J.K. Mohanty, J. -
(1.) THE two Appellants, Sanatan Patra (Appellant in Criminal Appeal No. 31/76) and Golakh Patra (Appellant in Criminal Appeal No. 32/76), who are brothers, have been convicted under Section 395, Indian Penal Code and each of them has been sentenced to undergo R. I. for six years and to pay a fine of Rs. l,000/ -, in default to undergo R. I. for a further period of one year by the Additional Sessions Judge, Dhenkanal in Sessions Trial No. 11/11D of 1975.
(2.) THESE two appeals were heard together and this judgment will govern both the appeals.
(3.) THE prosecution case is that on the night of 17 -6 -1973 at about 11. 00 p. m. a dacoity took place in the house of one Maheswar Satpathy, father of the informant -P.W. 10, of village Khandabandh under Gandia Police Station in the district of Dhenkanal. At the time of the commission of the dacoity, nearly 20 to 22 persons entered into the house of Maheswar Satpathy. On that night, Maheswar, his wife, his younger son Khirod Kumar Satpathy (P.W. 1), P.W. 2 Sarat Kumar Satpathy, brother of the wife of P.W. 10 -informant and one child were sleeping on the front verandah and his two other sons and their wives were sleeping inside the house. At about 11.00 p.m. one of the dacoits snatched away one gold necklace (Suki Mal) from the neck of his wife who woke up and shouted that somebody had taken away her Suki Mal. Thereafter Maheswar got up and was seriously assaulted by the miscreants. On hearing the hulla raised by them, his two sons, who were sleeping inside the house, came out and helped the inmates of the house who were sleeping on the front verandah to get inside the house and close the door. The dacoits tried to break open the rear door by banging a Dhenki against it. Being unsuccessful to break open the door, some of the dacoits broke the railings at the Window of the western room and two or three dacoits entered inside through the window and opened the back door. Thereupon, all the dacoits entered into the house being armed with knives, swords and lathis and drove out all the inmates from inside the house. Seven or eight dacoits out of them wrongfully confined the inmates of the house by making them sit in front of the house and keeping watch over them. It is alleged that the two accused -Appellants Sanatan Patra and Golakh Patra were among these seven or eight dacoits who wrongfully confined the inmates of the house and kept watch over them. Meanwhile, these seven or eight dacoits including the Appellants threatened and assaulted some of the inmates of the house and took away the ornaments including M. O. I, a pair of gold ear -rings. M. O. II a gold chain and M. O. III a pair of gold ear -ring (Mogul -E -Azam). The dacoits also ransacked the house and removed - some other valuables like silver and gold ornaments, wrist watches, radio, cash, clothes and utensils etc. Few neighbours who came near the house of the informant on hearing the cries could not come to their rescue as the dacoits scared them away by pelting stones at them. The dacoits were there in the house for about It to 2 hours and thereafter left with the booty. The matter was reported at the police station by the informant, P.W. 10. The police took up investigation and got the injured persons examined by the Medical Officers on requisitions and after completing the investigation sent up the accused -Appellants Sanatan Patra and Golakh Patra to stand their trial under Section 395 , Indian Penal Code. The other two accused person, namely, Sukadev Sahu and Bulla @ Brundaban Sahu were also sent up for trial under Section 412, Indian Penal Code as they had dishonestly received M.Os. I, II and III which were stolen in the commission of dacoity. These two persons have been acquitted by the learned Additional Sessions Judge, Dhenkanal. The others dacoits could not be traced.
The defence plea of the accused -Appellants Sanatan Patra and Golakh Patra is one of complete denial. They further alleged that this case was engineered by P.W. 2 Sarat Kumar Satpathy through his brother -in -law, the informant P.W. 10 and other members of his family out of previous enmity with them. Accused Golakh Patra though has not taken any plea of alibi in his state men t under Section 313, Code of Criminal Procedure, examined d.w. 1 to prove that he was absent from the village on the date of occurrence. Accused Sanatan examined d.w. 3 to prove that be was ill on the alleged date of occurrence. To prove the case, prosecution has examined 16 witnesses including the police officers (P.Ws. 14, 15 and 16) and three doctors (P.Ws. 7,8 and 11). Through the evidence of P.W. 1,2, 3, 9 and 10 the prosecution has proved that the dacoity took place in the house of Maheswar Satpathy in the night of 17.6.1973 and the valuables like radio, wrist watches, gold ornaments (M. Os. I, II and III) and cash etc. were stolen. The fact of commission of dacoity in the house of Maheswar Satpathy is not disputed. P.W. 2 Sarat Kumar Satpathy, who is the brother -in -law of P.W. 10 Maheswar Satpathy, was present in the house of Maheswar Satpathy in the night of occurrence. He is the most important witness on behalf of the prosecution who could identify the two accused persons during the occurrence. His evidence is that on 9 -6 -1973 his sister married P.W. 10 and he accompanied his sister to the house of her father -in -law at Khandabandha and he was sleeping along with others on the outer verandah. On hearing hulla, he woke up and saw that Maheswar Satpathy, the father -in -law of his sister was being assaulted. He became afraid and pretended to be asleep. Nearly 20 to 22 miscreants came by holding knives, swords and lath is. On hearing the shout his brother -in -law came out of the house by opening the front door and all of them who were sleeping outside entered into the house. Seven or eight persons out of the miscreants kept watch over them and he could identify accused -Appellants Golakh and Sanatan. He knew accused Golakh and Sanatan long prior to the occurrence as accused Sanatan was serving under them as a farm -servant for nearly two to three years and left service three years prior to the dacoity. Accused Golakh is the elder brother of accused Sanatan. He informed the names of these two accused persons to other inmates of the house immediately after the dacoits left. In cross -examination it was suggested to him that due to enmity he was deposing falsely against the accused persons. But he stoutly denied this suggestion. Nothing has also been brought out from him in cross -examination to disbelieve the evidence of this witness. The accused -Appellants have also not produced any evidence to prove the enmity between them and p. w, 2. P.W. 1 Khirod Kumar Satpathy, P.W. 3 Ganeswar Satpathy, P.W. 10 Biseswar Satpathy, who are the sons of Maheswar Satpathy and P.W. 9, the wife of P.W. 3 Ganeswar Satpathy, have deposed about the dacoity committed in their house and have narrated the incident in detail. P.W. 6 Duryodhan Naik, who is the Sarpanch of Khandabandh Grama Panchayat, has also stated about the Commission of dacoity in the house of Maheswar Satpathy on 17 -6 -1973.;