1. These two revision petitions are directed against the judgment of the learned Second Addl. Sessions Judge, Ganjam Berhampur whereby he has confirmed the judgment of the trial court convicting the petitioners under Sections 457/34 I.P.C and 354/34 I.P.C and sentencing them to each undergo rigorous imprisonment for two years and to pay fine of Rs. 500/-, in default, to undergo rigorous imprisonment for a further period of six months under Section 457/34 and to undergo rigorous imprisonment for one year under Section 354/34 IPC, with a direction that the sentences shall run concurrently.

2. Shortly stated, the prosecution case is that on 2-7-1989 at about 11.30 P.M while Radha Charan Patnaik (P.W 10) was returning to his rented house from the market, he found on a junction near his house some persons to have been injured. He rushed to his house and returned to the junction with some face powder and neosprin ointment. Not being sat-isfied with such medicine, the petitioners who were there in the junction assaulted P.W 10 mercilessly and threw him to a road side drain. Having heard the hue and cry raised by P.W 10, his family members came to their outer varandah which was covered by wooden jeffry but did not dare to come to the rescue of P.W 10 because of the golmal going on there. Thereafter, the accused persons broke open the jeffry with the weapons of offence they were holding and went inside the house which consisted of three rooms one behind the other. Out of fear of assaults, the wife (P.W 3) and the two daughters (P. Ws. 7 and 8) of P.W 10 went inside the house and bolted the entrance door from inside. It is alleged that the accused persons broke open the door and went to the second room to find P.W 3 there. Out of fear, P. Ws. 7 and 8 who are young girls entered inside the third room. P.W 3 told the accused persons to take away her life if they liked but not to harass her daughters. In the meanwhile, both the sons of P.W 10 namely, Sushil Kumar Patnaik (P.W 1) and Sunil Kumar Patnaik (P.W 4) returned to the house after closing their betal shop situated nearby and found all the accused persons to be there inside the house. At that time, accused Santosh alias Napali Patnaik and Gopal Krushna Panda went inside the third rooms and selected the two girls (P. Ws. 7 and 8). Somehow or other P. Ws. 7 and 8 made good their escape by scaling over the wall of their back side ban and took shelter in the house of one Suadhin Patra (not examined) situated in another Oshi. P.W 1 rushed to the nearby Gauri Sahi and implored some people to come to his rescue. Some persons of Gauri Sahi rushed to the spot along with him and at their sight the accused persons took to their heels. P.W 10 was rescued from the drain and he gave out that the culprits had taken away his wrist-watch from his hand and Rs. 500/- from his shirt pocket. First information report to the above fact (Ext. 1) having been lodged by P.W 1 in the same night at 1.30 A.M, the police rushed to the spot, seized the broken doors, sent the injured i.e P. Ws. 3 and 10 for medical examination, arrested the accused persons, sent some of the accused persons for medical examination and after completion of investigation submitted charge-sheet. The case having been committed, not only the four petitioners but also one Nirakar Mohanty faced trial in the court of the Chief Judicial Magistrate-cum-Assistant Sessions Judge, Berhampur. As already indicated earlier, the petitioners were convicted and sentenced and although accused Nirakar Mohanty was convicted under Sections 457/34 and 354/34 I.P.C, he was released on Probation of Offenders Act. The said accused Nirakar Mohanty has not filed any revision although his appeal against the order of conviction and sentence was dismissed by the appellate court.

3. Accused Santosh alias Nepali Patnaik took the plea of alibi saying that at the time of the alleged occurrence he was witnessing a movie and the other accused persons took the plea of denial. One witness namely, Pradeep Patra (D.W.I) was examined in support of the defence plea.

4. While admitting Criminal Revision No. 600 of 1990, this Court by order dated 19-12-1990, issued notice to the three petitioners therein namely, Santosh alias Nepali Patnaik, Gopal Krushna Panda and C. Simadri Patra to show cause as to why the sentence imposed against them would not be enhanced.

