AKHAYA BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) These two appeals are interlinked as they are directed against the same judgement of conviction and sentence dated 1-5-1992 passed by learned Assistant Sessions Judge, Jagatsinghpur in S.T. No. 249 of 1991. Since the points for determination are common, this judgement shall govern both the appeals.

(2.) The appellants, also described hereinafter as accused, faced trial before the learned Assistant Session Judge, Jagatsinghpur on the accusation of having committed offences punishable under Sections 457/395/392 of the Indian Penal Code, 1860 (in short, 'IPC'), and under Section 9(b) of. the Indian Explosives Act, 1884 (in short, the 'Explosives Act'). It was alleged that they along with others committed lurking house trespass by night by entering into the house of informant Mukunda Rath (P.W. 49), and committed dacoity with deadly weapons, and were in possession of explosive substances which were used at the time of commission of dacoity. Though accusations related to a number of persons, the case was split up so far as the present appellants and one Anama Lenka were concerned.

(3.) Stated in essence prosecution case is as follows :On receipt of information from one Sarat Naik that dacoity had been committed in the house of Mukunda Rath, and dacoits had decamped with huge amount of valuables, the Sub-Inspector of Police, Raghunathpur Out Post rushed to the village of the informant and a written first information report was handed over to him by the informant Mukunda. The Background as reflected in the first information report was that on 25-7-1990 at midnight the occurrence took place. The informant and his family members had gone to bed as usual at about 11 p.m. At about 12.30 a.m. by breaking open the front door, the dacoits entered into the court-yard. Thereafter the door of bed-room of the informant was broken open, and two of the culprits entered into the said room, while one kept watch by standing near the door. The culprits dragged the informant and his wife from the bed, assaulted them and threatened them at point of knife with dire consequences if they made any sound. They broke open a wooden almirah and a wall almirah and threw away the articles and collected only golden articles and cash tied them in a napkin. Thereafter they went to the other room and threw certain articles on the floor. They went to the room where the informant's eldest daughter-in-law was sleeping. As disclosed by the daughter-in-law, door of her room was broken open by a grinding stone. The culprits were four in number and they lifted the mosquito net and asked her to hand over the keys. They threatened to kill her children if the keys were not handed over. She told that the keys were in the almirah. They brought the boxes and attaches and threw them on the floor of the room. They broke open the boxes, and took away gold articles and cash of Rs. 2500/-. They asked her for a gold chain, and she told them that the same was in the almirah. They also asked her to hand over golden bangles, which she did, but the culprits did not take them and threw them at the bed. The dacoits were wearing black half pants and black banians. Some of them had wrapped towels on their heads. One of them was of good built and held a knife, and another was a short man. Ages of the dacoits ranged from 25 to 35 years, and they were talking in Oriya. It was evident that the culprits were well acquainted with the affairs of the house of informant. They were holding torches and focussing the lights on the face of the inmates. The informant, his wife, his daughter-in-law could identify the culprits in the torch light and light emitted by electric bulbs. The culprits assaulted the field servant Rama Manthan, and abused him in filthy language. He managed to escape through the back door. The informant, his wife and the field servant Rama Manthan were injured on account of assault by the culprits. Though list of the entire articles looted could not be prepared, yet details of the articles stolen from the rooms of the informant, the daughter-in-law and the middle room were indicated. While the dacoits were decamping with looted booty after commission of dacoity, they exploded bombs as a result of which one Bhagaban Sethi and another person-were injured. Those two persons were trying to apprehend the dacoits. Cash amounting to Rs. 53,000/-, gold, silver ornaments and silver coins were removed from the bed-room of the informant, while one Philips tape-recorder from the middle room and gold ornaments and cash of Rs. 2500/were taken from the room of the daughter-in-law. A list was appended to the F.I.R. As the report revealed a cognizable case under Sections 457/395, IPC and under Section 9(b) of the Explosives Act, investigation was taken up by the Officer-in-charge of Jagatsinghpur Police Station. Subsequently the case was supervised by the Additional Superintendent of Police, and Superintendent of Police, Cuttack, but no clue could be obtained. As per the direction of the Inspector General of Police, Crimes, P.W. 52 took charge of investigation on 8-11-1990. After elaborate investigation, he could collect definite materials relating to the incident, arrested the accused persons and forwarded them to custody. During investigation, articles as per seizure lists Exts. 2 to 16 were seized. Test Identification Parade was conducted in respect of the accused persons and the stolen articles. After completion of investigation, charge-sheet was submitted against the accused persons, including the present appellants.