A.M. Bhattacharjee, J.
1. This is an appeal by the accused Prem Bahadur Rai against the judgment of the learned Sessions Judge, Sikkim at Gangtok, dated, 11th March, 1977 in Criminal Case No. 26 of 1976, whereby the accused has been convicted Under Section 457 read with Section 34 and Section 392 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years Under Section 457 read with Section 34 of the Indian Penal Code and also to rigorous imprisonment for the same period Under Section 392 read with Section 34 of the Indian Penal Code, both the sentences to run concurrently.
2. The case of the prosecution appears to be that on 30-1-1976. at about 12 O'clock, a report was recieved at the Pakyong out post from one Mahabir Limboo to the effect that during the night between 28th and 29th January, 1976, one ear-ring of his wife had been robbed by some unknown persons who ran away immediately after the occurrence. A formal F.I.R., marked Exhibit 2, was recorded on the basis of the above report, marked Exhibit 1, and the investigation proceeded and was conducted by the Sub-Inspector of Police, C. L. Khenal. During the course of investigation it was found that the complainant Mahabir Limboo and his wife Sukrani Limbooni were returning to their house in Aho Busti from Pakyong Bazar and that they were followed by two unknown persons on the way up to their house but they could not and did not remember their descriptions as the night was a dark one.
3. The accused Prem Bahadur Rai, the appellant before us. and Prem Kumar Rai who is reported to be absconding, were arrested on suspicion and the prosecution case is that during their interrogation they admitted to have committed robbery in respect of the aforesaid ear-ring of Sukrani Limbooni by entering the house during night on 28th/29th January, 1976, and that they subsequently sold the said ear-ring to Laxman Agarwala, who was also an accused in this case but was subsequently discharged, for Rupees five hundred and that later on the said golden ear-ring was recovered from the shop of the said Laxman Agarwala.
4. It appears that during the course of the trial, an application was filed by the Court. Inspector for discharging the accused Laxman Agarwala as according to the prosecution, the case was not substantiated against him and also praying for examining the said Laxman Agarwala as a witness. The said Laxman Agarwala was eventually examined by the prosecution being witness No. 6 for the prosecution.
5. As the accused Prem Kumar Rai absconded and accused Laxman Agarwala was discharged, the trial proceeded against the accused-appellant Prem Bahadur Rai only and he was charged by the learned Sessions Judge Under Section 457 read with Section 34 of the Indian Penal Code for committing lurking house trespass and also Under Section 392 read with Section 34 of the Indian Penal Code for committing robbery. The accused pleaded not guilty and claimed to be tried.
6. The prosecution examined six witnesses in support of its case. P.W. 1 is Dr. S. Rai; P.W. 2 is Mahabir Limboo, who is the husband of Sukrani Limbooni in respect of whose earning the alleged robbery was committed; P.W. 3 is Phufba Kazi, who was in charge of the Pakyong Out Post at the relevant time; P.W, 4 is Sukrani Limbooni, whose earring has been alleged to have been robbed; P.W. 5 C. L. Khenal is the Sub-inspector of Police who investigated the case and submitted the charge sheet; and P.W. 6 is Laxman Agarwala to whom the stolen ear-ring was alleged to have been sold by the accused and who was originally sent up for trial but was subsequently discharged.
7. P.W. 1, Dr. Rai, in her deposition stated that she examined Sukrani Limbooni on 31-1-1976 and that she found a slight injury with dried up blood clots on the right lobe of the ear that the injury was simple in nature.
8. P.W. 2 is Mahabir Limboo, who lodged the first information and he stated in his deposition that on Wednesday in the month of Magh last, foe. his wife, P.W. 4, and their third son returned to their house at about 5 P.M. from Pakyong and that after taking meals, he and his wife went to bed. He deposed further that early in the morning he heard his wife shouting that somebody had snatched her ear-ring from her ear and that he got up and lit the lamp and saw that the ear-ring from the right ear of his wife was missing and her right ear-lobe was found bleeding. P.W. 2 stated further that when they went to bed they had closed the door from inside but on waking they found the door to be wide open.
9. P.W. 3 is the Head Constable-in-Charge of Pakyong Out Post and his evidence is that he received the First Information Report, Exhibit 1, on 29-1-76 at the Out Post and informed the Officer-in-Charge, Sadar Police Station on phone about the same and that on being directed by the Officer-in-Charge he proceeded to the spot and handed over the report to the Officer-in-Charge there.
