Brajabandhu Panda and ors. Vs. State of Orissa - Court Judgment

Excerpt:
criminal - benefit of doubts - sections 148, 325, 149, 395 and 397 of indian penal code, 1860 (ipc) - appellants armed with deadly weapons ransacked house of supporters of informant and took away various article from house - appellants assaulted and caused injuries to some persons also - fir lodged by informant - charge sheet submitted against appellants under sections 148, 325, 149, 395 and 397 of ipc - trial court convicted appellants and acquitted other co-accused persons - hence, present appeal - held, seizure of photographs by witness on day following alleged occurrence has been made after long lapse of time and will be of no help to prosecution since such witness has stated to have taken photographs at instance of informant and not at instance of police - seizure of articles cannot be considered to be incriminating materials or circumstances against any of appellants - statements of witnesses has not been corroborated by each other - there is also no recovery of any of articles allegedly stolen in commission of dacoity - there is no cogent, convincing, consistent, credible and unimpeachable evidence on record in support of prosecution - impugned order and judgment of trial court is set aside - appeal allowed - state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - 1) gathered there being armed with deadly weapons like lathi, kati, valla, etc. 1,50000/- which had been kept in his pant pocket and other articles like bicycle, wrist watch, radio,etc. 7. there is also no recovery of any of the articles allegedly stolen in commission of dacoity and therefore it will not be safe to place reliance on the statement of p. 18 has stated regarding entry of the accused persons inside the house of gangadhar panda and removal of cycle, radio from his house and motor-cycle of rajkishore panda and regarding ransacking the house of chakradhar panda, gangadhar panda and joginath panda, but she has stated that since the local police did not record her statement, she complained to the higher police authorities after which her statement was recorded by the circle inspector of police and she has not been corroborated by any other witness.p.k. patra, j.1. the appellants have challenged the judgment dated 5.12.1994 passed by shri b.n.jena, assistant sessions judge, cuttack in s.t.nos. 319 of 1992 and 346 of 1992 convicting them under sections 148, 325/149 and 395/397 of the indian penal code (for short 'ipc) and sentencing them to undergo rigorous imprisonment for three years, five years and ten years respectively with direction that the sentences would run concurrently.2. prosecution case, briefly stated, runs as follows : the informant (p.w. 1.) the appellants and the other co-accused persons who have since been acquitted, are co-villagers being residents of village karadapali under baideswar police station in the district of cuttack. since there was rivalry between two groups of villagers, police had been deployed to-maintain law and order in the village and the sub-collector-cum- subdi visional magistrate, banki had convened a meeting of the villagers on 27.12.1990 at 4 p.m. at baideswar police station for the purpose of amicable settlement of the dispute between the rival groups. when the villagers belonging to the faction of the informant (p.w. i) were proceeding to baideswar, appellant no.l and one lokanath panda shouted at them and the wife of p.w.i called the supporters of p.w. 1 and fiftyeight persons named in the fir (ext. 1) gathered there being armed with deadly weapons like lathi, kati, valla, etc. they ransacked the house of the supporters of the informant and took away one portable t.v., one bajaj scooter, one bicycle, one wrist watch, some household articles, gold ornaments and cash. it is also alleged that they assaulted and caused injuries to p.ws.4, 5, 6 and 7. on the following morning at 8 a.m. the informant (p.w.i) lodged a written report (ext.l) naming fifty eight persons as the culprits before the o.i.c. of the police station (p.w.28) who was camping in that village. p.w.28 treated the same as fir and took up investigation and after returning to the police station at 7 p.m. registered the case. during investigation, he examined witnesses, sent the injured persons for medical examination and searched for the articles stolen in commission of daco.ity.but recovered nothing, though he seized some half-burt currency notes. he examined witnesses, arrested the accused persons and sent them to court in custody. on 26.2.1991 as per the order of the superintendent of police, he handed over the charge of investigation to the circle inspector of police, banki (p.w.29) who re-examined some of the witnesses and seized two cash-memos and some other articles. on his transfer from the police station, p.w.29 handed over charge of investigation to his successor (p.w.27), who seized some photographs of the damaged house at the spot which had been taken on the next day of the occurrence. after completion of investigation he submitted chargesheet under section 395 read with section 397, ipc against the fifty-eight persons named in the fir. the case against four accused persons was split up and the remaining fifty-four accused persons were committed to the court of session and the case was