STATE OF ORISSA Vs. ARJUN MALLIK

JUDGEMENT

(1.) THE respondent in the Government Appeal and the petitioner in the Jail Criminal Revision stood charged under section 395 of the Indian penal Code (for short, the 'Code') for having committed dacoity in the house of Prafulla Chandra Mohanty (P. W. 1) during the night of April 17.18.1980, in the course of which they were alleged to have caused hurt to P. Ws 2, 9 and 15 and removed cash, ornaments and other articles. To bring home the charge, the prosecution had examined sixteen witnesses at the trial. On a consideration of the evidence, the learned trial judge accepted the case of the prosecution in respect of the revision -petitioner Trinath Swain, convicted him under section 395 of the Code and sentenced him to undergo rigorous imprisonment for a period of five years while acquitting the respondent in the Government Appeal, namely, Arjun Mallik, owing to paucity of evidence against him.

(2.) THE State is in appeal against the order of acquittal in respect of Arjun Mallik and the petitioner Trinath Swain has challenged the order of conviction recorded by the trial Court and maintained by the appellate Court. These matters have been taken up together and will be governed by the common judgment.

(3.) AS regards the order of conviction against the petitioner Trinath Swain in the Jail Criminal Revision, it may be stated at the outset that the charge framed against him under section 395 of the Code was illegal and defective in that it had been stated in the charge that he and Arjun Mallik had committed dacoity in the house of P. W. 1. It had not been stated therein that they had committed dacoity with others. Two persons could not commit a dacoity in the eye of law and consequently, the order of conviction of the petitioner Trinath Swain under section 395 of the Code for which he stood illegally charged was misconceived. He could be convicted of robbery if the evidence warranted a conviction against him.