10. P.W. 4 is Sukrani Limbooni and She stated in her deposition that in the month of Magh on Wednesday, after taking meals she and her husband went to bed by closing the door from inside and that early in the morning after the crow of cock, she felt that somebody snatched the right ear-ring from her ear. She stated further that as the night was dark she could not recognise the persons. She identified the ear-ring being Exhibit I, as the ear-ring which was snatched from her.
11. P.W. 5 is the Sub-Inspector C. L. Khenal, who investigated the case. He stated in his deposition that he received information from the Head Constable-in-charge, Rangpo Check Post, that he had detained two suspects and that he ordered the check post-in-charge to bring those suspects to the Gangtok Police Station. P.W. 5 further stated that during interrogation 'both the accused persons disclosed' to him that they had sold an ear-ring to one Marwari on Lall Bazar Road and that they could point out the shop of the said Marwari. P.W. 5 further stated that the accused persons 'had then taken to Lall Bazar road and there they pointed out to the shop of Laxman Agarwala accused and that they had sold the gold earning to Laxman Agarwala.' P.W. 5 further stated that the accused Laxman Agarwala produced the ear-ring, exhibit I, which, was seized by P.W. 5 under a seizure memo, Exhibit 3.
12. P.W. 6 is Laxman Agarwala himself, who, as already stated, was originally set up for trial as a co-accused and was subsequently discharged. This witness stated that in January, 1976, on a date which he did not remember, the accused-appellant and another person, whose name he could not remember, came to his shop at about 12.30 hrs. and the accused-appellant showed to him the ear-ring, exhibit I, and wanted to sell the same alleging that his mother was ill in the hospital. P.W. 6 further stated that on the repeated insistence of the accused he agreed to purchase it and got it weighed by a goldsmith who has since died and purchased it for Rupees five hundred which was the fair market value of the said ear-ring. P.W. 6 stated further that on 23-2-76 police came to him and asked whether he purchased any gold ear-ring from the accused and that he admitted to have purchased the earring and handed over to the police who seized it under seizure memo, marked exhibit 3. He stated further that he never knew that the said ear-ring was stolen.
13. The accused was examined by the learned Sessions Judge Under Section 342, Code of Criminal Procedure, and in his statement, the accused categorically denied to have committed any offence or to have made any disclosure statement as alleged by P.W. 5 or to have sold the alleged stolen article to P.W. 6 or to have taken the police party to the shop of P.W. 6. The accused further stated in his statement that during Maghi Mela in January, 1976, there was some dispute between him and the Investigation Officer, P.W. 5, and that on that account he was falsely implicated. He, however, did not lead any evidence in his defence.
14. On the evidence on record, as discussed above, the learned Sessions Judge found the accused to be guilty and convicted and sentenced him as stated above. Being aggrieved by the aforesaid judgment and order of the learned Sessions Judge the accused has preferred the present appeal. The accused preferred this appeal through jail; but after the appeal was admitted, he was released and remained on bail during the hearing of this appeal and also appeared in person on the date of hearing before this Court. The learned Advocate-General appeared for the State.
15. We went through the entire record of this case and were assisted by the learned Advocate-General in doing so. We perused the record, examined the evidence, heard the learned Advocate-General and the appellant appearing in person and we are of opinion that the order of the learned Sessions Judge cannot be sustained and is to. be set aside.
16. We have already discussed herein before the evidence of the witnesses for the prosecution. P.W. 1 who is a doctor and who examined Sukrani Limbooni, P.W. 4, immediately after the incident and P.W. 3, the Constable-in-charge of Pakyong out post, had absolutely nothing to say as to the occurrence or against the accused. The evidence of P.W. 2, Mahabir Limboo, also does not in any way connect the accused-appellant with the alleged offence as his only evidence is that the woke up on hearing the shout of his wife that somebody had snatched her ear-ring and that he could not or did not see anybody. To the same effect is the evidence of P.W. 4 Sukrani Limbooni herself who also merely stated that in the morning hours when she woke up she felt that somebody had snatched her ear-ring but that she could not recognise any person as it was quite dark.
