SADEI SWAIN Vs. STATE

JUDGEMENT

(1.) THE order dated 20. 2. 1981 of the Additional Sessions' Judge, Cuttack, confirming the order dated 21.8.1978 of the Judicial Magistrate, First Class, Baramba, convicting the petitioner under Section 394, Indian Penal Code, for committing robbery, is under challenge in this petition under Sections 397 and 401, Criminal Procedure Code.

(2.) THE gist of the prosecution case was that on 3.9.1975 at about 2 A. M, when the informant (P. W. 2) and the other inmates of his house P. Ws. 3 and 4 were sleeping in the house, the culprits armed with weapons forcibly entered inside the house, threatened and assaulted the inmates, snatched away gold ornaments and cash from them. The F. I. R. was lodged by P. W. 2 on the next day, 4. 9. 1975. In course of investigation, the police recovered some ornaments, a silver Gotha, two pieces of golden Kanapendi, one gold Chitu, a sum of Rs. 150/ -, a Gupti and a Farsa from the house of the petitioner on 6.9.1975 under the seizure list, Ext. 3/1. In the T. I. parade of suspected persons P. Ws. 2, 4 and 6 identified all the suspected persons including the petitioner as it appears from the report Ext. 1. In the T. I, parade of the seized articles P. W. 1 identified the articles seized . from the house of the petitioner. On completion of investigation, charge sheet was submitted under Sections 457 and 391, Indian Penal Code, against four persons including the petitioner.

(3.) ON a consideration of the materials on record, the learned Magistrate came to hold that on the night of 3. 9. 1975 there was an incident of theft in the house of the informant and in the said incident the miscreants had inflicted injuries on the persons of Sulochans, Mahargi, Purna and Gadadhar. Regarding involvement of the accused persons in the incident, he refused to place any reliance on the T. I. parade of persons since the identifying witnesses had occasion to see the accused persons before the T. I. parade was held, but accepted the evidence of P. W. 4 regarding identification of accused Bidyadhar and Sadei (petitioner) in Court. On the question of identification of the seized articles, the trial Court found that identification of P. W. 1 of two Kanapendis (M. O. II) and gold Belpatris (M. O. V ) in the T. I. parade as well as in Court implicates Bidei and Sadei, in the crime. The Court relied on Illustration(a) of Section 114, Evidence Act to hold them guilty of the offence under Section 394, Indian Penal Code. Regarding charge under Section 457, Indian Penal Code, the learned Magistrate did not accept the prosecution case that the miscreants broke open the sadar door of the informant's house on the night of 3. 9. 1975 and committed robbery. Therefore, he acquitted all the accused persons of the charge under the said section. The other two accused persons were acquitted of the charge under Section 394, Indian Penal Code. Accused Sadei Swain (petitioner) and Bidyadhar Swain were found guilty under Section 394, Indian Penal Code and were each sentenced to undergo rigorous imprisonment for 3 years and to pay a fins of Rs. 200/ - or in default,e to undergo rigorous imprisonment for 2 months: On appeal, the Additional Sessions Judge acquitted accused Bidyadhar of the charge under Section 394, Indian Penal Code but convicted the petitioner under the said section solely relying on presumption under Illustration (a) of Section 114, Evidence Act. The appellate Court however, reduced the sentence to 2 years rigorous imprisonment,