MAHESWAR SAMAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) All the seven appellants were tried for the offences under S. 9-B of the Explosives Act, 1884 (for short 'the Act') and V/5. 395, IPC by the learned Additional Sessions Judge, Jajpur. While acquitting all the appellant of the charge ul S. 9-B 6f the Act, the learned Additional Sessions Judge convicted all the appellants u/ S. 395, IPC and sentenced each of them to undergo rigorous imprisonment for eight years and to pay a fine of Rs. 5,000/-, in default, to undergo rigorous imprisonment for a further period of two years.

(2.) The prosecution case, shortly stated, is that on 1-9-1987 at about 11.30 p.m. the informant Shyam Sunder Pradhan (P.W. 1) and his family members consisting of his wife Soli Dei (not examined), his two sons Surendra Pradhan (P.W. 2) and Sridhar Pradhan (not examined), his daughter Laxmipriya (not examined) and his daughter-in-law Smt. Kataki Pradhan (P. W. 3) went to sleep after dinner. While P.Ws. 1 and 3 slept on the outer varandah of their house in village Markandapur, the other aforesaid inmates slept in the entrance room. At about 1 a.m. at night some unknown miscreants came and assaulted P.W. 2 with lathis and as a result of such assaults when P. W. 2 cried aloud. P.W. 1 woke up and when he was assaulted by one of the miscreants he fled away to a nearby open field and raised hullah. On hearing the cries of P.W. 2, when his mother Soli Dei opened the entrance door the miscreants entered inside the house being variously armed and forcibly removed away the valuables worn by the inmates. They terrorised the inmates by assaulting them and demanded them to disclose the places where valuables had been kept. When there was no disclosure by the inmates one of the culprits picked up the small baby of P.W. 3 aged about one year and threatened to kill the baby by throwing unless disclosure regarding the places where valuables had been kept was made. At such sight and threat, the inmates pointed out the places where valuables had been kept and thereafter the miscreants took away the valuables therefrom consisting of gold and silver ornaments, one HMT watch and a cash of Rs. 2,000/-. In the meanwhile, many other villagers including Mahadev Kumar Jena (P.W. 4) and Baikuntha Pradhan (P.W. 6) having assembled near the house of P.W. 1, some of the miscreants assaulted P.Ws. 4 and 6, terrorised the villagers by exploding bombs and decamped with the stolen properties. On the next day morning, the Officer-in-charge of Jajpur Police Station having come to know about the dacoity in the house of P.W. 1 in the previous night, rushed to the village and arrived there at about 9-30 a.m. when first information report (Ext. 1) was lodged by P.W. 1 describing the miscreants as unknown. In course of investigation, P.W. 11 sent the injured persons for medical examination and treatment, seized one small bottle emitting smell of kerosene, some torn papers emitting smell of gun powder, some roses etc. from a nearby open field under Ext. 2 and some receptacles from the house of P.W. 1 under Ext. 6 and made requisition to the Sub-Divisional Judicial Magistrate, Jajpur for holding test identification parade in respect of the appellants after their arrest. After completion of investigation, charge-sheet was submitted not only against the appellants but also against two others who being found to be absconders the case against them was split up.

(3.) The defence was one of denial of the complicity of the appellants in the commission of the crime. The specific defence of appellants Nabakishore Jena and Bhagirathi Jena, the co-villagers of P. W. 1, was that they were working as Halia and labourer under P.W. 1 and since there was dispute regarding payment of labour charges, they had been falsely roped in the case. According to the appellants Maheswar Samal and Prabir Das, the evidence relating to test identification parade was of no consequence because on the day preceding the test identification parade they along with other appellants had been shown by the police to the identifying witnesses. No witness was, however, examined in support of the defence plea.