Subash Vs State

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AFR

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IN THE HIGH COURT OF ORISSA AT CUTTACK.

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CRIMINAL APPEAL No.127 of 1996

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In the matter of an application under Section 374(2) of the Code of Criminal Procedure.

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Subash Gouda
2. Debraj Jena
3. Goura Jena @ Gouranga Jena
4. Sankar Jena …… Appellants
-Versus-
State of Orissa …… Respondent
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For Appellant : Mr. B.S. Rayaguru, Advocate
For Respondent : Mr. J. Katikia,
Additional Government Advocate
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CORAM : HONOURABLE MR. JUSTICE S. TALAPATRA HONOURABLE MISS JUSTICE SAVITRI RATHO

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JUDGMENT 16^th May, 2023

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S. Talapatra, J. This is an appeal under Section 374 (2) of the Cr.P.C. by

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the convicts, namely, Subash Gouda, Debraj Jena, Goura Jena @

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Gouranga Jena and Sankar Jena from the judgment and order of

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conviction and sentence dated 12.02.1996 delivered in Sessions Case

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No.20 of 1993 [emerging from S.C. No.64 of 1993 (GDC, corresponding to G.R. Case No.216/96 in the file of the J.M.F.C., Kodala and P.S. Case No.181 of 1991] by the 2^nd Additional Sessions Judge, Berhampur. By the said judgment, the Second Additional Sessions Judge, Berhampur hereinafter referred to as the trial judge has observed as follows:

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“15. P.W.1 claimed that the accused persons took away the gold ornaments kept in her trunks and almirahs and that they also snatched some ornaments from her person. These articles were subsequently recovered from different places in the village and some of the articles were seized from the possession of the accused persons. Thus it was a clear case of dacoity accompanied with murder and house breaking.

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16. P.W.1 has specifically named only four accused persons in her evidence. She has not named the other accused persons nor has she described the specific roles played by each of them. In a case of this nature where large number of people are involved, it is highly risky to convict the other accused persons on such omnibus statement of the witness. I am, therefore, of the opinion that the prosecution has failed to establish its case against the other accused persons except Subash Gouda, Gouri Jena, Sankar Jena and Debraj Jena. Accordingly, they are found not guilty and acquitted of all the charges under Section 235(i) Cr.P.C.”

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Thereafter, he had convicted the Appellants, who had been identified

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by P.W.1 under Sections 147,148,454,149 and 396 of the IPC. But the Appellants were acquitted from the charge framed under Section 506

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of the IPC. Consequent upon the above conviction, the Appellants are sentenced to suffer imprisonment for life under Section 396 of the I.P.C. with fine of Rs.10,000/- with default imprisonment for a period

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of three years. They are also sentenced to suffer rigorous imprisonment for one year under Section 147 of the IPC, two years under Section 148 of the IPC and five years under Section 454/149 of the IPC. It has been also directed that all the sentences imposed on the Appellants shall run concurrently.

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The case of the prosecution is that one Priyambada

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Panda, P.W.1 filed an oral complaint before the Officer-in-Charge,

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Kodala P.S. on 15.10.1991 at about 3.00 PM by disclosing that between 10 to 11 AM on 15.10.1991, a group of persons including the Appellants being armed with dangerous weapon like, Sword, Spear and Kati assembled near the house of the informant and that unlawful

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mob broke open the door and entered inside. It has been also stated that some of the persons of that unlawful assembled entered inside the house by breaking the roof. They demanded keys of the trunks and almirahs. But the informant did not oblige. Thereafter, they looted the household articles like utensil, silk sarees, gold ornaments etc. after

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breaking upon the lock of the trunks and almirahs. It has been stated that the accused persons took away some paddy bags, a bi-cycle and wooden furniture out of their house and set them on fire. Some of the accused persons searched for the husband and son of the informant. They found the son of the informant, who was hiding in the toilet of the house. The accused persons assaulted the son of the informant by means of tenta, katis, lathis etc. He was seriously injured. He had suffered injuries on various parts of his body. The son of the informant succumbed to the injuries when he was taken to the hospital. Based on the said information, the Kodala P.S. Case No.181 of 1991 was registered and taken up for investigation. On completion of the investigation, the final report was filed charge sheeting the accused persons, namely, Kampa Jena, Promod Kumar Polei, Subash Jena, Santosh Kumar Palei, Abhimanyu Jena, Kama Polei, Ranka Polei, Arajhita Jena, Bauribandhu Gouda, Kandha Jena, Muralidhar Polei, Gangadhar Sahu, Batu Jena, Sudarsan Jena, Bhagaban Polei, Prabhakar Panigrahi, Kabi Polei, Kamana Tarini, Sukuta Swain, Makar Polei, Nari Polei, Charan Jena, Trinath Maharana, Naba Gouda, Gangadhar Tripathy, Abhimanyu Gouda, Chakra Jena,

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Lochhana Jena, Kabi Chandra Polei, Ghanashyam Panda, Kalia Polei, Ganapati Polei, Laxman Panda, Ranka Gouda, Niranjan Gouda, Bipra Gouda, Kasinath Polei, Balabhadra Jena, Basi Swain, Kunja Behera, Gobinda Gouda, Hrushikesh Gouda, Kasinath Swain, Prakash Gouda, Hadia Polei, Shyama Polei, Kelu Charan Panda, Sankar Jena, Debraj Jena, Prafulla Polei, Jagannath Polei, Goura @ Gouranga Jena, Kaibalya Polei, Subash Gouda, Kabi @ Kabiraj Jena, Udaya Dakua, Gajendra Bisoi and Krushna Chandra Jena under Sections 147/148/454/506 and 396/149 of the IPC. It may be noted that the accused persons, namely, Uday Dakua, Gajendra Bisoi and Krushna Chandra Jena were brought to trial subsequently after their arrest and as previously their case was split up, they were produced in the trial vide S.C. No.35/1993 arising out of G.R. Case No.216/1991(A). But they have been tried together with the other accused persons named above. That apart, it may be noted that 100 persons were chargesheeted by the police and many of those persons are still absconding. In due course and after compliance of Section 207 of the Cr.P.C., the case was committed to the Sessions Division for trial and the above named accused persons were charged under Section 147/148/454/506

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and 396/149 of the IPC. The accused persons including the Appellants pleaded not guilty and claimed to be tried.

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In order to substantiate the charge, the prosecution adduced as many as 10 witnesses including the Priyambada Panda, the informant (P.W.1) and Adikanda Panda (P.W.6). The prosecution had adduced 41 documents including the postmortem report (Ext.4), inquest report (Ext.40) and Chemical Examination Report (Ext.41). From the accused side of the persons, two witnesses were examined and four documentary evidence (Ext.A to D) were adduced. That apart, 12 material objects (M.O.I to M.O.XII) were brought in the evidence by the prosecution, including the weapon of offence (M.O.VIII to M.O.XII). After recording the evidence by the prosecution, the accused persons were examined under Section 313(1)(b) of the Cr.P.C. when they had taken the plea of innocence by

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stating that evidence against them are concocted and hence, unreliable. Thereafter, by the impugned judgment all the accused persons against whom charge was framed, except the Appellants, were acquitted. Even the Appellants have been acquitted from the charge under Section 506 of the IPC. But as stated, they have been

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convicted under Sections 396/147/148 and 454/149 of the IPC. We have already noted the sentence awarded to them.

