Judgment:
P.K. Patra, J.
1. This is an appeal under section 378 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) preferred by the State challenging the judgment dated 5-7-1993 passed by Shri N. Nayak, Chief Judicial Magistrate-Cum-Assistant Sessions Judge, Jeypore in Sessions Case No. 2/359 of 1993/92 acquitting the respondents (hereinafter referred to as 'the accused persons') of the charge under section 395 of the Indian Penal Code (for short 'I.P.C.').
2. The informant (p. w. 1) is a resident of Pandukumalliguda under Koraput Town Police Station in the district of Koraput and the accused persons are the residents of nearby villages under the said police station. It is alleged that in the night of 11-8-1992 when the informant and his family members had slept inside their house, ten persons knocked at the door of the informant calling his father by name and when the informant opened the door, they entered inside their house and took away clothes, gold ornaments, cash, etc. at the point of knives and daggers. The identity of the dacoits was not known, but the informant suspected that some persons who had committed dacoity in the house of his father some years ago might have formed the said gang to commit dacoity in the house of the informant. It is further alleged that the said gang committed dacoity in the same night in the houses of Balabhadra Naik (p.w. 2), Tunu Naik (p. w. 4), Mukunda Naik (p. w. 5), Bhima Pujari (p. w. 6) and Taila Mali of the same village after causing injuries to the inmates of the houses. On the next morning, P. w. 1 lodged F.I.R before the O.I.C. of Koraput Town P. S. (p.w. 18) who registered the case and took up investigation. During investigation p. w. 18 examined witnesses, sent the injured persons for medical examination, visited the spot, seized one Saree and other articles from the house of the informant. He also seized one tin box and eight other articles from the house of Mukunda Naik (p.w. 5); one trunk and three other articles from the house of Balabhadra Naik (p.w. 2); one saree and four otherarticles from the village road and arrested the accused persons. It is also alleged that accused Kamulu Suna while in police custody gave recovery of one old Dhoti and one umbrella from his house on which the name of Mukunda bad been written; accused Hari Khilla while in police custody gave recovery of one blue colour saree, one tin box containing some books from his house; accused Jhitru Paraja while in police custody gave recovery of one small Tangi and an old Chadar from his house; and accused Sadana Gouda while in police custody gave recovery of one old terricotton saree and one old Dhoti from his house. The articles seized by the investigating officer from the houses of the accused persons were put to T. I. parade and were identified by the witnesses. After completion of investigation p. w. 18 submitted chargesheet under section 395, I.P.C against the five accused persons showing another, namely, Maghanad Bag as an absconder. The five accused persons stood their trial and were acquitted of the charge on benefit of doubt.
The defence plea is one of complete denial and false implication.
3. Learned Addl. Standing Counsel for the State as also Mr. D. Panda for accused No. 1, Mr. Manoj Misra for accused No. 2 and Miss Deepali Mohapatra for accused No. 3, 4 and 5 were heard at length. While learned Addl. Standing Counsel assailed the judgment of the trial court on the ground that there was improper and incorrect appreciation of evidence on record, inasmuch as reliance should have been placed on the statements of p. ws. 1 to 13 and the T. I. parade conducted in respect of some of the stolen articles, the learned counsel for the accused persons supported the impugned judgment, contending that there is no ground for interference.
4. In order to bring home the charge against the accused persons, prosecution has examined eighteen witnesses, of whom p. w. 1 is the informant, p. ws. 2 to 13 are the other victims of the occurrence, p. ws. 14 and 15 are witnesses to seizure, p. w. 16 is the doctor who examined the injured persons (p. ws. 3, 12 and 13), p. w. 17 is the Judicial Magistrate who conducted the T. I. parade and p. w. 18 is the investigating officer.
The defence has examined no witness.
5. The medical Officer (p. w. 16) examined three injured persons; p. ws. 13, 12 and 3, and submitted the injury reports, Exts. 10, 11 and 12 respectively. These three injured persons have not named the assailants. P. w. 3 has stated that some culprits assaulted him on his forehead by means of lathi. P. w. 12 has stated that two culprits assaulted him by means of lathi on his back, P. w. 13 has stated that someone assaulted him on his back by means of lathi. Hence, there is no evidence on record to show that any of the accused persons caused injuries to p. ws 3, 12 and 13 while committing dacoity in their houses.
6. P. w, 1 (informant) has stated that the culprits shouted and called his father by name, broke open the door and entered inside their house being armed with axe, knife and lathi and he could recognise the culprits in the Kumpi light burning inside the room and they were the accused persons in this case. But in the F. I. R. (Ext. 1) he has not named the accused persons as the culprits. In his statement in cross-examination p. w. 1 has stated that while accused Kamulu guarded him showing a Tangi, accused Sadana took away ornaments of his wife and sarees. He recognised these two accused persons since they had been implicated in a theft case which was disposed of six to seven years back and after the acquittal in that case, the said accused persons had threatened him to finish him in front of the court at Kotaput. But he has admitted that they never came to assault him.
P. w. 2, father of p. w. 1, has stated that when the accused persons went shouting near him, he concealed his presence inside the cowshed. In his statement in cross-examination p. w. 2 has stated that ten to twelve culprits went to him and he could not recognise any of them and that it was dark.
P. w. 3 has not named the assailants, but has stated that he could recognise only accused Sadan from his back.
P. w. 4 has stated that accused Sadan entered inside his room breaking open the door by means of a Valla, but was holding a knife. He has not named the other accused persons.
P. w. 5 has stated that while he was sleeping on the verandah of his house, accused persons Jhitru Paraja, Sania Hontal and Sadan Gouda entered inside his house after breaking open the door. He has not stated about other accused persons.
