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State of Orissa Vs. Dhanmati Kisanin - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1964CriLJ602
AppellantState of Orissa
RespondentDhanmati Kisanin
Cases ReferredTulsiram v. State
Excerpt:
.....ornaments, but failure to do so, does not make the evidence inadmissible: 9. that some of these articles were recovered from the place shown by the accused and from her house is well-proved by the evidence of the i. w, 1 will not be admissible in evidence, but the fact that she informed that she had kept concealed the articles at a certain place is clearly admissible under the above section. in the well known case of pulukuri kottaya v. ..as relates distinctly to the fact thereby discovered. their lordships held that the whole of the statement relates distinctly to the discovery of ornaments and is admissible under section 27 and these words, viz. , where he had hidden them' had nothing to do with the past history of the crime and distinctly related to the actual discovery, that took..........lodged f. i. r. at the police station. in course of investigation, the i.o. recovered some of the stolen articles from the house of the accused. the accused was thereafter charge-sheeted and tried for offences under sections 454 and -380 indian penal code.3. the plea of the accused was one of denial. she, however, did not claim any of the alleged stolen properties to be her own.4. the learned magistrate acquitted the accused mainly on the following grounds:(i) that there was discrepancy in the number of articles as mentioned in the f. i. r. and the articles as were actually recovered.(ii) the ornaments found were articles of common use, and there was no special mark of identification.(iii) no test identification parade of the articles was held by the police.(iv) recovery of the articles.....
Judgment:

R.K. Das, J.

1. This is an appeal by the State against an order dated 4-2-1963 passed by the Sub-Divisionl Magistrate, Kuchinda, acquitting the respondent of offences Under Sections 454 and 380, Indian Penal Code.

2. The accused Dhanmati Kisanin is the wife of the cousin brother of Dibyaraj Kisan, P. W. 1. The prosecution case is that on 28-8-1962, Dibyaraj, his wife Ghararaani (P. W. 2) and his mother Jamuna (P. W. 3) went to their land for some agricultural operations. As there was none else in the house, they chained the door from outside. In the bed room of the house, there was a bamboo basket (Jumpi) containing various gold and silver ornaments as well as some cash which was locked. After working for sometime in the field, P. W. 2 came back home to see if her son had come back from school, and saw the doors of the house lying open and the Jumpi containing the valuables missing. She reported this matter to her husband, P. W. 1 and he came back home and found the Jumpimueing. Then they called the Chowkidar and some other villagers such as P. Ws. 6, n and 12 and told them about the occurrence. In the afternoon P. W, 1 lodged F. I. R. at the police station. In course of investigation, the I.O. recovered some of the stolen articles from the house of the accused. The accused was thereafter charge-sheeted and tried for offences Under Sections 454 and -380 Indian Penal Code.

3. The plea of the accused was one of denial. She, however, did not claim any of the alleged stolen properties to be her own.

4. The learned Magistrate acquitted the accused mainly on the following grounds:

(i) That there was discrepancy in the number of articles as mentioned in the F. I. R. and the articles as were actually recovered.

(ii) The ornaments found were articles of common use, and there was no special mark of identification.

(iii) No test identification parade of the articles was held by the police.

(iv) Recovery of the articles was not made in the manner contemplated Under Section 27 of the Evidence Act, and the mere production of the articles by the accused was not enough.

(v) The articles recovered, were found in a premises not in exclusive possession of the accused.

5. Before I proceed to examine the correctness of the grounds adopted by the learned Magistrate, it is necessary to set out the facts in a little more detail.

6. It is the case of P. W. 1 that he along with his wife, mother and his brother's wife were the only adult members living in his house. On the date of occurrence, all of them went out in the morning to carry out the weeding operation in their field, Sometime after his wife, P. W. 2 came to the house to see if their son had come back from the school and after sometime, he was reported by P, W. 2 about the removal of the Jumpi from their house. So he lodged the F. I. R. giving a list of articles said to have been stolen together with their approximate value, mentioning therein also that his wife and mother can identify the same. P. W. 2 gave her Story on the same line. P. W. 1 stated that immediately after the occurrence he reported the matter to P. W. 6 Lali Mohan Gountia, P. W. 11 Brundaban and P. W. 12 one Chandra Sekhar Panda and the latter two went to the place and saw where the Jhumpi was kept. At about the same time another theft occurred in the house of P. W. 5 Kusa Kisan. So P. W. 5, P. W. 1 along with P. Ws. 11 and 12 went to the police ' station to lodge the F. I. R. Thereafter police arrived at the spot, made necessary investigation and recovered some articles. P. W. 9 Bhadra Kisan has his Bad adjacent to that of Gura Kisan, father-in-law of the accused. According to P. W. 9 on the day following the occurrence he heard a sound like something falling into his bari and coming out he found a Jhumpi lying near his ash-pot and suspecting that this might be a stolen property and being afraid of the consequeaces, he placed the Jhumpi on the land of Anauda. from where it was recovered by the I.O. under seizure list, Ext. 2 in the presence of P. Ws. 6, 11 and 12, According to the informant, the Jhumpi contained his ornaments and cash. The I.O. on suspicion arrested the accused and interrogated her. The accused admitted before the I.O. and in the presence of P. Ws. 6, 11 and 12 that she had kept concealed the stolen articles, and led them to a place inside her house wherefrom she gave recovery to articles seized under seizure lists, Exts, 5 and 6. A large number of those articles wire identified by P. Ws. 1, 2 and 3 as their own and to have been kept in the Jhumpi which was removed from their house on the date of occurrence.

