The judgment establishes the importance of the prosecution's obligation to establish a prima facie case and the burden of proof on the accused in cases involving offences under section 399 and section 402 of the Indian Penal Code.

JUDGMENT

S.K. Sahoo, J. - The appellant Jaganath Mundari faced trial in the Court of learned First Addl. Sessions Judge, Rourkela in Sessions Trial No.97 of 2011 for offences punishable under sections 399 and 402 of the Indian Penal Code on the accusation that on 11.07.2010 at about 11.00 p.m., he along with others were found assembled near DAV Public School field, Rourkela by keeping a Bolero jeep for the purpose of committing dacoity and making preparation for the said purpose.

The learned Trial Court vide impugned judgment and order dated 04.11.2016 found the appellant guilty of both the charges and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.2,000/- (rupees two thousand), in default, to undergo rigorous imprisonment for three months more for the offence under section 399 of the Indian Penal Code and rigorous imprisonment for three years and to pay a fine of Rs.1,000/- (rupees one thousand), in default, to undergo rigorous imprisonment for two months more for the offence under section 402 of the Indian Penal Code and both the sentences were directed to run concurrently.

2. The prosecution case, in short, as per the first information report lodged by Sadananda Pujahari (P.W.6), Inspector of Police, Uditnagar police station is that on 11.07.2010 at about 11.00 p.m. he received reliable information from his sources that some unknown persons had assembled in DAV Public School field keeping Bolero vehicle by their side and were planning to commit dacoity in the house of Principal, DAV Public School. Getting such information, P.W.6 entered the fact in the Station Diary and in order to verify the veracity of the information, he along with other police officials rushed to the spot by police jeep. On the way to the spot, P.W.6 took two independent witnesses with them and they arrived at the spot at about 11.30 p.m. and found a group of persons were discussing among themselves by the side of a Bolero vehicle by burning a candle. They rounded them up and apprehended five persons. Being asked, the persons assembled disclosed their identity and one of them was the appellant Jaganath Mundari and they could not account for their presence at such an odd hour of night. On personal search of those persons, three black masks were found from the possession of the appellant and from possession of others, two billhooks (katuri), black masks and one screwdriver were found and those articles along with one half burnt candle, match box and the Bolero vehicle were seized and seizure lists were prepared. P.W.6 drew up a plain paper F.I.R. at the spot, which was ultimately registered as Uditnagar P.S. Case No.72 dated 12.07.2010.

P.W.7 Tusil Majhi, S.I. of Police attached to Uditnagar police station took up investigation of the case as per the direction of P.W.6 and after preparation of seizure lists of different articles including three black masks from the possession of the appellant under seizure list Ext.8, the apprehended persons including the appellant and the incriminating materials were brought to the police station. During course of investigation, P.W.7 examined the witnesses and forwarded the accused persons to the Court and on completion of the formalities of investigation, finding prima facie against the accused persons, he submitted charge sheet against the appellant as well as one David Kandulana, whose case was splitted up as he absconded while on bail and three children in conflict with law. The appellant was charge sheeted under sections 399 and 402 of the Indian Penal Code.

3. After submission of charge sheet and commitment of the case to the Court of Session, the learned trial Court framed charges against the appellant under sections 399 and 402 of Indian Penal Code on 01.10.2011 and since the appellant refuted the charges, pleaded not guilty and claimed to be tried, the sessions trial procedure was resorted to prosecute him and establish his guilt.

4. The defence plea of the appellant is one of