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By the order dated 15.02.2007 delivered in M.C. No.10 of 2007, arising from this appeal, the Appellants were released on bail in terms of the decision of the apex Court in Surinder Singh @ Shingara Singh v. State of Punjab : (2005) 32 OCR (SC) 430. It may be noted that by the time the bail was granted, the Appellants served

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out the sentence for more than 10 years. In order to ascertain the present status of the Appellants, we had directed their appearance before the Court. All the Appellants, except the Appellant No.2, namely, Debraj Jena appeared before us. It was reported to us that Debraj Jena, the Appellant No.2 is not of sound mind. In terms of the order dated 26.10.2022, Shankar @ Sankar Jena younger brother of Appellant No.2 filed an affidavit. The contents of the affidavit have been reflected in our order dated 15.11.2022. It has been stated that the Appellant No.2 is not in a sound mental condition. Even his son was missing for the last three years. His wife and other son had passed away. One certificate from the Sarapanch of Kalimeghi G.P. was also annexed in support of such contention. For the post trial unsoundness

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of mind, this Court cannot grant or extend any benefit under the general exception vide Section 84 of the IPC for unsoundness of mind. These aspects may be considered by the competent authority for premature release, if for any reason, the judgment of conviction is upheld. We will not take that issue further and will decide the appeal on merit.

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Mr. B.S. Rayaguru, learned counsel appearing for the Appellants has stated that the judgment of conviction is faulty on various grounds. As such, the finding of conviction is unsustainable. According to Mr. Rayaguru, learned counsel, all the eye witnesses P.Ws.2 to 4, P.Ws.6 and 7 except the P.W.1 turned hostile and did not support the case of the prosecution. By relying on the residual evidence, the finding of the conviction has been recorded. The reliance placed on the testimony of P.W.1 is highly unsafe to record an order of conviction, in as much as the P.W.1 is not trustworthy, as she has the definite interest in securing the conviction of the Appellants, as her son had been killed in the transaction of the crime.

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Caution as supposed to be exercised by the trial judge

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was not so exercised. It is not denied even by the prosecution that

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more than 100 persons have been charge sheeted by the police and the occurrence took place in the broad light in presence of a huge gathering and hence, it cannot be held that the said incident was not witnessed by the neighbours or the co-villagers and thus, the explanation given from the prosecution that no other person had witnessed that occurrence is totally unacceptable. It has been argued by Mr. Rayaguru, learned counsel that though P.W.1 had named the Appellants but did not describe any overt act committed by them. Moreover, P.W.1 herself had lodged the oral complaint before the police and in the FIR, the informant had not indicated the names of the present Appellants. At this juncture, Mr. Rayaguru, learned counsel has referred to the content of the First Information Report (Ext.1). It is apparent from the First Information Report that P.W.1 has categorically stated in the F.I.R. that, she had recognized amongst others, the Appellant No.1, Subash Gouda and Appellant No.3, Goura Jena. But the other Appellants were not named or recognized by P.W.1 according to the First Information Report dated 15.10.1991. Mr. Rayaguru, learned counsel has stated that, as P.W.1 failed to state the names of the Appellants at the earliest opportunity, her evidence

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implicating the present Appellants cannot be accepted as truthful. It has been also contended by Mr. Rayaguru, learned counsel that even though the daughter of P.W.1 according to the prosecution case had witnessed the occurrence, she was not adduced as the witness and hence, the adverse inference in respect of the bonafides of the prosecution has to be drawn. Mr. Rayaguru, learned counsel has drawn our attention to the reason given by the trial judge. The trial judge has observed that a girl of that age from a rural background was not supposed to be intelligent enough to depose in the Court. Such observation is entirely untenable. Hence, withholding of a natural witness be pitted against the bonafide of the prosecution. It has been also stated by Mr. Rayaguru, learned counsel on close scrutiny of the P.W.1 it would be apparent that she had not attributed any overt act against the Appellants. Hence, it is highly unsafe to record an order of conviction against the Appellants. Mr. Rayaguru, learned counsel has submitted that there is no evidentiary material in the records to record the conviction under Section 396 of the IPC. Moreover, Mr. Rayaguru, learned counsel has contended quite categorically that since only four persons have been convicted, Section 396 of the IPC

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cannot be attracted. More so, the death did not take place in the place of occurrence. According to him, to constitute an offence punishable under Section 396 of the IPC dacoity within the meaning of Section 391 of the IPC, the offence shall essentially be committed by five or more persons. Similarly, to constitute offence of dacoity with murder punishable under Section 396 of the IPC, if any one of five or more persons, should commit a murder while committing the dacoity only then, every one of such persons by fiction of law would be deemed to have committed the offence of murder, otherwise not. According to Mr. Rayaguru, learned counsel, the prosecution has failed to establish that the offence was committed by five or more persons and they have also failed to establish any nexus between the death and the commission of dacoity. In this regard, Mr. Rayaguru, learned counsel has relied on a decision of the apex Court in Raj Kumar vs. State of Uttaranchal : (2008) 11 SCC 709 whereby it has been observed by the apex Court inter alia as follows:

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“35. In the instant case, as observed earlier, there were six accused. Out of those six accused, two were acquitted by the trial Court without recording a finding that though offence of dacoity was committed by six persons, identity of two accused could not be established. They were simply acquitted by the Court. In our opinion, therefore, as per settled law, four persons could not be convicted for an offence of dacoity, being less than five which is an essential ingredient for commission

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of dacoity. Moreover, all of them were acquitted for an offence of criminal conspiracy punishable under Section 120-B IPC as also for receiving stolen property in the commission of dacoity punishable under Section 412, IPC. The conviction of the appellant herein for an offence punishable under Section 396, IPC, therefore, cannot stand and must be set aside.”

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In Ram Lakhan v. State of Uttar Pradesh : (1983) 2 SCC 65, the apex

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Court has held as follows:

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“The trial court had acquitted 5 persons and convicted 4. But on appeal the High Court acquitted the remaining three persons and convicted Ram Lakhan the present appellant. The position now is that out of 9 persons named in the FIR who are alleged to have participated in the dacoity Ram Lakhan is alone left. Before an offence under Section 395 can be made out there must be an assembly of 5 or more persons. On the findings of the courts below it is manifest that only one person is now left. In these circumstances therefore the appellant cannot be convicted for an offence under Section 395. The High Court has not found that Ram Lakhan was guilty of any overt act so as to bring his case within any other minor offence. For these reasons therefore the conviction and sentence imposed on the appellant are set aside and he is acquitted of offence charged under Section 395.”

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Further Mr. Rayaguru, learned counsel has submitted that

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in order to show that if at the earliest opportunity, the name of the

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accused persons are not revealed, the truthfulness of subsequent implication shall always come under scrutiny. In such cases, the benefit may be extended to the accused persons whose name had been revealed subsequently. In Juwarsingh v. State of Madhya Pradesh : 1980 (Supp) SCC 417, the apex Court has held as follows:

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“ …..The three witnesses P. Ws. 1, 2 and 6 went to the Police Station together and the Head Constable recorded the First Information Report in the presence of all of them. Apparently this led to some confusion and made the witnesses say that their statements were recorded on November 11. 1970. That there must have been some such confusion is obvious from the fact that P.W. 1 also stated in cross-examination (paragraph 34) that her statement was recorded by the Police on the third day of the lodging of the report at the Police Station.

