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State of Orissa Vs. Udaya Padhan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberGovt. Appeal No. 5 of 1964
Judge
Reported inAIR1965Ori123; 1965CriLJ746
ActsTelegraph Wires (Unlawful Possession) Act, 1950 - Sections 5 and 7(1); Evidence Act, 1872 - Sections 114; Indian Penal Code (IPC), 1860 - Sections 377, 378, 410 and 411
AppellantState of Orissa
RespondentUdaya Padhan and ors.
Appellant AdvocateStanding Counsel
Respondent AdvocateB.B. Rath, Adv.
DispositionAppeal allowed
Excerpt:
.....173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - on their evidence i am satisfied that the copper wires were seized and recovered from their houses. 6). therein, he clearly stated that the wires examined by him with the departmental micro-meter were found to be of .0959' diameter which lies between standards specified by the posts and telegraphs department. but if the only evidence against him is his recent possession of the stolen property, the better presumption would be that he was a receiver of the stolen property......raikia and lokibadi. on information, the houses of the respondents were searched and the copper wires seized. the learned trial court did not place reliance on the seizure witnesses (p. ws. 2 and 3) and held that the prosecution could not establish beyond reasonable doubt the recovery of the copper wires from the possession of the accused. the state government has filed the appeal against the order of acquittal.2. the charge under section 5 of the telegraph wires (unlawful possession) act, 1950 is not tenable. section 7(1) lays down that:'no court shall take cognizance of any offence punishable under this act, save on complaint made by or under the authority of the central government or by an officer specially empowered in this behalf by that government.'the learned standing counsel.....
Judgment:

G.K. Misra, J.

1. Respondents were charged under Section 819/411, I. P. C. and under Section 5 of the Telegraph Wires (Unlawful Possession) Act, 1950 (Act LXXIV of 1950) and have been acquitted. Prosecution case is that in the night of 24-11-1961 copper wires measuring 91.44 metres were found missing from the telegraph line in between Raikia and Lokibadi. On information, the houses of the respondents were searched and the copper wires seized. The learned trial Court did not place reliance on the seizure witnesses (P. Ws. 2 and 3) and held that the prosecution could not establish beyond reasonable doubt the recovery of the copper wires from the possession of the accused. The State Government has filed the appeal against the order of acquittal.

2. The charge under Section 5 of the Telegraph Wires (Unlawful Possession) Act, 1950 is not tenable. Section 7(1) lays down that:

'No Court shall take cognizance of any offence punishable under this Act, save on complaint made by or under the authority of the Central Government or by an officer specially empowered in this behalf by that Government.'

The learned Standing Counsel concedes that the complaint was not made by or under the authority of the Central Government and that P. W. 4 who filed the complaint is not an officer specially empowered in this behalf by that Government. It need hardly be mentioned that the concession of the learned Standing Counsel is on the basis of absence of materials on record. The cognizance of the offence under Section 5 of that Act is accordingly without jurisdiction.

3. It now remains for consideration whether the charges under Section 379 or 411, I. P. C. have been made out. P. Ws. 2 and 3 and the I. O. (P. W. 5) are the search witnesses. Seizure lists (Exs. 2, 3 and 4) relate to accused Udaya, Mundula and Saltu, respectively. I have perused the judgment of the trial Court with care. After having gone through the evidence of P. Ws. 2 and 3 I find that the criticism is fully unjustified. There is slight discrepancy in their evidence but they have stood the test of severe cross-examination and their evidence remains unchanged that copper wires were recovered in their presence after they had been given a thorough search of their body before entering the houses of the three accused persons. The I. O. (P. W. 5) also testifies to the same fact. The evidence of P. Ws. 2, 3 and 5 regarding search is acceptable. On their evidence I am satisfied that the copper wires were seized and recovered from their houses.

4. The next question for consideration is whether the copper wires seized were part of the copper wires belonging to the Central Government from the telegraph line in between Raikia and Lokibadi. P. W. 4 the Engineering Supervisor, Telegraphs examined the seized wires and compared those with the copper wires existing in the telegraph line between Taikia and Lokibadi. He submitted his report (Ex. 6). Therein, he clearly stated that the wires examined by him with the departmental micro-meter were found to be of .0959' diameter which lies between standards specified by the Posts and Telegraphs Department. According to him these wires came under the category of 150 lbs. P.M. Copper which is used by the P. and T. Department only. He examined also the cut pieces seized from the spot and found them tallying with those wires seized from the accused. He was cross-examined at length and there is nothing in his answer shaking the correctness of his views given in his report (Ex. 6). On his evidence, I hold that the seized wires were portions of the copper wire in the telegraph line in between Raikia and Lokibadi.

5. There is no evidence that the accused persons actually committed theft in respect of the copper wires Section 114 of the Evidence Act lays down (sic)-

'The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.'

Illustration (a) appended to the section is as follows :

'The Court may presume-

(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.' in their examination under Section 842, Cr. P. C. the accused persons denied the factum of recovery and lid not account for the possession of the copper wires. The theft was on 24-11-1961 and the recovery was within 10 days on 5-12-1961. The presumption in the illustration applies with full force. As there is no evidence of the respondents being the thieves the presumption is that they were receivers of stolen properly knowing the wires to be stolen. Illustration (a) to Section 114 does not show when the presumption whether a person is a thief or a receiver of stolen property is to be drawn. This would, however, depend upon the facts and circumstances of each case. For instance, if a person is found near about the place of commission of theft immediately before or after the commission of the crime and is subsequently found to be in possession of the stolen property, of which he fails to give any satisfactory explanation, the presumption may be drawn that he was a thief. But if the only evidence against him is his recent possession of the stolen property, the better presumption would be that he was a receiver of the stolen property. The copper wires used in telegraph lines found in possession of the respondents are unusual articles. The respondent gave no satisfactory explanation of their possession but merely denied recovery from their custody. The legitimate inference is that they received the stolen property having reason to believe the same to be stolen property. They are, therefore, liable to be convicted under Section 411, I. P. C.

6. Theft of copper wires has become rampant and despite vigilance on the part of the Government, it has been difficult to prevent it. The case calls for deterrent punishment. I would, therefore, impose the maximum sentence which a Magistrate of the 1st class who tried the case could impose. The respondents are accordingly convicted under Section 411, I. P. C. and each is sentenced to rigorous imprisonment for two years.

7. In the result, the judgment of the trialCourt is set aside and the appeal is allowed. Therespondents must surrender to their bail bonds forthwith.


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