17. Let us, therefore, see to what extent the evidence of other two witnesses, namely, P.W. 5 and P.W. 6, have connected the accused in any way with the offence charged. The evidence of the Investigating Officer, P.W. 5, no doubt, is that the accused-appellant and the other accused Prem Kumar Hai were interrogated and 'both the accused persons disclosed' to him that they had sold the gold ear-ring to Laxman Agar-wala, P.W. 6, and they took P.W. 5 to the shop of Laxman Agarwala, and the gold ear-ring, Exhibit I, was recovered. The learned Sessions Judge has observed that since the Investigating officer did not take any public witness with him at the time of the alleged recovery of Exhibit I or the alleged 'disclosure statement may not be strictly believed'. The learned Sessions Judge was perfectly right in not relying on the alleged statement or disclosure made by the accused-appellant and the accused Prem Kumar Rai. From the evidence of P.W. 5 it appears that the alleged disclosure or statement was made by both the accused jointly and the evidence is not at all clear as to who made the disclosure or statement first and who next. Had it been known, we could have probably held that the statement made first by one of the two accused persons and leading to the alleged discovery of the ear-ring, Exhibit, I, as admissible in evidence against him under the provisions of Section 27 of the Indian Evidence Act. But, as already noted, the evidence is too vague to lead us to any conclusion as to which of the accused persons made the alleged disclosure or the statement in consequ- ence whereof the discovery was made. Since there is no clear evidence as to which of the accused persons made the crucial statement first, which could have led the police to the alleged discovery of Exhibit, 1, the so-called joint statement of the accused persons cannot be relied on Under Section 27 of the Indian Evidence Act. There is a long catena of weighty decisions of various High Courts that these types of joint statements or joint discoveries are not at all admissible against any of the accused persons, unless it can be shown as to who made the first statement leading to the discovery or who made the first discovery. Apart from the question of principle, we are also inclined to agree with the learned Sessions Judge that in view Of the absence of any witness whatsoever, at the time of the alleged recovery of exhibit I or making of the alleged statement, without any explanation whatso ever for not calling for such witnesses as required by law, the alleged recovery of Exhibit 1 and the evidence of P.W. 5 relating thereto cannot be relied on.
18. Now if as a result of the absence of witness as required by law at the time of the alleged recovery of the ear-ring, Exhibit 1, from the shop of P. W. 6 without any explanation for the absence of such witnesses, it becomes unsafe to rely on the evidence of P.W. 5 and the alleged statement and the recovery, then the evidence of P.W. 6 also must be held to suffer from the said infirmity.
19. Further, as we have already noted, this Laxman Agarwala, P. W. 6, was originally sent up for trial as a co-accused along with the other accused persons and was subsequently discharged. The law is undoubtedly settled that after an accused is discharged and thus ceases to be on trial with his accomplices, he becomes a competent witness. But a person may be competent to be a witness and yet may not be reliable as a witness. As is well known, under the law an accomplice is also a competent witness in view of Section 133 of the Indian Evidence Act, but is not generally treated as a reliable witness in view of the provisions of Section 114 of the Indian Evidence Act, unless his evidence is corroborated in material particulars. In a Criminal case, any evidence to be used against an accused person must not only be a legal evidence and must be an evidence of a person who is competent to be a witness under the law but must also be such evidence as can inspire confidence and can be treated as reliable. As we have already pointed out, the alleged recovery of Exhibit 1 from the shop of P.W. 6 was not made in the presence of any independent witness; it further appears from the Seizure Memo. Exhibit 3, under which the earring, Exhibit 1, was seized, that the same was not even prepared on the spot and was prepared at the Police Station and was obviously signed by witnesses who did not at all witness the alleged seizure as will appear from the evidence of P.W. 5 who clearly stated that he took no witness with him to the shop of P.W. 5. It, however, appears from Exhibit 3 that the alleged seizure was complete on 23-2-76 at 13.30 hours in presence of witnesses and P.W. 6 also stated that he handed over the Exhibit 1 to the police on 23-2-76 and the police took the same into their possession on the same day. But P.W. 5, the Investigating Officer, however, admitted in cross-examination that after Exhibit 1 was recovered from the shop of P.W. 6 on 23-2-76, P.W. 6 promised to produce the same by the next day in the police station and that he produced the same in the police station on the next day, i.e., on 24-2-76. All these taken together make the alleged recovery and seizure of Exhibit 1 very doubtful and the material contradiction in the evidence of P.W. 5 