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6. In regard to the seven persons whose names were not mentioned in the First Information Report, P.W. 1 was unable to explain why she failed to mention their names in the report. She frankly stated that she cannot state the reason as to why their names were not mentioned, We think that these seven persons are entitled to the benefit of doubt and should be acquitted.”

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Mr. Rayaguru, learned counsel has relied on a recent

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decision of the apex Court in Mahendra Singh and Ors. v. State of M.P . (judgment dated 03.06.2022 delivered in Criminal Appeal No.764 of 2021), in order to show that evidence of P.W.1 falls within

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the category of wholly unreliable. In Mahendra Singh (supra) it has been observed that, when the oral testimony of a witness is wholly reliable, the Court should not have any difficulty in coming to its conclusion. Either way, it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of

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interestedness, incompetence or subornation. In the other category where the testimony of the witnesses is not wholly reliable, the Court

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equally has no difficulty in coming to its conclusion. It is only when the testimony of the witness falls within the category of neither wholly reliable nor wholly unreliable, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. In this regard the decision of the apex Court in Mahmood and others v. State of Bihar : (2000) 9 SCC 35 has also been relied in order to buttress the contention that the testimony of P.W.1 is not at all reliable. In Mahmood (supra), the apex Court having restated the principle as laid down in Prem Singh v. State of Punjab : (1976) 1 SCC 805 has observed that the conviction of the Appellant which is founded solely on the evidence of two witnesses [in the case of Mahmood ] whose testimony in regard to other accused was held by the trial Court and the High Court to be unreliable and disbelieved in regard to participation of the said four other accused in the incident was set aside. The Court held that it is difficult to base conviction solely on the evidence of such witnesses and on this circumstance it is not possible to uphold the conviction of the Appellants. Therefore, the apex Court gave the benefit of doubt.

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In order to repel the contention as advanced for the

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Appellant, Mr. J. Katikia, learned Additional Government Advocate has appeared for the State and stated that there is no infirmity in the judgment and it does not call for any inference from this Court in as much as the prosecution has successfully proved the charge by P.W.1 and other post occurrence witnesses. According to Mr. Katikia, learned Additional Government Advocate, the requirement to constitute an offence under Section 396 of the IPC is quite distinct and unambiguous. In execution of the offence there shall be participation of five or more persons, who are conjointly committing dacoity and they have committed murder in so committing dacoity. In that event, every one of those persons shall be punished with death, or imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. According to Mr. Katikia, learned Additional Government Advocate, the presence of

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more than five persons in executing the dacoity has been proved to the hilt by the prosecution and the finding in this regard, as returned by the trial judge cannot be faulted with. In this respect Mr. Katikia, learned Additional Government Advocate has referred to a decision of

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the apex Court in Kallu @ Masih and others v. State of M.P .: (2006)

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10 SCC 313 where it has been held as follows:

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“17. The contention that when only four persons are found guilty, there cannot be conviction under Section 149 IPC, has no merit. Section 149 provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. Section 141 requires a minimum of five persons for being designated as an unlawful assembly.”

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In Kallu @ Masih (supra), it may be noted that 27 persons have been sent up for trial, the trial court acquitted all the 27. In the appeal filed by the State, the leave was granted by the High Court only with regard to five since they have been specifically named as the persons committing the offence and causing the injuries to the deceased and others. One of the five got the benefit of doubt though his presence as a member of the group was accepted. It has been observed in Kallu @

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Masih (supra) further as follows:

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“19…. This does not mean that there is no finding that there was an unlawful assembly. When the evidence clearly shows that more than five persons armed with swords, spears etc. had come to the house of Sadruddin with the common object of causing injury, and injured him. The mere fact that several accused were acquitted and only four are convicted, does not enable the four who are found guilty to contend that Section 149 is inapplicable.”

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We may also in this context refer to the following observations of Masalti v. State of UP : (1964) 8 SCR133, as reiterated in Triloki Nath v. State of UP : (2005) 13 SCC 323. It has been observed that, in fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Mr. Katikia, learned Additional Government Advocate has also referred to Hamlet @ Sasi v. State of Kerla : (2003)10 SCC 108 and Nethala Pothuraju v. State of Andhra Pradesh : (1992) 1 SCC 49 to urge that even if ultimately only two of the five minimum persons got convicted for the offence punishable under Section 149 of IPC, the Court would not be powerless to convert the offence to one under

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Section 302 read with Section 34 of IPC, so that there is no miscarriage of justice. Mr. Katikia, learned Additional Government Advocate has referred a decision of this Court in Raj Kumar Behera and Another v. State of Odisha : 2022 SCC Online Ori 2595 where the law stated by the Chittarmal v. State of Rajasthan : (2003) 2 SCC 266 was referred to hold as under:

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“It is well settled by a catena of decisions that Section 34 as well as Section 149 deal with liability for constructive criminality i.e. vicarious liability of a person for acts of others. Both the sections deal with combinations of persons who become punishable as sharers in an offence. Thus they have a certain resemblance and may to some extent overlap. But a clear distinction is made out between common intention and common object in that common intention denotes action in concert and necessarily postulates the existence of a prearranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert. Though there is substantial difference between the two sections, they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under Section 149 overlaps the ground covered by Section 34. Thus, if several persons numbering five or more, do an act and intend to do it, both Sections 34 and Section 149 may apply. If the common object does not necessarily involve a common intention, then the substitution of Section 34 for Section 149 might result in prejudice to the accused and ought not, therefore, to be permitted. But if it does involve a common intention then the substitution of Section 34 for Section 149 must be held to be a formal matter. Whether such recourse can be had or not must depend on the facts of each case. The non applicability of Section 149 is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all. [See Nethala Pothuraju (supra) and Ram Tahal v. State of U.P.: (1972) 1 SCC 136.”

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According to Mr. Katikia, learned Additional

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Government Advocate, there is no reason to categorize P.W.1, as a wholly unreliable witness. There is no reason why she should tell lie in the trial and as such the testimony of P.W.1 is wholly reliable and as such, the conviction as returned does not suffer from any flaw.

