JUDGMENT : S. Acharya, J. - The three Appellants stand convicted u/s 395, Indian Penal Code. Appellant Arjuna Behera and Appellant Dhoba alias Subash Panda have each been sentenced thereunder to undergo R.I. for 3 years. Appellant Mangu alias Mangulu Sahu has been sentenced thereunder to undergo R.I. for five years. 2. The prosecution case in short is that in the night of 9/10.8.1974 the Appellants along with many others committed dacoity of various properties in the house of P.W. 10. That night P.W. 10 was away from his house, and only his wife (P.W. 2) and daughter (P.W. 17) were in that house and P.W. 3 was in the house adjoining the house of P.W. 10. At night while P.W. 2 was sleeping she heard some sounds on the thatch of her house and on coming out of the room she and her minor daughter, P.W. 17, found accused Mangu and two others on the thatch When P.Ws. 2 and 17 shouted out, at first Appellant Mangu got down the thatch, broke the electric bulb which was burning in the courtyard of the house, assaulted P.W. 2 and snatched away the geld necklace from her neck As P.W. 2 resisted, she was stabbed on her head by this Appellant with the dagger in his hand. In the meantime the other two persons had got down from the thatch and they and some others who had entered into the courtyard of the house, brought out boxes and or her properties from inside the house of P.W. 2. On seeing all this P.W. 17 and P.W. 3 (who was in the adjoining house) shouted out for help, and they were assaulted by the accused persons. The accused persons removed a lot of articles from the house and fled away from that place by terrorising and assaulting the inmates and some others who came to that place on hearing the cry raised by P.Ws. 2, 3 and 17. 3. The accused persons took the plea of denial. Accused Mangu further stated that he for some time had worked under Hadibandhu (P.W. 10), the husband of P.W. 2, and as the latter did not pay his wages there was some quarrel between the two and so he has been falsely implicated by P.W. 10. 4. Accused Mangu and P.Ws. 2, 10 and 17 belong to the same village. Accused Mangu further stated that he for some time had worked under Hadibandhu (P.W. 10), the husband of P.W. 2, and as the latter did not pay his wages there was some quarrel between the two and so he has been falsely implicated by P.W. 10. 4. Accused Mangu and P.Ws. 2, 10 and 17 belong to the same village. Accused Mangu also admits this fact. His statement that he worked for some time under P.W. 10 goes to show that P.Ws. 2, 10 and 17 were well acquainted with this accused. 5. P.W. 2 has testified to the fact that in the night of occurrence, on hearing some sound on the thatch of her house, she got up and came out of her room, and with the help of the electric light which was burning outside, she could see 3 persons, including accused Mangu, on the thatch of the house. On seeing them P.W. 2 shouted out for help. At this, accused Mangu jumped down the thatch, broke the electric bulb and assaulted P.W. 2 with a Lathi in his hand and snatched away the gold necklace from her neck. When she resisted she was stabbed on her head with dagger. In the meanwhile the other two accused persons bad come down the thatch, and they and some other accused persons, who entered inside the house through the Sadar door, removed valuables, like cash, clothings, radio, watch and boxes containing various other things, from inside the house. While going away horn the house with the said articles they assaulted P.Ws. 17 and 3 as they offered some resistance and shouted out for help. She has also stated that in the night of occurrence her husband, P.W. 10 was absent from the house. She has given a very consistent picture of the entire incident, and nothing could be elicited from her to create any doubt about her testimony. She has successfully stood the test of cross-examination, and nothing substantial has been elicited from her to discredit her testimony. 6. P.W. 17. the daughter of P.W. 2, is a child witness, aged about 14 at the time of her examination in Court. She has corroborated the evidence of P.W. 2 to the above effect on all important and material particulars. Her evidence also has not been successfully assailed. 