numbered as s.t. 319/92. subsequently those four accused persons were committed to the court of session and the case against them was registered as s.t. 346/92 and both the cases were tried together. the learned assistant sessions judge convicted the sixteen appellants against whom he found incriminating materials and acquitted the other forty-two accused persons.the plea of defence is one of denial and false implication due to rivalry between two groups in the village and accused sadananda das (appellant no. 4) took the plea of alibi.3. mr. k. rath, advocate on behalf of mr. d.p.dhal, learned counsel for the appellants, and mr. s. pradhan, learned addl. standing counsel for the state were heard at length. while mr. rath contended that the impugned judgment of conviction cannot be sustained in law and is liable to be set aside in view of the incorrect appreciation of evidence of record, learned addl. standing counsel supported the impugned judgment.4. in order to bring home the charge against the accused persons, prosecution has examined twenty-nine p.ws. of whom p.w. 1 is the informant and p.ws. 4,5, 6, 7 are the injured persons who have been medically examined. p.ws. 2, 3, 8,9, 10, 11, 12, 13, 14, 16, 17, 18, 19 and 20 are the co-villagers of the parties who have been examined as eye-witnesses to the occurrence. p.w.15 was the o.i.c. of baideswar p.s. who was entrusted with part of investigation of the case relating to arrest of the accused persons and seizure of some articles. p.ws. 21, 22, 23, and 24 are witnesses to seizure. p.w. 25 is the medical officer who medically examined the injured persons. p.w.26 is the photographer who took eighteen photographs of the damaged houses at the spot on the day following the occurrence. p.ws. 27, 28 and 29 are the three investigation officers.the defence has examined two d.ws. in support of the plea of alibi of appellant no'.4 who has examined himself as d.w.i and his colleague as d.w.2 who has stated that both of them were working as enumeraters for the census being appointed by the b.d.o., banki and that on the date of the occurrence, i.e., 27.12.1990, they were taking training from 10.30 a.m. to 5 p.m. imparted by the b.d.o., banki at berhampura high school.5. the trial court held that there was convincing and cogent evidence regarding participation of the sixteen appellants in the commission of crime and accordingly held them guilty and convicted them. he repelled the plea of alibi taken by appellant no. 4 observing that even if it was believed that he was undergoing census training at berhampura high school, which is at a distance of about 8 k.ms., he could have returned to the village by the time of the occurrence in view of the meeting convened by the sub-collector-cwm-subdivisional magistrate, banki for amicable settlement of the dispute between two factions of villagers. the trial court found no material against the remaining forty-two accused persons and acquitted them.6. the informant (p.w.i) has stated that at the instance of the sub-collector, banki, the o.i.c. of baideswar p. s. had called the villagers of karadapali for settlement of their dispute and when he and lokanath panda were proceeding to the police station, accused brajabandhu panda came out of his house and told lokanath panda that the fate of the villagers would be decided that day and they need not go to the police station for any settlement and there was exchange of words between accused brajabandhu panda and lokanath panda. the wife of accused brajabandhu panda told the accused not to have any talk, but to do the needful, for which p.w. 1 and lokanath panda proceeded ahead, but hearing hulla they returned back and found the accused persons in the courtyard of accused kshetrabasi panda and they were discussing to attack the villagers. he has further stated that at the instigation of accused kshetrabasi panda all the accused persons went in a body to the cycle repairing shop of ajay kumar panda (p.w.3) and looted the shop. being afraid of the accused persons, p.w.i has stated to have left the place for his house and he has further stated that he witnessed the further overt acts of the accused persons sitting in the courtyard of his house. according to him, after looting the shop of p.w.3, the accused persons went to the house of anandach. das (p.w.9) broke the door leaves of hishouse and removed, his household articles. thereafter the accused persons ransacked, the house of bhikari das (not examined) and krupasindhu das (not examined) and took away the movable properties. thereafter they pelted stones at the house of rajkishore panda (p.w.2), damaged his motor cycle which had been kept in the house of gangadhar panda (not examined) and took away the same, after ransacking the house of gangadhar panda, then theyransacked the house of chakradhar panda (not examined), broke the door leaves of his house and removed the same. then they went to the house-cum-control shop of bhagirathi panda (p.w.20) and took away the control commodities and man-handled his mother. then they assaulted. artabandhu panda'(p.w.l 1) whose house was ransacked and articles were removed. then they ransacked the house of krushna chandra panda. ekadasi panda and many others/further p.w. 1 has stated that when the accused persons approached his house, he bolted the