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State of Orissa Vs. Khora Paradesi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberGovernment Appeal No. 41 of 1980
Judge
Reported in1985(I)OLR153
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 164
AppellantState of Orissa
RespondentKhora Paradesi and ors.
Appellant AdvocateR.K. Patra, Addl. Govt. Adv.
Respondent AdvocateS. Kr. Mohanty and P. Kar
DispositionAppeal dismissed
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........p. w. 5, the respondents had not been named as the culprits the names of the villages to which the culprits belonged had not bean stated therein. a statement had been made by the first-informant that from their talks, he could conclude that they belonged to aboriginal tribes. in the course of investigation, however, p. ws. 5 to 8 had identified the respondents other than the respondents angra khagu, pangi dumri and pangi mamun (respondents nos. 2, 8 and 17 respectively) at the test identification parade and later during the trial. there was thus no legal evidence against three of the respondents. the other respondents had been identified at a test identification parade conducted by the judicial magistrate (p. w. 1) by p. ws. 5 to 8. this identification parade was, in a sense, meaningless.....
Judgment:

B.K. Behera, J.

1. The State is in appeal against the judgment and order of acquittal recorded by the trial Court finding the respondents, who had figured as the accused persons, not. guilty of the offence of dacoity punishable under section 395 of the Indian Penal Code with which they stood charged and also finding the respondent Jani Polia not guilty of the offence punishable under section 414 of the Indian Penal Code with which he had separately stood charged. The appeal has abated as against the respondents 15 and 17 as they died during the pendency of the appeal, as per order Nos. 6 and 10 passed by. this Court in this appeal.

2. The respondents, it was alleged, at about 10 p. m. on March 24, 1979, being armed with lathis and other instruments, committed dacoity in the house of Hrusikesh Panigrahi (P. W. 5) and removed gold, cash, clothes and utensils which had been witnessed by P. W. 5, his wife (P. W. 6), his daughter (P. W. 7) and his son (P. W. 8) who had figured as witnesses to the occurrence. On the basis of the first information report (Ext.14) loafed by P. W. 5, investigation followed and on its completion, a charge-sheet was placed and the respondents were prosecuted.Their plea was one of denial and false implication. The prosecution had examined eleven witnesses to establish its case. Two witnesses had been examined for the defence. On a consideration of the evidence, thetrial Court found that no case had been made out against any of the respondents.

3. I have heard the learned counsel for both the sides who have taken me through the relevant evidence. It is not disputed at the Bar that a dacoity had been committed in the house of P. W. 5. The question is as to whether the respondents were the authors of the crime and in addition, as to whether the respondent No. 3 Jani Polia had assisted in the disposal of one of the stolen properties, viz., the Lota (M. O. I) which had been recovered from his possession.

4. For sufficient and justifiable reasons, the trial Court had held that it had not been established by the prosecution that M. O. I belonged to P. W. 5 and it accepted the case of the respondent No. 3 that it belonged to him. At the hearing of this appeal, the learned Additional Government Advocate has not pressed into service the evidence with regard to identification and ownership of P. W. 5 in respect of M. O. I adduced by the prosecution at the trial.

5. It is important to bear in mind that in the first information report lodged by P. W. 5, the respondents had not been named as the culprits The names of the villages to which the culprits belonged had not bean stated therein. A statement had been made by the first-informant that from their talks, he could conclude that they belonged to aboriginal tribes. In the course of investigation, however, P. Ws. 5 to 8 had identified the respondents other than the respondents Angra Khagu, Pangi Dumri and Pangi Mamun (respondents Nos. 2, 8 and 17 respectively) at the test identification parade and later during the trial. There was thus no legal evidence against three of the respondents. The other respondents had been identified at a test identification parade conducted by the Judicial Magistrate (P. W. 1) by P. Ws. 5 to 8. This identification parade was, in a sense, meaningless because the evidence from the side of the prosecution itself and that of D. Ws. 1 and 2 clearly indicated that the respondents had been known to these witnesses from before and some of them had even served as field servants under P. W. 5. In this state of the evidence, non-mention of the names of the culprits or even the villages to which they belonged in the first information report by the victim (P. W. 5) would assume considerable -importance as he would certainly have mentioned the names of the culprits and given the descriptions of the others including the names of the villages to which they belonged if he had identified them during the con mission of the offence of dacoity. Regard being had to their relationship with P. W. 5, P. Ws. 6 to 8 would have disclosed the names of the culprits or given their descriptions to P. W. 5 before he went and lodged the first information report. If P. Ws. 5 to 8 had earlier known the culprits whom they had identified at the test identification parade, their identification of these persons at the test identification parade would not further the case of the prosecution. There could be no doubt from the evidence that having no knowledge about the actual culprits, the case had been developed at the stage of investigation and some persons earlier known to P. Ws. 5 to 8 including some who had formerly served under P. W. 5 had been roped in.

6. I must keep on record a disquieting feature. The trial Court had taken no due note of Ext. 2, the confessional statement made by the respondent No. 18 Bhogia Chetti before the Judicial Magistrate (P. W. 1) after sufficient time had been given to him for reflection before making a confessional statement implicating himself. A question in this regard had been put to this respondent while he was examined under section 313 of the Code of Criminal Procedure and the respondent had retracted from it, but no reference had been made to it in the judgment. While in law, an order of conviction can be recorded on the basis of a retracted confession, as a rule of prudence, a Court looks for some corroboration. General corroboration of a refracted confession is sufficient to warrant a conviction. As in the instant case, the evidence of identification of this respondent at the trial had not been and could not be accepted, there was no other evidence to corroborate his retracted confession.

7. It would thus be found that the order of acquittal recorded by the trial Court is reasonable and no interference is called for. The appeal fails and is dismissed.


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