voice as to who were focussing the torch lights, some people rushed at him and at their sight he ran towards his house shouting on the way to open the entrance door. Before the miscreants could approach him, the entrance door was opened and he entered into the house and bolted the door from inside. The miscreants dashed against the entrance door, but the same did not open in as much as the inmates of the house kept pressed the door leaves from inside. The miscreants also made attempts to make their entry into the house by breaking open a window but failed in as much as a folded table was kept against the broken open place of the window and there was pelting of glasses at the miscreants by the inmates of the house who did so inspite of pelting of stones and throwing of arrows by the miscreants into the house. On hearing the shouts raised by the inmates of the house, when villagers assembled near the spot, the culprits finding themselves to have been outnumbered took to their heels. Before their departure, they could injure the villagers Pratap Chandra Dandpat (P.W. 3), Sadasiv Sahu (P.W. 4) and Ajay Kumar Dandpat (P.W. 12). After departure of the miscreants, F.I.R. (Ext. 2) was lodged at the Police Station in the same night at 3 A.M. and investigation commenced. In course of investigation, stones and arrows thrown by the culprits were seized from the house in question and a test identification parade was conducted in which all the six petitioners were identified as the culprits who attempted to have committed dacoity in the house of P. W. 5. Ultimately, the present petitioners along with one Gagan Bhakta, (since acquitted) were tried for the offence under Section 397 I.P.C.

(2.) At the trial, the prosecution examined 15 witnesses of whom P.W. 1, P.W. 5 and P.W. 14 were the inmates of the house: P.W. 2 Radha Mohan Naik and P.W. 6 Bhagaban Sahu were the witnesses to the seizure of the articles from the house in question: P.W. 4 Sadasiv Sahu, P.W. 7 Ashok Kumar Dandpat and P.W. 12 Ajay Kumar Dandpat were the villagers who along with others saw the culprits and foiled their attempt committing dacoity; P.Ws. 8 and 9 are the Medical Officers who examined the injured persons (P.Ws. 3,4 and 12) and also the first petitioner Karmu Bhakta and found injuries on their persons; P.W. 10 is another Medical Officer who extracted an arrow from the person of P.W. 4 and handed over the same to the Investigating Officer: P.W. 13 is the Magistrate who conducted the test identification parade and P.Ws. 11 and 15 are the Police Officers who took some part or the other in the investigation of the case.The trial court found that the first petitioner Karmu, the third petitioner Sarthak and the fifth petitioner Raju Katual had been duly identified by P.Ws. 5, 12 and 14 as the culprits both in the test identification parade as well as in court: the second petitioner Chandra had been duly identified as one of the culprits by P.Ws. 5 and 14 both in the test identification parade as well as in court; the sixth petitioner Jatindra had been duly identified as one of the culprits by P.Ws. 7 and 12 both in test identification parade as well as in court and the fourth petitioner Gopal had been identified only by P.W. 14 as one of the culprits both in test identification parade as well as in court. So, relying on the evidence of P.Ws. 5, 7, 12 and 14, the trial court convicted the six petitioners under section 397 I.P.C. and sentenced each of them to undergo rigorous imprisonment for seven years, while acquitting the accused Gagan Bhakta. In appeal, the learned Sessions Judge, Mayurbhanj, Baripada converted the conviction under Section 397 I.P.C. to one under Section 395 I.P.C. and reduced the sentence to five years rigorous imprisonment in respect of each of the petitioners. Being aggrieved by such judgment and order, the present revision has been filed.

(3.) The concurrent finding of fact that there was an attempt to commit dacoity in the house of P.W.5 in-the night in question is not assailed before me by Mr. P.K. Dhal, learned counsel appearing for the petitioners. It is, however, contended by him that the identify in witnesses, having asserted that they had seen the petitioners with the help of electric light burning in the house of P.W. 5 and also with the aid of flashing of torch lights by the petitioner and their companions hither and thither and as such they could identify them both in the test idenrification parade as well as in court, their evidence should not have been believed by the courts below because neither electric bulb nor any torch light of the petitioners has been seized by the Investigating Officer at the time of investigation. This contention relates to appreciation of evidence of the identifying witnesses and since appreciation of evidence is normally not permissible in revision like the one in hand, I refrain myself to evaluate such contention particularly when perversity in appreciation of evidence by the courts below is not brought to my notice. As such, the contention is rejected as unsubstantial.