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In order to appreciate the contention raised by the

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counsel for the parties, it would be apposite to make a meaningful survey of the evidence. P.W.1, Priyambada Panda who lodged the information to the police, reporting the occurrence, testified in the trial that she knows all the accused persons in the dock belonged to the villages Kalimeghi, Lachipur and Jagilipadar. But, at the same time she has stated that she does not know their names, but she can identify

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them. Deceased Prasant Panda @ Babu was her son (at that time she broke down in tears). Prasanta died on the day of Durgastami three years ago at 10 to 11 P.M. On the fateful day, the deceased had been to the pond for taking his bath. After returning from the pond the deceased told them that Bauri people had assaulted a member of Kalanji caste and there was a hue and cry on the village street. At the time her husband was absent from the house. He was at Beguniapada

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to visit his sister’s house. After hearing the sound out of fear, she bolted the outer door of their house from inside. Suddenly Subash Gouda, Gouri Jena, Surei Jena and Surei Gouda came to her door. Out of fear, she closed the middle door of the house from inside. All of the family members who were present in the house at that time, took shelter in the middle room. Those four persons along with many others broke open the outer door and entered inside. Her mother-inlaw had advised the deceased to conceal himself. So the deceased ran away and concealed himself inside the toilet in the backyard of the house. All the accused persons were armed with lathi, chella, farsa, kati etc. They broke open the middle door of their house and forced their way inside. Gouri Jena and Magata Palai threatened them to disclose the whereabouts of her husband and demanded the key of the almirahs and boxes of her house. She replied that she did not have the key with her. Then, the accused persons forcibly entered into inside their pooja room and broke open the almirah. They took away 18 polyester sarees, 13 printed sarees, five silk saree (patta), cash of Rs.10,000/- and gold ornaments. They also broke open a wooden box kept in the middle room and took away brass and bell metal utensils.

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Gouri Jena and Magata Palai threatened her in presence of other accused persons and they also took away all the gold ornaments from her person. Out of fear, she handed over those gold ornaments to them. She has given the description of gold ornaments. According to her testimony, the accused persons took away hundred bags of paddy stacked in the backyard. They brought wooden furniture and all other articles out of the house and set them ablaze. A Cycle and Luna were also burnt by them. The accused persons asked her about the whereabouts of her son. She denied to have any knowledge. The accused persons searched in the house and found her son, Prasanta inside the toilet and dragged him out and beat him up mercilessly with tenta, kati and lathi etc. She has testified in the trial as follows:

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“Gouri Jena assaulted him by means of a weapon with three pointed ends. Sankar Jena, Debaraj Jena, Surei Goud, Surei Jena, Sankar Tarai and others, whom I cannot name. They assaulted by son and made him sleep on the latrine tank in a seriously injured condition. Accused Surei Jena hit his jaws by means of a coconut. They loaded a paddy bag on his chest. They left the deceased in this condition and went away. I saw the entire occurrence from a distance of 8 to 10 cubits.”

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After the accused persons left the place of occurrence,

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Prasanta (the deceased) was brought by them and made to lie on the backside of their verandah. At that point of time, the police contingent

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arrived in the place of occurrence but, the police did not come to their aid despite their request. When the Collector of the Chatrapur arrived there on request of P.W.1, they carried the deceased to the hospital. She had testified that, she reported the matter to the police officer, who was present in the village. The police officer reduced her oral statement in writing and read over to her and thereafter, she put her signature. In the night of the same day, her son died. Police seized a blood stained cloth, a blood stained torn gunny bag and half of the coconut from her house by preparing the seizure list (Ext.2), which was admitted in evidence by P.W.1. In the cross-examination, P.W.1 has denied most of the suggestion made to her. According to P.W.1, her son did not see the occurrence, as he was hiding himself inside the toilet. She has also denied the suggestion that she did not specifically name the assailants of her son in the FIR nor did she disclose the name before the police during her statement. Thereafter, in the crossexamination, she made the following statement:

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“While my son was being beaten, I requested the police to come to his rescue but they did not. The police were present in front of our house when my household articles were set on fire. It is not a fact that I do not state in my F.I.R. or before the police that the accused persons loaded a paddy bag on the chest of my son and that they hit his jaws by means of coconut. I did not name each and every accused.”

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She has denied the suggestion that Bouris killed one

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Bidyadhar Palai on the same morning for which the people of five other villages assaulted and killed her son in as much as her son was member of the mob which killed Bidyadhar Palai. The suggestion regarding the political affiliation of the accused persons has been denied by P.W.1. She has admitted that there is a caste deviation in their locality. The Brahmins and Bouris on the one side and Kalanji, Goudas and other on the other side were litigating for more than last 5 to 7 years from the day of occurrence. P.W.2, Banchhanidhi Panda, P.W.3, Natabar Padhi, P.W.4, Gadadhar Panigrahi and P.W.6 Adikanda Panda did not support the prosecution case at all and they have denied to have made the statement as recorded under Section 161 of the Cr.P.C. by the Investigating Officer. As such, nothing material is available in their deposition. P.W.5, Dr. Ratnakar Dash carried out the postmortem examination over the dead body of deceased and he had found the following external injuries:

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“i. Multiple bruises 13 in number variable sizes were present over right shoulder, upper anterior aspect of the chest abdomen, right lower arm both dorsal ventral aspect, left upper and lower arm both dorsal aspect, whole of back along left scapularism, right gultealism, both ankle joint and right knew region.

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ii. Bruise of 2” x 1” found over zygomatic region.

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iii. Punctured wound of 1/3” x 1/3” x bone depth situated just adjacent to right eye brow

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iv. Cut injury of 1.1/2” x ½” x bone depth situated above the left eye brow with that cut injury another cut injury of ¾” x ¼” x bone depth situated vertically to the left eye brow.

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v. Angle of mouth right side lacerated of 1/3” x 1/3” size.

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vi. Cut injury of 2” x ½” x bone depth situated at left from to parietal region from anterior to posterior.

¶109

vii. Fracture of mandible along right lower central incisor teeth on dissection of the dead body.”

¶110

P.W.5 also found the following internal injuries.

¶111

“i. The internal organs like lever, kidney, lungs, were pale. Skull bone found to be intact brain substance were hyperemic and engorgement of cubical vessel.”

¶112

According to P.W.5, the injuries were antemortem and

¶113

caused by hard and blunt weapon mostly bruises and fracture of mandible. External injury no.3, 4 and 6 [see the description of the external injuries] were caused by weapon having sharp margin with pointed end. The cause of death resulted from haemorrhage and shock. The postmortem examination report (Ext.4) was admitted in the evidence by P.W.5. There had been no cross-examination of any

¶114

worth. P.W.7, Padma Sahu a villager has testified that he had been in

¶115

the village bandh to take bath. When he heard a hue and cry near the

¶116

house of Ananta Panda a large mob had gathered there shouting

¶117

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provocating slogans that they would kill Ananta Panda and his son. He had seen this from his verandah from a distance of hundred cubits. According to P.W.7, the members of the mob set fire on Ananta’s cycle and motorcycle. His furniture and other household articles were also set on fire. The accused Bhagaban Bisoi was pouring kerosene on the fire. The accused persons forced their way inside the house of Ananta Panda. The members of the mob were armed with lathi, kati, knife etc. Padma Palai, wife of Hari Palai was standing on the roof of Abhi Jena. She indicated and shouted at the mob, the deceased has concealed himself inside the toilet. The members of the mob again entered into the house of Ananta Panda to search for the deceased. Subsequently, he heard that the accused persons killed the deceased. No meaningful cross-examination has been carried out. P.W.8, Bibhu Prasad Mohapatra is the investigating officer. He has testified in the trial that on 10.11.1991 under the direction of the Superintendent of Police, he took charge of investigation of Kodala P.S. Case No.181 of 1993. Thereafter, he has given the brief narrative of how he had conducted the investigation. He visited the spot, tested the witnesses already examined by Sri A.K. Choudhury, the former investigating

