STATE OF ORISSA Vs. KARTIKA NAIK AND ORS.
LAWS(ORI)-1978-12-16
HIGH COURT OF ORISSA
Decided on December 18,1978

STATE OF ORISSA Appellant
VERSUS
Kartika Naik And Ors. Respondents

JUDGEMENT

P.K.Mohanti, J. - (1.) SIX accused persons were committed to the Court of. Sessions to stand their trial under Section 395, Indian Penal Code. After trial, the learned Additional Sessions Judge convicted the accused Bigyan Malik under Section 395, Indian Penal Code and sentenced him to R. I. for seven years and acquitted the other accused persons. The Criminal Appeal has been preferred by the convict Bigyan Malik against his conviction and sentence and the Government Appeal has been preferred by the State against the order of acquittal.
(2.) THE prosecution case was that on the night of 22 -1 -1974 the accused persons committed dacoity in the house of one Ananta Baisakh of village Badakorakora under Govindpur Police Station and removed cash and jewellery worth Rs. 5000/ -. One of the culprits named Harihar Dash was tendered a pardon under the provisions of Section 337. Code of Criminal Procedure (old) and he accepted such pardon on 16 -2 -1974. The learned S.D.J.M. took cognizance of the offence on 10 -2 -1975 and committed the accused persons to the Court of Session on 25 -2 -1975. The approver was not examined as a witness by the committing Magistrate but he was examined at the trial as p. w. 4.
(3.) THE question raised is whether the commitment and the trial are vitiated due to non -examination of the approver at the committal stage. The learned Addl. Standing Counsel appearing for the State of Orissa and Mr. S.C. Sahu appearing for the convict Bigyan Malik conceded that the commitment and the trial were vitiated due to non -examination of the approver and that the entire case may be remitted to the committing Magistrate for proceeding with the committal proceeding. In my opinion, the concessions is well founded.;


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