BHABAGRAHI BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioner and his brother were originally charged under Sections 456/511, Indian Penal Code. His brother has been acquitted and the Petitioner has been convicted under Section 456, Indian Penal Code and has been sentenced to undergo R.I. for one month.

(2.) THE prosecution case is that on 27 -4 -1977 the father of P.W. 1 died at mid -night. P.Ws. 2, 3, and 4 were coming on the road from the cremation ground. They found the Petitioner sitting on the compound wall of the house of P.W. 1 and was attempting to jump down. These witnesses, along with others, followed him and caught him on the way. He was questioned regarding his suspicious movement and he made extra -judicial confession that he was attempting to commit home breaking at midnight. Accordingly. F.I.R. was lodged by P.W. 1 and after investigation charge -sheet was submitted by the police.

(3.) MR . Patel, the learned Counsel for the Petitioner, contends that even assuming the evidence of P.Ws. 2, 3 and 4 is true to the effect that the Petitioner was found sitting on the compound wall of P.W. 1 and when he has not been convicted under Section 457 , Indian Penal Code but has been convicted under Section 456, Indian Penal Code and the intention for such offence has not been established, he is entitled to acquittal. In this connection, he contends that the fact of extra -judicial confession appears to be an after -thought, inasmuch as when the F.I.R. is lodged by P.W. 1 who is a practising advocate of the local Bar.