PRAFULLA CHANDRA PANDA Vs. STATE OF ORISSA

JUDGEMENT

(1.) These three revisions arise out of the same incident and same trial but have been preferred by different accused and hence are disposed of by this common judgment. Altogether six persons were put on trial for charges under sections 395 and 457, I.P.C. for having committed dacoity on 6/7-8-1986 at about 2.45 a.m. in the house of P.W. 7 when he was absent and the inmates of the house were his wife and his nephew. The nephew (P.W. 1) was sleeping on the Verandah of the house along with P.Ws. 11 and 12. He was awakened by six persons at the dead of the night and at the point of dagger was asked to callout his aunt which, because of the threat, he complied with. After the aunt came four persons at the point of dagger forcibly entered inside the house and committed dacoity of gold ornaments, box containing Rs. 220/- and some bell-metal articles. After the dacoits left, P.W. 1 left by bus for Kesapur to inform his uncle about the incident. At the Kesapur Bazar he sighted two of the accused, the petitioners in Criminal Revisions No. 196/89, namely Udhab Bisoi and Deepak Mohanty. P.W. 7 received the information at Kesapur and at of them came to Kesapur Bazar but found the two persons to be absent and were informed that they had left by bus booking ticket to Bhubaneswar. All of them chased them in a truck and learnt that they had got down at Balugaon Fish Market. At the Balugaon Fish Market they again sighted Udhab and Deepak and apprehended them. An F.I.R. was lodged with the officer-incharge, Rambha Police Station who was accidently there. He took all of them to the Rambha Police Station. Thereafter investigation was taken up in course of which some stolen articles were recovered and the other accused were apprehended and charge-sheet was submitted. The trial Judge convicted all the accused under sections 395 and 457, I.P.C. and sentenced them to five years R.I. and fine of Rs. 1000/- on each count, in default to undergo three months R.I. more, with direction for the substantive sentences to run concurrently, but in appeal two accused, namely Satrughna Badtia and Kailash Mohanty were acquitted while the conviction and sentence of the petitioners were maintained.

(2.) So far as the petitioner in Criminal Revision No. 184 of 1989, Prafulla Chandra Panda is concerned, it is the submission of the learned counsel for the petitioner that there are only three items of evidence against him to connect him with the crime, namely, (i) the recovery made from the house of another accused Prafulla Mohanty whose house he pointed out, (if) the extra judicial confession of the two co-accused Tuna alia Deepak Mohanty and Udhab Bisoi, and (iii) his identification in court by P.W s. 1 and 2. It is the submission of the learned counsel that such evidence did not establish any of the charges against him.

(3.) So far as evidence of the petitioners Tuna alias Deepak Mohanty and Udhab Bisoi having pointed out the house of petitioner Prafulla Chandra Panda is concerned, the evidence itself shows the conduct of the petitioner to be in no way incriminating. The mere pointing out the house of a person could never be a piece of evidence against him even section 8 of the Evidence Act. The extra-judicial confession of a co-accused, even though inculpatory in nature, yet cannot be used to secure a conviction of an accused unless it corroborates some substantive evidence. The identification in court for the first time of the petitioner is not reliable evidence as has been held by catena of decisions of the Apex Court and this Court. If such evidences are ruled out, the conviction of the petitioner Prafulla Chandra Panda cannot be secured only upon the extra Judicial confession of co-accused which was also retracted. In that view of the matter, the petitioner in Criminal Revision No. 184/89 Prafulla Chandra Panda much be held to be not guilty of the offence and hence is acquitted.