GAMA MIAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner was one of the four accused persons who stood charged under Section 395 read with Sections 511 and 398 of the Indian Penal Code (for short, the Code) with having attempted to commit dacoity in the house of Kartik Chandra Saha (P.W. 1) at Therubali in the district of Koraput at about 1.30 a.m. on January 4, 1983, when one of them, namely, the petitioner, had been armed with a gun.

(2.) I would like to point out at the outset that the definition of Tdacoity contained in Section 391 of the Code not only refers to an act of committing robbery by five or more persons, but also an attempt to commit robbery by the same number of persons. Section 511 of the Code does not apply to a case of dacoity as for an attempt to commit dacoity, a person is to be charged under Section 395 of the Code as the definition of dacoity includes attempt. Secdon 511 of the Code does not apply to cases of attempt made punishable by the express provisions in the Code, such as, attempt to commit murder (Section 307), attempt to commit suicide (Section 309) and conjoint attempt by five or more persons to commit robbery (Section 391). These are sop}e of the instances of express provisions made in the Code in which attempts to commit offences have been made punishable distinctly. The charge framed against the petitioner and the co-accused persons for attempt to commit dacoity by the application of Section 511 of the Code was misconceived and even the learned Sessions Judge, whose judgment and order are under challenge in this revision, did not notice this legal defect in the charge.

(3.) The victim (P.W. 1) and his noice P.W. 2) had testified about the attempt to commit dacoity. The evidence of the two Constables (P.Ws. 3 and 5) that four persons including the petitioner had gone in a bus from Rayagada to Therubali on the day of occurrence was not of much consequence. The evidence of P.W. 2 that she had seen the petitioner and the other accused persons at about 8 p.m. during the night of occurrence had not been accepted by the trial court. The evidence of P.W. 1 that he had seen the petitioner with other four persons at about 9 p.m. during the same night while they were moving on the road leading towards the factory had partially been accepted by the trial court which found that P.W. 1 had seen the petitioner and the co-accused Kalu Majhi along with two others, but it did not accept his evidence that he had been able to identify the other co-accused Gopal Krishna and Bodida Siva. The trial court did not accept the evidence that the petitioner was armed with a gun while attempting to commit dacoity. The evidence of identification against the co-accused persons except the petitioner was discarded. Notice was taken by the trial court that the evidence of identification of the culprits by P.Ws. I and 2 at the test identification parade lost its value because of inordinate delay in holding it. The trial court held that the petitioner and the absconding accused Kalu Majhi, who did not stand trial, were active members of the five persons who had attempted to commit dacoity. The petitioner was found not guilty under section 398 of the Code, but was convicted under section 395 read with section 511 of the Code and sentenced thereunder to undergo rigorous -imprisonment for a period of five years and to pay a fine of Rs. 100/-and in default of payment thereof, to suffer simple imprisonment for a period of one month.