door from inside and concealed his presence, but they broke open the door and took away one portable. t.v., seven wooden planks, one stool, one brass handa, one brass gara, his household articles, agricultural implements and cash of rs. 3,300.00 kept in the t.v.room as also a gold necklace belonging to his daughter. according to p.w. 1, the occurrence continued from 4. p.m. to 6.30 p.m. and he is silent regarding assault on the females and hurling of abuses by the accused persons which has been stated in the fir (ext.1) which was presented before the o.i.c. of baideswar p.s. (p.w.2) on the next morning when he visited the village. p.w.i has stated that he could not lodge the fir on the same day since it was not possible on his part to proceed to the police station being terrorised by the accused persons. in his statement in cross-examination p.w.i has stated that there was no enmity or ill-feeling between his group and the accused persons prior to the incident, which is not in consonance with the prosecution story. he has stated to have concealed his presence on the roof of his house for more than one hour and not to have met any of the accused persons after getting down from the roof till reporting of the matter to police. this statement of p.w. 1 excludes the possibility of his witnessing the alleged ransacking of different houses in the village by the accused persons. but he has added that in the night at about 10 p.m he visited the house of the persons whose houses had been ransacked and ascertained the facts from them and thereafter dictated the fir (ext. 1) which was scribed by jagannath panda. p.w.2 has stated to have heard'about looting of properties from his house from his mother after returning from baraput. he has also '. stated to have seen the accused persons taking away his. bajaj m-80 scooter,:helmet, a jerrican containing five litres of petrol, dresses and cash of rs. 1,50000/- which had been kept in his pant pocket and other articles like bicycle, wrist watch, radio,etc. in his statement in cross- examination p.w.2 has stated that he submitted a written report signed by some villagers at 8.30 a.m. to police, but the same was refused and he could not say what happened to that report. he is serving as a secretary of a cooperative society and he could not have remained silent when police refused to accept his written report.p.w.3 as stated that his cycle repairing shop is in front of the house of accused kshetrabasi panda and according to him at the instance of accused kshetrabasi panda five to six accused persons whom he has not namdd entered inside his shop and took away some articles. he has not stated anything regarding assault by the accused persons on any person. . p.w. 4 has stated to have returned to the village at 4.30 p.m. from banki and to have seen accused sadananda das catching, hold of jayanta das and accused kshetrabasi panda instigating other accused persons to loot the house of jayanta das. then five accused persons removed the grocery articles from the shop of jayanta das. further he has stated that while he was standing with his bicycle in front of his house, accused netrananda panda snatched away the same from him and when accused kshetrabasi instigated the other accused persons to kill him, he entered inside his house out of fear, but accused kshetrabasi panda caught hold of his lock of hairs and inflicted a lathi blow on his left shoulder and accused bikram hati dealt a blow by means of handle of a farsa on his head as a result of which he fell down on the ground after which accused persons harihar panda. brajabandhu panda, maheswar panda, dhaneswar panda, narayan panda and sadananda das dealt lathi blows on his body and he sustained a fracture on his right leg and became unconscious. after regaining his sense he learnt that the accused persons had removed vhis two door planks, one quintal of rice and cash of rs. 66/- from his house. he has stated to have been medically examined by the medical officer and twice by the investigating officer. the medical officer (p.w. 25) has stated to have medically examined p.w.4 on 28.12.1990 as per the injury report ext. 16 and to have found the following four injuries on his person': .(1) lacerated injury 3' xl 7,' x 1' over the vault - simple in nature- caused by hard and blunt weapon.(2) swollen injury - 2' x 2' x 1' on left shoulder joint - simple in nature - caused by hard blunt weapon.(3) simple fracture on shaft of fibula, right side grievous in nature - caused by hard and blunt weapon; and(4) simple fracture on the head of second metacarpal, left hand - grievous in nature - caused by hard and blunt weapon.both the fractures are in reference to x-ray film nos. 417 and 428 dated 28.12.1990 of the subdivisional hospital, banki and all the injuries were within twelve hours from the time of examination.in his statement in cross-examination, p.w.25 has stated that he had medically examined p.w.4 prior to receipt of police requisition and he did not remember whether the injured had explained as to how he sustained injuries and he did not intimate police regarding the injuries sustained by p.w.4 and that all the injuries were possible by fall and that the injured was treated in hospital as an indoor patient and that he had given his opinion in respect of injury nos. (3) and (4) on