STATE OF ORISSA Vs. CHHAGANLAL SUNDARKA

JUDGEMENT

(1.) This is an appeal filed by the State of Orissa against an order of acquittal passed by the Additional Sessions Judge, Puri in Sessions Trial No.3/4 of 1973 dated 18 -4 -1972 wherein the ten respondents were facing trial on charges under Sections 120 -B and 396. Indian Penal Code on the allegations of having committed a dacoity with murder in consequence of a conspiracy in the house of one Narayan Khatei on the night of 6/7th November, 1970. The respondents belong to different places except Subala Naik (R.5) and Raula Naik (R.6) who are two brothers belonging to village Golagola and Benudhar (R.8) and Bhima Paikray (R.10) who are co -villagers of Manikgoda, Kartika Padhi (R.2), belongs to village Samagara of which the informant Narayan Khatei (P.W.14) is a resident. However, all belong to the district of Puri.

(2.) THE prosecution case is that on the night of 6 -11 -1970. Narayan Khatei slept in his room with his Sambandhi (son's father -in -law) Balabhadra Padhan (P.W.9) who had visited their house. His wife and his elder daughter -in -law slept in the bed room of his elder son. His younger son Purnachandra slept in his room with his wife (P.W.10) and a minor child. After midnight, they heard sound of crackers in the courtyard. Both Narayan and Balabhadra (P.W.9) woke up and attempted to come out of the bedroom; but they found it to have been strongly tied from outside. Failing to come out of the room, they shouted for help. Through the gap between the door leaves they found about 8 to 10 dacoits moving about the house. As they raised alarm, the dacoits burst some more crackers in the courtyard which emitted much smoke. The dacoits were also flashing torch lights as they were moving about and were armed with lathis and guns. Some of them broke open the door of tile bed -room of Purnachandra (killed); dragged his wife (P.W.10) outside and kept watch on her. They threatened her to give out where the valuables were. Someone gave out that they had returned disappointed on a previous occasion and this time they would not go without the treasure and unless that is given, they will kill the family members. They entered into the bed -room of Purnachandra and carried away the valuables kept in a trove (Sinduka). The dacoits were variously dressed some with full -pants, some with half -pants and shirts and some of them had pugrees on. After the dacoits left the house with the booty, Narayan Khateri (P.W.14) and Balabhadra (P.W.9) and his elder son ventured to come out of the rooms. To their great horror they found the servant - Balunki Bhoi, who was sleeping in the passage room, lying dead in a pool of blood. As they entered the bed -room of the younger son Purna, he was similarly found dead severely bleeding from the mouth. Soon after some of the neighbours came to keen track of the dacoits. Going some way, they felt it unsafe to proceed further and hence returned. Narayan, his wife and the second daughter -in -law were greatly shocked to find Purnachandra and Balunki killed. Narayan early morning sent his Sambandhi Balabhadra to the Police Station to lodge information about the incident. The Sub -Inspector of Police Sadar P.S., Puri (P.W.20) heard the story, made a Station Diary entry and proceeded to village Samangara immediately. Reaching the spot, he took down a plain paper F.I.R (Ex.13) from Narayan and commenced investigation. He held inquest and sent the dead bodies for post -mortem examination. He seized some exploded crackers, blood -stained earth, the broken door and prepared a spot map (Ex.21). On different dates he seized different articles said to have been stolen from the house of the informant and seized them under different seizure lists. He arranged a test identification parade of the suspects as well as of the stolen articles. Finally he submitted charge -sheet against the ten respondents under Sections 120 -B and 396 of the Indian Penal Code as aforesaid. After the first charge -sheet and before committal inquiry commenced, respondent Benudhar Padhan (R.8) made a confessional statement (Ex.31) before the Magistrate (P.W.22).

(3.) THE prosecution examined 23 witnesses and the defence one. The eye -witnesses to the occurrence are P.Ws.9, 10 and 14 the inmates, of the house, i.e. Sambandhi -Balabhadra; widowed second daughter -in -law Sulochana; and the informant Narayan Khatei respectively. P.Ws.2, 3, 4, 12, 13, 15 and 16 are witnesses to the different seizures who turned hostile and did not support the prosecution case. P.W.18 is the Revenue Officer who held the T.I. parade over suspects Subal Naik and Raula Naik on 1 -12 -1970 at 3 p.m. inside the Puri jail. P.W.19 is the Sub -Inspector of Police, Jatni who seized the gun of Jayakrushna Parida on receipt of a requisition from the Officer -in -charge of Sadar P.S., Puri on 23 -5 -1971. P.W.20 is the Officer -in -charge of Nayagarh P.S. who at the date of occurrence was Officer -in -charge of Sadar P.S., Puri and investigated into the case. P.W.21 is the Assistant District Medical Officer, Puri who conducted post -mortem examination over the dead bodies. P.W.22 is the Magistrate, 1st Class. Nayagarh who recorded the confessional statement of respondent Benu. P.W.23 is the S.D.O., Magistrate, First Class, Puri who held a T.I. parade over certain stolen articles in this case.