Full Judgment
B.K. Behera, J.
1. The respondent in the Government Appeal and the petitioner in the Jail Criminal Revision stood charged under section 395 of the Indian penal Code (for short, the 'Code') for having committed dacoity in the house of Prafulla Chandra Mohanty (P. W. 1) during the night of April 17.18.1980, in the course of which they were alleged to have caused hurt to P. Ws 2, 9 and 15 and removed cash, ornaments and other articles. To bring home the charge, the prosecution had examined sixteen witnesses at the trial. On a consideration of the evidence, the learned trial judge accepted the case of the prosecution in respect of the revision-petitioner Trinath Swain, convicted him under section 395 of the Code and sentenced him to undergo rigorous imprisonment for a period of five years while acquitting the respondent in the Government Appeal, namely, Arjun Mallik, owing to paucity of evidence against him.
2. The State is in appeal against the order of acquittal in respect of Arjun Mallik and the petitioner Trinath Swain has challenged the order of conviction recorded by the trial Court and maintained by the appellate Court. These matters have been taken up together and will be governed by the common judgment.
3. I have heard the learned counsel for the parties. There is complete absence of evidence against Arjun Mallik who figures as the respondent in the Government Appeal. The only witness who was supposed to identify him was P. W. 1 and he had not identified him in the Court. The order of acquittal in respect of this accused was fully justified and the Government Appeal must fail.
4. As regards the order of conviction against the petitioner Trinath Swain in the Jail Criminal Revision, it may be stated at the outset that the charge framed against him under section 395 of the Code was illegal and defective in that it had been stated in the charge that he and Arjun Mallik had committed dacoity in the house of P. W. 1. It had not been stated therein that they had committed dacoity with others. Two persons could not commit a dacoity in the eye of law and consequently, the order of conviction of the petitioner Trinath Swain under section 395 of the Code for which he stood illegally charged was misconceived. He could be convicted of robbery if the evidence warranted a conviction against him.
5. P. Ws. 6 and 11, two inmates of the house, had identified the petitioner Trinath Swain as one of the culprits. The first information report had been lodged by no other person than P. W. 1 in whose house the offence had been committed and of which P. Ws. 6 and 11 were the occupants besides other. In the normal and natural course of events P. Ws. 6 and 11 would have informed P. W. 1 before the latter went to. lodge the report that they had identified one of the culprits and that they had marked his features in which case, this should have found a place in the first information report. Such a fact was conspicuous by its absence therein No doubt, the first information report, strictly speaking, cannot be treated as substantive evidence and it can only corroborate and contradict its maker. But omissions of important facts in the first information report affecting the probabilities of the prosecution case are relevant under section 11 of the Evidence Act. See (AIR 1975 S. C. 1026 (Ram Kumar Panda v. The State of Madhya Pradesh).
6. It had been stated in the first information report that the culprits were aged between 25 and 30 years. The learned trial Judge had estimated the age of the petitioner Trinath to be 35 while recording his statement. Arjun Mallik, the respondent in the Government Appeal, was aged about 42 years as estimated by the trial Court. Thus the age of the culprit given in the first information report did not quite tally with the ages recorded by the trial Court. Besides giving the ages of the culprits, no other descriptions had been given in the first information report. There was no evidence that immediately after the occurrence, P. Ws. 6 and 11 had given out that they had been able to identify one culprit and that they had marked his features.
7. P. W. 6 had claimed to have identified the petitioner Trinath because he had kept him under awe and asked him to keep sitting. This witness had not stated in the course of investigation that this was the reason as to why, he was able to identify the petitioner. On the facts of the case and in the context, this could not be characterised as an inconsequential omission and this would amount to a contradiction within the Explanation to section 162. of the Code of Criminal Procedure. P. W. 11 had claimed to have identified the petitioner Trinath by means of the light of the torchlights being focussed by the culprits. It was highly unlikely that the culprits would be focusing their torchlights at themselves to facilitate their identification by the inmates of the house In the statement made under section 161 of the Code of Criminal Procedure, P. W. 11 had not stated that the culprits had been focussing torchlights for which be had been able to identify one of them. Unfortunate as it might seem, the trail and appellate Courts did not take due note of these highly suspicious features in the evidence of P. Ws. 6 and 11 and unjustifiable accepted their evidence with regard to the identification of the petitioner.
8. The evidence of P. Ws. 6 and 11 with regard to the identification of the petitioner Trinath could not have been accepted and the learned Standing Counsel has very fairly submitted chat it would be just and reasonable to set at naught the order of conviction recorded against the petitioner. The concession, in my view, is well-founded and no order of conviction could be recorded against the petitioner Trinath in such state of highly unsatisfactory evidence.
9. The petitioner Trinath had been in custody throughout the investigation and trial and also on his conviction and has undergone the sentence But even in a case of spent-up sentence, the stamp of conviction is to be obliterated if the evidence on record does not warrant a conviction.
10. The Government Appeal fails and is dismissed. The Jail Criminal Revision is allowed. The order of conviction and the sentence passed against the petitioner Trinath Swain are set aside.