¶119

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officer. On 23.11.1991, he produced the weapon of offence before the professor of F.M &T MKCG Medical College, Berhampur for his examination and opinion. He identified by the requisition. He arrested a few accused persons. He has also sent the seized material objects for chemical examination. He submitted the charge-sheet on 15.01.1992 against the accused persons. There is no meaningful crossexamination. P.W.9, Sri Ashok Kumar Choudhury was the Officer-inCharge of Kodala Police Station on 15.10.1991. He received the oral complaint from Priyambada Panda (P.W.1) and after reducing the same, he got endorsement over it by P.W.1. The case was however registered by another police officer. He admitted the F.I.R. form in the evidence. According to him, he reached at the spot at about 3.20 P.M. on 15.10.1991 and seized the blood stained earth and sample earth in presence of the witnesses by preparing the seizure list (Ext.11). He had also seized one gunny bag with blood stained, one torn gamucha and half of coconut with its bark by the seizure list (Ext.2). He had also seized the broken pieces of the glass etc. from the spot. He had also seized one wooden almirah having marks of violence and three broken pieces of wood which had formed part of the almirah. A few

¶121

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¶122

other materials like umbrella, one attaché broken were also seized by him. P.W.9 has briefly stated about the examination of the witnesses and also about the recovery and seizure of three pointed spears with bamboo handle from the house of accused persons, namely, Surendra Jena and Kabi Jena. In the said house, they had also recovered one kati with a bamboo handle and a knife by preparing the seizure list (Ext.16). He made several searches to arrest the accused persons. From the house of the accused, namely, Karuna Jena, P.W.9 had seized one bamboo lathi by preparing the seizure list (Ext.19). From the house of accused, Kaibalya Palai, Jaga Palai and Nira Palai in presence of witnesses recovered and seized one kati and two bamboo lathis by preparing the seizure list (Ext.20). He had also seized from the house of Srikanta Palai one old used red silk saree and another rose colour saree and a table clock by preparing the seizure list (Ext.22). On the same day from the backyard of the house of Gouri Jena, P.W.9 had recovered and seized a brass Talunt, three bell- metal dishes (Gina) and three more bell-metal ginas, three bell-metal plates, a brass lota, a bell-metal lota and another bell-metal kansa, one bellmetal chhadua another damaged bell-metal chadua and one bamboo

¶123

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lathi by preparing the seizure list (Ext.23). From the house of Kaibalya Palai and Jaganath Palai in presence of the witnesses recovered and seized a printed saree, a printed green saree, a light red saree, a check green saree, a red printed saree, a red saree, a black printed saree, a green printed saree, a blue silk saree, a blue check saree, a blue printed saree and another printed saree by the seizure list (Ext.24). P.W.9 searched and recovered one kati and one bhusa from the house of Bairagi Jena. On the same date at about 1.00 PM, he searched the house of Kasinath Jena in presence of the witnesses and recovered one kati and a bamboo lathi by preparing the seizure list (Ext.25). From the house of Nagata Palai in presence of the witnesses, P.W.9 seized a kati, two lathis, one khanati and one kantibadi by preparation of the seizure list (Ext.27). From the house of the accused, namely, Ananda Palai, P.W.9 had seized one iron khanate with bamboo handle by the seizure list (Ext.28). He had also searched the house of the accused, Sukanta Swain in presence of the witnesses and seized a bamboo lathi, a kati, one khanate, one iron crowbar and one kantibadi, by preparing the seizure list (Ext.29). Again P.W.9 has searched the house of accused, Kunja Behera and seized in presence

¶125

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of the witnesses and recovered two bamboo lathis and a kati by preparing the seizure list (Ext.30). From the house of one Prakas Gouda, P.W.9 had seized one kati with bamboo handle, by preparing the seizure list (Ext.31). He searched the house of accused, Ranka Gouda in presence of the witnesses recovered and seized one khanti, by preparing the seizure list (Ext.32). P.W.9 had also searched the house of the accused, Lochan Jena and Bhaskar @ Rameswar Jena and seized one bamboo lathi, a kati with bamboo handle, a khanate and one kantibadi, by preparing the seizure list (Ext.33). On 21.10.1991, P.W.9 had also searched the house of Pradumna @ Hrusikesh Goudo in presence of witnesses and seized one gold Dhanua necklace, two gold ear rings and pair of gold ear ring and two gold ring fingers, by preparing the seizure list (Ext.25). On 22.10.1991, he arrested many of the accused persons and produced before the concerned Court. On 22.10.1991, P.W.9 had searched the house of Kampa Jena and seized a Parsuram Tangia, by preparing the seizure list (Ext.36). On 24.10.1991, he had searched the backyard of the accused Debaraj Jena in presence of the witnesses and seized one khand-kati, by preparing the seizure list (Ext.38). On 24.10.1991, he

¶127

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brought all the seized weapons to the police station and sent for the scientific examination. He had stated that P.Ws.2, 3, 4 and 6 were examined by him and their statement was recorded under Section 161 of the Cr.P.C. He denied the suggestion that without examine them, he prepared the statement under Section 161 of Cr.P.C. He has noted that one lady from the neighbourhood had reached and stated that the deceased had been hiding in the toilet and then the members of the unlawful assembly re-entered the house of P.W.1 and assaulted the deceased and left him with several bleeding injuries. He has stated the role of the some of the accused in assaulting the deceased. He has stated about the seizure list of the material objects. He had admitted in his cross-examination that he did not take any efforts to identify the seized materials whether those belongs to the house of the P.W.1 or not. He has also admitted that on the day of occurrence, another occurrence, which took place in the morning in which one Bidyadhar Palai was killed by the Bouris was reported. During the crossexamination, he did not deviate from the statement that he made in the examination-in-chief. P.W.10, Sitaram Satpathy has stated that on 15.10.1991 he was working as the Sub-Inspector of Police at Polsara

¶129

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Outpost under Kodala Police Station. On that day, he received the requisition from the Officer-in-Charge, Kodala Police Station sent through the Kodala for supplementary investigation. According to him, he proceeded to the hospital where Dr. Sadhucharan Misra was treating the injured Prasant Kumar Panda. Mr. Misra declared Prasanta as dead. Nothing could be elicited from his crossexamination.

¶131

As we have stated already that all the accused persons are individually examined under Section 313 Cr.P.C. But against them excepting four, namely, Subash Gouda, Gouri Jena, Surei Jena and Surei Gouda there was no specific incriminating material. Consequent thereupon, the other accused persons were acquitted from the charges. As such, their examination under Section 313(i)(b) of the Cr.P.C. was mere formality.

¶132

It appears from the records that the defence has produced two witnesses. D.W.1, Antaryami Biswal has stated that accused Lochan Jena was attending the meeting of the association which was continuing from 10 A.M. in the morning till 1.00 P.M. in the afternoon. The minutes of the proceeding showing presence of the

¶133

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said Lochan Jena in the meeting has been admitted in the evidence as Ext.A. The cross-examination was carried out, but nothing could be elicited which is in contrast to the statement may by D.W.1 in his cross-examination. D.W.2, P. Sriram Murty testified that he is a pharmacist by profession and he was posted in the Government Dispensary since 16.11.1993. According to him one of the accused, namely, Charan Jena attended that hospital for treatment. He admitted the part of the hospital record (Ext.B) in support his contention. It

¶135

appears that D.Ws.1 and 2 were adduced to probabilise the plea of alibi.

