James Khalko vs The State of Orissa

G.K. Misra, C.J.—Petitioner James Khalko, Narendra Das and Pandu Ghasi were convicted by the Assistant Sessions Judge, Keonjhar, u/s 402, Indian Penal Code and each of them was sentenced to R.I. for one year and four months and to pay a fine of Rs. 500/ -; in default to undergo R.I. for two months more. Pandu Ghasi did not file any appeal. The appeal filed by Narendra Das was dismissed and he has nor filed any revision. The appeal filed by the Petitioner was dismissed and accordingly he has filed this revision.

2 Prosecution case may be stated in short. On 22nd of April, 1972 the A.S.I.H.K. Jena (P.W.14) attached to Barbil Police Station in the district of Keonjhar was on duty for checking suspects and bad characters. Barbil is mining area. There are labour settlements called huttings. Libia hutting are within the boundary of Orissa State while Hirjee huttings are within the boundary of Bihar State. At about 8 a. m. when P.W. 14 was in Libia huttings he found five persons near the railway lines drinking liquor. He with his police party challenged them. They ran inside the adjoining forest and felted stones when chased. P w. 14 came back to the police station for assistance. He lodged the Station Diary entry (Ext. 7). The Circle Inspector of Police of champua (p w. 17) was camping at that time at Barbil Police Station. He deputed a police party to trace out the culprits. P.w. 14 got information that those five persons had gone to Hirjee huttings and were taking liquor in the house of Manu Tanti (P.W.4). He with the police party entered inside the house of P.W. 4 for a raid and arrested Narendra Das and Pandu Ghasi. The other three persons escaped. Injuries were caused to P.W. 14 and two of the constables. A gun, daggers, knives and house braking instruments were recovered from Narendra Das and Pandu Ghasi. P.w. 14 produced them before P.W. 17 who drew up a plain-paper F.I.R. (Ext. 8) which he sent to the police station for registering a case as he was at that time at Nalanda, and himself took up the investigation. The Petitioner who had escaped from the house of P.W. 4 was arrested by Bihar Police. A Test Identification Parade was made before a Magistrate at Chaibasa wherein he was identified. Defence was one of denial.

Both the Courts below have concurrently found that there was an assembly of five persons in which the Petitioner was a member and those persons had assembled for the purpose of committing dacoity. The identity of the Petitioner as one of the member of the assembly was accepted.

Mr. Sahu for the Petitioner contended that the identity of the Petitioner as a member of the assembly been accepted on unsatisfactory materials.

Before examining that question it would be appropriate to notice Section 402, Indian Penal Code which runs thus:

Assembling for purpose of committing dacoity. Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, shall also be liable to fine.

The prosecution shall establish:

(i) there was an assembly of five or more persons;

(ii) the assembly was constituted for the purpose of committing dacoity; and

(iii) the accused persons were members of that assembly.

The first and third elements are to be factually established. The only question of importance is how to gather the purpose of the assembly as being one of committing dacoity This can be gathered only from the circumstances of the arrest of the accused and the nature of the articles recovered from the possession of the accused. In this case dangerous arms like a gun, daggers and knives were recovered from the person who assembled in the house of P.W. 4. There were also house breaking implements. There is no difficulty in drawing a reasonable inference that the purpose of the assembly was to commit dacoity by house breaking implements and to attack the inmates, if necessary, by dangerous arms.

The recovery of these arms and house breaking instruments has been well established through the evidence of PWs. 14, 2, 10, 3, 4, 5 and 6. The gun itself is a stolen property belonging to P.W. 6, an ex-M.P. of Bihar. Both the Courts below have thoroughly discussed the evidence of recovery. Nothing substantial was urged for discarding their conclusion. From the recovery of these dangerous weapons and house breaking implements the Courts below rightly drew the conclusion that the assembly was for the purpose of committing dacoity.

The next question for consideration is whether there was an assembly of five persons. Two of the persons were arrested in the house of P.W. 4. They were Narendra Das and Pandu Ghasi. There is abundant evidence that there were five persons near the railway lines drinking liquor and there were five persons in the house of P.W. 4. The learned Sessions Judge concluded that the link between the five persons found near the railway lines and the five persons found in P.W. 4''s house is clearly established. This finding is not accurate. There is no evidence that the two persons who were un traced were common to both the groups. Whatever it may be, the fact remains that the Petitioner was one of the five persons who assembled in the house of P.W. 4 and if the identification of P.W. 14 is accepted, then the Petitioner was a member of both the groups. The link between the two groups need not be fully established. It would be sufficient if the prosecution proves that the Petitioner was one of the five persons who assembled in the house of P.W. 4 or near the railway lines. The concurrent finding is sufficiently borne out by the evidence of PWs. 14, 8, 9, 7, 5, and 3. Nothing substantial has been urged to dislodge the finding.

The last question for consideration is whether the prosecution has been able to establish beyond reasonable doubt that the Petitioner was one of the persons who assembled near the railway lines and in the house of P.W. 4. The identification at the T.I. Parade has not been accepted by the learned Sessions Judge. He, however, rested his conclusion on the identification of P.W. 14 in Court. Both the Courts have concurrently accepted the evidence of P.W. 14 as reliable in identifying the Petitioner as being present in the assembly at both the places. P.w. 14 has given very cogent reason as to how he remembers the Petitioner. He says that when the assembly near the railway lines was challenged, the five persons ran away and pelted stones towards the police party at the time of chasing. P.w. 14 had, therefore occasion to closely mark the Petitioner. He again saw the Petitioner in the house of P.W. 14. Thus, he had occasion to see twice the Petitioner on the same day. There is no reason why P.W. 14 would falsely implicate the Petitioner if he did not identify him. At any rate, when two Courts of fact have believed P.W. 14, there is no reason for me to make a different view at the revisional stage.

It was contended by Mr. Sahu that the statement of P.W. 14 to P.W. 17 before the latter recorded Ext. 8 was not supplied to the Petitioner and this has caused serious prejudice. The learned Sessions Judge in paragraph 11 of his judgments fully given the reasons in support of his conclusion that there has been no prejudice for non-supply of that statement. No useful purpose would be served to repeat the very reasonings which appear quite cogent to me.

There is no merit in this revision which is accordingly dismissed.