6. P.W. 17. the daughter of P.W. 2, is a child witness, aged about 14 at the time of her examination in Court. She has corroborated the evidence of P.W. 2 to the above effect on all important and material particulars. Her evidence also has not been successfully assailed. The Court below, of course, has not placed much reliance on her evidence, as her name does not appear in the charge sheet and she was examined in the case at a late stage. From the questions put to her in cross-examination it is quite evident that she had been examined by the police. Possibly because she was a young, shy and unsophisticated rustic girl, the police did not name her in the charge sheet. As her testimony In Court has not been successfully assailed and as she has corroborated the evidence of P.W. 2 on all material particulars, I do not see any reason to doubt her veracity or the credibility of her testimony. 7. P.W. 3 (aged 60 years) is the aunt of P.W. 10, the husband of P.W. 2. She was occupying a room just adjacent to the house of P.W. 2. She also states that in the night of occurrence, P.W. 10 was absent from his house. By about midnight on hearing the hullah raised by P.W. 1, that thieves had entered into her house, she (P.W. 3) got up from sleep and with the help of the electric light burning near the house of P.W. 2 she at first saw one of the three persons who were on the thatch of the house of P.W. 2 jump down the thatch. Soon thereafter the other two culprits got down the thatch and they assaulted her as a result of which she fell down. Very soon thereafter she saw several other persons getting into the house as the door was opened by one of the culprits, and all these persons started carrying away boxes and valuables from inside the house of P.W. 2. When she offered resistance to this she was assaulted by these culprits. She has very frankly stated that she could not identify any of the accused persons as the electric bulb was broken by the culprits. Though she could not identify any of the culprits possibly because of her old age, she has corroborated the evidence of P.Ws. When she offered resistance to this she was assaulted by these culprits. She has very frankly stated that she could not identify any of the accused persons as the electric bulb was broken by the culprits. Though she could not identify any of the culprits possibly because of her old age, she has corroborated the evidence of P.Ws. 2 and 17 on other material particulars about the occurrence. 8. P.W. 10, the husband of P.W. 2 and father of P.W. 17, returned to his house on the next day, and he came to know about the dacoity committed in his house from the villagers. From his village he went to the police station and there he saw his wife. P.W. 2, with injuries on her person and a bleeding injury on her head. On seeing this he took her to the hospital and from there they both returned to the village. P.Ws. 10 and 2 have identified several articles, which were seized from different persons, as articles belonging to them. P.W. 2 has stated that accused Mangu along with his associates committed dacoity of the said articles from her house in the night of occurrence. 9. On hearing the counsel appearing for both the parties and on a consideration of the evidence on record I am convinced beyond reasonable doubt that accused Mangu actively participated in the commission of dacoity which took place in the house of P.W. 2 in the night of occurrence along with several others. Accordingly, his conviction u/s 395, Indian Penal Code is well founded and the sentence passed against him thereunder is proper and justified and it does not call for any interference. Accordingly, this appeal, so far as it relates to Appellant Mangu alias Mangulu Sahu, is dismissed. 10. None of the prosecution witnesses has identified Appellant Arjuna Behera as one of the persons who committed dacoity in the house of P.W. 2 in the night of occurrence. Neither P.W. 2, nor P.W. 17 nor any other prosecution witness states anything on which it can be definitely stated that Arjun associated himself in any manner in the commission of the said dacoity. Strangely enough, the trial Court in convicting this accused has taken into consideration the statements u/s 161, Code of Criminal Procedure of P.Ws. 5 and 6 as substantive evidence in this case. Strangely enough, the trial Court in convicting this accused has taken into consideration the statements u/s 161, Code of Criminal Procedure of P.Ws. 5 and 6 as substantive evidence in this case. These witnesses have flatly denied to have made any such statement. It is well settled that the said statements u/s 161, Code of Criminal Procedure cannot be used as substantive evidence in any enquiry or trial in respect of any offence during the investigation of which the said statements were made, save