MANDAR BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner is in revision against his conviction under section 395 I.P.C. sentencing him to R.I. for five years, confirmed in appeal. The occurrence in which he was involved was dacoity committed in the house of P.W. 1 on 8/9-4-1981 at about 2.00 a m. Altogether five persons were made to stand trial, but three of them were acquitted and the rest two, the petitioner and another Sambhu Mohanty, were convicted.

(2.) Mr. B.B. Mohanty, the learned counsel appearing for the petitioner, in pressing the revision urges firstly that since the trial was of five persons of whom three had been acquitted, a conviction of two others under section 395 I.P.C. is not sustainable which requires in the minimum participation by five persons; and secondly, the petitioner has been found guilty only on the basis of the identification evidence which on the face of it is not credible.

(3.) So far as his first submission is concerned, it has no substance since the prosecution case throughout has been that not only the five who stood trial, but also some more people had participated in the occurrence which fact was also found by the trial court from the evidence of P. Ws. 1, 7, 9 and 10. The evidence of the said P. Ws. also reveals the specific statement that besides the five, some other persons were also there outside the house of P.W. 1 and they prevented the villagers to come inside the house and had also pelted stones at them. Mr. Mohanty placed reliance on State of Orissa v. Susanta Kumar Dey and another1, in support of his contention but the decision in no way supports the submission advanced. It is well settled that even if the charge does not mention the word others yet if it appears from the evidence that more than five persons had participated in the crime, then the charge would not fail merely because some of the accused are acquitted and the resultant number is less than five. A direct authority on the proposition in Suka Misra and others v. The State2.