BIJULI Vs. STATE

JUDGEMENT

(1.) These appeals arise out of the same judgment and order passed by the learned Sessions Judge, Balasore, convicting the appellants Baidyanath Sial, Rabindra alias Juga Barik, Ratnakar Behera alias Gobinda Barik alias Shyam Sundar Barik and Bijuli alias Bijay Behera under Sec. 395 of the I.P.C. (for short, the 'Code') and sentencing each of them thereunder to undergo rigorous imprisonment for a period of eight years and convicting the appellant Ramakanta Behera under S. 412 of the Code and sentencing him thereunder to undergo imprisonment for a period of two years. Another person, namely, Babaji Naik, has been convicted under S. 412 of the Code and sentenced to undergo rigorous imprisonment for a period of three years. It has been reported by the High Court office that Babaji Naik has not preferred an appeal against the judgment and order of conviction. While hearing the appeals, the learned Additional Standing Counsel has been put to notice to address this Court as to whether the order of conviction recorded against him is to be maintained or is to be set aside in exercise of the revisional jurisdiction of this Court and he has been heard on this question.

(2.) All the appellants besides the non- appealing convict Babaji Naik and three others stood charged under S. 395 of the Code for commission of dacoity in the house of Sridhar Mohanty (P. W. 1) at Keshapur in the district of Balasore. To bring home the charge, the prosecution had examined seventeen witnesses. The plea of the appellants was one of the denial and false implication. Three witnesses had been examined for the defence. The main evidence on which reliance had been placed by the prosecution was that of the identifying witnesses, namely, P. Ws. 1,3 to 5 and 8 and recoveries of articles alleged to have been removed during the commission of dacoity, as testified by the Investigating Officer (P. W. 17), from the appellants and the non- appealing convict Babaji Naik. On a consideration of the evidence, the learned Sessions Judge has not placed reliance on the evidence of P. Ws. 3 to 5 with regard to the identification of the culprits. He has accepted the evidence of P. Ws.1 and 8 in this regard. P.W.1 had identified in the court and at the test identification parade the appellants Rabindra alias Juga Barik and Baidyanath. P. W.8 had identified in the court and also at the test identification parade the appellants Baidyanath and Bijuli. The learned Judge has placed reliance on the evidence with regard to the recoveries of the articles removed during the commission of dacoity and identified by the owners as belonging to them. Three co-accused persons charged of the offence were acquitted owing to paucity of evidence and the appellants besides Babaji Naik have been convicted, as stated above.

(3.) The learned counsel for the appellants have taken me through the evidence, particularly, of P. W s. 1 and 8 and have submitted that the trial court went wrong in placing reliance on their evidence as regards the identification of three of the appellants. With regard to the recoveries of articles from the appellants and the convict Babaji Naik, it has been submitted before me that the evidence was not worthy of credence and the appellants had seriously been prejudiced in their defence as while examining and recording their statements under S. 313 of the Cr. P.C. due care had not been taken by the trial court to draw the attention of the appellants to the alleged recoveries of particular articles from their possession. Mr. S. K. Das, the learned Additional Standing Counsel, has very candidly submitted that regard being had to the highly imperfect nature of examination of the appellants and Babaji Naik, it would not be proper to rely on the evidence with regard to the recoveries of the stolen articles from their possession. He has submitted that if the evidence of P. Ws.1 and 8 is accepted by this Court, the order of conviction can be sustained as against the three appellants identified by these two witnesses.