as provided u/s 162, Code of Criminal Procedure. The proviso to Section 162, Code of Criminal Procedure specifically says that such statements if duly proved may be of used by the accused and with the permission of the Court by the prosecution to contract such witnesses in the manner provided by Section 145 of the Indian Evidence Act, 1872; and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. Sub-section (2) of Section 162, Code of Criminal Procedure says that the said statements may be utilised if they fall under Clause (1) of Section 32 of the Indian Evidence Act, or to affect the provisions of Section 27 of that Act. That being the law on the subject, the learned Sessions Judge acted illegally in relying on the said statements u/s 161, Code of Criminal Procedure of P.Ws. 5 and 6 as substantive evidence in the case and convicting this accused mostly on these statements. 11. It is contended by Mr. Kanungo, the learned Addl. Standing Counsel for the State, that on the evidence of P.Ws. 9, 18 and 19 a case at least u/s 411, Indian Penal Code against this accused is clearly established. According to P.W. 9, after 3 or 4 days of the occurrence accused Arjun, in the presence of the police of the Sadar P.S., stated that he had kept the articles of dacoity, removed from the house of P.Ws. 2 and 10, in the possession of one Behera of village Kanthol. On his said statement the accused was taken to village Kanthol, and from the house of P.W. 18 one Bela (M.O. I), two cups (M.Os. II and Ill) and a plate all of bell-metal were recovered In the presence of some other villagers. 2 and 10, in the possession of one Behera of village Kanthol. On his said statement the accused was taken to village Kanthol, and from the house of P.W. 18 one Bela (M.O. I), two cups (M.Os. II and Ill) and a plate all of bell-metal were recovered In the presence of some other villagers. These articles were seized under the seizure list Ext. 10, and P.W. 18 produced the same from his house. P.W. 18, however, merely stated that the Dhenkanal police with the assistance of the Athgarh police seized those articles from his house and that accused Arjun had pawned those articles with him for Rs. 12/-. He does not say that accused Arjun had come with the police to the house of P.W. 18 and that the production of the said articles was made on the information or 10 the presence of accused Arjun. Moreover, there is absolutely no evidence on record to corroborate the evidence of P.W. 18 that accused Arjun actually had pawned those articles with him. These articles have been identified by P.W. 2 as belonging to her and she has stated that the accused persons who committed the dacoity removed those articles from her house. As those articles have been proved to be stolen property and were found in the possession of P.W. 18, the presumption under illustration (a) of Section 114, Evidence Act was inherent against P.W. 18, and so he was certainly trying his best to wriggle out anyhow of the inferences and consequences of the same. That being so, without any corroborative evidence it becomes extremely difficult to rely on his sale testimony that he received the said articles from accused Arjun. Moreover, his evidence that the said new valuable bell-metal utensils were pawned to him for only Rs. 12/- creates suspicion about the veracity of his testimony and/or tends to create obvious suspicions against him. The evidence of P.W. 19 is not of any avail as it does not tend to implicate accused Arjun in any manner. Apart from the above unconvincing features in the evidence of P.Ws. 9 and 18, I also find from the evidence of P.W. 15 that he seized these articles on 20-8-1974 from the house of P.W. 18 as produced by the latter. Apart from the above unconvincing features in the evidence of P.Ws. 9 and 18, I also find from the evidence of P.W. 15 that he seized these articles on 20-8-1974 from the house of P.W. 18 as produced by the latter. P.W. 15 does not state that the said articles were recovered from the house of P.W. 18 in consequence, of any information received to that effect from accused Arjun, as stated by P.W. 9. Moreover, P.W. 15 has stated that he arrested accused Arjun on 22-8-1974 in Jharana jungle where he was concealing himself with some of the other accused persons. If that was so, then the evidence of P.W. 9 that the said articles were recovered In the presence of the accused and on the information given by him to the police is absolutely incorrect. On a thorough perusal of the evidence on record I am satisfied that it is not established beyond reasonable doubt that accused Arjun actually pawned the said articles to P.W. 18. Accordingly, he cannot be held guilty for an offence u/s 412 or Section 411 as urged by Mr. Kanungo. 