the basis of the repot given to him by the s.d.m.o., banki and that he had not seen the x-ray plates and the report of the radiologist. thus the medical officer has not ruled out the possibility of p.w.4 sustaining the injuries due to fall. besides, p.w.17 - the sister of p.w.4 has stated that p.w.4 fled away from the house seeing the accused persons and has not stated about any assault on him.7. p.w.5 has stated that while she was sitting on the verandah of her house at about 4 p.m. the accused persons armed with deadly weapons went to her house and accused megha pradhan dealt a kati blow over her left ear resulting in bleeding injury and accused madan, bairagi and digambar pushed her from the verandah and she fell down. she has further stated that accused joga panda and baisnab behera snatched away a gold noli from her ear and accused madan panda snatched away her gold necklace and that she did not sustain any injury over her ear. she has not stated regarding ransacking the grocery shop of her son bhagirathi panda. p.w. 25 who medically examined p.w.5 on 28.12.1990 and submitted the report - ext. 15 found no external injury on her person. thus the statement of p.w.5 is not corroborated by the medical evidence on record and in view of her silence regarding looting away the grocery shop of her son, she cannot be believed to be a truthful witness and no reliance can be placed on her.8. p.w.6 has stated that she found the accused persons armed with deadly weapons and shouting on the village lane and out of fear she went inside her house, but accused nakula threw a stone which struck her left side shoulder resulting in bleeding injury. she has also stated regarding removal of plough, a yoke, one brass gara, one brass handa and wooden plank from her house. she has stated to have been medically examined in the hospital. p.w. 25 has stated to have medically examined p.w.6 on 28.12.1990 and to have submitted the injury report - ext. 14 but he found no external injury on her person. thus the statement of p.w.6 is not corroborated by medical evidence and none of the articles allegedly removed by the accused persons from her house has been recovered and hence p. w.6 cannot be said to be a truthful witness and no reliance can be placed on her.9. p. w.7 has stated that seeing the accused persons, she went inside her house and bolted the door from inside, but the accused persons effected their entry inside her house by lifting the door leaves. they damaged the skylights, etc. and removed three asbestos sheets, iron rods, five pair of door planks, eight bags of paddy, one cot, one dhinki and other household articles. she has also stated to have sustained bleeding injury on her head being assaulted by accused shyama panda by means of a lathi when she protested and that her wearing saree was stained with blood and that the same has been seized by police. p.w.25 has stated that on 28.12.1990 he examined p.w.7 and submitted the injury report ext. 16 and found one lacerated injury - 1' x 1/2' x 1/2' on occipital region of the head - caused by hard and blunt weapon - simple in nature and might have been caused within four hours from the time of examination. in his statement in cross-examination p.w.25 has stated that the injury on the occipital region of the head might have been self-inflicted or caused otherwise than assault. thus p.w.25 has not ruled out the possibility of the injury on p.w.7 to have been caused otherwise than assault or self-infliction and no other eye-witness has corroborated the statement of p.w.7. there is also no recovery of any of the articles allegedly stolen in commission of dacoity and therefore it will not be safe to place reliance on the statement of p.w.7. thus it is found that the four material witnesses to the occurrence, i.e. p.ws.4 5,6, and 7, who were allegedly injured by the accused persons during commission of the crime are not worthy of credit and reliance cannot be placed on them.10. p. w .8 has stated that accused deba snatched away a gold mala (necklace) from her neck and the accused persons removed one brass gara and a brass kunda and a gold necklace of her daughter-in-law. but in her statement in cross-examination she stated that she never disclosed the occurrence to any co-villager and for the first time disclosed the same before police, which is not consistent with the statement of the informant (p.w. 1). no other inmate of the house, or neighbour, has been examined to corroborate the statement of p.w.8. hence reliance cannot be placed on the statement of p.w.8.11. p.w.9 has stated that while sitting on his verandah he found two police personnel running away on the village lane shouting that it was difficult to control the situation and that they should go to the police station and after that he found accused persons being instigated by accused kshetrabasi panda to ransack the houses of their opponents. according to him, the accused persons were armed with bhujali, kati etc..and.ten.'to',fifteen of them broke open the door of his house and removed the door planks; one brass bucket, one brass handa, one silverpot, one brass gara, one plough. one yoke, etc. out of which police seized the door plank and left the same in his zima as per the zimanama - ext,4. in his statement in cross-examination he has stated that when he found the