7. There cannot be any doubt that a number of stolen articles were recovered under seizure lists Exts, 2, 3 and 6. So far as the other seizures are concerned, they are not very material for the purpose of the present case and it would be unnecessary to refer them. In fact almost all the articles stolen, were recovered under these three seizures, one made at the Bari of Ananda (Ext. 2) and two made at the house of the accused at her instance (Exts. 5 and 6). ,

8. The learned Magistrate rejected the prosecution case on the ground that the articles mentioned in the F. I. R. did not agree with article actually recovered under the aforesaid seizure, and the number of articles recovered was far in excess of the articles mentioned in the F. I. R. In a case of this nature, when the F,. I. R. contained a list of articles and when similar articles were recovered under suspicious circumstances, it was the duty of the Magistrate to examine with care to find out if any one of these articles was really the article of theft belonging to the family of the informant. Nothing of the sort was done and the learned Magistrate rejected the prosecution story merely on the ground that the articles recovered did not agree with those given in the F. I. R, and they were articles of common use, without any special mark of identification. This, however, is not the correct approach to the case. No doubt, articles of same pattern are available in plenty in the market, but that does not mean that under no circumstances such articles can be identified at all and if such articles are stolen the victims are-without any remedy. In the present case, the members of the family, viz., P. Ws. I, 2 and 3 have looked at the articles and have identified them to be theirs and in most cases they have given reasons for proper identification. P.W. 1 has identified the Ganthias (Mos. I to IV), Guna (Mo V) Basani (Mo. VI), Ballis (Mos. VII to VIII), Bandhurias Mos. IX and X, Khagala (Mo. XIII), Chaundribhundi (Mo. IV) and silyer Phula (Mo. XV). It is unnecessary to add to this number and it is enough to say that he identified several otbei stolen articles such as Mos. XVI to XXIX. P. W. 2 also corroborated him by identifying a number of articles such as Mos. I to VIII, P. W. 3 has also identified Mos, I and II (Ganthias) as belonging to her. This ' identification by the witnesses, P. Ws. 1, 2 and 3 has never been challenged, nor has the accused claimed any one of these articles as belonging to her. In view of this evidence of Pws. 1, 2 and 3 it is established beyond doubt that the recovered articles were the stolen properties from the bouse 01 P. W. 1 on the date of occurrence. That the articles were not put to proper T. I. parade or that they did not bear any special identification mark, is no ground to reject the prosecution evidence on this point. In this case, the articles were intact and not broken to pieces and it is well known that a woman can identify her ornament without any special mark of identification, particularly when the ornament is intact, vide Sadasiv Das v. State : AIR1958Ori51 . The learned Magistrate refused to give any importance to the evidence of identification of these ornaments by Pws. 1, 2 and 3, just because those were not put to a test identification parade. No doubt, it would have been prudent to hold a test identification parade of the ornaments, but failure to do so, does not make the evidence inadmissible: vide : 1958CriLJ698 , Kanta Prasad v. Delhi Administration. What importance is to be attached to such an identification is a different matter, and has to be examined in the context of each case. Here, however, we find that the names of articles were given in the F~. I. R. and the owners of those articles had properly identified them. learned Counsel on both sides took the pains of comparing the list of articles as given in the F. I. R. with those recovered under various seizure lists, and to learned Counsel for the respondent rightly conceded that a large number of the articles in both the lists tallied absolutely. Thus, the finding of the learned Magistrate that the articles have not been proved to be stolen, must be held to be erroneous and is to be rejected.

