STATE OF ORISSA Vs. KALIA

JUDGEMENT

(1.) Upon hearing the learned Standing Counsel for the State and Mr. Nayak for the respondents, I find no case for interference in this appeal against the order of acquittal of the five respondents who stood charged under section 395 of the Indian Penal Code with having committed dacoity in the house of Mangulu Charn Bindhani (P.W. 6) at village Jhinoi in the district of Mayurbhanj in the course of which the inmates of the house had been assaulted and the articles had been removed during the night of September 17, 1979 and I would give the reasons for this conclusion.

(2.) The learned Standing Counsel has not pressed into service and rightly so, the evidence with regard to the recoveries of the utensils (M.Os. Ito V) from an accessible and unfenced place in the back yard of the house of the respondent Baghrai Bindhani who could not be said to be in possession of these articles and the recovery of MO-a Dhoti from the possession of the respondent Dhanga Majhi, who had claimed it to be his and which claim was not to be brushed aside, as observed by the trial court.

(3.) The prosecution had mainly banked on the evidence of P.Ws. 4, 6 and 7 who had identified the respondents in the court and prior to that, in the test identification parades conducted by two Judicial Magistrates (P.Ws. 1 and 2) as per their reports, Exts. 1 and 3. P.W. I had conducted the test identification parade on April 4, 1981 in respect of the respondent Dhanga Majhi and the other Magistrate (P.W. 2) had conducted the test identification parade in respect of the other four respondents, namely, Badatang Majhi, Bhua Tudu, Mota Tudu and Baghrai Bindhani on March 17, 1981, long after the occurrence. I do not share the view recorded by the trial court that the delay was owing to the inaction on the part of the police agency as it would clearly appear that the test identification parade had been conducted by P.W. 2 after undue delay which could reasonably be attributed to the inaction on the part of P.W. 2.