Judgment

P.V. B Rao, J

[1] The 18 appellants in Criminal Appeal No. 2 of 1956 and the appellant in Criminal Appeal No. 13 of 1956 were convicted by the learned Assistant Sessions Judge, Mayurbhanj after trial of these 19 persons along with 11 others on charges under Sections 395 and 412 , I. P. C. and were sentenced to various terms of imprisonment. Appellants Nos. 1 to 7, 9, 10, 12 to 14, 17 and 18 were convicted Hinder Section 395 I. P. C. and were each sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 300/- in default to undergo rigorous imprisonment for a further period of 3 months.

Appellants Nos. 8 and 16 were convicted under Section 412 I. P. C. and were each sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 50/- in default to undergo rigorous imprisonment for a further period of one month. Appellants Nos. 11 and 15 were convicted under Section 412 I. P. C. and were each sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 300/- in default to undergo rigorous imprisonment for a further period of 3 months. The appellant in Criminal Appeal No. 13 of 1956 was convicted under Section 412 I. P. C. and was sentenced to undergo imprisonment for 5 years and to pay a fine of Rs. 300/-, in default to undergo rigorous imprisonment for a further period of 3 months.

[2] The prosecution case is that there was a dacoity at about 8-30 P. M. on 27-9-54 in the house of one Banshidhar Behera (P. W. 5) in the village Panaspada under the following circumstances. Banshidhar Behera was going to his bed room after his night meals when about 30 persons entered into his house through the western door near his threshing floor and four of them caught hold of him and tied his hands by means of his muffler which was on his head. Some of these 30 persons had lathis, some torch lights and some had swords dazzling in their hands. P. W. 5 raised a cry for help, but he was threatened not to shout and he was assaulted by fist-blows and slaps.

On hearing his cry, his mother Rambha Bewa (P. W. 4) and his sister Mallikamani Dei (P. W. 3) who was in advanced stage of pregnancy ran to him from the kitchen, block and his wife who was with her baby sleeping in a room in the kitchen block concealed herself in that room. The remaining inmate, apart from the two Mulias, was Harihar Behera, the husband of P. W. 3 who, it is stated, was then out of the house having gone to a shop for purchase of Bidis. When P. Ws. 3 and 4 came to P. W. 5 on earing his cry, they were tied by their respective hands by the ends of their Saris and tied to two different posts.

The dacoits then forced open the door of the bed room, entered into it and dragged P, W. 5 therein. They took possession of the Gun (M- O. VII) belonging to P. W. 5, broke open the wooden box (M. O. VI) both of which were in the room, and took the gold Kanthihar of P. W. 4 (the torn pieces are marked M. Os. II to II-5) and some cash from the said box. They also took the five cells torch light (M. O. VIII) and another three cells torch light from the said room. Then it is stated that they demanded P. W. 5 to show the other articles by assaulting him and that at the entreaty of P. W. 4, she was allowed to follow her son with her hands tied.

She, it seems, entreated the dacoits not to assault her son and promised to give away all. Some of the dacoits went to an open room inside the compound surrounded by other blocks, broke open the almirahs and took away the contents including Dhotis, Saris, Tussur Dhotis Katia Chudders and Rs. 2000/- in two rupee notes pinned together in ten bundles which were wrapped in a durry and some durries including M. O. X. from one almirah and cash and some silver ornaments from another almirah. They then forced open the room in which there was an iron-safe and demanded the key of the safe. P. W. 4 asked her son to make over the key.

They opened the safe and took away the cash in five and ten-rupee not