STATE OF ORISSA Vs. MAHESWAR ALIAS GHODAMARU GHASI

JUDGEMENT

(1.) THESE two appeals arise out of S. T. Nos. 68/10 (S) of 1961 and 8/11 (S) of 1962 tried by he Assistant Sessions Judge of Sambalpur Sundargarh. Though the incident was one, two different cases were started as respondents 1 to 8 were arrested on or before 1-2-61 and respondents Pareswar Sindur alias Ghasi and sankar Sindur alias Ghasr were arrested on 24-7-1961. However there was one st January 1961 respondents committed a dacoity in the house of P. W. 2 (Abhimanyu Thakur) and in course of such dacoity properties worth about Rs. 2000/- had been stolen from the house of P. W. 2, and the owner of the house was assaulted in his courtyard. P. W. 4 saw from the kitchen peeping through the bamboo holes respondents 2 and 8 assaulting P. W. 2. A hulla was made by P. W. 2 and many villagers gathered in the village Danda. P. W. 5 peeped outside through the holes of the doors of his bed room and identified respondents 2 and 5 in the common passage. P. Ws. 6, 7 and 8 identified different accused persons while they were in the bari of P. W. 2. M. Os. I and II were recovered from the house of the respondent Pareswar Sindur alias Ghasi and M. Os. V to VIII were recovered from the house of respondent No. 8. The defence was one of denial.

(2.) THE learned Assistant Sessions Judge tried the respondents under Section 395, i, P. C. He convicted respondent No. 8 under Section 411, I. P. C. and sentenced him to R. I. for 6 months. He acquitted all the respondents of the charge under section 395, I. P. C. We are told that against the order of conviction under Section 411, respondent 8 has filed an appeal before the learned Sessions Judge, sambalpur. Against the order of acquittal, Govt. Appeals have been filed.

(3.) THE learned Assistant Sessions Judge, on analysis of the evidence, found that (i) decoity had been committed in the house of P. W. 2 in the night of 21-1-1961 by more than five persons; (ii) M. Os. V to VIII belong to P. W. 2 and were recovered from the house of respondent 8; (iii) M. O. II does not belong to P. W. 2 and M. O. I was recovered from the house of respondent Pareswar Sindur and though it belonged to P. W. 2, respondent Pareswar was not liable to be convicted under Section 411 as the recovery was made long after the occurrence; and (iv)the evidence of identification was not reliable.