5. Mr. P.C Panda, the learned counsel for the petitioners in Criminal Revision No. 600 of 1990 has not only elaborately placed the judgment of both the courts below but also taken as through the evidence of all the witnesses. His contention is that the evidence of all the witnesses are very much inconsistent in material particulars and on the basis of such evidence, the trial court could not have convicted the petitioners and, therefore, the appellate court could have confirmed such conviction. Mr. S.D Das, the learned counsel for the petitioner Kanhu Charan Patra contends that there is no evidence on record that the petitioner outraged the modesty of either P.W 7 or P.W 8 and his conviction under Section 354 taking aid of Section 34 I.P.C could not have been sustained by the appellate court in view of the direct evidence of P.W 4 indicating that he advised him (P.W 4) to instruct his sisters (P. Ws. 7 and 8) to leave the house saying that the other accused persons were drunk. The learned Addl. Govt. Advocate, on the other hand, supports the impugned judgment.

6. In order to prove its case, the prosecution examined as many as 14 witnesses out of whom P.W 10 is the injured who was first attacked; P.W 3 is the wife of P.W 10 whereas P. Ws. 1 and 4 are his sons and P. Ws. 7 and 8 are his daughters; P.W 2 is the medical officer who examined P.W 10 and P.W 13 is the medical officer who examined P.W 3; P.W 14 is the investigating officer and others are seizure and some unimportant witnesses. On consideration of their evidence, the trial court convicted and sentenced the accused persons which has been confirmed by the appellate court, as stated above.

7. Having gone through the evidence of the P. Ws., I find that P.W 3, the wife of P.W 10 has clearly stated that in the night in question while she was in her house along with her two daughters (P. Ws. 7 and 8), the accused persons being variously armed entered into their outer varandah by breaking open the jeffry-and also entered into their living room by breaking open the door. Her further evidence is that at the entry of the accused persons, her daughters (P. Ws. 7 and 8) entered into the third room being followed by some of the accused persons. Apprehending outraging of their modesty, she told the accused persons to spare her daughters. Her evidence has not been only corroborated by her two sons (P. Ws. 1 and 4) but also by her two daughters (P. Ws. 7 and 8). It is the further evidence of P.Ws 7 and 8 and their brothers (P. Ws. 1 and 4) that after molestation by accused Santosh alias Nepali and Gopal Krushna, they escaped by scaling over the wall of their back side bari and took shelter in the house of Swadhin Patra of another nearby sahi.

8. Mr. Panda for the petitioners in criminal revision No. 680 of 1990 has invited my attention to some of the inconsistencies in the evidence of the witnesses but before dealing with them, I find on examination of the evidence of D.W.I that the defence has admitted a substantial part of the prosecution case. According to the evidence of D.W 1, in the night in question there was an occurrence in the house of P.W 10 in which the jaffry was broken open and so also the door of the house which had been bolted from inside. It is further deposed by him that there was a crow of 10 to 12 persons in front of the house of P.W 10 and they dragged P.W 10. It is also there in his evidence that P.W 10 had gone to his house for rest and at that time he had injuries in his face and fore head. While giving such evidence, the witness has of course stated that the accused persons were not there. When a substantial part of the prosecution case has been admitted by the defence through D.W 1, the scrutiny of the evidence of P. Ws. is not required to be so vigorous. It is pointed out that on the question of actual molestation there is discrepancy in the F.I.R and the evidence of P. Ws. 7 and 8. While in court P.W 7 has deposed that her breast was squeezed by accused Nepali Patnaik and her evidence was corroborated by P.W 8, there is no mention of such molestation in the F.I.R As already indicated earlier, F.I.R was lodged by one of the brothers (P.W 1) and the squeesing of breast might not have been told to him by P. Ws. 7 and 8. Again, P.W.I might not have himself marked the actual squeezing of breast. Under these circumstances, for omission in the F.I.R about the squeezing of breast of P.W 7, the evidence of P. Ws. 7 and 8 cannot be disbelieved particularly when in Indian society unmarried girls like P. Ws. 7 and 8 will not making such allegation unless it is true because the same is to affect their marriage prospect. It is true that although P. Ws. 3 and 4 have deposed that P. Ws. 7 and 8 escaped through the back side wall of the bari, the evidence of the letters was to the effect that they escaped through the side wall of the bari. This discrepancy is liable to us ignored because it has no bearing on the question of actual occurrence. Further, although P.W 3 has deposed that she sustained an injury on her neck as a result of the fist blow given by one of the accused, the medical evidence does not corroborate her evidence. The doctor examining her found one bruise on the back of her right ear and tenderness all over her head, but according to him, those injuries were within four hours at the time of his examination which took place on 3-7-1989 at! about 11.30 P.M In view of such medical evidence,; the evidence of P.W 3 that she received the injury on her neck may not be believed, but that can have no’ effect on the prosecution case. Non-examination of Swaphin Patra by the prosecution has been commenced upon. As stated earlier, P. Ws. 7 and 8 took rest in his house after escaping from their own house. Since a major part of the prosecution case has already been admitted through the evidence of D.W 1, non-examination of this witness cannot be seriously viewed. Another discrepancy pointed out by Mr. Panda for the petitioners is that while P. Ws. 3 and 4 have espassed that P. Ws. 7 and 8 remained inside the third room by bolting the door from inside, the evidence of P.W 7 indicates that the door of the third room was bolted from outside by their mother as the said door had no chaining arrangement from inside This cannot be called a very serious discrepancy] because the evidence of P. Ws. 3 and 4 may seen that P. Ws. 7 and 8 remained inside the third room by pushing the door from inside.

