ANANTA DIXIT Vs. STATE

JUDGEMENT

(1.) THE appellant and another co -accused person, namely, Baina Das, stand convicted for commission of an offence of dacoity under Section 395 of the Indian Penal Code and sentenced thereunder to undergo rigorous imprisonment for a period of five years by Mr. G.S. Patra, then functioning as the Additional Sessions Judge, Balasore, by his judgment and order of conviction dated 30th Sept., 1983, solely based on the confession of one of the accused persons, namely, Narendra Behera who had stood trial previously with the other accused persons and not jointly with the appellant and the co -accused Baina Das and who had implicated himself and the appellant and the accused Baina Das in the commission of the crime of dacoity in the house of Dibakar Jena (P.W.1) at village Keratapadia in the district of Balasore during the night of 6th/7th Nov., 1975 in the course of which the culprits were alleged to have removed case and other properties after assaulting the inmates of the house being armed with dangerous instruments, On the basis of the first information report lodged by P.W.1, investigation had been taken up by the Officer -in -charge of the Nilgiri Police Station (P.W.8) and on its completion, a charge -sheet was placed against the present appellant and the co -accused person Baina Das besides nine others. The appellant and the co -accused person were not available and were said to be absconding. The other accused persons involved in the same case were tried in batches in Sessions Trial Nos.70 and 73 of 1977 which were disposed of on 13 -12 -1977. After the appellant and the co -accused Baina Das were apprehended, they were tried jointly being charged under S.395 of the I.P.C. To bring home the charge, the prosecution had examined eight witnesses of whom P.Ws.1 to 4 and 7 had been examined to speak about the commission of dacoity and they had identified the appellant and the co -accused Baina Das in the Court. P.W.5, then the Subdivisional Judicial Magistrate at Nilgiri, had recorded the confessional statement (Ext.2) of the accused Narendra Behera. P.W.6 was a witness to some seizures in the course of investigation. P.W.8 had investigated into the case. The appellant and the co -accused Baina had not examined any witness in their defence.

(2.) ON a consideration of the evidence of P.Ws.1 to 4 and 7, the learned trial Judge did not accept their evidence of identification and in my view, rightly so, in view of the reasons recorded by him in the body of the judgment. It is not necessary for this Court to catalogue the grounds given for discarding their testimony in this regard as the learned Standing Counsel has not challenged these findings recorded by the learned Judge. After disbelieving and discarding the evidence of P.Ws.1 to 4 and 7, the learned trial Judge considered the confessional statement of the accused Narendra Behera and found thus : "Now remains the confessional statement of the co -accused to be considered. One Narendra Behera and 10 others including the two accused persons were charge -sheeted in one and the same G.R. Case No.148 of 1975. The present two accused persons were absconding. Their case was, therefore, split up. After their apprehension they are presently facing their trial. Prior to that Narendra Behera and others were tried in S.T. Nos.70 and 73 of 1977 disposed of on 13 -12 -1977. So it cannot be disputed that Narendra Behera was a co -accused. His confessional statements were recorded as per Ext.2 by the S.D.J.M., Nilgiri, examined as P.W.5. In Ext.2, the co -accused Narendra Behera confessed his guilt before the S.D.J.M. P.W.5 not only implicating himself but also implicating the present two accused persons as participants in the dacoity. In that statement Ext.2 Narendra Behera gives out a detailed picture as to the manner in which dacoity was committed on the fateful night in the occurrence house. The evidence of the S.D.J.M. P.W.5 clearly shows that this statement was made by Narendra Behera voluntarily without any threat or coercion from any source whatsoever. It further transpires that the learned Magistrate observed all legal formalities in recording the said confessional statement, S. The recovery of the stolen properties M.Os. I to XV in course of investigation by the I.O. P.W.8 and the evidence of the P.Ws.1, 2, 3, 4 and 7, who are inmates of the occurrence house, with regard to the commission of dacoity by the culprits led sufficient assurance to the truth of the confessional statement recorded by P.W.5 in Ext.2. From the confessional statement Ext.2 which is true and voluntary, it can be safely concluded that both the accused persons were participants in the alleged dacoity. Hence both the accused persons are convicted under Section 395, I.P.C."

(3.) THE learned advocate appearing for the appellant had challenged the order of conviction on the ground that it could not have been recorded solely on the basis of the confession of a co -accused person who had not stood trial jointly with the appellant. The learned Standing Counsel has very fairly submitted that the order of conviction cannot be allowed to stand. It has been brought to my notice that the other co -accused person, namely, Baina Das, who also stood trial with the present appellant and who had been convicted, has not preferred any appeal against the order of conviction and sentence passed against him. In view of the serious infirmities in the order of conviction, I have put the learned Standing Counsel to notice and to submit before me as to why the order of conviction passed against the co -accused person should not also be set aside in exercise of the revisional jurisdiction of this Court without issuing notice to the co -convict Baina Das as an order setting aside the conviction would be to his advantage. The learned Standing Counsel has submitted that the order of conviction passed against the non -appealing convict should also be set aside.