12. On the above analysis of the evidence on record, the conviction of accused Arjun u/s 395, Indian Penal Code cannot be upheld, nor can he be held guilty in this case for any other offence as urged by the State counsel. 13. The only other accused who has, been convicted by the Court below in this case is Dhoba alias Subash Panda. The Court below, relying on the statement u/s 161, Code of Criminal Procedure of P.Ws. 8 and 11, has convicted this accused of the charge u/s 395, Indian Penal Code. Both these witnesses denied to have made any such statements. As the I.O. (P.W. 15) proved their said statements before him the Court erroneously accepted the same as substantive evidence in the case and convicted this accused mostly on that basis. The Court below, for reasons stated above, was absolutely wrong in using the said statements as substantive evidence in the case, and to convict the accused on that basis. Apart from that, the finding of the Court below that on the evidence of P.Ws. 13 and 14 it is established that the Danki Mal (M O. IV) belonging to P.W. 2 was seized from the possession of this accused on 24-8-1974 is not correct. Apart from that, the finding of the Court below that on the evidence of P.Ws. 13 and 14 it is established that the Danki Mal (M O. IV) belonging to P.W. 2 was seized from the possession of this accused on 24-8-1974 is not correct. P.W. 13, the seizure witness in whose presence this Hara was seized, has stated that this Hara was produced by D.W. 2, the elder brother of accused Dhoba, and the police seized the same under Ext. 8. In his examination-in-chief itself he stated that the said Hara was in the almirah in the house which was jointly occupied by D.W. 2 and accused Dhoba. He has further stated that the almirah from which this sold necklace was seized belonged to D.W. 2, who was married, and that at the time of producing the said Hara D.W. 2 stated that the same belonged to his wife. He has also stated that he had seen the wife of D.W. 2 wearing such a Hara beforehand. About the seizure of this necklace the I.O., P.W. 15 has merely stated that accused Dhoba led to the recovery of this necklace along with a pair of silver Bala and a pair of Mahula Bataphala. P.W. 13 belies the above statement, as he categorically states that the accused persons were not brought to their respective houses during the search and seizure of the said articles. P.W. 15 has not stated as to from whose possession or house the said Hara was recovered. Thus the recovery of the necklace M.O. IV. from the possession or custody of accused Dhoba is not established in this case, No doubt, P.W. 2 has identified this Hara as belonging to her and has also stated that she was wearing this Hara when the same was robbed from her possession during the course of the dacoity in her house. 14. There is no other convincing evidence on record on which the conviction of this accused u/s 395, Indian Penal Code can be upheld. There is also no evidence on record to convict him for any other offence. On hearing the counsel appearing for both the parties and on going through the evidence on record I am satisfied that the charge against accused Arjun Behera and accused Dhoba alias Subash Panda u/s 395, Indian Penal Code is not established beyond reasonable doubt. There is also no evidence on record to convict him for any other offence. On hearing the counsel appearing for both the parties and on going through the evidence on record I am satisfied that the charge against accused Arjun Behera and accused Dhoba alias Subash Panda u/s 395, Indian Penal Code is not established beyond reasonable doubt. There is also no convincing evidence on record to hold them guilty of any other offence in this case. Accordingly, the conviction of both these accused persons (Arjun and Dhoba) u/s 395, Indian Penal Code and the sentences passed against them thereunder are set aside. They are discharged of the bail bonds furnished by them. In the result, therefore, the appeal, so far as it relates to Appellant Mangu alias Mangulu Sahu, is dismissed and his conviction u/s 395, Indian Penal Code and the sentence passed against him thereunder ate upheld. The appeal, so fat as it relates to Appellants Arjun and Dhoba alias Subash Panda is allowed. Final Result : Allowed