D.G.R.PATNAIK, J. - (1.) THE instant appeal is directed against the judgment of conviction and order of sentence dated 20.12.2003 and 21.12.2003 respectively, whereby the learned trial court convicted the appellants for the offences under Sections 395 of the IPC and sentenced them to undergo R.I. for five years besides imposing fine of Rs. 500/ - each.
(2.) CASE of the prosecution, as appearing in the F.I.R. lodged by the informant Jageshwar Lohra on 18.10.2001, is that in the night of 17 / 18.10.2001 while he was sleeping in his house, 6 -7 unknown persons variously armed with weapons entered into his house and committed dacoity by looting away valuables including household articles from his house. Before decamping with the booty, the dacoits had bolted door from outside confining the members of the house indoors. In the early hours of the next morning, the villagers opened the door, where -after search was made for the dacoits and following their footstops, villagers could each hold of two persons who disclosed their names as Birendre Kherwar and Budheshwar Kherwar respectively find from their possession, stolen articles including Radio, torch, printed Sari, etc. were recovered. Both the apprehended accused persons made extra judicial confession of their guilt before the villagers and had also disclosed the names of their associates as Sawla Kherwar, Birbal Oraon, Sahrang Oraon, Sukra Otaon, Maori Orson and Biswanath Oraon, The present appellants are four amongst the persons named by the apprehended miscreants. The present appellants along with other co -accused persons had faced trial, but in course of trial, all the other co -accused persons absconded and the trial had therefore proceeded and concluded only against the present four appellants. One of the co -accused namely Vishwanath Oraon had died in course of tria, while the two apprehended co -accused Birerulra Kherwar and Budhcshwar Kherwar had absconded during the trial. Appellants had denied the charges pleading not guilty. As many as eight witnesses were examined by the prosecution including the investigating officer (PW8) and the informant (PW7). The trial court by placing reliance upon the evidences adduced by the prosecution witnesses, convicted the appellants for the offence under Section 395 of the IPC and sentenced them accordingly.
(3.) APPELLANTS have challenged the impugned judgment of conviction and sentence mainly on the ground that the trial court has convicted the appellants without there being any cogent and reliable evidence and as a matter of fact, evidences on record have not been considered and discussed in proper perspective. Mr. Amitabh Kumar, learned Counsel for the appellants submits that though the present case was instituted on 18.10.2001, but neither was any of the appellants arrested at the spot, nor was recovery of any incriminating article made from their possession or from their house and in fact, appellants had surrendered themselves before the court below on 2.11.2001 and during their detention in custody, the prosecution did not make any effort to put them on T.I. Parade. Learned Counsel adds further that conviction cannot sustain merely on the ground that the two co -accused persons had referred to the names of the present appellants in their alleged extra judicial confession made before the villagers and the mere identification of the appellants by the witnesses in course of trial after more than one and half years from the date of the alleged occurrence without attributing any specific role against the present appellants in the commission of the alleged dacoity, cannot be taken as a ground for convicting the appellants.;