P. w. 6 has stated that the accused persons entered inside his house by breaking open the door being armed with lathis and knives and out of fear he concealed his presence near a fence. In his statement in cross-examination p. w. 6 has stated that nine culprits had been to commit the dacoity and he could recognise the accused persons in the light of a torch flashed by the culprits themselves, but he has admitted that he did not know the accused persons prior to the occurrence.
P. w. 7 has stated that the accused persons broke open the door of her house and took away cash, gold ornaments, radio, cloth and other articles. P. w. 7 has stated that she had prior acquaintance with the accused persons, but her husband p. w. 6 has stated that he had no prior acquaintance with the accused persons. P. w. 7 has further stated that the accused persons put out the burning lamp inside the room and focussed torch-light while her husband p. w. 6 fled away from the house.
P. w. 8 has stated that the culprits closed the door of his house from outside and went to other houses and after returning therefrom, they broke open the door of his house and entered inside it and removed gold-ornaments, one umbrella and cash. According to p. w. 8, the culprits were armed with knife, but he has not stated that they were armed with axe. In his statement in cross-examination, p. w. 8 has stated that he had not seen the accused persons before hand.
P. w. 9 has stated that the culprits broke open the door of her house and were armed with knives and spears. According to him, the culprits pointed a spear at her husband and took away gold ornaments, cash and other articles. In her statement in cross-examination she has stated that the culprits bolted the door from outside.
P. w. 10 has stated that accused Sania Hontal pointe da knife at her and she gave him her gold nose-ring and the culpritstook away sarees, one Chadar and one umbrella. In her statement in cross-examination p. w. 10 has stated that she saw accused Sania Hontal only, but did not see any other accused persons during that time.
P. w. 11 has stated that the accused persons broke open the door of her house and out of fear she handed over her gold nose-ring. Besides gold ornaments, the accused persons also took away clothes and other articles from her house. In her statement in cross-examination she stated that she could not identify the two accused persons who had entered inside her house.
P. w. 12 has stated that two culprits assaulted him on his back and by means of lathi and he has not named the assailants and has not stated regarding the presence of the other accused persons. So also p. w. 13 has stated that someone assaulted him with lathi, but has not named the culprit who assaulted him and has not stated regarding presence of the other accused persons.
7. Thus the statements of p. ws. 1 to 13, who are related to each other and are inhabitants of the same locality, are not consistent with each other and with the F. I. R. and are bristling with infirmities and inconsistencies. Had they been able to identify any of the culprits, the same could have been mentioned in the F. I. R. (Ext. 1). Though it is stated by the prosecution witnesses that the doors of their houses were broken, not a single broken door-leaf has been seized by the investigating officer. All the prosecution witnesses who are interested for the prosecution and have deposed to falsely rope in the accused persons; are not truthful witnesses and hence reliance cannot be placed on them. The learned Assistant Sessions Judge has rightly not placed reliance on them and his finding cannot be interfered with.
8. Regarding T. I. parade conducted in respect of some of the stolen articles, viz., M. Os. I to IV, the statements of p. ws. 17 and 18 are relevant. P. w. 17 has stated that the saree (M. O. I), Chadar (M. O. II), Dhoti (M. O. III) and umbrella (M. O. IV) were correctly identified by witnesses in the T. I. parade conducted by him. The investigating officer (p. w. 18) has stated that he seized M, Os. I to IV along with some otherarticles, recovery of which was given by accused persons Kamulu Suna, Jhitru Paraja. Hari Kamila and Sadan while in police custody, under the seizure-lists Exts. 6, 7, 8 and 9 respectively. He has also seized one saree, one napkin, one abnian and one yoke from the village lane under seizure-list, Ext. 14. He has seized some articles from the houses of some prosecution witnesses under the seizure-lists, Exts. 2, 3, 4, 5, 6, 7, 8 and 9. Had the accused persons committed dacoity in the house of the prosecution witnesses as alleged, they could not have left so many articles and removed only a few articles from their houses. There was no recovery of any of the gold ornaments alleged to have been stolen during commission of dacoity. It is also stated by p. w. 17 that the investigating officer (p. w. 18) had retained the articles with him and on the date fixed for T. I. parade he produced the same before him for conducting the T. I. parade along with similar articles collected by him. So the chances of the identifying witnesses seeing the articles before they were placed in the T. I. parade cannot be ruled out. In the above circumstances, identification by the prosecution witnesses, in the T. I. parade, of some of the articles alleged to have been stolen during commission of dacoity cannot be considered to be an incriminating piece of evidence against the accused persons for determination of their culpability. Therefore, the learned Assistant Sessions Judge has rightly refused to act upon the T. I. parade report and hence interference is not called for.
9. In the present case, though the F. I. R. reveals that the culprits were unknown, none of the accused persons implicated in this case was put to T. I. parade and no broken door-leaf has been seized by investigating officer.
For all the reasons stated above, the irresistible conclusion will be that prosecution has miserably failed to bring home the charge against any of the accused persons by leading cogent, convincing, credible, consistent and unimpeachable evidence and hence the accused persons cannot be held guilty of the charge levelled against them. The judgment of acquittal is legally sustainable and cannot be interferred with and is boundto be affirmed. There is no merit in the Government Appeal which is liable to be dismissed.
10. In the result, the Government Appeal is dismissed. The impugned judgment dated 5-7-1993 in Sessions Case No. 2/359 of 1993/92 passed by the Chief Judicial Magistrate-cum-Assistant Sessions Judge, Jeypore, acquitting accused persons of the charge under section 395, I. P. C., is affirmed.
11. Appeal dismissed.