9. Thus, on appreciation of the entire meterial on record, the prosecution case as depicted by P. Ws. 7 and 8 and other witnesses has been rightly believed by the courts below:

10. The next question is whether all the petitioners can be convicted under Sections 457/34 and 354/34 I.P.C There is direct evidence against the petitioners Santosh alias Nepali and Gopal Krushna that they molested P. Ws. 7 and 8 after affecting their entry into the house by breaking open the jaffry door and other door. As regards the other three petitioners, there is evidence to show that they told the petitioner Santosh alias Nepali and Gopal Krushna to finish their work soon. In view of such evidence, the petitioner G. Simadri Patra was rightly convicted under Section 354, I.P.C with the aid of Section 34 I.P.C which has been confirmed in appeal. So far as petitioner Kanhu Charan Patra 16 is concerned, there is evidence of P.W 4 which put him in a different footing. His evidence is quoted below:—

“I helped my sisters in scaling over the back well and escaping to the other street. Accused Kanhu also told that as other accused persons were drunk my sisters should leave the place. I asked my sisters to take shelter in the house of Swachin Patra of Sastreenager. Excepting Kanhu other accused per sons run away at the approach of the people of Gauri Sahi. Kanhu talked with the people of Gauri Sahi. I, went to my father who was then at the verandah of Tuni………”

On consideration of the evidence, it cannot be conclusively said that the entry of the petitioner Kanhu Charan Patra into the house in question was unlawful because the possibility of his entry to prevent the other petitioners from committing any crime cannot be altogether ruled out. It is also seen from the evidence of P.W 1 and 3 that after arrival of some persons from Gauri Sasi, although all the accused persons escaped by running away from the spot but not this petitioner. He had some conversation with then and thereafter he left the spot. All these evidence have not been taken into consideration by the trial Court while convicting, the said petitioner and also by the appellate Court while confirming his conviction. In view of much evidence, I am unable to agree with the Courts below that the petitioner Kanhu Patra shared the common intention of the other petitioners in committing the offence. He is, therefore, at least entitled to benefit of doubt.

11. Mr. P.C Panda has lastly urged that in view of the tender age of the petitioners, they may be given the benefit of the Probation of Offenders Act. The Courts below have considered the desirability of giving such benefit but have declined to extens such benefit. Taking into consideration the gravity of the offence and also the fact of commission of such offences in dare devil manner, it is not considered expedient to give them such benefit. However, I am not inclined to enhance the sentence in view of the fact that they are within the age group of 23 to 24.

12. On the aforesaid analysis, while allowing Criminal Revision No. 595 of 1990 and thereby setting aside the conviction and sentence passed against the petitioner Kanhu Charan Patra, Criminal Revision No. 606 of 1990 is dismissed. The bail bond filed by Kanhu Charan Patra is cancelled.

13. Order accordingly.