Decided on September 12,1978

Susanta Kumar Dey And Anr. Respondents


P.K. Mohanti, J. - (1.) THIS common judgment will govern all the three appeals which arise out of a judgment of the learned additional Sessions judge of Cuttack.
(2.) NINE accused persons were placed on trial for an offence under Section 396 of the Indian Penal Code. After trial the learned Sessions Judge convicted accused Sridhar Pradhan and Magu Das and sentenced each of them to imprisonment for life. The remaining seven accused persons were acquitted. Criminal Appeals Nos. 102 and 103 of 1975 have been preferred by the accused Magu Das and Sridhar Pradhan respectively against their convictions and sentences. The State in its turn has brought Government Appeal No 70 of 1975 challenging the acquittal of the accused Susanta Kumar Dey and Bagu alias Brahmananda Biswal. There is no appeal by the State in regard to the acquittal of the other five accused persons. Thus the order of acquittal so far as the other five accused persons are concerned stands final and conclusive. The case for the prosecution, as it emerges from the evidence placed before the trial Court, is that the nine accused persons conspired together to loot the house of P.W. 1 Bipra Palei, a resident of Gandhipalli in the city of Cuttack. On the night of 18 -6 -1974 at about 11. 30 p.m. they raided his house, being armed with dangerous weapons like pistol, dagger, knife and lathi. It is alleged that three of the dacoits entered the house of P.W. 1, committed assault on him and looted a cash of Rs. 270/ - a pair of silver Paunji and a pair of gold ear -rings. while the others mounted guard outside, on hearing the hulla raised by P.W. 1, his neighbours ran towards the spot. The accused Susanta fired a pistol as a result of which one Dharanidhar Sahu died at the spot while others namely P.W. 15 Radhasyam Pradhan and one Rusia Bhoi, were injured. After the dacoits left, the spot P.W. 1 lodged F.I.R. at about 2 p.m. in the night at Cuttack Sadar Police Station. The Officer -in -charge of the Police Station (P.W. 18) visited the spot and recorded the statements of witnesses. He sent the injured Rusia Bhoi to the S.C.B. Medical College Hospital. At 7 a.m. he held inquest over the dead body and despatched it for post -mortem examination. He found eleven empty cartridges, one fired bullet and one magazine lying near the spot and seized the same under the seizure list. Ext. 14. He also seized a bamboo lathi a -cycle chain and a key from the spot under the seizure list - Ext. 19. Then the police began their investigation and search for the culprits and the stolen articles. This process took some time. No stolen article could be recovered. Accused Susanta was arrested by the Sub -Inspector of Police, Mangalabag Police Station (P.W. 17) on 27 -7 -1974 and the pistol (M.O.V) along with some live cartridges, two magazines and one empty cartridge were seized from his possession. Accused Sridhar was arrested on 11 -8 -1974, He made a judicial confession before the Magistrate (P.W. 10) on 13 -8 -1974 implicating himself as well as some of his co -accused persons. Accused Magu Das was arrested on 14 -8 -1974. The accused persons were put to T. I. Parade on 2 -9 -1974. P.W. 1 Bipra Palei identified the accused Magu Das, P.W. 6 Sankar Sahu identified the accused Bran mananda Swain and Bagu alias Brahmananda Biswal. After due investigation all the nine accused persons were charge -sheeted under Section 396, Indian Penal Code.
(3.) AT the trial, the accused persons denied the charge and pleaded innocence. Accused Susanta denied recovery of the pistol and the cartridges etc. from his possession and contended that the case was foisted against him by P.W. 17 out of previous grudge. The plea of accused Sridhar Pradhan was that he made the confession out of police torture.;

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