GHANASHYAM DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) These appeals, arising out of the same judgment and order passed by Mr. A. C. Das, Assistant Sessions Judge, Cuttack, in Sessions Trial No. 38 of 1981, finding the appellants to be guilty of the charge of dacoity, convicting them under Section 395 of the Inlian Penal Code and sentencing each of them to undergo rigorous imprisonment for a period of eight years, have been heard together and will be governed by this common Judgment.

(2.) The appellants along with others, as alleged, being armed with deadly weapons, broke open the house of Purnachandra Panda (P. W. 2) at village Barpal in the district of Cuttack during the night of May 17/18, 1980 and keeping the inmates of the house under the fear of instant death at the point of gun, removed cash and gold and silver ornaments and decamped. They also committed dacoity during the same night in the house of Dhaneswar Panda (P. W. 8) after keeping him under confinement and assaulting him which, as has been submitted at the Bar, was the subject matter in another case P. W. 2 lodged the first information report (Ex. 4) on May 18, 1980 and the Officer- in-charge of the Banki Police Station took up the investigation, visited the spot and seized some articles. For a long period no clue could be obtained regarding the identity of the culprits. On receiving a telephonic me-sage on July 27, 1980 from the Additional Superintendent of Police, Cuttack, that some culprits had been rounded up in connection with the Govindpur Police Station Case No 67 of 1981) under Section 395 of the Indian Penal Code and that they were involved in this case, the Officer-in-charge (P. W. .0) proceeded to Cuttack and on receiving information that a wrist-watch (M.O.I.) belonging to Prafulla Kumar Panda (P.W. 6) the son of P.W. 2, had been sold to a betel shop-keeper at the S.C.B. Medical College Hospital gate at Cuttack, he proceeded with the appellants P. Krishna Reddy and Banamali Dalai to the shop of Nabakishore Swain (P. W. 9) and from there he proceeded to Kuakhia Bazar where he seized the wristwatch on production by P.W. 9, as per Ext. 6. The appellants were arrested and in the course of investigation, steps were taken for a test identification parade for the identification of the appellants by P. Ws. 2 and 6. A test identification parade was held by the Judicial Magistrate (P.W. 1) on August 5, 1980 in respect of the appellants other than the appellant Bidu alias Bidyadhar Sahu who was reported to be ill on that day and P.Ws. 2 and 6 identified the eight appellants to be the persons among the culprits. On August II, 1980, another test identification parade was held in respect of the appellant Bidyadhar and P. W. 2 identified him to be one of the culprits. A test identification parade in respect of the wrist-watch (M.O.I.) bad been held by the same Magistrate on July 29, 1980 and it was identified by P. Ws. 2 and 6. This test identification parade in respect of the wrist-watch was of no avail, as had rightly been submitted by the learned counsel for both the sides, as no other wrist-watch of similar make had been mixed up. The appellant Ghanashyam, it was alleged, had deposited an amount out of the booty in the pass book of Chandramani Dei (D.W. 1) who was said to be his concubine which bad been defined by the appellant and Chandramani Dei (D. W. I) who had been examined by the defence and she had claimed the money to be hers. On the completion of the investigation, a charge-sheet was placed and the appellants were prosecuted and their case was one of false involvement in the case.

(3.) To bring home the charge to the appellants, the prosecution had examined eleven witnesses. Of them, P.Ws. 2,6 and 8 were witnesses to the identification of the appellants. The finding of the trial court that a dacoity had been committed in the house of P. Ws. 2 and 6 during the night of May 17/18, 1980 around 1.00 a.m. has not been assailed and rightly so, in view of the clear and acceptable evidence in this regard. The identification of M.O.I. has not been disputed and none of the appellants had claimed M.O.I. as belonging to him. The learned counsel for the appellants have invited my attention to the suspicious features in the evidence of identification of the appellants by P.Ws. 2, 6 and 8 coupled with the defects and irregularities in respect of the test identification proceedings and have submitted that the evidence with regard to the identification was highly unsatisfactory and could not be accepted. It has been contended that the story of the prosecution that the appellants P. Krishna Reddy and Banamali Dalai had pledged M.O.I with P. W. 9, ought not to have been accepted. The learned standing counsel has supported the order of conviction against the appellants as well founded on the evidence of records.