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1994 DIGILAW 97 (ORI)

RAMAKANTA DAS v. STATE OF ORISSA

1994-04-22

R.K.PATRA

body1994
R. K. PATRA, J. ( 1 ) THE aforesaid seven appeals arise out of the judgment and order of the Additional Sessions Judge, Balasore convicting the appellant Ramakanta Das (Jail Criminal Appeal No. 83/91), appellant Babaji Behera (Jail Criminal Appeal No. 92191), appellant Bauli alias Upendra Mahalik (Criminal Appeal No. 52/91), appellant Janardan alias Danardan Samal (Criminal Appeal No. 73/91) and appellant Dibakar Manalik (Criminal Appeal No. 90/91) under Section 395 of the Indian Penal Code (in short I. P. C.) and sentencing each of them to undergo rigorous imprisonment for seven years and further convicting appellant Srikant Mahalik (Criminal Appeal No. 58/91) and appellant Puma Chandra Rana (Criminal Appeal No. 70/91 under Section 411 of I. P. C. and sentencing each of them to undergo rigorous imprisonment for two years. All the appeals were heard together and are disposed of by this judgment. ( 2 ) BRIEFLY stated, the prosecution case is that on 19/2oth June, 1987, dacoity was committed in the house of P. W. 1 at village Bhandeswar. It is the allegation of the prosecution that when P. W. 1 and his family members were sleeping in their house, the culprits entered into the house of P. W. 1 being armed with lathis, revolvers and different deadly weapons and after assaulting P. W. 1 looted the properties like cash, ornaments, both gold and silver, sarees etc. F. I. R. was lodged by P. W. 1 in the early hours of 20. 6. 1987. ( 3 ) THE plea of the appellants was complete denial. ( 4 ) THE conviction of the appellants rested on the evidence of P. Ws. 1 to 3 (who were the inmates of the house) and P. W. 7, a post occurrence witness who had seen all the appellants except appellant Srikanta Mahalik and Puma Chandra Rana coming out from the house of P. W. 1. ( 5 ) LEARNED counsel for the appellant strenuously argued that no importance should be attached to the identification by the witnesses in the test identification parade in view of the fact that the culprits were identified by the Investigating Officer before the test identification parade was made. In support of this submission, the counsel relied on the evidence of P. W. 7. In support of this submission, the counsel relied on the evidence of P. W. 7. P. W. 7 in his cross-examination stated that after three to four days of the occurrence, he could know from the Officer-in-charge of the police station that some culprits had been caught. At that time they were inside the thana hazat and the Officer-in-charge of the police station identified the appellants to be the culprits. In view of such evidence of P. W. 7, his identification made in the test identification parade has lost all value. It is true that identification in the test identification parade is not substantive evidence. What is material is whether the identification of the concerned appellants in the court made by P. W. 7 can be accepted without any corroboration. P. W. 7 was examined in court after three years of the occurrence. There is nothing in his evidence that he had noticed any special features of any of the concerned appellants which enabled him to remember them so accurately. The said witness does not inspire any confidence and as such, his evidence is of no assistance to the prosecution. The criticize made against P. W. 7 is however not available in respect of P. Ws. 1 to 3 whose evidence would be shortly discussed. ( 6 ) APPELLANT Bauli alias Upendra Mahalik was arrested on 23. 6. 1987 whereas appellants Ramakanta Das, Babaji Behera, Janardan alias Danardan Samal and Dibaka Mahalik were arrested on 28. 6. 1987 as stated by the Investigating Officer P. W. 22. Appellant Sauli alias Upendra Mahalik was put to test identification parade on 27. 6. 1987 whereas the aforesaid four appellants were put to test identification parade on 3. 7. 1987. It is clear that all of them were put to test identification parade three to four days after their arrest in which the inmates of the house P. Ws. 1 to 3 identified them to be some of the culprits who have participated in the commission of dacoity. As the test identification parade was held with almost promptitude identification made by the witnesses should be given due weight. P. W. 1 in his evidence has clearly narrated as to how the culprits moved from one room to another in his house and ransacked the property. There is nothing in his evidence to show as to why he would falsely implicate the concerned appellants. P. W. 1 in his evidence has clearly narrated as to how the culprits moved from one room to another in his house and ransacked the property. There is nothing in his evidence to show as to why he would falsely implicate the concerned appellants. With regard to