police personnel.running on the village lane, out of fear he entered inside the house and bolted the door from inside and after departure of the accused persons he came put of the place of his , concealment and on verification, found the above articles missing. so the possibility of his seeing which accused persons removed the articles is ruled out and hence his statement naming ten of the accused persons as the culprits which was not stated before the investigating officer cannot be taken into consideration and has to be discarded.12. p. w. 10 has stated regarding entry of four to five accused persons inside his shop room and removal of a radio,-wrist-watch, cash and, grocery articles from his shop, but he has not named the culprits who removed the said articles except, naming accused narendra. in his statement in cross-examination he has stated that he made statement before the investigating officer ten to twelve days after the occurrence though he had seen police regularly coming to the village during that period for investigation of the case. no other inmate of his house has been examined, to corroborate'p.w.i0. none of the articles alleged to have been stolen during the commission of dacoity has been recovered. in the above circumstances, reliance cannot be placed on the statement of p.w. 1.0.13. p.w. 11 has stated that he was assaulted by accused prafulla pradhan by means of a lathi on his left arm while he was sitting on his verandah, , but he has not been medically examined and none of the articles belonging to his son alleged to have been removed by the accused persons has been recovered. no inmate of the house of p.w. 11 has been examined to corrobofate him. in his statement in cross-examination he has stated that he was examined by police about fifteen days after the occurrence. in the above circumstances no reliance can be placed on the statement of p.w. 1 1.14. p:w. 12 has stated to have entered inside her house seeing the accused persons and regarding removal of agricultural implements and door leaves from her house. she has also stated regarding removal of two bunches of plantain by accused bikram hati and hata swain. according to her, since the s.i. of baideswar p.s. did not examine her, she filed an application before the circle inspector of police and made her statement before him. but in her statement in cross-examination she has stated to have disclosed the occurrence to ekadasi and krushna panda, but not to the informant joginath panda. though she has stated that her two daughters were present at the time of occurrence, they have not been examined by the prosecution and none of the articles allegedly stolen has been recovered. in the above circumstances, reliance cannot be placed on the statement of p.w.i2.15. p.w. 13 has stated that accused manu swain dealt a push on her leg as a result of which she fell down and that ten to fifteen accused persons who entered inside her house took away three bags of paddy, agricultural implements and broke the door leaves, but she has not been medically examined and none of the articles alleged to have been stolen has been recovered. as per her own statement she had been examined by the investigating officer fifteen days after the occurrence after she filed an application for her examination at the police station.16. p.w. 14 has stated that accused charania and maharagia removed the door leaves of her house and one wooden pole and when she protested, accused shyama panda gave a push to her and snatched away a gold necklace from her neck and the accused persons also removed the agricultural implements from her house. but she has not been medically examined and none of the articles allegedly stolen has been recovered. as per her statement she was examined by police fifteen days after the occurrence on her application. no other inmate of her house has been examined to corroborate the statement of p.w.14 and hence reliance cannot be placed on her statement.17. p.w. 16 has stated regarding removal of tyres, tubes and cycles from the shop of ajay kumar panda (p.w.3) by the accused persons, which she had witnessed from the house of laxman das. she has stated that she remained inside the house of laxman das out of fear and came out of the house to return to her own house in the evening, which rules out the possibility of her witnessing ransacking the shop of p.w.3. in her statement in cross-examination she has stated that the house of laxman das is at a distance of about fifty cubits from her house and it cannot be believed for a moment that she confined herself in the house of laxman das instead of returning to her own house hearing the hulla raised by the accused persons. there is no corroboration to the statement of p.w. 16 and hence reliance cannot be placed on her statement.18. p.w. 17 has stated that the accused persons broke the front door of her house and took away rice, one cycle, radio, wrist-watch and that her brother keshaba maharana (p.w.4) who was present in the house ran away from the house. she has not stated regarding assault on keshaba maharana. thus her statement is not consistent with the statement of her brother p. w. 4. further she has stated that the o. i. c. of the police station did not record her statement and on her complaint to higher police authorities, the circle inspector