¶136

After scrutiny of the records it is distinctly apparent that the evidence of P.W.1, P.W.7 and P.W.5 as material for our consideration. We have recorded their testimonies in extensor. The striking future which is material is that, the seized material was not shown to P.W.1. Even though the seized material objects including the purported weapon of offence were sent for chemical examination and the chemical examination report was produced, but the chemical examination report did not support the prosecution case and that is the reason no reference has been made in the judgment of conviction as

¶137

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regards the outcome of the chemical examination. It is apparent on the face of the record that the evidence of P.W.1 has not been corroborated by any other witnesses, but her statement regarding injuries on the deceased got corroborated by the postmortem report (Ext.4) and the inquest report (Ext.40). It is further apparent that the seized material object has not been identified as the materials connected with the transaction of the crime or the result of the crime. The trial judge has abruptly stated that these witnesses saw in their eyes the fate of the complainant’s family. It was, therefore, natural for them to get terrified. Any person of ordinary prudence would not have risked his life and property and invite the wrath of the entire villagers by deposing against them. Since these witnesses saw the capacity of the accused persons in settling scores with their adversaries they would not have dared to tell the truth before the Court. Therefore, it has been inferred that much weight cannot be attached to the refusal of eye witnesses in supporting the prosecution case. According to the trial judge, it is highly improbable that the witness from the neighbourhood would come forward to testify the truth. Even, P.W.4 has categorically stated that he does not know any of the persons

¶139

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involved in the said occurrence. On the basis of the above observation, the evidence of P.W.1 has been held not to be discarded for absence of corroboration. Reference has been made to Kartik

¶141

Malhar v. State of Bihar : (1996) 10 O.C.R. (SC) 77. It has been observed by the apex court in Kartik Malhar (supra) that a close relation who is a natural witness cannot be regarded as interested. According to the said judgment, interested witness means the witness who has some direct interest in having the accused convicted some how or the other. We have taken note that even after referring the said judgment, P.W.1, the mother of the deceased has been declared as not an interested witness. According to us, such declarations is fully unwarranted in as much as a aggrieved mother would always like to see the perpetrator is convicted. For non-examination of daughter of P.W.1 who was at the time of occurrence 12 years of age, the explanation as given by the trial judge has not come from the prosecution through the investigating officer who was in the best position to testify why he did not produce the said girl as a witness to the said occurrence. The explanation that has been given is that a girl of this age from a rural background is not supposed to be intelligent

¶142

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enough to depose in the Court. This observation is based on certain observations when no witness has placed in their evidence. Such presumption is based on no foundational evidence and as such, cannot be accepted by us. That apart, Section 118 of the Indian Evidence Act provides how the court only can measure the intelligence and whether the witness understands the duty to speak the truth. The nonexamination of such witness always is bound to bring the integrity of the investigation under the scanner of the court. The trial judge has in toto relied the testimony of P.W.1 by discarding the contradiction brought by the defence. The trial court has observed as follows:

¶144

“16. P.W.1 has specifically named only four accused persons in her evidence. She has not named the other accused persons nor has she described the specific roles played by each of them. In a case of this nature where large number of people are involved, it is highly risky to convict the other accused persons on such omnibus statement of the witness. I am, therefore, of the opinion that the prosecution has failed to establish its case against the other accused persons except Subash Gouda, Gouri Jena, Sankar Jena and Debraj Jena. Accordingly, they are found not guilty and acquitted of all the charges under Section 235(i) Cr.P.C.”

¶145

This observation has been made on the basis or

¶146

foundation of the submission since the other accused persons have

¶147

been acquitted from the charge directly as there had been no evidence against them, Section 396 of IPC cannot be applied in respect of the

¶148

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¶149

other accused persons those who have been convicted. In this perspective fact, the decision of the apex court in Raj Kumar @ Raju (supra) has been pressed. In Raj Kumar @ Raju, it has been observed that when the other accused persons were simply acquitted by the court, as per settled law, the four persons could not be convicted for an offence of dacoity, being less than five which is an essential ingredient for commission of dacoity. It is noticeable that the trial judge, in the case in hand, has clearly observed that against the other co-accused, there is no evidence including that they were the member of the unlawful assembly. In view of the said decision, in Raj Kumar @ Raju (supra), which is consistent with the decision of Ram Lakhan (supra) in which the apex court had again observed that “the trial court had acquitted 5 persons and convicted 4. But on appeal the High Court acquitted the remaining three persons and convicted Ram Lakhan, the present appellant. The position now is that out of 9 persons named in the FIR who are alleged to have participated in the dacoity Ram Lakhan is alone left. Before an offence under Section 395 can be made out there must be an assembly of 5 or more persons. On the findings of the courts below it is manifest that only one person is

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now left. In these circumstances therefore the appellant cannot be convicted for an offence under Section 395of the IPC. It has been clearly observed in Ram Lakhan that the High Court found that Ram Lakhan was guilty of an overt act so as to bring his case within any other minor offence. For that reason the conviction and sentence imposed on the appellant (Ram Lakhan) was set aside and he was acquitted from the offence charged under Section 395 of the IPC. It is clearly evident from the impugned judgment that all other accused persons except the Appellants against whom the charges were framed under Section 147/148/545/506 and Sections 396/149 of the IPC were directly acquitted holding that there is no evidence against them. Based on the testimony of P.W.1 alone, the Appellants have been convicted under Sections 147/148/454/149 and 396/149 of the IPC and they are sentenced accordingly. It is apparent on the face of the apex court judgment, the charge under Section 147, 148 and 149 of the IPC have fallen through as there is no legal evidence of unlawful assembly in as much as for forming an unlawful assembly the assembly must have five or more persons, if the common object of those persons is to over all the criminal force to resist the execution of any law to commit any mischief or criminal trespass or other offence or to apply the criminal force for any unlawful purpose. Unless, the charge under Sections 147/148/149 of the IPC is proved to the hilt. Vicarious liability of all members of

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unlawful assembly for act done in common object cannot be saddled [See Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai Patel and Ors .: AIR 2018 SC 2472] only when the under the embrace of the Section 149 of the IPC, the vicarious liability can be inferred ( Amerika Rai and Ors. vs. State of Bihar : AIR 2011 SC 1379: (2011) 4 SCC 677). As such, the charges against the Appellants under Sections 147/148/454 read with Section 149 are unsustainable. Accordingly, the conviction and sentence under Section 147, 148 and 454/149 of the IPC are set aside. So far as the charge under Section 506 of the IPC is concerned, the Appellants have been

¶154

acquitted from the said charge and there is no challenge against the said acquittal. However, it may be mentioned that from the overt act of any of the Appellants, if criminal trespass within the degree of Section 454 of the IPC is independently proved against any of the Appellants, notwithstanding our above finding, the Appellants can be convicted under Section 454 of the IPC, as under that provision, charge was framed against the Appellants.