P. Ws. 2 and 3, it was urged on behalf of the appellants that since they have not stated about any specific role played by any of the appellants, their evidence should not be accepted. I do not find any merit in this submission. There is no law that to hold one guilty of having committed the offence of dacoity, evidence regarding specific role played by each dacoit is necessary. Both P. Ws. 2 and 3 have stated that in the night of occurrence there was electric light burning and with it, they could identify the appellants who had participated in the offence. There is absolutely no ground of any false implication by any of the witnesses. The fact that dacoity was committed in the house of P. W. 1 on the relevant date is not disputed. The identification of P. Ws. 1 to 3 of the aforesaid five appellants in Court finds corroboration horn the identification made by them in the test identification parade. For the reasons mentioned above, conviction of the aforesaid five appellants under section 395 of I. P. C. is well founded. ( 7 ) APPELLANT Srikanta Mahalik (Criminal Appeal No. 58/91) stands convicted under Section 411 of I. P. C. Learned counsel for the appellant submits that there is no evidence that he received the property in question knowing it to be stolen for which the said appellant could be held guilty under section 411 of I. P. C. The Investigating Officer P. W. 22 stated that he arrested this appellant on 23. 6. 1987 and while in police custody, he led him to his house and gave recovery of M. O. XIII (gold necklace) which was seized as per Ext 18/2. P. W. 3 has identified the said gold necklace as belonging to her. 6. 1987 and while in police custody, he led him to his house and gave recovery of M. O. XIII (gold necklace) which was seized as per Ext 18/2. P. W. 3 has identified the said gold necklace as belonging to her. At the time of occurrence, she was a post-graduate student and she being-the user of the said gold necklace was competent to speak about it and must have marked inherent features in it which prompted her to say that it belonged to her There is nothing in her evidence to disbelieve the said statement. It may be noted here that in the F. I. R. gold necklace was one of the items mentioned as having been looted. It was urged by Shri Acharya that appellant was owner of a petrol pump and was capable of purchasing the gold necklace like M. O. XIII. In his statement recorded under Section 313, Cr. P. C. the appellant has not clearly stated that M. O. XIII belonged to him or to his wife. In the face of evidence of P. W. 30, I have no hesitation to hold that the said gold necklace M. O. XIII belonged to her and was looted in course of dacoity which was ultimately found with this appellant. In absence of any satisfactory explanation with regard to possession he has rightly been found guilty under section 411 of I. P. C. for having received the stolen property. ( 8 ) APPELLANT Puma Chandra Rana (Criminal Appeal No. 70191) has been convicted under Section 411 of I. P. C. Silver Ornaments M. O. XVII to XXIII were recovered from the shop of this appellant. P. W. 1 has identified them to be his, which were looted in course of the dacoity. Appellant does not claim those articles to be of his. In view of the evidence of P. W. 22 the Investigating Officer and the seizure witnesses regarding recovery of those articles from the shop of appellant, I have no doubt in my mind to hold that those articles were stolen properties which belonged to P. W. 1. In absence of any explanation by the appellant with regard to his possession of those articles, he has rightly been found guilty under section 411 of I. P. C. ( 9 ) IN the result, there is no merit in any of the appeals. In absence of any explanation by the appellant with regard to his possession of those articles, he has rightly been found guilty under section 411 of I. P. C. ( 9 ) IN the result, there is no merit in any of the appeals. Lastly, it was contended that the sentence imposed on the appellants are severe and the same should be reduced. Having regard to the facts and circumstances of the case, while maintaining the conviction of the appellants Ramakanta Das, Babaji Behera, Bauli alias Upendra. Mahalik, Janardan alias Danardan Samal and Dibakar Mahalikunder section 395 of I. P. C. I direct that in modification of the sentence awarded by the Additional Sessions Judge, each of them shall undergo rigorous imprisonment for five years. Similarly, while maintaining the conviction of appellants Srikanta Mahalik and Puma Chandra Rana under section 411 of I. P. C. order that each of them shall undergo rigorous imprisonment for a period of one year instead of-two years as directed by the Additional Sessions Judge. ( 10 ) WITH the modification of sentence as aforesaid, the appeals are dismissed. Appeals dismissed. .