The court upheld the conviction under Section 380 IPC while emphasizing the applicability of probation for older appellants with clean antecedents.

JUDGMENT :

Sibo Sankar Mishra, J.

The present Criminal Appeal, filed by the appellants under Section 374 of the Cr. P.C., is directed against the judgment and order dated 30.09.1991 passed by the learned Additional Sessions Judge, Kendrapara in S.T Case No.327 of 1990/ 6 of 1991, whereby the learned trial Court has convicted the accused-appellants for the offences punishable under Section 380 of the Indian Penal Code , 1860 (herein after ‘IPC’ for brevity) and, accordingly, sentenced them to undergo R.I. for one year each.

2. The prosecution case tersely stated is that, the criminal law was set in motion on the written report of one, Asok Kumar Pradhan. In the written report, it was alleged that while the informant and his wife were sleeping in their house at village Mulagain at about 12:30AM on 1.05.1990, the accused persons (Total 12 number of accused persons out of which only Serial No.7 and 10 are convicted, who happen to be the appellants in the instant appeal) entered inside the bedroom of the informant by uprooting the front door of the house. Two of the accused, namely, Kirti and Sarat (Accused No. 3 and 9), caught hold of the informant and one accused, namely, Kishore (Accused No.6) tried to deal knife blow on the throat of the informant, however, the same hit his right cheek. It is alleged that at that time the other accused persons were holding “Tenta” and “Bhala” (types of weapon) etc. Subsequently when the couple made “hulla” the informant’s father and other villager’s rushed in, following which the accused persons left the spot taking away the boxes containing some gold, clothes and cash of Rs.1000/-. Consequently, the spot was visited by the Pattamundai Police, search and seizure was done and subsequently charge-sheet was submitted and the accused persons were charged under Section 395 of the I.P.C.

3. To bring home the charges against the accused persons, the prosecution examined as many as 11 witnesses out of which P.W.1 was the informant, P.W.3 was the father of the informant, P.W.10 is the wife of the informant, P.W.11 was the Investigating Officer (I.O.), P.W.7 was a scribe of the F.I.R., P.W.8 was a witness to the seizure, who doesn’t claim to have personal knowledge regarding the occurrence. P.W.9 was a doctor, who treated the informant on police requisition. P.Ws. No.2, 5 and 6 were the villagers, who rushed inside the bedroom of the informant on hearing the “hulla” along with the father of the informant. P.W.4 was also a villager, who witnessed the present appellants running away with two boxes.

4. The learned trial court have meticulously dealt with the evidences on record, and the submissions made by both the parties and has concluded that there are no sufficient evidences brought on record to nail the accused persons guilty of the charges of Section 395 of the IPC, and resultantly acquitted all the accused persons of the said charges. However, the learned Court below found sufficient evidence to convict the present appellants under Section 380 of the IPC. So, convicted them there under. The relevant paragraphs of the Judgment of the learned Court below are reproduced herein for ready reference:

“24. Really enmity or litigations are not grounds for rejecting testimony of any witness though in such circumstances his testimony is subject to strict scrutiny which has already been done in this case. The learned counsel for defence in support of his aforesaid submission has cited a number of decisions in course of his argument which need not be referred to.

25. In view of aforesaid discussion, I find that prosecution has failed to prove all ingredients of charge U/s. 395 I.P.C. against accused persons but I find sufficient evidence as discussed ab