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2003 DIGILAW 611 (ORI)

Bhaskar Mahalik @ Mallick v. State of Orissa

2003-10-15

A.S.NAIDU

body2003
JUDGMENT A. S. NAIDU, J. — The appellants, who were accused in S.T. No.26/109 of 1984 have challenged their order of conviction under Sections 395 and 457 I.P.C. passed by the Asst. Sessions Judge, Bhadrak in the aforesaid case and the sentence to undergo imprisonment for six years under Section 395 I.P.C. and to under¬go R.I. for three years under Section 457 of I.P.C. 2. Bereft of all unnecessary details, the short facts as revealed from the F.I.R. are that on 11.10.1983 at about mid-night, the appellants and five others forcibly broke open the front door of the house of the informant p.w.1. They assaulted and confined p.w.1 and other inmates of the house at one place and removed all the valuables like gold, silver ornaments, cash, etc. On the basis of the F.I.R. lodged by p.w.1, the criminal action was set in motion and on 12.10.83 the appellants and two others were apprehended in village Banasta. On search some in¬criminating materials were also seized. Out of the said eight miscreants, the present three appellants faced trial in the aforesaid Sessions Trial No.26/109 of 1984, being Bhaskar Mahalik @ Mallick, appellant in Crl.Appeal No.26 of 1985 and Duja @ Gangadhar Gahan and Bata @ Bhagabat Nayak, appellants in Crl.Appeal No.79 of 1985. 3. The plea of the appellants was of complete denial. 4. To substantiate its case, prosecution examined as many as 18 witnesses and exhibited some documents. The ornaments and other valuables, which were seized from the possession of the appellants were also marked as Material Objects. It is to be mention here that in the T.I. parade conducted by the prosecu¬tion, the three appellants were identified. Out of 18 witnesses, p.ws. 1 and 3 to 6 were the inmates of the house, at the time of commission of dacoity, p.ws.7, 8 and 12 were the villagers and were the post-occurrence witnesses. P.ws. 7 and 9 were the per¬sons before whom, Appellants Mahalik and Gahan made extra judi¬cial confession, p.w.10 was a seizure witness in whose presence the stolen articles were seized from the possession of appellants Bhaskar and Gahan, p.ws. 13 and 14 were the witnesses to seizure of the stolen articles who also identified the same, p.w.11 was the Medical Officer, who had examined and treated the injured p.w.1 and p.w.17 was the Magistrate who had conducted the T.I. Parade with respect to the persons and articles. 13 and 14 were the witnesses to seizure of the stolen articles who also identified the same, p.w.11 was the Medical Officer, who had examined and treated the injured p.w.1 and p.w.17 was the Magistrate who had conducted the T.I. Parade with respect to the persons and articles. Other three witnesses being p.ws. 15, 16 and 18 were the Investigating Officers. 5. The trial Court after discussing the evidence both oral and documentary in exten so came to the categorical finding that the prosecution had amply proved its case beyond a shadow of doubt against the accused persons under Sections 457 and 395 of I.P.C. However, it held that prosecution failed to prove its case under Section 9B (1)(b) of the Indian Explosives Act and acquit¬ted the accused of the said charge. The order of conviction as well as the sentence as stated earlier is impugned in these two Criminal Appeals. 6. On perusal of the records, it appears that all the three accused persons were arrested in the year 1983 and they were in custody all through. They have already served the sen¬tence awarded. Thus, according to learned counsel for the State, both the Cri.Appeals have become infructuous. But then, being the final Court of facts, I feel it just and proper to see through the evidence both oral and documentary so as to satisfy myself that the Court below has not committed any error or illegality. As it appears from the F.I.R. and other materials, eight mis¬creants forcibly entered into the house of the informant, p.w.1 in the mid-night of 11.10.83. They not only confined p.w.1 and other inmates of his house but also brutally assaulted p.w.1. They ransacked the entire house and removed all the valuable articles like gold and silver ornaments, cash, etc. and ran away with the objects. P.ws.3 to 6, who were the inmates of the house have described the entire occurrence, P.ws. 2,7 and 8 who were the post-occurrence witnesses have also supported the statements of the said inmates. The evidence of p.ws. 7 and 9 clearly re¬veals that the accused persons had confessed before them regard¬ing commission of the aforesaid offences. P.w.17, the Magistrate, who conducted the T.I. Parade has categorically disposed that the accused persons were identified by the inmates of the house of p.w.1. The evidence of p.ws. 7 and 9 clearly re¬veals that the accused persons had confessed before them regard¬ing commission of the aforesaid offences. P.w.17, the Magistrate, who conducted the T.I. Parade has categorically disposed that the accused persons were identified by the inmates of the house of p.w.1. It is also found from the report prepared by the Magis¬trate that the ornaments and other valuable articles, which were removed from the house of p.w.1 were identified in the T.I. Parade. P.ws. 15, 16 and 18, the Investigating Officers have proved the other relevant materials. The evidence of p.w.11, the Doctor clearly reveals that p.w.1, the informant was brutally assaulted and the certificate issued by the Doctor also corrobo¬rates the evidence. 7. After going through the evidence, both oral and docu¬mentary, I find that no reason to differ from the findings ar¬rived at by the Court below. Perusal of the judgment also reveals that the Court below put right questions and has arrived at right conclusion. The order of conviction and sentence does not suffer from any infirmity. Last but not the least, the accused persons have already served the sentence of rigorous imprisonment. I am, therefore, not inclined to interfere with the order of sentence and I have no hesitation to dismiss both the Criminal Appeals. 8. The Criminal Appeals are dismissed. Crl. Appeals dismissed.