¶155

Prior to the decision of Raj Kumar @ Raju (supra), in Ram Lakhan (supra) and Saktu and Ors. vs. State of U.P. : (1973) 1 SCC 202, it has been observed that for an offence of robbery/dacoity that they must be five or more persons and in absence of such finding the accused cannot be convicted for an offence of dacoity. Unless, the Court categorically finds that more than five

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persons form the unlawful assembly to commit the dacoity, the conviction against the other accused persons being less than five cannot stand the scrutiny of law. In this regard, we may note that Mr. Katikia, learned Additional Government Advocate had also in the course of his submission referred Paragraph-22 of Raj Kumar (supra) where the apex court has categorically observed that an assembly of five or more persons can be said to be unlawful assembly, if common object of the persons comprising such assembly is as mentioned in the said action. Section 149 declares that if an offence is committed by any member of unlawful assembly in prosecution of common object of that assembly, every member of such assembly is guilty of that offence. That can be any different view in respect of the said interpretation. But in this case all the other accused persons have been acquitted in absence of any evidence against them and as such, that cannot be any finding of vicarious criminal liability against the other accused persons who are less than five in number. In Dalip Singh and Ors. vs. State of Punjab : AIR 1953 SC 364, it has been observed as follows:

¶158

“19. Before section 149 can be called in aid, the court must find with certainty that there were at least five persons sharing the common object. A finding that three of them "may

¶159

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or may not have been there" betrays uncertainty on this vital point and it consequently becomes impossible to allow the conviction to rest on this uncertain foundation.

¶161

20. This is not to say that five persons must always be convicted before section 149 can be applied. There are cases and cases. It is possible in some cases for Judges to conclude that though five were unquestionably there the identity of one or more is in doubt. In that case, a conviction of the rest with the aid of section 149 would be good. But if that is the conclusion it behaves a court, particularly in a murder case where sentences of transportation in no less than four cases have been enhanced to death, to say so with unerring certainty. Men cannot be hanged on vacillating and vaguely uncertain conclusions.”

¶162

As we have noted in this case, there is no finding that

¶163

more than five persons formed the unlawful assembly in order to

¶164

commit dacoity and hence, Section 396 of the IPC cannot apply against any of the Appellants. If the vicarious criminal liability becomes non-applicable, then the Appellants can only be convicted on the basis of the overt act attributable to them from the evidence.

¶165

Now the another pertinent question is as regards the credibility of P.W.1. We know the law is well settled that it is not the quantity of the evidence, but it is the quality of evidence that matters to draw a firm inference to convict someone. Whether P.W.1 should fall in that category of witness who is wholly trustworthy or not is required to be examined by us. That cannot be any iota of doubt that

¶166

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presence of the P.W.1 during the transaction of crime cannot be disputed. But whether being the mother of the deceased she has testified truth and only truth is a question to be ascertained by this Court. The one test which is to be carried out on the basis of the first disclosure made in the F.I.R. vis-à-vis the disclosure made by her while deposing in the trial. We have already noted that in the F.I.R., P.W.1 has only disclosed the name of the following persons: 1. Gouri Jena, 2. Subash Gouda, 3. Sarai Gouda, 4. Surei Jena, 5. Hadia Palai,

¶168

Bairagi Jena, 7. Batu Jena, 8. Kabar Jena and 9. Goura Jena (against them the overt act as attributed is that, they entered inside and locked the door from inside). 1. Govinda Gouda, 2. Pari Gouda, 3. Sukanta Palai, 4. Magata Jena, 5. Sukuta Jena, 6.Nila Palai, 7.Kasia Swain, and

¶169

Sankar Tarai and few others not named, against them allegation is that they came inside the house. Then Nita Palai, Kasi Swain and Sarkar Tarai crashed inside the house by breaking the glass ceiling of the roof. Magata Palai and Gouri Jena first threatened her. But in the trial, she had stated only the name of Subash Gouda, Gouri Jena, Surei Jena and Magata Palai. She had made a categorical statement that Gouri Jena and Magata Palai took away her gold ornaments, which

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she was wearing. She generally stated in the trial that “accused persons searched for them (her son and husband) in their house and they discovered her son inside the latrine, dragged him out and mercilessly assaulted him by means of tentas, kati and lathi etc. Gouri Jena assaulted him by means of a weapon with three pointed ends. Sankar Jena, Debaraj Jena, Surei Goud, Surei Jena, Sankar Tarai and others, whom she cannot name, they assaulted her son and made him sleep on the latrine in the seriously injured condition. Accused, Surei Jena hit his jaws by means of a coconut. It may be mentioned here that Surei Goud, Surei Jena and Magata Palai were not tried in the said trial as they were on absconding. Thus, her evidence is used against the present Appellants, namely Subash Gouda, Debraj Jena, Goura Jena @ Gouranga Jena and Sankar Jena. In her crossexamination, she has stated that it is not a fact that she did not specifically name the assailants of her son in the F.I.R. nor did she disclose their name before the police during her statement. While her son was being beaten she requested the police to come to his rescue, but they did not, even though the police were present infront of their house when her household articles were set on fire. She has also

¶172

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denied the suggestion the accused persons loaded a paddy bag on the chest of her son or went of them hit his jaws by mean of coconut. To

¶174

test the veracity of the statement, we have no other alternative, but to look at the FIR, which is in admitted document in the record and we find that there is no statement involving those persons whom she named during her cross-examination in the trial. What she had

¶175

disclosed in the F.I.R. is follows:

¶176

“They took away all the commodities and then asked the whereabouts of my son. I said my son is not there, hearing this, they searched all around my house and dragged my son out of the latrine and attacked with javelin spear (weapon like javelin), pointed sword and threw him on the latrine tank. After they left the spot, I along brought my son and laid him in the room towards backyard of my house. Thereafter police came and sent my son to the hospital.”

¶177

There is no allegation against the police in the F.I.R., nor

¶178

is there any disclosure who asked her son and who hit by which weapon. She disclosed those things for the first time in the trial and as such, the veracity of such statement is highly questionable.

¶179

In view of the decision of the apex court in Juwarsingh (supra), the apex court has laid down the law that person whose names were not mentioned in the First Information Report and the witnesses who filed First Information Report was unable to explain why she failed to mention their name in the record and when she had frankly

¶180

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stated that, she cannot state the reason as to why their names were not mentioned, those persons whose name did not find place in the First Information Report are entitled to benefit of doubt and should be acquitted. In the First Information Report, name of Debraj Jena and Sankar Jena are not available. But their names have been disclosed as the assailants of her son in the trial. As such, these two accused persons Sankar Jena and Debraj Jena, Appellants No.2 and 4 respectively are entitled to the benefit of doubt about the involvement of the crime in as much as P.W.1 did not make any statement why she could not name them at the first instance when she filed the First Information Report to the police. As we have already stated that charge under Section 396 of the IPC cannot be applied in the present case, the remaining two Appellants also liable to be acquitted from the said charge.

