PADMANAVA MOHAPATRA Vs. THE STATE

JUDGEMENT

(1.) PETITIONER Padmanava has filed this revision against his conviction and sentence under Section 395 Indian Penal Code, passed by the Assistant Sessions Judge, Puri in Sessions Trial No. 14/73 of 1979 and confirmed by the Sessions Judge. Puri, in Criminal Appeal No. 51 of 1980. The learned Sessions Judge however, had modified the sentence, inasmuch as while the Assistant Sessions Judge had awarded a sentence of rigorous imprisonment, for five years, the Sessions Judge reduced it to rigorous imprisonment for three years.

(2.) FIVE accused persons, namely, accused Arjun Das, Padmanava Mohapatra, Suresh Kumar Sadangi. Deben Kumar Mohanty and 'Mahabir Das along with one Somanath Bihari were charged and tried for an offence under Section 395, Indian Penal Code on the allegation that they committed dacoity on 20th of January, 1978 at 2 a.m. in the house of Damayanti Dei, wife of Sagar Parida of village Buali, P.S. Delang in the district of Puri by removing cash and gold ornaments worth about Rs. 20,000/ -. According to the prosecution case while Damayanti (P.W. 1) was sleeping with her five daughters and younger son inside her bed room and her husband was sleeping in another room the culprits broke open the door of the bed room at about 2 a.m. Damayanti got up and tried to resist their entry, but her attempts were in vain. The miscreants exploded crackers and after effecting their entry into the bed room removed a gold 'Khasumala' from the neck of Damayanti and also removed cash and gold ornaments from the house. While committing dacoity, the accused persons are said to have used criminal force against the inmates of the house. P.W. 1 lodged F.I.R. (Ext. 6). A case under Section 395, Indian Penal Code was thereafter registered and investigation was taken up.

(3.) THE prosecution examined as many as 18 witnesses of whom P.W. 1 is the informant, P.Ws. 2 and 4 are her daughters, P.W. 3 is her husband, P.W. 13 is the magistrate who had conducted a T.I. parade, P.W. 16 and P.W. 18 are the Investigating Officers. P.W. 17 is the finger print expert and the other witnesses are either seizure witnesses or witnesses who have proved that a dacoity was committed on the date of occurrence. The learned Trial Judge on discussion of the evidence on record disbelieved the identification of the accused persons since he found that the T.I. parade that was conducted was highly illegal and irregular creating doubts in the mind as to identification. On analysis of the evidence 'adduced by the prosecution, the learned Trial Judge held that accused Suresh and Deben could not be found to have taken part in the dacoity and therefore, he acquitted them. The learned Trial Judge, however, took into consideration the fact that the other three accused persons while in custody led the Police and gave discovery of M.Os. VII and VIII and the evidence of P.W. 17 to the effect that finger prints of accused Padmanav and Arjun tallied with the finger prints which were found on M.Os. II and IV and on the basis of these incriminating circumstances convicted these three accused persons under Section 395, Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years.