recorded her statement subsequently. in the above circumstances no reliance can be placed on the statement of p.w. 1 7.19. p.w. 18 has stated regarding entry of the accused persons inside the house of gangadhar panda and removal of cycle, radio from his house and motor-cycle of rajkishore panda and regarding ransacking the house of chakradhar panda, gangadhar panda and joginath panda, but she has stated that since the local police did not record her statement, she complained to the higher police authorities after which her statement was recorded by the circle inspector of police and she has not been corroborated by any other witness. she has also not stated to have disclosed anything before the informant. therefore, reliance cannot be placed on her statement.20. p.w. 19 has simply stated that accused biswanath pradhan and nityananda pradhan dealt him pushes and abused him in filthy language while he was returning to his village on bicycle and that when he got down from the bicycle they took away the same. but the bicycle has not been recovered and he has not been corroborated by any other witness. hence reliance cannot be placed on his statement.21. p.w. 20 has stated that one month prior to the occurrence accused kshetrabasi had demanded illegal gratification from him which he had refused and on 23.12.1 990 again kshetrabasi and other accused persons demanded illegal gratification of rs. 18,317.00 and he having refused, they threatened him to assault. on 25.12.1990 accused kshetrabasi again repeated his demand and hence he had informed the fact at baideswar police station and two constables had been deputed to the village since 27.12.1990. this appears to be the genesis of the trouble in the village. regarding the alleged occurrence he has stated that while he was on the thrashing floor of one narayana das, he heard hulla and since the accused persons being armed with deadly weapons were searching for him, he concealed his presence in the cattleshed of laxman panda. thus he has ruled out the possibility of his witnessing any part of the occurrence.thus it is found that all the above witnesses to the occurrence are not worthy of credence and reliance cannot be placed on them.22. p.w.21 has stated regarding seizure of eighteen photographs under the seizure list-ext.10. p.w.22 has stated regarding the seizure of one old door leaf, some wooden planks from a tank under the seizure- list - ext. 11. p.w. 23 has stated regarding seizure of two old wooden rafters from the house of bula sethi under seizure-list-ext.6 and seizure of two torn gunny bags under seizure-list ext. 12. p.w. 24 has stated regarding seizure of eighteen documents (cash-memos. etc.) on production by rajkishore panda under the seizure list-ext. 10 and one letter under seizure list - ext. 13.23. seizure of the above articles cannot be considered to be the incriminating materials or circumstances against any of the accused persons in this case. seizure of the eighteen photographs taken by p.w. 26 on the day following the alleged occurrence has been made after a long lapse of time, i.e. on 26.9.1991, as stated by the investigating officer (p.w.27) and will be of no help to the prosecution since the photographer-p.w.26 has stated to have taken the photographs at the instance of p.ws. 1 and 2 and not at the instance of police and that he has not been examined by police in this case and that he voluntarily disclosed about the photographs to police.24. regarding the plea of alibi taken by accused sadananda das besides the two d.ws. including accused sadananda himself, who finds support form the statement of the investigating officer (p.w.29) who has stated in cross-examination that he verified and found that accused sadananda das was receiving training at berhampura high school on the date of the occurrence and that berhampura is at a distance of fifteen kilometres from the place of occurrence and that the training was over at 5 p.m. in spite of the above statement of the investigating officer, the learned asst. sessions judge has rejected the plea holding that the distance between berhampura and the place of occurrence was eight kilometres and accused sadananda might have returned to the village by the time of the occurrence because of the previous notice to the villagers to go the police station for amicable settlement of their dispute. in view of the materials on record, the learned asst. sessions judge has erred in rejecting the plea of alibi of accused sadananda.25. on an analysis of the evidence on record, it is found that there is no cogent, convincing, consistent, credible and unimpeachable evidence on record in support of the prosecution case that the accused persons formed an unlawful assembly being armed with deadly weapons and that they voluntarily caused hurt and committed dacoity being armed with deadly weapons. therefore, conviction of the appellants under sections 148, 325/149 and 395/397, ipc cannot be sustained and the impugned judgment is liable to be set aside. consequently the appellant will be entitled to an acquittal.26. in the result, the criminal appeal is allowed. the impugned judgment dated 29.11.1994 of the learned assistant sessions judge, cuttack in s.t.nos. 319 and 346 of 1992 is set aside. the appellants are acquitted of the charge. their bail-bonds be discharged.