¶182

Now the another question is that (i) whether those remaining two Appellants, namely, Subash Gouda, the Appellant No.1 and Goura Jena @ Gouranga Jena, Appellant No.3 have done any overt criminal act for which they are individually liable to be convicted or not. In this regard, we should like to note again that, we

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find P.W.1 did not make any allegation against the police in the First Information Report or did not disclose anything in the First Information Report that police was waiting outside the gate and despite her request for help, they did not came inside to protect them for which the accused persons would vandalize, destroy and cause damage to the properties. For the said inaction the death could be caused to her son, there is no such reflection in the First Information Report, but such allegations have been made in the trial court for the first time. As the Appellants No.1 and 3 are exonerated from the vicarious criminal liability, we are to reconsider the evidence of P.W.1. Against Appellant No.1, P.W.1 has testified in the trial that Subash Gouda and Goura Jena (the Appellants No.1 and 3 respectively) came to their door. Out of fear at that time P.W.1 and other inmates of the house closed their middle door of the house from inside. They advised the deceased to conceal himself. According to her, all the accused persons were armed holding lathi, chela, farsa and kati etc. and they broke opened the door of their house. At that time Gouri Jena threatened to disclose the whereabouts of her husband and demanding the key of the almirahs and boxes, when she denied they

¶185

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broke open the almirahs and boxes and took out the sarees, cash and belmettal utensil etc. Even the golden ornaments were taken away by them. (ii) they discovered her son inside the toilet, dragged him out and mercilessly assaulted by means tenta, kati, lathi etc. Goura Jena assaulted him by means of a weapon with three pointed ends. Sankar Jena, Debaraj Jena, Surei Gouda, Surei Jena and Sankar Tarai and others whom she cannot name assaulted her son and made him sleep on the latrine tank in seriously injured condition. In the second part of the occurrence of the same transaction, the name of Subash Gouda is not revealed from the deposition of P.W.1. So far as the second part of the occurrence is considered, that was never stated by P.W.1 either in the F.I.R. or to the police officer who investigated the case (P.W.9). P.W.1 has categorically made a statement in the cross-examination, which has a significant bearing on the case and for the reason, we reproduce the relevant part of the testimony of P.W.9 below:

¶187

“I examined Priyambada Panda (P.W.1). She stated before me that some accused persons after entering inside the house bolted the door from inside. PW.1 did not specifically state before me the name of the assailants of her son.”

¶188

[Emphasis added]

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In view of the said specific statement, we can rely to

¶191

convict the Appellant No.3 for any other act relating to the killing of this son. So far as the first part of the transaction of the crime is concerned, P.W.1 has stated the name of Appellant No.1 and Appellant No.3 along with other accused persons to have entered inside the house and bolted the door from inside. Later on they broke

¶192

open the outer door and entered inside. P.W.1 has stated in the course of her examination as follows:

¶193

“All the accused persons were variously armed holding lathi, chella, farsa, kati etc. They broke open the middle door of our house and forced their way inside. Gouri Jena and Nagata Palai threatened to disclose the whereabouts of my husband and demanded the key of the almirahas and boxes, of my house. I replied that I did not have the key with me. Then the accused persons forcibly entered into our pooja room and broke open the almiraha. They took away 18 polyster sarees, 13 printed saree, five silk saree (patta), cash of Rs.10,000/and gold ornaments. They also broke open a wooden box kept in the middle room and took away brass and bell metal utensils. Gouri Jena and Nagata Palai threatened me in presence of other accused persons and they also took away all the gold ornaments from my person. Out of fear I made over those ornaments to them. The ornaments include one Khasu mala consisting of eighteen coins, one Dhanua Mali, one sorisia Mali, seven numbers of gold bangles, two gold roolis and a gold ring with a green stone and two gold ear rings with jhumpi. They also took away hundred bags of paddy staked on the back yard. They brought wooden furniture and all other articles out of the house and set them ablaze. A cycle and luna were also burnt by them.”

¶194

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As such, details are also not disclosed in the First

¶196

Information Report. What she had disclosed in the First Information Report is as follows:

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“On my refusal saying that I don’t have the key, all of them entered into our worship room and the middle room of our house and broke the cup-boards, placed inside the room for worship. They also broke the bell metal trunk and other trunks placed in the middle room. From the cup-board placed inside the room of worship they took away 3 pieces of Patta (silk cloths) of pink, white, yellow colours, mean for men, 2 pieces of pink coloured patta (silk) sarees for women, 18 pieces of polyster sarees, documents gold jewelries, 5 layered gold chain of 8 toala, dhanua mali (string of paddy shaped beads) of e tola, one patri mali (string of leafy beads) of 2 tola, 7 pieces gold rings, sorisia mali (string of mustard shaped beads) of 1.5 tola, two chains for kids and one watch of HMT make model and cash of Rs.10,000/- along with some coins of different denominations etc. Goura Jena and 3-4 others took away the ornaments that I was wearing such as two gold rulis (flattened rounded bangles made of gold), two gold bangles, 7 gold bangles, gasu mali with eighteen gasus (a thread carrying 18 coins shaped beads) and one sorisia mali, and one dhanua mali (string of paddy shaped beads) of 1.5 tola and one ring with a gree stone and one pair of filigree danglers (pendi) and one pair of kana fula, a pair of jhika. Opening the bell metal trunk they took away 5 plates, 22 curry pots of bell metal, 5 pieces of bell metal plates, 7 small pots (4 pieces of brass and 3 pieces of bell metal), 2 handas (two big cooking pots, usually made of brass), 3 brass plates, 15 small trunks of size 6” x 4” sizes. They destroyed 7 shacks of paddy, a moped (luna), one bicycle, 7 local cloths, two mattresses, two patti (local named mattress) by taking the said articles outside and setting those on fire on the village road in front of our house.”

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There was no corroboration on this fact when the two

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witnesses are available at the place of occurrence viz, P.W.1 is mother-in-law and her daughter. But they were not examined in the

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trial and as such, there is no corroboration regarding the fact. Even those seized articles which were recovered and seized from the house of some of the accused persons were not identified by P.W.1 in the trial. Therefore, no linkage could be established by the prosecution between the seized materials and the Appellants. Withholding of the two important witnesses by the prosecution defies all logic and as such, benefit of doubt must go to the accused persons. So far as destruction of the properties or taking away the silk sarees and other articles are concerned, that was disclosed at the earliest occasion. We have no reason to disbelieve the P.W.1 so far as the lurking housetrespass or house breaking in order to commit offence punishable with imprisonment is concerned. For that part of the evidence of P.W.1 appears very natural and reliable. The duty of the court is to thresh out the grain from the chaff and not to discard the entire evidence on the ground of unreliability of part of the evidence. Hence, even though we have acquitted the Appellants No.1 and 3 from the charge under Section 396, 147,148 and 149 of the IPC. We find sufficient material to punish them under Section 454 of the IPC and for this, we hold that

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against both the Appellants No.1 and 3, the said charge has been independently proved. Accordingly, they are liable to be sentenced.

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Having regards to the gravity of the circumstances, we sentence the Appellant No.1, Subash Gouda and Appellant No.3, Goura Jena @ Gouranga Jena to suffer rigorous imprisonment for three years with fine of Rs.10,000/- (Rupees ten thousand) in default of payment of the said fine, the Appellants shall suffer one year simple imprisonment. It is apparent from the order dated 15.02.2007 passed in M.C. No.10 of 2007 by this Court arising out of this appeal that all the Appellants had suffered more than ten years of imprisonment on the date of order i.e. 15.02.2007 for which they had been granted bail. As such, for the Appellants No.1 and 3 are entitled

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to be released forthwith, if not wanted in any other case. So far as the sureties of Appellant No.2, Debraj Jena and Appellant No.4, Sankar Jena are concerned, they are discharged from their respective obligations.

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