and P.W. 6 as to the date and time when and the place where Exhibit I was recovered and seized by the police makes the evidence of both these witnesses unreliable to a great extent. There is also no document on the record in the shape of the account book or a purchase receipt or otherwise to show that the Exhibit I was really purchased by P.W. 6 in a bona fide manner and thus to enable us to presume that the same was acquired by P.W. 6 without any knowledge of its being a stolen property. As already noted, P.W. 6 was also sent up for trial as one of the accused in this case and chargesheet was also submitted against him. On consideration of all these facts and circumstances taken together, we feel that even if we do not pronounce P.W. 6 as an accomplice in the strict sense of the term, the evidence of P.W. 6 fails to inspire confidence. We are, therefore, of opinion that it would be unsafe to rely on the evidence of P.W. 6 and to use it against the accused,
20. That being so, there is nothing else on the record on which we can conclude that the guilt of the accused has been proved and which can -justify conviction and can sustain the judgment under appeal. It appears from the judgment of the learned Sessions Judge that he has relied strongly on the presumption that may be drawn under the provisions of Illustration (a) to Section 114 of the Indian Evidence Act. Since we have already held that there is no evidence on record to justify a conclusion of guilt against the accused, it is not necessary for us to go into the question as to what extent the learned Judge was justified in drawing the presumption which he did and in using such presumption in the manner he did. But we would, however, like to point out that the law deducible from Section 114. Illustration (a) of the Indian Evidence Act is fairly well settled and the law appears to be, as settled by a series of authorities, that (a) under Illustration (a) to Section 114 of the Indian Evidence Act, the Court may, but not that it must, make the presumption therein mentioned; (b) even if the Court makes the presumption under Illustration (a) to Section 114 of the Indian Evidence Act, the onus on the general issue is still on the prosecution, and (c) it is not the law that if the accused fails to account for his possession of the goods said to be stolen, he must be convicted, if the other facts on record do not predicate his guilt. It is not at all necessary to cite any authority for this well settled proposition; but yet one may refer to the Division Bench decision of the Calcutta High Court in Keshab Deo Bhagat v. Emperor AIR 1945 Cal 93 : 46 Cri LJ 465 where the law on the point was summarised by S. R. Das, J. (as his Lordship then was, Lodge, J. concurring with him). That being the position in law, we feel that even if the learned Sessions Judge was right in holding that the accused was to be regarded as the person in possession of the stolen article within the meaning of Illustration (a) to Section 114 of the Indian Evidence Act, still the accused was not to be convicted if the other facts on the record did not unmistakably point to his guilt. The learned Sessions Judge also failed to note that in order to justify the raising of a presumption under Illustration (a) to Section 114 of the Indian Evidence Act, the accused against whom the presumption is to be drawn must be found to be in possession of the 'stolen goods soon after the theft.
21. On a consideration of all the facts and circumstances of the case we are of opinion that the learned Sessions Judge was wrong in convicting the accused either for committing robbery or for committing house-trespass and the judgment under appeal must, therefore, be set aside.
22. We, however, feel that before parting with this case we should draw the attention of the learned Sessions Judge to a palpable error of law committed by him in framing a charge against the accused for committing lurking house-trespass. The learned Sessions Judge failed to realise that a person committing house-trespass or house-breaking by night does not necessarily commit 'lurking house-trespass' as defined in Section 443, Indian Penal Code, or 'lurking house-trespass by night' as denned in Section 444, Indian Penal Code. The law is well-settled that unless the accused is alleged to have taken some active steps and means to conceal his presence, the allegation that a house-trespass was committed during night and the darkness helped the accused in concealing his presence, does not and cannot justify the framing of a charge for the offence of committing of ''lurking house-trespass.' House-trespass by night cannot and does not amount to lurking house-trespass simply because the darkness of the night helped or enabled the trespasser to conceal his trespass. But if the house-trespass is a 'lurking house-trespass' as defined in Section 443 Indian Penal Code, because of the offender having taken some active steps and means to conceal his presence, it becomes automatically lurking house-trespass by night Under Section 444 of the said Code if it is committed after sunset and before sunrise.
23. Under the circumstances, we allow this appeal and set aside the judgment of the learned Sessions Judge and acquit the accused. The accused is on bail and is discharged from the bail bond.