9. That some of these articles were recovered from the place shown by the accused and from her house is well-proved by the evidence of the I.O. and Pws. 6, 11 and 14. The learned Magistrate found that the articles were not kept concealed and therefore Section 27 of the Evidence Act was not attracted. This is wholly erroneous both in fact and in law. The evidence fully discloses that the articles recovered from the house of the accused were kept concealed in a pit. Moreover Section 27 does not envisage that the stolen articles must be kept concealed or that there must be some sort of concealment before a discovery is made. Information leading to discovery may be made in relation to a thing which was not kept under any concealment. That question, however, is irrelevant for the purpose of this case, as we find that the articles were recovered from the place of concealment. It is the clear case of the I.O. that after her arrest, the accused led him and Pws. 6, 11 and 14 to a room and showed the pits wherein she said had buried the articles. The place of concealment was covered by fresh earth and some broken legs of a cot and a pickaxe which were also siezed under seizure list, Ext. 4. The accused led the party to a room wherefrom she produced a powder box (Mo. XXX) containing Gome gold ornaments from a heap of tiles. She similarly led to a place covered by some tiles, from underneath of which she brought out a cigarette tin (Mo. XXXI). These articles were seized under Exts. 5 and 6, To the same effect is the evidence of the other witnesses, Pws. 5, 11 and 14. P. W. 6 is the Gountia, who had also stated that in their presence the I.O. opened the powder box and weighed the contents, (Mos. I to VXII) and the silver ornaments (Mos. XV and XVI}, were found in a cigarette tin seized in his presence under seizure list, Ext. 5 and 6. Thus, there is ample evidence to show that the accused admitted before the I.O. and the other witnesses to have concealed the ornaments recovery of which was made at her instance. Of course, Under Section 27, the fact of admission by the accused that she committed theft in the house of P. W, 1 will not be admissible in evidence, but the fact that she informed that she had kept concealed the articles at a certain place is clearly admissible under the above section. In the well known case of Pulukuri Kottaya v. Emperor AIR 1947 PC 67 their Lordships while examining the -question as to how much of the information given by the accused to the police Under Section 27 would be admissible, laid emphasis on the words 'so much of information......as relates distinctly to the fact thereby discovered.' Their Lordships held that information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Their Lordships observed:

Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A' those words are inadmissible, since they do not relate to the discovery of the knife in the house of the informant.

Here, in this case, it was contended that the statement of the accused that she had hidden the ornaments can be equated with the statement 'with which I stabbed A' as illustrated in the aforesaid Privy Council decision and as such this statement is inadmissible Under Section 27 as that will amount to a confession of the offence and being a confession made to the police officer, is inadmissible in law. This contention, however, is without any force. In a case reported in : [1963]3SCR412 , Chinna Swami v. State of Andhra Pradesh a similar question came up for consideration. In that case, as here, it was stated by the appellant that he would show the place where he had hidden the ornaments. The learned Sessions Judge held that the statement which was to the effect 'where ha had hidden them' is not admissible. Their Lordships held that the whole of the statement relates distinctly to the discovery of ornaments and is admissible Under Section 27 and these words, viz., 'where he had hidden them' had nothing to do with the past history of the crime and distinctly related to the actual discovery, that took place by virtue of the statement. It was also held by their Lordships that the words 'where he had hidden them' are, not on a par with the words 'with which I stabbed the deceased' in the aforesaid illustration in the judgment of the Judicial Committee. Their Lordships extended the admissibility of such statement even to cases where possession itself amounts to an offence, as in their Lord ships' view in such cases the admission of possession itself would not amount to an offence unless it is further shown by the prosecution that the .possessed articles were stolen property. Thus, the statement of the accused in. this case is clearly admissible Under Section 27. She had stated that she had concealed the articles and thus led I.O. .and the party and gave recovery of articles from I the place where they were actually hidden, 'Discovery' in Section 27 embraces not only the [knowledge of the accused as to the place, but also the place from which it was produced. In view of such position it cannot be doubted that the-accused was found in possession of the stolen articles. That some other persons were also living in that house is irrelevant for the purpose of this case. From the seizure list as well as from other evidence it appears clear that it was the accused who has kept the articles concealed and the concealment to tier knowledge. There is nothing to show that the inmates of the house knew anything about it.

10. That these articles were found only two days after the occurrence from the possession a the accused, leads to the presumption Under Section 114, Illustration (a) of the Evidence Act, that the accused either committed the theft or had received the properties of theft, knowing them to be stolen. There is no evidence to show that she herself committed the theft, nor was she seen moving at or about the place of occurrence at the time when the theft occurred. In the absence of any explanation by the accused, it is reasonable to hold that she was a receiver of the properties stolen from the house of P. W. 1. In a case reported in : AIR1954SC1 , Tulsiram v. State, the Lordships held that the presumption permitted to be drawn under Illustration (a) of the Evidence Act has to be read along with the important factor. If the ornaments or things of the deceased are found in the possession of the accused soon after the murder a presumption of guilt may be permitted. Thus in this case, there is no escape from the conclusion that the accused was a receiver of the stolen properties and as such is liable for punishment Under Section 4n, IPC Even though the appellant has not been charged under the said section, there is no legal bar for the conviction under that section in view of the provisions of Section 237, CrIPC As I have already shown, there is no evidence to sustain the conviction of the accused either Under Section 454 or 380, IPC I would accordingly set aside the order of acquittal passed by the Sub-divisional Magistrate Kunchinda and convict the accused Under Section 411, IPC But so far as sentence is concerned, in view of the fact that the accused is a young lady and is a close neighbour of trip forehands and the was just a victim of temptation I do not feel inclined to pass any substantive sentence upon her, but propose to take action Under Section 4 of the Probationer of Offenders Act.

In the circumstances, I direct thatin lieu of the sentence, the accused should be released of her entering into a bond of Rs. 500/- with two sureties of the like amount and to receive the sentence when called upon to do so during one year from today and in the meantime to keep the peace and be of good behaviour. The appeal is thus allowed.


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